David C. Newell
Long, long ago, the As The Judges Saw It column followed a quiz format where we’d pick 10 “significant” cases from the Court of Criminal Appeals (and sometimes the United States Supreme Court) and boil them down to simple binary questions to educate prosecutors who might have been unfamiliar with the cases and to challenge the ones who were. With a bit of nostalgia in mind, I’ve gone through the cases from the last term and picked out (in no particular order) a few of the bigger ones that everyone probably knows and several smaller ones that may have been overlooked.
Questions
1
Police officers discovered the bodies of Juan and Hector Garza. They had been shot with a shotgun, and at the crime scene, police discovered shotgun shells. Eventually, the investigation led to Genovevo Salinas. At his home, police found a shotgun, and Salinas voluntarily accompanied officers to the station for questioning. Police did not read Salinas his Miranda warnings, and they questioned him for about an hour. Salinas answered every question they asked. When the investigating officer asked Salinas if the shotgun shells found at the crime scene would match the shotgun in Salinas’ home, Salinas remained silent. Ballistics analysis later matched Salinas’ shotgun to the shells at the scene. At his trial, the State sought to introduce Salinas’ silence in response to the officer’s question about the shotgun shells.
Should the trial court have admitted the evidence of Salinas’s pre-arrest, pre-Miranda silence?
Yes _______
No _______
2
A joint FBI and Washington D.C. task force suspected Antoine Jones of trafficking narcotics. Based upon information gathered from various investigative sources, the FBI got a warrant authorizing the installation of a GPS device on the Jeep Grand Cherokee registered to Jones’s wife. The FBI was supposed to install the device in 10 days and in the District of Columbia. They did it in Maryland. On the 11th day.
Over the next 28 days, the FBI used the device to track the vehicle’s movements and its location within 50 to 100 feet; the device communicated that location by cellular phone to a government computer, relaying more than 2,000 pages of data over the four-week period. The report contained information showing when the car was parked in a garage near Jones’s residence as well as when he was travelling on public roadways.
Is the information transmitted from the GPS device regarding Jones’s travel on public roadways a search?
Yes _______
No _______
3
Trooper Mike Ashby pulled Jose Pena over for a traffic violation. The officer smelled what he believed to be marijuana and saw what he believed to be fresh-cut marijuana covering the cargo area of Pena’s van. The officer arrested Pena and transported him to jail. Trooper Ashby recorded the traffic stop, arrest, and transport of Pena to jail on a car-mounted camera. The plant material was seized and sent to the DPS laboratory in Waco for testing. It came back showing 23.46 pounds of marijuana based upon microscopic inspection and the presence of THC in the plant. The plants were destroyed, however, before Pena filed a motion for independent testing.
Pursuant to a Brady motion, the State provided the defendant a copy of the videotape of the car-mounted camera. When Pena’s attorney asked where the audio was on the recording, the State responded that there was no audio. Trooper Ashby later testified that there was no audio due either to a battery malfunction or his failure to activate the recording device that he carried. Trooper Ashby also testified that Pena had vehemently denied that the material was marijuana, saying he had cut plants on the side of the road in Kansas to make leather goods and trinkets. During closing argument, the State argued that the defendant had put up a smoke screen and requested independent testing only after they knew the plant material had been destroyed. But after jury deliberations, it was discovered that a part of the tape did have audio and the jury never heard the audio portion.
Did the prosecutor violate Brady?
Yes _______
No _______
4
Jesus Cosio sexually abused his former girlfriend’s daughter over several years. The State charged him with four counts: two of aggravated sexual assault and two for indecency with a child. The proof of sexual misconduct was divided up into four different incidents:
• a “shower incident” involved the defendant getting into the shower with the victim (who was 7 or 8 at the time) where Cosio touched the child’s breasts and vagina;
• the “bedroom incident” occurred a week after the shower incident and involved the defendant taking the victim into the bedroom he shared with the victim’s mother and making the victim fellate him. This incident also included vaginal penetration;
• the “Burger King incident” involved the defendant making the victim fellate him both on the way to the restaurant and on the way back; and
• the “pornography incident” occurred when the victim was 9 or 10 and involved the defendant taking the victim into the bedroom, showing her a pornographic movie, then making her take off her clothes to try the positions they saw in the movie. This incident included vaginal penetration.
Cosio requested that the State elect which counts it proceeded upon because the evidence supported more than one instance of his misconduct under each count. Count One, aggravated sexual assault of a child, was supported by proof of fellatio in “the bedroom incident” and “the Burger King incident.” Count Two, also aggravated sexual assault of a child, was supported by evidence that Cosio had penetrated the victim’s vagina with his sexual organ in “the bedroom incident” and “the pornography incident.” Counts Three and Four, both indecency with a child by contact, were supported by evidence of the defendant touching the victim’s genitals in “the shower incident,” “the bedroom incident,” and “the pornography incident” because the pleadings did not differentiate whether the defendant used his penis or hand to contact the victim’s genitals.
A proper jury instruction would require the jury to be unanimous about each count, each incident, or each incident within each count?
Each count _______
Each incident _______
Each incident within each count
_______
5
While Conrad Lilly was incarcerated in a maximum-security prison operated by TDCJ, he was indicted on two counts of assault on a public servant. The trial court arraigned Lilly in the prison unit’s chapel, which also served as a branch courthouse for the county. After his arraignment, Lilly filed a pretrial motion to transfer his trial proceedings from the chapel courthouse to the public county courthouse.
At the hearing, the Offender Rules and Regulations for Visitation was admitted and witnesses were called. Visitors had to first pass through a “highway gate” to enter the parking area. Then, the visitor would have to pass through the front gate of the prison unit followed by two fences with razor wire and a series of three locked metal doors. Visitors would be subjected to a physical pat-down search and would be required to walk through a metal detector after removing their shoes and belts. Visitors could be excluded from entry for a variety of infractions such as wearing offensive clothing or seeking admission for an improper purpose. The State noted, however, that the docket for the chapel-courtroom was posted at the county courthouse a month prior to the pretrial hearing and that docket reflected that Lilly’s hearing would be at the prison unit. The trial court denied the motion to transfer.
Should the judge have done so?
Yes _______
No _______
6
After Dustin Doan was placed upon community supervision in Brazos County, he was charged with misdemeanor theft in Travis County. Brazos County moved to revoke Doan’s probation based upon the new theft allegation. At the hearing on the motion to revoke in Brazos County, the prosecutor called Doan’s probation officer to prove up the Travis County theft. Doan objected on the basis of hearsay, and the trial court sustained the objection. The prosecutor made no additional attempts to introduce evidence of the theft. Finding that the State failed to meet its burden of proof, the trial court denied the motion to revoke in Brazos County.
Afterwards, Travis County proceeded on its misdemeanor theft case against Doan. He filed a pre-trial writ of habeas corpus to bar any further prosecution of the theft offense under the doctrine of res judicata, or issue preclusion. The trial court denied the requested relief, and the court of appeals affirmed on the basis that the Brazos County Attorney and the Travis County Attorney were not the same parties for purposes of issue preclusion. Consequently, the case did not involve a person “criminally prosecuted twice for the same event” under the double jeopardy clause because the Brazos County Attorney and the Travis County attorney are independent entities with no control over each other’s decision-making processes.
Are they different parties?
Yes _______
No _______
7
At a nightclub, members of Ronnie Tienda’s group of friends were “throwing” gang signs and “talking noise” to David Valadez and two passengers in his car as they left the club. Valadez’s car came under gunfire from a caravan of three or four cars also traveling down the road, and Tienda was a passenger in one of the cars in the caravan. Valadez was killed. Witnesses agreed that Tienda was at least present during the shooting.
Valadez’s sister informed the State of three MySpace profiles that she believed Tienda registered and maintained. Two were created by “Ron Mr. T” and a third by “Smiley Face,” Tienda’s nickname. The State sought to introduce multiple photos “tagged” to these accounts because the person in the photos at least resembled Tienda; that person displayed gang-affiliated tattoos and made gang-related gestures with his hands. Additionally, instant messages, links, and posts on these accounts referred to Valadez’s funeral, the shooting, and details about the State’s investigation. The State offered this evidence at trial through the victim’s sister.
However, the defense elicited testimony regarding the ease with which a person could create a MySpace page in someone else’s name and then send messages. Moreover, the case-specific facts in the MySpace messages were not solely within the defendant’s knowledge but were known to the deceased’s family, friends, and practically any other third party interested in the case. The defense objected to the admission of the evidence, claiming the State failed to authenticate it.
Was it admissible?
Yes _______
No _______
8
Owen Harris was caught masturbating in a car knowing that a 6-year-old girl and two 9-year-old girls were present. (How is that for an opening sentence?) Harris pleaded guilty to three counts of indecency with a child by exposure arising from the same criminal episode. After a punishment hearing, the trial court sentenced Harris to 10 years in prison for each count, with the first two counts running consecutively and the third running concurrently with Counts One and Two.
Does this violate the double jeopardy clause’s prohibition against multiple punishments for the same offense?
Yes _______
No _______
9
In the early hours of July 1, 1997, a group of four or five men kicked in the door of a residence and broke in with bandanas over their faces. During the invasion, one of the armed men fatally shot an occupant of the home. Two witnesses, the deceased’s roommates, identified Adrian Chavez as the shooter; one told police that the shooter pulled down his mask immediately after he opened fire on the victim and that he recognized the gunman as Chavez. The other roommate said he recognized Chavez’s voice and build.
The State charged Chavez with capital murder, but the jury convicted him of the lesser-included offense of aggravated robbery. After the trial, Chavez admitted for the first time that he had participated in the offense but only as the driver. He met with prosecutors to provide the names of others involved to see if it would influence sentencing. While the meeting was taking place, the jury sentenced Chavez to 55 years in prison.
Subsequently, prosecutors received information from what they considered credible witnesses previously unknown to the State that two other men had admitted to the crime, one of whom admitted to the shooting. One man said Chavez had devised and coordinated the offense, and the other stated that Chavez had remained in the getaway vehicle during the course of the offense. Based upon this information, Chavez filed a writ of habeas corpus claiming that the State had offered false testimony and that his conviction should be overturned as a matter of due process.
Did the prosecutor’s unknowing use of false testimony violate due process?
Yes _______
No _______
10
The State charged Gary Black with possession with intent to deliver methamphetamine. At the hearing on the motion to suppress, an undercover investigator testified that he had conducted surveillance of Black’s home and that he saw Black leave his house in a car. The investigator knew that Black had active arrest warrants, so he called another officer to arrest him so the investigator’s cover would not be blown. Pursuant to an arrest on the outstanding warrants for failure to appear before Justice of the Peace Pat Jacobs and for driving without a license, police recovered several baggies of methamphetamine from Black’s pockets.
Black argued the warrants proffered as justification for the stop and arrests were invalid because the supporting documentation had not been executed until after the issuance of the warrants themselves. The trial court denied the motion to suppress. During the State’s case-in-chief, prosecutors called Judge Jacobs to testify that she was present on the date that Black had failed to appear. Based upon her personal knowledge, she had issued the warrant for failure to appear. Black objected to the State’s proffer of Judge Jacob’s testimony on the ground that the hearing on the motion to suppress was over and the issue could only be consensually re-litigated. Additionally, Black argued that Article 36.02 of the Code of Criminal Procedure prohibits the introduction of testimony after the argument of a “cause” is concluded. When the trial court ruled upon the motion to suppress, according to Black, that “cause” was concluded and the trial court lost the authority to re-open evidence on the suppression issue.
Can the State re-open, or is the evidence on the motion to suppress closed?
Re-open _______
Closed _______
Answers
1
Yes. According to the Texas Court of Criminal Appeals, pre-arrest, pre-Miranda silence is admissible.1 Writing for the majority, Judge Womack explained that obviously the Fifth Amendment prohibits the State from commenting on a defendant’s refusal to testify at trial. However, a defendant’s silence before trial is considerably less protected. The State does not violate a defendant’s Fifth Amendment rights by cross-examining him about post-arrest, pre-Miranda silence when a defendant chooses to testify.
Moreover, pre-arrest, pre-Miranda silence can be used to impeach a defendant who testifies. Judge Womack noted that the United States Supreme Court had not decided whether pre-arrest, pre-Miranda silence would be admissible as substantive evidence of guilt against a non-testifying defendant. Judge Womack also noted that federal courts were split on the issue. But, reasoning that the Fifth Amendment by definition protects against compelled self-incrimination, Judge Womack explained that a suspect’s interaction with the police is not compelled in pre-arrest, pre-Miranda circumstances. Thus, the trial court properly admitted Salinas’s pre-arrest, pre-Miranda silence as substantive evidence of guilt and the prosecution can comment upon it whether the defendant testifies or not.
2
Yes. In the United States v. Jones, the trial court suppressed the GPS evidence showing Jones’s car parked in the garage but admitted the evidence showing the car’s path on the roadway. All of the judges on the United States Supreme Court agreed that the evidence constituted a search, but they differed sharply on the analysis required to get there.2 Writing for a five-judge majority, Justice Scalia explained that placing a GPS device under the car was a search because it amounted to a trespass.
Justice Alito, joined by Justices Ginsberg, Kagan, and Breyer, also believed the placement of the GPS device under the car was a search. However, they analyzed the case under a traditional expectation-of-privacy analysis, that is, whether long-term monitoring of the vehicle was a search. Justice Alito would have held that the continued monitoring of Jones’s car, even though it was on a public roadway, interfered with Jones’s reasonable expectation of privacy, though short-term monitoring would not have.
Justice Sotomayor wrote a separate concurring opinion that agreed with aspects in both Justice Scalia’s majority and Justice Alito’s concurrence. Justice Sotomayor agreed with Justice Alito that long-term monitoring of Jones’s car would have violated Jones’s reasonable expectation of privacy. She noted that Justice Scalia’s property-rights analysis, as Justice Alito’s analysis established, was quickly becoming obsolete as physical intrusion, or trespass, is no longer necessary for many forms of surveillance. However, she did join Scalia’s majority in adopting the property-rights analysis as additional to and not as a substitute for a privacy analysis. The good news for Texas prosecutors is that the CCA is already largely in agreement that standing to contest a search in Texas under the state exclusionary rule can be established by a showing of an infringement of either privacy or property rights.3
3
Yes. Failure to inform Jose Peña about the audio portion of the videotape of his transport to the jail constituted a Brady violation.4 Writing for a unanimous court, Judge Hervey explained that the prosecution’s suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. The purpose of this rule is to avoid an unfair trial.
Here, it was undisputed that the prosecution failed to turn over a copy of the audio when it was requested, and the State represented that there was no audio on the tape, so Peña was unaware of it. Moreover, the court distinguished its prior holding in Havard v. State, that the failure to turn over a copy of the defendant’s own statements did not violate Brady. While Havard focused on the failure to disclose the existence of a specific exculpatory statementmade by the defendant that he would have necessarily been aware of as a matter of logic, here the evidence in question was the audio portion of the videotape. It included the entire exchange between Peña and the officer as well as other sounds of his arrest and transport. Further, the audio portion of the video was the only piece of evidence that substantiated Peña’s defense, and the State had taken the position at trial contrary to Peña’s defense. The evidence was both favorable and material as either exculpatory and impeachment evidence that negated Peña’s culpable mental state and discounted the officer’s testimony.
4
Each incident within each count. A unanimous Court of Criminal Appeals held that the jury instruction in Cosio allowed for the possibility of a non-unanimous verdict because the jury was not required to agree on which incident satisfied which count.5 Writing for a unanimous court, Judge Keasler explained that non-unanimity can occur in three situations. First, there can be a unanimity issue when the State presents repetition of the same criminal conduct but the results of the conduct differ. There, a proper instruction would require the jury to be unanimous about each specific result. Second, a jury unanimity issue can occur where the State presents evidence that the defendant committed the same offense multiple times but on separate occasions. A proper instruction there would require the jury to be unanimous about each occasion. And third, there can be a jury unanimity problem when the State charges one offense and presents evidence of that offense and another offense that’s a crime under a different section. A proper instruction in that circumstance would require the jury to be unanimous about which statutory provision the defendant had violated.
Here, the instructions fell in the second category as each count contained multiple, different instances of the same statutory violation. The jury charge was erroneous in this case because the jury was not instructed that it had to agree on which incident gave rise to a particular count (i.e., the bedroom incident, the shower incident, or the Burger King incident). Fortunately, Cosio did not object to the jury charge based upon jury unanimity so the convictions were upheld because the erroneous jury instructions did not cause egregious harm.
5
No. The Court of Criminal Appeals held that Lilly had demonstrated his trial was unjustifiably closed to the public in violation of his Sixth Amendment right to a public trial.6 Writing for the majority, Judge Hervey explained that the focus of a hearing on a claim of a right to a public trial is not on whether the defendant can show someone was actually excluded. The focus is on whether the trial court fulfilled its obligation to take every reasonable measure to accommodate public attendance at criminal trials. The admittance policies in this case were highly restrictive and the cumulative effect of the prison unit’s policies undermined confidence that every reasonable measure was taken to accommodate public attendance at the defendant’s trial. Moreover, because the trial court was the party who closed the trial, it was incumbent upon him to justify that closure. Here, the trial court failed to make specific findings in support of the closure of the trial. The trial court did not identify an overriding interest that justified the closure and how that interest would be prejudiced, why the closure was no broader than necessary, and why no reasonable alternatives to closing the proceedings existed.
6
No. The Court of Criminal Appeals held that the Brazos County Attorney and the Travis County Attorney are the same party for purposes of issue preclusion.7 Writing for the majority, Judge Womack explained that courts should look to whether, in earlier litigation, the representative of the government had authority to represent its interest in a final adjudication on the merits to determine if two separate governmental entities are the same party for purposes of res judicata. Here, both the Brazos County Attorney and the Travis County Attorney had the authority to represent their interests in a final adjudication even though neither had any authority or control over each other’s dockets or cases.
Moreover, aside from the burden of proof required to prove a probation revocation, there are few procedural differences between a criminal trial and a probation revocation hearing so a revocation hearing is not “administrative in nature.” That distinguishes this situation from the cases holding that an adverse ruling in an administrative license revocation hearing does not bar subsequent prosecution on a criminal law violation. However, the court reached its decision based upon common-law res judicata rather than collateral estoppel flowing from the double jeopardy clause. (See the article elsewhere in this issue of this journal for a more in-depth look at Ex parte Doan.)
7
Yes. A unanimous Court of Criminal Appeals upheld the trial court’s determination that the evidence was authentic and admissible.8 Writing for the court, Judge Price first noted that under Rule 104 of the Rules of Evidence, the trial court need not be persuaded that the proffered evidence is authentic, just that the proponent of the evidence has supplied facts sufficient to support a reasonable jury determination that the evidence he has proffered is what it purports to be. Judge Price also noted that courts and legal commentators have reached a virtual consensus that, although rapidly developing electronic communications technology often presents new and protean issues with respect to the admissibility of electronically generated, transmitted, and/or stored information. Print-outs of emails, Internet chat room dialogue, and text messages have all been admitted into evidence when found to be sufficiently linked to the purported actor so as to justify submission to the jury for its ultimate determination of authenticity.
In this case, sufficient circumstantial evidence established authentication, notably, that Tienda had a number of unique tattoos that could identify him in the photos posted on the MySpace profiles, and the email names lined up with Tienda’s name, nickname, and home city. The timeliness of the reference to the victim’s death and funeral provided circumstantial evidence as well as pictures of Tienda lounging in a chair displaying his ankle monitor. Judge Price acknowledged that Tienda could have been the victim of an elaborate and ongoing conspiracy, but that was an alternate scenario whose likelihood and weight the jury was entitled to assess once the State had produced a prima facie showing that the pages belonged to Tienda.
8Yes. According to the Court of Criminal Appeals, the allowable unit of prosecution for indecency with a child by e
xposure is the exposure itself rather than each new victim.9 Judge Hervey, writing for the majority, explained that the gravamen of the offense for indecency is the exposure because, in the statute, the verb “exposes” was followed by the direct object “the person’s anus or any part of the person’s genitals.” This suggests the focus of the offense is upon each exposure rather than upon each child viewing the offense. Consequently, Harris committed only one offense under §21.11(a)(2)(A) of the Penal Code, and the multiple convictions amounted to a double jeopardy violation.
9
Yes. The Court of Criminal Appeals held that the prosecutor’s unknowing use of false testimony violates the due process clause of the Fourteenth Amendment.10
OK, admittedly, there were a lot of other writ/appellate issues going on in this case than just this basic proposition. The real issue was whether a claim of unknowing use of false testimony was a new legal claim that overcame the bar against subsequent writs, and there was an additional appellate skirmish over the proper standard for materiality on such a claim. Should the same materiality standard apply for the knowing use of perjured or false testimony (“a reasonable likelihood that the false testimony affected the sentence”)? Or should it require something greater than a determination by a preponderance of the evidence that the outcome would have been different, the standard for unknowing use of perjured testimony? Ultimately, the court applied the former standard and determined that Chavez failed to show a reasonable likelihood that the false testimony affected his sentence because he had been convicted of aggravated robbery rather than capital murder.
That said, it is worth noting that the court still held that a witness’s intent in providing false or inaccurate testimony and the State’s intent in introducing the testimony are not relevant to a false-testimony due-process error analysis. The concern with such a claim is not the prevention of perjury but rather the accuracy of the result and that the defendant was convicted and sentenced upon truthful testimony. Here, the habeas court found that the testimony in question was not perjured, but the court rejected this finding as irrelevant. Taking the record as a whole, the testimony gave the jury a false impression because it was undisputed that the identification of Chavez as the shooter was false after the actual shooter confessed and pleaded guilty. So even though the witnesses firmly believed they were telling the truth (and so did the prosecutor) the fact that the witnesses were subsequently found to be merely wrong or mistaken meant the use of their testimony violated Chavez’s due process rights.
10
Re-open. The Court of Criminal Appeals held that the trial court had the discretion to allow the State to re-open evidence on a motion to suppress even over Black’s objection.11 Writing for the majority, Judge Price explained that the review of a ruling on a motion to suppress is generally limited to the evidence adduced at the hearing on that motion unless the parties consensually re-litigate the issue during trial.
A trial court “may” but is not required to resolve a motion to suppress evidence in a pre-trial hearing under art. 28.01 of the Code of Criminal Procedure. But that ruling is interlocutory in nature and subject to reconsideration and revision as any other ruling on the admissibility of evidence under Rule 104 of the Texas Rules of Evidence. Additionally, the court rejected Black’s argument that art. 36.02 of the CCP circumscribes a trial court’s authority to re-open a hearing. By its own terms, Article 36.02 empowers a trial court to “allow testimony at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” According to Judge Price, “cause” means “trial.”
Endnotes
1 Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. Apr. 15, 2012)(7:1).
2 United States v. Jones, 132 S.Ct. 945 (Jan. 23, 2012)(5:1:4).
3 See e.g. Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010)(Hervey J., concurring).
4 Peña v. State, 353 S.W.3d 797 (Tex. Crim. App. Sept. 28, 2011)(9:0).
5 Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App Sept. 14, 2011)(9:0).
6 Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. April 18, 2012)(7:1:1).
7 Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. June 20, 2012)(6:3:3).
8 Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. Feb. 8, 2012)(9:0).
9 Harris v. State, 359 S.W.3d 625 (Tex. Crim. App. Nov. 9, 2011)(8:1).
10 Ex parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. May 23, 2012)(6:2:3).
11 Black v. State, 362 S.W.3d 626 (Tex. Crim. App. Feb. 15, 2012)(8:1).