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Organized Retail Theft Lang

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

By | Theft

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yeary, J., filed a dissenting opinion.

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.

Video Footage Evidence Fowler

Is a Video of a Video Admissible in a Criminal Trial?

By | Evidence

Video Footage Evidence FowlerTechnology has dramatically changed the landscape of criminal law procedure, and ultimately criminal convictions, in Texas. Updated DNA testing exonerates the wrongly-accused, while incriminating the guilty. Traffic cameras are commonplace on Main Street, clocking speeding motorists who are subject to fines and penalties—and bad feelings. Recently in Arkansas, recordings from Amazon’s Echo artificial intelligence device have been used by prosecutors as evidence in a murder trial. As digital evidence evolves rapidly, so must the evidentiary rules supporting admissibility. In this late-breaking case, the Texas Court of Criminal Appeals considers one man’s conviction for theft and burglary vis a vis the admissibility of “picture only” video footage.

State v. Fowler (Tex. Crim. App. 2018)

Fresh Tire Marks Lead to a Suspicious Dollar Store Receipt

Law enforcement was called to the scene of a burglary at a business in Royse City, Texas. Police discovered disarray; cut wires, mangled cables, and bolt cutters were seized as evidence, but no suspects were apprehended. One month later, police were called to investigate the same scene for another burglary. This time, ATV tracks led police to a nearby field where they found a receipt from the local Family Dollar store mere feet away from a stolen ATV. Even more curious were the items listed on the receipt, which included duct tape and utility knives. Police used the date, time stamp, and the address on the receipt to request video footage from inside the store. Employees at Family Dollar provided investigators with time and date-stamped footage that corresponded with the receipt found at the scene of the crime. Police recorded the incriminating footage on their body cameras, as recording from a VHS cassette proved time-consuming and clunky. Although the footage was non-audio “picture only,” it showed a suspect purchasing the items that were reflected on the receipt found at the crime scene. Further, the footage time and date stamps placed the individual inside of Family Dollar at a certain time, on a particular day.

Leveraging all of the information learned from the receipts, the fact that the ATV was stolen, and the video footage, law enforcement soon had a suspect—Jamel Fowler. Fowler was convicted of theft of property for stealing the ATV and was sentenced by a jury to two years imprisonment. Fowler appealed. On appeal, the court reversed the trial court’s conviction and sentencing, holding that “trial court committed reversible error by admitting an unauthenticated videotape exhibit into evidence.” The State of Texas appealed to the Court of Criminal Appeals to determine whether prosecutors may prove authenticity of video footage without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device. In other words, is the video of a video at Family Dollar admissible as evidence against Fowler? In order to answer that question, the CCA looked to Texas Rule of Evidence 901.

Texas Rule of Evidence 901 and the Authenticity Requirement

Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence. Typically, to satisfy the requirement of authenticating evidence, the person offering the evidence must produce items or data sufficient to support a finding that the item or data is what the proponent claims it is.

“Authenticity may be established with evidence of distinctive characteristics and the like, which include [t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”

TEX. R. EVID. 901(b)(4); see Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). Conclusive proof of authenticity before allowing admission of disputed evidence is not required.

Applying Rule 901 to a “Picture Only” Video of a Video

May the proponent of a video sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device? The Court answers that, yes, it is possible, given the facts.

Here, the Court acknowledged the argument of the defense in the appeal: “The court of appeals’s point is well-taken—the State could have done more [to prove up the evidence presented]. However, even though the most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene, that is not the only way.”

The Court reasoned that video recordings without audio are treated as photographs and are properly authenticated when it can be proven that the images accurately represent the scene in question and are relevant to a disputed issue. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). The Court stated that (1) the officer’s in-person request of the manager of the Family Dollar store to pull the surveillance video on a certain date at a certain time; (2) that the distinctive characteristic that there is a date and time stamp on the videotape; and (3) the fact that the date and time on the videotape correspond to the date and time on the receipt that was found within three feet of the ATV; (4) the fact that the videotape pulled by the manager reveals Fowler at the store on that date at that time purchasing the items listed on the receipt that was found near the stolen ATV, were enough, together, to authenticate the video. The video was sufficiently authenticated to be admissible into evidence. The evidence strongly pointed to Fowler and, accordingly, his conviction was upheld.

Violation Protective Order Texas Wagner

What is “Threatening or Harassing” for a Protective Order Violation?

By | Domestic Violence

Violation Protective Order Texas WagnerFamily violence stories permeate the news, as domestic violence-related cases continue to fill both Texas criminal and family court dockets alike. The Texas Council On Family Violence reports that one in three Texans will experience domestic violence in their lifetimes. (Texas Council On Family Violence, accessed 23 April 2018.) In 2016, the National Domestic Violence Hotline received over 17,000 outcries for help. A societal scourge that is found across all racial, socio-economic, financial, educational and religious stratifications, domestic violence continues to wreck families and ruin the lives of victims. What protections exist in Texas for victims? What behaviors rise to the level to trigger a protective order issued by the courts? What happens when a protective order is violated? In Wagner v. State, the Texas Court of Criminal Appeals recently considered whether numerous texts and emails can rise to the level of harassing behavior and violate a protective order.

Read the case here: Wagner v State (Tex. Crim. App 2018)

Domestic Violence Leads to a Protective Order for Victim

One month after separating from her abusive husband, LW was granted an Order of Protection from a district court. Based on the testimony presented, the district court found that not only had family violence occurred, it was likely to occur again in the foreseeable future. In her affidavit to the court, LW described an array of abusive behaviors including yelling and screaming, breaking objects around the house, destroying a car with a hammer, locking LW out of her own house, among other “strange and violent behavior.”

The Protective Order restricted her ex-spouse, Paul-Henri Wagner, from a laundry-list of communications and activities ranging from direct communication by phone to physical presence within 500 feet of LW’s residence. Specifically, Paul-Henri was prohibited from communication made to LW in a “threatening or harassing manner.” One week after the protective order was issued, Paul-Henri and LW sent text messages and email to each other, regarding financial and logistical obligations to their children. Eventually, LW told Paul-Henri to communicate via email only, asking him to “respect her wishes” by not sending her text messages. Shortly thereafter, Paul-Henri began sending emails professing his longing for reconciliation. LW told him to stop. Paul-Henri started sending text messages again—a dozen in fact. Soon the communication became a mix of texts and emails professing his undying love for LW. After a few days of the messages, LW told Paul-Henri to stop sending texts. Paul-Henri barraged LW with emails begging for reconciliation. Paul-Henri even went so far as to drag church members to contact LW for reconciliation.

Based on his incessant communications with LW, Paul-Henri was charged with a Class A misdemeanor Violation of a Protective Order for violating Texas Penal Code Section 25.07(a)(2), which provides (in relevant part:

(a) A person commits an offense if, in violation of a condition of bond set in a family violence case related to the safety of the victim, the person knowingly or intentionally:
(2) communicates:
(A) directly with a protected individual or a member of the family or household in a threatening or harassing manner;

Ultimately, a jury convicted Paul-Henri for violating the protective order, finding that he communicated with LW “in a harassing manner.”

Wagner Appeals the Violation of Protective Order Conviction | Void for Vagueness Argument

On direct appeal, Paul-Henri challenged the constitutionality of the Texas Penal Code, stating that §25.07(a)(2)(A) is overbroad and vague. The court of appeals rejected Paul-Henri’s argument, stating:

(1) that the term “harass” can be defined using a standard dictionary,
(2) that harassment is not protected speech under the First Amendment, and
(3) that the statute is not vague because Paul-Henri either knew or should have known that his repeated communications with LW would eventually pester her.

Paul-Henri then appealed to the Texas Court of Criminal Appeals, which granted his petition for discretionary review to determine the constitutionality of §25.07(a)(2)(A).

When do Communications Become “Harassing” Under the Law? | The Court of Criminal Appeals Weighs In

So when do multiple emails and texts become “harassment” in violation of a protective order language or the Penal Code (or do we even know)? The CCA held that the Penal Code was not unconstitutionally vague on this point and explained that:

“a person communicates in a harassing manner if the…method by which he communicates…would persistently disturb, bother continually, or pester another person…[Such behavior] necessarily requires multiple events of harassing communication…[and would be] troubling [to] someone with frequent…requests or interruptions.”

Here, Paul-Henri repeatedly contacted LW, even after she demanded that he stop. The court reasoned that the average person, with average intelligence, would conclude that his behavior was bothersome, and that he should have stopped. However, Paul-Henri did not stop his efforts to contact his victim. Furthermore, added the CCA, “the First Amendment does not prohibit a court from imposing reasonable restrictions on an abuser’s speech for the protection of his victim.” For those who have protective orders restricting communication, yes, multiple texts and emails may rise to the level of “harassing” behavior in Texas. Those who have been served protective orders need to understand the restrictions placed upon them in their orders and abide accordingly.

Family and intimate partner violence follows escalating patterns of behavior that are predictable and preventable. Understanding the facts about domestic violence is the first step in supporting victims in their safety planning and in holding abusers accountable for their actions.

Additonal Notice for Suppression Hearing

No Additional Notice Required for Suppression Hearing on Trial Date

By | Trial Advocacy

Texas Court of Criminal Appeals Determines That There Needs to be No Additional Notice Provided to the State When Holding a Suppression Hearing On the Day of a Trial

Additonal Notice for Suppression HearingThe Court of Criminal Appeals recently handed down a decision affirming a trial court judge’s decision to hold a suppression hearing on the day the trial was set, but before voir dire or any trial proceedings occurred. State v. Velasquez, 2018 Tex. Crim. App. LEXIS 52. After a prior motion for continuance by the State was granted, the defense submitted 16 pretrial motions, including a motion to suppress evidence. On the day of the trial, both sides announced ready, and the judge chose to hold the suppression hearing before jury selection. The State objected because they were not provided with proper notice of the hearing (and because their witnesses were not present to testify for the motions hearing before jury selection), but the objection was overruled and the judge ruled in favor of the defendant. The Fourth Court of Appeals reversed the trial judge’s decision, but that was overturned by the Court of Criminal Appeals, affirming the trial court ruling on the motion.

Texas Code of Criminal Procedure Article 28.01

The State based its appeal on Article 28.01 of the Texas Code of Criminal Procedure. This statute enables the judge to schedule pretrial hearings (Section 1), requires notice of these hearings to be provided to the defense (Section 2), and gives the required means of providing notice (Section 3). The State claimed that it was not provided adequate notice of the pretrial suppression hearing under this statute, and therefore, should have been given an opportunity to delay the hearing and trial.

Section 1

Article 28.01(1) allows for the court to set a pretrial hearing before it is set for a trial upon the merits. The Court of Criminal Appeals recognized that this creates two separate settings and that the court must provide adequate notice for any new and separate hearing. Included in this list of settings is a suppression hearing in Section 1(6). The court also acknowledges that many suppression hearings are done as a part of trial, and that parties should be capable of arguing for or against suppression at the time of the trial. In this case, the State was not prepared for the suppression hearing and refused to argue, forcing the court to rule in favor of the defendant.

Section 2

Article 28.01(2) requires the court to provide notice of at least 10 days to the defendant in order to allow the defendant enough time to respond and raise any additional preliminary matters. The State argues that it is entitled to notice, however, the Court points out that the statute only provides for notice given to the defendant. The Court decided that the State has no right to additional notice for a pretrial motion that will be handled on the day of the trial, so long as notice of the trial day setting was given to the State.

Section 3

Article 28.01(3) establishes the acceptable methods for providing notice to the defendant. Notice can be given through an announcement in open court in front of the defendant and his/her attorney, personal service to defendant, or by mail.

Court of Criminal Appeals’ Conclusion

Ultimately, the CCA held that it was appropriate for the trial court to hold a suppression hearing on the same day as trial, despite not giving additional notice to the State. The notice of the trial setting was sufficient to make the State aware of the possibility of a suppression hearing, and the State should have been ready for that hearing. The court sees a distinction between a pretrial setting and handling a matter just before the trial begins. Because suppression hearings are often held in conjunction with trials, this action was proper. Article 28.01 does not apply in this instance because there was no new, separate setting, and the party complaining about notice was the State. The Court understands that there could be improvements to the notice requirements, but as a member of the judicial branch, they are not empowered to make those changes.

Can Police Stop You for Driving on the Improved Shoulder of the Road?

By | Drug Crimes

State v. Cortez (Tex. Crim. App. 2018)

Jose Cortez was stopped because a Texas State Trooper allegedly observed him driving on an “improved shoulder” in violation of Texas Transportation Code § 545.058. The officer testified that Cortez touched the white “fog” line of the road and crossed it twice. During the ensuing stop, the trooper searched Cortez’s vehicle and found drugs. Cortez moved to suppress the stop (and the search) arguing that the officer lacked probable cause to initiate the stop.

What is Driving on the Improved Shoulder?

The Texas Transportation Code also defines “improved shoulder” as a “paved shoulder” with the “shoulder” being the “portion of the highway that is:

  •  adjacent to the roadway;
  • designed or ordinarily used for parking;
  • distinguished from the roadway by different design, construction, or marking; and
  • not intended for normal vehicular travel.”

The Texas Transportation Code §545.058 prohibits drivers from driving on the shoulder unless it is necessary and 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.”

Court Suppressed the Traffic Stop Because Driving on the Shoulder Did Not Violate Any Laws

In this case, the trial court determined, after careful review of dashcam footage and officer testimony, that Cortez did not appear to touch the fog line, and that even if he did, that was not a violation of the law. The courts also reasoned that if Cortez did cross the line, he was doing so to let the officer pass and to exit the highway, both reasons justified by the statute. The court of appeals affirmed the trial court’s suppression of the stop. The Texas Court of Criminal Appeals agreed and affirmed the lower court’s ruling.

What Does This Mean for Texas Drivers?

First, it is not illegal to touch the white line of the shoulder under Texas Transportation Code § 545.058. If you are pulled over for this, the courts have determined this is not a violation of the law and does not provide a reasonable basis for an officer to pull you over and search your vehicle.

Second, if you do cross the white line, that is not necessarily a violation. If one of the acceptable reasons above is present, then it is permissible to cross the shoulder line and the police will not have a reasonable basis for stopping you and should not stop you or search your vehicle.

Overall, you should pay close attention when you are driving. But the courts have acknowledged that it is nearly impossible to drive in a perfectly straight line. The police do not automatically have a reasonable basis to stop you if you cross the white line, and they have NO basis for stopping you if you merely touch it. However, as we have always said, if you are stopped, be polite, be courteous, and do not consent to any searches.

NOTE: Presiding Judge Keller dissented in this case and would hold that driving on the white fog line does constitute driving on the improved shoulder in violation of the transportation code.

Lee v State Continuous Sexual Abuse Texas 2017

Can an Out-of-State Conviction Be Used to Establish “Continuous” Abuse?

By | Sex Crimes

Texas Court of Criminal Appeals Holds That An Out-of-State Conviction Cannot Be Used to Establish “Continuous Sexual Abuse” Under Texas Law

Lee v State Continuous Sexual Abuse Texas 2017The Court of Criminal Appeals recently handed down an opinion regarding the use of an out-of-state act to support a conviction in Texas. The issue faced by the Court was whether the commission of an out-of-state aggravated sexual assault could support a conviction for continuous sexual abuse of a child under Texas law.

Lee v. State (Tex. Ct. Crim. App. 2017)

The Facts—The Trial Court Found Defendant Guilty of Continuous Sexual Abuse of a Child

In this case, Ronald Lee (Defendant) was convicted of continuous sexual assault of a child and the jury assessed a life sentence. During trial, evidence showed that Defendant committed aggravated sexual assault against his young stepdaughter twice, once in New Jersey and once in Texas. Both assaults were temporally separated by at least 30 days.

Texas Penal Code Section 21.02 prohibits the commission of two or more acts of sexual abuse over a specified time. Although committed in two separate states, the trial court permitted the evidence of both sexual assaults in New Jersey and Texas in order to convict Defendant.

The Court of Appeals Affirmed the Conviction, Holding that the Evidence was Legally Sufficient to Support the Conviction

On appeal, Defendant claimed that the evidence presented—the alleged act in New Jersey—was insufficient to support his conviction in Texas. The court of appeals held that because Defendant was charged and convicted under Texas Penal Code Section 21.01 for continuous sexual abuse, Texas has jurisdiction if part of the prohibited conduct element occurred in Texas. Further, the court determined that the location of the sexual abuse was not an element of the offense; thus, the State’s only obligation was to prove that the court of prosecution had venue—proper jurisdiction. As a result, because one of the alleged acts of sexual abuse occurred in Taylor County, the court of appeals said that the evidence was sufficient to prove venue.

The Court of Criminal Appeals Reforms the Judgment to a Lesser-Included Offense Conviction, Holding the Evidence was Legally Insufficient to Support the Original Conviction

Defendant appealed the appellate court’s decision to affirm his conviction. He argued that the alleged act of abuse in New Jersey was not sufficient proof required under the Texas Penal Code, which requires two or more violations of penal code sections. Each of these required offenses must be a violation of Texas law. Texas only has jurisdiction over an offense if either an action element or result element of the offense occurs inside the state. Because “act of sexual abuse” requires an act that is a violation of Texas law, Defendant’s act in New Jersey may not be considered one of the required offenses for a conviction under Section 21.02. The Court of Criminal Appeals determined that Texas had jurisdiction of continuous sexual abuse of a child, but the evidence in this case was insufficient to support the conviction because one of the acts was not a violation of Texas law.

When an appellate court finds that the evidence was insufficient to support a charged offense, but the jury found the defendant guilty of a lesser offense supported by sufficient evidence, then the appellate court must reform the judgment to reflect the lesser-included offense and remand for new punishment. In this case, the Court of Criminal Appeals concluded that the jury found Defendant guilty of aggravated sexual assault, which was the lesser-included offense, and remanded the case for a punishment hearing.

Judge Yeary’s Concurring Opinion

Self-Defense Jury Charge Texas

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

By | Self-Defense

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See also the Gamino Dissenting Opinion