March 2011

The Texas Court of Criminal Appeals released an opinion this month in a case where a man entered a convenience store brandishing a rifle. When the man looked around, however, he noticed that there wasn’t anyone in the store. The store clerk was in the back office watching the man on the security camera. When the clerk saw the man enter the store, he locked the office and called 911. Unable to open the cash register, the "robber" stole the clerk’s wallet and some money that was behind the counter. The "robber" never saw anyone inside the store.  Then he left.

The man was later charged with and convicted of Aggravated Robbery under Texas Penal Code Section 29.02, which provides in relevant part:

a person commits [robbery] if, in the course committing theft…and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or harm.

Appellant argued that “because there was no evidence of interaction between him and [the victim], the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to that of theft. Accordingly, the CCA was faced with a question of first impression in Texas:

Does the Offense of Aggravated Robbery Require Interaction Between the Accused and the Purported Victim?

Appellant contested that he could not intentionally or knowingly place a person in fear, if that person was unknown to him. A unanimous CCA disagreed, explaining that

'knowingly' does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know that he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone is actually placed in fear.

In this case, because Appellant brandished the rifle in the convenience store, the CCA held that his culpable mental state was not negated by the fact that the victim did not happen to be in his presence. In sum, the CCA answered the question presented in the negative.

The offense of Aggravated Robbery does NOT require interaction between the accused and the purported victim.

Read the full CCA opinion in Howard v. State.

The Many Ways to Commit Assault with a Motor Vehicle in Texas

Faced with the question of whether Reckless Driving is a lesser-included offense of Aggravated Assault With a Motor Vehicle (alleged as a Deadly Weapon), the Texas Court of Criminal Appeals explained that there are, indeed, many ways in which a vehicle can be used as a deadly weapon apart from the vehicle being driven, to wit:

• Locking the victim in a hot car, • Slamming the victim’s head again the car frame, • Rigging the car’s gas tank to explode, • Placing the car in neutral and allowing it to run into the victim or a building, • Suffocating the victim in the trunk, or • Running the car in an enclosed area to cause carbon monoxide poisoning.

The CCA used this creative list to reverse the 5th Court of Appeals (Dallas), which had previously held that the trial court erred by not instructing the jury that it could find appellant guilty of the LIO of Reckless Driving if it believed the State did not prove Aggravated Assault w/a Deadly Weapon. The appellant argued at trial and on appeal that the LIO should apply, thereby giving the jury another option.

You can read the full opinion of the Texas Court of Criminal Appeals in Rice v. State here.

In Taylor v. State, the appellant was convicted of aggravated sexual assault and sentenced to 70 years confinement and a $10,000 fine for each offense. Much of the testimony at trial, however, related to acts appellant committed while he was a minor. The evidence showed that appellant began sexually abusing a young girl when he was 13 years old and she was 8. The abuse continued for several years, the final occurrence happening when appellant was 20 years old and the victim was 15.

Texas Penal Code Section 8.07(b) provides that unless a juvenile court waives (or has previously waived) jurisdiction and certifies an individual for criminal prosecution, "a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age."  Accordingly, while evidence was admitted at trial regarding appellant’s acts before he turned 17, he can only be convicted of those acts that occurred after he was 17.

The trial court failed to instruct the jury of this requirement and the jury returned a guilty verdict. On appeal, appellant argued that the jury charges were erroneous because they did not limit the jury’s consideration to evidence of acts committed after he turned 17. The 1st Court of Appeals (Houston) held that the Court was required to instruct the jury that appellant could not be convicted of criminal acts committed before he turned 17, and that appellant was denied a fair and impartial trial as a result. The Court of Appeals reversed the case.

The CCA now reverses the Court of Appeals. It agrees with the Court of Appeals that the instruction should have been given to the jury, even if neither party requested the instruction. But the CCA held, nonetheless, that the error did not deprive appellant of a fair and impartial trial. The CCA states:

Here, the error was the omission of an instruction, rather than the presentation to the jury of an erroneous instruction…[T]he jury in this case could have convicted Appellant based upon evidence presented, even if the proper instruction had been given and Appellant’s pre-seventeen acts were disregarded by the jury. The evidence showed an eight-year pattern of escalating sexual abuse of J.G. by Appellant. Appellant turned 17 years old midway through the abusive period, meaning that he is subject to prosecution for his conduct beginning on that birthday…and evidence of molestation that occurred after that date was introduced at trial.

So, basically the CCA is saying – “We don’t know from the face of the record exactly which instances of abuse the jury believed, and we can’t say with 100% certainty that they believed any of the instances after appellant was 17, but we know they definitely believed something happened at some time.”

The CCA ultimately concludes that Appellant was not denied a fair and impartial trial. My question is – “How do we know that?” I realize that appellant said he didn’t commit any of the alleged acts and I also realize that the jury, by their verdict, believed that he did.  But how do we know that the jury didn’t conclude that the appellant was guilty of only those acts that occurred when he was a minor?  We don’t.

What happens when a witness cannot remember facts to which she previously testified before the grand jury?

Can the State simply read her grand jury testimony into evidence as past recollection recorded even though the Defendant was not present to cross-examine her during that hearing? Normally, I would say yes, but I’m not talking about a witness that cannot remember one fact or another.  I'm talking about a witness that cannot remember ANYTHING about which she testified before the grand jury.  To me, that changes the game a bit.

The CCA recently considered this issue in Woodall v. State. I say they “considered" it – actually the Court was careful not to provide a definite holding on the matter. Instead, it punted the case on procedural (waiver) grounds. Nonetheless, the CCA did provide some dicta that is a helpful insight into its thinking.

We believe that, under the facts of this case, memory loss did not render [the witness] “absent” for Confrontation Clause purposes…The Supreme Court has generally rejected the notion that a present and testifying witness is nevertheless absent for confrontation purposes if the witness suffer from memory loss.

Curiously, the CCA cites only pre-Crawford cases. For example, citing a 1970 Supreme Court case, the CCA quoted the concurring opinion of Justice Harlan, in which he opined that

a witness’s lack of memory should have no Sixth Amendment Consequence.

However, the legal landscape has drastically changed since the time of Justice Harlan’s opinion. I doubt Scalia would agree with such reasoning today. Then again, as a strict constructionist, maybe he would.  If the witness is available at trial, even if she cannot remember anything, is that enough to satisfy the 6th Amendment? I would argue NO, but perhaps I’m wrong. Either way, we will not find out with the Woodall case, because the CCA passed on the ultimate issue.

In 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.”