Hernandez Racial Slur Error 2016

Murder Conviction Reversed for Prosecutor’s Use of Racial Slur

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Texas Prosecutor Uses the “N” Word During Closing Argument. Court of Appeals Reverses the Conviction.

Hernandez Racial Slur Error 2016In December of 2014, Appellant Luis Miguel Hernandez was convicted of the murder of Devin Toler, an African-American man. During the trial, Appellant claimed self-defense, arguing that Toler attacked him and that by killing him, he was defending himself from the attack. The prosecution, however, presented evidence that Appellant provoked Toler by his words, some of them racial slurs. The actual words of the alleged racial slurs were never presented to the jury in the testimony of any witness or otherwise. However, during closing argument, the prosecutor said the following:

“What were the words of provocation? I’ll tell you what the words of provocation were. [Appellant] called Devin and his family ‘niggas.’ That’s what it was.”

The defense attorney promptly objected to the prosecutor’s use of the racial slur as it was inflammatory and outside the evidence in the case. Ultimately, (after a heated bench conference) the judge sustained the objection and instructed the jury to disregard the counsel’s comment, but did not specify which counsel or what comment the jury was to disregard. The defense did not move for a mistrial. The jury returned a verdict of guilty and sentenced Appellant to 14 years in prison.

See the majority opinion in Hernandez v. State (2nd Court of Appeals – Fort Worth, 2016)

What is a Proper Jury Argument?

On appeal to the Second Court of Appeals (Fort Worth), the Appellant challenged the judge’s failure to declare a mistrial after the prosecutor’s use of the “N” word. The court explained:

Proper jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) a plea for law enforcement. Generally, error resulting from improper jury argument is subject to a harm analysis.

The appellate court held that not only were the prosecutor’s comments in using the “N” word error, but that the prosecutor’s comments constituted an “incurably prejudicial argument;” one that required a mistrial.

Is the “Incurably Prejudicial Argument” Waived if the Defendant Does Not Move for a Mistrial?

Texas courts have consistently held that to preserve error for an improper argument, the defendant must do 3 things:

  1. Make a timely and specific objection;
  2. Request and instruction to disregard if the objection is sustained; and
  3. Move for a mistrial if the instruction to disregard is granted.

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997)

In this case, the defense satisfied 1 and 2, but did not move for a mistrial. The appellate court was then presented with the issue of whether the improper jury argument objection is waived if the defense does not move for a mistrial.  Texas precedent says the issue can be waived for failure to move for a mistrial. But the court does not find this to be wise.

“Logically, this position makes no sense. An incurably prejudicial argument requires a mistrial. If the trial court does not grant the mistrial, the court has committed error that requires setting aside the conviction and re-trying the case. Respectfully, if the argument is so prejudicial that it has deprived the defendant of a fair trial, the injury is fundamental.”

The court provides further reasoning to depart from precedent, citing the tenuous political atmosphere surrounding race relations in America at the time of the trial.

The impact of the improper statement by the prosecuting attorney must be viewed in the context of the political atmosphere at the time of trial. The trial took place in early December 2014. On February 26, 2012, George Zimmerman, whose mother was from Peru, killed Trayvon Martin. Emotional discussions of Zimmerman’s ethnicity filled news commentary. Other killings made headlines. Among them was the death of Eric Garner while he was selling loose cigarettes in New York on July 17, 2014. The officer who killed him was Daniel Pantaleo. On August 9, 2014, Michael Brown was killed in Ferguson, Missouri. On August 11, 2014, Ezell Ford was killed in Los Angeles by two police officers, one of whom was Hispanic. And on November 23, 2014, twelve-year-old Tamir Rice was killed in Cincinnati, Ohio. Additionally, the Black Lives Matter organization was formed in 2013 in response to the acquittal of George Zimmerman in his trial for the murder of Trayvon Martin and was actively involved in protests nationwide.

With that, the Second Court held that the improper jury argument was not cured (and could not have been cured) by the judge’s “perfunctory” instruction to disregard and that the error was preserved for appeal. The court then reversed the case and remanded back to the trial court.

Dissent Agrees that the Error Was Prejudicial, But Would Not Depart From Precedent

Justice Sudderth dissented. She is not willing to depart from Court of Criminal Appeals’ precedent regarding the formal requirement to move for a mistrial. She writes:

Of all of the words in modern American English usage, including the slang and the vulgar, the “n-word” is of such infamy that it is generally referenced and understood only by its first letter. And with very few exceptions, such racially charged inflammatory language has no place in jury argument.

This is certainly the case when a prosecutor, using that language to secure a conviction, goes outside of the record to introduce it. Therefore, I agree with the majority that the prosecutor’s behavior was improper. It was inexcusable. It cannot be condoned. And the trial judge committed error in permitting it. Nevertheless, because we are constrained by precedent of the court of criminal appeals requiring preservation of this type of error, I am compelled to dissent.

It will be interesting to see whether the Court of Criminal Appeals will stick to their previous precedent or take this opportunity to change the law when it comes to an “incurably prejudicial argument” involving racial slurs.

Husband Wife Privilege Texas Rule 504

Can One Spouse be Forced to Testify Against the Other?

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Can My Spouse be Forced to Testify Against Me in a Criminal Trial in Texas?

Husband Wife Privilege Texas Rule 504Everyone knows (or should know) of the attorney-client privilege which prohibits the calling of an attorney to testify as a witness against his client and protects the attorney-client relationship. But what about the husband-wife relationship? Are spouses afforded any protection from having their spouse testify against them in a criminal trial?

Yes. In Texas there are two “Husband-Wife” privileges that apply to the marital relationship: spousal immunity and the marital communication privilege. Many people are aware that certain privileges arise but often do not know exactly what protections these privileges provide. The following article discusses both of the matrimonial privileges in Texas.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

What is Spousal Immunity? How does Spousal Immunity work in Texas?

Spousal immunity is the privilege that exists in a criminal trial for the defendant’s spouse not to be called as a witness in certain situations.  Tex. R. Evid. 504(b). This privilege applies to spouses that are married to the defendant during trial and are asked to testify as to matters that occurred during the spouse’s marriage to the defendant. The non-defendant spouse holds this privilege; meaning he or she is the one who may invoke the privilege not to testify and it is ultimately his or her decision. Tex. R. Evid. 504(b)(3). Thus, if the spouse wants to voluntarily testify for the State, she may do so regardless of whether the defendant objects to the spouse’s testimony.

Spousal immunity does not stop the defendant from calling their current spouse as a witness. If a defendant chooses to do so the spouse cannot assert this privilege and will be required to testify. With that, if the defendant does not call the spouse and surrounding evidence suggests the spouse could testify to relevant matters the State is allowed to comment about that. 504(b)(2).

Exceptions to Spousal Immunity in Texas

There are two exceptions to spousal immunity in Texas.

  • First, the privilege does not apply in a criminal proceeding in which the defendant has committed against the spouse (e.g. Domestic Violence) or prosecution for bigamy.
  • Second, the privilege does not apply when the spouse is called to testify about matters that occurred before they were married to the defendant.

What is the Texas Marital Communication Privilege?

Under Texas Rule of Evidence 504(a), spouses have the privilege to prevent testimony of certain communications made during the marriage from one spouse to the other spouse.  Unlike the spousal immunity privilege, the marital communication privilege may be invoked by either the defendant or the spouse being called as a witness. Additionally, this privilege survives divorce; meaning it applies whether or not the defendant and the spouse are still married as long as the communications were made while they were married. Tex. R. Evid. 504(a)(2).

This privilege only applies to communications that were intended to be confidential, that is, they were made privately with no intent to disclose to anyone other than the spouse. A communication will still be confidential if someone overheard the conversation if the defendant spouse made the statement without knowledge or intent that the other person would hear the conversation. Basically, the requirement is that the communication made was intended for the spouse’s ears only.

Exceptions to the Marital Communications Privilege in Texas

There are two exceptions to the confidential communications privilege.

  • First, if the communication was made in whole or in part to aid in the commission of a crime the privilege does not apply.
  • Second, the marital communication privilege does not apply in prosecutions for crimes against the defendant’s spouse, any minor child, or a member of the defendant or defendant spouse’s household.

In conclusion, there are certain situations where matters occurring between spouses are kept within the sanctity of the marriage and will not come out in court. However, as you can see these privileges are very specific and it is important to be aware of what exactly is privileged and when such privileges apply.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

Jury Unanimity Aggregate Theft Texas

What is Jury Unanimity for Aggregate Theft Cases?

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Jury Unanimity Aggregate Theft TexasJury unanimity is required in every jury trial, whether it be felony or misdemeanor. This means that the jury must unanimously agree that the State has proven or failed to prove all elements of an offense beyond a reasonable doubt. If a jury cannot reach a unanimous verdict of guilty or not guilty, then the judge will declare a mistrial. With some offenses, however, it can be a little unclear as to what jury unanimity actually requires. This is specifically so with aggregated theft cases.

What Is Aggregate Theft?

Aggregate theft is an offense where two or more thefts were committed “pursuant to one scheme or continuing course of conduct” and the amounts combined determine the grade of the offense. Tex. Penal Code §31.09. Under Section 31.09, aggregate theft may be and often is considered as one offense. Even though it is considered one offense, each individual underlying theft act (where the amounts are aggregated) is considered an element. The Court of Criminal Appeals of Texas has held that for evidence to be sufficient the state must prove beyond a reasonable doubt that the defendant unlawfully appropriated “enough property to meet the aggregated value alleged.” The state is not required to prove each underlying appropriation. However, the Court, until recently has left one question unanswered: Does the jury have to unanimously agree on all underlying theft transactions?  Meaning, if the defendant is alleged to have committed 10 separate theft acts (pursuant to a common scheme), do the jury have to agree on each, or some, or none?

Kent v. State—What is the Jury Unanimity requirement in Aggregate Theft cases?

Until recently there had been no holding by the Court of Criminal Appeals of Texas on whether jurors are required to unanimously agree on each underlying transaction that is used to comprise an aggregated theft charge. In Kent v. State the Court finally addressed this exact question.

See the full CCA opinion in Kent..

Kent was a mortgage broker indicted for theft from four complainants in an amount exceeding $200,000. The thefts were alleged to have occurred over a period of time and pursuant to one scheme or continuing course of conduct. At trial, the defense requested a paragraph in the jury instructions that outlined each individual theft allegation and called for a unanimous verdict on each. The trial judge denied the defense request to include this paragraph.  The jury found Kent guilty of aggregate theft. On appeal, the Kent complained that the trial judge erred by refusing to include his requested paragraph in the jury instructions.  The appellate court reversed and remanded the case for a new trial, holding that the jury should have been instructed that they must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge.

The State appealed to the Court of Criminal Appeals of Texas to determine whether this was correct. Reversing the lower courts holding, the CCA held that for an aggregated-theft case,

unanimity requires that the jurors agree that the threshold amount has been reached and that all the elements are proven for each specific instance of theft that the individual juror believes to have occurred. Every instance of theft need not be unanimously agreed upon by the jury.

In other words, it is only required that the jurors unanimously agree that two or more thefts pursuant to a common scheme, when combined, exceeded the threshold amount beyond a reasonable doubt, not that they unanimously agree on exactly which thefts were comprised to reach that amount.

Takeaway: When facing aggregated theft charges it is important to know that the jury does not have to unanimously agree that each underlying theft alleged in the indictment has been proven beyond a reasonable doubt. Bottom line, it’s the aggregated amount that matters. This is only a brief explanation of how the jury unanimity requirement plays a role in a case and if you should have any more questions contact our Fort Worth criminal defense team.

Judge Reform Unauthorized Verdict

When the Jury Verdict is Not Authorized by Law

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What Should the Trial Judge Do When the Jury Returns an Unauthorized Verdict?

Judge Reform Unauthorized VerdictAt the trial of Reginald Nixon for burglary of a habitation and evading arrest, the jury returned a guilty verdict and sentence of 7 years for the burglary and 9 years for the evading. However, the verdict form contained a handwritten note that read: “*To be served consecutively, not concurrently.” A consecutive sentence would mean that the two verdicts are added together to make the actual prison term 16 years. The jury had previously asked the judge whether the sentences would run concurrently and the judge refused to answer them, advising them to simply continue with their deliberations. Without an answer to their question, the jury took the matter into their own hands.

The problem with the jury’s verdict of 7 years and 9 years to run consecutively is that it is not an authorized sentence. Under Texas law, the sentences in Nixon’s case were required to run concurrently rather than consecutively. As a result, the trial judge refused to accept the sentences and reform them to run concurrently (as he was urged to do by Nixon’s counsel). Instead, the judge sent the jury back with a note advising them that the sentences cannot run consecutively. The jury soon returned with new verdicts of 16 years confinement for each offense, which the judge accepted.

Nixon appealed, again urging that the trial judge erred by failing to accept and reform the original jury verdicts. The 2nd Court of Appeals (Fort Worth) affirmed the trial court’s judgments and “reasoned that while the judge may have had the authority to reform the verdict under Article 37.10, he also had the authority to refuse the verdict and return the jury to their deliberations pursuant to this Court’s opinion in Muniz v. State [573, S.W.2d 792 (Tex. Crim. App. 1978)].”

The Texas Court of Criminal Appeals granted review and now reverses the holding of the 2nd Court of Appeals. The CCA highlighted the changes that were made in 1985 when the legislature enacted Section 37.10(b) of the Texas Code of Criminal Procedure. This change distinguished between “informal” and “unauthorized” verdicts. For unauthorized verdicts, Section 37.10(b) provides:

If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.

CCA explained that the lower court’s reliance on Muniz was misplaced since Section 37.10(b) was not enacted at the time Muniz was decided. Further, the verdict form in Muniz was incomplete, unlike the verdict in this case, which was complete but contained an unauthorized portion.

The CCA concluded by holding:

Although the terms of confinement were 45 authorized punishments, the attempted cumulation was punishment unauthorized by law. Article 37.10(b)’s plain language is clear that, when the jury assesses punishment and returns a verdict assessing punishment that is both authorized and unauthorized by law, “the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.” Accordingly, we hold that the judge erred in failing to accept the initial punishment verdicts and omit the jury’s unauthorized attempt to stack the terms of confinement.

Judge Alcala and Judge Yeary dissented.

Making a Murderer | Fort Worth Criminal Defense Attorney

Making a Murderer: The Power of the Jury

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Can a Single Juror Make a Difference? Ask Steven Avery.

Making a Murderer | Fort Worth Criminal Defense AttorneyWe, like many of you, have been sucked into the sad, frustrating, and very real tale of the murder trial of Steven Avery in Manitowoc County, Wisconsin brought forth in the Netflix documentary “Making a Murderer.” While much has been made of Steven Avery’s guilt or innocence, the coerced confession from his nephew Brandon Dassey (see full confession transcript HERE), and the possible foul play of the law enforcement in Manitowoc County, one major key to the case has been largely overlooked – the power of the jury. Without a guilty verdict from the jury, there is no frenzy over a viral documentary and certainly Steven Avery is a free man.

Recently, the filmmakers have reported to the press that a member of the jury now admits that he or she believed Avery was not guilty. This juror, wishing to remain anonymous, claims to have changed their vote to “guilty” after succumbing to fear and pressure. In reality, the juror believed, and still believes, that Avery was framed for murder. Speaking to the filmmakers, the juror said “I’m the reason the justice system failed.” Is the juror right?

Criminal Verdicts in Texas Must Be Unanimous. Every Juror Vote Counts.

Jury deliberations are secret, so only the jurors themselves could ever say for sure exactly why they arrive at a certain verdict for a case. In a criminal case, a jury verdict must be unanimous, which ensures that each juror’s vote is important and not diluted in a simple majority. If this one juror had summoned the courage to stay true to their “not guilty” vote, it would have caused a mistrial. A mistrial forces authorities to make the difficult decision of whether or not to retry the accused. Who knows what would have happened in a hypothetical second trial of Steven Avery.

For years, this juror has shouldered guilt from this trial, proving that the decisions juries are asked to make are indeed difficult ones. The next time you are on a jury, take a lesson from this case. Stand up for what you believe in and refuse to cave to pressure or fear. Do not be overpowered by the person with the loudest voice in the jury room. Remember, your vote holds the power of incarceration or freedom.

I hope we didn’t spoil the documentary for you, but if you haven’t watched it, this post does not even scratch the surface of the things you will see in this series.  We suggest you watch it and consider the case for yourself.  If nothing else, you’ll see that there are two sides to every story and you’ll understand to importance of having a fair and conscientious jury in a criminal trial.

Winning By Losing in a Jury Trial

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Let me make an admission…sometimes we lose at trial. There, I said it. We don’t win every case. Sometimes the evidence is not in our favor. Sometimes the State is able to prove every element of the alleged offense. And we typically know that going into it.

It begs the question, “Why take the case to a jury trial if you suspect you are going to lose?” Here’s why…because in many situations, going to trial is the only way to get a good result.

For instance, we had a client that was charged with a low level misdemeanor offense. The State was offering a plea bargain of 18 months probation, a $1,250 fine, and numerous classes in exchange for a guilty plea. We considered this offer to be too steep in relation to the alleged offense. Our client agreed. But the State was not willing to budge on the offer. So we set it for trial.

After a hard fought trial, the jury came back with a guilty verdict, which is what we suspected all along. Then we went to the judge for punishment. The State continued to recommend 18 months probation and a $1250 fine. The judge, however, awarded our client 2 days of labor detail and a $750 fine. Two short days later, the entire ordeal was but a fleeting memory for our client. No probation. No monthly reporting. No random drug tests. No classes.

We would have never received such a low punishment offer from the State. We also would have never received such a low sentence from the judge if we hadn’t gone to trial and filled her in on the extenuating and mitigating circumstances of the case and our client.

In criminal defense, a moral victory is still a victory and sometimes you win by losing.

Fort Worth Jury Trial

Appeals Court Reverses Conviction in 11 Person Jury Trial

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12 Persons Required to Serve on Texas Felony Jury Trial – Fort Worth Trial Lawyers

Fort Worth Jury Trial LawyersA felony jury trial in Texas requires 12 jurors (with limited exceptions). The defense can waive that requirement under certain circumstances, and jurors can be excused under certain circumstances. But generally, a felony jury panel must have 12. Below, we discuss a case in Denton County where the jury started with 12 and then went to 11 because a juror could not understand the English language well enough to serve.

Stillwell v. State – Opinion issued by the 2nd District Court of Appeals (Fort Worth) on May 28, 2015

Appellant, Eben Stilwell was convicted in the 367th District Court in Denton County by an 11-person jury of indecency with a child and sentenced to 12 years in prison. A jury of 12 was originally empaneled but after three days of testimony, one of the jurors came forward and informed the court that he was having difficulty understanding the proceedings. The juror primarily spoke Spanish and was having difficulty following the proceedings because they were in English.

During the conversation between the judge and the juror, the juror repeatedly said “I understand a little bit” or “I don’t understand.” Both the defense and state agreed that the juror did not adequately understand the English language and was not completely following what was going on in the courtroom.

The prosecution and defense disagreed, however, as to the legal basis for the juror’s removal. The state urged that juror be deemed “disabled” under Tex.Code Crim. Proc. Ann. art. 36.29(a), which would allow the trial to proceed with 11 jurors over defense objection. The defense argued that because the juror was never able to serve, he was disqualified and a trial using 11 jurors could only proceed with the defendant’s consent. The defendant did not consent to continuing the trial with only 11 jurors. The trial court followed that state’s recommendation and dismissed the juror as disabled, continuing the trial with only 11 jurors.

The 2nd District Court of Appeals (Fort Worth), Justice Sudderth writing the opinion for the court, held that the court could have allowed the juror to remain on the jury because the right to have him excluded due to his inability to understand English had been forfeited. It is always the attorneys‘ duty to determine that capability and fitness of the jurors during voir dire. Neither party inquired as to ability to understand the English language.

But, once the court determined that the juror should be dismissed, consent of the defendant was required to proceed with 11 jurors. Because appellant did not agree to proceed with 11 jurors, a mistrial was required. The lower court was reversed.

Fort Worth Criminal Trial Lawyers

If you or a loved one have a criminal case in Fort Worth, you need to seek the best criminal defense lawyer to represent you and protect your rights at trial. Call our attorneys today for a Free Consultation of your case.

Fort Worth Texas Jury Trial Criminal Law

When the Jury’s Sentence is Outside the Punishment Range

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Jury Trial Sentencing in Texas

Fort Worth Texas Jury Trial Criminal LawEvery level of criminal offense in Texas has a corresponding punishment range for the jury to consider.  With the exception of enhancements or other minor differences, the Texas punishment ranges are as follows:

  • Class B Misdemeanor = 0-180 days County Jail and $0-$2,000 fine
  • Class A Misdemeanor = 0-365 days County Jail and $0-$4,000 fine
  • State Jail Felony = 6 months – 2 years State Jail and $0-$10,000 fine
  • 3rd Degree Felony = 2-10 years Prison and $0-$10,000 fine
  • 2nd Degree Felony = 2-20 years Prison and $0-$10,000 fine
  • 1st Degree Felony = 5-99 years Prison and $0-$10,000 fine

A jury verdict on sentencing should be within the punishment range to the particular offense.  But what happens if the jury deviates from the punishment range?

The Court of Appeals for the Seventh District (Amarillo) recently considered this scenario in Melton v. State. In Melton, the defendant was facing 2-20 years and up to a $10,000 fine if convicted.  The jury returned a sentence of 15 years in prison and a $15,000 fine.  Of course, the $15,000 fine was outside the punishment range.

The court of appeals wrestled with the option of remanding the case back to the trial court for a new sentencing hearing on BOTH the term of confinement and the fine or the fine only.  Ultimately, the court reasoned:

Article 37.10(b) contemplates that a jury can assess more than one type of punishment, to-wit: “punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense . . . .” Because this statutory provision contemplates the situation where the period of confinement is authorized by law and the amount of the fine is not authorized by law, we conclude the Legislature intended to allow the reformation of a judgment as to the issue of the fine only.

Accordingly, the COA remanded the case back to the trial court for a new sentencing hearing on the fine only.  The term of confinement was sustained.

You’ll Get a Jury Trial and Like It!

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Spalding“I want a hamburger…no, a cheeseburger.”

“Spalding!”

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty to receive a lesser sentence or probation.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.

However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the judge.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant’s choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made “in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state.” Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.

Best Fort Worth Criminal defense attorneys

Accomodating Public Attendance at a Prison Trial

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Lilly v. State

Best Fort Worth Criminal defense attorneysThe Sixth Amendment of the United States Constitution guarantees an accused the right to a public trial in all criminal prosecutions.

Appellant Conrad Lilly, was charged with two counts of assault on a public servant while he was in prison.  The trial court sua sponte convened his trial in the prison-chapel courtroom in lieu of the local courthouse.  Appellant objected to his case being tried in the prison chapel and moved for a change of venue, arguing that his 6th Amendment right to a public trial was violated because “prisons are not open to the public and are more like military zones than public places.”  The trial court denied his change of venue request and the 11th Court of Appeals (Eastland) affirmed.

To support his claim, appellant pointed out the following facts to show that, as applied in his case, the prison chapel trial violated his constitutional rights:

  1. The prison is protected by double razor fences, locked metal doors, and high-security procedures;
  2. Only people listed on an inmate-defendant’s approved visitor list could enter the branch courthouse to attend proceedings (only 10 names can appear on that list and the names can only be modified once every 6 months);
  3. Media and other members of the public would be prohibited from entering unless TDCJ officials in Huntsville preapproved the media’s request;
  4. People attempting to attend the proceeding could be denied entrance if they wore offensive clothing; and
  5. Unaccompanied minors and people released from confinement within the last two years are prohibited from entering the prison at all.

In this case, “the court of appeals held that Appellant’s trial was not closed to the public because there was no evidence that anyone was ‘dissuaded from attempting’ to attend, and no one was actually prohibited from attending his trial.”  The Texas Court of Criminal Appeals disagreed with this analysis.  The focus of the inquiry, the CCA explained, “is not whether the defendant can show that someone was actually excluded.  Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation ‘to take every reasonable measure to accommodate public attendance at criminal trial.'”

[E]ven though many of the individual admittance policies in this case would not, standing alone, necessarily amount to a per se closure, the cumulative effect of the Unit’s policies undermines our confidence that every reasonable measure was taken to accommodate public attendance at Appellant’s trial.

Having found that Appellant’s trial was indeed closed to the public, the CCA further held that the trial court failed to make findings of fact on the record that justified closing Appellant’s trial.  Because Appellant’s 6th Amendment right to a public trial was violated, the CCA reversed the judgments of the court of appeals and the trial court, and remanded the case for a new trial.

The CCA refrained from considering or commenting on whether prison trials are inherently violative of the 6th Amendment, noting that there could be occasions where a “public trial” is held in a prison.