CCA

Texas Court of Criminal Appeals Holds That An Out-of-State Conviction Cannot Be Used to Establish “Continuous Sexual Abuse” Under Texas Law

The Court of Criminal Appeals recently handed down an opinion regarding the use of an out-of-state act to support a conviction in Texas. The issue faced by the Court was whether the commission of an out-of-state aggravated sexual assault could support a conviction for continuous sexual abuse of a child under Texas law.

Lee v. State (Tex. Ct. Crim. App. 2017)

The Facts—The Trial Court Found Defendant Guilty of Continuous Sexual Abuse of a Child

In this case, Ronald Lee (Defendant) was convicted of continuous sexual assault of a child and the jury assessed a life sentence. During trial, evidence showed that Defendant committed aggravated sexual assault against his young stepdaughter twice, once in New Jersey and once in Texas. Both assaults were temporally separated by at least 30 days.

Texas Penal Code Section 21.02 prohibits the commission of two or more acts of sexual abuse over a specified time. Although committed in two separate states, the trial court permitted the evidence of both sexual assaults in New Jersey and Texas in order to convict Defendant.

The Court of Appeals Affirmed the Conviction, Holding that the Evidence was Legally Sufficient to Support the Conviction

On appeal, Defendant claimed that the evidence presented—the alleged act in New Jersey—was insufficient to support his conviction in Texas. The court of appeals held that because Defendant was charged and convicted under Texas Penal Code Section 21.01 for continuous sexual abuse, Texas has jurisdiction if part of the prohibited conduct element occurred in Texas. Further, the court determined that the location of the sexual abuse was not an element of the offense; thus, the State’s only obligation was to prove that the court of prosecution had venue—proper jurisdiction. As a result, because one of the alleged acts of sexual abuse occurred in Taylor County, the court of appeals said that the evidence was sufficient to prove venue.

The Court of Criminal Appeals Reforms the Judgment to a Lesser-Included Offense Conviction, Holding the Evidence was Legally Insufficient to Support the Original Conviction

Defendant appealed the appellate court’s decision to affirm his conviction. He argued that the alleged act of abuse in New Jersey was not sufficient proof required under the Texas Penal Code, which requires two or more violations of penal code sections. Each of these required offenses must be a violation of Texas law. Texas only has jurisdiction over an offense if either an action element or result element of the offense occurs inside the state. Because “act of sexual abuse” requires an act that is a violation of Texas law, Defendant’s act in New Jersey may not be considered one of the required offenses for a conviction under Section 21.02. The Court of Criminal Appeals determined that Texas had jurisdiction of continuous sexual abuse of a child, but the evidence in this case was insufficient to support the conviction because one of the acts was not a violation of Texas law.

When an appellate court finds that the evidence was insufficient to support a charged offense, but the jury found the defendant guilty of a lesser offense supported by sufficient evidence, then the appellate court must reform the judgment to reflect the lesser-included offense and remand for new punishment. In this case, the Court of Criminal Appeals concluded that the jury found Defendant guilty of aggravated sexual assault, which was the lesser-included offense, and remanded the case for a punishment hearing.

Judge Yeary's Concurring Opinion

The Court of Criminal Appeals recently released an opinion regarding when a defendant is entitled to a self-defense charge. The issue facing the Court was whether there was some evidence, from any source, that would support the elements of self-defense and whether self-defense was authorized when a deadly weapon was used in response to verbal provocation.

Gamino v. State, Court of Criminal Appeals (2017)

The Facts—The Trial Court Denied Defendant’s Request for a Self-Defense Instruction and Defendant was Subsequently Convicted.

On August 11, 2013, Cesar Gamino (Defendant) and his girlfriend were leaving downtown Fort Worth as the local bars were closing. While Defendant and his girlfriend were walking back to his truck they passed by a group of men who were heard saying lewd comments. Believing the comments were directed at his girlfriend, Defendant confronted the men. Khan, one of the men, told Defendant they were not talking about his girlfriend. According to Khan, Defendant then said “I got something for you,” went to his truck, retrieved a gun, and pointed it in their direction. Two police officers working nearby heard Defendant’s comment and saw Defendant with the gun. Defendant was subsequently arrested and charged with aggravated assault with a deadly weapon. Khan was also arrested and charged with public intoxication.

During trial, Defendant testified that the men threatened him and his girlfriend by saying “grab her ass” and that they would “F her if they wanted to,” and that they would “kick [his] ass.” Defendant further testified that one of the men got up and moved towards him in an aggressive manner. This behavior, coupled with the fact that Defendant was disabled, caused him to believe he and his girlfriend were in danger. As a result, Defendant testified that he reached into his truck, grabbed his gun and told the men, “[s]top, leave us alone, get away from us.” Defendant’s girlfriend also testified that he was in fact disabled and that the men had confronted them and threatened her—causing her to fear for her life.

At the end of the trial, the defense asked for a self-defense instruction in the jury charge and the trial court denied the request.

The Court of Appeals Reversed the Trial Court’s Decision—Holding Defendant was Entitled to a Self-Defense Instruction Regardless of the Fact that he was Charged with Aggravated Assault with a Deadly Weapon.

Section 9.31 of the Texas Penal Code governs self-defense. According to Section 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. Verbal provocation by itself is not enough.

Section 9.32 governs the use of “deadly force” in self-defense cases. In the case at hand, the lower court charged Defendant with using a deadly weapon. However, even if a defendant uses a deadly weapon, deadly force as defined in section 9.32 may not apply if it meets the requirements of Section 9.04.

Under Section 9.04, a threat to cause death or serious bodily injury by the production of a weapon as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

The Court of Appeals determined that Defendant reasonably believed his use of force was immediately necessary to protect against Khan’s use or attempted use of unlawful force, and Defendant produced his gun for the limited purpose of creating an apprehension. Thus, the Court of Appeals ruled that under Defendant’s version of events, the use of his gun did not constitute the use of deadly force, and Defendant was not disqualified from receiving a self-defense instruction even though he was charged with aggravated assault with a deadly weapon because he met the requirement of Section 9.04.

Accordingly, the trial court erred by not submitting an instruction on self-defense to allow the jury to decide the issue of self-defense.

The Court of Criminal Appeals Affirmed the COA—Holding that the Jury Should Have Been Given the Opportunity to Assess Whether Appellant’s Conduct was Justified as Self-Defense.

The Court of Criminal Appeals agreed that the trial court erred in taking away the self-defense issue from the jury. According to Texas case law, it is error for a trial court to deny a self-defense instruction if there is some evidence, from any source, that will corroborate the elements of a self-defense claim—even if the evidence is weak, contradicted or not credible.

The State argued, as well as the dissent, that Defendant was not entitled to a self-defense instruction because he did not admit to threatening the victim with imminent bodily injury. This argument was based on the idea that self-defense is a confession and avoidance justification, and the confession was missing here. The Court however disagreed, inferring a confession.

Here, Defendant testified that he displayed his gun and yelled, “stop,” “get away,” and “leave us alone.” Accordingly, the court held it to be reasonable for the jury to infer that if the men did not stop, Defendant would have used his gun for protection. As such, even though the evidence was contradicted by the State, Defendant believed the display of his gun was immediately necessary to protect himself against the use or attempted use of unlawful force, and that he displayed his weapon for the limited purpose of creating an apprehension that he would use deadly force if necessary.

Using the Court of Appeals’ analysis, the Court of Criminal Appeals affirmed their judgment holding that the jury should have been given the opportunity to analyze Defendant’s actions as self-defense.

See also the Gamino Dissenting Opinion

The Court of Criminal Appeals recently handed down a case regarding a police officer’s findings of reasonable suspicion and probable cause. The issue was whether an officer had probable cause to arrest a customer for theft from a store before she actually exited the store and when she claimed, after being confronted by the officer, that she was going to pay for the items shad had placed in her purse.

State v. Ford, Court of Criminal Appeals (2017)

The Facts—What Happened?

A Corpus Christi Police Department Officer responded to a report regarding a customer in a Dollar General Store concealing store merchandise in her purse and jacket. Upon arriving at the store, the responding officer met with the employee and was given a description of the customer.

The police officer approached a customer matching the employee’s description, identified later as Ford, and informed her that she had been seen concealing merchandise in her purse. Ford replied that she was not done shopping and had intended to pay for the items. However, the officer noticed that Ford had a shopping cart with store items that were not in her purse. The purse was covered by a jacket, which the officer picked up, and discovered that the purse was fully zipped up and full of merchandise. Upon removing the store items from her purse, the officer discovered six small baggies of methamphetamine and two pills.

The State charged Ford with theft over $50 and possession of controlled substances. Ford was subsequently indicted for possession of methamphetamine.

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion and Determined No Reasonable Suspicion or Probable Cause

The drugs found on the defendant were discovered during a theft investigation. The defendant filed a motion to suppress the drugs. The trial court granted the motion to suppress.

At the suppression hearing, the trial court acknowledged that a theft could be complete without the physical removal of the property; however, the court also observed that the defendant never tried to leave the store with the merchandise and “was still shopping.” Further, the court determined that there was insufficient evidence that the defendant intended to steal the merchandise because she did not attempt to leave the store, she did not run or try to conceal anything when approached by the officer, and she stated that she intended to pay for the merchandise.

The trial court concluded that the “officer acted prematurely” in approaching the defendant and asking questions about the merchandise and that inferring an intent to steal was “too big a leap at [that] point.” The trail court questioned the reliability of the information provided during the suppression hearing as it all came from reports by the store employee and the police officer, both of whom were not at the suppression hearing to substantiate the information.

The Court of Appeals Agreed with the Defendant and the State—Holding that the Officer Had Reasonable Suspicion, but Not Probable Cause

On appeal, the State argued that the conversation between the police officer and the defendant was part of a consensual encounter and that the totality of the circumstances gave rise to probable cause to arrest the defendant.

The court of appeals rejected the State’s first claim that the conversation was part of a consensual encounter, but agreed with the State that the police officer had reasonable suspicion to stop the defendant to ask her questions. The court of appeals held that the trial court erred in concluding that the officer lacked reasonable suspicion to conduct a stop.

The court of appeals held that the trial court was within its discretion when it concluded that the State failed to meet its burden of proof establishing probable cause to arrest. This discretion was used when determining that the evidence used by the State was “questionable” with no one able to corroborate the information provided.

The Court of Criminal Appeals Reversed the COA Judgment and Determined that an Officer has Probable Cause to Arrest for Theft Even Before the Defendant Exits the Store

The Court of Criminal Appeals recognized that both the trial court and the court of appeals recognized that it was not necessary for the defendant to take the merchandise out of the store for her to commit theft. Nevertheless, both of the lower courts erred in concluding that the officer did not have probable cause to believe that the defendant intended to steal the items.

The court explained that the officer had knowledge of at least four undisputed facts supporting the idea that the defendant intended to steal: (1) the store employee reported that the defendant was concealing items in her purse; (2) the defendant admitted to the officer that she had concealed items in her purse; (3) the shopping cart had items from the store that were not in her purse; and (4) the defendant’s jacket was covering her purse. The fact that the defendant placed some items in her shopping cart but concealed others in her purse caused the arresting officer to believe the defendant was intending to steal the concealed items.

The court supported this argument by referring to Groomes v. United States, 155 A.2d 73, 75 (D.C. App. 1959), in which the District of Columbia Court of Appeals heard a case—similar to this one—and concluded that once items are removed from the shelf and concealed or put in a convenient place for removal, the elements of a taking and appropriation are satisfied. Further, the police officer could reasonably believe that the placement of the jacket on top of the bag was used to further conceal items.

The court also addressed the lower courts’ concern of reliability of the reports by the employee and the officer. The court notes that the employee’s report was then corroborated by the admission of the defendant, and further, that the employee served as a citizen informant who the officer could reasonably rely on as one of several factors for determining probable cause.

Here, the Court determined that the lower courts erred in concluding that the police officer lacked probable cause to arrest the defendant. Accordingly, the Court reversed the judgments of the courts below.

See Judge Walker's Dissenting Opinion

Is it Error to Provide a Jury with Instructions When the Statutory Language is not Supported by the Evidence?

The Court of Criminal Appeals recently handed down a case regarding the State’s ability to use the full statutory definition of “intoxicated” in a jury charge for DWI cases. The issue faced by the court was whether the trial court erred in providing the jury with portions of the statutory language that were not supported by evidence presented at trial.

Burnett v. State, Court of Criminal Appeals (2017)

The Facts—What Happened?

Burnett was arrested and charged with DWI after rear-ending a vehicle occupied by Bussey and Chappa. When Burnett exited his vehicle both Bussey and Chappa observed him to be intoxicated. Bussey and Chapa smelled the odor of alcohol on Burnett’s breath and noticed his speech to be slurred. Additionally, the first officer on the scene also noticed Burnett to have slurred speech and the odor of alcohol on his breath. Burnett told officers that he had not been drinking and consented to taking the standard field sobriety tests. Burnett showed signs of intoxication during the all three tests and was subsequently arrested.

In a search incident to arrest, officers found pills in Burnett’s jacket and a prescription pill bottle located in his car. The pills and prescription bottle were not photographed or admitted into evidence.

The State later charged Burnett with a Class B misdemeanor DWI and alleged that he was intoxicated “by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of the substances, and any other substance into his body . . .”

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion then Subsequently Admitted the Excluded Evidence as Same-Transaction Evidence.

One of the officers who saw the pills at the scene thought they were hydrocodone and was going to testify regarding such. The defendant filed a motion to suppress arguing that the officers should not be able to testify to what type of pills they found because the officers were not drug recognition experts. The trial court granted the motion to suppress.

Nonetheless, the following day at trial the pill discussion was brought up again. The state advised the Court that there was video evidence from the scene showing officer Coapland, officer Allred, and Burnett talking about the pills. Specifically, it showed that “Coapland found the pills in Burnett’s jacket, he gave them to Allred, who said that the pills looked like hydrocodone. Allred asked Burnett whether he had a prescription for the medication, and Burnett responded that he did.”

The State argued that the evidence of Burnett’s pill possession should be admitted into evidence as same-transaction contextual evidence. Over Burnett’s same objection the trial court admitted the pill evidence.

Then, when the court submitted the instructions to the jury, it included in the full statutory definition of the legal term "intoxicated," which included not only intoxication by introduction of alcohol, but also by introduction of a drug (or a combination of alcohol and drugs).  Burnett objected to this definition, arguing that the proper instruction should not include language regarding drug intoxication because there was no evidence produced at trial to indicate that he had ingested any drugs at the time of his arrest.

The Court of Appeals Agreed with the Defendant—Holding that it to be Error to Submit the Entire Statutory Language.

On appeal, Burnett argued that the trial court erred in admitting evidence that he was in possession of hydrocodone and further argued that the trial court erroneously instructed the jury that it could convict him if it found that any substance other than alcohol intoxicated him.

The court of appeals agreed and held that the charging instrument must apply the law to the facts. In support they distinguished the facts in Burnett from those in Ouellette, a 2011 court of criminal appeals case.

In Ouellette, the defendant appeared intoxicated. After her arrest, officers found a drug that she expressly identified that was known to produce the same symptoms of intoxication as alcohol. Although there was no direct evidence that she consumed the drug, there was circumstantial evidence from which a rational juror could have found that she did based on her express identification of the drug and the officer’s testimony that the drug would produce similar symptoms. Thus, the jury charge in Ouellette reflected the law as it applied to the evidence.

The Court of Criminal Appeals Affirmed the COA Judgment and Agreed that the Jury Charge was Erroneous Since it did not Apply the Law to the Facts Produced at Trial.

The State appealed the appellate court reversal and argued that the jury charge should include the entire statutory definition regardless of the evidence presented at trial. More specifically, the State argued that the focus is only on whether the defendant is intoxicated, not the intoxicant itself. In support of this argument, the State referred to Judge Cochran’s dissenting opinion in Gray v. State, 152 S.W.3d 125, 136 (Tex. Crim. App. 2004) (Cochran, J., dissenting).

In response, Burnett argued that while the State only needs to allege that the defendant was “intoxicated” and is permitted to use the language of the entire statutory definition, it would be erroneous to provide the jury with a section of statutory language that is not supported by the evidence at trial. Burnett argued that ruling for the State would allow “such guessing [that] could ensnare thousands of innocent Texans, such as fatigued drivers and those with naturally bad balance, even though they never ingested any substance as required to prove intoxication.” Burnett also claimed that the State misinterpreted Judge Cochran’s dissent and would not apply.

The Court of Criminal Appeals agreed that the State misinterpreted Judge Cochran’s dissent; the dissent discussed pleadings rather than jury charges and thus, was not applicable. Furthermore, the Court declined to follow the State’s argument that in every case the full statutory language should be allowed regardless of evidence. The court reasoned that the trial court is responsible for ensuring the jury instructions set forth the law applicable to the evidence in the case. As such, the jury charge must be tailored to the facts presented during the trial.

The court also noted that a jury will still be permitted to consider whether the defendant is intoxicated by “any other substance” if there is evidence that the defendant ingested a substance that caused intoxication or there is circumstantial evidence for a rational juror to make an inference, like Ouellette.

Here, the Court determined that Burnett only showed signs of intoxication by alcohol—nothing else. The odor of alcohol was present on his breath, he had slurred speech and he failed the field sobriety tests. The fact that police later found pills that may have been hydrocodone was irrelevant because “there was no evidence as to what kind of drug hydrocodone is, whether it can cause intoxicating effects, or whether the symptoms of intoxication Burnett was experiencing were also indicative of intoxication by hydrocodone.” These criteria were the critical elements that were present in Ouellette but not in Burnett’s case. Accordingly, the court held the jury charge in Burnett’s case to be erroneous because it did not apply the law to the evidence presented at trial and it constituted harmful error.

Takeaways...

In any DWI case, if there is no evidence presented at trial that would suggest intoxication by drugs or vice versa by alcohol, then the defense should ask for the statutory language in the jury charge to be limited to only facts produced. Additionally, the mere fact that drugs are found is not enough, by itself, to have such language in the jury charge. If Burnett had not objected to the full statutory definition of intoxication, he could have been finally convicted based on evidence never presented at trial. (In Judge Richardson’s concurring opinion he also notes that there were no objections made to the evidence in Ouellette).

Judge Richardson Concurring Opinion

Presiding Judge Keller Dissenting Opinion

Judge Yeary Dissenting Opinion

Does Failure to Control Speed and Keep a Proper Distance from other Vehicles Prove a Gross Deviation from the Standard of Care that an Ordinary Driver Would Exercise Under the Circumstances?

The Court of Criminal Appeals recently handed down an opinion in Queeman v State regarding criminally negligent homicide. The issue facing the court was whether a death, which was caused by Appellant’s failure to control the speed of his vehicle and failure to maintain a proper distance from another vehicle, proves a gross deviation from the standard of care amounting to criminally negligent homicide.

Trial Court Found Appellant Guilty of Criminally Negligent Homicide.

Appellant was traveling down a two-lane highway when he drove into the back of an SUV that was waiting to make a left turn onto an intersecting road. The impact caused the SUV to be pushed into oncoming traffic where it was subsequently hit, killing one of the passengers. The accident investigator could not determine Appellant’s actual speed, and there was no other evidence to suggest a reason for his inattentiveness. However, Appellant was charged and convicted of criminally negligent homicide and sentenced to eighteen months in a state jail facility.

The Court of Appeals Reversed the Conviction, Holding that the Evidence was Legally Insufficient to Support the Conviction.

On appeal, Appellant challenged the sufficiency of the evidence from which his conviction was based upon. The accident investigator admitted that he had no way of knowing Appellants actual speed, nor did he know the amount of time or reason the Appellant was inattentive. The court of appeals determined that the evidence at hand provided no reasonable basis for the jury to prove that Appellant was traveling at excessively high speeds or was distracted for a certain reason—such as texting. As such, an inference would only amount to mere speculation. Therefore, the Court of Appeals reversed the trial courts decision.

The Court of Criminal Appeals Affirmed the Court of Appeals’ Decision—Holding the Evidence did not demonstrate that Appellant’s conduct rose to the Level of “Criminal Negligence.”

To demonstrate that Appellant was criminally negligent, the State must prove:

• The defendant’s conduct caused the death of the individual;
• The defendant should have been aware that there was a substantial and unjustifiable risk of death from his conduct; and,
• The defendant’s failure to perceive such risk constituted a gross deviation from the standard of care and ordinary person would have exercised under similar circumstances.

However, the Court notes that the amount of carelessness for criminally negligent homicide is much higher than for civil negligence. Here, the Court agreed that Appellant’s conduct was negligent, however it held that the conduct did not rise to gross negligence. While the evidence was sufficient to prove that the defendant was speeding, it was not sufficient to prove that he was excessively speeding, and the State presented no evidence concerning the reason or length of time for which Appellant was inattentive. Absent any other evidence to show a failure to perceive a substantial and unjustifiable risk caused by the defendant’s conduct, no reasonable jury could have found that Appellant’s conduct constituted a gross deviation from the standard of care of an ordinary person under the circumstances. Therefore, the Court of Criminal Appeals affirmed Appellant’s acquittal.