CCA

Can a Roommate Who is Not on the Lease be Convicted of Burglary of His or Her Own Residence?

The Court of Criminal Appeals recently held that a roommate, who is not a co-tenant on the lease, could be convicted of burglary into his or her own residence. The key issue facing the Court was whether Appellant Dewan Morgan was an owner of the apartment he was residing in at the time of the criminal act.

In order to commit a Burglary of a Habitation, a person “without the effective consent of the owner (a) enters a habitation with intent to commit an assault or (b) enters a habitation and commits or attempts to commit an assault.” Tex. Penal Code § 30.02(a)(1). An “‘owner’ means a person who has title of the property, possession of the property, or a greater right to possession of the property than the person charged.” Tex. Penal Code § 1.07(a)(35).

Morgan v. State (Tex. Crim. App. 2016)

The Facts – Trial Court Found Appellant was NOT Considered an Owner

Dewan Morgan moved in with his girlfriend, Regina, in November of 2012. Regina gave Dewan Morgan a key to the apartment, but did not add his name to the lease. She mostly paid the bills and expenses with occasional help from Appellant. Additionally, Appellant kept his personal items at the apartment.

On June 20, 2013, Morgan and Regina got into an argument. Regina did not want Morgan back in the apartment, so she locked the deadbolt from inside the apartment so that Morgan could not get in with his key. He knocked on the door and rang the doorbell, but Regina did not open the door. Morgan threw a rock into a side window, which broke the window, and then began kicking in the door. He was able to gain entry into the apartment, and when he went inside he grabbed Regina, pushed her to the bed, bit her on the side of her left breast, punched her, and choked her. The police arrived and arrested Morgan. The jury found Morgan guilty of Burglary of a Habitation - a 2nd Degree Felony.

The Court of Appeals Reversed and Found Appellant was an Owner and Could Not Commit Burglary

The Second Court of Appeals held that there was “no evidence of the absence of ‘the owners’ consent” because Appellant was a co-tenant, thus an owner of the apartment. The court erroneously relied on Texas Code of Criminal Procedure, Article 21.08, which provides a definition of an owner for indictment purposes. Under that definition, the court held that because Appellant lived in the apartment and kept his belongings inside it, he was also an owner of the apartment. Additionally, there was no evidence that his tenancy was terminated, thus he had the right to occupy and control his apartment.

The Court of Criminal Appeals Reverses — Holds Appellant was Not an Owner and Did Not Have Effective Consent to Enter the Apartment

The CCA followed the Freeman standard to determine ownership: “A person’s ‘right to possession’ must be measured at the time of the accused’s alleged criminal act.” Freeman v. State, 707 S.W.2d 597 (Tex. Crim. App. 1986). The Court also extended this application to effective consent and concluded that “if a person’s status as ‘owner’ is measured at the time of the criminal act, then so is giving, or removing, of the effective consent to enter.” Essentially, the Court takes a snapshot of the criminal action and determines effective consent in only that instance.

The CCA first analyzed who the owner of the apartment was. It quickly rejected reliance on Article 21.08 because it is “only applicable in evaluating the sufficiency of an indictment.” Instead, the Court looked to the Penal Code’s definition that was included in the jury charge, as noted above. The Court said the “Penal Code’s definition of ‘owner’ clearly indicates that a defendant who has some, but less, right to control a habitation than the alleged owner may be prosecuted for burglary.”

The key concern for the Court was whether Regina’s right to possess the property was greater than Appellant's at the time of the criminal act. The Court considered that only Regina’s name was on the lease, that she paid the rent, and that she gave Appellant a key and she could take it away. Ultimately, Regina’s possession of the apartment was greater than Appellant’s, which did not give Appellant equal ownership rights. The Court held that at the time of the offense, Regina’s right to possess the apartment trumped Appellant’s and that only she was the owner at the time of the criminal act.

The CCA next analyzed whether there was no effective consent to enter. Again, the Court analyzed effective consent only in the snapshot of when the criminal act occurred. Even though Regina testified at trial that she did not intend to permanently withhold consent to enter and it was only temporary, the Court found that the temporary revocation of consent during the criminal act was “sufficient to establish the absence of effective consent.” When Regina locked Morgan out of the apartment during their argument, the Court found it clear that Regina did not want Morgan to enter the apartment. Thus, the CCA held that Morgan did not have effective consent to enter the apartment.

The CCA’s Snapshot Analysis – Evidence is Legally Sufficient to Support the Jury’s Guilty Verdict

The CCA considered the factors during the time of the crime and held that the jury was authorized to find that Regina was the owner of the apartment because she had a greater right to possession of the apartment than Appellant, and at the time Appellant entered the apartment, he did so without the effective consent of Regina and with the intent to assault her.

This week, the Texas Court of Criminal Appeals released Henley v. State. In a 4-3 decision the divided court held that the defendant was not allowed to offer “defense of a third party” as a legal argument in his assault case, because it “was not material to, nor probative of, any fact that was of consequence to the determination of this action.”

Henley v. State (Tex. Crim. App. 2016)

Henley was Charged with Domestic Violence in Tarrant County and Offered a “Defense of Others” Argument at Trial

Mr. Henley was charged with misdemeanor assault causing bodily injury to a family member (domestic violence). Henley was alleged to have pulled his ex-wife out of her car by her hair, punched her in the face several times, and hit her head against the concrete driveway.

At trial, Henley asserted a “defense of others” defense, which is an extension of the traditional self-defense argument. The rationale he provided for this defense was that he did not think his ex-wife was a fit parent because her new husband had sexually and possibly physically assaulted the children. The mother’s new husband was not present during the altercation and did not pose any immediate threat, but Henley tried to argue nonetheless that he was defending his children from being exposed to a physically and sexually abusive environment.

The trial judge did not allow Henley to present the defense of others claim and he was convicted. The 2nd District Court of Appeal (Fort Worth) reversed the trial court, holding that Henley should have been allowed to present his defense. The State appealed to the Court of Criminal Appeals.

What is the Standard to Assert Defense of a Third Party?

To claim defense of a third person, a defendant must reasonably believe his intervention was immediately necessary to protect the third person from the threat of force.

The question in this case was not, “is defense of a third person an effective defense when considered by the jury?” Rather the question was “should the defendant be allowed to bring that defense at all under these facts?”

A Divided CCA Holds that the Trial Judge Did Not Err in Denying Henley the Ability to Raise Defense of a Third Person

The slim majority said no,. Henley should not be able to bring this defense because his aim was not to offer material or probative evidence, but rather to introduce evidence of how bad of a mother. Henley’s ex-wife is, and perhaps try to finagle a jury nullification. The majority saw Henley’s attempted defense as nothing more than an attempt to circumvent the judicial and evidentiary process and try to make an emotional appeal to the jury rather than a factual one.

The dissenting judges (Keller, Hervey, and Newell) argued that the defense should have been allowed because anything thing that is of consequence to the determination of the action more probable or less probable than it would be without the evidence should be deemed relevant and therefore admissible. Further, the question of whether Henley’s defense claims were reasonable belonged to the jury not the judge. It was the jury who should decide if Henley, in fact, acted reasonably on that day in question.

What are the Implications of this Holding for the Defense of Third Person Claim in Texas?

This case demonstrates that Defense of a Third Person is not as easy as simply claiming it. There must be evidence to show that the defense is reasonable. The evidence must show that the “intervention was immediately necessary to protect the third person from the threat of force” or it could be disallowed by the trial judge. The valid defense of others is still viable; as viable as it ever was. It simply must fit the facts.

The Fugitive, The Doctrine of Chances, and The Texas Rules of Evidence Collide: CCA Reviews a “Movie Plot” Defense Strategy

Dabney v. State (Tex. Crim. App. 2016)

Have you ever seen a movie like The Fugitive or Double Jeopardy where the main character finds himself in suspicious circumstances, only to be arrested and convicted, with the rest of the movie focused on proving the main character’s innocence? The defense counsel in Dabney v. State used this sort of analogy as the theme of his case to the jury—that the defendant was trapped in a bad movie plot and wasn’t actually guilty of any crime.

A Mystery Meth Lab Was Constructed at the Defendant's Home

Defense counsel made a memorable opening statement at Ronnie Dabney’s trial. Dabney had been arrested and charged with manufacturing meth. Defense counsel told the jury that the evidence would show that the meth lab found on Dabney’s property was set up by others, without his knowledge, and that Dabney arrived home mere moments before law enforcement arrived to discover the lab. Defense counsel offered a movie-plot defense theory, “Have you ever seen a movie like The Fugitive or Double Jeopardy where a person is found in suspicious circumstances and [they] arrest and convict them?” The defense added, “Ronnie Dabney has been living this movie where he’s innocent, found in suspicious circumstances, and he’s trying to prove himself not guilty.”

In response to the movie-plot defense theory, the State filed a brief arguing that it should be permitted to present evidence of a previous incident years ago, in which Dabney was present when a search warrant was executed on his property and an active meth lab was found. The State argued that the opening statements about the movie-plot amounted to a defensive theory, where evidence or mistake is at issue, worthy of a rebuttal argument supported by rebuttal evidence allowed under Rule 404(b) of the Texas Rules of Evidence.

Before trial, Dabney submitted a request for “notice” of the State’s intent to use evidence of past “extraneous” offenses under the Texas Rules of Evidence 404(b). The state failed to give proper notice of any 404(b) allegations. However, after hearing the defense opening statement, the State argued that the similarities between the case at bar and a previous case “rebutted [Dabney’s] defensive theory of accident or mistake” and requested permission to use the previous incident as 404(b) evidence to show the absence of mistake. The judge concluded the evidence of the previous crime was admissible. During closing remarks, the State averred, “[Dabney is] the unluckiest man in the world…[he] wants you to think [he] is Harrison Ford from the Fugitive…[with] a confluence of unfortunate events that frame him…but…common sense says it’s not an accident if it has happened twice…it’s the Doctrine of Chances.” Ronnie Dabney was found guilty of manufacturing meth and the jury sentenced him to 30 years imprisonment.

Dabney appealed to the Second Court of Appeals arguing the State failed to give proper notice of intent to use evidence of Dabney’s past crimes in its rebuttal argument under Texas evidentiary rules. The Fort Worth Court of Appeals reversed the trial court’s judgment, holding that the evidence of Dabney’s past crimes was inadmissible without proper notice from the State. Dabney v. State, No. 02-12-00530-CR, 2014 Tex. App. LEXIS 11496 (Tex. App.—Fort Worth, Oct. 16, 2014) (mem.op., not designated for publication). The State petitioned the Court of Criminal Appeals for review, arguing that notice is not required for rebuttal evidence because defensive theories cannot be predicted ahead of time. Dabney asserts that the State has a duty to anticipate all defensive issues that may come up in rebuttal.

The Court of Criminal Appeals considered the following issues (among others not discussed in this article):

(1) Did the court of appeals incorrectly add a “notice requirement” for rebuttal evidence?
(2) Did the court of appeals improperly ignore the overwhelming evidence of Dabney’s guilt?

Texas Evidentiary Rules Regarding Other Crimes, Wrongs, or Acts

Rule 404(b) of the Texas Rules of Evidence states

evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity [of the crime being prosecuted].” “However, [such evidence] may be admissible for other purposes, such as…intent, preparation…knowledge…absence of mistake or accident, provided that upon timely request by the [defendant], reasonable notice is given in advance of trial of intent to introduce in the State’s case.

A defense opening statement can open the door for the admission of extraneous-offense evidence to rebut the defensive theory presented in opening statements. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).

The Doctrine of Chances tells [the court] that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” LaPaz v. State, 279 S.W. 3d 336, 347 (Tex. Crim. App. 2009).

Rule 404(b) is a rule of inclusion, rather than of exclusions—it excludes only evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that bad character. Id. at 343.

The CCA Holds that the Court of Appeals Improperly Added a Notice Requirement for Rebuttal Evidence

Here, the CCA reversed the decision of the court of appeals, holding that the court of appeals improperly added a notice requirement for rebuttal evidence and ignored the overwhelming evidence pointing to Dabney’s guilt. Because of the exception to the notice requirement when the defense opens the door to rebuttal evidence by presenting a defensive theory that the State may rebut using extraneous-offense evidence, the evidence of the prior crime was proper at trial, even without notice to defense beforehand. “To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of any trial, any and all potential defenses that a defendant may raise.” Also, there was no evidence that the prosecution acted in bad faith, or attempted to willfully avoid a discovery order. “Under the Doctrine of Chances, [Dabney’s] defense that he found himself in an unfortunate, highly unlikely situation becomes less credible when presented with evidence that he has been found in the exact same situation before.”

In sum, [Dabney] presented his defensive theory in opening statements and the State could use extraneous-offense evidence to rebut this theory in its case-in-chief, instead of waiting until the defense rested. Bass at 563. Defendants who are planning to use the “movie plot” defensive theory in the future, must be prepared to have the theory tested in front of a jury with 404(b) rebuttal evidence of other crimes, wrongs, or acts.

Court of Criminal Appeals Considers Whether Defense Failed to Preserve Appeal

Smith v. State (Tex Crim. App. 2016)

Warrantless Blood Draw Provides Evidence of DWI

William Smith was stopped by police for driving without a seatbelt. Immediately, law enforcement suspected Smith of driving under the influence because of the “extremely strong smell of alcohol” coming from Smith. Accordingly, law enforcement administered several field sobriety tests and determined that Smith “exhibited clues of intoxication.” Smith became belligerent after being arrested, and refused a breathalyzer. Law enforcement searched Smith’s car incident to his arrest, finding three open containers that were “cold to the touch.” Dashboard camera footage captured the entire stop.

Law enforcement decided to transport Smith to a local hospital for a blood draw because a quick check of Smith’s ID showed that he had two prior DWI convictions. The blood sample taken at the hospital reflected a blood-alcohol concentration of .21 grams of alcohol per 100 milliliters of blood—well above the legal limit of .08. Smith elected a bench trial.

Defense Counsel Argues that Blood Draw was Unconstitutional, Trial Judge Seems to Agree

At trial, the State called a forensic scientist to testify about Smith’s blood sample. The forensic scientist testified that Smith’s blood alcohol level exceeded the statutory minimum of .08. Shortly thereafter, there was discussion between the judge and counsel about Texas case law in regards to whether the court must have an “order” signed by a judge or magistrate in order for a blood alcohol test to be admitted into evidence. The defense counsel stated, “I would…object…on constitutional grounds [because] there should be a written order [in evidence].” The State replied that law enforcement was “operating under the laws of the State.” The judge seemed to agree with defense counsel, “No…the legislature allows for this…but that doesn’t mean the law is constitutional.” The judge decided to “carry” the constitutional issue so that each side could research and make a formal brief before the court. However, at the end of the trial, Smith was convicted of DWI. The judge stated the “video of [Smith] showed signs of intoxication, but the judge was surprised…that [Smith]…did as well as he did on the [field sobriety tests]” given the .21 blood alcohol concentration. The judge sentenced Smith to twenty-five years imprisonment. There were no further objections on the record made by defense counsel post-judgment.

Appeal Turns on Lawfulness of the Blood Draw

On appeal, the court of appeals reversed Smith’s conviction because the blood sample was obtained without a warrant, violating the Fourth Amendment. State appeals to the Court of Criminal Appeals, arguing that Smith did not preserve error at trial with regard to his Fourth Amendment issue, and as a result of the failure, Smith was precluded from raising a constitutional argument on appeal.

The Issue Before the CCA - Did the Defense Preserve Appeal of the Blood Draw Issue?

The CCA must determine whether defense preserved error so that the fourth amendment search and seizure issue could be raised on appeal. To preserve error, defense counsel must obtain a ruling on the complaint, or object to the trial judge’s refusal to rule.” Tex. R. App. P. 33.1(a)(2) However, “even evidence that is improperly admitted is considered in determining whether the evidence is sufficient to support a conviction.” Soliz v. State, 432 S.W.3d 895, 900 (Tex. Crim. App. 2014).

The CCA Holds that Appellate Issue was NOT Preserved

Here, the CCA determined that the trial judge declined to rule on the Fourth Amendment constitutional issue at the time, but decided to “carry” the issue. Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004). The CCA says that although the trial judge admitted the blood-alcohol test results, he did not rule on Smith’s initial objection, and thus, error was not preserved in this case. “In any event,” says the CCA, “there was…evidence to support [Smith’s] conviction aside from the blood-test results.” “Smith never asked for a ruling on the [constitutional issue], nor did defense counsel object to the trial judge’s failure to rule. In sum, failure to preserve error on a fourth amendment search and seizure argument for warrantless blood draws in DWI cases precludes a defendant from raising the constitutional argument on appeal.

Trial Judge Properly Imposed Deferred Adjudication in Sexual Assault Case, says CCA

Anthony v. State (Texas Court of Criminal Appeals, 2016)

Note: This article contains sensitive subject matter dealing with the sexual assault of a minor.

Defendant Pleads Guilty to Sexual Assault Allegations in Exchange for Deferred Adjudication

In 2009, John Anthony was indicted for aggravated sexual assault of a child under fourteen years old. In a plea agreement, Anthony pleaded guilty to the charge in exchange for the prosecution’s recommendation of deferred-adjudication with community supervision. Generally speaking, deferred-adjudication is a type of probation in which a defendant enters a plea of guilty, but the judge defers the ruling for a set amount of time. If the set amount of time passes without further criminal activity or other technical violations by the defendant, the judge sets aside the plea and dismisses the case. For Anthony, the trial judge ordered a deferred period of eight years.  During this time, the defendant would remain on community supervision, under the watch of a probation officer. The judge listed the victim’s age as three years old on the official trial judge’s order for deferred adjudication—not "under fourteen years old" as was listed on Anthony’s indictment.

Several years passed until 2013, when the State moved to adjudicate because Anthony allegedly violated his community supervision directives. Finding the new allegations to be true, the judge adjudicated Anthony guilty and sentenced him to life in prison. Once again, the judgment listed the victim’s age as three years old, not fourteen years old as was listed on Anthony’s original indictment.

Age Discrepancy on Judge’s Orders Leads to Sentence Reversal

Anthony appealed his adjudicated sentence with court-appointed counsel, who eventually filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). While reviewing the Anders brief, the court of appeals became concerned about the discrepancy in the victim’s age listed on the judge’s orders and on the original indictment. Specifically, the court of appeals was concerned that the trial court’s “finding” that the victim was three years old meant that under section 42.12 of the Texas Code of Criminal Procedure, the trial judge was entirely precluded from imposing deferred adjudication in the first place. TEX. CODE CRIM. PROC. Art. 42.12, § 5(d)(3)(B) (West 2006 & Supp. 2015). Additionally, the court of appeals was concerned that the age discrepancy error led to a potential flaw in sentencing. Further, the sentencing flaw potentially pointed to the fact that Anthony’s trial counsel could have been ineffective, possibly inducing Anthony into pleading “guilty” to a deal that should have never been made at all. Accordingly, the court of appeals reversed the trial court’s judgment. The State petitioned the Court of Criminal Appeals to review the case.

Can the Trial Court Place a Defendant on Deferred Adjudication for a Sexual Offense involving a 3 Year-Old Victim?

Now, the Court of Criminal Appeals must determine whether the potential age discrepancy error on the original indictment and on the trial judge’s orders created a procedural error during sentencing, possibly leading to ineffective assistance of counsel. If the age discrepancy is problematic procedurally, what should happen to Anthony’s original sentence?

Here, the Court of Criminal Appeals says that the trial judge properly imposed deferred adjudication. Because the indictment read that the victim was “younger than fourteen years old” and because there is nothing in the trial record to indicate that the State intended to prosecute under more stringent statutes with more stringent punishment guidelines, the CCA holds that the original sentence is proper. Further, the CCA deems Anthony’s previous trial counsel to be effective. Accordingly, the CCA strikes the “three year old” victim language in the trial court’s order, amending the language to reflect that the victim, “was younger than fourteen years of age at the time of the offense.” TEX. CODE CRIM. PROC. art. 42.015(b); TEX. R. APP. P. 78.1(c). Anthony’s sentence of life imprisonment stands because his deferred adjudication was properly imposed in 2009.