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Brandon Barnett: Texas Criminal Defense Articles | HLAW PLLC

Brandon Barnett is a partner and criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas. His law practice is exclusively focused on misdemeanor and felony criminal defense in Tarrant County and surrounding areas. He is also a military judge in the Marine Corps Reserve and a law professor at Texas A&M University School of Law.

May09
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Post Conviction DNA Testing – How It Works

ByDNA

What follows is an excerpt from the Texas Court of Criminal Appeals’ recent published decision in Ex Parte Gutierrez regarding the propriety of post-conviction DNA testing. It does not reflect new law on the subject, but is helpful as a refresher.  These are the statutory hurdles a person must jump in order to have the original evidence tested for DNA in hopes of proving his/her innocence:

There is no free-standing due-process right to DNA testing, and the task of fashioning rules to “harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice” belongs “primarily to the legislature.”  In Texas, Chapter 64 of the Code of Criminal Procedure requires the judge of the convicting court to order DNA testing when requested by a convicted person if it finds all of the following:

(1) evidence exists that by its nature permits DNA testing;

(2) the evidence was either:

(a) justifiably not previously subjected to DNA testing [because DNA testing i) was not available, or ii) was incapable of providing probative results, or iii) did not occur “through no fault of the convicted person, for reasons that are of such a nature that the interests of justice require DNA testing”]; or

(b) subjected to previous DNA testing by techniques now superseded by more accurate techniques;

(3) that evidence is in a condition making DNA testing possible;

(4) the chain of custody of the evidence is sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;

(5) identity was or is an issue in the underlying criminal case;

(6) the convicted person has established by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing; and

(7) the convicted person has established by a preponderance of the evidence that the request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

An indigent convicted person intending to file a motion for post-conviction DNA testing now has a limited right to appointed counsel. That entitlement used to be absolute, but it is now conditioned on the trial judge’s finding “that reasonable grounds exist for the filing of a motion.” If all of the prerequisites set out above are met, the convicting court must order testing. Then, after “examining the results of testing under Article 64.03, the convicting court must hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” Exculpatory DNA testing results do not, by themselves, result in relief from a conviction or sentence. Chapter 64 is simply a procedural vehicle for obtaining certain evidence “which might then be used in a state or federal habeas proceeding.”

May06
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A Criminal Trial With Only Five Jurors

ByJury Trial

Can You Waive Your Right to a Six-Juror Trial in County Court?

The United States Supreme Court has held that a state-law scheme that imposed a jury of fewer than six members upon a defendant, even one accused of only a misdemeanor offense, violates the Sixth Amendment right to a jury trial. Ballew v. State, 435 U.S. 223 (1978). For Texans, Article V, Section 17, of the Texas Constitution provides: “A jury in the County Court shall consist of six persons [.]” Furthermore, Section 62.301 of the Texas Government Code provides, without explicit exception, that a jury in a County Court “is composed of six persons.” Conspicuously, the similar Government Code provision (Section 62.201) requiring a 12-person jury in a District Court contains an exception that allows the parties to dispense with the full complement of jurors.

So what is the rule? Must a County Court jury have six or can it have less? The Supreme Court and the Texas Constitution and statutes call for six jurors in a misdemeanor criminal trial. But may the defendant waive this requirement? This issue was recently decided by the Texas Court of Criminal Appeals in Ex Parte Garza.

In Ex Parte Garza, the defendant was set to be tried for misdemeanor DWI when one of the six petit jurors became ill and was hospitalized. The trial court continued the case for a few days in hopes that the ailing juror would recover, but he did not. The trial court then entertained the option of granting a mistrial for manifest necessity. The defense objected to the mistrial, stating that it has the jury that it wanted to hear the case. The defense requested another continuance or, in the alternative, to proceed to trial without the ailing juror. The trial judge denied the continuance and did not address the option of proceeding with fewer than six jurors. The trial court then granted a sua sponte mistrial over the defense objection.

When the case was reset for trial, the defendant filed a pre-trial application for writ of habeas corpus, alleging that because the trial court prematurely terminated the prior proceedings without having considered a less drastic alternative, his right against double jeopardy was violated. The trial court denied relief, but the 1st District Court of Appeals (Houston) reversed. “The Court of Appeals concluded that the trial court erred not to explore the less drastic alternative of conducting the trial without the full complement of six jurors.”

The CCA now affirms the judgment of the 1st Court of Appeals. Writing for the majority, Judge Price explained:

Once a defendant shows he is being tried for the same offense after declaration of a mistrial, to which he objected, a heavy burden shifts to the State to justify the trial court’s declaration of the mistrial. The State must demonstrate a “manifest necessity” for a mistrial, which is to say a “high degree” of necessity, and the trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances. That discretion is abused, we have said, whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out.

Regarding whether the trial court could have proceeded with only five jurors (as a less drastic alternative the mistrial), the CCA noted that “this Court and its predecessor, the Texas Court of Appeals, have held for more than a century that the Code of Criminal Procedure does at least implicitly permit waiver of the right to six jurors in cases tried in County Court.” Quoting the Supreme Court in Ballew:

To deny [the accused] his power to [waive his right to a six person jury] is to convert a privilege into an imperative requirement.

Imposing such a requirement on Texas defendants was not something the CCA is willing to do. Citing a long history of cases dating back to the early 1900s, the CCA noted how Texas has consistently allowed a defendant to waive his right to trial by a full complement of jurors. Therefore, the CCA held that by terminating the trial proceedings without considering whether to allow the trial to proceed with five jurors, the trial court abused its discretion. Accordingly, a new trial is jeopardy barred.

Takeaway: Consistent with Texas jurisprudence for the last 120 years,a defendant may waive his right to trial by six jurors in a County Court and proceed with less than the full amount.

Presiding Judge Keller and Judge Cochran dissented without opinion.

May04
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Do You Consent? Do You Consent? Do You Consent?

ByWarrantless Search

Today, the Texas Court of Criminal Appeals released Meekins v. State, a case out of Lubbock County wherein the issue for appellate review was whether that State proved by clear and convincing evidence that Appellant had consented to a search of his vehicle.

At a pre-trial hearing to determine whether the drugs found during the search should be suppressed, the trial court ruled that Appellant’s consent to search was given knowingly and voluntarily. The court, therefore, refused to suppress the evidence. Here’s the evidence on which the trial court based its ruling:

After officers pulled Appellant over for failing to signal a turn, the following exchange occurred between Appellant and the officer while the officer talked to Appellant through the driver’s side window:

Officer: You don’t have anything illegal in the vehicle, no weapons or anything like that?

Appellant: No

Officer: You don’t mind if we take a look?

Appellant: (Inaudible) Look in the car or what?

Officer: Yeah.

Appellant: I don’t have anything.

Officer: Okay. You don’t mind if I look? It’s yes or no, bud.

Appellant: What do you think?

Officer: What do I think?

Appellant: Yeah.

Officer: I’m asking you to look in the car.

Appellant: (Inaudible)

Officer: Don’t reach around, bud, just in case you got a gun.

Appellant: I ain’t got no gun or nothing.

Officer: You don’t mind if we look?

Appellant: I just…(inaudible) That it (inaudible).

Officer: Okay.

Appellant: (Inaudible)

Officer: I’m asking if I can look in the vehicle. It’s yes or no.

Appellant: (Inaudible)

Officer: Is there anything else you might have? You seem a little nervous, you know what I’m saying? You’re making me nervous.

Appellant: I ain’t nervous.

Officer: Okay. Do you have anything illegal in your vehicle?

Appellant: No.

Officer: Okay. Do you mind if I look?

Appellant: I guess.

After that, the officer, believing he has been given consent, ordered Appellant to exit the vehicle. Ultimately the officer found the contraband (marijuana) in Appellant’s pocket.

The 7th District Court of Appeals (Amarillo) reversed the trial court’s ruling, holding that “the State failed to clearly and convincingly prove that Appellant granted the officer positive, unequivocal, and voluntary consent to search his car.”

In an opinion written by Judge Cochran, the CCA now reverses. Upholding the trial court’s original ruling, the CCA relied on the “totality of the circumstances” and the deference given the trial court to make factual. The CCA noted, however, that this was a close case and that if the trial judge had found that the consent was not voluntary, they would have upheld that factual finding as well.

Dissenting, Judge Meyers joined by Judge Price, states:

I certainly do not know what is clear and convincing about appellant’s alleged consent. Although the majority gives lip service to the applicable rule, the majority misapplies it because these facts are anything but clear and convincing.

The dissent goes on the state that because Appellant’s words and actions demonstrate evasiveness and reluctance rather than positive, unequivocal consent, the evidence should have been suppressed.

This case shows how important it is to fight (and win) suppression motions at the trial level. An appellate lawyer can only do so much against the mountain of deference the appellate courts give the original fact finder’s decision. As the CCA noted in this case – if the trial court had gone the other way, they would have held that way too.

Apr26
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Blood Draw by a Police Officer: Bridging a Supreme Court Gap

ByDWI

In Schmerber v. California, 348 U.S. 757 (1966), the U.S. Supreme Court held that a warrantless blood draw constitutes a search and seizure under the Fourth Amendment. The Court also laid out the two-part test for determining the legality of the search:

1) Whether the police were justified in requiring [the suspect] to submit to a blood test; and
2) Whether the means and procedures employed in taking [the suspect’s] blood respected relevant Fourth Amendment standards of reasonableness.

Schmerber, however, involved a blood draw performed by medical personnel at a hospital according to acceptable medical practice. In holding that the search was reasonable in that case, the Court conspicuously noted:

We are this not presented with the serious questions which would arise if a search involving use of a medical technique, even the most rudimentary sort, were made by other than medical personnel or in other than a medical environment – for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection or pain.

Id. at 771-772 [emphasis added].

Well…what if a police officer draws the blood? At the stationhouse?

This happened in State v. Johnston.

A woman was arrested for suspicion of DWI and two Dalworthington Gardens officers drew her blood at the Dalworthington Gardens stationhouse. That the officers had a warrant did not convince the suspect to comply with the request to draw her blood. Ultimately, the officers had to strap her to a table using gauze to keep her still enough to draw her blood.

Although the officer that drew the blood was a prior EMT and had been certified by a local physician to draw blood, the trial court suppressed the blood evidence, finding that the search was unreasonable under Schmerber. Troubled by the fact that the officers did not ask the suspect for a general medical history before conducting the blood draw, the fact that the blood draw was not recorded, the fact that the suspect was restrained, and the fact that the department did not have any clear guidelines for using force during DWI blood draws, the 2nd District Court of Appeals (Fort Worth) agreed that the trial court appropriately suppressed the evidence.

The State appealed, arguing that the Court of Appeals’ interpretation was too narrow. The defendant also appealed, arguing that the Supreme Court intended a per se ban on police officers drawing blood from DWI suspects.

The Texas Court of Criminal Appeals began its analysis by recognizing that the “for the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual’s blood alcohol content.” And in this case, because there was no evidence that the suspect suffered from a medical condition that would have made another means of testing preferable, it was not unreasonable (under Schmerber) to draw the suspect’s blood.

The CCA also held that Chapter 724 of the Texas Transportation Code – the chapter that deals with the implied consent law and details who may draw a person’s blood – is inapplicable to a reasonableness determination in this case, because the officers had a warrant. The defendant argued that because a police officer is not listed as a person authorized to draw blood under Chapter 724, the blood draw was unreasonable.  Chapter 724, the CCA concluded, applies only in cases where there is no warrant.

Regarding the test for reasonableness, the CCA concluded that “the reasonableness of the manner in which a DWI suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances. In this case, the totality of the circumstances indicate that the search was reasonable.

  •  The officer that drew the blood was a licensed EMT. (He had also been certified by a local physician, but the CCA didn’t care about that).
  • The Supreme Court (Schmerber) does not require that the draw be done in a hospital or clinic and several other jurisdictions agree.
  • The trial court concluded that the officers followed medically accepted procedures for drawing the blood.
  • The use of reasonable physical force to obtain a blood sample is permissible.

The CCA held that the blood draw performed at the stationhouse by the police officers was reasonable under the Fourth Amendment and Schmerber.   I would agree (in this case).  I wonder how many police officers (especially ones that deal regularly with DWI) are getting in line to get EMT certified now.

Apr15
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Taser illustration with text "Compliance by Taser | Excessive Force?" relevant to discussions on police use of force and legal implications in drug crime cases.

Compliance by Taser | Excessive Force?

ByDrug Crimes

Taser device illustration with text "Compliance by Taser Excessive Force?" relevant to legal analysis of police conduct and excessive force in criminal defense cases.

The Texas Court of Criminal Appeals recently heard a case involving excessive force by police.

In, Hereford v. State the ultimate issue presented to the CCA was whether forced used by officers to recover drugs from a defendant was excessive and unreasonable. The court held that it was.

The appellant in Hereford pulled into a parking lot and got out of his car. An officer observed him and recognized him as someone he had dealt with in the past. The officer knew Hereford had outstanding warrants. The officer conducted a pat down search and arrested him for the warrants. After appellant was arrested, the officer searched his vehicle. When the officer did not find any narcotics, he called a K9 unit whose dog alerted on the car.  Despite the alert, officers again failed to find any narcotics. When the officer returned to his patrol unit, appellant had his head down and was chewing on something. The officer commanded appellant to spit it out but he refused. The officer and two others then removed appellant from the patrol unit and tased him on the leg. The officer who made initial contact with appellant then grabbed him around the throat and tried to force him to spit out the substance. The officers then ceased trying to force the appellant to spit out the substance. After discussing their options for fifteen to twenty minutes, the officers decided to take the appellant to the hospital.

At the hospital, the officers appellant over to another officer working off-duty at the hospital. Appellant still had the substance in his mouth.  The hospital tried to get him to release it by using ammonia capsules. This did not work. The off-duty officer then took appellant into an examining room and began to tase him repeatedly – three times in the upper inner thigh (the groin) and once in the right forearm. When he was being tased, appellant’s mouth would open involuntarily.  While appellant’s mouth was open (during the tasing of his groin) the officer was able to get the substance out of his mouth.  It turned out to be a plastic baggie of crack cocaine.

The issue presented for the CCA was whether, under the Fourth Amendment, the manner in which the evidence that was seized was reasonable. The court used the factors found in Winston v. Lee, 470 U.S. 753 (1985) to balance the intrusion to the appellant’s personal interests, the societal need for effective law enforcement, and the state’s need for evidence. Those factors include whether the police conduct:

  1. threatened the suspect’s health or safety;
  2. conformed to accepted medical practices;
  3. was performed by a trained professional;
  4. arose from the existence of probable cause to believe the suspect had evidence of a crime;
  5. unduly intruded upon the suspect’s dignity interests in personal privacy; and
  6. was a commonplace procedure to which individuals are often subjected.

Balancing those interests, the court found that the off-duty officer’s actions were unreasonable and violated appellant’s Fourth Amendment prohibition against unreasonable searches and seizures.

The CA, however, made it a point to highlight that this ruling was not to be construed to imply that the use of a Taser in these types of instances is per se unreasonable. The Court highlighted Ellis v. Columbus City Police Dep’t, No. 1:07CV123-A-A, 2009 U.S. Dist. LEXIS 95821 (N.D.Miss. September 15, 2009), where almost the same set of circumstances happened.  In that case though, the suspect had lunged at officers and was openly chewing a plastic bag of cocaine. The Court differentiated that case from this one by explaining that in Ellis, the officers stopped after tasing appellant several times and the tasing occurred during the arrest (not long after and by another officer).

Presiding Judge Keller dissented without opinion.

Apr14
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Courts Should Not Apply Strict Rules of Grammar and Syntax When Reviewing Search Warrant Affidavits

BySearch & Seizure

“On Sunday, he advised me that he had been in Russia” is not the same as “He advised me that he had been in Russia on Sunday.”

The Court of Criminal Appeals considered a similar ambiguity in an Affidavit for a search warrant in State v. McClain. The Affiant stated in the affidavit, “In the past 72 hours, a confidential informant advised” the defendant had been seen in possession of Meth. Without more, this purports to state that the informant provided the information in the past 72 hours and DOES NOT state when the informant actually observed the behavior – a critical piece of information, indeed.

The trial court found the affidavit deficient and suppressed the evidence that was seized during the search. The 7th District Court of Appeals (Amarillo) affirmed. The CCA now reversed the Court of Appeals, holding that the search warrant based on this affidavit was proper.

The CCA cautions trial courts not to view such affidavits in a “hypertechnical” manner.

Since the Fourth Amendment strongly prefers searches to be conducted pursuant to search warrant, the United States Supreme Court has provided incentives for law-enforcement officials to obtain warrants instead of conducting warrantless searches. One incentive is a less-strict standard for reviewing the propriety of a search conducted pursuant to a warrant. In this situation, courts must give great deference to the magistrate’s probable-cause determination.

The CCA, with the exception of Judge Johnson who dissented, held that the lower courts violated the prohibition on hypertechnical review of warrant affidavits when it strictly applied rules of grammar and syntax in its analysis. The CCA further held:

Reviewing courts should only be concerned with whether the magistrate’s determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner. And reviewing courts should defer to all reasonable inferences that the magistrate could have made.

Apr07
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Man in a suit raising a handgun in celebration, with another man smiling beside him, in a city street setting, relating to discussions on reckless discharge of a firearm and legal implications in Texas.

Pleading a Tautology | Reckless Discharge of a Firearm

ByWeapons Charges

Can the State prove Reckless Discharge of a Firearm by simply proving discharge of a firearm in the city limits?

Man in a suit raising a handgun in celebration, with a smiling man beside him, in a city street setting, related to discussions on reckless discharge of a firearm in Texas.Yesterday, the Court of Criminal Appeals handed down State v. Rodriguez, a case in which the State appealed the lower court decision setting aside the information (charging document) for failure to plead an offense.

The State charged Roman Rodriguez under section 42.12 of the Texas Penal Code for reckless discharge of a firearm inside city limits. The information alleged that the defendant

recklessly discharged a firearm by pulling the trigger on a firearm which contained ammunition and was operable.

Upholding the 4th District Court of Appeals (San Antonio), the CCA held that the charge was deficient because it failed to allege that the act was done recklessly. The CCA noted that,

The State’s information alleged that Mr. Rodriguez recklessly discharged a firearm inside [the city limits] “by pulling the trigger on an firearm which contained ammunition and was operable.” Well, of course he did. Everyone who discharges a firearm pulls the trigger, and every firearm that is discharged contains ammunition and is operable if it discharges.

The Court explained that, in essence, the State pled a tautology – “The defendant recklessly discharged a firearm because he discharged a firearm.” The Court further noted that there are many occasions where a person might discharge a firearm inside the city limits by pulling the trigger on an operable firearm containing ammunition, such as: “if a person shoots a robber or a rapist climbing into his bedroom window,” or “if he shoots a rattlesnake lying in the bushes.”

Accordingly, because the State only alleged “how” the defendant discharged the firearm and failed to alleged how he “recklessly” discharged the same, the information was deficient and should be set aside.

Judge Price concurred in the result and writes separately to express his opinion that the statute (section 42.12) is “hopelessly ambiguous” regarding the recklessness requirement.  Presiding Judge Keller joined in Judge Price’s concurrence. Judge Womack also concurs without opinion.

Apr05
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Illustration of courtroom voir dire process, featuring hands selecting jurors from a panel, emphasizing trial advocacy and jury selection strategies relevant to Texas law.

A Proper Voir Dire Question

ByTrial Advocacy

Illustration depicting hands selecting jurors from a jury box, representing the voir dire process in Texas trial advocacy and legal questioning.When conducting voir dire of prospective jurors (the venire panel), Texas law says that a lawyer cannot ask a “commitment question.” The Texas Court of Criminal Appeals defines a “commitment question” as

a question that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact. Commitment questions are impermissible unless the law requires a commitment, and the law does not require a commitment on what facts a juror will consider during sentencing.

The CCA also cautions, however, that “a trial court abuses its discretion if it disallows a proper voir dire question.”

In Davis v. State, a case decided by the CCA last month, the defense counsel asked the venire panel the follow question:

Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon, what factors do y’all think are important?

Despite counsel’s fine use of the word “y’all,” and without any objection to the question by the State, the trial judge interjected, saying, “that’s a commitment question. You can’t ask that question.” On appeal, the 14th District Court of Appeal (Houston) agreed.

The CCA now reverses, holding that

appellant’s counsel asked “what factors…are important” in sentencing. This did not ask the jurors how particular facts would influence their deliberations. This was an inquiry into the jurors’ general philosophies.

There you have it. Cases regarding commitment questions are always very fact dependant, but for now, we can add one more to the list. Counsel may properly ask: “What factors are important in assessing the sentence in a [name your offense] case.”

Presiding Judge Keller penned the lone dissent.  She deems the question an improper commitment question.

Apr01
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Walmart sign against blue sky, relevant to theft case involving Walmart property ownership in Texas.

Walmart Theft Case Charged with the Wrong Name

ByTheft

Walmart sign against a blue sky, representing the retail giant involved in theft case discussions in Texas.Byrd v. State

In Byrd, the state charged appellant with theft of certain property from owner “Mike Morales.” At trial, however, the State did not prove, in any way whatsoever, that the property belonged to Mike Morales. The overwhelming proof showed that the property, in fact, belonged to Walmart. On appeal, appellant argued the the evidence was insufficient because the State did not prove that the property belonged to Mike Morales. The 4th Court disagreed, holding that the name of the owner was not required, as it was simply a variance of proof.

This week, the Texas Court of Criminal Appeals reversed the decision of the Court of Appeals. In a unanimous opinion written by Judge Cochran, the CCA held that:

Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment is the owner is the same person (or entity) – regardless of the name – as shown by the evidence.

The CCA explained that a conviction would still stand if an indictment alleged an incorrect name, such as Buddy Smith, when the proof at trial revealed that the victim’s name was, in fact, John Smith (Buddy was simply a nickname). In that instance, there would be sufficient evidence showing that the person alleged in the indictment is the same person from whom the property was stolen.

In this case:

Not only did the State fail to offer any evidence that “Mike Morales” – the person alleged in the theft indictment – has any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern the missing “Mile Morales,” convicted her nevertheless.  According to the State, the “only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved – and possibly to the jury as well – that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter.”  An alternate, less generous explanation, is that everyone was asleep at the wheel.

As a rule for future Walmart theft cases (and all theft cases), the majority opinion states:

The parties, the court, and the jury must know the identity of the owner [of the stolen property] regardless of how the State names him.

It is worth noting that the CCA did not foreclose the option of the State reindicting the appellant for theft from “Walmart,” as jeopardy has not attached to that specific offense. But as far as theft from Mike Morales goes, the appellant stands acquitted.

Mar29
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Aggravated Robbery Victim Not Be Present to Be Robbed

ByRobbery

The Texas Court of Criminal Appeals released an opinion this month in a case where a man entered a convenience store brandishing a rifle. When the man looked around, however, he noticed that there wasn’t anyone in the store. The store clerk was in the back office watching the man on the security camera. When the clerk saw the man enter the store, he locked the office and called 911. Unable to open the cash register, the “robber” stole the clerk’s wallet and some money that was behind the counter. The “robber” never saw anyone inside the store.  Then he left.

The man was later charged with and convicted of Aggravated Robbery under Texas Penal Code Section 29.02, which provides in relevant part:

a person commits [robbery] if, in the course committing theft…and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or harm.

Appellant argued that “because there was no evidence of interaction between him and [the victim], the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to that of theft. Accordingly, the CCA was faced with a question of first impression in Texas:

Does the Offense of Aggravated Robbery Require Interaction Between the Accused and the Purported Victim?

Appellant contested that he could not intentionally or knowingly place a person in fear, if that person was unknown to him. A unanimous CCA disagreed, explaining that

‘knowingly’ does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know that he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone is actually placed in fear.

In this case, because Appellant brandished the rifle in the convenience store, the CCA held that his culpable mental state was not negated by the fact that the victim did not happen to be in his presence. In sum, the CCA answered the question presented in the negative.

The offense of Aggravated Robbery does NOT require interaction between the accused and the purported victim.

Read the full CCA opinion in Howard v. State.

Fort Worth
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