Failing to Follow Texas Rule of Civil Procedure 276 Doesn't Stop Reversal and Remand in Sex Offender Failure to Register Case

In a jury trial, the jury is the judge of the facts and the judge is the judge of the law. The main way the law gets to the jury is through a document called a jury charge. Texas Rule of Civil Procedure 271 makes this a right, though waivable. For the great bulk of Texas history, if a jury charge were wrong, the case would have to be retried (Sometimes, because of the rule against double jeopardy, the State would just lose it's chance for a conviction.). Think about it--if the jury charge be wrong, that is, in error about the law, the jury's verdict could never be right. The jury's fact-findings would be inconsistent with the law. Put another way, the jury would be answering the wrong questions or would be answering the questions wrong. These days jury charge form books are prepared by the State Bar, before books like this existed serious conflict between the sides in a trial was common. Now, not so much. In a civil matter, usually both sides submit a proposed jury charge before the beginning of the trial, and the judge marks it up during the trial.  The trial has to be fitted to the evidence, and it is the trial itself that determines which issues arise. In criminal matters, the jury charge form books are not finished. There are not standard forms for many crimes. The most common source for criminal jury charge forms is Harris County's jury charge bank. James Publishing's Texas Criminal Jury Charges-- commonly known as McClung's-- is also frequently used. It was the one I used when I was a prosecutor. Usually in a criminal case the prosecutor prepares a proposed jury charge and the defense attacks it, tries to amend it, etc. Courts that are above trial courts tend to think that if a party wants to appeal, it is only fair to the trial judge to have that party show the trial judge in a timely manner (In the real world, it usually means immediately at the time the problem comes up in the trial.). exactly what the party thinks that the judge did wrong and why.

The rules are more complex and burdensome when working to preserve jury charge error. A proposed jury charge written by the judge must be submitted to the parties, and they must be allowed sufficient time to fairly analyze it. After that objections to that charge must either me made in writing or must be read allowed to the court reporter with the judge and all the trial lawyers present, but not the jury.  The judge must either sign the written objections that are refused or dictate them to the lawyers in the present of the court reporter. Language that a party thinks was improperly not included in the charge, but be submitted in writing and must be separate from the objections to improper language in the court's proposed jury charge required by Rule 273. Rule 274 required that the charge objections be specific and that suitable reasons for the objections be put in the writings required by Rule 272. If lawyers make so many objections to a jury charge that the valid complaints are obscured by a storm of bogus ones, the appeals court may ignore them all. One also cannot make one or more charge complaints by incorporating other parts of individual complaints made earlier in the document. According to Rule 276, objections either refused or only adopted in part must be so designated and the disposition of them written and signed by the judge.

Two weeks ago this blog showed how the Ninth Court of Appeals in Beaumont reversed and remanded a long-shore personal injury case even though the defense failed to follow these rules for preserving jury charge error. In today's case, the Sixth Court of Appeals in Texarkana, reversed and remand the conviction of a person accused of failing to register as a sex offender.

Sex offender Clister Ray Thomas lived with a girlfriend in an apartment on Houston Street in Longview. The landlord swore out a criminal trespass warning to Thomas, but Thomas didn't move out. He just showed up there late at night and left extremely in the morning. When Thomas was arrested in unrelated matters, he gave jail book-in a false address on Green Street in Longview. Even though Thomas lied then about the address, he was still on the sex offender registry as living on Houston Street, which-- contrary to the landlord's wishes-- was where he was actually living.

Thomas was arrested and convicted of having moved without having changed his registration. Texarkana reversed and ordered an acquittal for insufficient evidence. The State took the case up to the Court of Criminal Appeals, Texas's highest criminal court. There Judge Hervey wrote an opinion joined by Presiding Judge Keller, and Judges Meyers, Keasler and Alcala joined reversing Texarkana, and remanding the case back to them for them to decide if the jury charge error alleged had been harmful Remember Thomas's lawyer had not jumped through the jury-charge error-preservation hoops. Judge Womack concurred without an opinion, and Judge Cochran wrote a dissent, joined by Judges Price and Johnson.

When Texarkana got the case back, it found that Thomas had been egregiously harmed by the jury charge error, which is appeals-court talk for "the error is so bad that we're going to hold for him even though the jury-charge error-preservation rules had not been followed." This answers the CCA majority's question and basically adopts the reasoning of the dissent.

Aren't the bi-statial justices just setting themselves up to get slapped down again? Maybe not. Judge Womack is off the court, replaced by Kevin Michael Yeary. Yeary might join the dissent. Judge Cochran is off to be replaced by David Newell, and Judge Price left to be replaced by Bert Richardson. I don't know, but it would not be an unreasonable guess to think that Richardson might join the dissent, and that at least on one of the majority judges would agree with the Sixth court's jury-charge- harm analysis, thinking that they answered the question put to them by the majority. It is also possible that one or more majority judges would think that the CCA's been messing around this case long enough.

Clister Ray Thomas v. State of Texas (No. 06-13-00046-CR, Dec.30, 2014 ) Tex. App.-- Texarkana (no pet. h.) on remand from No. PD-1326-13, Sept. 24, 2014 (Tex. Ct. Crim. App.) on a petition grant from Aug. 28, 2013 Tex. App.--Texarkana.

Hat tip to the estimable Jim Skelton.

Don't Make This Mistake in Your Hearings; or How to Get in Front of the CCA

Defendant moved to suppress meth and drug paraphernalia evidence seized after a traffic stop. Motion denied, the defendant pleaded out and appealed. The Texarkana Court of Appeals reversed, finding that the officer conducting the stop lacked reasonable suspicion to continue the detention until a drug dog arrived, which, when summoned, alerted to drugs within the vehicle. They didn’t address the State’s “cross-appeal” arguing that the trial court should not have applied the rules of evidence in a suppression hearing because the State failed to file its own notice of appeal.

Texas’s Court of Criminal Appeals heard the State’s petition for the CCA to resolve a split among the courts of appeals as to whether the State must file a separate notice of appeal when the defendant appeals and the State wishes to appeal a law ruling of law under Article 44.01(c), Texas Code of Criminal Procedure. The CCA held in an 8-1 decision that the State need not and remanded the State’s point back to Texarkana.

The officer on the scene said he stopped the defendant’s truck because it lacked needed mud flaps. The officer went on to say that the defendant seemed nervous and answered his questions vaguely. While waiting to hear back on a warrants check, the officer got a call from a county investigator (not clear from the opinions what precise agency the investigator was working for). Defense counsel consistently objected to the officer’s repeating what the investigator told him, and it does not appear that the State made an offer of proof.

In this case on remand, Texarkana, in an opinion written by Justice Bailey C. Moseley, held that though, with the exception of privileges, the Texas Rules of Evidence do not apply to suppression hearings because they involve only the determination of preliminary questions and even though hearsay is admissible at a suppression hearing to demonstrate the existence of reasonable suspicion or probable cause, the objection to the motion to suppress was properly overruled because even though the State did not get an adverse ruling, it did not keep going to reveal what was in the call which might or might not have given the officer cause to hold the defendant further. There is no evidence that the officer possessed sufficient reasonable suspicion to have detained the defendant for the period of time necessary to bring the drug dog to the site of the stop. This case can be distinguished from Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) and similar cases by the failure to limit or exclude admissible evidence.

Comments: Note here that the CCA takes the case not because Texarkana’s judgment is a gross miscarriage of justice (It might be; it might not be.), but to resolve a split among the state courts of appeals. On a petition for discretionary review to the Court of Criminal Appeals (or on a petition for review to the Texas Supreme Court or in an application for writ of certiorari to the Supreme Court of the United States), don’t just talk about whether the intermediate appellate court ruling is a triumph or miscarriage of justice but also emphasize how a ruling in your case will resolve splits between the appellate courts the court you’re making application to is supposed to be governing. Really, the way that the system is set up, that’s how the high courts are supposed to choose their cases.

Lavern A. Pfeiffer v. State of Texas, No. 06-11-00001-CR, (Tex. App.—Texarkana, July 6, 2012, no pet. h.) (on remand).

Inconsistent Testimony, Recantations Don't Require New Trial

In Duke v. State, No. 06-10-00209-CR (Tex. App.--Texarkana, Mar. 27, 2012) (no pet. h.) the first time that the child told the school counselor that her stepfather touched her genitals, she said that it had happened during horseplay and wrestling. The counselor said that the child's statement exculpated the stepfather. An investigator who interviewed the counselor said that the counselor had inculpated the stepfather. The next month the child told her father that she had been molested. She later told the investigator that the stepfather had penetrated her anus with his penis, but stated after that that he had only touched her buttocks with his penis through her clothing. After that, she recanted to her mother. Further on in time, there was a trial. The child testified that the stepfather had put his penis in her anus. She also stated that the penis was not hard. The stepfather is convicted of indecency by contact and gets a 60-year sentence. After the trial, the child moved back in with her mother, and recanted in a motion for new trial. Around that time, she told the investigator that she had been telling the truth at the trial. Should a new trial be granted?
A motion for new trial based on a recantation must satisfy the following four-part test for newly discovered evidence:
(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and,
(4) the new evidence is probably true and will probably bring about a different result on another trial.
The decision is within the sound discretion of the trial court.
The trial judge ruled that the new evidence was not probably true, that the child seemed resigned in her testimony at the motion for new trial, and the appeals court would not second-guess the trial judge.