Significant Decisions Report for February 17, 2017

Court of Criminal Appeals

The Court of Criminal Appeals had a busy week this week, with multiple published opinions. Pour yourself a steep cup of coffee and dig those heels in. There will be a test.

Wolfe v. State

The Court of Criminal Appeals, in a unanimous decision written by Judge Alcala, addressed the question of whether “abusive head trauma” testimony by an expert was sufficiently reliable. Defendant Wolfe, a licensed in-home daycare provider, was convicted for first-degree injury to a child. Three experts testified for the State on the theory that the child victim’s injuries were the result of “intentionally inflicted impact,” otherwise known as “abusive head trauma,” rather than accidental injury or some preexisting condition.

Wolfe properly objected to each expert on grounds of reliability, and complained on appeal that the court of appeals did not properly address two inquiries: (1) whether the State’s experts improperly relied upon a “constellation of symptoms” to diagnose abusive head trauma; and (2) whether the proffered expert testimony was unreliable due to the victim’s previous medical history.

Seven-month old “Jack” (a pseudonym) was rushed to the hospital after Wolfe called 911. Examining doctors found a subdural hematoma, retinal hemorrhaging, and brain swelling, the so-called “triad” of symptoms associated with abusive head trauma. Doctors also found “two older stages of blood in [Jack’s] brain as well as new bleeding.”

The State proffered three experts: Dr. Roberts, who performed the life-saving neurosurgery on the child; Dr. Ranelle, a pediatric ophthalmologist who examined the child after the surgery; and Dr. Coffman, a board-certified physician in pediatrics and child abuse pediatrics, who evaluated the child last of all. Each of the three doctors diagnosed abusive head trauma, which has disputed status in the “biomechanical world” and “medical examiner world,” but not in the world of pediatrics.

Wolfe presented the testimony of her own expert, Dr. Rothfeder, who testified that there was a disagreement in the medical community about the principles for diagnosing abusive head trauma. Dr. Rothfeder found it significant that old bleeding on the brain was observed, and questioned whether the subdural hematoma was therefore a leg of the “triad” for diagnosing abusive head trauma.

In the Second Court of Appeals, Wolfe raised only the issue of reliability. The Court of Appeals understood this objection to be to the science of abusive head traumas generally, and not to whether the diagnosis in the particular case was reliable due the victim’s medical history. Unsurprisingly, Wolfe lost that fight, as Drs. Roberts, Ranelle, and Coffman were obviously qualified to render the opinions they gave.

Any reliability determination will turn on the scientific or technical technique or practice being used and its general applicability in the relevant field. Courts are almost always using what philosopher of science Thomas Kuhn called “normal science,” that is, well settled and established principles relied upon in the relevant expert community. Kuhn’s “revolutionary science,” or science on the cutting edge which uses unproven, untested techniques or theories, may well be correct and may one day supplant “normal science” (as was the case, for example, in Einsteinian relativity supplanting Newtonian mechanics). The question for the Court of Criminal Appeals then was whether abusive head trauma was “normal science.”

The Court did so conclude, and did so based on the rulings of courts in other jurisdictions and publications of the American Academy of Pediatrics. In light of such factors, it will always be difficult to convince a reviewing court that the trial court abused its discretion in permitting an expert to testify as to “normal science,” no matter how great your revolutionary, cutting-edge idea from your expert is.

Similarly, Wolfe found no relief in suggesting that the Second Court of Appeals was wrong not to address the reliability of abusive head trauma science in this particular case. The Court of Criminal Appeals “disagree[d] with the suggestion by [Wolfe] that the court of appeals wholly declined to consider whether the experts’ opinions were reliable in applying a diagnosis of abusive head trauma to the facts of the case.” After finding that Wolfe did not adequately brief the issue before the Court of Appeals, the Court of Criminal Appeals concluded that the Second Court of Appeals was under no obligation to search the record itself and consider unassigned error of this type.

This is an illustration of the principle that when cases are tried, juries will make decisions between competing theories, often between competing experts, and absent a clear abuse of discretion by the trial court in admitting expert testimony that obviously fails to meet the definition of accepted, normal science, the jury’s decision is going to stand and be given deference by appellate courts.

Crawford v. State

Who likes a good split decision? I certainly do, because it tips me off that this area of law is going to draw more litigation in the future. In this case, the Court of Criminal Appeals considered a very interesting question – does the more-specific statute regarding enhancement of sentences for a defendant convicted multiple times of failure to register as a sex offender apply to the exclusion of the general enhancement of punishment rule in Texas Penal Code § 12.42(d)? OK, so that’s a really boring and nerdy question, but every appellate lawyer reading this just mopped a tiny bit of drool from the corner of his or her mouth. This stuff is riveting if you are the right kind of weird.

Crawford was first convicted in 1984 of sexual assault, and later required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure. In 2007 and 2009, he was convicted of the felony offenses of failing to comply with the registration program. In 2013, he was indicted again for failure to comply under Art. 62.102(b)(2) of the Code of Criminal Procedure. The indictment included an enhancement allegation under Texas Penal Code § 12.42(d). Crawford objected to the application of Sec. 12.42(d), but admitted that he had been previously convicted. The jury assessed punishment pursuant to the 25-life punishment range at 85 years. Ouch. But not unexpected; sex offenders who fail to register rarely elicit sympathy from juries.

On appeal to the Tenth Court of Appeals, Crawford claimed that Art. 62.102(c) of the Code of Criminal Procedure preempts Sec. 12.42(d). Art. 62.102(c) says that if it is shown at trial that a person charged with violating a registration-based offense has been previously convicted, the punishment is increased to the next-higher level of punishment. That would make Crawford’s potential sentenced capped at 20 years, less than a quarter of the sentence he received. Big difference.

As a general principle of statutory construction, more specific statutes control over their specific area rather than a general statute. For example, there are enhancement provisions peculiar to theft offenses, and the State may not “double dip” and use a conviction for both the theft enhancement provision and the general Sec. 12.42 enhancement provisions.

The Court of Criminal Appeals found that Art. 62.102(c) applied only to cases where there is a “single prior sex-offender-registration felony offense,” and not to situations where there were “multiple prior sex-offender-registration offenses” (emphasis in original).

And here is where things get fun for appellate nerds, in the “canons” of statutory construction (not actual cannons, though I agree that a full broadside against opposing counsel at oral argument would make one’s point in a rather dramatic fashion). Texas is just weird enough to have codified its canons of statutory construction in Chapter 311 of the Government Code, the “Code Construction Act.” This not-quite-underhanded attempt to subvert the natural power of the judiciary to adopt whatever legal fiction it would like as a “canon” of construction to cover itself into making whatever interpretation it wanted is modestly successful. But Texas Government Code § 311.026(a) does say that if a general provision conflicts with a special provision, reviewing courts are supposed to construe them in such a way to give effect to both if at all possible, and this provided the Court the excuse it needed to uphold Crawford’s lengthy sentence.

But as I said, this was a split decision. Judge Yeary, writing for the majority, was joined by Presiding Judge Keller, and Judges Keasler and Keel. Judges Richardson and Newell also joined in the majority, but Judge Richardson wrote a separate concurrence in which Judge Newell joined. Judge Walker dissented, and was joined in the dissent by Judges Hervey and Alcala.

By my count, that’s 4 judges squarely for the majority, 2 judges siding with the majority but with reservations about the reasoning, and 3 judges disagreeing. At best, this is a 6-3 decision for the majority, and probably more like a 4-2-3 decision, with no side having a clear majority.

Judge Richardson’s concurrence notes that both he and Judge Newell agree that Sec. 12.42(d) applied to this case, but note that the Legislature may well have intended the result Crawford desired, and might so reform the statute. Judges Richardson and Newell might be tempted to see Art. 62.102 as merely bad drafting of the Legislature’s intent.

Judge Walker correctly points out that other sections of the Code Construction Act could lead to Crawford’s intended result – the Legislature did intend for Art. 62.102(c) to be the sole enhancing statute for failure-to-register offenses. Judge Walker would hold that since Art. 62.102 was adopted later than Sec. 12.42(d), the drafters of Art. 62.102 were aware of Sec. 12.42 and thus intended for Art. 62.102 to trump Sec. 12.42. This author cautions against assigning any degree of rationality or even sensibility to the Texas Legislature, an august body whose every meeting was described by the great sage Molly Ivins as a “catastrophe.”

Regardless of what the Legislature actually intended, the current state of the law is that your multiply-failing-to-register clients are susceptible to enhanced punishment of twenty-five to life in the hole, so think about that before rejecting a plea bargain for under twenty years. However, without a clear agreement of at least five judges as to what the Legislature did mean to do, this issue is ripe for more hollerin’ about in Austin in the coming years.


Roy v. State

How about one where the good guys (that’s us, take a bow!) win? In Roy v. State, Judge Keasler delivered the opinion of a nigh-unanimous court (only Presiding Judge Keller dissented, without a separate opinion) that there was “more than a mere scintilla” of evidence raised at trial warranting the submission of a lesser-included offense. Chalk one up in the “W” column, lads.

Your own august author knows well the sting of having a lesser-included offense instruction denied to the detriment of his client (and is still awaiting the decision of the Court of Appeals, though, freshly armed with this new case, I do not fear the outcome). But let us leave that case alone and turn to the case of Mr. Roy.

Roy and his girlfriend were out for a drive when Roy lit up a “dip cigarette,” a descriptive term for a cigarette dipped in phencyclidine, better known as PCP or “angel dust” in its solid form. This caused Roy to begin to drive erratically, and tell his girlfriend, “Oh, you’re scared? I’m going to kill both of us!” As a general rule, it is not advisable to announce such an intent, but there is nothing more helpless and irresponsible than a man in the depths of a PCP binge. Roy drove his vehicle toward cars stopped at train tracks, hitting one car and killing a passenger in that car.

At trial, Roy testified he blacked out while driving and had no memory of the crash. When tested, Roy’s blood contained benzodiazepine (e.g., the class of drugs that includes Xanax or Valium), PCP, and tetrahydrocannabinol (marijuana, or as the Legislature believes it to be spelled, “marihuana”), as well as a small amount of alcohol. Now, I’m afraid of blood and needles, so I had to become a lawyer and not a doctor, but even I know that a cocktail of benzos, PCP, pot, and booze will knock your ass flat out. So it could very much be said that Roy knew, or should have known, about the risk his conduct posed to him and everyone else in his vicinity, but so strong was his desire to get lit that he disregarded that risk.

The State charged Roy with murder, however, meaning that they were required to prove that Roy intentionally or knowingly tried to kill someone. Roy requested a lesser-included offense instruction on manslaughter, based on the theory that he is just an idiot, not a malicious murderer, which the trial court denied. Roy was convicted of murder, as will happen in these situations, and sentenced to seventy-five years. But the test for whether you are entitled to an instruction on a lesser-included offense is twofold: (1) is the proposed lesser-included offense actually a lesser-included offense, and (2) have you produced more than a mere scintilla of evidence from which a rational jury could find you guilty only of the lesser-included offense.

It’s a well-settled fact that manslaughter and criminally negligent homicide are lesser-included offenses to murder. So the only question was whether Roy had produced a minimum quantity of evidence necessary for the instruction. Roy’s testimony at trial entitled him to a lesser-included offense instruction, because, no matter how fantastical his tale, the jury could have believed Roy that he consciously disregard the risk that driving around with a pharmacy’s worth of drugs in his blood would cause an issue, and disbelieved the State’s evidence that Roy announced his intention to kill someone while driving, or that the outburst by Roy was mere hyperbole, or any number of other theories. The test is not whether the jury might have believed the evidence of the lesser-included offense, but whether any evidence raised that possibility. And the evidence almost always does.

Let this be a lesson to the trial courts and the State – opposing lesser-included instructions is a very stupid way to get your case reversed and have to retry it. If you have the confidence of your evidence and your case, give the defense their requested lesser-included offense instruction. In this case, I think most any jury in this state would have convicted poor Roy of murder, what on account of the drugs and the saying he was going to kill someone. By arguing against, and denying, the lesser-included instruction, the State and trial court shot themselves in their respective feet.

White v. State

Does the “drug free zone” statutory enhancement to delivery of a controlled substance require that the defendant knew he picked a drug free zone to do the dirty deed? The answer is “no.” The statutory provision (Health & Safety Code § 481.134(d)) does not contain any such language.

But what about Texas Penal Code § 6.02(b)? This is another one of those tricky “how to interpret statutes” statutes that the Legislature makes because legislators do not trust judges, the same as judges do not trust legislators to know how to do their business. Rather than simply amending an ambiguous statute, our Legislature would rather create meta-rules for statutory interpretation so that the Courts can give effect to what the Legislature obviously intended but obstinately refused to say. Again, a “catastrophe” every time they meet.

Nevertheless, Sec. 6.02(b) does state that in the absence of clear intent to do away with a culpable mental state provision, reviewing courts are supposed to read one into the statute. Hey, that’s pretty clear, right? White wins, he did not know he was in a drug free zone, do not enhance him?

Wrong again, friends. The Court concludes that Sec. 6.02(b) applies to primary statutes, not statutes which provide enhancing or aggravating factors.

The Court of Criminal Appeals goes further and notes that in statutes protecting children, such as statutory rape offenses, the Court has declined to impose a requirement that the actor know the child is younger than 17. While true, this reasoning is much less persuasive than the fact that Sec. 6.02(b) probably does not and should not apply merely to aggravating-factor statues rather than primary offenses. But “think of the children!” is as good a rallying cry as any, and the Court of Criminal Appeals went with it, so be aware that such provisions will be interpreted broadly and not in favor of our clients.

Shimko v. State

In an unpublished opinion, the Court of Criminal Appeals considered whether acquiescing to a police officer’s wave in a parking lot was a “seizure” within the meaning of the Fourth Amendment. The facts of this case are strange, so bear with me.

Scott Williamson was a patron of Little Woodrow’s Pub in north Austin. Williamson was drunk and staggering around the parking lot, where four law enforcement officers were present. The officers graciously decided not to arrest Williamson for public intoxication because Williamson said he had a ride on the way (driven by Shimko). Ostensibly for Williamson’s safety, the officers had Williamson sit down. The officers noticed Shimko circling the parking lot, at which point Williamson said, “Dude, there’s my car.” Believing that perhaps Shimko could not see Williamson, as Williamson was supine, officers flagged Shimko to stop, found him to be intoxicated, and arrested him.

Finding that Shimko’s encounter with officers was a consensual one, the Court had to consider whether “a reasonable person in [Shimko’s] position would have felt free to ignore Deputy Ford’s request or to terminate the consensual encounter.” Finding that the facts of the case were unique, the Court of Criminal Appeals declined to apply any “community caretaking” function and said that this encounter was purely a voluntary encounter between police and citizens.

Judges Hervey, Keel, and Walker joined Presiding Judge Keller in dissent. The dissenters felt that a reasonable person in that situation would not have felt free to leave and would have been compelled to stop when an officer flagged them down. However, the dissenters would also have remanded the case to consider whether Deputy Ford was engaged in community caretaking.

I would be careful to read too much into the dissent. It is likely that every dissenter would have upheld the conviction on the community caretaking rule, resulting in no relief to Mr. Shimko. Regardless, this case is unpublished and of no precedential value.

Johnson v. State

Mr. Johnson, also known as “Kevin Kimp,” got himself convicted of robbing a RaceTrac convenience store using a butter knife (pro-tip: unless you’re robbing a buffet of its delectable hors d’oeuvres, pick a better criminal instrument than tableware. You don’t want to be the guy on the cell block who held someone up with a shrimp fork.). The question for the Court was then whether a butter knife, in the manner of its use or intended use, was a deadly weapon. As I have stated in this space before, Texas’s jurisprudence on what is and what is not a deadly weapon varies largely from case to case and is more results-driven than principled. The Court of Criminal Appeals found that a reasonable person in the cashier’s shoes would feel threatened by someone yelling “back the fuck up” at them while waving a knife, even one with a rounded tip and where the cashier could not identify it as being sharp. That is probably true. The fact of brandishing the knife, in proximity to the cashier, rendered it “capable of causing serious bodily injury or death.” This author notes that at the point where a butter knife is considered a deadly weapon, almost anything is a deadly weapon, except maybe a stuffed animal.

Deen v. State

Oh, Mr. Deen. Mr. Deen was placed on deferred adjudication after pleading guilty to aggravated robbery and possession of cocaine. Mr. Deen had his offenses adjudicated, and was sentenced to four years of incarceration. “Now wait just a gol-darn minute,” I hear. “Agg robb is a first-degree felony, and the minimum sentence for that is five years!”

Yes. You are correct. Mr. Deen received an illegally lenient sentence.

So Mr. Deen skates his way out of the TDCJ after only three years and three months in. Thirty days after that, Mr. Deen was caught with cocaine again, a state jail felony amount. The State sought to enhance Deen’s sentence with his prior felony conviction for aggravated robbery, which turned that state jail felony into a third-degree felony. Mr. Deen received a new sentence of four years in the TDCJ.

On appeal, Mr. Deen claimed his robbery conviction resulted in an illegal sentence, and it was therefore void, and his prior conviction was not available to enhance the current offense. The Eleventh Court of Appeals reversed, and remanded the case for a new punishment hearing.

The State of course sought discretionary review, arguing that Mr. Deen was estopped from denying his previous robbery conviction because he accepted the benefit of the illegally lenient sentence (totally, 100% true) and because Deen pleaded “true” to the enhancement provision (totally, 100% not a good reason for upholding a sentence!).

The Court of Criminal Appeals realized that Mr. Deen faced a harsh choice – accept the benefit of his illegally lenient sentence, or complain about it at any time prior to his early release. The Court recognized it would not be in Mr. Deen’s interest to do so, but likewise, absent a complaint from someone else about it, Deen was free to accept that benefit. Meaning, when Deen got released from prison earlier than legally permitted, he should have taken it as a sign that someone up there loved him and turned his life around, not waited 30 days before diving back into cocaine abuse. The Court did not address the “estoppel-by-pleading-true” theory, a kind of contractual estoppel, and nor should they have. The record was incomplete as to whether the four-year sentence was the result of a plea bargain, and absent such a plea bargain, Deen’s plea of “true” would not bar him from attacking the sentence as based on a void prior judgment.

Judge Alcala dissented, claiming that estoppel was not an appropriate theory in this case because Deen did not bargain for his illegally-lenient sentence. Judge Alcala focused on whether Mr. Deen actually knew he was accepting an illegally lenient sentence (doubtful). By pulling in principles from civil law, Judge Alcala is able to somewhat convincingly argue that unless Deen understood that he was accepting the benefits of an illegal sentence, he cannot later be estopped from challenging its validity.

At tension here seem to be two principles: one, that Deen seems to be “double dipping” in receiving the benefit of an illegally short sentence for a crime of which he was guilty, and then attacking the fact that he had a conviction for that at all. On the other hand, it is not Deen’s fault that the State is often sloppy or shoddy in charging, convicting, and sentencing criminal defendants, and why shouldn’t the State bear the risk of mucking things up? Judge Alcala is correct in that the new rule sounds a lot like a “preservation-of-error” rule rather than an estoppel rule.

But I can see where the tension exists, and something about giving Deen the benefit of his illegal sentence and then allowing him to attack it as void tickles my moral sense in the wrong way. However, I also think it is not Deen’s fault that the original sentence was bungled, and a void or voidable sentence is a void or voidable sentence, and as with baseball, the tie should go to the runner. It is a thorny issue, and for what one poor attorney’s commentary is worth, Judge Alcala’s opinion does seem the better-researched of the two.

What lessons can be gleaned from the case of Mr. Deen? Double and triple-check those judgments. If the State wanted to give Deen only four years, they could have plead him to a lesser-included or let him be adjudicated only on the lesser offense, letting him discharge that robbery conviction on deferred while in TDCJ on the possession.

State ex rel. Jennifer A. Tharp

This is a case to watch. It is an order filing and setting a writ of mandamus. The real party in interest seeks to compel the respondent, Comal County District Attorney Jennifer Tharp, to transcribe children’s advocacy center interview videos. The trial court ordered the videos transcribed; the State objected that Code of Criminal Procedure art. 39.15 forbids that (aside: it probably does forbid making a copy or a transcription). The Third Court of Appeals refused to issue the writ of mandamus, effectively telling the State to transcribe it. The State filed a subsequent mandamus petition in the Court of Criminal Appeals, as was proper, and the Court has requested briefing. Expect a decision on this case very soon, and this is one of those decisions for the ages. I know it is a constant battle to attempt to get a copy or a transcription of CAC videos as a defense attorney, and I fully understand why we want them. However, as I read Art. 39.15, we may not be entitled to that. The wisdom of such a prohibition is one for the Legislature and not for the courts. Still, it could be interesting if the Court finds a Sixth Amendment right for our clients to have possession of transcriptions or copies of CAC videos. Keep your eyes on this case.

Fourth Court of Appeals

In Ex parte Rodriguez, No. 04-16-00337-CR, the Fourth Court of Appeals considered whether prostitution under the Texas Penal Code and a San Antonio municipal ordinance against “loitering for the purposes of prostitution” were such that double jeopardy barred a conviction for both. Utilizing the “same elements” test, the Court concluded that, no, one may be convicted for both prostitution and loitering with the intent to commit prostitution. In particular, the ordinance required a defendant to loiter in a public place, none of which are required for prostitution under the Penal Code, which requires only an agreement to exchange sexual conduct for remuneration.

Seventh Court of Appeals

Our brethren in the Panhandle wrote a trio of deeply divided opinions this week in Hoff v. State, No. 07-15-00012-CR. Justice Pirtle, writing the “majority” opinion (insofar as an opinion of one justice, joined in concurrence in the result by another justice is a majority opinion). He was joined in concurrence by Chief Justice Quinn, who joined the reasoning as to part I, but not as to part II. Justice Campbell likewise filed a concurring and dissenting opinion, concurring in part I, but disagreeing with both in regard to part II.

Mr. Hoff was convicted for tampering with evidence following a plea of guilty, and given imprisonment ten years probated for ten years’ probation as a sentence. He contended on appeal that the trial court ought not have denied his motion to suppress on two grounds: (1) insufficient probable cause to support the issuance of a warrant; and (2) a violation of Art. 38.22 of the Code of Criminal Procedure.

Hoff’s first issue, what I am calling part I, was raised and rejected in an unpublished memorandum opinion stemming from Hoff’s conviction for possession of a controlled substance. See Hoff v. State, No. 07-15-00011-CR (Tex. App.—Amarillo Jan. 31, 2017, no pet. h.). There, Justice Campbell write for a unanimous court, and the same rationale applied to the instant case, so all three justices rejected Hoff’s first issue as being already decided in another case.

Regarding part II, however, the majority opinion acknowledges that “three well-intended, open-minded, respectfully educated justices have looked at the same (relatively straight-forward) issue and reached three entirely different conclusions.” This, ladies and gentlefolk, is what we appellate nerds call a “gold mine.” At issue is whether Hoff is entitled to suppression of statements made as a result of an interrogation. Justice Campbell believes the interrogation was custodial, and therefore, that the statements should be suppressed. Chief Justice Quinn, assumes that the oral statements made by Hoff were the result of custodial interrogation, but concludes that any error was harmless. Justice Pirtle, on the other hand, believes that the statements in question were not the result of a custodial interrogation. However, since Justice Pirtle and Chief Justice Quinn agree that the judgment of the trial court should be affirmed, Hoff’s relief is denied.

The facts are thus: during the execution of a search warrant, Hoff was found in the bedroom of the home being searched. When officers got into the room, they saw Hoff swallow something. They also observed, in plain view, a controlled substance that was used to secure Hoff’s conviction for possession. Hoff was arrested and read his Miranda warnings, and then questions were asked. Hoff told the police that he had swallowed some meth. At trial, the officer to whom the statements were made was unhelpfully vague about whether he was asking Hoff about the swallowed dope for reasons of medical treatment or law enforcement. Crucially, no recording of this statement was made, and Art. 38.22 says that a statement made as the result of custodial interrogation without a recording made is inadmissible.

The sole question for part II then is whether Hoff was under custodial interrogation after having been arrested and read his Miranda rights. Justice Pirtle says no; Chief Justice Quinn assumes yes but does not care, and Justice Campbell says yes.

Who is right? Beats me! Justice Campell is obviously correct in that any reasonable person would have to say that Hoff was in custody after being arrested and Mirandized. But Justice Pirtle is correct in that the record does not adequately demonstrate that the interrogation was custodial, because Officer Ragan left it vague and Hoff’s trial counsel did not clear the issue up. Justice Pirtle’s ruling is based off deference to the trial court’s resolution of fact and applying the unfavorable “abuse of discretion” standard. In terms of applying the law and the appropriate standard of review, Justice Pirtle is correct.

I have my issues with the “harmless error” analysis, and while I do not agree with Chief Justice Quinn that the statement was harmless, I do see the argument the Chief Justice is making – officers walked in on Hoff swallowing dope. While I find it hard to believe a rational factfinder would ignore this observance, the fact of the matter is that Ragan’s testimony went directly to Hoff’s alleged intent to destroy evidence, which is probably the best defense Hoff had (“I didn’t swallow the drugs to tamper with them; I just wanted to eat some dope and get high! I’m an idiot, not an evidence-destroying criminal!”). So I would not hold the evidence harmless, but I do recognize that many learned justices would, and believe that reasonable people may disagree on this point.

Can anything be learned from this opinion? Yes. It is that we ought to all be as charitable to people with whom we disagree as were the justices of the Seventh Court of Appeals were to each other. Three different jurists; three different results; three very good points. On the balance of it, I think that Justice Pirtle is probably correct. Whatever Campbell and Pirtle might have thought about whether it was a custodial interrogation, the trial court obviously did not, and deference to factual findings by the fact-finder is a well-enshrined position in our appellate system that, for good reasons, ought not to be disturbed.

Fourteenth Court of Appeals

The case of Straight v. State, No. 14-15-00801-CR illustrates a difficult situation for defendants. Mr. Straight was convicted of evading arrest, and on appeal, complained that the trial court erred by paraphrasing the jury charge, as well as ineffective assistance of counsel. The trial judge did significantly “paraphrase” three key pieces of the jury charge – on the presumption of innocence, the defendant’s right not to testify, and by implying that the jury must reach a verdict. The Court of Appeals acknowledged that Straight did receive a constitutionally deficient reasonable doubt instruction, but found that Straight did not show “egregious harm” from it. “Egregious harm” as defined by the courts means: one that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. See Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). “Now hold on just a minute,” someone is saying. “What could affect the very basis of the case more, deprive the defendant of a valuable right, ‘vitally affect’ a defensive theory more than a bad instruction on reasonable doubt?” And to that rhetorical question, I have no answer. I certainly do happen to think that all three of those vague, weasel-y statements that make up the definition of “egregious harm” would be met by a constitutionally-deficient reasonable doubt instruction. The Court of Appeals felt differently, however, because the jury did receive a correct instruction in the written charge, and did correctly state that trial counsel failed in his or her duty to object at the time.

Which leads me to my second point – ineffective assistance of counsel is probably not something we should raise on direct appeal, maybe ever. However, in this case, Straight’s appellate counsel did the correct thing by filing for, and presenting, a motion for new trial alleging ineffective assistance of counsel and creating a proper record. However, even that record can sometimes be insufficient in a way that the much wider record available on a writ is not. Witness: Straight raised several issues for the first time on appeal that were apparently not developed in the motion for new trial. Had Straight simply not raised ineffective assistance of counsel at all, and waited until his writ proceeding to do so, he would have been able to complain about trial counsel’s failure to object to the misreading of the jury charge or other failures to object by trial counsel.

Now, however, Straight is probably going to be procedurally barred from doing so. Claims raised and rejected on direct appeal are typically not available to be raised on habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004). If the court of appeals rejects an ineffective assistance of counsel claim on direct appeal, the defendant may not re-urge it on habeas corpus review unless he “provides additional evidence to prove his claim.” Id. That’s a tough row to hoe for someone likely incarcerated in prison and dealing with trial counsel who will demur and say, “I don’t remember why I didn’t object.” The smarter move is almost always to wait until the defendant files a writ to raise claims of ineffective assistance of counsel, because the ability of the trial court to act as factfinder is broader than in a motion for new trial. The motion for new trial can still be used to develop the record, but I would think very deeply upon raising the issue of ineffective assistance of counsel on direct appeal, bearing in mind that a loss in the court of appeals could prejudice your client ever raising that claim again, absent a presentation of “new evidence.”

In Lopez v. State, No. 14-16-00247-CR and No. 14-16-00248-CR, the Fourteenth Court of Appeals discussed the application of Code of Criminal Procedure art. 42.08 and cumulation orders. There, Lopez was convicted of a retaliatory sexual assault of his girlfriend’s pre-teen daughter in two separate cases that were tried at the same time. He received two twenty-year sentences, and the trial court orally pronounced sentence saying sentence A would run to completion before sentence B began, but in the written judgment, stated that sentence B would run first, followed by sentence A. Lopez suggested this made the cumulation order void; however, there being absolutely zero authority for such a proposition, the Fourteenth Court of Appeals was not persuaded, and nor should it have been. The Court of Appeals merely reformed the judgments to conform to the oral pronouncement, so now at least Mr. Lopez has the satisfaction of knowing that his multiple 20-year sentences will be served in the correct order.

During the punishment phase, the State offered what it called “same transaction contextual evidence” (id est, stuff Rule 404(b) probably should keep out but it’s just so darn probative that the judge wants it in). This evidence consisted of Lopez’s physical and sexual assault of his girlfriend, the complainant’s mother; Lopez’s threats, made before the incident, to kill the complainant’s family; Lopez’s threats, made during the incident, to kill the complainant’s family; and Lopez’s threats to harm the complainant’s father. The punishment charge did not include an instruction that these extraneous offenses must be proven beyond a reasonable doubt.

The trial court must give a reasonable doubt instruction even if the defense does not request it (but we are all going to be conscientious and good attorneys and request it, so some snotty appellate lawyer writing a blog post does not make fun of us in print for forgetting to do so, right?). But, as with Mr. Straight’s case above, the failure to give the instruction is not a problem unless it “egregiously harmed” Mr. Lopez.

The Court of Appeals went one step further than simply using a harmless error analysis to sweep a mistake under the rug. They said it was not error to fail to give the charge at all, because “same transaction contextual evidence” is not extraneous offense evidence, because it “simply explains the circumstances of the offense.” Ordinarily, I might point out that any of the listed “same transaction contextual evidence” could and likely would form the basis of a charge against one of our clients, and it damn well ought to be considered “extraneous offense” evidence if it could. The Court of Appeals noted my hypothetical objection, however, but stated that the evidence:

although separate offenses, imparted to the jury information essential to understanding the context and circumstances of the charged offenses. The evidence explains: (1) [Lopez’s] motive for sexually assaulting complainant; (2) why complainant was inside [Lopez’s] bedroom moments before he sexually assaulted her; and (3) how complainant was forced into complying with appellant’s demands during the sexual assault. Although legally separate offenses, they were blended or interwoven with the charged offenses.

(slip op. at page 8). In my estimation, this turns the protections of Rule 404(b) into a nullity if the State can show that the extraneous offenses formed part of the same criminal episode. If the State wished to present that evidence to the jury, it should have charged Lopez with terroristic threats in addition to sexual assault. I understand that the State does not wish to appear to “overcharge” a case to avoid a jury having some sympathy for the defendant. I also understand that criminal defendants have rights to have their case decided based on the conduct for which they are being charged, and not extraneous offenses. There is a tension there, and I might have decided this issue differently than Justice Brown, but this is one of those areas where reasonable people may differ in their interpretation and application of the law. Nevertheless, this is a published case, and we should all be aware that extraneous offenses that occur within the same criminal episode as the case we currently defending can likely be put before the jury.

Significant Decisions Report for February 10, 2017


Court of Criminal Appeals

The Court of Criminal Appeals published three opinions this week, and they are all crazy complex and involved cases. A quick round of applause for our Court of Criminal Appeals judges who navigated tough fact situations and convoluted cases to reach their opinions this week.

Obella v. State

In a per curiam opinion, the high Court considered whether a trial court must hold a hearing on a motion for new trial when the motion is supported by sufficient affidavits. In particular, this case is interesting because the ground alleged in the motion for new trial is ineffective assistance of counsel.

Ordinarily, no appellate attorney worth her spurs will raise ineffective assistance of counsel on direct appeal, because the law decidedly disfavors doing so. The one exception is where a sufficient record of trial counsel’s alleged ineffectiveness is made, and trial counsel has had the opportunity to respond. The only way that comes about is a motion for new trial. In effect, denying an evidentiary hearing on a motion for new trial alleging ineffective assistance of counsel is tantamount to telling the defendant that she or he will be forced to present the argument for ineffective assistance in a (usually pro se) post-conviction writ proceeding, which is less than ideal for our clients.

The Seventh Court of Appeals recognized this, and held that the trial court abused its discretion by failing to hold a hearing. The appeal was abated, and sent back to the trial court. All’s well that ends well for our defendant, right?

Wrong! The State filed a motion for rehearing, arguing for the first time that the appellant failed to preserve this claim because he did not present the motion to the trial court. Yes, simply filing a motion for new trial, attaching an order setting hearing, and sitting back on your heels is not enough. You must, within ten days of the filing, bring the fact that you have filed a motion for new trial to the court’s attention. The requirement of presentation is a serious one.

The Seventh Court of Appeals did not find this amusing. The court of appeals denied rehearing, telling the State that it had procedurally defaulted by failing to raise the issue of presentation prior to the motion for rehearing.

At this point, surely the State realized it had been licked, went back to the trial court, and held the hearing on the motion for new trial, right?

Wrong again! The State petitioned the Court of Criminal Appeals for discretionary review, claiming that errors of preservation are systemic and should be addressed by the reviewing court on its own motion after it was brought to the court of appeals’ attention by the State’s motion for rehearing. And the Court of Criminal Appeals agreed.

The case is now remanded to the Seventh Court of Appeals to determine whether Obella “presented” his motion as required by Tex. R. App. Proc. 21.6.

Hopefully, Obella’s appellate counsel did properly present the motion to the trial court, and Obella will still be entitled to the relief previously granted, which is that the trial court damn well should have held a hearing on the motion for new trial if it was appropriately supported by affidavits. If not, then perhaps Obella will have a new ineffective assistance claim, because apparently the State can remember a defense it ought to have raised on original submission after the opinion, and still get it heard because issues involving preservation of error are “systemic.”

Ex parte Thusen

This is a capital writ proceeding. For those who have never done a capital writ, capital writs are lengthy, well-researched, and well-reasoned post-conviction proceedings that apply to every death penalty case, and very often contain some of the most educational legal writing, simply due to the fact that every capital trial is wild, weird, and as we will see in this case, unique.

For those who are generally unaware of how post-conviction writs work (whether under Arts. 11.07, 11.071, or 11.072), a writ applicant will file the writ in the trial court. The trial court will conduct whatever factfinding it believes is necessary to resolve the claims in the writ, and issue a set of findings of facts and conclusions of law. For Art. 11.07 and Art. 11.071 writs, then, the entire case is forwarded to the Court of Criminal Appeals for review and disposition. Art. 11.072 writs are decided in the trial court, but may be appealed.

This means that in a death penalty case, the judge who recently signed an order setting the execution of a defendant will be the same judge presiding over the writ proceeding discussing errors made by the State, defense counsel, and the trial court in the representation of the capital defendant.

In this case, the trial judge (Judge Bryan) received the capital writ, signed an order designating issues in need of resolution, and set the matter for an evidentiary hearing – very standard procedure. But before the hearing could be held, the trial judge voluntarily recused himself from the writ hearings only (and not any subsequent retrial) because he had donated money to the judicial campaign of Thusen’s trial counsel. The trial court did the right thing and asked the local presiding judge to appoint a visiting judge to hear the case.

Thusen and his writ attorneys asked Judge Bryan to reconsider his recusal. The State argued that Judge Bryan should proceed with the recusal (duh). The presiding judge assigned Senior Judge H.R. Towslee to hear the writ proceeding.

Thusen’s writ counsel then filed a motion to “Reassign Original Trial Court Judge” (try finding that in ProDoc). Writ counsel said that because trial counsel’s bid for the judiciary was unsuccessful, the apparent conflict of interest had been resolved. Judge Bryan then informed the parties that the presiding judge had told Judge Bryan that Bryan could reenter the case since his original recusal was voluntary. Judge Bryan signaled his intent to un-recuse himself.

Nonetheless, the State was not persuaded that the apparent conflict of interest had been resolved, and (correctly, I might add) pointed out that Judge Bryan’s reentry into the case could become an issue in the upcoming federal writ (because every capital defendant files a federal, as well as a state, writ). Judge Bryan, of course, overruled this objection because he believed, and likely would be, absolutely fair to the defendant and not show any favoritism to Thusen because of who Thusen’s trial counsel was. The prosecution apparently was just as satisfied after the hearing, because the prosecutor sent a very nice letter to Judge Bryan stating that their concerns had been resolved, and now the State agreed to have Judge Bryan preside over the case.

To recap, for our viewers who are just tuning in, a trial court judge voluntarily recused himself. Writ counsel sought to have him reinstated, and the State objected. The judge was recused, and a new judge was appointed. The original judge then had a change of heart, and withdrew his recusal. The State objected, and that objection was denied. The State then had a change of heart, and agreed to the reinstatement of the original judge. Got it? Good.

A five-day evidentiary hearing was held, at the conclusion of which Judge Bryan recommended that relief be granted on some of Thusen’s points of error within the writ application. The Court of Criminal Appeals, upon receipt of the writ, pumped the brakes and asked the parties for briefing on this truly bizarre procedural history. The State, now in the position of having the evidentiary writ hearing go against them, has again changed their minds, and decided that once Judge Bryan recused himself, he could take no further action in the case, and any of his subsequent rulings are void.

The Court of Criminal Appeals realized that the Rules governing recusal of judges, 18a and 18b, did not “set out a procedure for the specific scenario presented.” However, Government Code § 24.002, which governs voluntary recusal, “does not define any condition that would reverse a district judge’s discharge from the case once a recusal order has been signed” (slip op. at page 12). But another complication arises: Sec. 24.002 also permits a recused judge to take action in the same case for “good cause” shown. The Court of Criminal Appeals held that this proviso means that the recused judge must “articulate the nature of the exigency” that warranted taking action in the case, instead of the newly-appointed judge (slip op. at page 13). So while Judge Bryan would have complied with this section, had it been truly applicable, there was another problem – the regional presiding judge never reduced his “directives” to writing, relying instead on an oral conversation between the presiding judge and Judge Bryan. The Court held that all “interim or ancillary orders” by a regional presiding judge regarding recusal of the trial judge (or reinstatement of the same) must be in writing, signed, and entered into the record.

In other words, Judge Bryan’s reinstatement would have been fine, except for one thing – the regional presiding judge never signed an order to that effect. The fact that everyone understood this to be the case,  that Judge Bryan had indirectly referred to the presiding judge’s “directives” in written statements was of no consequence in deciding that Thusen will have another writ hearing, and the State has even more time to prep their witnesses and patch holes in their case. The Court of Criminal Appeals *could* have simply conducted its own independent review of the record and decided the writ at this time, but instead, has struck Judge Bryan’s factual findings and conclusions of law (at least some of which were favorable to the defendant) and remanded the entire proceeding for a new writ hearing. That stings.

I hesitate to draw any life lessons or practice tips, because the procedural posture of this case seems “wacky” (that’s a technical term) and quite unlikely to be repeated. But suffice it to say that, as with so many things in life, if it ain’t in writing, it ain’t worth it.

Lake v. State

In the final published opinion for the week, the Court of Criminal Appeals considered a very salient question – can a trial court conducting a community supervision revocation hearing deny defense counsel the right to make a closing argument?

A plurality of the Court of Appeals answered, “no, of course not, what are you thinking?” The case was remanded for a new revocation hearing, citing Herring v. New York, 422 U.S. 853 (1975) and holding that defendants have a Sixth Amendment right to a closing argument. But in so holding, the Second Court of Appeals explicitly decided not to conduct a “harmless error” analysis.

The State sought discretionary review, complaining that of course an error of this magnitude ought to be subject to a harmless error analysis (otherwise known as the last refuge of the erroneous prosecutor). Most errors are subject to a harmless error analysis, with the only difference being the burden that must be carried (either constitutional or non-constitutional). Constitutional error requires the reviewing court to be satisfied, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment. Non-constitutional error is reviewed under the standard which says that any non-constitutional error, defect, irregularity, or variance must be disregarded unless it affected the defendant’s substantial rights. As one might imagine, most non-constitutional errors are routinely disregarded by appellate courts.

But there are some errors that are simply not reviewed for harm at all – so-called structural errors. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Specifically, structural errors are those enumerated by the United States Supreme Court as “structural,” meaning that it must both be (1) a federal constitutional error and (2) specifically denoted as structural by the Supreme Court of the United States. The problem for Lake is that Herring did not label the denial of the Sixth Amendment right to present a complete defense as “structural.” Because of this, the Court of Criminal Appeals remanded the case to the Second Court of Appeals to determine whether Lake was in fact harmed by the failure to permit his counsel to give a closing argument. Another tough break for a defendant who was otherwise entitled to appellate relief.

It is instructive to note, however, that this case was a plurality decision. Three judges (Yeary, Newell, and Keel, all very smart and savvy jurists) concurred in the result and the reasoning, but could not join the opinion that “persists in adhering to certain categorical language in [Cain]” that the concurring judges believed “may not have survived the enactment of Rule 44.2(a)” (the harmless error rule). Because Rule 44.2 does not use the word “structural,” Judge Yeary, and those joining his opinion, question whether Texas is still beholden to the “structural” error rule. Judge Yeary correctly points out that reading Cain in this fashion is “in derogation of this Court’s authority to, for example, declare certain state constitutional violations to be immune to harm analysis, or perhaps even declare certain classes of federal constitutional violations to be so detrimental to the conduct of a fair trial as to be immune to harm analysis before the Supreme Court has spoken on the subject.” This is a very important point, because the Cain rule limiting “structural” error to only those errors enumerated by the United States Supreme Court is a judicially-imposed restriction on the Court. The Court of Criminal Appeals is free, and more importantly, ought to be free to decide if there are other “structural” errors that apply only to Texas.

Judge Alcala, writing in dissent, stated views very similar to that of the concurrence. In particular, Judge Alcala said that she would have affirmed the decision of the Second Court of Appeals because the “the record fails to show that the error did not contribute to the conviction,” as would be required by Tex. R. App. Proc. 44.2(a). In other words, the burden is on the State to show, in the record, that the error was not harmless; the burden is not on the defendant to show harm. Thus, the Court of Criminal Appeals has technically been presented with a sufficient record to verify that the error was harmful, and in fact has done so in a similar case, VanNotrick v. State, 227 S.W.3d 706 (Tex. Crim. App. 2007). While VanNotrick was a non-constitutional harm case, the Court did decide that it had sufficient support in the record to determine harm by the appropriate standard. Judge Alcala correctly pointed out that the standard for constitutional error is much more onerous, and so the decision should actually be easier.

By my count, there are four judges in the plurality opinion, three judges in concurrence, one judge in dissent, and one judge who concurred but did not write a separate opinion. While that keeps Lake v. State from becoming binding precedent, there is arguably as much support for Judge Yeary’s proposition that Cain is too broad and restrictive of a holding as there is for Presiding Judge Keller’s plurality opinion upholding Cain. Expect more litigation on this topic in the future.

Sixth Court of Appeals

The only other published opinion this week, and honestly a bit of a dry one after the whirlwind from the Court of Criminal Appeals, comes to us from the Sixth Court of Appeals in Willis v. State, No. 06-16-00040-CR. In that case, the defendant pleaded guilty in open court but proceeded to the jury for punishment. The court of appeals found that the record sufficiently indicated that Willis desired to plead guilty, did plead guilty, and that there was no confusion in the case. The court of appeals also modified the judgement to reduce court costs. See? Boring and dry.


Significant Decisions for February 3, 2017

Court of Criminal Appeals

There were no published opinions issued by the Court of Criminal Appeals this week. However, there are some fun unpublished opinions that warrant discussion.

Suniga v. State

This is a very long, unpublished direct appeal following a capital murder conviction. While these are not often published, they are often a great way for attorneys to brush up on several different doctrines in the same case, since capital appellate attorneys leave no stone unturned in drafting their briefs. As a result, marginal issues that might be left by the wayside in a non-capital brief often get raised and discussed in these opinions, and all 127 pages of Suniga v. State, No. AP-77,041, are worth reading.

One issue in particular stands out, the curious case of Juror White. Juror White was a courthouse employee, and so had the opportunity to potentially see Suniga in the courthouse outside of the courtroom, i.e., wearing his prison jumpsuit. In general, jurors should not be allowed to see a defendant in anything other than street clothes with no handcuffs or shackles (because prison jumpsuits and restraints imply guilt). The trial court, after learning from bailiffs that White might have seen Suniga in such a situation, called her in for an in-camera examination as to whether she had. She said she had not.

What’s interesting about this situation, however, is that on appeal, Suniga complained he was not present during this in-camera examination, because one of his defense counsel stated that he was not present during the examination and requested a transcript of it. The record is flat-out ambiguous as to who was, and was not, present. While the Court ultimately decided that even if Suniga had not been present, no violation of Art. 33.03 would have occurred, this whole situation, and pages of opinion, could have been avoided had Suniga’s trial counsel made a bill of exceptions.

Speaking as an appellate attorney, the first thing we do when we get a shiny new appeal is read the record. But we do not read it like a trial attorney might; we read it backward and forward, turn it upside down and shake it, and sift it through a very fine sieve to determine if there are appealable errors. Your client may have gotten the rawest deal in town at trial, but unless that error is shown in the record and preserved, it does not matter.

As a result, trial attorneys should make more use of Texas Rules of Appellate Procedure 33.2. There are no magic words or specific form you must used to make a bill of exception. At any time, even after trial is concluded and sentence passed, you may ask the Court to make a bill. Because a bill of exception is outside the presence of the jury and made solely to preserve the record for appeal, you may put on excluded testimony, submit documents, or even hand-write matters that you would like in the record. You can have a “bystander” (like your investigator or a family member in the courtroom) put facts into the record about things such as the location of police officers or bailiffs, or the family members of the victim wearing a prejudicial t-shirt, or anything under the sun that you want the court of appeals to know about.

When you submit the formal, written bill to the trial court and ask that it be included in the record, if all parties agree as to the contents, then the judge signs it and it goes into the record. If anyone disagrees, a hearing is held, and after that hearing, the judge can sign the bill as submitted, suggest to the complaining party what corrections the judge would like to see, or sign what bill the judge thinks is appropriate. If you find yourself in the unenviable position of being in disagreement with your judge after notice and hearing on your bill, you may STILL file the unsigned bill, but now you have to include three affidavits from bystanders supporting your bill, and the appellate court then gets to make the final call.

In Mr. Suniga’s case, his attorneys, if they were truly not present with him at the in-camera hearing, could have filed a bill containing their statements and Mr. Suniga’s statements that the trial court conducted and ex parte examination of a juror in a capital murder case, where the only record is the one the court had made. That sounds a lot more like “potential reversible error” than “maybe a defense attorney was present at this examination, or maybe not. Who knows? Relief denied.”

Sixth Court of Appeals

No published cases to report on, but Robertson v. State, No. 06-16-00093-CR, a bog-standard sufficiency appeal with no other interest other than that it is sort of funny, contains the following discussion of just how sufficient the evidence was to convict Robertson of indecency. Since no words I can write will add to the utter strangeness of the quote to follow, all me to set the scene. Robertson is accused of indecency with a child by exposure. The victim, an eleven year old child, arrived at the local Taco Express. Robertson, not a patron of the Taco Express, saw the young lady and began to abuse himself. Officer Chris Widner was dispatched to the scene, when this occurred:

In addition, Widner explained that when he arrived at the scene, he asked Robertson what he was doing and that Robertson responded that he was masturbating. Widner also testified that during the time he was speaking to Robertson, he could see his genitals. Widner stated that when Robertson was in the police vehicle, he continued to masturbate while looking at all three of the girls.

In general, when making a sufficiency challenge to indecency by exposure charges, be sure that your client was not jackin’ it in the police car. You are going to lose that battle every time.

Fourteenth Court of Appeals

In a published opinion, Pickron v. State, No. 14-16-00080-CR, the Fourteenth Court of Appeals considered the applicability of the “excited utterance” exception to the hearsay rule. The facts as recounted in the opinion are unique. Pickron, a member of a group home for individuals with intellectual disabilities, developed a strong bond with the victim, a worker at the home. The victim invited Pickron to live with her in a foster-home type situation, but the relationship soured. After a particularly bad fight, wherein the victim called her sister to describe Pickron’s actions, the victim decided she must return Pickron to the group home. En route, Pickron caused her vehicle to swerve and hit an oncoming truck, which resulted in her death.

The sole issue on appeal was whether the sister’s testimony from the night of the big fight was admissible as an excited utterance. The Court of Appeals found that the victim calling her sister in fear (“sounded terrified”); while the event was unfolding (meaning “assurance that there was little, if any, possibility of fabrication”); and that the statement related directly to the startling event (“[Pickron’s] actions in destroying the house”). With each factor weighing in favor of an excited utterance determination, the Court found that the evidence was properly admitted over a hearsay objection.

Being an appellate-minded guy, and bearing in mind Giles v. California, 554 U.S. 353 (2008), I wondered why a Confrontation Clause issue was not presented on appeal. The opinion’s first footnote answers me: no Confrontation Clause objection was made at trial (slip op. at page 3, n.1).

When the hearsay declarant is not present in the courtroom, two objections need to be made: first to hearsay, and second, to the right of confrontation under the Sixth Amendment. Neither objection, standing alone, preserves both grounds for appeal. Had Pickron’s trial counsel made a Confrontation Clause objection, the result on appeal might have been different (I say “might” because chances are the victim’s statement was not testimonial and therefore not subject to the right of confrontation, but nevertheless, two bites at the apple are better than one). Regardless of should-haves and would-haves, Chief Justice Frost’s opinion is an excellent discussion of when the “excited utterance” exception does, and does not, apply.


Significant Opinions for January 27, 2017

Court of Criminal Appeals

Byram v. State

This week, the Court of Criminal Appeals addressed the question of whether officers must “protect and serve” their community by investigating the health and safety of people they randomly meet on the street. In a very troubling opinion, Byram v. State, No. PD-1480-15, the Court of Criminal Appeals gave the enthusiastic thumbs-up to a rather invasive view of the “community caretaking” exception. Let us also note that, the holding notwithstanding, this is a well-written, thoroughly-researched opinion by Judge Yeary and backed by a unanimous court. It serves as a powerful reminder of the truism that “bad facts create bad case law.”

Officer Figueroa of the Fort Worth Police Department was assigned to monitor a bar district in downtown Fort Worth on the Fourth of July. At 5:30 p.m., he observed Byram stopped at a red light with his window rolled down. As Figueroa pulled alongside Byram, he saw the front passenger in the SUV “hunched over” in the passenger seat, motionless. Figueroa initiated a stop based on the so-called “community caretaking” exception, found the passenger to be heavily intoxicated, and also investigated Byram, the driver, for driving while intoxicated. Byram’s counsel filed a motion to suppress (good!), lost (disappointing!), and did not ask the trial court for written findings of fact and conclusions of law (bad!).

Unfortunately, when we do not force the trial court to put its reasoning and conclusions down on paper, the reviewing courts are free to suppose that the trial court made whatever factual findings and legal conclusions are necessary to sustain the result. We give the appellate courts license to invent whatever legal reasoning necessary to sustain the lower court’s decision, reasoning that the reviewing court must defer to. Long haranguing short, always ask for findings of fact and conclusions of law. Every time. No exceptions.

Byram pleaded guilty and challenged the stop before the Second Court of Appeals. He won, but the State sought discretionary review, asking the high court to clarify the scope of the “community caretaking” function and whether Figueroa’s seizure of Byram was constitutional.

Judge Yeary ably discussed the history of the so-called “community caretaking” function – police officers are often obliged to do other things that detect and confront crime (please, hold all jokes until the end of the article. Seriously; not a single comment about donuts. I’m warning everyone.). Texas courts generally hold that an officer is permitted to invoke this function if she or he is not primarily motivated by an investigative purpose, and their belief that a person required assistance was reasonable in light of all the facts. See Gonzales v. State, 359 s23d 851, 854-55 (Tex. Crim. App. 2012).

Astute readers will notice that the first prong of the analysis is a subjective one; it requires us to ask about the officer’s primary motive. Judge Yeary phrases it as “primary motivation for the stop,” indicating that an officer may have dual motives (community caretaking as well as the investigation of potential crime) that nevertheless do not properly invoke Fourth Amendment protections. Historically, this tension has been resolved because the community caretaking function is supposed to be of “narrow applicability” and only for “unusual circumstances” where “warrantless searches of private, fixed property, or stops of persons located thereon” can be so justified. Wright v. State, 7 S.W.3d 148, 152 (Tex. Crim. App. 1999). In less legal terms, the courts know the community caretaking exception is a polite legal fiction, but it happens so rarely that courts were loathe to exclude evidence so seized.

Because no findings of fact and conclusions of law were made by the trial court, the Court of Criminal Appeals was free to review the initial, subjective inquiry by guessing as to what the trial court actually thought about Figueroa’s state of mind in stopping a car where the passenger appeared to be in some degree of distress. In analyzing the propriety of Figueroa’s conclusion that the passenger required his assistance, the Court examined the Wright factors and focused in particular on the time of day and location, as well as the fact that this was on the Fourth of July, a “day of prevalent intemperance in the bar district” (this is Judge Yeary’s clever turn of phrase that means people get lit on America’s Birthday).

The sorts of facts noticed by Figueroa sound like the facts which give rise to reasonable suspicion and probable cause. Far be it for this poor author to suggest that the court is painting both situations with the same “reasonableness inquiry” brush. However, this opinion would be written in much the same way if Figueroa had testified that, based on the totality of the circumstances, he believed Byram was intoxicated and that was why he pulled Byram over.

Judge Yeary goes on to speculate that perhaps Byram needed to exercise his community caretaking function to prevent the passenger’s imminent abuse at the hands of a dastardly drink-peddling driver (slip op. at 10). The opinion very quickly slips between the holding that Figueroa had to stop the car to check on the passenger’s health to setting forth even more bases for suspicion of criminal activity on Byram’s part, which was (ostensibly, since no factual findings or legal conclusions appear in the record) not the theory relied upon by the State at the hearing.

The most troubling line in the opinion occurs in the conclusion. It reads: “Figueroa saw a woman in a precarious situation, and acted reasonably to help her by first asking whether she was okay, and then conducting a traffic stop when his question went unheeded.” It is a common statement that a person who is not seized by an officer is free to ignore that officer. Nothing in Texas law compelled Byram to answer the police officer’s inquiry about his passenger. Figueroa, rather than follow Byram to see if Byram were taking this passenger to a hospital or back to some den of sin and shame, chose to seize Byram under the Fourth Amendment. If the seizure was reasonable because the officer had a reasonable suspicion that something illegal was underway, then that needs to be the basis for the stop. The fiction that Figueroa was “primarily” motivated by a desire to check on the health and safety of the passenger needs to be dispensed with as unnecessary, especially in light of other Texas precedent that would have found the circumstances themselves appropriately suspicious.

The fact that the Court of Criminal Appeals chose this case to expand the use of the community caretaking function to those situations in which an officer makes a good-faith request of a person who then chooses not to respond to that officer worries me, because no one is compelled by law to respond to an officer’s request for contact. We as defense attorneys should be prepared to see the community caretaking “exception” to the Fourth Amendment more routinely invoked by the State, and be prepared to argue strenuously against the officer’s subjective, benign intent, as well as attacking the reasonableness of the detention.

As an aside, the Court does discuss a rather interesting United States Supreme Court case in Ashcroft v. al-Kidd, 563 U.S. 731 (2011), where Judge Yeary comes close, but does not reach, the issue of whether we ought to consider the subjective intent of the officer in the community caretaking analysis altogether. However, it does indicate that when presented with the appropriate case, the Court of Criminal Appeals may jettison the first prong of the analysis altogether, allowing, in effect, “pretextual” community caretaking stops. Food for thought.

Pruett v. State

In their second published case of the week, the Court of Criminal Appeals considered the question of whether a deadly weapon finding is proper when the deadly weapon alleged is a fire. Pruett v. State, No. PD-0251-16.

Pruett inherited a house that he owned as a tenant-in-common with his siblings. Proving that no one fights like family fights, Pruett decided the most expeditious way to resolve filial disputes regarding the house was to burn the sucker down. Pruett unwisely chose to execute his plan in full view of a neighbor, who duly reported Pruett’s arrival at the home, short trip to the back yard, immediate flight from the scene, and the resultant fire.

The State’s fire expert testified that an accelerant was used to start the fire, and that the fire was a deadly weapon because it was capable of causing serious bodily injury or death. The expert further testified that the fire posed a danger to the lives of firefighters who responded but also the lives of neighbors who could have been killed if the fire spread, and that the materials that are combusted in residential homes can give off toxic fumes.

However, the testimony at trial also showed that by the time the fire department arrived on the scene, a neighbor had put out “part” of the fire with a garden hose and the rest of the fire was subsiding, demonstrating that Pruett not only lacks stealth and subterfuge, but is also a poor arsonist to boot.

The Second Court of Appeals, suffering its second reversal, found that the fire was not a deadly weapon because “there [was] no evidence in this record that the firefighters were ever in actual danger,” that no one else was home at the time, and that neighbors “managed to suppress the grass fire before it could spread and possibly engulf the entire structure.”

A unanimous Court of Criminal Appeals, led by Presiding Judge Keller, disagreed.

To reach this result, the Court looked at the plain meaning of Texas Penal Code § 1.07(a)(17)(B), which states that a deadly weapon can be anything in the manner of its use or intended use that is capable of causing death or serious bodily injury (my emphasis). The Court distinguished fire cases from automobile cases (as cars are apparently not inherently dangerous, unlike fire, which is never harnessed by man for heat, cooking, decoration, or any other number of harmless purposes), stating that “[f]ire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially when it is intentionally started in a residential neighborhood.”

One wonders if the Court considered backyard campfires, cookouts, or decorative candles in their analysis of fire’s inherent dangers.

In particular, the Court’s focus on the fact that the fire was “left unattended” after an accelerant was used ought to cause a hitch in the step of any backyard barbecue enthusiast, who are sometimes known to use an accelerant to light a fire that they then walk away from, perhaps to engage in some Fourth of July-based “prevalent intemperance.”  It is a stretch to say that a fire that was nearly-successfully extinguished by a neighbor with a garden hose posed a danger to firefighters or the neighbors, or that the burning grass belched toxic fumes into the air.

While it may be true that a reasonable fact-finder could make a deadly-weapon finding based on the probability that the fire, if left unimpeded, might have consumed the structure and thus actually been a danger, I believe the Court would have been on firmer reasoning to suggest that the intent of Pruett to start a fire that would have engulfed the home was enough to satisfy the Penal Code definition of “deadly weapon” (after all, Pruett did not intend for this fire to be a wimpy little blaze extinguished by garden-hose wielding neighbors; he intended it to be a conflagration to consume the house as acrimony had consumed his family). Nevertheless, the Court’s decision to focus on the “inherently dangerous capability” of the alleged deadly weapon without regard for later ameliorative actions seems to ignore the fact that fire is no more inherently dangerous than automobiles or knives, both of which may be deadly weapons in the appropriate case, but also commonly-used items that are not and should not be considered deadly weapons.

By focusing on the actual use and the myriad negative possibilities that resulted from it instead of the method of its intended use, I think the Court of Criminal Appeals muddied the water regarding the already-somewhat-inconsistent deadly weapon jurisprudence in this state.

Fourth Court of Appeals

In an unpublished memorandum opinion, Lopez v. State, No. 04-16-00103-CR, the Fourth Court of Appeals reversed a trial court’s decision not to permit a defendant to withdraw her plea of no contest following a rejection of the plea bargain entered into by the State and defense counsel. In what world the trial court thought this was not going to be immediately and embarrassingly reversed, I cannot imagine. It certainly stings that Ms. Lopez had to await this correction while in the tender mercies of the Institutional Division, as the trial court eventually sentenced her to imprisonment for ten years, thus preventing her from obtaining an appeal bond.

Sixth Court of Appeals

In an unpublished memorandum opinion, Mays v. State, No. 06-16-00072-CR, the Sixth Court of Appeals was tasked with determining whodunit in a case of a man on riding lawnmower being shot with a BB gun. Ah, Texas.

Mays complained on appeal that the State’s principal eyewitnesses, Patrick and Cash, were accomplices, because shortly before the shooting, Mays, Patrick, and Cash were all standing around together; Patrick and Cash fled the scene after the shooting; Patrick and Cash lied to a police officer about the location of the BB gun; Patrick and Cash laughed and “carried on” with Mays after the shooting; and Patrick and Cash were aware Mays possessed the BB gun prior to the shooting (other factors were alleged, but those recounted are the most significant).

It must be remarked that, in other circumstances, those factors would likely be relied upon by an enterprising prosecutor to try these three (young?) men on trumped-up charges of engaging in organized criminal activity and party liability, probably with some degree of success. However, with the shoe on the other foot, the Sixth Court of Appeals was not persuaded, and ruled that, as a matter of law, Patrick and Cash were not accomplices and therefore independent corroboration of their stories was not required to convict Mays. I hope that some forward-thinking defense attorney will remember this case and use it persuasively to defeat a party liability theory. Sauce for geese ought to be sauce for ganders.

Fourteenth Court of Appeals

In the week’s only other published opinion, the Fourteenth Court of Appeals tackled an issue related to the “corpus delicti” rule. See Bradford v. State, No. 14-15-00707-CR. Ms. Bradford was found guilty of failure to report child abuse for allegedly failing to inform CPS that a given person was a danger to a child based on recent outcries by the child (the facts are rather convoluted; I commend everyone to read the opinion).

The corpus delicti rule is a rule of evidentiary sufficiency, and applies in cases where someone confesses to a crime outside of a “judicial” (in-court) confession. In other words, a defendant’s “I did it” alone is not sufficient if not corroborated by some other evidence independent of that confession, in particular proof that the crime confessed to actually occurred. The traditional justification is to prevent people from confessing to imaginary crimes.

The specific issue before the Court was whether the extrajudicial confession had to meet all elements of the charged offense, or whether a damaging admission to only some of the elements of the offense triggered the rule. The Court of Appeals decided, based on careful reading of the precedent, that Texas law has never required that a person availing themselves of the protection of the corpus delicti rule must give a full confession to all facts establishing guilt; mere damaging admissions are likewise subject to the same requirement of corroboration.

The State’s reliance on Bradford’s admission to detectives that the child had made recent outcries was insufficient, absent corroboration, to prove that Bradford knowingly failed to report child abuse, because nothing in Bradford’s admission indicated that the child actually had been abused. The Court of Appeals wrote that “[a]lthough there is some evidence that [Bradford] was concerned about the potential for child abuse—as evidenced by her testimony that she would not allow [the bad actor] unsupervised visits with the child due to the 2012 allegation—this evidence does not render the corpus delicti for failing to report abuse more probable than it would be without the evidence.” In short, Bradford’s admission to detectives that she was worried about abuse does not permit prosecution for failing to report her suspicions, absent some independent evidence to confirm that abuse actually has taken place. A good day in the Fourteenth Court of Appeals for Ms. Bradford, and kudos to Justice Wise for a well-written and thorough opinion.


Recent Decisions for Friday, January 13, 2017

We are light on published opinions this week. However, the Fightin’ First Court of Appeals did issue an opinion in William Porter v. State, No. 01-15-00960-CR, which was published.


First Court of Appeals


In Porter, the defendant was sentenced to 33 years of incarceration for the offense of homicide, that occurred back in the halcyon days of 1986. Yes, it’s a cold case. Mr. Porter, a dealer in exotic chemicals, shot one of his buddies in his home. Porter’s sister was dating a local attorney, and that attorney agreed to do a walk-through of the scene with the girlfriend (but not Porter) present. That attorney found the slug and .45 shell, pocketed it, and instructed the girlfriend to never speak of it again.


During the cold case investigation, that attorney was summoned before the grand jury and offered immunity for his testimony. The attorney eventually admitted that he had found the bullet, taken it from the crime scene, and later discarded it.


Porter’s defense counsel objected, claiming that Porter was not waiving any attorney-client privilege. The trial court limited the testimony to “that [the attorney] went in there, that he observed the thing on the [the] couch, that he recovered the projectile and put it in his pocket.”


The First Court of Appeals agreed with the trial court, holding that “Neither Rule 503, nor the special rule for criminal cases, extend the privilege to bar testimony regarding attorney conduct that constitutes tampering with evidence. Such conduct is not in furtherance of the attorney-client relationship, which is required to invoke the privilege.” As a practice tip, this author recommends that no attorney commit a crime in furtherance of their representation of their client. Our clients require us to be good criminal attorneys, not good, criminal attorneys. Commas matter, folks.


Third Court of Appeals


Also hitting the books this week is a case from the Third Court of Appeals in Austin, Weber v. State, No. 03-16-00338-CR. This is a very important case for those of us who practice in the area of sex cases, because it deals with the common practice of the State overcharging their crimes.


Weber was convicted of: (1) two of five counts of aggravated sexual assault of a child; (2) one count of continuous sexual abuse of a child; and (3) two out of two counts of indecency with a child by exposure. By my math, that’s five convictions from eight counts.


In Weber’s sole issue on appeal, he argued that the jury charge was in error because it permitted conviction on the two counts of aggravated sexual assault AND the count of continuous sexual abuse. Weber’s trial counsel failed to make this objection, but double jeopardy claims can be raised for the first time on appeal (it is still better to raise them in the trial court).


Relying on Price v. State, 413 S.W.3d 158 (Tex. App.—Beaumont 2013), aff’d 4343 sw3wd 601 (Tex. Crim. App. 2014), the Third Court of Appeals found that the Legislature did not intend multiple convictions for continuous sexual abuse and predicate acts of sexual assault. Finding a double jeopardy violation, the Third Court of Appeals vacated the two aggravated sexual assault convictions, but upheld the continuous sexual abuse convictions. Small comfort to the defendant, but it is instructive to remind defense attorneys to read a jury charge carefully and double-check statutes to make sure multiple punishments or multiple prosecutions are allowed by statute prior to trial.


Eleventh Court of Appeals


Absent any more published cases, we must turn to interesting, if unpublished, cases such as this one from the Eleventh Court of Appeals – Wolfe v. State, No. 11-15-00004-CR, wherein the Court of Appeals addressed the issue of what should happen when a juror, before deliberations have started and before the close of the evidence, asks the judge a question about a witness’s credibility.


Silence the blaring alarms in your skulls, dear readers, and let me explain. During a trial for assault family violence, the State put on a former corrections officer as a witness. During a break in the testimony, a juror informed the bailiff that he had a question for the judge. The bailiff brought the juror in front of the court, with the attorneys present, but no one else. The juror proceeded to ask, “For purposes of credibility, I was curious about Mr. [CO], the reason he was no longer working in corrections or it was only three years. Was he dismissed for some type of reason or was he — did he decide to leave for a higher paying job or something, some other reason?”


The trial court wisely refused to answer the question, told the juror never to speak of this question again, and trial resumed… which prompted the State to recall the corrections officer and ask why he left the job, which was for a totally innocuous reason.


And defense counsel sat there like a lump, saying nothing, objecting to nothing, and therefore leaving Mr. Wolfe’s beleaguered appellate attorney with nothing to do but hold his hat in his hands as the Eleventh Court of Appeals poured him out on error preservation. Practice tip: when the prosecutor says, and I quote, “Your Honor, in light of the juror’s question, we are going to recall [CO] briefly,” you need to be on your feet, screamin’ and hollerin’ and generally carrying on, with words like “objection,” “prejudice,” “mistrial,” and “miscarriage of justice.”


Fourteenth Court of Appeals


Continuing a theme, let us turn to an unpublished opinion from the Fourteenth Court of Appeals, Walters v. State, No. 14-16-00105-CR.


During this trial for indecency with a child, the State offered the testimony of a clinical psychologist who testified that there are two types of pedophiles – those with exclusive attraction to children, and those with attraction to both children and adults, and that the only way to ensure a pedophile will not reoffend is incarceration.


Trial counsel in this instance did make an objection; she or he simply made a bad objection, which is the functional equivalent of no objection. Trial counsel objected that this testimony assumed facts not in evidence, namely that Walters had not been diagnosed as a pedophile.


While true, this objection does not preserve the complaint raised on appeal, which is that the improper testimony was offered for character-conformity purposes.


What should trial counsel have done? Objected on every ground possible – assuming facts not in evidence; offered to prove character conformity; that it was more prejudicial than probative; and that the State was not properly supporting its expert testimony with the degree of reliability and agreement necessary for the soft sciences. While it is very easy to Monday-morning-quarterback trial counsel when not in the heat of the moment, the fact remains that Walters had arguable points on appeal that are now being poured out with no relief to the client.


If there is any lesson to be gained from the new cases this week, it is the importance of objecting, and objecting properly, whenever the State starts to get hinky during trial.