Confrontation Clause Violation When Accuser Does Not Appear at Trial

By | Confrontation Clause

Tarrant County Trial Court Admits Testimony in Violation of the Confrontation Clause

The Second Court of Appeals recently released a memorandum opinion, which reversed a defendant’s conviction due to a confrontation clause violation. The issue was whether the trial court (Criminal District Court Number 1, Tarrant County) erred in allowing an officer to testify about certain statements the alleged victim made regarding a prior assault allegation.

McDowell v. State—2nd Court of Appeals (2018)

The Facts—Defendant Was Convicted for Felony Domestic Violence

On August 21, 2016, officers were alerted to a domestic disturbance in progress. When officers arrived at the scene they made contact with the victim and the victim’s friend who had reported the disturbance. While talking with the two females, officers noticed multiple bruises on the victim and learned that the suspect (i.e. Defendant), who had allegedly assaulted the victim, was still inside the home. Officers subsequently entered the residence and arrested Defendant.

At trial, dash-cam video showing the accusations made by the two females was admitted. In addition, one of the officers testified to additional statements made by the victim suggesting that the defendant had a history of violence. These additional statements, however, were not included in the dash cam video. Defendant objected to these statements under Crawford because the victim did not appear at trial. Nonetheless, the trial court allowed the out-of-court statements to be admitted over objection.

In addition to the officer’s testimony regarding the hearsay statements, the jury heard from two other witnesses about the cycle of domestic violence. The State then referenced this testimony in relation to Defendant’s history of domestic violence during closing arguments. As a result, Defendant was convicted. Defendant later appealed his conviction arguing that the trial court erred when it allowed the officer to testify to the victim’s statements in violation of the confrontation clause of the 6th Amendment.

Court of Appeals Reverses and Remands Case—Holding the Trial Court Erred in Admitting the Officer’s Testimony

Generally, the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial. In determining whether certain statements were testimonial in nature, “the Court looks to see whether circumstances were present at the time the statements were made that would indicate the existence of an ongoing emergency.” If such circumstances existed, the statements are admissible.

Here, the victim did not appear at trial. As such, the Court of Appeals attempted to analyze whether the victim’s statements were testimonial in nature by determining whether they were made during the ongoing emergency. However, the Court was unable to do so because there was no evidence from the State regarding when these statements were made. The Court concluded that without knowing the timing at which the statements were made, there was no way to determine the existence of an ongoing emergency. The Court explained that once there is an objection to the admission of evidence on confrontation grounds the burden shifts to the State. Here, the State was silent in regard to the confrontation objection. And, without the State providing more evidence, the Court could not conclude that the statements were nontestimonial. Accordingly, the Court held that the trial court erred in admitting the statements.

The Court then conducted a harm analysis to determine whether the error impacted the jury’s verdict, which would require a reversal. In making its determination, the Court noted that the majority of the officer’s testimony was based on the inadmissible statements. These statements portrayed a history of violence rather than just one instance. Further, the other witnesses’ testimony hinged on these inadmissible statements. Thus, because the inadmissible statements were a crucial part in establishing the elements of the offense, the Court could not say beyond a reasonable doubt that the trial court’s error did not contribute to Defendant’s conviction and, therefore, a reversal was required.

Christmas Holiday Arrests Texas

Top 5 Reasons for Arrests During the Christmas Holiday Season

By | Criminal Defense

Christmas Holiday Arrests TexasWhen you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 6 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year’s season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the “five finger discount” for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Airport Contraband (Guns and Drugs)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year’s. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed. These mostly consist of:

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests and airport drug arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year’s parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We’re Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

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.

stealing presents Christmas theft package

Don’t Be a Grinch: Punishments for Christmas Package Theft in Texas

By | Theft

stealing presents Christmas theft packageThroughout the year, package thefts occur on a fairly regular basis. But, as Christmas draws near and package delivery increases, so too do the thefts. While packages left on doorsteps and out in the open may seem to be easy targets for thieves, the consequences of getting caught are rarely considered. Would-be porch pirates should certainly think through their intended capers as many houses are equipped with doorbell cameras these days that capture clear video of any movement at or near the doorway.

What Can Happen to Individuals Who Steal Packages?

Grinchy thieves can face stiff penalties for stealing packages. In Texas, theft is classified by the amount of property that is stolen. Depending on the amount of the items stolen, a person caught stealing packages can face anywhere from a Class C misdemeanor punishable by a fine of up to $500 up to a First Degree Felony facing 99 years or life in the penitentiary. The latter would require someone stealing an item worth more than $300,000. While this may be unlikely, a thief wouldn’t know what he or she is stealing until he opens up that box. In addition, if committed within the same criminal episode, the aggregate amount of the items stolen could increase the punishment ranges for the offense as well.

What Happens When Multiple Individuals Act as a Team to Steal Packages?

The consequences of people acting in a team to steal packages can increase the acts to the offense of Engaging in Organized Criminal Activity. In Texas, a person commits the offense of Engaging in Organized Criminal Activity if with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit theft. Tex. Penal Code 71.02. This increases the punishment one category higher than the offense originally committed. Most often, these types of cases are filed as 3rd degree felonies which carry a range of punishment of between 2-10 years in prison and up to a $10,000 fine.

Punishments for package theft can be harsh. While a person may be stealing property worth only a few dollars, they may also be stealing property worth thousands. The potential punishment a person faces for package theft may not deter thieves but there are certain other things that citizens can do to prevent these acts from occurring.

How to Prevent Package Thefts

The primary means by which package thefts are being prevented are with the increasing use of video surveillance. Individuals looking to steal packages off of front porches are becoming more and more aware of doorbell cameras and other small home surveillance cameras. The increased media coverage of these incidents and the increased capture of thieves by way of theses surveillance methods is enhancing deterrent efforts.  Amazon has also begun testing out a service that allows delivery drivers to leave packages inside your home.

Despite the fact that security cameras are gaining in popularity (and the media reports on a regular basis of people being caught because of them), package thefts have not been eliminated. There are still those individuals that choose to ignore the possibility of getting caught and the potential consequences. And, for those folks, maybe it would help to reflect on the words of The Grinch, “Maybe Christmas doesn’t come from a store. Maybe Christmas…perhaps…means a little bit more!”

But for those individuals who persist and ignore the warnings and advice – and reflections from the Grinch – the BHW phone line is always open – just don’t say we never told you so!

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.

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.

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.

Pretext Phone Call Texas Sexual Assault

Pretext Phone Calls in Sexual Assault Investigations

By | Sex Crimes

Pretext Phone Call Texas Sexual AssaultDid you ever get the feeling like someone is recording your conversation? Texas is a one party consent state meaning your conversations can be recorded and listened to by third parties as long as one party to that conversation consents. In sexual assault investigations, especially where the victim knows the suspect, investigators often use recorded phone calls between the suspect and the complaining witness of the alleged assault. These recorded calls are called “pretext” phone calls. Not only will these phone calls be used to build a case against a suspect but might also be used in court against the suspect.

What is a Pretext Phone Call?

A pretext phone call is a tool used by police officers in the early stages of investigation, especially in sexual assault investigations. It is a tape recorded phone call between the victim and the suspect made by the victim or a close friend of the victim. The phone calls will be made under the supervision of police officers and most preferably the lead investigator or detective. The victim will be provided with all of the equipment necessary to record the phone call. Additionally, the victim will be given direction by the officers on the time of day or night to call the suspect, what type of questions to ask the suspect, and what to prepare for. The victim will be told to ask questions in certain ways that are more likely to solicit an incriminating response instead of just going full speed ahead with the “Why did you rape me?” question, which, for good reason, will cause the suspect to shut down or become defensive stating they did no such thing. An example of a question a victim might told to ask is “Why did you have sex with me after I pushed you way and told you to stop?”

The purpose of pretext phone calls is to, hopefully, obtain an incriminating statement by the suspect. The statements made by the suspect will be used to build the case against the suspect by corroborating information that the victim has told the police officers and help make victim testimony more credible in front of a jury.

Pretext Phone Calls—Used in Drug or Alcohol Related Sexual Offenses and Where the Victim and Suspect Know Each other

Pretext phone calls are often utilized in cases where the victim and suspect know each other. This is because the victim will already have the suspects phone number and vice versa or the victim can come up with a creative way for how they got the suspect’s number, i.e. “I got your number from John Doe, our mutual friend.” Also, they can be particularly helpful in drug and alcohol related sexual assault cases where they knew each other, even if only acquaintances. In such an instance, the victim will be directed to ask questions such as, “You knew I was out of it and didn’t know what was going on, but you had sex with me anyway. Why?”.

When Can Pretext Phone Calls Be Made Under Texas Law?

Preferably, pretext phone calls should be made before the suspect knows there is an investigation against him. For legality purposes, pretext phone calls must be made before a suspects Sixth Amendment right to counsel attaches. Rubalco v. State, 424 S.W.3d 560. The Sixth Amendment right to counsel attaches “at the first appearance before a judicial officer at which the defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” Id.

Thus, if there are no Sixth Amendment issues, pretext phone calls will likely be admissible against the suspect in trial. Id.

Be Aware That Your Phone Conversations Might Be Used Against You

Being in the state of Texas we should all be aware that every phone conversation we have can legally be recorded but you should be especially aware if the conversation gets serious. If you have any “hunch” that an investigation against you might be underway for an alleged sexual assault, contact our experienced attorneys today to learn your rights during these investigations.

Driving Around Barricade Crime Texas

Is Driving Around a Water Barricade a Criminal Offense?

By | Criminal Defense

Rules of the Road During Flood Season in Texas

Driving Around Barricade Crime TexasFor four years in a row, Texas has experienced significant flooding due to unusual amounts of rainfall. Many people have lost their lives in cars that were swept away in rushing water and many houses have been ruined by flooding across the state.  First responders are on high alert and have been involved in numerous high water rescues.

One story made the news in 2016 when a man was rescued after his car entered a flooded roadway and was filled with water.  Johnson County had to use a drone to fly overhead and locate the man and then emergency personnel executed a rescue.  But what made this story different was what happened to the man after he was rescued.  Johnson County Sheriff’s slapped handcuffs on the man and arrested him for driving around a barricade.

Driving Around a Water Barricade is a Class B Misdemeanor in Texas

Section 472.022 of the Texas Transportation Code governs “OBEYING WARNING SIGNS AND BARRICADES” and provides (in relevant part):

(a) A person commits an offense if the person:
(1) disobeys the instructions, signals, warnings, or markings of a warning sign; or
(2) drives around a barricade.
(d)(2) if a person commits an offense under Subsection (a) where a warning sign or barricade has been placed because water is over any portion of a road, street, or highway, the offense is a Class B misdemeanor.

In Texas, the punishment range for a Class B Misdemeanor is 0-180 days in jail and a fine not to exceed $2,000.

While arrests after a water rescue are not the norm, this certainly provides another reason not to drive around a high water barricade. You would think that the potential danger to life and property would be enough, but sometimes folks need a little more motivation. Johnson County has given us that.

BHW offer two annual scholarships - one for a Military Veteran Law Student, the other for a Military Dependent Undergraduate Student. See who won in 2017!

2018 BHW Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2018 Scholarship Awards

BHW offer two annual scholarships - one for a Military Veteran Law Student, the other for a Military Dependent Undergraduate Student. See who won in 2017!This was the third year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, we decided to that the scholarships should be connected to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received many applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2018 Winner – Military Veteran Law Student Scholarship

The winner of the 2016 Military Veteran Law Student Scholarship is:

GREGG STARR

Gregg Starr is a Army veteran that served as an Infantry Officer in Operation Enduring Freedom. Mr. Starr will be attending Northwestern Pritzker School of Law in Chicago, Illinois. Congratulations Gregg Starr. Best wishes as you continue toward your law degree.

2018 Winner – Military Dependent Scholarship

The winner of the 2016 Military Dependent Undergraduate Scholarship is:

ELENA POLINSKI

Elena Polinski is the daughter of a retired United State Marine Master Sergeant.  Ms. Polinski will be attending Coastal Carolina University in Conway, South Carolina and is pursuing a degree in Marine Biology. Congratulations Elena! Best wishes as you pursue your dreams.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship