News and Insights

Domestic Violence Case Law Update.  Continuous Family Violence.

Except for the military context, you've always heard that a jury verdict must be unanimous, right?  Well, not exactly.

Recently, the Sixth Court of Appeals (Texarkana) held that a jury does not have to unanimously agree upon which assaults occurred in order to convict a defendant for Continuous Family Violence, as long as the jury agrees that the defendant committed at least two assaults within the time allotted by statute. Under section 25.11 of the Texas Penal Code, a person who assaults a family member two or more times within twelve months commits Continuous Family Violence. The relevant statutes provides:

(a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71. 0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

In Hill v. State, the appellant was charged with Continuous Family Violence after the State alleged that the appellant assaulted his girlfriend three times on two different dates within a twelve-month period. The jury returned a guilty verdict, and on appeal, the appellant contended that the trial court erred when it did not instruct the jury that in order to convict, the jury must unanimously agree upon which assaults transpired. Thus, of the possible assaults that may have happened, the appellant argued that some of the jurors cannot find sufficient evidence for one assault and the other jurors find sufficient evidence for another because "it is axiomatic that Texas law requires a unanimous verdict in a felony case."

Nevertheless, the Court rejected this reasoning. The State advocated following the way of the Continuous Sexual Abuse statute and allow jurors to not unanimously agree on which assaults occurred, so long as the jury agrees beyond a reasonable doubt that at least two assaults did occur within twelve months of each other. Adopting this rationale, the Court ultimately held, "In the circumstances of construing the statute under examination here, it is sufficient to allow a jury to select from a menu of possible bad acts and agree that a defendant committed two of them without the concomitant requirement that the jurors be shown to all concur as to which of the acts did occur."

As such, as long as a jury unanimously agrees that a defendant assaulted a family member at least twice within twelve months, it does not need to agree upon which assaults actually occurred.  (Note: this same logic applies to continuous sexual abuse cases as well.)

Jury Trial Sentencing in Texas

Every 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.

DWI Conviction Overturned | Passing on the Shoulder Permitted in Certain Circumstances

In many ways, Texas Court of Criminal Appeals also acts the State's highest traffic court. What follows is a synopsis of Lothrop v. State, wherein the CCA opines on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop, the police stopped Appellant after observing him use the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated (DWI). At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop. Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane of traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

The trial court denied the motion and Appellant pled guilty to DWI. The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that "driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial."

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely. Merely driving on an improved shoulder is not prima facie evidence of an offense. Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred.

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.   So there you have it - your traffic lesson for today from the CCA. You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.

As I'm sure you've noticed by now, specialty courts (drug courts, DWI courts, Mental health courts, reentry courts, etc.) are rapidly becoming the norm in most criminal jurisdictions.  Why the increase in popularity?  Simple.  They work.

The National Association of Drug Court Professionals' website cites the five primary goals these programs are working to achieve.

1) They reduce crime 2) They save money 3) They ensure compliance 4) They combat addiction 5) They restore families

Incarcerating addicts only delays their inevitable addiction cycle.  Specialty courts offer a real, life-changing alternative that not only aid individuals in their battle against addiction, but also improve the crime rates in every community in which they exist.  These specialty courts work to provide intense supervision through the cooperative efforts of local probation offices, prosecutors, defense attorneys, and, most importantly, judges. Read more about drug courts.

If you haven't researched specialty courts in your jurisdiction, I'd highly encourage you to do so immediately.  These programs could offer an incredible opportunity that may not have been available before.  Let's hope specialty courts continue to gain traction, and that more specialty court keep popping up throughout Texas.  It is important to remember that the criminal justice system is not always about punishment, it's also about rehabilitation.

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

1. The temporal proximity of the arrest and the confession;
2. The presence of intervening circumstances; and
3. The purpose and flagrancy of the official misconduct (in making the arrest).

In May of 2012, in State v Mazuca, the Texas Court of Criminal Appeals considered the proper application of the "attenuation of taint doctrine," not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee's driver's license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008. 2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date. 3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA's application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that...

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee's outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee's pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

The opinion in this case seems a logically disconnected from the ultimate outcome. Apparently, some of the judges agree.  Here's what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority's analysis of the weight of the Brown factors may be correct, but the result discounts the trial court's findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee's name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should "afford almost total deference to a trial court's determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses' credibility and demeanor" and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

If you were the subject on an unlawful arrest on a drug crimes case, contact the Fort Worth, Texas drug crimes defense lawyers at Barnett Howard & Williams PLLC today.  (817) 993-9249.