CCA

Contrary to television portrayals, most criminal cases never reach trial. While it is difficult to put a number of it, I would say that 90 to 95% of criminal cases are resolved by dismissal or plea bargain. Our Fort Worth criminal defense attorneys put the interests of the client first and will always pursue a dismissal and sometimes attempt to reach a favorable plea deal with the prosecutor as an alternative to the uncertainty of trial.  But in some occasions, a trial is the only way to go. What follows is a recent case opinion from the Texas Court of Criminal Appeals regarding a plea bargain situation gone wrong.

Rodriguez v. State (Texas Court of Criminal Appeals 2015)

On advice from counsel, Israel Rodriguez rejected a ten-year sentence plea bargain. Rodriguez was convicted and received eight life sentences.

Rodriguez filed for a new trial based on ineffective assistance of counsel; he believed his attorney's advice regarding the plea offer was wrong. Rodriguez asked that the State be required to re-offer the ten-year deal.

The judge granted a new trial and ordered the State to re-offer the deal. The judge proceeded to reject the deal.

After denying the ten-year deal, the judge informed Rodriguez he could withdraw his guilty plea and go to trial or accept a 25-year sentence. Rodriguez rejected the 25-year sentence and filed a recusal motion, arguing that the judge had demonstrated prejudice. The judge recused, and a new judge was assigned.

Rodriguez filed a motion to require the State to re-offer the ten-year deal. The new judge said the original judge's recusal had "wiped the slate clean," including the ten-year plea offer, but he would accept a new agreement if one were presented. The state offered a plea deal of 25 years, which Rodriguez accepted. The judge accepted the plea agreement and executed the judgments of conviction.

Rodriguez argued on appeal that he was entitled to the original ten-year offer and the court was required to accept it. The court of appeals considered three factors: (1) whether Rodriguez would have accepted the original offer; (2) whether the State would have been likely to withdraw the offer; and (3) whether the judge would have likely accepted the agreement.

The court of appeals concluded Rodriguez had suffered inadequate representation. The court's solution was for the State to re-offer the ten-year deal and have a judge who had not recused herself accept or reject the deal. The court did not agree that the judge was required to accept the ten-year deal. The case was remanded for the State to re-offer the deal.

The State filed for review of the court of appeals' decision, alleging four errors:

(1) The voluntarily recusal should not have been considered.

(2) Nothing in the record supported the possibility of the original judge accepting the ten-year deal.

(3) The second judge should not have been required to order the State to re-offer the ten-year deal.

(4) The judgment of conviction should not have been reversed.

The CCA considered the same three factors considered by the court of appeals. Although Rodriguez's convictions were vacated, he was still entitled to a determination of whether he had received effective counsel. The CCA agreed with the court of appeals that Rodriguez had been harmed by following his attorney's advice in rejecting the offer. No evidence suggested Rodriguez would have rejected the deal. The State was not likely to withdraw the offer because the passage of time had made the victims' testimony at trial unreliable.

The CCA said the only question was whether the first judge would have likely accepted the ten-year deal. No intervening circumstances would have given the judge a basis to reject the deal. However, Rodriguez did have an extensive criminal history, and the police reports for his charges were particularly damning. But nothing in the record indicated the judge would have rejected the ten-year deal if it had been presented to her prior to the trial. The CCA thus rejected the State's second allegation of error.

The State agreed the first judge would have likely accepted the ten-year deal prior to trial, but it argued the voluntary recusal was irrelevant. No evidence indicated any prejudice against Rodriguez. Requiring the State to re-offer the ten-year deal and then rejecting it were proper rulings and did not require recusal. On the State's first allegation, the CCA said, the court of appeals had erred.

The CCA sided with the State on its third allegation, finding Rodriguez had received exactly what he requested--a new trial with a clean slate and a decision on a plea agreement by a judge. The second judge was not obligated to give Rodriguez what the first judge had already given—consideration of the ten-year deal. Therefore, there was no requirement that the State re-offer the ten-year deal. The CCA did not consider the fourth allegation because its decisions on the first three allegations made the fourth issue moot. The CCA reinstated the 25-year sentence offered by the State, agreed to by Rodriguez, and accepted by the second judge.

An individual facing criminal charges will be advised by his Fort Worth criminal defense attorney regarding whether to accept the deal. Although the decision is ultimately up to the defendant, bad advice that ultimately leads to a worse outcome than the deal offered may present an opportunity for a new trial based on ineffective assistance of counsel.

What does it mean to cause someone to fraudulently execute a document?

Roger and Aaron Liverman filed separate mechanic's lien affidavits with the Denton County clerk, claiming that they had worked on Katheryn Payne's home and had not been paid. The county clerk filed and recorded the liens, which is the customary practice. The mechanic's liens were determined to be fraudulent, and the Livermans were charged with securing the execution of documents by deception. The Livermans were convicted and placed on community supervision.

On appeal, the court of appeals reversed the Livermans' convictions. The State appealed to the Court of Criminal Appeals. Because the case turned on an interpretation of statutory language, the CCA reviewed the case de novo; in other words, rather than reviewing the reasonableness of the lower court's decision, the CCA made its own independent decision based on the facts and the statute.

Opinion: Liverman v. State, Texas Court of Criminal Appeals 2015

The language of the statute under which the Livermans were convicted states that a person commits a crime if, "with intent to defraud or harm any person, he, by deception causes another to sign or execute any document affecting property or service . . . ." The case before the CCA boiled down to three questions: (1) What does the term "execute" mean in the statute? If nothing was executed, there was no offense. (2) Did the Livermans' action of filing the fraudulent liens meet the definition of execution? (3) Who actually executes a mechanic's lien when it is filed? The offense involves deceptively causing "another" to sign or execute a document. If the clerk's actions constituted execution, the Livermans might be guilty. If the Livermans executed the affidavits themselves by filing them, then they could not be convicted under the statute.

Arguments against Fraudulent Execution of a Document

The State and the Livermans put forward a number of arguments for their respective positions. The arguments involved comparing the "sign and execute" language of the statute with a related provision that uses the phrase "file and record;" consideration of the legislative intent and history when the statute was enacted; and which action actually perfected the liens. After reviewing the arguments and performing its own analysis, the CCA concluded:

(1) The term "execute" means more than just to sign a document and involves the broader act of bringing a document to its final, legally enforceable form.

(2) When the Livermans filed the affidavits with the clerk, the affidavits accomplished their role in perfecting the mechanic's lien. Therefore, the act of filing the affidavits was equivalent to execution.

(3) Because Texas law requires the person claiming a mechanic's lien to "file" the affidavit, then the Livermans did execute the affidavits by filing them. However, the CCA considered whether the clerk's actions might also constitute execution. Although the county clerk is required by law to record or index a filed affidavit, the clerk's failure to do so does not invalidate the lien. If the clerk's action of recording or indexing can be omitted and the affidavit still be valid, then the clerk's actions clearly did not "execute" the affidavits.

But, asked the Court, did the clerk "execute" the affidavits by accepting them when the Livermans filed them? The CCA answered in the negative. The statutory requirement to file the affidavit "with the county clerk" means that the clerk is simply the recipient of the filing and plays no role in its execution.

Because no action of the clerk executed the affidavits, the CCA held, the Livermans did not cause "another" to "execute" the documents as required for the offense of which they were convicted. The CCA agreed with the court of appeals, with the result of setting aside the Livermans' conviction.

Many people will recall President Bill Clinton's grand jury testimony in the Monica Lewinsky case. When asked why he wasn't lying when the told his aides that there was nothing going on between him and Miss Lewinsky, the President said "[i]t depends on what the meaning of the word 'is' is."

While many will find the President's response amusing, a Criminal Defense Attorney in Fort Worth may see an opportunity. Although not nearly so salacious as the Monica Lewinsky affair, the Livermans' case truly turned on what the meaning of the word "execute" is.

A Criminal Defense Attorney in Fort Worth will understand and appreciate the nuances of the statutory language and may succeed in acquittal by arguing that the law does (or does not) say what it seems to say.

Drug Crimes Can Come With Added Costs | Fort Worth Drug Crimes Defense Attorneys

Robert Ehrke was convicted of a drug crimes case - possession of between one and four grams of methamphetamine in a drug-free zone - and sentenced to seventy-five years in prison. The weight (1.6 grams) and composition of the substance were determined by a Department of Public Safety chemist.

In a pre-trial motion, Ehrke requested the trial court to provide for independent testing of the substance. Ehrke's attorney argued that, because 1.6 grams was so close to the 0.99 gram for a lighter sentence, independent testing was justified.

The trial court agreed it was required to allow Ehrke's counsel to inspect and examine the substance. However, because Ehrke did not demonstrate the need for the test or any reason why a second test would have different results, the judge denied the motion for independent testing. Ehrke's counsel's offer to secure payment for the testing did not change the judge's decision.

The Court of Appeals agreed with the trial court. The court based its decision on Ehrke's failure to show a particular need for independent testing or how an independent chemist would arrive at a different result.

On appeal to the Court of Criminal Appeals, the CCA identified two issues: (1) whether Ehrke had a right to inspection of the substance by an independent expert and (2) whether the state was required to pay for such an inspection.

The Court noted the Code of Criminal Procedure provided for a defendant to inspect evidence material to the state's case, but only if the defendant showed good cause for a request to inspect evidence. However, courts had found inspection mandatory if the evidence is material to the defendant's case.

The CCA said that in a controlled substance case, if the defendant asks to inspect the substance, the court must allow inspection because the substance will necessarily be material to the defense--no showing of good cause is required.

The CCA addressed the question of what an "inspection" entails. Obviously, simply looking at the substance, which is apparently all the trial court offered Ehrke's counsel, would not determine either its substance or its weight. The Court stated that in a controlled substance case, the right to pay for an independent chemist to analyze the substance is absolute.

On the second issue, the CCA acknowledged an indigent defendant's right to a court-appointed (read "court-paid") expert but said the defendant has the burden to provide specific justification for appointment of the expert. In Ehrke's case, the CCA said, no specific justification had been provided. Even though Ehrke's counsel explained the rationale for his request, he did not provide any evidence to question the original analysis by the DPS chemist, did not explain how independent testing was required for his defense and did not provide information regarding the complexity of the testing. According to the CCA, an absolute right to state-funded independent testing would be too great a financial burden to the County; therefore, appointment of an expert is required only if there is some preliminary evidence of a significant issue of fact to justify the appointment.

The Court remanded the case to the trial court for proceedings on the first issue.

The bifurcated decision in this case is perplexing. The Court said chemical analysis of an alleged controlled substance will always be material to a defendant's case and discarded the Code's requirement of a showing of good cause, making the right to independent testing absolute.

However, in the second issue, the Court seems to have abandoned its notion of materiality for a standard of affordability. On the part of the defendant, the Court cited case law that the state is not required to provide an indigent defendant with everything a wealthier defendant might be able to afford. More importantly, the Court concluded the financial burden to the County of paying for independent chemical testing in all controlled substance cases would be too great.

Examples abound of wealthy defendants procuring a better defense than an indigent defendant.  However, if an issue is always material to an indigent defendant's case to the point of making the right to independent testing absolute, it seems odd that the indigent defendant's right can be defeated by fiscal concerns of the County, which is in a much better position to pay for testing.

Contact our Drug Crimes Defense Attorneys Today for a FREE Consultation of Your Case at (817) 993-9249

Our Fort Worth criminal defense attorneys are experienced in defending drug crimes cases, including possession, possession with intent to distribute, manufacture, and more. If you are under investigation or have a pending charge, don't wait. Contact us today.

DWI Caselaw Update | Fort Worth Criminal Defense Lawyers

The Fifth Amendment protection against double jeopardy is often viewed as a guarantee against having to stand trial for an offense if an individual has already been found not guilty in a previous trial. It also applies to situations where a defendant is charged with more than one offense: Is it double jeopardy if a defendant receives multiple punishments for the same transaction for multiple offenses?

Yousef Benson was convicted of two offenses as a result of a 2010 traffic accident that seriously injured another individual--intoxication assault and felony DWI.  The offense of intoxication assault occurs when a person "by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another."  Felony DWI occurs when a person "is intoxicated while operating a motor vehicle in a public place" and the person has been previously been convicted of two DWI offenses.

The appellant argued that the two offenses should be considered the same offense, which would prevent the imposition of multiple punishments. The state argued that the offenses were separate and that multiple punishment was allowed. The principle point of contention was whether the previous conviction requirement for felony DWI is an element of the offense or is a punishment enhancement.

The Court of Criminal Appeals performed an "elements" analysis. The elements analysis looks at the specific elements of each crime. If each crime has the same elements, then a court presumes that the offenses are the same for purposes of double jeopardy. Conversely, if two offenses have different elements, the presumption is that the two offenses are separate. In either case, the presumption can be rebutted by showing that the legislature clearly intended the opposite result.

In Benson, the CCA focused on felony DWI's requirement of two previous convictions. In some cases, such requirements are viewed as creating a separate offense; in other cases, they are considered an enhancement of the level or the punishment for the offense. As Benson acknowledged, the CCA had already held in earlier cases that the required prior convictions for felony DWI constitute an element of the offense, calling them "specific attendant circumstances" that help define the offense. In other words, intoxication assault and felony DWI are presumed to be separate offenses, and a defendant can receive a sentence for each offense.

The CCA then turned to the question of whether there was evidence to rebut the presumption: Did the legislature intend for the two offenses to be treated as one? The court acknowledged that the two offenses are in the same chapter of the criminal code, a factor that supports the same-offense position. But the court looked at the language of the statute and concluded that if the legislature had intended the two offenses to be the same, they would have structured the statutory language differently.

The court also looked at the name of the offenses, pointing out that both offenses have some form of the word "intoxicate" in their names, although used as a modifier in each name rather than as a noun. The court concluded that this factor slightly favored the same-offense position.

The court noted that the two offenses have the same punishment ranges. Although this factor can favor either position, the court concluded that it slightly favored treating the same-offense view.

The court looked at the focus of the offenses and found intoxication assault to be a result-oriented offense (causing serious bodily injury) and felony DWI to be a conduct-oriented (driving while intoxicated) or circumstances-oriented (two prior convictions) offense. Unlike intoxication assault, felony DWI does not even require a victim. This analysis favored treating the offenses as separate.

Finally, the court considered the history of the two offenses and concluded that the various revisions of the criminal code supported the position that the two offenses are separate.

In its final analysis, the court recognized some factors supported Benson's argument (same offense). However, the court considered the factors supporting the state's position (separate offenses) as "more substantial." In the court's view, the evidence did not support the view that the legislature intended one punishment. Therefore, separate punishment for each offense was not a violation of Benson's right to protection from double jeopardy.

The Sixth Amendment guarantees a criminal defendant's right to a "public" trial. The Texas Court of Criminal Appeals recently confronted the question of whether and under what circumstances a criminal defendant may lose that right.

Bobby Joe Peyronel was convicted of a criminal offense. During a break in the punishment phase of Peyronel's trial, an unidentified female supporter approached a juror and asked how it felt to convict an innocent man.

Fearing juror intimidation and apparently unable to identify the woman, the prosecutor asked the judge to exclude all female members of Peyronel's family from the courtroom. Peyronel objected, arguing that granting the request would exclude Peyronel's wife and daughter and give the jury the impression Peyronel had no supporters. (The CCA's decision did not explain why the judge did not just question the juror, identify the woman who made the comment, and exclude her from the courtroom.)

In a possible overreaction, the judge ordered all witnesses and observers out of the courtroom. The punishment phase of the trial proceeded with witnesses waiting outside the courtroom until time to testify.

Peyronel appealed, arguing a violation of his constitutional right to a public trial. No one disputed that right. However, the State argued that because Peyronel did not ask the trial judge to do anything and did not inform the judge that he planned to appeal based on an alleged Sixth Amendment violation, Peyronel had forfeited his public-trial right.

The Court first considered whether the right to a public trial is mandatory (must be enforced no matter what a defendant says or does), waivable (can be knowingly and intentionally relinquished by a defendant), or forfeitable (can be given up if a defendant does not insist on enforcement). The court briefly reviewed cases from other jurisdictions and concluded the public-trial right could be forfeited.

The Court then considered whether Peyronel had forfeited his public-trial right. Although Peyronel objected to the trial judge's order to clear the courtroom, the CCA did not consider that to be the equivalent of asserting a violation of his constitutional right. The court said there was no "magic language" Peyronel needed to use to assert the violation, but he at least had to specifically state what he wanted the trial judge to do and upon what grounds his request was based. The CCA determined Peyronel did not meet that standard and, as a result, forfeited his right to a public trial.

Read the full opinion: Peyronel

In a strong dissent, Justice Johnson noted that the prosecutor's request was just to exclude female family members from the courtroom and Peyronel objected, arguing that such a broad action would remove his wife and daughter. Justice Johnson said that objection was sufficient on its own and it also implied Peyronel's objection to a complete exclusion.

Justice Johnson compared the situation to buying an appliance. If a customer has a two-foot-wide space for an appliance and a seller tries to sell an appliance that is two inches wider, the customer will object. By objecting to that appliance, Justice Johnson said, the customer is also making it clear that he would object to the seller substituting an appliance even wider than two feet, two inches. According to Justice Johnston, when Peyronel objected to the exclusion of female members of his family because it was too broad to accomplish the intended purpose, that also constituted an objection to the exclusion of even more people and made it clear to the trial judge that his order to clear the courtroom was too broad as well.

Peyronel v. Texas is interesting in at least two respects. Anecdotally, it seems odd that neither the majority nor the dissenters were troubled at all by the fact that the trial judge went beyond the prosecutor's request and ordered everyone from the courtroom rather than trying to identify the woman who was the object of concern and removing her.

More fundamentally, the principle that some constitutional rights can be waived is well established; for example, Miranda rights are frequently waived. But, the court's opinion suggests that a defendant can lose his constitutionally protected public-trial right by not speaking up, or, presumably, by speaking up but not speaking loudly or eloquently enough.