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Brandon Barnett

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.

Sep 08
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Barshaw v. State 2010

A Simple Truth: Sexual Assault Conviction Reversed for Improper Expert Testimony

By Sex Crimes

Barshaw v. State 2010It’s been my experience that folks with mental retardation can be painfully honest, really.  I mean, it’s like a little kid who looks at somebody and says in the supermarket, ‘You’re really old,’ or, you know, whatever little kids do.

That was part of the testimony of an MHMR expert at the sexual assault trial of Mark Barshaw.  Barshaw was accused of sexually assaulting a mentally retarded victim, who was 21 years-old at the time, but functioned at approximately a 10 year-old level.  Upon hearing this testimony, the defense counsel objected, “You can’t have somebody come in and testify to a class of people are truthful.”  The State responded by stating that it was simply trying to show how mentally retarded persons “adapt” and that the testimony also went to show that “she’s incapable of either appraising the the situation or the nature of the act.”  The trial judge allowed the testimony to continue.

…again, it’s been my experience in the hundreds and hundreds of people with mental retardation that I’ve seen, that it’s more going to be that they’re painfully honest.  They haven’t learned the social skills and probably never will to know when you should lie or when it would be socially appropriate to not tell the truth because it might hurt someone’s feelings, or things of that nature, to hold things back.

In allowing the testimony of the MHMR expert, the trial judge abused its discretion, said the 3rd District Court of Appeals (Austin).  The Court explained that the Texas Court of Criminal Appeals has held that evidence rule 702 “does not permit an expert to give an opinion that the complainant or a class of persons to which the complainant belongs is truthful.”  Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993).  Such an expert, is essentially telling the jury that they can believe the victim in the instant case.  This, held the CCA, “is not ‘expert’ testimony of the kind which will assist the jury under rule 702.”  Id. at 711.

The Court also cited the CCA case Schutz v. State.  957 S.W.2d 52 (Tex. Crim. App. 1977).  In Schutz, the CCA explained that:

children and mentally retarded persons are viewed by society as “impaired.” When such a witness is expected to testify, expert testimony should be permitted in the offering party’s case in chief concerning the ability of the class of persons suffering the “impairment” to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events at issue in the case.  The court emphasized that such testimony should be limited to the “impaired” class’s ability to accurately relate events and should not extend to the class’s tendency to do so; the latter would violate the holding in Yount.

Id. at 70 (emphasis added).  Having violated the CCA holdings in Yount and Schutz by allowing the expert to testify that mentally retarded persons are, as a class, truthful, the Court found harm and reversed the sexual assault conviction.

Justice Henson dissented and would have held that there was no harm in the trial judge’s erroneous ruling.

Dec 22
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Civil Penalties and Double Jeopardy

By Double Jeopardy

This issue was recently addressed by the 13th District Court of Appeals in State v. Almendarez.

The 5th Amendment to the United States Constitution provides, in relevant part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  Many times there are civil and criminal penalties for certain actions, such as the administrative suspension of one’s driver’s license in addition to a subsequent prosecution for DWI.  Do civil penalties violate the double jeopardy clause?

As a general rule, the 5th Amendment’s prohibition on double jeopardy does not bar remedial civil proceedings based on the same offense as a prior criminal prosecution, or vice versa.  State v. Solar, 906 S.W.2d 142 (Tex. App. – Fort Worth 1995, pet. ref’d).  The U.S. Supreme Court provided, “whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.”  Hudson v. U.S., 522 U.S. 93 (1997).  However, even if intended by Congress to be civil in nature, the double jeopardy clause may be triggered if the “statutory scheme is so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.”  Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002).

In order to evaluate whether the effects of the statute are criminally punitive, courts generally look to the non-dispositive factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and restated by the Court in Hudson.  Termed the “Hudson factors,” courts should consider:

  1. whether the sanction involves an affirmative disability or restraint;
  2. whether it has historically been regarded as a punishment;
  3. whether it comes into play only on a finding of
    scienter;
  4. whether its operation will promote the traditional aims of punishment-retribution and deterrence;
  5. whether the behavior to which it applies is already a crime;
  6. whether an alternative purpose to which it may rationally be connected is assignable for it; and
  7. whether it appears excessive in relation to the alternative purpose assigned.
Hudson at 99-100.  Moreover (as if a 7-factor test weren’t enough), the Court further provided, “these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform was has been denominated a civil remedy into a criminal penalty.”  Id at 100.
As you can see, whether a civil penalty precludes later criminal prosecution depends on the particular facts of the case.  The following examples from Texas caselaw help illustrate how this issue has played out in Texas courts:
  • Termination of a person’s rights to a horse and order to reimburse State for expense incurred in seizing horse did not constitute punishment and does not bar a subsequent criminal prosecution for animal cruelty and neglect.
    State v. Almendarez, ___ S.W.3d ___ (Tex.App. – Corpus Christie 2009).
  • Trial for termination of parental rights is a civil proceeding with a remedial result – protecting abused and neglected children – and does not trigger jeopardy bar to subsequent criminal prosecution for aggravated sexual assault of a child.
    Malone v. State, 864 S.W.2d 156 (Tex.App. – Fort Worth 1993, no pet.).
  • An administrative license suspension did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent DWI prosecution.
    Ex parte Tharp, 935 S.W.2d 157 (Tex. Crim. App. 1996).
  • Texas’ civil asset-forfeiture scheme did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent prosecution for the offense underlying the asset forfeiture.
    Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).
  • Disciplinary actions brought against an attorney did not constitute criminal punishment to bar subsequent criminal proceedings.
    Capps v. State, 265 S.W.3d 44 (Tex.App. – Houston [1st Dist.] 2008, pet. ref’d).
  • Cancellation of defendant’s alcoholic beverage license because he lied on the application did not constitute punishment and therefore did not bar his subsequent prosecution for making false statements on the application.
    Ex parte Sheridan, 974 S.W.2d 129 (Tex.App. – San Antonio 1998, pet. ref’d).
TAKEAWAY:  Good luck establishing a double jeopardy challenge to a later prosecution for conduct which was the subject to a civil penalty.  According to the bulk of caselaw, it seems to be quite a steep road.