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Madeline Pricer Jones

Dec 03
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Organized Retail Theft Lang

Organized Retail Theft: Does it Take Two to Tango? | Lang v. State (2018)

By Theft

Organized Retail Theft LangThe Court of Criminal Appeals recently handed down an opinion on the applicability of Texas’ organized retail theft statute. The issue facing the court was whether the statute defining the offense of organized retail theft permits a conviction for ordinary shoplifting by a single actor rather than requiring a group or collaborative effort.

CCA Opinion: Lang v. State (Tex. Crim. App. 2018)

The Facts—Defendant Stole Merchandise from HEB and Was Convicted Under Texas’ Organized Retail Theft Statue.

Defendant was shopping at HEB when an employee noticed her placing merchandise into reusable shopping bags. Some of the bags were inside of Defendant’s cart and one was tied to the side of her cart. The employee thought this behavior was unusual, so she kept an eye on Defendant. When Defendant went to check out, the employee observed her place all but one of the reusable bags onto the conveyor belt—leaving the bag that was tied to the side of the cart untouched. After paying, Defendant began to leave the store. Defendant was subsequently stopped by employees and questioned about the bag that was tied to her cart, which was full of unpaid merchandise. The unpaid items totaled $565.59, whereas the paid-for merchandise totaled only $262.17. At that time, the store called the police and Defendant was eventually arrested, charged, and convicted of organized retail theft.

Defendant appealed her conviction arguing that the evidence was legally insufficient to support her conviction. More specifically, Defendant claimed that the offense of “organized retail theft” could not be committed by a single actor because the statute requires group action or collaborative effort. The court of appeals rejected this argument for the reasons listed below.

Court of Appeals Affirms the Trial Court’s Decision—Claiming that Organized Retail Theft Does Not Require Multiple Actors.

In making their decision the court of appeals looked to the statute’s language, which provides that a person commits an offense if she “intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of: (1) stolen retail merchandise; or (2) merchandise explicitly represented to the person as being stolen retail merchandise.” The court contended that nowhere in the statutory language was there explicit terms requiring group behavior. As a result, the court held that the language was not ambiguous and used plain meaning to interpret the statue.

Using dictionary definitions, the court concluded that the statutory terms “conducts, promotes, or facilitates,” did not require multiple actors. The court also explained that reading those statutory terms in context, established that what is conducted, promoted, or facilitated is an “activity,” not another person. Thus, “leaving the store after stealing the retail merchandise” was sufficient activity to meet the elements required by the statute. Accordingly, the court of appeals upheld the defendant’s conviction and another appeal ensued.

Court of Criminal Appeals Reverses and Remands Case—Determining that Organized Retail Theft Requires Multiple Actors.

On appeal Defendant maintained that the offense of organized retail theft could not be committed by a single actor. She did not dispute the facts, rather, as a matter of law, she disputed whether the facts were adequate to establish the offense of organized retail theft. To evaluate this argument the Court of Criminal Appeals analyzed the statute’s language and compared it with the court of appeals’ analysis and Defendant’s argument. In doing so, the Court determined that the language could reasonably be interpreted in more than one way, and therefore, extra-textual sources, such as legislative history must be considered.

To make this determination the Court looked at the statute’s use of the past participle of steal (e.g., “stolen”). The court explained that use of “stolen” indicated that the “activity” covered by the statute takes place with respect to items that have already been stolen. Thus, the question then becomes “what type of ‘activity’ suffices to satisfy the statute’s requirements.” “Is it enough, as the court of appeals suggested, for a person to shoplift items of retail merchandise and then attempt to leave the store with the stolen items, thereby conducting an activity (leaving the store) in which the person possesses the retail merchandise she has just stolen?” Or, as Defendant suggested, does the statute require proof of some activity distinct from the type of conduct associated with shoplifting? In other words, “does the statute require proof of something more than the mere continued possession of the stolen retail merchandise during an attempt to leave the store?” Not immediately knowing the answer to these two reasonable interpretations, the Court decided it had to look to legislative history to help find the right answer.

After examining the statute’s legislative history, the Court found that the organized retail theft statute was intended to reach conduct distinct from that of ordinary shoplifting. To support its decision, the Court cited the statute’s bill analysis and a senate research report. Both pieces of legislative history similarly stated that organized retail theft is a highly organized criminal activity, dependent on multiple actors, and organized by a central figure. Further, the sources stated that organized retail theft is distinct from ordinary shoplifting in that it involves professional theft rings that move quickly across state lines in order to steal and move large amounts of merchandise—requirements that are clearly not present during ordinary shoplifting.

As such, when considering the legislative history in conjunction with the ambiguous statutory language, the Court concluded that it supports the notion that the organized retail theft statute was not intended to apply to the conduct of an ordinary shoplifter acting alone but rather to multiple actors involved in highly organized theft rings. Thus, the Court reversed and remanded the case.

Keller, P.J., filed a concurring opinion.

Yeary, J., filed a dissenting opinion.

Nov 26
Love3
Attorney Duty Not to Concede Guilt Turner

Attorneys Have a Legal Obligation Not to Concede Guilt

By Ineffective Assistance

Attorney Duty Not to Concede Guilt TurnerThe Court of Criminal Appeals recently handed down an opinion regarding an attorney’s obligation not to concede their client’s guilt. The issue before the Court was whether the defendant was entitled to a new trial on direct appeal because his defense counsel conceded his guilt at trial against his wishes.

Turner v. State—Court of Criminal Appeals (2018)

The Facts—Defense Counsel Conceded Client’s Guilt Against His Wishes.

In the underlying case, defense counsel was appointed to represent Defendant for capital murder. Defendant had been charged with killing his wife and mother-in-law. Based on overwhelming evidence against Defendant, counsel insisted he admit his guilt and concentrate on obtaining a life sentence in order to avoid the death penalty. Defendant, however, did not want to admit guilt and made it readily apparent to counsel. Defendant also disputed counsel’s mitigation investigation in regard to his trial. Counsel responded to this claim by stating that Defendant did not have a voice in the matter that would override their voice or their tactics. Counsel further stated that Defendant was only allowed to decide whether to plea and whether to testify.

Against Defendant’s wishes, counsel told the jury in opening statements that the evidence would show Defendant killed his wife in a jealous rage, and it would also show that the grandma’s death was accidental. Counsel further told the jury that the facts of the case did not support the offense of capital murder, that Defendant was in denial about having committed the crime, and that the proper verdict was the lesser-included offense of murder. Defendant, however, maintained his innocence throughout trial and denied any involvement in the murders.

Even after Defendant testified to his innocence, counsel still conceded that Defendant was guilty in closing arguments. Defendant was subsequently found guilty of capital murder and sentenced to death. On direct appeal, the Court of Criminal Appeals looked to a recent United States Supreme Court decision, McCoy v. Louisiana, to assess its impact.

McCoy v. Louisiana—Supreme Court Holds the Sixth Amendment Guarantees a Defendant “the Right to Insist that Counsel Refrain from Admitting Guilt.”

Recently, the United States Supreme Court addressed the issue of an attorney conceding their client’s guilt without their consent. In McCoy, the defendant was charged with first-degree murder, and the State was seeking the death penalty. Based on overwhelming evidence in that case, defense counsel advised the defendant he planned to concede guilt to avoid the death penalty. The defendant was irate and told his attorney “not to make that concession.” Against these demands, defense counsel conceded guilt in opening statements. Even so, the defendant maintained his innocence throughout trial.

On appeal, the Supreme Court held that the Sixth Amendment guarantees to a defendant “the right to insist that counsel refrain from admitting guilt, even when counsel’s experience-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.” The Court further stated, “When a client expressly asserts that the objective of ‘his defense’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” The Court explained that a defendant’s choice to maintain his innocence is an “objective of representation, not merely an issue of trial tactics.” As such, the decision is one for the client, not the attorney.

With this decision, the Supreme Court concluded that the error was structural in nature and, therefore, required an automatic reversal. The Court explained that the issue was not one of ineffective-assistance-of-counsel because the issue was concerning “a client’s autonomy, not counsel’s competence.”

Court of Criminal Appeals Reverses and Remands Case—Finding Counsel Committed a McCoy Violation by Conceding Guilt Against the Defendant’s Wishes.

In reviewing McCoy, the Court of Criminal Appeal held it was applicable. The State, however, argued that the defendant failed to timely object and preserve the record in order to show a McCoy violation. The Court disagreed with the State by explaining that a defendant should not be expected to object with the precision of an attorney. Rather a defendant can make a McCoy claim by presenting expressing his innocence.

Here, there was no question that the defendant wanted to maintain his innocence. During his testimony, he stated so explicitly. And, despite the defendant’s testimony disagreeing with counsel’s strategy, they continued to concede guilt in closing arguments. Further, as stated above, counsel believed the only decisions Defendant was entitled to make were “whether to plea and to testify.” Thus, solidifying the Court’s conclusion that counsel knew they were acting against Defendant’s wishes. And, moreover, that they believed they were not required to follow his wishes.

Based on the above facts, the Court determined that the defendant adequately preserved his McCoy claim and there was in fact a violation. And, even though counsel’s strategy to concede guilt was more rational than Defendant’s theory, whether to concede guilt is one of the few rights that the defendant alone must determine under the Sixth Amendment. It’s a decision reserved for the client, not the attorney. As a result, the Court reversed and remanded for a new trial.

Nov 20
Love2
Mau Deferred Adjudication Jury Verdict

Can a Judge Grant Deferred Adjudication After a Jury’s Guilty Verdict?

By Jury Trial

Mau Deferred Adjudication Jury VerdictThe Court of Criminal Appeals recently handed down an opinion on a petition for writ of mandamus. The two issues facing the court were (1) the nature of a misdemeanor trial after a defendant pleads guilty to a jury; and, (2) whether a trial court has the ability to defer an adjudication of guilt after a jury finds a defendant guilty. The Court of Criminal Appeals declined to grant mandamus relief on the first issue but, for the reasons discussed below, it granted mandamus relief for the second issue.

Majority Opinion: In re State ex rel. Mau, (Tex. Crim. App. 2018).

The Facts—The Trial Court Instructed the Jury to Return a Verdict of Guilty and Then Entered an Order Deferring Guilt.

The underlying case involved a defendant who was charged with the misdemeanor offense of assault bodily injury of a family member. The defendant did not waive his right to a jury trial for this offense, and the State never gave written consent to waive a jury trial. As a result, the case proceeded to a jury trial upon the defendant’s plea of not guilty. During trial, however, the defendant changed his plea to guilty, and the trial court retired the jury with an instruction that it return a verdict of guilty on the basis of the defendant’s plea, and it did.

After the defendant was found guilty, the trial court did not submit the issue of punishment to the jury. Instead, it dismissed the jury. There were no objections to the jury’s dismissal. However, the State did bring to the court’s attention that the defendant had not been properly admonished prior to pleading guilty. At that point, the court admonished the defendant without objection. Only at this point—after the jury had already returned a verdict of guilty—did the defendant waive his right to jury trial. The State, however, never consented in writing, before the entry of the guilty plea, as required by Article 1.13 of the Code of Criminal Procedure. As a result, when the trial court deferred guilt, the state sought a writ of mandamus.

The State argued to the court of appeals that the trial court lacked the authority to defer the adjudication of the defendant’s guilt, and the court of appeals denied relief. After being denied, the State, again, sought mandamus relief with the Court of Criminal Appeals.

Court of Criminal Appeals Granted Mandamus Relief—Holding the Trial Court Was Without Authority to Enter an Order of Deferred Adjudication.

In its argument to the Court of Criminal Appeals, the State maintained that the trial court lacked authority to defer guilt and argued that the trial court had a ministerial duty to enter judgment on the jury’s verdict. The State explained that by allowing the trial court to defer the defendant’s guilt, after the jury had rendered its verdict, would essentially nullify their statutory discretion to consent to a jury waiver.

In maintaining its position, the trial court relied on a court of appeals opinion, State v. Sosa, 830 S.W.2d 204 (Tex. App.—San Antonio 1992, pet. ref’d).

The issue in Sosa was whether the judge, having found the defendant guilty on his plea of not guilty in a bench trial, could thereafter withdraw the courts finding of guilt and assess deferred adjudication. The Court of Criminal Appeals allowed this because there was no authority that barred the trial judge’s discretion or the procedure in a bench trial. However, the Court of Criminal Appeals explained that the same could not be said about a jury’s verdict of guilty.

“By its very terms, the statutory option authorizing deferred adjudication is limited to defendants who plead guilty or nolo contendere before the trial court after waiving trial by jury.”

Here, at the time that the defendant pled guilty to the jury, he did not waive his right to a jury trial nor did the State consent to a waiver. Without such a waiver, the trial court was bound to resolve the issue of guilt by a jury trial and, further, the trial court then had a ministerial duty to enter judgment on the jury’s verdict. As a result, the Court of Criminal Appeals granted mandamus relief.

Takeaways . . .

While a defendant can always change his or her plea, the trial court cannot abrogate a jury’s finding of guilt by placing a defendant on deferred adjudication. At this point in the trial, the only way to defer guilt would be to grant a motion for new trial. However, this motion for new trial must have a legal basis, and deferred adjudication, alone, is insufficient.

However, a defendant may be placed on deferred adjudication after a jury trial has begun, but before a verdict has been returned if the defendant properly submits to the court, a waiver of his or her right to a jury trial, and the State agrees accordingly. The State may consent, at any time, but the consent must be in writing and filed appropriately. If the defendant waives this right and the State follows the aforementioned steps, then the judge can dismiss the jury, accept the defendant’s plea, and subsequently place the defendant on deferred adjudication.

Alcala, J., filed a concurring opinion.

Newell, J., filed a concurring opinion.

Nov 16
Love2
Jury Note Not Verdict Jeopdardy Traylor

Unanimous “Not Guilty” Jury Note was Not a Verdict. Convicted on Retrial

By Jury Trial

Jury Note Not Verdict Jeopdardy TraylorThe Court of Criminal Appeals recently handed down an opinion regarding whether a jury can informally acquit based on a unanimous jury note. The issue facing the court was whether a jury note, which provided the jury’s voting breakdown of the charged offense and the lesser included offense, could be considered an acquittal for double jeopardy purposes even though a mistrial was later declared because the jury could not reach a unanimous decision.

Traylor v. State, (Court of Criminal Appeals, 2018).

The Facts—The Trial Court Declared a Mistrial After Unanimous Jury Note.

Appellant was on trial for first-degree burglary of a habitation. At the conclusion of his trial, the jury was charged with determining whether Appellant was guilty of first-degree burglary, the charged offense, or second-degree burglary, a lesser-included offense. The difference between the two offenses is that the jury did not have to find that Appellant used a deadly weapon in order to convict him of the lesser included offense.

During deliberations the jury sent out a note stating that it unanimously agreed that Appellant was not guilty of the charged offense but indicated they were deadlocked (5-7) on the issue of guilt for the lesser-included offense. The trial court instructed the jury to keep deliberating before ultimately declaring a mistrial because the jury claimed they still could not reach a unanimous verdict.

Appellant was later re-tried and convicted of first-degree burglary. Appellant appealed this verdict, arguing that the trial court abused its discretion by granting a mistrial without a manifest necessity, and therefore, creating a double jeopardy violation.

The Court of Appeals Agreed with Appellant—Holding Appellant’s Subsequent Trial for First-Degree Burglary Was Barred Because The Jury’s Note Amounted to an Acquittal.

In agreeing with Appellant, the Court of Appeals cited United States Supreme Court decision, Blueford v. Arkansas, 566 U.S. 599 (2012). The Court of Appeals held the facts in Appellant’s case to be significantly distinguishable from Blueford; thus, warranting an acquittal. The Court of Criminal Appeals, however, disagreed and reversed for the reasons discussed below.

The Court of Criminal Appeals Reversed the Court of Appeals’ Decision—Holding the Jury Note Was Not a Final Verdict of Acquittal Because it Lacked The “Finality Necessary to Constitute an Acquittal.”

Double Jeopardy protects individuals from multiple prosecutions for the same offense. However, a trial may be ended without barring a subsequent prosecution for the same offense when “particular circumstances manifest a necessity” to declare a mistrial. Such circumstances include a jury’s inability to reach a verdict. For a jury note regarding the jury’s inability to reach a verdict to bar a subsequent prosecution, there must be some indication that the jury had “finally resolved” to acquit the defendant.

In Blueford, the Supreme Court held that the jury’s report of the vote count was not finally resolved to acquit the defendant because it lacked the “finality necessary to constitute an acquittal.” The Supreme Court noted that the vote count lacked finality because: “(1) the jury was still deadlocked on the lesser-included offense; (2) the jury continued deliberating after the reported vote count; (3) the foreperson gave no further indication that the jury was still unanimous; and (4) nothing in the jury instructions prohibited the jurors from revisiting the prior vote.”

Here, the Court of Criminal Appeals held that the jury’s note also lacked the “finality necessary to constitute an acquittal” on the charged offense. The Court of Criminal appeals reasoned that the jury note lacked finality because the jury continued deliberating after the unanimous vote count and there was no indication that the vote on the charged offense remained unanimous throughout deliberations. Furthermore, the jury never filled out the Court’s verdict forms because, as reported by the jury, they still had “no decision.” Thus, while there are circumstances in which a jury can informally acquit a defendant, the facts in this case do not warrant an acquittal.

TAKEAWAY: It appears that the CCA might have come down differently if the jury had returned a 2nd note stating that they were still unanimous that the defendant was not guilty of the greater offense after all deliberations, or if the jury had signed the verdict form indicating such, even if there was ultimately no verdict. If you are faced with a similar circumstance, before the judge declares a mistrial, try to find a way to pin the jury down so that you can use it later if the state decides to try the case a second time.

Oct 25
Love6
Radar Detector Illegal Texas

Are Radar Detectors Illegal to Use in Texas?

By Traffic Offenses

Radar Detector Illegal TexasLets face it, most of us have received a speeding ticket at some point in our lifetime. As a result, radar detectors have become commonplace for drivers that want to take preventative measures to avoid receiving a ticket. Such preventative measures bring up an important question: are radar detectors illegal? Can I get a ticket for using a radar detector?

In Texas, using a radar detector in a passenger vehicle is legal with certain restrictions.
Under federal law, however, using a radar detector in any commercial vehicle that has a weight of 10,000 pounds or more is strictly prohibited. Commercial drivers are treated as professional drivers, and thus, different laws apply to them. 49 C.F.R. § 392.71(a).

Is it Legal to Mount a Radar Detector on My Windshield?

Although radar detectors are legal in Texas, a person may still be ticketed if they have mounted their radar detector on their windshield, side, or rear window, and that placement obstructs or reduces the operator’s clear view. Whether or not the placement obstructs an operator’s view is up to the officer’s discretion. As such, to avoid the hassle all together, it is best not to mount your radar detector on your windshield.

Radar Detectors on Military Bases

According to the Department of Defense instructions, persons are strictly prohibited from using radar or laser detection devices on military bases. Department of Defense, DoD Instruction 6055.04, DOD TRAFFIC SAFETY PROGRAM pg. 12 (2013).

What is the Difference Between a Radar Detector and a Radar Jammer?

Over the years, many devices have been created to help prevent speeders from being ticketed. The most common device is the radar detector, which is designed to locate radar signals out of the air. However, radar detectors have become less effective due to advances in technology and policing. This has generated the need for LIDAR/RADAR jamming devices. Unlike the traditional radar detector, a jamming device transmits a radio frequency signal that blocks or otherwise interferes with the operation of police LIDAR/RADAR by overloading its receiver with false information. Jamming devices can cause significant damage to police equipment. Moreover, such devices not only prevent police from detecting the speed of the vehicle with the device, but also the vehicles in the surrounding area.

Accordingly, in 2011, Texas passed HB 1116 to prohibit a person from using, attempting to use, installing, operating, or attempting to operate a radar interference device in a motor vehicle operated by the person. A person who commits an offense under this section may be charged with a class C misdemeanor. Tex. Transp. Code § 547.616. A Class C misdemeanor is punishable by a fine not to exceed $500.

Takeaways….

While many people believe radar detectors promote unsafe driving, advocates refute this contention by explaining that radar detectors alert drivers to their speed and remind them to drive the speed limit, and thus, safer.

In conclusion, spending money on a radar detector may help you dodge a speeding ticket and possibly even drive safer, but there are other laws that may be implicated when using such devices.

Sep 29
Love4
Self-Defense Jury Charge Texas

When is a Defendant Entitled to a Jury Instruction on Self-Defense?

By Self-Defense

Self-Defense Jury Charge TexasThe Court of Criminal Appeals recently released an opinion regarding when a defendant is entitled to a self-defense charge. The issue facing the Court was whether there was some evidence, from any source, that would support the elements of self-defense and whether self-defense was authorized when a deadly weapon was used in response to verbal provocation.

Gamino v. State, Court of Criminal Appeals (2017)

The Facts—The Trial Court Denied Defendant’s Request for a Self-Defense Instruction and Defendant was Subsequently Convicted.

On August 11, 2013, Cesar Gamino (Defendant) and his girlfriend were leaving downtown Fort Worth as the local bars were closing. While Defendant and his girlfriend were walking back to his truck they passed by a group of men who were heard saying lewd comments. Believing the comments were directed at his girlfriend, Defendant confronted the men. Khan, one of the men, told Defendant they were not talking about his girlfriend. According to Khan, Defendant then said “I got something for you,” went to his truck, retrieved a gun, and pointed it in their direction. Two police officers working nearby heard Defendant’s comment and saw Defendant with the gun. Defendant was subsequently arrested and charged with aggravated assault with a deadly weapon. Khan was also arrested and charged with public intoxication.

During trial, Defendant testified that the men threatened him and his girlfriend by saying “grab her ass” and that they would “F her if they wanted to,” and that they would “kick [his] ass.” Defendant further testified that one of the men got up and moved towards him in an aggressive manner. This behavior, coupled with the fact that Defendant was disabled, caused him to believe he and his girlfriend were in danger. As a result, Defendant testified that he reached into his truck, grabbed his gun and told the men, “[s]top, leave us alone, get away from us.” Defendant’s girlfriend also testified that he was in fact disabled and that the men had confronted them and threatened her—causing her to fear for her life.

At the end of the trial, the defense asked for a self-defense instruction in the jury charge and the trial court denied the request.

The Court of Appeals Reversed the Trial Court’s Decision—Holding Defendant was Entitled to a Self-Defense Instruction Regardless of the Fact that he was Charged with Aggravated Assault with a Deadly Weapon.

Section 9.31 of the Texas Penal Code governs self-defense. According to Section 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. Verbal provocation by itself is not enough.

Section 9.32 governs the use of “deadly force” in self-defense cases. In the case at hand, the lower court charged Defendant with using a deadly weapon. However, even if a defendant uses a deadly weapon, deadly force as defined in section 9.32 may not apply if it meets the requirements of Section 9.04.

Under Section 9.04, a threat to cause death or serious bodily injury by the production of a weapon as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

The Court of Appeals determined that Defendant reasonably believed his use of force was immediately necessary to protect against Khan’s use or attempted use of unlawful force, and Defendant produced his gun for the limited purpose of creating an apprehension. Thus, the Court of Appeals ruled that under Defendant’s version of events, the use of his gun did not constitute the use of deadly force, and Defendant was not disqualified from receiving a self-defense instruction even though he was charged with aggravated assault with a deadly weapon because he met the requirement of Section 9.04.

Accordingly, the trial court erred by not submitting an instruction on self-defense to allow the jury to decide the issue of self-defense.

The Court of Criminal Appeals Affirmed the COA—Holding that the Jury Should Have Been Given the Opportunity to Assess Whether Appellant’s Conduct was Justified as Self-Defense.

The Court of Criminal Appeals agreed that the trial court erred in taking away the self-defense issue from the jury. According to Texas case law, it is error for a trial court to deny a self-defense instruction if there is some evidence, from any source, that will corroborate the elements of a self-defense claim—even if the evidence is weak, contradicted or not credible.

The State argued, as well as the dissent, that Defendant was not entitled to a self-defense instruction because he did not admit to threatening the victim with imminent bodily injury. This argument was based on the idea that self-defense is a confession and avoidance justification, and the confession was missing here. The Court however disagreed, inferring a confession.

Here, Defendant testified that he displayed his gun and yelled, “stop,” “get away,” and “leave us alone.” Accordingly, the court held it to be reasonable for the jury to infer that if the men did not stop, Defendant would have used his gun for protection. As such, even though the evidence was contradicted by the State, Defendant believed the display of his gun was immediately necessary to protect himself against the use or attempted use of unlawful force, and that he displayed his weapon for the limited purpose of creating an apprehension that he would use deadly force if necessary.

Using the Court of Appeals’ analysis, the Court of Criminal Appeals affirmed their judgment holding that the jury should have been given the opportunity to analyze Defendant’s actions as self-defense.

See also the Gamino Dissenting Opinion

Sep 20
Love1
DWI Jury Instruction Alcohol Burnett

Error to Instruct DWI Jury on Drug Intoxication When Not Supported By Evidence

By DWI

Is it Error to Provide a Jury with Instructions When the Statutory Language is not Supported by the Evidence?

DWI Jury Instruction Alcohol BurnettThe Court of Criminal Appeals recently handed down a case regarding the State’s ability to use the full statutory definition of “intoxicated” in a jury charge for DWI cases. The issue faced by the court was whether the trial court erred in providing the jury with portions of the statutory language that were not supported by evidence presented at trial.

Burnett v. State, Court of Criminal Appeals (2017)

The Facts—What Happened?

Burnett was arrested and charged with DWI after rear-ending a vehicle occupied by Bussey and Chappa. When Burnett exited his vehicle both Bussey and Chappa observed him to be intoxicated. Bussey and Chapa smelled the odor of alcohol on Burnett’s breath and noticed his speech to be slurred. Additionally, the first officer on the scene also noticed Burnett to have slurred speech and the odor of alcohol on his breath. Burnett told officers that he had not been drinking and consented to taking the standard field sobriety tests. Burnett showed signs of intoxication during the all three tests and was subsequently arrested.

In a search incident to arrest, officers found pills in Burnett’s jacket and a prescription pill bottle located in his car. The pills and prescription bottle were not photographed or admitted into evidence.

The State later charged Burnett with a Class B misdemeanor DWI and alleged that he was intoxicated “by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of the substances, and any other substance into his body . . .”

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion then Subsequently Admitted the Excluded Evidence as Same-Transaction Evidence.

One of the officers who saw the pills at the scene thought they were hydrocodone and was going to testify regarding such. The defendant filed a motion to suppress arguing that the officers should not be able to testify to what type of pills they found because the officers were not drug recognition experts. The trial court granted the motion to suppress.

Nonetheless, the following day at trial the pill discussion was brought up again. The state advised the Court that there was video evidence from the scene showing officer Coapland, officer Allred, and Burnett talking about the pills. Specifically, it showed that “Coapland found the pills in Burnett’s jacket, he gave them to Allred, who said that the pills looked like hydrocodone. Allred asked Burnett whether he had a prescription for the medication, and Burnett responded that he did.”

The State argued that the evidence of Burnett’s pill possession should be admitted into evidence as same-transaction contextual evidence. Over Burnett’s same objection the trial court admitted the pill evidence.

Then, when the court submitted the instructions to the jury, it included in the full statutory definition of the legal term “intoxicated,” which included not only intoxication by introduction of alcohol, but also by introduction of a drug (or a combination of alcohol and drugs).  Burnett objected to this definition, arguing that the proper instruction should not include language regarding drug intoxication because there was no evidence produced at trial to indicate that he had ingested any drugs at the time of his arrest.

The Court of Appeals Agreed with the Defendant—Holding that it to be Error to Submit the Entire Statutory Language.

On appeal, Burnett argued that the trial court erred in admitting evidence that he was in possession of hydrocodone and further argued that the trial court erroneously instructed the jury that it could convict him if it found that any substance other than alcohol intoxicated him.

The court of appeals agreed and held that the charging instrument must apply the law to the facts. In support they distinguished the facts in Burnett from those in Ouellette, a 2011 court of criminal appeals case.

In Ouellette, the defendant appeared intoxicated. After her arrest, officers found a drug that she expressly identified that was known to produce the same symptoms of intoxication as alcohol. Although there was no direct evidence that she consumed the drug, there was circumstantial evidence from which a rational juror could have found that she did based on her express identification of the drug and the officer’s testimony that the drug would produce similar symptoms. Thus, the jury charge in Ouellette reflected the law as it applied to the evidence.

The Court of Criminal Appeals Affirmed the COA Judgment and Agreed that the Jury Charge was Erroneous Since it did not Apply the Law to the Facts Produced at Trial.

The State appealed the appellate court reversal and argued that the jury charge should include the entire statutory definition regardless of the evidence presented at trial. More specifically, the State argued that the focus is only on whether the defendant is intoxicated, not the intoxicant itself. In support of this argument, the State referred to Judge Cochran’s dissenting opinion in Gray v. State, 152 S.W.3d 125, 136 (Tex. Crim. App. 2004) (Cochran, J., dissenting).

In response, Burnett argued that while the State only needs to allege that the defendant was “intoxicated” and is permitted to use the language of the entire statutory definition, it would be erroneous to provide the jury with a section of statutory language that is not supported by the evidence at trial. Burnett argued that ruling for the State would allow “such guessing [that] could ensnare thousands of innocent Texans, such as fatigued drivers and those with naturally bad balance, even though they never ingested any substance as required to prove intoxication.” Burnett also claimed that the State misinterpreted Judge Cochran’s dissent and would not apply.

The Court of Criminal Appeals agreed that the State misinterpreted Judge Cochran’s dissent; the dissent discussed pleadings rather than jury charges and thus, was not applicable. Furthermore, the Court declined to follow the State’s argument that in every case the full statutory language should be allowed regardless of evidence. The court reasoned that the trial court is responsible for ensuring the jury instructions set forth the law applicable to the evidence in the case. As such, the jury charge must be tailored to the facts presented during the trial.

The court also noted that a jury will still be permitted to consider whether the defendant is intoxicated by “any other substance” if there is evidence that the defendant ingested a substance that caused intoxication or there is circumstantial evidence for a rational juror to make an inference, like Ouellette.

Here, the Court determined that Burnett only showed signs of intoxication by alcohol—nothing else. The odor of alcohol was present on his breath, he had slurred speech and he failed the field sobriety tests. The fact that police later found pills that may have been hydrocodone was irrelevant because “there was no evidence as to what kind of drug hydrocodone is, whether it can cause intoxicating effects, or whether the symptoms of intoxication Burnett was experiencing were also indicative of intoxication by hydrocodone.” These criteria were the critical elements that were present in Ouellette but not in Burnett’s case. Accordingly, the court held the jury charge in Burnett’s case to be erroneous because it did not apply the law to the evidence presented at trial and it constituted harmful error.

Takeaways…

In any DWI case, if there is no evidence presented at trial that would suggest intoxication by drugs or vice versa by alcohol, then the defense should ask for the statutory language in the jury charge to be limited to only facts produced. Additionally, the mere fact that drugs are found is not enough, by itself, to have such language in the jury charge. If Burnett had not objected to the full statutory definition of intoxication, he could have been finally convicted based on evidence never presented at trial. (In Judge Richardson’s concurring opinion he also notes that there were no objections made to the evidence in Ouellette).

Judge Richardson Concurring Opinion

Presiding Judge Keller Dissenting Opinion

Judge Yeary Dissenting Opinion

Jun 26
Love5
Packingham Social Media Ban for Sex Offenders

SCOTUS Declares Social Media Ban for Sex Offenders Unconstitutional

By Sex Crimes

Packingham Social Media Ban for Sex OffendersIn today’s world Internet access has become virtually unlimited. And, with new technology come new problems. These problems have led the Supreme Court to address the challenge modern day Internet access has created for the First Amendment in the landmark case, Packingham v. North Carolina. In Packingham, the Court was asked to determine whether a North Carolina law, which makes it a felony for a registered sex offender to access a social media-networking site, violates the First Amendment’s free speech clause.

North Carolina Imposed a Social Media Ban for all Registered Sex Offenders

In 2002, Lester Packingham, a 21-year-old student, pled guilty for taking indecent liberties with a child after having sex with a 13-year-old girl. As such, Packingham was required to register as a sex offender. However, in 2010 Packingham posted to his personal Facebook account thanking God after he received a dismissal for a traffic ticket. This post was observed by a police officer and Packingham was ultimately convicted for violating the social media ban for sex offenders. After making it all the way to the United States Supreme Court, Packingham’s conviction has now been overturned.

Supreme Court holds that Banning Sex Offenders from Social Media Violates the First Amendment

In overturning Packingham’s case, the Court ruled the North Carolina law to be an impermissible restriction of lawful speech. The Court has consistently held that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” As such, the Court ruled that one of the most fundamental places to exchange views is cyberspace—particularly social media platforms. Social media has evolved and formed a stage for many topics protected by the First Amendment, including human thought. It has evolved so much so that “seven in ten American adults” now use at least one form of social media. Thus, the Court reasoned that while it may have once been difficult to determine which “places” are important for the exchange of ideas, it is now clear.

The Internet allows people access to vast amounts of information, which people need to thrive in modern society. North Carolina prohibited access to this information in an effort to protect children, but they ended up preventing Packingham from gaining access to large amounts of information — information unlikely to further sex crimes. As a result, the Court agreed that sex crimes involving children are repugnant, but it explained that even a valid government interest cannot escape all constitutional protections. The Court further noted that “[e]ven convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.” Thus, the Court determined that North Carolina did not meet its burden to show why the overly broad law was necessary to serve its purpose of protecting children and subsequently declared the law unconstitutional.

For further analysis, see: Amy Howe, Opinion analysis: Court invalidates ban on social media for sex offenders, SCOTUSblog (Jun. 19, 2017, 1:52 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-invalidates-ban-social-media-sex-offenders/ 

Jun 12
Love4
Texas Cyberbullying Law | David's Law

Texas’ New Cyberbullying Law | Cyberbullying Offense 9/1/17

By Legislative Update

David’s Law | New Cyberbullying Law in Texas

Texas Cyberbullying Law | David's LawOn June 9, 2016, the Governor signed SB 179 into effect—otherwise known as David’s law. David’s law, named after David Molak, a 16 year-old boy who committed suicide after relentless cyberbullying, was created in an effort to punish such reprehensible actions. In 2011, lawmakers added the term “cyberbullying” to the Texas Education Code under the bullying section. However, this provision did not create any legal punishment for cyberbullying. It only required school districts to develop their own policies to prevent and intervene in such cases. David’s law changes this by amending the Education Code regarding bullying to include cyberbullying as a criminal offense.

Full Text of new Cyberbullying Law

What is Bullying?

Bullying is a significant act(s) by one or more students directed at exploiting another student and involves any verbal or written statement, electronic communication, or physical act that results in:

  • physical harm to a student;
  • damaging a student’s property; or,
  • causing a student reasonable fear of harm.

Bullying also occurs when there is ongoing, severe, and persistent statements or physical acts that create an intimidating, threatening or abusive educational environment for a student. Furthermore, cyberbullying includes such conduct that substantially interferes with a student’s education, substantially disrupts school, or infringes the rights of the victim at school.

What is Cyberbullying?

Cyberbullying occurs when a person uses any electronic communication device to engage in any type of bullying described above. Relevant communications include, for example, statements made through social media outlets or text messages.

Where does Bullying/Cyberbullying have to Occur?

David’s law applies to bullying that takes place on school property, during any school-sponsored or school-related activity, or in a vehicle operated by the school district (i.e. a bus). Additionally, David’s law includes cyberbullying that occurs off campus and outside of a school-sponsored or related activity if:

  • it interferes with a student’s educational opportunities; or,
  • substantially disrupts the orderly operation of a classroom, school, or school-sponsored or school-related activity.

What are the School’s Responsibilities?

Schools must install a way for students to report bullying/cyberbullying anonymously. Additionally, upon receiving a report, school officials must report the incident to the alleged victim’s parents within three business days and to the alleged bully’s parents within a reasonable time.

Furthermore, under David’s law a school may, but has no legal obligation to, report conduct constituting assault or harassment to the police. A report may include both the name and the address of each student believed to be involved.
Punishment

Cyberbullying will be classified as a Class B misdemeanor beginning September 1, 2017. However, the offense becomes a Class A misdemeanor, if the offender has been previously convicted of cyberbullying or if the bullying was done to a victim under 18 years-old with the intent that the minor commit suicide or self inflict serious injury to themselves. Additionally, a student charged with cyberbullying can face administrative sanctions such as expulsion or alternative schooling.

A Class B misdemeanor is punishable by a fine not to exceed $2,000 and confinement in jail for a term not to exceed 180 days. A Class A misdemeanor is punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year.

Jun 08
Love2
Texting While Driving Law Texas

Texting While Driving in Texas | Texas’ New Traffic Law

By Traffic Offenses

Texting While Driving Law TexasVirtually every state in America has a statewide law banning the use of cell phones or texting while driving. Until recently, Texas has had minimal restrictions on cell phone usage while driving. Such restrictions include:

  • drivers with learner’s permits are prohibited from using handheld cell phones in the first six months of driving;
  • Drivers under the age of 18 are prohibited from using wireless communications devices;
  • school bus operators are prohibited from using cell phones while driving if children are present; and
  • in school zones, all drivers are prohibited from texting and using handheld devices while driving.

However, after many failed efforts, Texas has finally passed a law banning the use of handheld devices in certain situations, namely texting. On June 6, 2017, Governor Greg Abbott signed HB 62, which makes using a portable wireless communication device (i.e. a cell phone) to read, write, or send an electronic message (i.e. a text) while operating a motor vehicle a misdemeanor offense.

Notice is Required to be Posted by DPS of the New Ban

The Texas Department of Transportation will be required to post signs on interstate and U.S. highways entering the state indicating that texting while driving is prohibited and carries a fine. Additionally, the new law requires that the driver’s license test cover knowledge about the effects of texting while driving or other actions that constitute distracted driving.

What is the Punishment for Texting While Driving in Texas?

Under the new law, the sole offense of “texting while driving” is not an arrestable offense. A driver’s first offense will be punishable by a fine between $25 and $99, and any subsequent offenses will carry a fine between $100 and $200. Additionally, the Department of Motor Vehicles is not authorized to assign points to a driver’s license for a “texting while driving offense.”

However, if at trial for the offense it is shown that the defendant caused the death or serious bodily injury of another person, the offense will become a Class A misdemeanor punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year. Additionally, if the conduct constituting the offense is also a violation of another law, the defendant may be prosecuted under either law, or both.

Possible Defenses to a Texting While Driving Charge:

A driver may have a defense to prosecution if the driver was:

  • not moving;
  • using a hands-free device, including voice-operated technology;
  • reporting illegal activity or summoning emergency help;
  • reading an electronic message that the person reasonably believed concerned an emergency;
  • relaying information to a dispatcher or digital network through a device affixed to the vehicle as part of the driver’s job;
  • activating functions to play music; or
  • using a GPS function.

Additionally, the law does not apply to drivers of authorized emergency or law enforcement vehicles acting in an official capacity or to drivers licensed by the Federal Communications Commission operating a radio frequency device other than a portable wireless communication device.
Furthermore, the law prohibits the search and seizure of a driver’s cell phone unless authorized by another law.

Concerns Regarding HB 62 (Texting While Driving Law)

Supporters of the law believe it will increase safety and reduce distracted driving incidents, while opponents see it as an overreach of the government into citizen’s lives. Some fear the law will allow law enforcement to gain more power to stop citizens by mistaking a person’s legal actions for texting. However, despite these reservations, this law takes effect on September 1, 2017, preempting local ordinances, and applies only to offenses committed on or after that date.

Links to the full text of the bill:

http://www.legis.state.tx.us/tlodocs/85R/billtext/pdf/HB00062F.pdf#navpanes=0
http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=85R&Bill=HB62