Fort Worth Criminal Defense

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

Misapplication of Fiduciary Property—What is it?

Misapplication of fiduciary property is a charge that is aimed at protecting beneficiaries of trusts, estates, receiverships and the like. Pursuant to Section 32.45 of the Texas Penal Code, a person commits the offense of misapplication of fiduciary property by intentionally, knowingly, or recklessly misapplying property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property. Tex. Penal Code Ann. § 32.45(b). “Substantial risk of loss” means a real possibility of loss. Casillas v. State, 733 S.W.2d 158, 163¬–64 (Tex. Crim. App. 1986). However, the possibility need not rise to the level of a substantial certainty (which is required for theft)—the risk of loss need only be more likely than not. Id.

Who is a “Fiduciary” Under Texas Law?

The penal code sets out four distinct groups that are considered fiduciaries pursuant to Section 32.45. These include:

• A trustee, guardian, administrator, executor, conservator, and receiver;
• An attorney in fact or agent appointed under a durable power of attorney;
• An officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary; or,
• Any other person acting in a fiduciary capacity.

Id. at § 32.45(a)(1).

“Acting in a fiduciary capacity” is not defined in the penal code. However, the Texas Court of Criminal Appeals determined that because “fiduciary” has such a common meaning it should be construed according to its plain meaning. Berry v. State, 424 S.W.3d 579 (Tex. Crim. App. 2014).

The plain meaning of fiduciary means, “holding, held, or founded in trust or confidence.” More notably, a person who acts as a fiduciary is one “who has a duty, created by his own undertaking, to act primarily for another person's benefit in matters connected with such undertaking.” Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no pet.). For example, courts have held that a person acts in a fiduciary capacity “when the business which he transacts, or the money or property which he handles, is not his or for his own benefit, but for the benefit of another person as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.” Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no writ).

Additionally, a person acting in a fiduciary capacity embraces any fiduciary, including a joint adventurer or partner. Coplin v. State, 585 S.W.2d 734 (Tex. Crim. App. 1979). This does not, however, include everyday business dealings. Berry, 424 S.W.3d at 584. The Court of Criminal appeals assume such transactions are entered into for a mutual benefit and, therefore, neither party is expected to act solely for the benefit of the other. Id.

What does it mean to “Misapply” Property?

The definition of “misapply” is fairly broad under the penal code. Pursuant to Section 32.45, a person who is a fiduciary misapplies property held as a fiduciary if the person deals property contrary to:

• An agreement under which the fiduciary holds the property; or
• A law prescribing the custody or disposition of the property.

Evidence that a defendant aided another person in misapplying property is sufficient, pursuant to the law of parties, to convict a defendant of misapplication of fiduciary property—even if the defendant did not personally handle the misapplied funds. Head v. State, 299 S.W.3d 414 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Furthermore, a defendant need not receive a benefit in order to misapply property. Talamantez v. State, 790 S.W.2d 33,37 (Tex. App.—San Antonio 1990, pet. Ref’d). Nor does it matter if a defendant donated the property to charity. Little v. State, 699 S.W.2d 316, 318 (Tex. App.—San Antonio 1985, no pet.).

Therefore, misapplication can occur by an omission or failure to act where a duty to act exists. Coleman v. State, 131 S.W.3d 303, 309-10 (Tex. App.—Corpus Christi 2004, pet. ref'd).

What does it take to Prove up an Agreement?

The government must prove the defendant knew of the agreement for misapplication to occur. Amaya v. State, 733 S.W.2d 168 (Tex. Crim. App. 1986). But, similar to “fiduciary,” Section 32.45 does not define “agreement.” Thus, the Court of Criminal Appeals construes agreement according to its plain meaning. Bynum v. State, 711 S.W.2d 321, 323 (Tex. App.—Amarillo 1986), aff’d, 767 S.W.2d 769 (Tex. Crim. App. 1989). To prove up an agreement, the State must be able to demonstrate a harmonious understanding or an arrangement, between two or more parties, as to a course of action. Id. Additionally, there is nothing in Section 32.45 that requires the agreement to be in writing or proved directly. Id.

Possible Defenses?

An effective defense to a charge of misapplication of fiduciary property is mistake of fact—otherwise negating the culpability required for the commission of the offense. Section 32.45 is designed to punish intentional, knowing or reckless misapplication of property. Thus, if it can be proved that the improper use or application of the property was the result of mere negligence, by mistake of fact, the statute will not apply. Other defense vary depending on the facts of the case.

What are the Penalties?

Texas has broad laws governing the use of property by a fiduciary. The charges can range from a Class C misdemeanor to a first-degree felony, based on the amount or value of property that is “misapplied.”

According to the Texas value ladder, an offense under this section is a:

• Class C misdemeanor if the value of the property misapplied is less than $100;
• Class B misdemeanor if the value of the property misapplied is $100 or more but less than $750;
• Class A misdemeanor if the value of the property misapplied is $750 or more but less than $2,500;
• State Jail Felony if the value of the property misapplied is $2,500 or more but less than $30,000;
• Felony of the third degree if the value of the property misapplied is $30,000 or more but less than $150,000;
• Felony of the second degree if the value of the property misapplied is $150,000 or more but less than $300,000; or
• Felony of the first degree if the value of the property misapplied is $300,000 or more.

Id. at § 32.45(c).

Moreover, there is also an additional enhancement (to the next higher category) if it can be shown that the beneficiary was a person 65 years or older. § 32.45(d).

When Does Misapplication of Fiduciary Property Usually Occur?

This charge can arise in several different contexts. To name a few, misapplication of fiduciary property can occur:

• When trustees misapply trust property;
• When the holder of power of attorney makes a gift to herself;
• When a business partner improperly diverts funds for personal use; or,
• When an attorney misapplies a client’s funds.

These examples demonstrate that Section 32.45 covers many situations and may result in serious consequences. Thus, if you are under investigation or have been charged with the offense of misapplication of fiduciary property, it is necessary you seek help.

Misapplication of Fiduciary Property Defense Attorneys

Our criminal defense team handles Misapplication of Fiduciary Property cases in Tarrant County, Texas and surrounding areas. If you are under investigation for w financial crime or white collar offense, contact our firm today for a free case evaluation.

Resisting Arrest: How is it defined under Texas law?

In general, resisting arrest occurs when a person attempts to interfere with a peace officer’s duties. Section 38.03 of the Texas Penal Code defines resisting arrest as: a person who intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from:

• Effectuating an arrest;
• Carrying out a search; or
• Transporting a person accused of a crime.

Resisting arrest requires the person to have used force against the arrest, but it does not require the officer to be acting lawfully in making the arrest. To be guilty of resisting arrest, the force need not only be directed at or toward the officer but is also met with any force exerted in opposition to, but away from the officer, such as a simple pulling away. Thus, even small uses of force can give rise to a charge of resisting arrest. However, non-threatening statements of disagreement with the officer’s actions usually are not enough to qualify as resisting arrest.

Some examples of resisting arrest include:

• Preventing a cop from handcuffing you;
• Struggling against an officer who is trying to arrest you; and
• Engaging in violent action against the officer, like punching, kicking or inflicting harm with a weapon

Can You Resist an Unlawful Arrest in Texas?

One of the most important cases on this point is Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

What Ford provides, in short, is that you may not resist an arrest—whether lawful or unlawful. Historically, American citizens were legally entitled to use reasonable force to resist an unlawful arrest. Several states have now eliminated - either by statute or by judicial decision - the common law right to resist an unlawful arrest. Section 38.03 of the Texas Penal Code eliminated this right. Furthermore, subsection (b) of Section 38.03 specifically states it is no defense to prosecution that the arrest or search was unlawful.

In Ford, the Court held “the elimination of the common law right to resist arrest reflects a growing realization that the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned.” The Court reasoned that the line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts. Furthermore, the Court has concluded that by limiting the common law right to resist an unlawful arrest, the Legislature has not limited the remedies available to the person arrested, and thus, there is not a violation of the person’s constitutional rights.

Potential Consequences

Regardless of whether a person is guilty of the underlying charge that prompted the attempted apprehension, resisting arrest is a serious charge in Texas (many time more serious than the underlying offense). A person can face a significant fine and jail time.

Typically, resisting arrest, search, or transportation is prosecuted as a Class A Misdemeanor. An individual convicted of a Class A Misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000.

However, the charge may be enhanced to a felony of the 3rd degree if you use a deadly weapon, such as a gun or a knife, to resist the arrest or search. An individual convicted of a felony of the 3rd degree may be sentenced to 2-10 years in the Texas Department of Corrections and a fine up to $10,000.

Our advice is to comply with the officer’s demands calmly and politely and let us work out the legality of the arrest later.

Time Requirements on the State’s Power to Certify a Juvenile as an Adult

Texas Family Code Section 54.02 gives the juvenile court the power to transfer its exclusive jurisdiction over a juvenile case to a district court. This transfer of jurisdiction allows the State to treat a juvenile as an adult for purposes of prosecution. Section 54.02 actually lays out two different processes for transferring juvenile cases to adult court. The first process is used in cases where the juvenile is under the age of 18 at the time of certification. The second, which is laid out in Section 54.02(j), is for those cases in which a person has turned 18 prior to the filing of the case in juvenile court. The Texas Court of Criminal Appeals recently upheld the time requirements placed on the power of the State to pursue post-18 certifications in Moore v. State (Case Opinion - 2017).

Section 54.02(j)’s Time Limits

Section 54.02(j) allows a juvenile court to transfer its jurisdiction to an appropriate district court for criminal proceedings if the person accused is 18 years of age or older at the time the petition is filed but was a juvenile at the time the offense was committed. During the transfer hearing, the State must prove by a preponderance of the evidence that “for a reason beyond the control of the State, it was not practicable to proceed in juvenile court before the 18th birthday of the person or after due diligence of the State, it was not practicable to proceed in juvenile court before the 18th birthday of the person because the State did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person or the person could not be found.”

This section of the Family Code imposes on the prosecutors a duty to pursue cases in juvenile court whenever possible. In order to retain the power to prosecute cases after a person has aged out of the juvenile system, the State must show that the delay in prosecution was beyond its control. If it is unable to prove this, then the only choice available for a juvenile court in these situations is to dismiss the case.

The Issue in Moore v. State

In Moore, the accused was charged with Aggravated Sexual Assault of a Child. He was alleged to have committed the offense when he was 16 years of age. Due to a heavy caseload and an error in one of the police reports, the detective did not send the case to the District Attorney’s Office until after Moore had turned 18. The prosecutor filed a certification petition in the case over a year later when Moore was 19 years old. The juvenile court transferred the case to district court.

Moore pled in adult court and received 5 years’ probation on a deferred adjudication. He then appealed the case claiming that the juvenile court lacked the jurisdiction to transfer the case because the State did not prove that the delay in filing the case was beyond its control. The State first claimed that law enforcement should not be considered “the State” under Section 54.02(j). The State then argued that the court should consider whether the reasons for the delay were unconstitutional. According to this argument, if the reasons for the delay were not in violation of Moore’s constitutional rights, then the State should be allowed to proceed with the certification regardless of who was to blame for the postponement in filing charges.

The Court’s Ruling

After considering the arguments of both sides, the ruling of the Court of Appeals, and the case law presented by the parties, the Court of Criminal Appeals ruled on the case. First, the Court held that the term “the State” includes law enforcement and prosecutors collectively. The Court pointed out that the law consistently includes law enforcement in its use of this term.

The Court then dismissed the State’s notion that the requirements of Section 54.02(j) be treated like a claim of speedy trial, due process, or statute of limitations. The Court explained that the reason for the requirements in Section 54.02(j) is to limit the power of the State to prosecute a person as an adult for something that happened when he was a juvenile. In order for an exception to be made to this general rule, the State must prove that it was not at fault for the delay in prosecution.

Conclusion

The Court of Criminal Appeals’ decision in Moore is consistent with the Texas Supreme Court’s rulings in other cases involving juvenile certifications. The courts are clear that juvenile cases should be handled in juvenile court when possible. This means that detectives and prosecutors working juvenile cases must be diligent in giving these cases the proper priority so that an accused juvenile does not age out of the system before his case can be heard by the juvenile court. In any case in which prosecution is delayed until after a person’s 18th birthday, the State will be required to prove that the reason for this lag time was beyond its control. And if the State is unable to meet this requirement, then the courts will prevent further prosecution in these cases.

Defendant's Arson Charge was Enhanced when Fire was Alleged as a "Deadly Weapon."

Pruett v. State (2nd Court of Appeals - Fort Worth, 2016)

***UPDATE - This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion here.

Jeffery Pruett inherited a one-third shared interest in the family home with his two siblings after the death of their elderly parents. The adult siblings had a long history of quarreling over Pruett’s living arrangements, as he moved in and out of the residence prior to the deaths of their parents. Fed up, Pruett moved into a motor home, and was often seen by the neighbors driving around the neighborhood. Meanwhile, Pruett’s siblings listed the home for sale with the intention of dividing the proceeds equally between the three siblings.

On December 19, 2012, a neighbor spotted Pruett parking his motor home in front of the residence. Pruett exited the vehicle, went into the backyard of the residence, and then got back into the vehicle and drove away. Moments later, the neighbor saw smoke coming from the back of the house. The neighbor ran to the backyard, saw flames shooting out of the residence, and called the Fort Worth fire department. Neighbors were successful in using a garden hose to extinguish a large portion of the fire. When the fire department arrived, they confirmed that there was no one inside the home and put out the remaining flames. After an investigation, the arson investigator concluded that the fire had been intentionally started with a flammable ignition source.

Pruett’s Case Goes to Trial

At trial, the fire department’s battalion chief testified that had the flames not been put out, the fire would have consumed the home. Further, the arson investigator testified that the fire was “very dangerous,” putting neighbors, fire fighters, and anyone inside the home in immediate danger of death or serious injury. Considering his use of fire to be a deadly weapon, the trial court convicted Pruett of arson, sentencing him to twenty years imprisonment. Pruett appealed to the Second Court of Appeals, arguing that the court lacked sufficient evidence to support the finding of fire as a deadly weapon. Fire as a deadly weapon carries a heavier penalty in Texas.

What does Texas Law say about fire as deadly weapon?

Fire is not considered a deadly weapon in the Texas Penal Code, however, a Court can find that fire was used as a deadly weapon if the surrounding circumstances meet a three-pronged test. Mims v. State, 335 S.W. 3d 247, 249-50. In order for fire to be deemed a deadly weapon, the evidence must prove

1. the object meets the definition of a deadly weapon;
2. the deadly weapon was used…during the transaction on which the felony conviction was based; and
3. other people were put in actual danger.”

Brister v. State, 449 S.W.3d 490,494 (Tex. Crim. App. 2014).

The Second Court of Appeals Weighs In - The Court must determine whether the fire set by Pruett was capable of causing death or serious bodily injury.

Did the fire meet the statutory definition of a deadly weapon?

Under Texas law, a deadly weapon can be “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(West Supp. 2015). To determine whether the object was “capable” of causing death or serious bodily injury, such “capability” must be evaluated based on what actually happened, not conjecture about what might have happened if the facts had been different than they were.” Williams v. State, 946 S.W.2d 432, 435-36 (Tex. App.—Fort Worth 1997).

Here, the Court says the neighbor had put out most of the fire with the garden hose by the time the fire department arrived on the scene. Further, the neighbor who called the fire department was not placed in danger. Even though the arson investigator testified that the firefighters were placed in danger, such danger is part of the job. Since there was no one else in the home at the time of the fire, there is no evidence that the firefighters were put in actual danger of death or seriously bodily injury. The Court concludes, “the facts—viewed…in light of what did happen [not what could have happened]—do not support [fire as a deadly weapon] in this case.” The Second Court of Appeals orders the deadly weapons finding to be deleted from Pruett’s judgment.

CASE UPDATE (1/25/17) - CCA Reverses the COA Decision

In reversing the Court of Appeals, the CCA held:

"An arsonist is not the same as an intoxicated driver, and the degree of danger and harm that each offender is capable of causing is materially different. In the case at bar, the deadly nature of the fire is not difficult to appreciate. Fire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially when it is intentionally started in a residential neighborhood. This fire was dangerous because it was left unattended and because appellant used an accelerant. As a result, the fire endangered not only the lives of the firefighters who responded to the call but also the lives of neighbors who could have been killed or seriously injured if the fire continued to spread. The fire also posed a danger from both the heat effects and the emissions of toxic chemicals. In this case, the State adequately demonstrated that the fire that appellant started was capable of causing death or serious bodily injury...When evidence at trial demonstrates that someone ignites combustible material to intentionally burn down a house in a residential neighborhood, a deadly-weapon finding may appropriately attach to the arson conviction when the fire is capable of causing death or serious bodily injury. That is what happened in this case. "