Tag

Jury Trial Archives | Fort Worth Criminal Defense Attorneys and Personal Injury Lawyers

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.

Juvenile Trial Adult Trial Texas

Key Differences Between Juvenile and Adult Criminal Trials in Texas

By | Criminal Defense, Juvenile

Juvenile Trial Adult Trial TexasThe juvenile justice system is a hybrid system. Juvenile proceedings are technically civil in nature, but they incorporate many elements from the criminal system. The reason for this separate system is to teach children that they will be held responsible for their actions without labeling them as criminals. The differences between adult and juvenile trials is a direct result of this difference in systems.

Terminology

One of the most noticeable distinctions between adult and juvenile trials is in terminology. Juveniles accused of crimes are called respondents, not defendants. Juries do not decide whether a respondent is guilty. Instead, they decide whether it is true or not true that he engaged in delinquent conduct.

Participants

In Tarrant County, the participants that you will see sitting in the courtroom during a juvenile trial are not the same as in an adult case. In addition to the judge, prosecutor, defense attorney, juvenile, court reporter, and jury, there are a couple other participants in juvenile cases. A parent or guardian of the respondent is required to be present during all proceedings. The Tarrant County juvenile judge also requires an intake probation officer to be present anytime the juvenile is in court.

Procedures

For the most part, the procedures in an adult trial and a juvenile trial in Tarrant County are similar. The same rules of evidence apply. A juvenile respondent has the same rights during a trial as an adult defendant has. The trials in the two systems follow the same general order, as well.

There are a few significant differences, however. First, and probably most important, is the contrast in who makes punishment decisions in the trials. In adult cases, a defendant can choose whether a judge or jury determines punishment. However, in juvenile cases, a respondent only has this choice in determinate sentence cases. In all other cases, a judge will determine the punishment, if any.

Another difference is the judge’s charge to the jury. The jury charge in a juvenile case is a civil charge with criminal language included in it. It is typically longer than a standard criminal charge in an adult case. The jury’s verdict form is also a bit different. In adult cases, the verdict form asks the jury to write guilty or not guilty. In juvenile trials, as mentioned earlier, the jury determines true or not true that the respondent engaged in delinquent conduct.

Disposition/Punishment Phase

In adult criminal trials, if a defendant is found guilty, the case moves into the punishment phase. In juvenile cases, that next phase is called the dispositional hearing. This is another area in which a juvenile trial differs from adult trials in Tarrant County.

If the jury is assessing punishment in an adult case, it generally happens almost immediately after a verdict of guilty is returned. If the defendant chooses the judge to assess punishment, the hearing is usually scheduled for a later date.

In the juvenile justice system, most of the time, the respondent does not get to choose who determines disposition. The judge will make the vast majority of these disposition decisions. This means that the dispositional hearing will usually be held a few weeks after the trial. Unlike in adult cases, a social history report on the respondent must be prepared by the intake probation officer prior to the dispositional hearing taking place. This report will be considered by the judge in assessing the appropriate disposition.

Practical Differences

The last big discrepancy between adult and juvenile cases has to do with the practical effect that these cases have on the person accused. The juvenile system emphasizes rehabilitation instead of punishment. Therefore, juvenile dispositions do not have the same long-term ramifications that adult punishments have. Typically, they are limited in length due to the age limits imposed by the system. In Tarrant County, the juvenile judge will consider probation in each case in which it is appropriate to consider.

There are a lot of differences between adult and juvenile trials. The main reason for this is because these trials are part of two separate and distinct systems. The juvenile system is a hybrid, combining parts of the civil and criminal systems into one. While there are many similarities between the two, this article highlights the main distinctions between the two.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings.

Hernandez Racial Slur Error 2016

Murder Conviction Reversed for Prosecutor’s Use of Racial Slur

By | Jury Trial, Trial Advocacy

Texas Prosecutor Uses the “N” Word During Closing Argument. Court of Appeals Reverses the Conviction.

Hernandez Racial Slur Error 2016In December of 2014, Appellant Luis Miguel Hernandez was convicted of the murder of Devin Toler, an African-American man. During the trial, Appellant claimed self-defense, arguing that Toler attacked him and that by killing him, he was defending himself from the attack. The prosecution, however, presented evidence that Appellant provoked Toler by his words, some of them racial slurs. The actual words of the alleged racial slurs were never presented to the jury in the testimony of any witness or otherwise. However, during closing argument, the prosecutor said the following:

“What were the words of provocation? I’ll tell you what the words of provocation were. [Appellant] called Devin and his family ‘niggas.’ That’s what it was.”

The defense attorney promptly objected to the prosecutor’s use of the racial slur as it was inflammatory and outside the evidence in the case. Ultimately, (after a heated bench conference) the judge sustained the objection and instructed the jury to disregard the counsel’s comment, but did not specify which counsel or what comment the jury was to disregard. The defense did not move for a mistrial. The jury returned a verdict of guilty and sentenced Appellant to 14 years in prison.

See the majority opinion in Hernandez v. State (2nd Court of Appeals – Fort Worth, 2016)

What is a Proper Jury Argument?

On appeal to the Second Court of Appeals (Fort Worth), the Appellant challenged the judge’s failure to declare a mistrial after the prosecutor’s use of the “N” word. The court explained:

Proper jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) a plea for law enforcement. Generally, error resulting from improper jury argument is subject to a harm analysis.

The appellate court held that not only were the prosecutor’s comments in using the “N” word error, but that the prosecutor’s comments constituted an “incurably prejudicial argument;” one that required a mistrial.

Is the “Incurably Prejudicial Argument” Waived if the Defendant Does Not Move for a Mistrial?

Texas courts have consistently held that to preserve error for an improper argument, the defendant must do 3 things:

  1. Make a timely and specific objection;
  2. Request and instruction to disregard if the objection is sustained; and
  3. Move for a mistrial if the instruction to disregard is granted.

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997)

In this case, the defense satisfied 1 and 2, but did not move for a mistrial. The appellate court was then presented with the issue of whether the improper jury argument objection is waived if the defense does not move for a mistrial.  Texas precedent says the issue can be waived for failure to move for a mistrial. But the court does not find this to be wise.

“Logically, this position makes no sense. An incurably prejudicial argument requires a mistrial. If the trial court does not grant the mistrial, the court has committed error that requires setting aside the conviction and re-trying the case. Respectfully, if the argument is so prejudicial that it has deprived the defendant of a fair trial, the injury is fundamental.”

The court provides further reasoning to depart from precedent, citing the tenuous political atmosphere surrounding race relations in America at the time of the trial.

The impact of the improper statement by the prosecuting attorney must be viewed in the context of the political atmosphere at the time of trial. The trial took place in early December 2014. On February 26, 2012, George Zimmerman, whose mother was from Peru, killed Trayvon Martin. Emotional discussions of Zimmerman’s ethnicity filled news commentary. Other killings made headlines. Among them was the death of Eric Garner while he was selling loose cigarettes in New York on July 17, 2014. The officer who killed him was Daniel Pantaleo. On August 9, 2014, Michael Brown was killed in Ferguson, Missouri. On August 11, 2014, Ezell Ford was killed in Los Angeles by two police officers, one of whom was Hispanic. And on November 23, 2014, twelve-year-old Tamir Rice was killed in Cincinnati, Ohio. Additionally, the Black Lives Matter organization was formed in 2013 in response to the acquittal of George Zimmerman in his trial for the murder of Trayvon Martin and was actively involved in protests nationwide.

With that, the Second Court held that the improper jury argument was not cured (and could not have been cured) by the judge’s “perfunctory” instruction to disregard and that the error was preserved for appeal. The court then reversed the case and remanded back to the trial court.

Dissent Agrees that the Error Was Prejudicial, But Would Not Depart From Precedent

Justice Sudderth dissented. She is not willing to depart from Court of Criminal Appeals’ precedent regarding the formal requirement to move for a mistrial. She writes:

Of all of the words in modern American English usage, including the slang and the vulgar, the “n-word” is of such infamy that it is generally referenced and understood only by its first letter. And with very few exceptions, such racially charged inflammatory language has no place in jury argument.

This is certainly the case when a prosecutor, using that language to secure a conviction, goes outside of the record to introduce it. Therefore, I agree with the majority that the prosecutor’s behavior was improper. It was inexcusable. It cannot be condoned. And the trial judge committed error in permitting it. Nevertheless, because we are constrained by precedent of the court of criminal appeals requiring preservation of this type of error, I am compelled to dissent.

It will be interesting to see whether the Court of Criminal Appeals will stick to their previous precedent or take this opportunity to change the law when it comes to an “incurably prejudicial argument” involving racial slurs.

Husband Wife Privilege Texas Rule 504

Can One Spouse be Forced to Testify Against the Other?

By | Criminal Defense, Jury Trial

Can My Spouse be Forced to Testify Against Me in a Criminal Trial in Texas?

Husband Wife Privilege Texas Rule 504Everyone knows (or should know) of the attorney-client privilege which prohibits the calling of an attorney to testify as a witness against his client and protects the attorney-client relationship. But what about the husband-wife relationship? Are spouses afforded any protection from having their spouse testify against them in a criminal trial?

Yes. In Texas there are two “Husband-Wife” privileges that apply to the marital relationship: spousal immunity and the marital communication privilege. Many people are aware that certain privileges arise but often do not know exactly what protections these privileges provide. The following article discusses both of the matrimonial privileges in Texas.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

What is Spousal Immunity? How does Spousal Immunity work in Texas?

Spousal immunity is the privilege that exists in a criminal trial for the defendant’s spouse not to be called as a witness in certain situations.  Tex. R. Evid. 504(b). This privilege applies to spouses that are married to the defendant during trial and are asked to testify as to matters that occurred during the spouse’s marriage to the defendant. The non-defendant spouse holds this privilege; meaning he or she is the one who may invoke the privilege not to testify and it is ultimately his or her decision. Tex. R. Evid. 504(b)(3). Thus, if the spouse wants to voluntarily testify for the State, she may do so regardless of whether the defendant objects to the spouse’s testimony.

Spousal immunity does not stop the defendant from calling their current spouse as a witness. If a defendant chooses to do so the spouse cannot assert this privilege and will be required to testify. With that, if the defendant does not call the spouse and surrounding evidence suggests the spouse could testify to relevant matters the State is allowed to comment about that. 504(b)(2).

Exceptions to Spousal Immunity in Texas

There are two exceptions to spousal immunity in Texas.

  • First, the privilege does not apply in a criminal proceeding in which the defendant has committed against the spouse (e.g. Domestic Violence) or prosecution for bigamy.
  • Second, the privilege does not apply when the spouse is called to testify about matters that occurred before they were married to the defendant.

What is the Texas Marital Communication Privilege?

Under Texas Rule of Evidence 504(a), spouses have the privilege to prevent testimony of certain communications made during the marriage from one spouse to the other spouse.  Unlike the spousal immunity privilege, the marital communication privilege may be invoked by either the defendant or the spouse being called as a witness. Additionally, this privilege survives divorce; meaning it applies whether or not the defendant and the spouse are still married as long as the communications were made while they were married. Tex. R. Evid. 504(a)(2).

This privilege only applies to communications that were intended to be confidential, that is, they were made privately with no intent to disclose to anyone other than the spouse. A communication will still be confidential if someone overheard the conversation if the defendant spouse made the statement without knowledge or intent that the other person would hear the conversation. Basically, the requirement is that the communication made was intended for the spouse’s ears only.

Exceptions to the Marital Communications Privilege in Texas

There are two exceptions to the confidential communications privilege.

  • First, if the communication was made in whole or in part to aid in the commission of a crime the privilege does not apply.
  • Second, the marital communication privilege does not apply in prosecutions for crimes against the defendant’s spouse, any minor child, or a member of the defendant or defendant spouse’s household.

In conclusion, there are certain situations where matters occurring between spouses are kept within the sanctity of the marriage and will not come out in court. However, as you can see these privileges are very specific and it is important to be aware of what exactly is privileged and when such privileges apply.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

Making a Murderer | Fort Worth Criminal Defense Attorney

Making a Murderer: The Power of the Jury

By | Jury Trial

Can a Single Juror Make a Difference? Ask Steven Avery.

Making a Murderer | Fort Worth Criminal Defense AttorneyWe, like many of you, have been sucked into the sad, frustrating, and very real tale of the murder trial of Steven Avery in Manitowoc County, Wisconsin brought forth in the Netflix documentary “Making a Murderer.” While much has been made of Steven Avery’s guilt or innocence, the coerced confession from his nephew Brandon Dassey (see full confession transcript HERE), and the possible foul play of the law enforcement in Manitowoc County, one major key to the case has been largely overlooked – the power of the jury. Without a guilty verdict from the jury, there is no frenzy over a viral documentary and certainly Steven Avery is a free man.

Recently, the filmmakers have reported to the press that a member of the jury now admits that he or she believed Avery was not guilty. This juror, wishing to remain anonymous, claims to have changed their vote to “guilty” after succumbing to fear and pressure. In reality, the juror believed, and still believes, that Avery was framed for murder. Speaking to the filmmakers, the juror said “I’m the reason the justice system failed.” Is the juror right?

Criminal Verdicts in Texas Must Be Unanimous. Every Juror Vote Counts.

Jury deliberations are secret, so only the jurors themselves could ever say for sure exactly why they arrive at a certain verdict for a case. In a criminal case, a jury verdict must be unanimous, which ensures that each juror’s vote is important and not diluted in a simple majority. If this one juror had summoned the courage to stay true to their “not guilty” vote, it would have caused a mistrial. A mistrial forces authorities to make the difficult decision of whether or not to retry the accused. Who knows what would have happened in a hypothetical second trial of Steven Avery.

For years, this juror has shouldered guilt from this trial, proving that the decisions juries are asked to make are indeed difficult ones. The next time you are on a jury, take a lesson from this case. Stand up for what you believe in and refuse to cave to pressure or fear. Do not be overpowered by the person with the loudest voice in the jury room. Remember, your vote holds the power of incarceration or freedom.

I hope we didn’t spoil the documentary for you, but if you haven’t watched it, this post does not even scratch the surface of the things you will see in this series.  We suggest you watch it and consider the case for yourself.  If nothing else, you’ll see that there are two sides to every story and you’ll understand to importance of having a fair and conscientious jury in a criminal trial.

Vincent Bugliosi

Vincent Bugliosi’s Advice on Cross-Examination and Asking “Why”

By | Trial Advocacy

Renowned Trial Lawyer, Vincent Bugliosi, Explains One of His Theories About Cross-Examination

Vincent BugliosiIn 2011, I had the privilege of escorting the late Mr. Vincent Bugliosi around Marine Corps Base Camp Pendleton, as he was the guest speaker at a trial advocacy conference my office organized.  Mr. Bugliosi, 76 years old, was best known as the prosecutor that put Charles Manson away.  He was also a renowned true crime author, writing such books as Helter Skelter, And the Sea Will Tell, ‘Till Death Us Do Part, and Outrage.  He would tell you, however, that his proudest moment was his victory over Gerry Spence in the mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy.  Other than this mock trial, Gerry Spence boasts a perfect trial record.

One of the things about which Mr. Bugliosi spoke was cross-examination.  He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action.  Lawyers are warned that they should never allow a witness to explain themselves on cross.  Well, Mr. Bugliosi did not exactly agree with that maxim.  Here’s what he had to say on the subject:

Even if I do not ask “why,” the lawyer who called the witness, if alert, will do so on redirect.  The witness has then often had a court recess or perhaps overnight to think up the very best answer to the “why” question.  I would much rather force the witness to answer on cross, not giving him extra time to fabricate.

Although both lawyers can avoid asking the “why” question and, as in some other situations, “save for final argument” the implications of the witness’ testimony, by that late point in the trial the witness’ reason for his improbable act is a matter of competing speculations by the lawyers, not the court record.

The “why” question, of course, can be a dangerous one, but I feel this is so only if the lawyer hasn’t first blocked off possible and anticipated escape hatches.  Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who cave under pressure of the first or second good question, are as doughty and elusive as all hell.  When all but trapped, and at the brink of a public, courtroom humiliation, human beings seem to secrete a type of mental adrenaline that gets their minds working extremely fast, and well.  So the witness a lawyer faces on the stand, for some curious reason, is almost inherently formidable.  But a witness can’t go somewhere when he has nowhere to go.

If I feel a witness if lying, a technique I frequently employ is to first elicit answers from him on preliminary matters (blocking off all escape hatches), answers which, when totaled up, show he would be expected to take a certain course of action.  The witness having committed himself by his answers, I then ask him what course he in fact took (which is not the course he would be expected to take), and follow this up with the “why” question.  If time after time a witness is unable to satisfactorily justify conduct which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect.

Mr. Bugliosi made sure to caveat that we should never ask the “why” question unless all possible escape hatches have been blocked off.  He was truly an outstanding speaker on this and many more topics.  His true crime books are excellent and are highly recommended for all criminal trial lawyers out there.  Vincent Bugliosi passed away on June 6, 2015.

Winning By Losing in a Jury Trial

By | Jury Trial

Let me make an admission…sometimes we lose at trial. There, I said it. We don’t win every case. Sometimes the evidence is not in our favor. Sometimes the State is able to prove every element of the alleged offense. And we typically know that going into it.

It begs the question, “Why take the case to a jury trial if you suspect you are going to lose?” Here’s why…because in many situations, going to trial is the only way to get a good result.

For instance, we had a client that was charged with a low level misdemeanor offense. The State was offering a plea bargain of 18 months probation, a $1,250 fine, and numerous classes in exchange for a guilty plea. We considered this offer to be too steep in relation to the alleged offense. Our client agreed. But the State was not willing to budge on the offer. So we set it for trial.

After a hard fought trial, the jury came back with a guilty verdict, which is what we suspected all along. Then we went to the judge for punishment. The State continued to recommend 18 months probation and a $1250 fine. The judge, however, awarded our client 2 days of labor detail and a $750 fine. Two short days later, the entire ordeal was but a fleeting memory for our client. No probation. No monthly reporting. No random drug tests. No classes.

We would have never received such a low punishment offer from the State. We also would have never received such a low sentence from the judge if we hadn’t gone to trial and filled her in on the extenuating and mitigating circumstances of the case and our client.

In criminal defense, a moral victory is still a victory and sometimes you win by losing.

Fort Worth Jury Trial

Appeals Court Reverses Conviction in 11 Person Jury Trial

By | Jury Trial

12 Persons Required to Serve on Texas Felony Jury Trial – Fort Worth Trial Lawyers

Fort Worth Jury Trial LawyersA felony jury trial in Texas requires 12 jurors (with limited exceptions). The defense can waive that requirement under certain circumstances, and jurors can be excused under certain circumstances. But generally, a felony jury panel must have 12. Below, we discuss a case in Denton County where the jury started with 12 and then went to 11 because a juror could not understand the English language well enough to serve.

Stillwell v. State – Opinion issued by the 2nd District Court of Appeals (Fort Worth) on May 28, 2015

Appellant, Eben Stilwell was convicted in the 367th District Court in Denton County by an 11-person jury of indecency with a child and sentenced to 12 years in prison. A jury of 12 was originally empaneled but after three days of testimony, one of the jurors came forward and informed the court that he was having difficulty understanding the proceedings. The juror primarily spoke Spanish and was having difficulty following the proceedings because they were in English.

During the conversation between the judge and the juror, the juror repeatedly said “I understand a little bit” or “I don’t understand.” Both the defense and state agreed that the juror did not adequately understand the English language and was not completely following what was going on in the courtroom.

The prosecution and defense disagreed, however, as to the legal basis for the juror’s removal. The state urged that juror be deemed “disabled” under Tex.Code Crim. Proc. Ann. art. 36.29(a), which would allow the trial to proceed with 11 jurors over defense objection. The defense argued that because the juror was never able to serve, he was disqualified and a trial using 11 jurors could only proceed with the defendant’s consent. The defendant did not consent to continuing the trial with only 11 jurors. The trial court followed that state’s recommendation and dismissed the juror as disabled, continuing the trial with only 11 jurors.

The 2nd District Court of Appeals (Fort Worth), Justice Sudderth writing the opinion for the court, held that the court could have allowed the juror to remain on the jury because the right to have him excluded due to his inability to understand English had been forfeited. It is always the attorneys‘ duty to determine that capability and fitness of the jurors during voir dire. Neither party inquired as to ability to understand the English language.

But, once the court determined that the juror should be dismissed, consent of the defendant was required to proceed with 11 jurors. Because appellant did not agree to proceed with 11 jurors, a mistrial was required. The lower court was reversed.

Fort Worth Criminal Trial Lawyers

If you or a loved one have a criminal case in Fort Worth, you need to seek the best criminal defense lawyer to represent you and protect your rights at trial. Call our attorneys today for a Free Consultation of your case.

Fort Worth Texas Jury Trial Criminal Law

When the Jury’s Sentence is Outside the Punishment Range

By | Jury Trial

Jury Trial Sentencing in Texas

Fort Worth Texas Jury Trial Criminal LawEvery 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.

The Uncertainty of Criminal Trial

By | Trial Advocacy

This past week in Tarrant County, Texas I watched a sexual assault trial that I never dreamed would end in a conviction.  We were not defending the case, but I found it interesting, so I went to watch part of the trial.  While the defendant was not particularly likable, it didn’t seem to me that she was a criminal.  I knew the jurors would not like her, but I didn’t think they would convict her of a felony offense.  But that’s the thing about trial.  I don’t get to sit on the jury.  It only matters what 12 citizens think about the case.  I can think about criminal cases in purely legal terms, but jurors are often swayed by emotion.

This case reminded me that there is always a risk in going to trial.  An inherent uncertainty.  Even when you feel pretty confident about your case.  Thankfully, our criminal defense firm has been fortunate enough to get some favorable verdicts in recent trials, but those could have gone the other way very easily.  It is a sobering reality for criminal defense lawyers that someone’s life and future is in your hands.  Even more sobering, however, is the realization that at trial it’s only partly in your hands.  All we can do is prepare, prepare, prepare, and put forth our very best effort.