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Sexual Assault Defense Attorneys Fort Worth

The Importance of Reading Statutes in Context

By | Sex Crimes

Texas Stacking Sentences in Sexual Offenses

Sexual Assault Defense Attorneys Fort WorthNguyen 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.

Jury instructions on witnesses

If You Don’t Have Anything Nice to Say…

By | Jury Trial

Jury Instruction on Failure of Family to Testify During Sentencing

Jury instructions on witnessesAfter the defendant was convicted in the case of Lucio v. State, and the case proceeded to the punishment phase, the jury noticed something conspicuous about the defense case…nobody from the defendant’s family came to the witness stand to testify on his behalf. No poor momma with tears in her eyes. No sister or brother to testify about what a good person the defendant is at heart. Nothing. Just crickets. Curious about why nobody from the defendant’s family testified, the jury sent a question in to the trial judge while they were deliberating on the sentence:

Does the law prevent a family member from speaking during the sentencing phase, for the defendant?

Over defense counsel objection, the trial court provided the following response to the jury:

The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to an issue in the case. You have heard all of the witnesses who have been called to testify. Please continue your deliberations.

Of course, there were two inferences that the jury could reasonably draw from the instruction: (1) none of the available family members could provide relevant information, or (2) the defendant did not want to call any family members because they would not provide favorable testimony.

On appeal, the defense argued that the trial court’s instruction was an improper comment on the evidence. The 2nd District Court of Appeals (Fort Worth) disagreed and the Texas Court of Criminal Appeals granted discretionary review to settle the issue. Here’s what the CCA held:

We conclude that the general rule that prohibits the court from singling out a particular piece of evidence in its instructions to the jury given prior the jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury.

The court noted that the court’s instruction was a correct statement of the law that did not improperly convey a “personal estimation of the strength or credibility” of evidence. The CCA affirmed the court of appeals.

Judge Meyers dissented, opining that:

the trial court’s instructions indicate to the jury that it is permissible to focus on the fact that the defendant’s family did not testify at punishment. In doing so, the judge expressed an opinion as to the weight of the evidence…

Probation sentence in Texas

Sentencing Range and Probation Period Not Linked

By | Sentencing

Probation sentence in TexasThe punishment range for a second-degree felony sexual assault is 2-20 years in prison. However, the minimum period of community supervision (i.e. probation) for the same offense is five years. So can a trial court award community supervision if the jury returns a punishment verdict of less than five years? Here’s how this situation played out down in Houston:

A jury found a defendant guilty of the second-degree felony of sexual assault. On sentencing, the jury awarded the defendant the minimum punishment (two years) and further recommended community supervision (a recommendation the trial judge is required to take). The trial judge, however, informed the jury that its verdict was illegal because the minimum period of community supervision is five years. The trial court essentially instructed the jury that if it wanted to recommend community supervision, it must sentence the defendant to at least five years (which would then be probated). Following instructions, the jury went back and returned a verdict of five years with a recommendation for community supervision.

Was the trial court correct in his instructions to the jury?

NO, says the Texas Court of Criminal Appeals in Mayes v. State.

There is nothing in Article 42.12 (Tex. Code Crim. Proc.) that states, or even suggests, that the jury must assess a sentence that equals the minimum period of community supervision, the maximum period, or any particular period in between. The jury does not determine the period of community supervision. It assesses the sentence and recommends that the trial judge place the defendant on community supervision. The judge must follow that recommendation, but he has the discretion to determine the appropriate period of supervision, as long as it within the minimum and maximum statutory period.

The CCA opinion makes clear that the statutory minimums for punishment and community supervision are not inextricably linked.

[A] rule that a jury cannot assess the minimum sentence in a case if it also wants the defendant to serve that sentence on community supervision would lead to an absurd result.

Accordingly, the CCA reversed the judgment of the court of appeals.

Trial Judge Shows Inflexible Attitude in Felony DWI Case

By | DWI, Sentencing

Judge in Felony DWI CaseIn a felony DWI case, Gaal v. State, the defendant was set to plead guilty. When the time came for him to plead, however, he refused. The trial judge stated, “All right. We’re supposed to have a plea here today. It appears that [the defendant] does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it’s for the maximum term of ten years.

The defendant later filed a motion to recuse the trial judge, contending that his statement that he would not accept a plea deal for less than the maximum, showed that he could not be fair and impartial. Another judge, at a recusal hearing, denied the request. On appeal, the 2nd District Court of Appeals (Fort Worth) held that appellant was denied due process by the trial judge’s statements and that the judge should have been recused.

The Court of Criminal Appeals now holds that the lower court got it all wrong. The CCA characterizes the trial judge’s statement not as a denial of due process.

The trial judge’s comment could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he has twice rejected favorable plea bargains…and was continuing to drink in violation of his bond conditions.

The CCA goes on:

A reasonable person, based on the totality of the circumstances, would translate the judge’s statements as, “I’m not going to reset this case for any more plea negotiations; we’re going to trial.”

And as the Court points out, a “defendant does not have an absolute right to enter into a plea bargain” and “the trial judge doesn’t have to take a plea bargain.”