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13th COA

Sep 30
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Self-Defense and Reckless Offenses

By Self-Defense

Under Chapter 9 of the Texas Penal Code, self-defense is provided as a justification to the offense of murder (among others).  Chapter 9 makes clear that if a fact-finder believes a defendant’s actions are justified, the fact-finder may not convict for an offense based on those self-defense actions.  In essence, a defendant that pleads self-defense is telling the fact-finder that he intentionally performed certain actions in order to protect himself against the unlawful actions of another.  So…if the defendant intentionally performed the self-defensive actions, can self-defense be applied to an offense like manslaughter that requires “reckless” conduct vice intentional?

In Alonzo v. State, the 13th District Court of Appeals (Corpus Christie) “believed it is illogical for a defendant to argue self-defense when charged with an offense whose requisite mental state is recklessness.”  The Texas Court of Criminal Appeals, however, disagrees, explaining that “there is nothing in Penal Code Section 2.03 or Chapter 9 that limits justification defenses to intentional or knowing crimes, nor do we have a reason to infer such a limitation.” The CCA notes that limiting self-defense to only intentional or knowing crimes could encourage prosecutors to charge manslaughter (a reckless offense) vice murder when there is a self-defense issue, because self-defense would be inapplicable.

Judge Womack explains that “by arguing self-defense, a defendant is arguing that his actions were justified, and therefore he did not act recklessly.” So really, it’s just another way to disprove the charged offense.

Of course, a defendant cannot argue self-defense in the face of a murder charge and then at the same time request a lesser-included instruction on manslaughter. The CCA made sure not to disrupt prior caselaw holding such. But the overarching takeaway from Alonzo is that a defendant that is acquitted of a murder charged based on self-defense CANNOT be convicted of the LIO of manslaughter.

The CCA reversed the decision of the 13th Court and remanded the case for a harm analysis.  Presiding Judge Keller concurred. Alonzo Concurrence

Dec 22
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Civil Penalties and Double Jeopardy

By Double Jeopardy

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

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

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

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

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