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Fort Worth Criminal Defense

Feb29
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The Importance of Reading Statutes in Context

BySex Crimes

Texas Stacking Sentences in Sexual Offenses

Nguyen v. State.

Section 3.03(b)(2)(B) of the Texas Penal Code authorizes consecutive sentences when the State convicts a defendant of multiple sex crimes arising from the same criminal episode. An interesting situation occurred when Appellant was charged in two separate indictments with aggravated sexual assault and sexual assault of two of his daughters. While the initial charges fell under Section 3.03(b)(2)(B), Appellant pled guilty to two counts of injury to a child (not a sex offense). He received a five year deferred adjudication sentence. Five months after he was placed on community supervision, the State filed a motion to revoke based on a violation of the “no contact” condition. The Judge revoked Appellant’s community supervision and sentenced him to 10 years confinement in each of the two cases, to run consecutively. Appellant appealed the sentence, arguing that Section 3.03(b)(2)(B), authorizing consecutive sentences in sex crimes cases, did not apply to his convictions because he had not been “formally” convicted of a sex offense.

The primary language at issue in the case was the portion of Section 3.03(b)(2)(B) that stated:

“(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense.”

The State argues that this provision, by its plain language, permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the defendant was originally charged with qualifying sexual offenses. Appellant argued that because 3.03 (b)(2)(A) excludes any nonsexual offense, the legislature never intended to authorize consecutive sentences for nonsexual offenses.

The Texas Court of Criminal Appeals held that the statutory language of Section 3.03(b)(2)(B) was ambiguous as to the specific issue brought up by Appellant’s case. Finding that the language of the statute was ambiguous, the Court looked to the legislative intent behind passing Section 3.03(b)(2)(B). The Court explained that,

the history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally ‘convicted’ of a sex offense.

This case showed the willingness of the CCA to read a statute as a whole and to look to the legislative intent of the entire section vice a small portion. In the law, as in politics and elsewhere, a sentence or two taken out of context can be a dangerous thing.

The “charged with” language could have been easily misconstrued by isolating only subsection (B) and reading it apart from the rest of Section 3.03. It can also be misconstrued to not only read it in isolation, but to ignore the legislative intent behind the statute in the first place. Like anything, small snippets of statutes can be isolated and taken out of context. The State tried to capitalize on another poorly worded statute but the CCA looked past that argument to determine the meaning of 3.03 as a whole.

Finding that Section 3.03(b)(2)(B) refers only to plea bargain agreements resulting in convictions for child sex offenses, the CCA agreed with the Court of Appeal’s decision to modify the trial court’s judgment and ordered Appellant’s sentences on his two convictions for injury to a child to run concurrently.

Feb14
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Stethoscope on a blue background, symbolizing medical care and defense in legal contexts related to sex crimes.

CCA Holds: Medical Care Defense Not Limited to Medical Personnel

BySex Crimes

Stethoscope on a blue background, symbolizing medical care in legal contexts related to child sexual offenses and defense strategies.Texas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained in Cornet v. State:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.

Feb03
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Prosecutor Post: It’s Not Personal…Really.

ByTrial Advocacy

A Contribution From our Texas prosecutor friend:

I had a discussion with a defense attorney today about the dynamic relationships that develop between prosecutors and defense attorneys.  Relationships that, like it or not, become very intricate in the resolution of criminal cases.  This conversation started after we had finished watching a heated exchange between a different prosecutor and defense attorney.  He started by pointing out how there’s not much to gain by creating a hostile relationship with a prosecutor.  He described his fear of creating problems for future clients because of bad past relationship with a prosecutor.

I explained how prosecutors are aware of that fear and how our goal is to set aside the personal aspect of negotiations and not to punish a defendant on account of who he happened to hire as his defense attorney.  We try and look at the case and defendant separately from the attorney.  He agreed he didn’t feel most prosecutors seek to punish the unfortunate client of a defense attorney who recklessly handles business with the prosecution, but quickly added how subconsciously it might be an underlying factor when a prosecutor decides how he’s going to handle a case.  Again, I stressed we try not to behave that way, but then again, I can’t speak for every prosecutor.

Common sense tells you that honey attracts more bees than vinegar and that pissing someone off on a consistent basis might render less than preferable results when it comes to working something out with that person.  The personal aspect of dealing in an adversarial system is often too hard for some attorneys to set aside.  So, they take things personally.  Negotiations are bound to get heated when you deal with one party protecting something (in this case the liberty of their client) and the other trying to take it away.  And it should!  Criminal cases shouldn’t be taken lightly by either side, but passion doesn’t have to trump professionalism.

There’s not really a how-to on not taking it personal.  Just something you have to practice I suppose.

Sep21
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Videotaped Testimony of Child Sexual Abuse Victims Held Unconstitutional

BySex Crimes

Last week, the Texas Court of Criminal Appeals issued its opinion in Coronado v. State.

[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation…

The case involved a six year-old child sexual abuse victim (who was three years-old when the abuse began) that the trial court determined was “unavailable” to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant.  Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2.  The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask.  The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate.  At trial, the videotaped testimony of the child was played to the jury in lieu of any live testimony by the victim.

The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court’s decision in Crawford v. Washington.  Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation.  The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis.  The CCA, on the other hand, explained:

We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation…There was no “rigorous adversarial testing” of [the child victim’s] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.

The CCA’s reluctance to overturn this case was apparent.  On page 2 of the opinion, Judge Cochran writes, “On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions.”

Judge Hervey concurred.  While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant’s right to confrontation should be balanced with the societal interest in protecting child sexual abuse victims.  She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.

Presiding Judge Keller dissented.  In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case.  She calls this a “close case,” but she would have affirmed.

Sep17
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Discovery Violation…Now What?

ByUncategorized

In State v. Banda, the Third District Court of Appeals (Austin) decided a case at the end of last month addressing an issue regarding a discovery violation by the State.  The opinion addresses a key issue: what does a court do to remedy a discovery violation?  Often, the primary consideration is not whether a violation occurred, but what a court should do about it.

Let’s review the law on discovery:

Brady v. Maryland – A prosecutor must disclose exculpatory evidence if it is material to either guilt or punishment, including impeachment.Brady v. Maryland, 373 U.S. 83 (1963); see also Thomas v. State, 841 S.W. 2d 399 (Tex. Crim. App. 1992) (describing Brady parameters in Texas).

Under the U.S. and Texas Constitutions, Brady breaks down to two duties related to pretrial disclosure of evidence by the State:
1) Disclose all favorable, material evidence in her possession.
2) Preserve and make available to the defendant any favorable, material physical evidence that the accused cannot otherwise obtain and that may be material to his defense.

See also CCP art. 39.14; Whitchurch v State, 650 S.W.2d 422, 425 (Tex. Crim. App. 1983) (no general defense right of discovery in Texas). BUT, see also Nielsen v. State, 836 S.W.2d 245 (Tex. App. – Texarkana 1992, pet. Ref’d) (The prosecution has a duty to disclose exculpatory evidence regardless of whether the defense files a discovery motion requesting the material. But even if the evidence is requested, the State does not have to disclose it unless it is also material to the defense.)
Though a prosecutor is not required to deliver his entire file to defense counsel, a prosecutor’s open file policy is generally sufficient to comply with the prosecutor’s Brady obligation. See United States v. Bagley, 473 U.S. 667, 676 (1985).

As stated above, often the primary consideration for the trial court is not whether a Brady violation occurred, but what a court should do about it.  In Banda, the trial court decided that the State’s failure to comply with a court order on discovery was grounds for the court to dismiss the State’s case with prejudice to refile.  The appellate court did not focus on whether a discovery violation had occurred – it technically had.  The appellate court’s focus was on the fact that the trial court dismissed the State’s case without prejudice as a result of the violation.  The Court found that absent constitutional or statutory authorization a trial court cannot dismiss a prosecution except on the motion of the prosecuting attorney and that the trial court does not have general authority to dismiss the indictment without prejudice in absence of the State’s consent.  State v. Pambeck, 182 S.W.3d 365, 366, 370 ( Tex. Crim. App. 2005); State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997).  In Banda’s case there were no circumstances existing that would allow the court to make such a dismissal (even given the discovery order violation).

Ultimately, the Court held that “failure to comply with court orders on discovery may warrant suppression of the evidence in question, but discovery abuse is not recognized in the Texas Code of Criminal Procedure as a basis for dismissing the case with prejudice. See Tex. Code Crim. Proc. Ann. Art. 39.14 (West Supp. 2010)”. Id. at page 3.

Banda shows defense attorneys that discovery violations are extremely important and can be effective to win a case but only as long as the attack is not misplaced on attempting to get the court to dismiss the case.

Aug30
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Fort Worth Court of Appeals Cheapens the Meaning of “Modus Operandi”

ByJury Trial

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District (Fort Worth Court of Appeals) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

Jul29
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Obscure Texas Law #1 | Use of Laser Pointers

ByJust For Fun

Texas has plenty of laws on the books that are obscure to the average Texan (including lawyers like me).  In an effort to educate the general public (since ignorance is no defense), I have decided to post one obscure Texas law (from the Texas Penal Code) every week, until I run out of (what I consider) obscure laws.  Here’s the first one:

Section 42.13 – Use of Laser Pointers

Under Section 42.13 of the Texas Penal Code, it is a Class C misdemeanor to knowingly point the “light from a laser pointer at a uniformed safety officer, including a peace officer, security guard, firefighter, emergency medical service worker, or other uniformed municipal, state, or federal officer.”

So I’ve never violated this law (to the best of my knowledge), but I am definitely guilty of making the family dog run around in circles chasing a laser light.  Perhaps there is another obscure Texas law that covers that.  We’ll find out in the coming weeks.

May04
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Do You Consent? Do You Consent? Do You Consent?

ByWarrantless Search

Today, the Texas Court of Criminal Appeals released Meekins v. State, a case out of Lubbock County wherein the issue for appellate review was whether that State proved by clear and convincing evidence that Appellant had consented to a search of his vehicle.

At a pre-trial hearing to determine whether the drugs found during the search should be suppressed, the trial court ruled that Appellant’s consent to search was given knowingly and voluntarily. The court, therefore, refused to suppress the evidence. Here’s the evidence on which the trial court based its ruling:

After officers pulled Appellant over for failing to signal a turn, the following exchange occurred between Appellant and the officer while the officer talked to Appellant through the driver’s side window:

Officer: You don’t have anything illegal in the vehicle, no weapons or anything like that?

Appellant: No

Officer: You don’t mind if we take a look?

Appellant: (Inaudible) Look in the car or what?

Officer: Yeah.

Appellant: I don’t have anything.

Officer: Okay. You don’t mind if I look? It’s yes or no, bud.

Appellant: What do you think?

Officer: What do I think?

Appellant: Yeah.

Officer: I’m asking you to look in the car.

Appellant: (Inaudible)

Officer: Don’t reach around, bud, just in case you got a gun.

Appellant: I ain’t got no gun or nothing.

Officer: You don’t mind if we look?

Appellant: I just…(inaudible) That it (inaudible).

Officer: Okay.

Appellant: (Inaudible)

Officer: I’m asking if I can look in the vehicle. It’s yes or no.

Appellant: (Inaudible)

Officer: Is there anything else you might have? You seem a little nervous, you know what I’m saying? You’re making me nervous.

Appellant: I ain’t nervous.

Officer: Okay. Do you have anything illegal in your vehicle?

Appellant: No.

Officer: Okay. Do you mind if I look?

Appellant: I guess.

After that, the officer, believing he has been given consent, ordered Appellant to exit the vehicle. Ultimately the officer found the contraband (marijuana) in Appellant’s pocket.

The 7th District Court of Appeals (Amarillo) reversed the trial court’s ruling, holding that “the State failed to clearly and convincingly prove that Appellant granted the officer positive, unequivocal, and voluntary consent to search his car.”

In an opinion written by Judge Cochran, the CCA now reverses. Upholding the trial court’s original ruling, the CCA relied on the “totality of the circumstances” and the deference given the trial court to make factual. The CCA noted, however, that this was a close case and that if the trial judge had found that the consent was not voluntary, they would have upheld that factual finding as well.

Dissenting, Judge Meyers joined by Judge Price, states:

I certainly do not know what is clear and convincing about appellant’s alleged consent. Although the majority gives lip service to the applicable rule, the majority misapplies it because these facts are anything but clear and convincing.

The dissent goes on the state that because Appellant’s words and actions demonstrate evasiveness and reluctance rather than positive, unequivocal consent, the evidence should have been suppressed.

This case shows how important it is to fight (and win) suppression motions at the trial level. An appellate lawyer can only do so much against the mountain of deference the appellate courts give the original fact finder’s decision. As the CCA noted in this case – if the trial court had gone the other way, they would have held that way too.