Tanya S. Dohoney
Questions
1
After her grandmother discovered a green, slimy discharge on 4-year-old L.N.’s underwear, the child revealed that Brunshae Steadman, her mother’s boyfriend, had lay on her, touched her “tutu,” and rubbed his penis “down in her stride.” When doctors examined the child at the emergency room, they suspected that the preschooler had a sexually transmitted disease (STD), gonorrhea.
Steadman tested positive for the infection, and when an investigating officer sprung the diagnosis news on him, he confessed he had touched the little girl during bouts of heavy drinking and masturbating. After hearing of her boyfriend’s actions and his STD, the child’s mother uttered disbelief and explained to investigators that she herself had suffered from gonorrhea during her pregnancy. However, at trial, the jury learned that when children contract gonorrhea from their birth mother, the STD presents only in their eyes. Other expert testimony revealed that gonorrhea is typically transferred via sexual contact but could also occur when a finger touches the exterior of the vagina. The sexual-assault nurse examiner (SANE) explained that penetration of the female sexual organ (FSO) occurs when any object passes the labia majora and that this definition does not require actual vaginal penetration. The jury convicted Steadman on counts of digital and penile penetration of the child’s FSO.
The Waco Court of Appeals reversed for factual insufficiency on the penile penetration count. In light of evidence that suggested that gonorrhea can also be transmitted by the male sexual organ merely touching the outside of the FSO without having passed through the labia majora, the Waco judges reversed, finding that penile intrusion into the victim’s sexual organ beyond the vaginal lips was not established. Chief Justice Tom Gray dropped a footnote dissent to this result. Was the Waco court correct?
yes _____ no _____
2
Antonio Sierra rounded a corner of a busy Houston roadway and, when the vehicle in front of him turned slowly into an apartment complex, he pulled his SUV into a left lane to continue forward unimpeded. At the same time, when a couple pulled their vehicle out of that complex, Sierra T-boned them, pinning the driver in the vehicle. She suffered serious bodily injury and remained in the hospital for a month.
During the investigation, Sierra’s self-described 13-beer intake registered a 0.12 BAC. Even though the evidence revealed that an average, undistracted person traveling at the posted speed would have avoided the collision and there was no evidence Sierra attempted to brake, uncertainty about the wreck’s causation arose because of some possible vision-impairment issues. Felony DWI charges ensued and, on appeal, the Fourteenth Court of Appeals deleted the deadly weapon finding after finding no evidence that Sierra drove in a reckless, threatening, careless, or dangerous manner, or that he violated any traffic laws or was at fault for the collision. Was this holding correct?
yes _____ no _____
3
While separated from his wife, Daniel Rey arrived from out of town at 12:30 in the morning to visit his 1-year-old daughter. He heard the child crying from outside and could see his 3-year-old stepson inside asleep through a window. After rapping on the window to wake the little boy and gaining entrance after breaking a window, Rey found only the children at home. Rey took his daughter back to his Muleshoe house and claimed to have left the little boy with neighbors. The neighbors disputed Rey’s assertion, saying they had found the child standing alone, outside, screaming for his father. Convicted of child abandonment, Rey argued that insufficient evidence supported this crime because he did not have care, custody, or control over the little boy. The Amarillo court agreed and held that stepfather Rey did not stand in loco parentis with the little boy. Was this the proper standard?
yes _____ no _____
4
Prosecutors charged Roberto Trejo with aggravated sexual assault. In his trial, the court’s jury instructions submitted this primary offense as well as three lesser offenses: sexual assault, aggravated assault, and assault. Trejo did not object to the lesser charges, and the jury found him guilty of aggravated assault. For the first time on appeal, Trejo claimed that the trial court had no jurisdiction to convict him on the lesser charge because aggravated assault was not a proper lesser-included offense of aggravated sexual assault. The Fourteenth Court of Appeals agreed and entered an order of acquittal after finding the conviction void. Was the appellate court correct?
yes _____ no _____
5
After CPS removed 15-year-old P.H. from her drug-addicted mother’s home, the already-troubled teen moved in with her grandmother and father, Murray Hammer. P.H. woke up four separate times to find her father molesting her during the night. She told a friend about these instances, who in turn reported them to a school counselor, and authorities were notified.
During the trial and P.H.’s cross-examination, evidence showed serious conflict between the teen and her father. When P.H. moved in, she was required to follow rules, work at her grades, and be responsible—the opposite of her lifestyle under her mother’s loose supervision. This conflict meshed with Hammer’s defensive theory that P.H. had falsified these indecency allegations to end her father’s strict control.
Also in support of this theory, Hammer unsuccessfully sought to introduce additional evidence that included P.H.’s previous sexual conduct and false allegations of abuse. For instance, after living with her father for a month, P.H. ran away with her boyfriend overnight. Her father took her to be examined by a sexual-assault nurse, and P.H. told the nurse she had instead been sexually assaulted by a youth named Ignacio and previously molested by an uncle (describing the same conduct that was alleged against her father). Yet P.H. told another witness that the Ignacio sexual assault tale was contrived to keep her dad from learning about the boyfriend. During the defense bill of exception, P.H. ultimately admitted the comments to the nurse (after being shown the medical records) but denied the statements about making up the prior assault. The trial court excluded all of this evidence. Other instances of the victim’s prior sexual history were also excluded, including her false report of being held and raped by five men at knifepoint when she had again run away and her removal from school after being caught with a boy in a compromising position. Was evidence of P.H.’s prior, purportedly false, accusations admissible?
yes _____ no _____
6
A homeless woman living under Houston’s Pearce Elevated stabbed a homeless man who lived in the same vicinity; their dispute arose over a debt. Trial witnesses who also lived in this homeless community described how Dereskey Hayden stabbed John Kimball in the back. During the guilt phase, the eyewitnesses described the victim as a pretty nice, quiet guy who did not give others any problems. The victim’s daughter testified about his prior family and employment life but that his battle with alcohol progressed over the years, rendering him homeless. During the guilt phase, the defense sought to admit evidence of Mr. Kimball’s status as a registered sex offender to rebut the State’s evidence, but the trial court denied the request. In punishment, Hayden reoffered this evidence to rebut the false impression that Mr. Kimball was a nice guy. Did the trial judge correctly exclude the victim’s sex-offender registration status when the defense offered it during punishment?
yes _____ no _____
7
Emily Hardy and Hiram Myers participated in an anti-war protest outside of then-President Bush’s ranch in Crawford. The protest took place where three roadways intersected, leaving a triangular patch of median. As the demonstration gained momentum, its leaders cooperated with McLennan County authorities by using shuttles to the site and moving out of the roadway onto the right-of-way as ordered. They specifically complied with Sheriff Captain Vanek’s request to move away from the triangle and into the bar ditches to avoid blocking the roads. The official told the protesters that the bar ditches were “public property on which they could express their views.”
Subsequently, the McLennan County commissioners issued an order prohibiting tents and portable toilets from being placed on the right-of-way of any county road. The order’s poor drafting left it without enforcement because it included no penalty except for removal of the offending tent.
Protesters Hardy and Myers sought to challenge the ordinance’s constitutionality, so they erected a tent in the right-of-way. Knowing their intent, Captain Vanek formally notified them of the need to stay off the road and in the bar ditches. The warning also referred to a safety hazard posed by tents erected in the right-of-way; Vanek expressed concern that cars might stray into that area for various reasons. Finally, the warning stated that failure to promptly remove tents would result in arrest under Penal Code §42.03 for obstructing a highway. Hardy and Myers went into their tent and remained until they were arrested. A video of the arrest scene showed demonstrators seated in folding chairs set up about 5 feet from the edge of the roadway, a vehicle parked completely off the pavement, and the tents situated even farther off of the road than the seated protesters and the vehicle.
At trial, Captain Vanek testified that the protesters were not obstructing the paved part of the street but were obstructing the right-of-way. Section 42.03 defines “obstruct” as rendering impassable, unreasonably inconvenient, or hazardous, and the statute prohibits obstruction of, among other things, a “highway,” which is not defined in this section of the Penal Code. The court of appeals held that the remote possibility of an obstruction is not a violation of §42.03. Was the intermediate court correct?
yes _____ no _____
8
Elena Karenev sought to divorce Nikolai Karenev and, during the throes of their divorce litigation, Nikolai sent purportedly threatening emails to his soon-to-be ex-wife. A harassment prosecution ensued, and a jury found Nikolai guilty. For the first time on appeal, Nikolai raised a facial constitutional challenge to the harassment statute based on vagueness. The Fort Worth Court of Appeals reversed on that basis. On petition for discretionary review, the State argued that Nikolai forfeited his facial challenge to the provision’s constitutionality. Was this a successful argument?
yes _____ no _____
9
Officer Gill’s experience included 24 years as a patrol officer dealing with street-level drugs and working undercover. After receiving unspecified information from a confidential informant and while surveilling a narcotics-infested area of Houston, Officer Gill came into contact with Garland Vennus, a felon whom he had arrested at least twice on drug charges. Lo and behold, Officer Gill watched Vennus stop for a few minutes at a service station known for selling crack. While driving away, Vennus committed a couple of traffic violations, so Gill instructed a uniformed officer to stop him. Vennus denied the officers’ request for consent to search his car, so the officers promptly placed him in the back of a squad car to prevent evidence destruction. The group waited 30 minutes for the drug dog’s arrival, and the dog alerted on the car. A subsequent search revealed contraband.
Seeking suppression, Vennus contested only the length of the detention while waiting for the drug dog. At the hearing, Vennus voiced a speculation objection before Officer Gill answered the State’s inquiry about the basis of the officer’s reasonable belief that Vennus possessed contraband in his car. The trial court inexplicably sustained this objection. The trial judge also sustained a defense objection to Gill’s prior observation of Vennus appearing to conduct narcotic transactions. Can Vennus argue on appeal that the State failed to carry its burden to prove the reasonableness of the continued detention and subsequent search under these facts?
yes _____ no _____
10
Billy George Reedy pled guilty to capital murder. As part of the plea agreement, the prosecution waived the death penalty in exchange for waiving his habeas rights as set out in CCP Articles 11.07 and 11.071. After this plea agreement, no appeal ensued. In spite of the agreed habeas waiver, Billy raised six grounds in a pro se application for writ of habeas corpus. His petitioned for relief regarding 1) an involuntary plea; 2) his attorneys’ coercing him to plea; 3) the propriety of his police interrogation; 4) ineffective assistance of counsel; 5) denial of his appellate rights; 6) and indictment error. The trial court reviewed the habeas claims and recommended relief be denied based upon the plea-bargained waiver of future habeas litigation.
Is a blanket waiver of all future habeas litigation enforceable?
yes _____ no _____
Answers
1
No. Steadman v. State, 280 S.W.3d 242 (Tex. Crim. App. April 1, 2009) (Keller) (6:1:2). The Waco court skewed its factual sufficiency review by failing to defer to the jury’s verdict and granting greater weight to the defense’s competing causation theory. Also, the lower appellate court too narrowly interpreted the child’s testimony, the expert evidence of gonorrheal transmission, and the definition of penetration, especially when it emphasized that the young victim had not indicated that her perpetrator penetrated her female sexual organ. Presiding Judge Keller explained that no one should expect a 4-year-old child to use adult-level descriptions of sexual-assault conduct. Applying a correct view of penetration, the child’s testimony could reasonably be viewed as establishing penetration of the FSO. In other words, vaginal penetration was established by proving the tactile contact beneath the fold of the victim’s external genitalia and the resulting transmission of a loathsome STD to a 4-year-old girl.
2
No. Sierra v. State, 280 S.W.3d 250 (Tex. Crim. App. April 1, 2009) (Keasler) (7:2). Without addressing the argument that driving while intoxicated is inherently dangerous and reckless, the Court of Criminal Appeals found that the interim appellate court applied the wrong standard of review by failing to look at the evidence in a light most favorable to the jury’s finding. Here, a rational factfinder could conclude that Sierra drove recklessly or dangerously while intoxicated because there was no evidence that he attempted to brake, some evidence that he was speeding, and significant evidence that he could have avoided the crash. Also, the driver’s injuries showed that Sierra’s conduct caused serious bodily injury. Hence, his reckless driving and failure to avoid the collision supported the deadly weapon finding with legally sufficient evidence.
3
No. Rey v. State, 280 S.W.3d 265 (Tex. Crim. App. April 1, 2009) (Johnson) (8:1:0). The gravamen of the child-abandonment statute is abandonment by one who has care, custody, or control of the child, and proof of a familial relationship with the victim is only one evidentiary fact to consider. Penal Code §22.041 does not define care, custody, and control, nor has this issue been addressed on appeal. However, because §22.041 focuses on the protection of vulnerable individuals, as does §22.04’s prohibition of injury to a child, the definition of care, custody, and control in §22.04 applies to child abandonment with equal vigor. An actor has assumed care, custody, or control when he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for a child’s protection, food, shelter, and medical care. By utilizing the in loco parentis requirement, the lower court applied the wrong standard. In loco parentis is more restrictive than care, custody, or control because a person, such as a baby-sitter, may have temporary care, custody, or control but not be in loco parentis. The court remands the case to the lower appellate court to apply the correct legal standard.
4
No. Trejo v. State, 280 S.W.3d 258 (Tex. Crim. App. April 1, 2009) (Womack) (6:3:0). First, the Court of Criminal Appeals explained that Trejo did not need to object to the charge error to raise the issue on appeal under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). While a defendant may be estopped from complaining about a charge he requested, estoppel will not prevent a defendant from raising a claim where the record fails to show who was responsible for including an erroneous lesser crime, as in this case.
Second, the court considered whether the trial court harbored jurisdiction to find Trejo guilty on the erroneous lesser charge. The return of an indictment invoked the jurisdiction of the trial court, so the Court of Criminal Appeals remanded back to the interim appellate court to consider harm on the erroneously submitted lesser-included crime.
5
Yes. Hammer v. State, ___ S.W.3d ___, 2009 WL 928561 (Tex. Crim. App. April 8, 2009) (Cochran) (9:0). Evidence of prior false accusations of sexual activity may be admissible for a purpose other than a propensity attack upon a witness’s general character for truthfulness even though prior false allegations of rape do not tend to prove or disprove any of the elements of the charged sexual offense and “once a liar, always a liar” evidence is prohibited under the propensity theory. Hammer’s defensive theory before the jury focused on claims that P.H. fabricated the sexual molestation because her father required her to follow rules for the first time in her teenaged life. But the jury did not hear about how upset P.H. became when her father took her for a sexual-assault exam after she had the overnight encounter with her boyfriend; distress over this event led P.H. to be hospitalized after threatening suicide. The indecency accusations against her father arose only a month later. The evidence also illustrated that P.H. was not above changing her story from a consensual encounter with her boyfriend to a non-consensual encounter with another boy to attempt to prevent her father from punishing her.
Rule 412 contains an explicit motive or bias exception, and the unanimous decision alludes to a possible Confrontation Clause issue as well. Hence, the trial court abused its discretion in preventing Hammer from cross-examining P.H. about the hospital incident, her allegations of prior molestations, claims of having been raped at knifepoint, and admissions about lying to the hospital nurse about her overnight affair with her boyfriend. These instances demonstrated bias against Hammer and P.H.’s possible motive to testify falsely against him.
Trials involving “he said, she said” credibility battles often require a jury to reach a unanimous verdict after hearing diametrically different versions of events. In these cases, the Rules of Evidence, specifically Rule 403, should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the victim or the defendant. Federal and state laws give trial judges wide latitude when admitting evidence of specific bias, motive, or interest to testify in a particular fashion. Under Rule 403(a)(3), a defendant may always offer evidence of a pertinent character trait, such as truthfulness, of any witness, but Rule 608 limits evidence of truthfulness to reputation or opinion testimony. However, specific instances of conduct are used under Rule 613 to establish specific bias, self-interest, or motive for testifying. Rule 404(b) also allows evidence of others’ misconduct to establish a person’s motive for performing some act, such as making a false allegation against the defendant.
6
Yes. Hayden v. State, ___ S.W.3d ___, 2009 WL 928569 (Tex. Crim. App. April 8, 2009) (Keasler) (8:1:0). While it is true that we now essentially have wide-open punishment hearings under Code of Criminal Procedure Article 37.07 and victim character and victim impact evidence—both good and bad—are admissible during punishment. The victim’s collateral sex-offender status was not relevant to the jury’s assessment of punishment in this case. Evidence that draws comparisons between the victim and other members of society based on a victim’s worth or morality is not relevant to punishment and should usually be excluded under Rule 403.
However, the court notes that a party may open the door to this evidence on rebuttal by creating a false impression. Where that false impression relates directly to the offense charged, it may become admissible. Still, the admissibility of this evidence rested within the sound discretion of the trial court and, here, the trial court’s exclusion fell within the zone of reasonable disagreement. When discussing this victim character evidence, the court cautions against using the imprecise term negative victim impact evidence.
7
Yes. Hardy v. State, 281 S.W.3d 414 (Tex. Crim. App. April 22, 2009) (Johnson) (5:4). Legally insufficient evidence supports this obstruction conviction, requiring reversal, because there was no proof of an actual roadway obstruction. Although the county ordinance barred structures such as tents in the right-of-way, Hardy and Myers were charged with obstruction of part of the road easement for the passage of vehicular travel. The statute’s purpose involves the free flow of traffic and the safety of travelers, not those on the side of the road. Because the protesters in the tent did not actually obstruct or impede highway passage, the State failed to prove a violation of §42.03. The court also noted the unreasonableness of prosecuting persons who had been ordered to remain in the bar ditches and off of the road, who complied, and who were later prosecuted for that same conduct.
8
Yes, but don’t ignore the concurrence. Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. April 22, 2009) (Keller) (5:4). The five-vote majority holds that a defendant may not first launch an attack on the facial constitutionality of a statute on appeal. The court recognized that federal and state jurisprudence has narrowed the circumstances for finding jurisdiction lacking, thereby voiding judgments. See, e.g., Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990) (applying procedural limits to raising fundamental indictment error) and Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) placing rights/rules into three categories for preservation purposes). This trend generally undercuts the notion that a facial constitutional challenge is somehow akin to a jurisdictional matter, validly raised at any time. The court vitiates two late-’80s cases (Rabb and Rose) and describes their holdings as made-up rules in search of a rationale to justify their existence.
Judge Cochran’s concurrence contains several salient observations. First, she describes the majority’s decision as painted too broadly and, thus, opening itself to misinterpretation as sanctioning un-American incarceration for an unconstitutional crime where procedural default occurred. Second, the concurrence reasons that federal caselaw always allows defendants to question the constitutionality of the penal provision that creates or defines the crime prosecuted, but defendants have no ability to delay raising constitutional arguments aimed at procedural or evidentiary provisions. Third, the rationale of the contemporaneous objection rule fails with respect to facial constitutional challenges; for example, nothing the judge or any party does will cure such an error. Fourth, Judge Cochran points out that Nikolai’s allegation isn’t a facial constitutional challenge of the harassment statute, nor was the fact-based claim even an as-applied challenge to the statute’s constitutional viability, but the first-time appellate complaint actually raised a legal sufficiency challenge, wrapped in the garb of a First Amendment facial constitutional claim.
9
No. Vennus v. State, 282 S.W.3d 70 (Tex. Crim. App. April 22, 2009) (Hervey) (6:2:1). The invited-error doctrine prohibits the defendant’s Fourth Amendment challenge. When a litigant induces the commission of an error by his conduct, estoppel prevents him from asserting that ground on appeal. Here, when Vennus caused the judge to improperly exclude evidence based on hearsay, he locked himself into that strategy and its consequences.
Judge Price’s concurrence would have upheld the trial court’s ruling based on a reason not discussed at trial: He suggested relying on the officer’s ability to arrest Vennus for the illegal left-hand turn, bypassing the continued detention question, and heading unknowingly into an Arizona v. Gant (129 S.Ct. 1710 (April 21, 2009) search-incident-to-arrest issue. Unbeknownst to Judge Price, the Supreme Court had decided Gant the day before the CCA decided this case. Presumably, he would not rely upon this justification now that Gant has sharply limited a police officer’s ability to search a car incident to an arrest.
Judge Meyer’s dissent blisters the prosecution for ignorance of the advantageous fact that, in a suppression hearing, the Rules of Evidence do not apply under Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2007).
10
No. Ex parte Reedy, 282 S.W.3d 492 (Tex. Crim. App. April 29, 2009) (Price) (8:1). While a defendant may voluntarily, knowingly, and intelligently waive the right to file future writs of habeas corpus, such a forfeiture is probably not enforceable regarding unforeseeable claims because they could not have been knowingly waived at the time of the agreement. Because an express waiver of the right to post-conviction habeas corpus relief must be knowingly and intelligently executed, it must occur under circumstances indicating that the defendant had knowledge of the nature of the claims he could have brought but for the waiver. However, habeas claims cannot be waived ahead of time if they are predicated on facts that did not exist or did not fall within the defendant’s knowledge, comprehension, or anticipation.
In Reedy’s case, facts surrounding his allegations of an involuntary plea, coerced confession, the negotiated waiver of his appellate rights, and his bald assertion of indictment error, were either known or knowable, rendering his waiver of each valid. However, Judge Price’s decision found Reedy’s habeas waiver unenforceable on the ineffective assistance claim because trial counsel’s purported incompetence could have rendered his plea involuntary. Price says that the magnitude of the claim—trial counsel’s lack of preparedness forcing Reedy to accept the plea agreement—vitiated any habeas waiver and warranted remand to the trial court for further habeas proceedings. The opinion posits that claims premised on newly available evidence such as actual innocence, suppression of exculpatory evidence, and ineffective assistance would most likely render a habeas waiver unenforceable. ✤