CCA

Texas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained in Cornet v. State:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.

Under the Fifth and Sixth Amendments, a criminal suspect is guaranteed the right to counsel.  But there’s a difference between what the two amendments provide.  The Fifth Amendment right to counsel was created by the Supreme Court decision in Miranda v. Arizona, where the Court held that a person has the right to have counsel present during custodial interrogation (interrogation counsel).  The Sixth Amendment guarantees a defendant the assistance of counsel for his defense at trial (trial counsel).

Over the past four decades, the jurisprudence concerning the Fifth Amendment right to counsel during police interrogation (interrogation counsel) and the Sixth Amendment right to counsel at all critical stages of criminal proceedings (trial counsel) had become intertwined in complex and confusing ways. It was increasingly difficult for courts to determine which right can be invoked when and whether invocation of the right to counsel under one amendment invoked the right to counsel under the other amendment.

Pecina v. State, a recent Texas Court of Criminal Appeals case, illustrates the confusion that existed between the two rights to counsel.  In Pecina, Arlington Police officers arrested the defendant for the murder of his wife and took him to the hospital rather than the jail because he had suffered significant stab wounds (allegedly self-inflicted).  Because Mr. Pecina could not be transported to see a magistrate within 48 hours as required by the Texas Code of Criminal Procedure, the police officers brought a magistrate to him.  A bilingual magistrate.  The magistrate advised Mr. Pecina (in Spanish) of his Article 15.17 rights including, inter alia, the right to have an attorney present throughout the criminal trial process (i.e. trial counsel – 6th Amendment).

“After reading appellant his rights, [the magistrate] asked if he wanted a court-appointed attorney.  And he stated that he did.” She then asked Mr. Pecina if he “still wanted to talk to [the detectives]?” He said that he did.  The magistrate (as she later testified) believed that, when Mr. Pecina asked for counsel, he was asking for trial counsel, not interrogation counsel.  The two detectives then entered the hospital room and issued Mr. Pecina his Miranda warnings (in Spanish).  Mr. Pecina waived his Miranda rights, did not request an attorney, and gave a statement.  He was later convicted for murder after his statements to the detectives were admitted against him at trial.

These facts raise important questions:

When Mr. Pecina told the magistrate that he wanted a court-appointed attorney, did he invoke his rights under both the 5th and 6th Amendments? Should the police have refrained from initiating further questioning until he had an attorney present?

Prior to the 2009 Supreme Court decision in Montejo v. Louisiana, 556 U.S. 778, the controlling case regarding the two intertwining rights to counsel was Michigan v. Jackson, 475 U.S. 625 (1986). “In Michigan v. Jackson, the Supreme Court had held that ‘if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.’"

Under Michigan v. Jackson, Mr. Pecina’s assertion of his right to counsel that he made to the magistrate in the hospital would have been enough to preclude the police from initiating further interrogation. Or, if the police did later initiate interrogation, any statement Mr. Pecina made should have been suppressed at trial.

But all of that changed under Montejo in 2009. In Montejo, the Supreme Court disentangled the right to interrogation counsel with the right to trial counsel.

Distilled to its essence, Montejo means that a defendant’s invocation of his right to counsel at his Article 15.17 hearing says nothing about his possible invocation of his right to counsel during later police-initiated custodial interrogation. The magistration hearing is not an interrogation event.

Analyzing the Pecina case in the wake of Montejo, the CCA explained that “[i]n this case, there were two separate events: magistration followed by a custodial interrogation.” The CCA then held that “under the totality of the circumstances…an objective and reasonable police officer, conducting a custodial interrogation would conclude that appellant had voluntarily waived both his Fifth and Sixth Amendment rights to counsel for the purposes of custodial questioning.”

The CCA went further to clarify the new rule, explaining that under the Supreme Court decisions in Montejo, Miranda, Edwards, and Minnick, a suspect’s Fifth Amendment rights (to interrogation counsel) are only triggered “AFTER THE POLICE INFORM HIM OF HIS RIGHT TO COUNSEL AT THE BEGINNING OF A CUSTODIAL INTERROGATION.” Emphasis added.  Ultimately, the CCA held that the magistration hearing (in which Mr. Pecina requested an attorney) did not trigger any Fifth Amendment right concerning custodial interrogation; that, the CCA explained, was done by the detectives at the beginning of their interrogation.

PRACTICE NOTE: A criminal defendant/suspect must now request an attorney, unequivocally, at every stage of the criminal justice process.  Interrogation.  Arraignment.  Magistration.  Every stage.  This is a significant change in Texas criminal procedure.

Judge Alcala joined the majority opinion but wrote a separate concurring opinion, in which she notes:

The magistrate’s interpretation (that Mr. Pecina only requested trial counsel and not interrogation counsel) misses the whole point of the warning, which is the right to have an attorney present ‘during any interview with peace officers.’ I conclude that the record indisputably shows that appellant’s request for an attorney was a request to have an attorney present during interrogation, as well as during court proceedings. …Appellant’s request for an attorney was, at most, a pre-invocation of his right to counsel.

Judge Alcala believes that the “Legislature could easily fix [the confusion between the two rights to counsel] by adding one sentence to the Article 15.17 admonishments: ‘If you desire to have an attorney present during police interrogation, you must make that request at the time of the police questioning.’”

Judge Price dissented, opining that “[a]ny reasonably objective viewer would conclude from the peculiar facts of this case that [the magistrate] was acting as a de facto agent of the interrogating detectives." He went further:

That the invocation [of Mr. Pecina’s rights] also occurred during a simultaneous “magistration,” while accurate, does not detract from its essential character for Fifth Amendment purposes. And once a suspect has made it clear that he desires the assistance of counsel in coping with police interrogation, we are not entitled to look at his subsequent responses to official entreaties “to determine in retrospect whether the suspect really meant it when he unequivocally invoked his right to counsel.”

Judge Price believes that Mr. Pecina's Fifth Amendment right to interrogation counsel was violated.  I agree.

The 5th Amendment to the United States Constitution: “[N]o person…shall be compelled in any criminal case to be a witness against himself.”

On January 25, 2012, the Texas Court of Criminal Appeals issued its opinion in the case of Johnson v. State.  This case specifically dealt with a situation that occurred during the sentencing phase of a trial involving defendant Charles Michael Johnson.  Johnson was arrested in 1991 and subsequently indicted for Possession of a Controlled Substance with intent to deliver.  He was released on bond and failed to appear for any further hearings.  Eighteen years later, Johnson was arrested in Florida and returned to Texas to face the charges.  He was convicted by a jury at trial and then elected to have the court assess punishment.

After the State rested it’s punishment case, the defense had the court take judicial notice of the pre-sentence investigation and then rested.  At that point, the judge asked the Defense if its client wanted to testify.  The Defense stated that he would not.  The judge’s response was, “In all candor, I would kind of like to know what he’s been doing for the last 18 years.” The Defendant then went to the witness stand and testified.  At the end of the hearing, the judge stated, “ Okay. Well, this is obviously a very difficult case in that it’s apparent to me that he has stayed out of trouble, essentially at least, in any realistic way.  I mean, driving with a license suspended is no big deal in the context of things, but on the other hand, I don’t want to reward somebody for running, and I do believe that the defendant lied under oath, sir. I’m sorry. That’s what I think.” The judge then sentenced him to ten years’ confinement.

On appeal, Johnson argued that the trial court had compelled him to testify against himself in violation of his Fifth Amendment right to silence.  The CCA relied on previous precedent establishing the general rule that the privilege to avoid self-incrimination is ordinarily not self-executing.  Minnesota v. Murphy, 465 U.S. 420.  By “not self-executing,” the CCA noted that a defendant can voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the stand and make incriminating statements even if not done knowingly or intelligently.  The CCA stated that the issue was not whether Johnson make a knowing, intelligent and voluntary waiver of his privilege to remain silent, but whether he voluntarily testified or was “coerced” to testify against his will.  The CCA indicated that this question hinged on whether Johnson feared that the trial court would penalize him for remaining silent (which the Court also called the “classic penalty situation”).  The Court found that there was no direct evidence that it would.  Additionally, the CCA found that neither Johnson nor his counsel made any comment indicating that they believed if he remained silent a greater punishment would be assessed.

Finding that Johnson was not confronted with the “classic penalty situation,” the CCA held that he had forfeited his Fifth Amendment right to remain silent when he voluntarily took the stand in his own defense, despite the trial courts comments before he did so.

The Right to Confrontation and the Outcry Witness

Sanchez v. State – Recently released and designated for publication, the Texas Court of Criminal Appeals considered the admissibility of outcry statements by alleged child sexual assault victims.

In this case, appellant was charged with sexually abusing his step-daughter. The step-daughter had made an outcry statement to a witness who ultimately became unavailable. The outcry witness was available at a pretrial hearing and testified as to the extent of the outcry and as to the statement made to her. At trial, after the State discovered that the outcry witness was unavailable to testify, the prosecutors moved the court to read the testimony that was taken during the pre-trial hearing to the jury. Over defense objections, the trial court allowed the testimony to be read to the jury. Appellant was convicted on multiple counts of sexual assault, and received concurrent sentences of 28, 15, 7, 5, and 5 years for his convictions.

The defense’s primary objection at trial was that by allowing the prior testimony to be read to the jury, the court violated Sanchez’s Sixth Amendment right to confrontation.

Article 38.072 of the Code of Criminal Procedure allows a victim’s out-of-court statement made to an outcry witness to be read into evidence so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. The problem with the case against appellant was that, while the hearsay of the victim’s statement to the outcry witness would have been admissible under 38.072 of the Texas Code of Criminal Procedure, reading the testimony of the unavailable outcry witness to the jury at trial was hearsay within hearsay. The Court noted that “in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant.”

The Court boiled the case down even further by concluding that the ultimate issue in this case was whether appellant had an adequate opportunity to cross-examine the outcry witness at the Article 38.072 hearing. The Court stated that the only relevant question at an Article 38.072 hearing is whether, based on time, content, and circumstances of the outcry, the outcry is reliable. Because an Article 38.072 hearing does not provide an adequate opportunity to cross-examine an outcry witness’s credibility, the Court held that admitting the testimony from the pre-trial hearing to be read to the jury violated appellant’s Sixth Amendment right to confrontation. The court reversed the case and remanded it to the Court of Appeals for an analysis of harm caused by the unconstitutional admission of the outcry witnesses’ pre-trial testimony.

With this holding, the CCA sent a message to the State that it won’t be allowed to “backdoor” hearsay if the outcry witness becomes unavailable at trial.

Section 32.31(b)(1) of the Texas Penal code provides that a person commits the offense of Credit Card Abuse or Debit Card Abuse if that person “presents or uses” a credit/debit card that was not issued to him and is not used with the owner’s consent.  But what does it mean to “present” or “use” a credit/debit card? Can someone “present” a credit/debit card without “using” it?

The Texas Court of Criminal Appeals considered this issue recently in the case of Clinton v. State.  In this case, the appellant had been convicted of the state-jail felony of debit card abuse after she used a stolen debit card to attempt to purchase cigarettes at Wal-Mart.  Notwithstanding the fact that the store declined the card and appellant never completed the transaction, the jury convicted her of “using” the stolen debit card under Section 32.31 (the State did not charge her with “presenting” the card).

On appeal, the 6th District Court of Appeals (Texarkana) reversed the conviction and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse.  The COA reasoned that appellant did not “use” the debit card, but rather “presented” it.  Because the transaction was not ultimately consummated and she did not obtain a benefit, the COA held that the evidence was insufficient sustain her conviction for "use."

The Texas Court of Criminal Appeals took the case on the State’s petition for discretionary review.  The State argued that the COA erred by requiring that “use” of a debit card include proof of consummation of the transaction.  The CCA held:

Based on the ordinary meaning of the words as used in the statute, we conclude that the statutory terms “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that the court of appeals erred by determining that the evidence is insufficient to establish debit card abuse.

The CCA concluded that appellant “used” the debit card when she swiped it through the card reader for the purpose of purchasing cigarettes.  Accordingly, the CCA reversed the COA and reinstated the judgment of the trial court.

Judge Price concurred in the opinion, but wrote separately to opine that presentment is subsumed by use and should not be given independent legal significance apart from use.

Jury Instruction on Failure of Family to Testify During Sentencing

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

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

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

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

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

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

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

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

Judge Meyers dissented, opining that:

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

The Extent of a Defendant's Right Not to Testify?

If a criminal defendant takes the stand during trial on the merits and denies culpability, but then, after being convicted, chooses not to testify during the punishment phase of the trial, may the prosecutor comment during closing that the defendant has “not taken responsibility for the crime?”

The 1st District Court of Appeals (Houston) says NO. But what about the Texas Court of Criminal Appeals?

In Randolph v. State, No. PD-0404-10 (Tex. Crim. App. 2011), appellant testified during guilt/innocence he was never at the scene of the crime and offered the jury an alibi. After the jury convicted him, he did not take the stand during the punishment phase of the trial. The prosecutor argued during close (in the punishment phase):

You heard from him, you heard his version and you dismissed it by finding him guilty. He has not taken responsibility for this crime.

On appeal, appellant relied upon Swallow v. State, 829 S.W.2d 223 (Tex. Crim. App. 1992) to argue that the prosecutor improperly commented on his failure to testify during the punishment phase of trial. The 1st COA agreed and held the prosecution violated the precedent set forth in Swallow. The CCA didn’t buy it, however, holding:

[A] punishment-stage remark on the defendant’s failure to accept responsibility may be fair game if the defendant, in his guilt-stage testimony, denied responsibility for his actions or for the crime.

The 1st COA held this closing argument remark was the same as the remark given by the state in Swallow, but the CCA distinguishes:

But in this case the prosecutor said nothing about remorse or lack of remorse. She spoke only of “responsibility of the crime” – responsibility that appellant explicitly denied during his testimony. This Court, in Swallow, inadvertently combined the apples of “remorse” (which is generally expressed only after accepting responsibility) with the oranges of “responsibility.”

The CCA further explained:

The prosecutor may comment on any testimony given by the defendant in the guilt stage, and, if the defendant expressly or impliedly denies criminal responsibility during that testimony, the prosecutor may comment on that denial.

Dissenting Judge Meyers asserts:

By referring to the fact that Appellant did not take responsibility for the crime, the state pointed out that the defendant did not testify during punishment phase of his trial. The majority complicates the matter by analyzing the definitions of the words used by the prosecutor, rather than considering their obvious meaning – thus creating a horrible Hobson’s choice for the defendant, an indiscernible dilemma for the trial judge, and an appellate record that will be difficult to decipher.

If a person commits indecency with a child by exposure, and there were three children present during the act, can he be convicted for three offenses?  In other words, is the allowable unit of prosecution the identity of the child or the act itself?

The 13th District Court of Appeals (Corpus Christie), as it explained in its unpublished opinion in Harris v. State, No. 13-08-537-CR (April 15, 2010), believes that an offense is committed for every child that is present at the time of the exposure – three children equals three counts.  Hence, double jeopardy does not bar multiple prosecutions for the same act.

Appellant (Harris) challenged this holding to the Texas Court of Criminal Appeals, contending that the offense of indecency by exposure is a “non-victim-based crime for which double jeopardy bars multiple prosecutions.” The CCA agreed, holding that

the offense of indecency with a child by exposure is complete once the defendant unlawfully exposes himself in the required circumstances…[T]he child does not even have to be aware of the exposure…The offense is based on the defendant’s actions and mental state, not the other person’s comprehension.

Reversing the court of appeals, the CCA explained, “the act of exposure is the gravamen of the indecent exposure.” Appellant’s conviction for three offenses violated double jeopardy. “Appellant committed only one offense under Section 21.11(a)(2)(A) when he exposed himself to three children at the same time.”

See Judge Hervey's majority opinion in Harris v. State.

Presiding Judge Keller Dissented. She “would hold that each victim of indecency with a child is a separate unit of prosecution.”

What is a Synergistic Effect in a Texas DWI case?

You are further instructed that if a person by the use of medications or drugs renders herself more susceptible to the influence of intoxicating alcohol than she otherwise would be and by reason thereof became intoxicated from the recent use of intoxicating alcohol, she is in the same position as through her intoxication was produced by the intoxicating alcohol alone.

That sentence, in the world of Texas DWI litigation, is known as the “synergistic effect” instruction.  It is typically given to a jury in a DWI case that involves both the use of alcohol and drugs (including over-the-counter medications).  The Texas Court of Criminal Appeals has held that the synergistic effect instruction does not expand on allegations of intoxication due to alcohol, which means that a person charged with DWI due to intoxication from alcohol alone, may be convicted if the State proves that the intoxication occurred due to a combination of alcohol and drugs.  See Gray v. State, 152 S.W. 3d 125 (Tex.Crim.App. 2004).

Last week, the CCA revisited this issue (somewhat) in Barron v. State, a case on appeals from the 5th District Court of Appeals (Dallas).  In Barron, there was minimal evidence of intoxication and the defendant did not submit to a breathalyzer test.  However, the arresting officer found (but failed to seize) what he identified as hydrocodone in the defendant’s vehicle.  Although there was no evidence at trial that (1) the substance in the pill bottle was in fact hydrocodone, or (2) the defendant actually ingested the alleged substance, the trial court, nonetheless (and over defense objection), gave the synergistic effect instruction to the jury.  In closing argument, the state relied on the scant evidence of drug/alcohol combination and the defendant was convicted.

On appeal, the 5th COA held that the trial court erred by giving the synergistic effect instruction when there was no evidence in the record to support the theory that the defendant ingested hydrocodone.  The 5th COA further held that the erred was harmful.  On petition to the CCA for discretionary review, the State relied on the CCA’s holding in Gray to argue that because the synergistic effect instruction does not expand the allegation of intoxication due to alcohol, then there was no error (or it was harmless).

The CCA agreed with the COA that it was error for the trial court to give the instruction when there was no evidence in the record that the defendant ingested a drug in combination with her consumption of alcohol.  The CCA, however, disapproved of the manner in which the 5th COA conducted the harm analysis, noting that the COA’s harm analysis “simply repeats its error analysis.” A proper analysis, the CCA explains:

should follow the guidelines of Almanza, assaying the degree of harm ‘in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.’

The CCA concluded that the error was harmful in this case because it emphasized the State’s theory of the case (that the defendant was intoxicated due to a combination of alcohol and drugs), when the state of the evidence did not support this theory.

Takeaway: The “synergistic effect” instruction is not an all-out license for the State to pursue a theory of intoxication that it did not charge in the indictment/information.  The theory must be supported by the evidence, rather than a mere hunch.

Presiding Judge Keller dissented, noting that the synergistic effect instruction in this case might not have been error under the CCA’s recent holding in Ouellette v. State (2011 Tex. Crim. App. LEXIS 1373 (October)), a case that had not been published when the COA decided this case.  She would have vacated the COA decision and remanded the case for reconsideration in light of Ouellette.

Judge Meyers dissented and would send the case back for the COA to conduct a legal sufficiency review rather than a harm analysis.

Judge Keasler also dissented, but without a written opinion.

Rushing v. State (Tex.Crim.App. - Oct 5, 2011) - Here's a case that interests me on a couple of levels.  When I was a prosecutor in the Marine Corps, one of the constant questions I received from defense counsel when negotiating a plea on a military sex crime case was how, and to what extent, the conviction will affect the service member in his/her home state.  I rarely knew the answer because many of the accused were from different states.  Well, the Texas Court of Criminal Appeals has confirmed that a military sex crime conviction, does have collateral consequences in Texas - one of them being that the conviction is able to be used for enhancement purposes in a later prosecution for a separate offense.

In Rushing, the CCA held that a prior sex-offense conviction under the Uniform Code of Military Justice (UCMJ) qualifies as a "conviction under the laws of another state" for enhancement purposes.  Texas Government Code §311.005(7) defines "state" to include any area subject to the legislative authority of the United States.  A UCMJ conviction is deemed to have taken place on United States soil and the defendant's subsequent conviction is properly enhanced under Penal Code §12.42(c)(2)(b)(v) for that conviction.

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

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

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

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

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

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

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

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

Under Chapter 9 of the Texas Penal Code, self-defense is provided as a justification to the offense of murder (among others).  Chapter 9 makes clear that if a fact-finder believes a defendant’s actions are justified, the fact-finder may not convict for an offense based on those self-defense actions.  In essence, a defendant that pleads self-defense is telling the fact-finder that he intentionally performed certain actions in order to protect himself against the unlawful actions of another.  So…if the defendant intentionally performed the self-defensive actions, can self-defense be applied to an offense like manslaughter that requires “reckless” conduct vice intentional?

In Alonzo v. State, the 13th District Court of Appeals (Corpus Christie) “believed it is illogical for a defendant to argue self-defense when charged with an offense whose requisite mental state is recklessness.”  The Texas Court of Criminal Appeals, however, disagrees, explaining that “there is nothing in Penal Code Section 2.03 or Chapter 9 that limits justification defenses to intentional or knowing crimes, nor do we have a reason to infer such a limitation.” The CCA notes that limiting self-defense to only intentional or knowing crimes could encourage prosecutors to charge manslaughter (a reckless offense) vice murder when there is a self-defense issue, because self-defense would be inapplicable.

Judge Womack explains that “by arguing self-defense, a defendant is arguing that his actions were justified, and therefore he did not act recklessly.” So really, it’s just another way to disprove the charged offense.

Of course, a defendant cannot argue self-defense in the face of a murder charge and then at the same time request a lesser-included instruction on manslaughter. The CCA made sure not to disrupt prior caselaw holding such. But the overarching takeaway from Alonzo is that a defendant that is acquitted of a murder charged based on self-defense CANNOT be convicted of the LIO of manslaughter.

The CCA reversed the decision of the 13th Court and remanded the case for a harm analysis.  Presiding Judge Keller concurred. Alonzo Concurrence