CCA Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

May 03

Operating a Motor Vehicle in the DWI Context

By Jason Howard | DWI

What does it mean to “Operate” a vehicle under Texas’ DWI laws?

Operation Motor Vehicle Texas DWI The simple answer is that it means whatever the jury (not the judge) says it means.

Under Section 49.04(a) of the Texas Penal Code, a person commits the offense of DWI when the person “is intoxicated while operating a motor vehicle in a public place.” Emphasis added. The Penal Code, however, does not define the term “operating.” When words are left undefined by statute, the Texas Government Code Section 311.011 tells us that those words are to be “construed according to the rules of grammar and common usage,” unless the word or phrase has some “technical or particular meaning,” in which case, the word or phrase “shall be construed accordingly.” What about the word “operating?” Is it common or technical?

In the trial of Kirsch v. State out in the Longview area, the defendant was charged with DWI after the police found him drunk while standing over his motorcycle trying to kick-start it on a public road. As you might guess, there was a dispute over whether he was “operating” his vehicle while intoxicated. Over defense objection, the trial court included the prosecutor’s requested definition of “operate” in the jury instructions:

to exert personal effort to cause the vehicle to function.

To the prosecutor’s credit, the definition was taken from an appellate case (although not one dealing with jury instructions). Now, under this definition it is pretty clear that by trying to kick-start the motorcycle, the defendant was indeed operating a motor vehicle. But if the term “operate” had been left undefined for the jury, then the defense could have certainly argued under the rules of grammar and common usage that the defendant was not “operating” his vehicle, because it was not running (or whatever other arguments an able defense counsel might make). Armed with a black and white definition of “operate,” the jury convicted the defendant of DWI.

The 6th District Court of Appeals (Texarkana) affirmed the conviction.

The Texas Court of Criminal Appeals reversed. For a unanimous court, Judge Alcala wrote:

Our cases have consistently held that “operate” is a common term that has not acquired a technical meaning and may be interpreted according to its common usage… Although an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court’s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.

The opinion goes on to note that by instructing the jurors on the definition of the term “operate,” the trial court “impermissibly guided their understanding of the term.” “The jury should have been free,” the CCA held, “to assign that term ‘any meaning which is acceptable in common parlance.’” The CCA reversed the case and remanded it back to the COA for a harm analysis.

There you have it. The meaning of the term “operating” in the Texas DWI statute means…whatever the jury thinks it means.

Fort Worth DWI Defense Attorneys | Keller DWI | Grapevine DWI

Contact the top-rated Tarrant County DWI attorneys of Barnett Howard & Williams PLLC for a FREE consultation of your DWI case. We will help you determine whether the State could prove that you were operating a motor vehicle under Texas DWI law. Call (817) 993-9249 or send us a contact email from our website. Our team of DWI attorneys will get to work defending your rights and protecting your future.

Jun 24

Misdemeanor Offenses in Texas Now Eligible for Expunction on an Individual Basis

By Brandon Barnett | Expunction

Texas Expunction Update In January of this year, the Supreme Court of Texas heard arguments for Ex parte R.P.G.P. in which it declared that an arrest involving multiple offenses is divisible for expungement purposes under Article 55.01 of the Texas Code of Criminal Procedure. Specifically, it answered a question left open by a previous case, finding that misdemeanor offenses are eligible for expunction on an individual basis.

What is an Expunction of Criminal Records ?

When a criminal record is expunged, that means that the record of is destroyed or sealed (for juvenile records). In an expunction order the court orders the various agencies that maintain records to treat a criminal arrest as though it never happened. People generally have their records expunged so that it does not show up on a routine background check, as an expungement removes any record of the arrest or case from public record.

How Do You Go About Getting an Expungement in Texas?

Under Texas law, there are a number of things that make a record eligible for expunction. If you qualify for expunction, there is a process you must go through, beginning with filing what is called a Petition for Expunction with the district court requesting that it grant an Order for Expunction. While it is possible to prepare this on your own, the somewhat complicated process is best handled by an attorney. The prudent course is to consult a lawyer in order to have the best chance at successfully expunging a record. You only get one shot and if your petition is not granted you don’t get to try again, so it is best to get it right from the start.

After completing the petition, it must be filed with the proper court. You must file the petition for expunction in the district court of the county where the arrest occurred. Following the filing, the court schedules a hearing and notifies the record-keeping agencies that you included in your petition. Once everyone has been notified, the court will hold a hearing and allow those notified the chance to object to the expunction.

If you meet all the requirements, the court will grant the expunction and you will need to give an Order for Expunction to the court for the judge’s signature. Important to know is that the court will probably expect you to have this order ready at the hearing for the judge to sign then and there. Once the order is signed, it has to be submitted to the respondent agencies that you listed in the petition. Those records will then be either deleted or returned to the court clerk for destruction.

A Change in Texas Expunction Law: Arrests for Multiple Offense Can Now be Divided for Expungement?

Prior to a recent court decision, Texans could not expunge an arrest unless ALL alleged offenses qualified for expunction under the law. If any of the alleged offenses in the arrest report were not eligible for expunction, then NONE of the offenses were eligible. A partial expunction was not allowed.

However, State v. T.S.N., was a case which a single arrest involved several unrelated offenses and the court held that partial expunction of the arrest record was required and could be achieved through redaction, leaving the portions of the arrest record regarding an unrelated offense not eligible for expunction. While this case left open the question regarding misdemeanor offenses and their eligibility for expunction on an individual basis, it set the stage for R.P.G.P.’s case.

Thanks to Ex Parte R.P.G.P., if you are arrested for multiple offenses, those offenses are considered divisible—you can expunge one even if the other would not qualify. Ex Parte R.P.G.P. is a great illustration of what exactly this means. In that case, R.P.G.P. was arrested for a DWI and a search of the car revealed marijuana, so he was also charged with possession. The DWI charge was dismissed and R.P.G.P. pled no contest to the possession charge, which was ultimately dismissed after serving nine months of deferred adjudication probation. After both charges were dismissed, R.P.G.P. filed for expunction of the DWI arrest, but the State argued that no part of the arrest record could be expunged because the possession charge was ineligible for expunction. However, the court ultimately held that the DWI portion of the record could be expunged, even though the possession portion would remain on the record.

What Does This Change in the Expunction Law Mean for Texans?

What this means going forward for Texans is that if your arrest record reflects multiple misdemeanor offenses, some of which would be eligible for expunction on their own and some that are not, the ones that are eligible can be expunged, leaving the other portions on the record. This is a shift from the all-or-nothing approach previously adopted by the state. Rather than treating each arrest for various offenses as a collective, we can look at each individual charge and proceed from there. Hopefully, this line of thinking will be expanded to cases involving felony arrests as well, but time will tell.

Mar 18

What Evidence Must a Prosecutor Disclose to the Defense?

By Brandon Barnett | Evidence

New CCA Opinion – Watkins v. State – Clearly Interprets the Duty of the State in Discovery.

Watkins 39.14 Texas Evidence Prosecutors in Texas must disclose almost all of the evidence in their possession to the defense. Disclosure is the rule and not the exception in Texas.¹ Section 39.14(a) of the Texas Code of Criminal Procedure requires the prosecution to disclose anything that “constitutes or contains evidence material to any matter involved in the action. . .”²

The Texas Court of Criminal Appeals in Watkins v. State (see opinion HERE) recently interpreted the word “material” to mean the equivalent of “relevant,” while interpreting the phrase, “any matter involved in the action,” as covering “any number of subsidiary issues impacting the outcome of the proceedings.”³ This interpretation requires Texas prosecutors to disclose virtually all of the evidence in their possession—more than they are mandated to under the federal Constitution as interpreted by the Supreme Court in Brady v. Maryland. In fact, for some types of evidence, the statute does not require the evidence to meet any materiality requirement.⁴ According to § 39.14(h), evidence tending to negate the guilt or mitigate the punishment of a defendant must be disclosed, regardless of whether the evidence is considered material or requested by the defense.⁵

Article 39.14 and the case law that accompanies it effectively establish an open-file policy between the prosecution and defense. As the Watkins court put it: “[w]ith the exception of privileged evidence and evidence specifically covered by other statutory provisions, the only obstacle to disclosure of evidence not [exculpatory in nature] is the lack of a specific request.”⁶

The “materiality” language that the Watkins court addressed is actually language that was carried over from a previous version of Article 39.14—language with its own case law that prosecutors and trial courts carried into practice even after the statute was amended.

How did Prosecutors Interpret 39.14 Before Watkins?

The current version of Article 39.14 came about through the Michael Morton Act, signed into law by Governor Perry in 2013. This bill was a response to the case of Michael Morton, a man wrongfully convicted for the murder of his wife in 1987 after the prosecutor in that case withheld evidence that could have proven his innocence. Morton was exonerated in 2011 after DNA evidence revealed that someone else committed the murder, and the state legislature took up the task of passing a complete overhaul of discovery procedure in Texas.

Because the same language— “material to any matter involved in the action”—was retained by the Morton amendments, confusion persisted among some attorneys about whether the pre-Morton “materiality” jurisprudence is properly attributed to the new, post-Morton version of Article 39.14. However, as the Watkins court addressed, those pre-Morton cases never actually spoke to the issue of what “material” actually meant.⁷

The Confusion Surrounding “Material”

You see, the pre-Morton Article 39.14 gave trial courts the discretion whether to order the prosecution to disclose evidence upon a motion showing good cause from the defense.⁸ The pre-Morton “materiality” jurisprudence was inextricably linked with the standard for determining whether a trial court abused its discretion in refusing to issue such an order, and it did not have anything to do with the phrase, “material to any matter involved in the action.”⁹

The standard for determining whether a trial court abused its discretion in this way was whether the judge’s ruling deprived the defendant of access to evidence that was material to the defendant’s defense.¹⁰ “Material,” in this sense, was defined “’under Texas law in the due process terms employed by the Supreme Court in United States v. Agurs.’”¹¹ This meant that a trial judge abused his or her discretion in refusing to order the disclosure of evidence when it was exculpatory in nature.¹²

Watkins Clearing Things Up

As we now know, the procedure that discovery followed before the Morton amendments was completely removed from Article 39.14, and the “materiality” jurisprudence that was tied to it went out the door as well.¹³ Because of the confusion that accompanied the judicial use of similar language in close contexts pre-Morton, it is understandable if some prosecutors may have—before Watkins—interpreted the, “material to any matter involved in the action,” language as being loaded with the pre-Morton jurisprudence. Other prosecutors, as shown in Watkins below, applied their own limiting interpretations to the language.

In Watkins, the defense counsel sent a discovery request to the prosecutor pursuant to § 39.14 asking for, “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.”¹⁴ He “also requested notice of the State’s intent to offer any extraneous offenses, which the prosecution provided.”¹⁵ Watkins was convicted of second-degree possession of a controlled substance, and during the punishment phase of trial, the state sought to introduce 34 exhibits for the purpose of proving up Watkins’ prior felony convictions for enhancement purposes.¹⁶ The defense objected—the prosecutor did not disclose the exhibits to the defense because he did not believe Article 39.14 applied to punishment.¹⁷ The Trial court overruled the objection, allowing the evidence to be admitted.¹⁸

The issue surrounding the prosecution’s non-disclosure eventually worked its way up to the Court of Criminal Appeals, where the Watkins court seized the opportunity to review the requirements of Article 39.14 in light of the Michael Morton Act amendments. In short, the Court laid out the history of Article 39.14 explained above, and it clearly established that Texas now has disclosure requirements that track the spirit of the Michael Morton Act.¹⁹

[1] Watkins v. State, NO. PD-1015-18 (Tex. Crim. App. 2021).
[2] Tex. Code Crim. Proc. Ann. art. 39.14(a) (West 2017).
[3] Watkins, at 24-25.
[4] Tex. Code Crim. Proc. Ann. art. 39.14(h) (West 2017).
[5] Id.
[6] Watkins, at 23.
[7] Id. at 35.
[8] TEX. Code Crim. Proc. art. 39.14 (2009).
[9] Watkins at 35.
[10] Id. at 41-42.
[11] Id. at 40 (quoting United States v. Agurs, 427 U.S. 97 (1976)).
[12] Id. at 41.
[13] See generally Watkins.
[14] Watkins at 4.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 5.
[19] See generally Watkins.

May 08

Is a Vehicle Always a “Deadly Weapon” in a DWI Collision Case?

By Jason Howard | DWI

Direct Evidence at Trial Must Reflect “Manner of Use” to Support Deadly Weapon Finding | Couthren v. State

Deadly Weapon DWI Couthren v State One of the common factors in any DWI case is that there must be a motor vehicle involved. Every time. When someone who is under the influence of drugs and/or alcohol chooses to drive a motor vehicle, should the car itself be considered by Texas courts to be a “deadly weapon?” When do ordinary, daily objects, such as cars, become “deadly weapons” for the purpose of charging enhancements and raising the stakes in a criminal case?

Slip Opinion: Couthren v. State (Tex. Crim. App. 2019)

Driver Hits Pedestrian after Drinking

Donald Couthren was driving on a frontage road in Bryan, Texas early one morning in 2012. He had been drinking Four Loko earlier in the evening and was impaired. Frank Elbrich was walking along the same road and stepped out in front of Couthren’s vehicle. Elbrich’s head hit the windshield and he landed on the ground. Couthren stopped his vehicle, scooped up Elbrich, and put Elbrich into his car, with the idea of taking him to the hospital. In a strange turn of events, Couthren, instead, drove to a house to exchange cars, and ended up in altercation with the people in the house. The police were called as a result. When police arrived, they noticed that Elbrich was bleeding and non-responsive. They saw that the windshield was broken, as well. The police noted that Couthren smelled of alcohol and swayed from side to side when he walked. Couthren admitted to hitting Elbrich when “[he] stepped in front of his vehicle.” Couthren did not consent to a blood draw and refused to comply with field sobriety tests. Police arrested Couthren for driving while intoxicated (DWI).

Felony DWI Trial with Deadly Weapon Enhancement

Couthren was indicted and tried for felony DWI. The State alleged a “deadly weapon” finding, claiming that the Couthren’s vehicle was a deadly weapon. A deadly weapon finding enhances the charge, increasing the term of imprisonment. Accordingly, the jury convicted Couthren and agreed with the deadly weapon finding and assessed a punishment of six years imprisonment. On appeal, Couthren argued that there was not enough evidence to support the deadly weapon finding. The lower appeals court upheld the trial court’s finding, utilizing a “two-step” approach to determine whether the evidence was sufficient. The two-step approach consisted of (1) an evaluation of the manner in which Couthren used his car during the felony and (2) an analysis of whether vehicles are capable of causing death or serious bodily injury. Couthren v. State, No. 13-16-00543-CR, 2018 WL 2057244, at 5 (Tex. App.—Corpus Christi, May 3, 2018) (mem. op., not designated for publication).

Appeal to the Texas Court of Criminal Appeals | Is a Vehicle Always a “Deadly Weapon?”

Couthren appealed the lower appeals court’s ruling, to the Court of Criminal Appeals to determine whether the first step (“manner of use”) was a proper evaluation. Specifically, Couthren argued that the lower appeals court relied on the fact that there was a collision and that he had been drinking, to uphold the deadly weapon finding. Further Couthren argued, there must be evidence of a dangerous or reckless operation to support a finding that a car was used as a deadly weapon.

The CCA examined several laws, that when applied together, could create a deadly weapon finding in a DWI collision scenario. Texas Penal Code Section 49.04(a) which prohibits a person from operating a motor vehicle in public while intoxicated. TEX. PENAL CODE §49.04(a). Further, other statutes in Texas provide for a third-degree felony enhancement if it can be proven that a defendant had to prior DWI convictions. TEX PENAL CODE §49.09(b)(2). The Texas Code of Criminal Procedure, Section 42.12 states that, “When it is proven that a defendant used or exhibited a deadly weapon, a trial court shall consider a deadly weapon finding in the judgment.” Moore v. State, 520 S.W.3d 906, 908 (Texas Crim. App. 2017).

The CCA looked to precedent cases to guide their analysis. The CCA determined that there must be evidence that the manner of driving was capable of causing death or serious bodily injury apart from the fact of a collision and a defendant’s intoxication. Brister v. State, 449 S.W.3d 490, at 495 (Tex. Crim. App 2014). Further, the CCA noted that it has “expressly rejected the argument that all felony DWI cases warrant an automatic deadly weapon finding.” Id.

Deadly Weapon Finding Reversed for Lack of “Manner of Use” Evidence to Support it

Here, the CCA noted that there was very little evidence showing the manner in which Couthren used his car during the DWI offense. For example, “we do not know if he applied his brakes…or…if there were other cars on the road.” The CCA stated that the arguments put forth by the State regarding “manner of use” on appeal were conclusions inferred from underlying facts. The CCA stated, “reasonable inferences must be supported by the evidence presented at trial.” Tate v. State, 500 S.W.3d 410 (Tex. Crim. App. 2016). In this case, “the only direct evidence of Couthren’s manner of driving before and at the time of impact was Couthren’s testimony at trial that he was driving 30 miles per hour and that he swerved to avoid hitting Elbrich.” Accordingly, the CCA determined that the facts as presented at trial did not amount to a deadly weapon finding, “in this case we lack specific testimony in the record about manner of use.” The CCA reversed the deadly weapon finding.

While the case before the CCA was decided in Couthren’s favor, it is important to note that it was not without controversy. Four justices joined in a strong dissent. Distinguishing the case at bar from the case law relied upon for the decision, Cates v. State and Brister v. State, the dissenting justices pointed out that because “the offense [in Cates] was failure to stop and render aid and the collision occurred before the offense occurred,” the collision itself could not “be the basis for a finding that a deadly weapon was used during the later offense.” The dissenting opinion states, “the collision did occur during Couthren’s DWI offense and the collision caused serious bodily injury to Mr. Elbrich.”

Apr 12

Milton v State Improper Closing Argument 2019

Lions, and Babies, and Appeals! Oh my! | When Demonstrative Evidence Goes Too Far

By Brandon Barnett | Trial Advocacy

When Does a Closing Argument Go Too Far?

Milton v State Improper Closing Argument 2019 What do Atticus Finch, Lt. Daniel Kaffee, and Jake Brigance have in common? Each of these fictional movie attorneys are known for zealously representing their clients by delivering intense cross examinations and galvanizing closing arguments. Finch, defending a wrongly-accused man in a time a place where justice was compromised by racial bias, implored the jury to seek justice by tapping into a higher power, “In the name of God do your duty.” Stuck at the crossroads of respecting formal rank and seeking justice in a military court-martial, Lt. Kaffee made the choice to double down on Col. Jessep during cross examination, poking at the Colonel’s pride. Col. Jessep took Lt. Kaffee’s bait, screaming, “You can’t handle the truth!” Jake Brigance took a more creative approach. Asking jurors to close their eyes, Brigance described a depraved series of events that caused his client to murder two people. The jury agreed with the justification, and acquitted Brigance’s client.

Under the Texas Disciplinary Rules of Professional Conduct, an attorney must render competent and diligent representation to their clients, “and with zeal in advocacy upon the client’s behalf.” “1.01 Competent and Diligent Representation,” www.legalethicstexas.com, accessed April 6, 2019. Where is the line drawn for zealous representation in a closing argument? Can demonstrative evidence used in a closing argument go too far? The Court of Criminal Appeals of Texas (“CCA”) says it can.

Milton v State (Tex. Crim. App. 2019) | Improper Closing Argument?

In 2015, Damon Milton robbed a drug store by asking a cashier to give him the money from the cash register. Milton never showed a weapon, and he pretended to shop until customers were not around. He always kept his hands out and visible. According to the police report, Milton did not have a weapon. Additionally, there was some circumstantial evidence that Milton had committed the same robbery to the same drug store the day before. At trial, Milton was found guilty of robbery.

During the sentencing phase of the trial, the State entered into evidence and played before the jury a 35-second video of a baby dressed in zebra-striped clothing at a zoo sitting in front of a protective glass enclosure. Behind the glass was a lion, ferociously trying to get to the baby. The State argued that Milton deserved a long sentence because of his criminal background and because of the crime. Additionally, the State entered into evidence Milton’s criminal history which included forgery, attempted unauthorized use of a motorized vehicle, and robbery by threat.

Defense for Milton objected to the video, on the grounds of relevance and prejudice. Moreover, “there [was] no indication that any of his past convictions involved crimes that were particularly brutal or gruesome…[nor]…any indication that…[there were any] crimes against children.” The State responded that the video illustrated that “motive plus opportunity equals behavior.” In other words, that getting away with a light sentence could embolden Milton to commit future crimes; or that if Milton would be locked away in prison, then he would not be able to commit a future crime, as imprisonment “removes the opportunity.”

Further, the State described the video to the jury, “the motive of that lion is never-changing, never changing, it’s innate…with the glass, the scene is funny, without the glass, a tragedy.” The State added, “we know that the [defendant] is such a bad guy…it’s almost laughable, just like that lion…nothing funny when the [defendant] is outside of prison, that’s a tragedy…[he] is never changing his motive.” The jury assessed Milton’s punishment at 50 years. Milton appealed to the court of appeals, arguing that the trial court’s allowing the video was an abuse of its discretion. On appeal, the State argued that the video was an impassioned plea for law enforcement and community protection, saying it was acceptable to argue that the defendant was a “vicious lion trying to eat a baby and the court needed to stop him.” The court of appeals upheld the trial courts holding, though the court noted that the State’s analysis was “tenuous.” Milton appealed to the CCA.

CCA Holds that Closing Arguments Should Not Inflame a Jury with Things Not Before Them

The CCA had to determine whether the demonstrative video shown at the sentencing phase of the trial was out of step. “The purpose of a closing argument is to facilitate the jury in properly analyzing the evidence presented…so that it may arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted into evidence.” Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). “It should not arouse the passion or prejudice of the jury by matters not properly before them.” Id. “Arguments that go beyond summation of the evidence, reasonable deduction from the evidence, answer to arguments made by opposing counsel, or law enforcement please, too often place before the jury unsworn…testimony of the attorney.” Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Even though jurors are not stupid, they are human, which is why courts prohibit highly prejudicial evidence.

Accordingly, the CCA concluded that the video could be considered unfairly prejudicial “because it encouraged the jury to make its decision upon matters outside of the record by inviting a comparison between [Milton] and hungry lion.” “The State may strike hard blows, but it must not strike foul ones.” Jordan v. State, 646 S.W.2d 946 (Tex. Crim. App. 1983). There are limits to demonstrative aids in closing arguments. The CCA reversed the court of appeals opinion and remanded to the appeals court for a harm analysis.

Feb 15

Tampering with Evidence under Texas Law | Section 37.09 TX Penal Code

By Brandon Barnett | Evidence

Tampering with Evidence Texas 37.09 During routine traffic stops, police officers sometimes end up arresting individuals for the third-degree felony offense of Tampering with Evidence. How does this happen you ask? If, during the course of a traffic stop, an officer observes the driver toss an item or two out of the window, and those tossed items are later determined to be drugs and/or drug paraphernalia, the officer might just arrest the person for tampering with evidence pursuant to section 37.09 of the Texas Penal Code. The important question though, is whether section 37.09 was intended to prohibit this type of conduct?

What is the Purpose of Section 37.09 – Tampering with Evidence?

Texas Penal Code Section 37.09 provides:

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

Texas courts have found that the purpose of section 37.09 is to uphold the integrity of our criminal justice system. 20 Tex. Jur. 3d Criminal Law: Offenses Against Public Administration § 63 citing Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010); Haywood v. State, 344 S.W.3d 454 (Tex. App.—Dallas 2011 pet. ref’d). This includes prohibiting anyone from “creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding.” Id. However, section 37.09 is not without limitation.

What is the Scope of Section 37.09?

Early case law suggests the scope of 37.09 is very limited. But, as you will read below, the Court of Criminal Appeals rejects this notion by allowing the fact finder the ability infer the intent to tamper.

In Pannell v. State, 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d) the court of appeals held that section 37.09 requires a defendant to know that the item “altered, destroyed, or concealed, was evidence of an investigation, that is pending or in progress, as it existed at the time of the alteration, destruction, or concealment.” Id. In this case, the defendant threw a marijuana cigarette out of the window while he was being pulled over for speeding. Id. Because the officer was only investigating a speeding violation when the defendant threw the marijuana out of the window, the court held that there was no evidence that an investigation in which the marijuana would serve as evidence was “pending or in progress.” Id. The court explained that only after the officer observed the defendant throw out the marijuana did the investigation change to involve drugs. As a result, the court determined there was no evidence of tampering. This analysis, however, has been rejected, albeit not explicitly overruled, in Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008).

In Williams, an officer was conducting a traffic stop and decided to conduct a pat down search of the driver (i.e. defendant) for weapons. During the pat down a crack pipe fell onto the pavement, and the defendant immediately stomped on the pipe, crushing it with his foot. When deciding whether or not the above actions constituted tampering, the Court of Criminal Appeals rejected the lower court’s analysis, which stated that the traffic stop became a drug investigation once the officer and the defendant noticed the pipe on the pavement, and only then was there tampering. In rejecting this analysis, the Court held that requiring a change in the investigation, as the appellate court’s analysis and Pannell does, adds an additional mens rea element not required by section 37.09.

Thus, the Court held that when an officer is investigating a traffic stop and the suspect anticipates that the officer will begin a drug investigation if the officer finds evidence of drugs, and in accordance with that anticipation, the suspect destroys the drugs before the officer becomes aware of them, the suspect has tampered with evidence. As such, there is no requirement for the officer to “see the pipe” or “see the marijuana” before the suspect throws it out of the window in order for that action to constitute tampering. The determination will be made by the finder of fact using circumstantial evidence to draw inferences.

In Conclusion . . .

In conclusion, if the only evidence the State has of tampering is the fact that the defendant threw the item out of the window, without any other indicia of tampering, then the act alone does not rise to level of tampering under section 37.09. However, there are many reasonable circumstances, ever so slight, that could lend the fact finder to make an inference of intent to tamper. With that being said, because the offense of tampering is extremely fact-based, we recommend you reach out to our experienced attorneys to better understand your options.

Jan 04

Unanimity Instruction Required and Not Given, But No harm, Says CCA

By Luke Williams | Jury Trial

Trial Court Failed to Give Unanimity Instruction to the Jury

The Court of Criminal Appeals recently handed down an opinion regarding a unanimity jury instruction in an aggravated sexual assault case. The issue before the Court was whether the trial court erred when it failed to instruct the jury that it must be unanimous in deciding how the sexual contact occurred when there were multiple allegations. The Court of Criminal Appeals found the jury instruction to be erroneous but concluded no harm occurred.

French v. State, (Court of Criminal Appeals 2018).

The Facts—The Defendant Was Convicted for Aggravated Sexual Assault of a Child

The defendant was originally indicted on a single count of aggravated sexual assault of a child. The indictment alleged that the defendant caused the penetration of the child’s anus by the defendant’s sexual organ. Before trial though, the indictment was amended to add “contact with” and “penetration of” the sexual organ of the child by the defendant’s sexual organ. As a result, the indictment presented four options for a conviction: (1) the defendant contacted the child’s anus with his sexual organ; (2) the defendant penetrated the child’s anus with his sexual organ; (3) the defendant contacted the child’s sexual organ with his sexual organ; and/or (4) the defendant penetrated the child’s sexual organ with his sexual organ.

At trial, the jury instructions authorized the jury to convict the defendant on any one of the four theories. In addition, the trial court explicitly instructed the jury that they need not all agree on the manner in which the sexual assault was committed. This instruction essentially authorized the jury to convict the defendant without agreeing as to which orifice he had “contacted or penetrated”—even though there was little to no evidence presented that defendant ever contacted or penetrated the child’s sexual organ. This prompted the defendant to object and ask the court for a unanimity instruction regarding the manner in which the sexual assault was committed. However, the court overruled the objection and the defendant was subsequently convicted.

The Court of Appeals Reversed the Defendant’s Conviction—Holding the Trial Court Erred in Failing to Submit a Proper Instruction Which Caused “Some Harm”

On appeal, the defendant argued that the jury charge failed to follow the juror unanimity requirement because it did not require the jury to agree as to which orifice he contacted and/or penetrated. For double jeopardy purposes, he argued the theories were considered distinct and separate offenses, each of which demanded juror unanimity for a conviction. The court of appeals agreed, and it held that the trial court erred by failing to submit proper instructions. In light of this error, the court of appeals determined that the erroneous jury charge was sufficient to invoke the “some harm” standard under Almanza, which required a reversal.

The Court of Criminal Appeals Reversed the Court of Appeals’ Judgment—Finding No Actual Harm Occurred

On petition for discretionary review, the State did not contest the erroneous jury charge. Rather, it argued that any error in the jury charge as to the unanimity requirement did not result in harm to the defendant. The Court of Criminal Appeals agreed.

In analyzing whether there was “some harm,” the Court of Criminal Appeals considered the trial court’s error with respect to the four factors set out in Almanza: “(1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) any other relevant information as revealed by the record as a whole.”
The Court of Criminal Appeals noted that in concluding that “some harm” occurred the court of appeals only relied upon the second Almanza factor—the state of the evidence. That court identified there was “some evidence in the record” for the jury to potentially conclude that the defendant penetrated both the child’s anus and sexual organ with his own sexual organ. And, since there was “some evidence” it believed that the jury could have regarded itself as authorized to convict different ways without reaching any agreement on a specific theory beyond a reasonable doubt.

However, even considering the above reasoning, the Court of Criminal Appeals determined there was no harm suffered when taking into consideration all four of the Almanza factors. The Court explained that “the risk that a rational juror would have convicted the defendant on the basis that he contacted and/or penetrated the child’s sexual organ with his own—and not also on the basis that he contacted and/or penetrated the child’s anus—is so ‘highly unlikely’ as to be ‘almost infinitesimal.’” Not only was there overwhelming evidence at trial that suggested anal contact and penetration occurred, there was no encouragement for a specific finding, and the defendant’s only defense was that it never happened. All of this supports the Court’s conclusion that the harm was merely hypothetical and not actual. As such, the Court reversed and remanded the case even in light of the error.

Dec 03

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

By Madeline Pricer Jones | Theft

Organized Retail Theft Lang The 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.

Nov 26

Attorney Duty Not to Concede Guilt Turner

Attorneys Have a Legal Obligation Not to Concede Guilt

By Madeline Pricer Jones | Ineffective Assistance

Attorney Duty Not to Concede Guilt Turner The 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.

Nov 20

Can a Judge Grant Deferred Adjudication After a Jury’s Guilty Verdict?

By Madeline Pricer Jones | Jury Trial

Mau Deferred Adjudication Jury Verdict The 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.