Sex Crimes Defense in Texas: Legal Definitions & Strategies

Last week, the Texas Court of Criminal Appeals issued its opinion in Coronado v. State.

[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation...

The case involved a six year-old child sexual abuse victim (who was three years-old when the abuse began) that the trial court determined was "unavailable" to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant.  Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2.  The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask.  The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate.  At trial, the videotaped testimony of the child was played to the jury in lieu of any live testimony by the victim.

The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court's decision in Crawford v. Washington.  Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation.  The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis.  The CCA, on the other hand, explained:

We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation...There was no "rigorous adversarial testing" of [the child victim's] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.

The CCA's reluctance to overturn this case was apparent.  On page 2 of the opinion, Judge Cochran writes, "On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions."

Judge Hervey concurred.  While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant's right to confrontation should be balanced with the societal interest in protecting child sexual abuse victims.  She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.

Presiding Judge Keller dissented.  In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case.  She calls this a "close case," but she would have affirmed.

In September of 2010, the 3rd Court of Appeals (Austin) reversed the sexual assault conviction of Mark Barshaw because the trial court allowed the following testimony of an MHMR expert regarding the truthfulness of mentally retarded individuals:

It's been my experience that folks with mental retardation can be painfully honest, really. I mean, it's like a little kid who looks at somebody and says in the supermarket, 'You're really old,' or, you know, whatever little kids do.

See our prior post HERE.  The State appealed the 3rd Court’s reversal and now, in an opinion released on 29 June 2011, the Texas Court of Criminal Appeals reversed the Court of Appeals.

Barshaw v. State (Texas Court of Criminal Appeals 2011)

Apparently troubled by the less-than-thorough harm analysis conducted by the lower court, the CCA explained:

Even in cases in which credibility is paramount, Texas courts have found harmless error when the inadmissible expert testimony was only a small portion of a large amount of evidence presented that the jury could have considered in assessing the victim’s credibility. Upon reviewing the record as a whole, we find that additional evidence exists that should have been considered in the court of appeals’s harm analysis, as is required by [our previous caselaw].

With that, the CCA remanded the case back to the 3rd Court of Appeals to conduct a full harm analysis. A shot across the bow perhaps? I think the odds are heavily in favor of the Court of Appeals changing its mind on this one. We’ll see.

Here's an excerpt from the Texas Court of Criminal Appeals' majority (5-3) opinion in Phillips v. State, which dealt with the Ex Post Facto application of a statute of limitations law for sexual offenses:

"Appellant was convicted of twelve counts of sexual offenses against his daughter that occurred in 1982 and 1983. But prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No one–not the trial judge, the prosecutor, the defense, or the court of appeals–recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, we granted appellant’s petition for discretionary review. Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. We reaffirm our prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. We reverse the court of appeals, which held that appellant’s prosecution was not barred."

Presiding Judge Keller dissented, joined by Judges Keasler and Hervey.  They would hold that the trial judge's ex post facto application of the law may violate due process, but that the majority got it wrong because the prohibition on ex post facto laws only applies to the legislature.

As I wait on more slip opinions from the Court of Criminal Appeals, I’ve been randomly sifting through Courts of Appeals opinions. Today, the 7th District Court of Appeals (Amarillo) released a rather concise opinion in an aggravated sexual assault case regarding a "custodial interrogation." It’s worth an equally concise post.

In McGee v. State, appellant complained, inter alia, that his confession should have been suppressed because he was not given Miranda warning prior to issuing his confession to the police. Unconvinced, the Court of Appeals noted that appellant signed a written document containing Miranda warnings before he began speaking with police officers. The Court went on to state that “even if the warnings afforded appellant were somehow deficient, the record contained sufficient factual basis upon which the trial court could have reasonably found that appellant was not in custody at the time.”

Here are the facts to the Court highlighted to demonstrate that appellant was not “in custody” when he gave his confession:

1) Appellant transported himself to the police station to undergo a polygraph examination and questioning;
2) Questioning occurred in a rather large 15’ by 15’ room;
3) He was never told he was under arrest;
4) He was told he was free to go at any time;
5) No one threatened him;
6) No one restrained him;
7) Those asking the questions and administering the polygraph would have stopped if appellant indicated that he wanted to leave;
8) Appellant was at the station for approximately 2.5 hours before confessing;
9) He had no marks on him to indicate that he underwent any kind of physical abuse;
10) He not only was asked if he wanted to take a break or use the bathroom but also was told that he did not have to be there before the examination began;
11) He left that station after the interview; and
12) Nothing indicates that appellant ever attempted to leave, stop the questioning, take a break, or the like.

It seems to me like the Court if stretching a bit with some of those justifications. With an apparent affinity toward list-making, the Court went on to outline scenarios that would lead them to believe a person was in “custody” and therefore the subject of a vlid "custodial interrogation:"

1) If appellant was physically deprived of his freedom in any significant way;
2) If someone told him he could not leave;
3) If the officers created an environment that would lead a reasonable person to believe his freedom of movement was significantly restricted; or
4) If there existed probable cause to arrest appellant and the officers told him he was not free to leave.

The Court explained, “[h]ad any of those four scenarios arose then appellant would have been in custody, but the evidence before us allowed the trial court of legitimately conclude otherwise.”

Seems simple enough. The problem is with the trial court interpretation of those four maxims.

Court Holds that Sex Offender Conditions Cannot be Added as a Condition of Parole for Cases That Do Not Involve a Sex Offense

Ex Parte Evans - The Texas Court of Criminal Appeals considered a case wherein sex-offender conditions were placed on a parolee for an offense other than a sex offense.

In October of 2001, Appellant pled guilty to two counts of reckless injury to a child (not a sexual offense). He was sentenced to ten years in prison on each count. On October 25, 2006, Appellant was released to parole in Lubbock, Texas. He then asked for his parole to be transferred to El Paso, Texas, where his children lived. Once he arrived in El Paso, his new parole officer gave him a “Notice and Opportunity to Respond Pre-Imposition of Sex Offender Special Conditions.” He submitted a written response stating that he was unable to produce any documentation to show that the offense he had been convicted of was unrelated to anything sexual in nature other than the fact that the victim’s doctor had testified that the injuries were not sexual in nature.

Despite his dispute, his parole officer recommended that “Special Condition X” (the sex-offender program) be added as a condition of his parole.  From all accounts, immediately after the condition was imposed, Appellant went “downhill.”  He was not allowed to visit his children anymore.  Further, in October of 2008, Appellant’s parole officer and a handful of other officers searched the Appellant’s home. Inside, they found a cell phone on Appellant’s bed that had a picture of a nude woman on it. Several other pictures of nude women were found in his cell phone online photo album. Also, the officers found two pornographic DVD’s - all of which were unlawful for Appellant to possess while a registered sex offender.

Appellant’s parole was then revoked upon a motion by the State. At the hearing, Appellant argued that the conditions had been unconstitutionally imposed without due process and that the facts of his conviction did not justify such sex-offender conditions. His argument fell on deaf ears and he was returned to prison.

On a writ of habeas corpus, the trial judge found that Appellant had not been convicted of a sex offense, that there was no evidence of sexual abuse of his victims, and that he was not afforded due process before the imposition of the sex offender conditions. The trial judge relied on an opinion out of the 5th Circuit, Meza v. Livingston, 623 F.Supp.2d 782 (W.D. Tex. 2009). That case had almost the exact same facts as Appellants case and the court in the Meza case found that due process had not been afforded in imposing sex-offender conditions as a condition of parole. Here, the CCA acknowledged the opinion but stated that the Meza opinion failed to clarify “exactly how much process is constitutionally due before sex-offender conditions may be imposed upon a parolee who has not been convicted of a sex offense.”

The CCA then cited the Fifth Circuit’s analysis of this issue in the 2004 case, Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) which ultimately held that “a parolee who has not been convicted of a sex offense must be afforded the following procedures before sex-offender conditions may be imposed on him:

(1) written notice that sex offender conditions may be imposed as a condition of mandatory supervision;

(2) disclosure of the evidence being presented against [the person] to enable him to marshal the facts asserted against him and prepare a defense;

(3) a hearing in which [the person] is permitted to be heard in person, present documentary evidence, and call witnesses;

(4) the right to confront and cross-examine witnesses, unless good cause is shown;

(5) an impartial decision maker;

(6) a written statement by the fact finder as to the evidence relied on and the reasons it attached sex offender conditions to his mandatory supervision.”

The Court held that because these procedures were not offered to Appellant, he was entitled to the relief he sought: immediate release on mandatory supervision without sex-offender conditions, and, if TDCJ sought to re-impose such conditions he was entitled to the protection of the Meza due-process procedures. The Texas Department of Criminal Justice did chime in with four arguments advocating for the actions of the parole officer but the court shot them all down (see the original opinion for more detail).

What’s the take-away? It’s pretty simple my opinion: Due process must be afforded to individuals on parole when the State attempts to add sex-offender conditions on a parolee who has not been convicted of a sexually related offense.

Just for good measure, here are some helpful links pertaining to Sex Offenders and Sex Related Crimes:

Council on Sex Offender Treatment Home Page

Sex Offender Laws, Legislation-Rules and Sex Offender Legislation-Laws