the possibility of a dismissal with prejudice based on prosecutorial misconduct that does not meet the "housekeeping issue" renders the issue futile

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-0521-05

EX PARTE JAMES S. MASONHEIMER, Appellee


ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

AND THE STATE'S CROSS-PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

TAYLOR COUNTY

Keller, P.J., filed a dissenting opinion.



Oregon v. Kennedy

In Oregon v. Kennedy, the Supreme Court articulated the standard under the federal constitution for determining when a mistrial that is granted at the request of the defendant gives rise to a double jeopardy violation: "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." (1) The Court stated this exclusive standard not once, but twice, the second time saying, "the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for mistrial was intended to provoke the defendant into moving for a mistrial." (2) Intent to provoke a mistrial is an essential requirement in this context. Under the federal constitution, no other circumstances will give rise to a jeopardy bar. As the Court correctly notes, we recently adopted this federal standard as a matter of state constitutional law. (3)

The Court nevertheless holds that double jeopardy can bar retrial when the prosecutor does not intend to provoke a mistrial. The Court finds in the present case that the prosecutor withheld information "with the intent to avoid the possibility of an acquittal" and construes Kennedy to erect a double jeopardy bar to retrial. I believe that Kennedy does not support this conclusion.

The Court reads ambiguity into the above statements in Kennedy, based upon the Supreme Court's citations to United States v. Dinitz (4) and United States v. Tateo. (5) But in Kennedy, the Supreme Court recognized that language taken from its earlier opinions - including Dinitz and Tateo - might "well suggest a broader rule" than the one the Court ultimately adopted. (6) The Court acknowledged in Kennedy the confusion created by its prior cases, and the justifiability of that confusion, and articulated the "intent to provoke a mistrial" standard to resolve this confusion and clarify the law. (7)

Cases interpreting Kennedy


The "intent to avoid an acquittal" standard that the Court adopts is the one articulated by the Second Circuit in United States v. Wallach. (8) But the Wallach court conceded that its standard reached further than the Kennedy standard. (9) And other courts, both approving and critical (as well as the law review article upon which this Court relies) have also acknowledged that the Wallach standard is not part of the rule articulated in Kennedy, but instead goes beyond it. (10)

The Court also relies on several cases from Maryland, most prominently Tabbs v. State (11) and West v. State. (12) But in Tabbs, the court said, "What emerges clearly is that the retrial bar is not intended as a sanction against judicial or prosecutorial error committed for any other purpose than to abort the first trial." (13) And according to West, "it is only the deliberate derailing [of the trial] that will engage the gears of the double jeopardy machinery" (14):

Ordinarily, when the prosecutor injects error into the trial, grievous as that may be, the sanction is mistrial or reversal. It is only where the prosecutor deliberately subverts the right of the defendant to stay with the original tribunal that the double jeopardy bar becomes the appropriate relief. In distinguishing not between grave error and lesser error and not between intended error and unintended error, but rather between deliberate error designed to accomplish Purpose A and deliberate error designed to accomplish Purpose B, the Supreme Court was emphatic. (15)


The West court expressly distinguished between an intent to obtain a conviction through improper means and an intent to derail the trial:

Even at the extreme end of the reprehensibility spectrum, however, where the prosecutor has committed the deliberate foul, there is still this pivotal distinction between (1) seeking to win the game unfairly and (2), knowing the game is going awry, deliberately causing it to be cancelled and rescheduled. If the prosecutor wins the game unfairly, we make him replay it. When the prosecutor deliberately causes the game to be cancelled unfairly, we do not permit him to reschedule it. This distinction is what the Supreme Court sought to communicate, as it concluded its discussion in Oregon v. Kennedy. (16)


Application of Wallach standard

The Wallach standard was originally conceived as a method of extending double jeopardy protection against prosecutorial misconduct to post-verdict situations, e.g. to motions for new trial and appeals. (17) But even if the Wallach standard did apply in the mistrial context, such a standard should not result in appellant obtaining relief in this case. The suppressed evidence was consistent with appellee's defensive theories, and so, at the first trial, a continuance to obtain and evaluate the evidence should have been sufficient to cure any prejudice flowing from suppression. Indeed, the trial court initially granted a continuance. A defense-requested mistrial was later granted, not because of the suppression of evidence, but "in the interest of justice" because of a death in the family of one of the prosecutors. But even if we assumed that the failure to disclose exculpatory evidence "caused" the mistrial in some sense, the failure to disclose was clearly not the reason for the mistrial. And if appellee really was interested in proceeding to a verdict with the first jury, he could have requested another continuance rather than asking to terminate the trial. So the first mistrial did not implicate appellee's valued right to continue the trial with the first tribunal.

That leaves the second mistrial. (18) The defendant expressed an intent to plead "no contest," which has the same legal effect in Texas (with respect to criminal proceedings) as a guilty plea. (19) A defendant who pleads guilty is not entitled to the same kinds of due process protections with regard to the disclosure of evidence as someone who insists on a contested trial. (20) By pleading "no contest," a defendant waives his right to a contested trial, although the trial court might permit evidence contesting guilt in its discretion.

But even if we treat this second proceeding as a full-blown, contested trial, another problem appears. The trial in that event would be a bench trial. Kennedy spoke specifically about the right to proceed with the first jury empaneled. Although it seems reasonable to suppose that Kennedy's rationale could extend to a bench trial, this poses an additional complicating factor to a decision that is already depending on an expansion of the Kennedy standard. Some considerations may be different for a bench trial. Here, if the defendant truly wished to pursue a verdict with the trial judge, presumably, he could simply have obtained a continuance. (21) The only reason to obtain a mistrial (and the reason suggested in the trial record here) would be because the defendant would not have chosen a bench trial if he had known about the exculpatory evidence, but would have taken his chances with a jury. If that was case, then the defendant was not deprived of the right to have his case decided by the first tribunal (the trial judge) because, in light of the exculpatory evidence, he really did not want the trial judge to be his tribunal. By obtaining a mistrial, appellee received the opportunity to have his case tried by the tribunal he would have chosen absent the misconduct - a jury.

Saying all of this does not preclude the possibility of a dismissal with prejudice based on prosecutorial misconduct that does not meet the Kennedy standard. There is still due process. (22) To obtain a dismissal with prejudice under a due process claim, however, the defendant must raise the claim after trial and he must show he suffered actual and irremediable prejudice. (23)

I respectfully dissent.

Filed: March 21, 2007

Publish

1. 456 U.S. 667, 676 (1982) (emphasis added).

2. Id. at 679 (emphasis added).

3. Ex parte Lewis, 2007 Tex. Crim. App. LEXIS 33 (Jan. 10, 2007).

4. 424 U.S. 600 (1976).

5. 377 U.S. 463, 468 n. 3 (1964).

6. Kennedy, 456 U.S. at 677-678, 678 n. 8.

7. Id. at 679.

8. 979 F.2d 912 (2d Cir. 1992).

9. Id. at 916.

10. Approving: See e.g. People v. Batts, 30 Cal. 4th 660, 695, 68 P.2d 357, 380 (2003)(emphasis added), cert. denied, 540 U.S. 1185 (2004)("illuminates a double jeopardy interest beyond the narrow one recognized in Kennedy"). State v. Marti, 147 N.H. 168, 171, 784 A.2d 1193, 1196 (2001). Critical: See e.g United States v. Doyle, 121 F.3d 1078, 1084, 1085 (7th Cir. 1997); United States v. Lewis, 368 F.3d 1102, 1108 (9th Cir. 2004), cert. denied, 543 U.S. 1053 (2005). Hawkins v. Alabama, 318 F.3d 1302, 1309 n. 5 (11th Cir. 2003)("This widening" of the standard "is not described" as " truly compelled by the Kennedy rule. . . . The inclination to widen Kennedy represents an independent judgment by these circuits on what the law ought to be in the circumstances contemplated by those circuit courts in those cases). See Adam M. Harris, 28 Cardozo L. Rev. 931, 942 (2006)(goes "much further doctrinally than Kennedy would seem to permit").

11. 43 Md. App. 20, 403 A.2d 796 (1979).

12. 52 Md. App. 624, 451 A.2d 1228 (1982).

13. Id. at 30, 403 A.2d at 802-803 (emphasis added).

14. Id. at 625, 451 A.2d at 1230.

15. Id. at 632-633, 451 A.2d at 1234 (emphasis added).

16. Id. at 637, 451 A.2d at 1236 (emphasis added).

17. Wallach, 979 F.2d at 915-916.

18. Both the "Marshall" and "Williams" statements were disclosed before the second "trial" began, so only the "Upchurch" statement could provide a basis for a double jeopardy violation occurring at the second "trial."

19. Young v. State, 8 S.W.3d 656, 664 (Tex. Crim. App. 2000).

20. United States v. Ruiz, 536 U.S. 622, 630 (2002)("this Court has found that the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor").

21. And the defendant was hardly in a position to claim that he had prejudiced his cause before the judge by initially offering to plead no contest. If the plea proceeding really was not an "ordinary" no contest plea, but a contested trial in disguise, the trial court was presumably aware of the situation. If it was an ordinary plea proceeding, then the defendant had no right to the disclosure of exculpatory evidence at that proceeding, and thus, no grounds for a mistrial.

22. See United States v. Marion, 404 U.S.307 (1971)(due process implicated by prejudicial pre-indictment delay); United States v. Zuno-Arce, 25 F. Supp. 2d 1087, 1115 n. 36 (C.D. Cal. 1998), aff'd, 209 F.3d 1095 (9th Cir. 2000)(specifically citing due process as a possible alternative to double jeopardy with regard to prosecutorial misconduct); Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U. L. Q. 713, 820-823 (1999).

23. Marion, 404 U.S. at 326; Henning, supra.

The judgment of the trial court is reversed and the case remanded for a new trial.

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NUMBER 13-03-698-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ORLANDO SANCHEZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 332nd District Court of Hidalgo County, Texas. O P I N I O N Before Chief Justice Valdez and Justices Yañez and Baird (1) Opinion by Justice Baird Appellant was charged by indictment with the offense of murder. A jury convicted appellant of that offense and the trial judge assessed punishment at sixty-eight years confinement in the Texas Department of Criminal Justice-Institutional Division. Appellant raises four points of error. We sustain the fourth point and reverse the judgment of the trial court. I. Sufficiency Challenges. The first and second points of error challenge the legal and factual sufficiency of the evidence to support the jury's verdict. A. Standards of Appellate Review. Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16 (1979). The appellate standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. at 320. The evidence is examined in the light most favorable to the fact-finder. Id. A successful legal sufficiency challenge will result in the rendition of an acquittal by the reviewing court. Tibbs v. Florida, 457 U.S. 31, 41-42 (1982). In a factual sufficiency review, the appellate court views all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 Tex. Crim. App. LEXIS 2040, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). To reverse a case on a factual sufficiency challenge, the court must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at *8. In other words, an appellate court cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because its judges would have voted to acquit. Id. In examining a factual sufficiency challenge, the court must defer to the fact-finder's credibility determinations. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). B. Factual Summary. Appellant and the decedent had been engaged, but their engagement ended without the couple getting married. The two began seeing each other again. The decedent was telephoned by appellant, who said he needed a ride because his vehicle was not working. The decedent left her home to assist appellant. A resident in a Weslaco motel heard a woman screaming in a nearby room. That resident contacted peace officers and informed them of the screams. Those officers entered a motel room and saw both appellant and the decedent laying on the floor. A stun gun was on the floor near appellant. The windows to the room were painted shut, there was only one door entering the room, and that door had been barricaded by a heavy piece of furniture. The decedent was pronounced dead at the scene. Appellant was transported to a nearby hospital and arrested for the murder of the decedent a short time later. The indictment alleged the offense of murder in four separate paragraphs that appellant: (1) intentionally or knowingly choked the decedent by hand; (2) intentionally or knowingly caused the death by manner and means unknown to the grand jury; (3) intending to cause serious bodily injury, committed an act clearly dangerous to human life, to wit: placed a stun gun to the decedent; and, (4) intending to cause serious bodily injury, committed an act clearly dangerous to human life, to wit: by manner and means unknown to the grand jury. These paragraphs allege two of the three ways of committing murder in Texas. Under the penal code, "a person commits an offense if he (1) intentionally or knowingly causes the death of an individual, or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Pen. Code Ann. § 19.02(b)(1) & (2) (Vernon 2003). Dr. Fulgencio Salinas, the laboratory director at Edinburg Regional Medical Center, performed the autopsy of the decedent and testified in court. He described bruising, scratches and lacerations to the decedent's body. Some of those injuries were consistent with a stun gun being triggered after contact with the decedent's skin. Dr. Salinas opined that the cause of death was asphyxia, meaning a lack of oxygen to the brain. Dr. Salinas concluded that the asphyxia was caused either by choking or being stunned by the stun gun. Specifically, he stated that bruising to the decedent's neck could have been caused by either a male hand squeezing the neck or use of the stun gun. (2) C. Argument and Analysis. Appellant contends the evidence is legally and factually insufficient to prove (1) the specific intent to cause death; (2) the cause of death was by choking with appellant's hands; (3) the intent to cause serious bodily injury; and, (4) the stun gun was the cause of death. These arguments are directed toward the first and third paragraphs of the indictment, both of which were submitted to the jury. When alternate theories of committing the same offense are submitted to the jury and the jury returns a general verdict, the conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted. Griffin v. United States, 502 U.S. 46, 56-58 (1991) ("a general verdict [is] valid so long as it is legally supportable on one of the submitted grounds-even though that gives no assurance that a valid ground, rather than an invalid one, is actually the basis for the jury's action"); Turner v. United States, 396 U.S. 398, 420 (1970) ("[When] a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged"); Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Adams v. State, 180 S.W.3d 386, 417 (Tex. App.-Corpus Christi 2005, no pet.). Therefore, if we find the evidence legally and factually sufficient to support a conviction for the offense alleged in the first paragraph of the indictment, our inquiry is complete. In homicide prosecutions, the defendant's state of mind is a question of fact that must be determined by the jury. Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998). The intent to kill cannot be presumed as a matter of law, but may be inferred from any facts in evidence which prove the intent to kill, such as the use of a deadly weapon. Hall v. State, 418 S.W.2d 810, 812 (Tex. Crim. App. 1967). The question is whether a rational trier of fact could have found the intent to kill from the following facts: (1) appellant lured the decedent from her house under the guise that he needed transportation; (2) the two then traveled to a motel and entered a room registered in appellant's name; (3) once there, a heavy piece of furniture was placed in front of the door to block the room's only entrance; (4) a stun gun box was found in appellant's truck and the gun from that box was found in the motel room and used on the decedent; (5) a resident at the motel heard a female scream, "You're going to kill me;" and, (6) the decedent sustained many instances of trauma to her body. When these facts are examined in the light most favorable to the jury's verdict, we find the evidence legally sufficient to prove the intent to kill. We next consider whether the evidence was sufficient to prove the cause of death was by choking with appellant's hands. When Dr. Salinas's testimony that the decedent's death from asphyxia resulted from strangulation, which could have been caused by a male hand squeezing the decedent's neck, is viewed in the light most favorable to the jury's verdict, we find the evidence legally sufficient to support a rational finding that the decedent died from being choked by appellant's hands. Further, when all of the evidence is viewed in a neutral light, we find that the jury was rationally justified in finding both the intent and causation elements beyond a reasonable doubt. Watson, 2006 Tex. Crim. App. LEXIS 2040, *7. In other words, we find no evidence in the record from which we can derive an objective basis that contradicts the jury's verdict. Id. at *8. Accordingly, we hold the evidence is both legally and factually sufficient to prove appellant had the specific intent to cause the decedent's death and that she met her death by choking at the hands of appellant. Having found the evidence sufficient to support the allegations in the first paragraph of the indictment, we need not address appellant's arguments challenging the sufficiency of the evidence to support the allegations in the third paragraph. The first and second points of error are overruled. II. The Jury Charge. The fourth point of error contends the trial judge erred in submitting to the jury the allegations in the second and fourth paragraphs of the indictment. Those paragraphs alleged the manner and means of causing the decedent's death was unknown to the grand jury. At the conclusion of the State's case-in-chief, appellant moved for an instructed verdict of acquittal on these paragraphs, contending there was no evidence to support the allegation that the cause of death was unknown to the grand jury. The trial judge denied those motions. Appellant then objected to the charge authorizing the jury to convict on those allegations. The trial judge overruled the objections, submitted those allegations, and the jury returned a general verdict of guilty. A. Authorizing an Improper Conviction. There are two broad scenarios in which a trial judge commits charge error when authorizing a conviction based upon multiple theories of committing the same offense. Griffin v. United States, 502 U.S. 46, 59-60. The first scenario arises when the trial judge authorizes the jury to convict under a theory that is not legally permissible. For example, in Stromberg v. California, 283 U.S. 359 (1931), the defendant was charged in a single count indictment of violating a California statute prohibiting the display of a red flag in a public place for any one of three reasons: (1) as a symbol of opposition to organized government; (2) as an invitation to anarchistic action; or, (3) as an aid to seditious propaganda. Id. at 361. The general verdict permitted the jury to convict if it found the defendant guilty of displaying the flag for any of the three reasons. Id. at 363-64. The California appellate court upheld the conviction on the ground that even though the first purpose was unconstitutional, the remaining reasons were constitutional. The Stromberg Court disagreed, holding that where the jury was authorized to convict on several theories, but one of those theories was unconstitutional, the jury's verdict must be set aside. Id. at 368. This scenario also encompasses cases where the trial judge authorizes the jury to convict on a theory not alleged in the indictment. Stated differently, a trial judge should not permit a jury to convict on a theory not specifically alleged in the charging instrument and, as a corollary, the court should confine the jury to the allegations contained in the indictment. Castillo v. State, 7 S.W.3d 253, 258 (Tex. App.-Austin 1999, pet. ref'd) (citing Emerson v. State, 54 Tex. Crim. 628, 114 S.W. 834, 835 (1908); and quoting Moore v. State, 84 Tex. Crim. 256, 206 S.W. 683, 684 (Tex. Crim. App.1918) ("It is fundamentally wrong to authorize a conviction on any state of facts other than those which support the finding of the truth of the indictment.")). For example, in Rodriguez v. State, 18 S.W.3d 228 (Tex. Crim. App. 2000), the defendant was charged with driving while intoxicated, "by the reason of the introduction of alcohol into his body." (3) See id. at 229. Testimony at trial showed the defendant was taking cold medication at the time of the alleged offense. Id. The trial judge permitted the jury to convict upon finding the defendant was intoxicated by "alcohol, a drug, or a combination of both of those substances, into the body." Id. The Texas Court of Criminal Appeals reversed, holding the trial judge erred in authorizing the jury to base a conviction on a theory of intoxication not alleged in the charging instrument. Id. at 232. The second scenario arises when the trial judge authorizes the jury to convict on a theory of conviction that is legally permissible, but there is insufficient evidence to support a conviction under that theory. When the evidence is insufficient to support a conviction, the trial judge should eliminate that theory of conviction from the jury's consideration and not include it in the charge. Griffin, 502 U.S. at 60; Payne v. State, 194 S.W.3d 689, 698 ((Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). For example, in Guevara v. State, 191 S.W.3d 203 (Tex. App.-San Antonio 2005, pet. ref'd), the defendant was charged with murdering his wife. See id. at 207-08. The trial judge authorized the jury to convict the defendant under either section 7.02(a)(2) of the penal code, aiding another's commission of the offense, or section 7.02(a)(3), not discharging his legal duty to make a reasonable effort to prevent commission of the offense. Id. However, there was no evidence to support the legal duty theory. Id. Therefore, the trial judge erred in authorizing a conviction under that theory. Id. In the instant case, the first scenario is not implicated because alleging the manner and means of causing the death is a legal way of charging the offense of murder. Matson v. State, 819 S.W.2d 839, 848 (Tex. Crim. App. 1991). However, the second scenario is implicated because appellant contends the evidence was insufficient to warrant an instruction authorizing the jury to convict him under that theory. Therefore, we will now determine whether the trial evidence was sufficient to warrant a charge on the theories alleged in the second and fourth paragraphs of the indictment. B. Alleging Manner and Means Unknown. Alleging that some aspect of the case is "unknown" is neither new or unique. For example, many theft indictments allege the defendant received stolen property from an "unknown" person. See, e.g., Payne v. State, 487 S.W.2d 71, 72 (Tex. Crim. App. 1972). In murder cases, the cause of death is usually not in question. However, in cases where the cause of death cannot be conclusively established, it is not uncommon for the indictment to allege a primary cause of death and, in the alternative, to allege that the death was caused by manner and means unknown to the grand jury. When the indictment alleges the cause of death in this manner, the State bears the burden of proving the "unknown" allegation. The State carries that burden in either of two ways: (1) if the trial testimony does not establish the cause of death, a prima facie showing is made that the cause of death was unknown to the grand jury; and (2) when the trial testimony does establish the cause of death, the State must prove that the grand jury used due diligence in attempting to ascertain the cause of death. Hicks v. State, 860 S.W.2d 419, 424 (Tex. Crim. App. 1993). The burden in the second scenario is usually discharged by calling a member of the grand jury to describe what actions the grand jury undertook to determine the cause of death. In the instant case, Dr. Salinas testified that the decedent's death was caused either by choking by hand or use of the stun gun. He did not provide any alternate theory or testify that the cause of death was unknown. Therefore, the trial testimony established the cause of death. (4) Consequently, the State was required to prove that the grand jury used due diligence in attempting to ascertain the cause of death. However, the State offered no evidence whatsoever on this subject. Therefore, there was insufficient evidence to support the theories of prosecution alleged in the second and fourth paragraphs of the indictment. See id. Consequently, the trial judge erred in authorizing the jury to convict appellant under those theories of prosecution. D. What Type of Harm Analysis is Applicable? Having found error, we must now determine whether the error was harmful. The State contends the error, if any, is harmless when evaluated under the standard announced in Malik, infra, and its progeny dealing with an "unknown" allegation. In Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), the Texas Court of Criminal Appeals significantly altered the standard of appellate review for sufficiency challenges; Malik held that the sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Id. at 240. Two years later, in Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999), the court held that in light of Malik, "the rule in cases like Hicks is no longer viable." And two years after Rosales, the court held a hypothetically correct jury charge need not incorporate allegations that give rise to immaterial variances. Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001). A non-essential element allegation, such as an allegation that the object used to cause injury was unknown to the grand jury, may properly be excluded from a hypothetically correct charge. Id. at 252-53. In other words, what was considered a material variance in Hicks is now an immaterial variance after Rosales and Gollihar and, therefore, need not be included in a hypothetically correct jury charge. Gollihar, 46 S.W.3d at 256. This line of reasoning was followed by this court in Rose v. State, 76 S.W.3d 573, 574 (Tex. App.-Corpus Christi 2002, no pet.), and more recently in In re A.J.G., 131 S.W.3d 687, 694 (Tex. App.-Corpus Christi 2004, pet. denied). Indeed, the State cites A.J.G. in support of its argument that the instant error was harmless. (5) Certainly, we acknowledge that the rule in Hicks has been altered by Malik and its progeny. Nevertheless, we believe the State's reliance on those cases is misplaced because those cases dealt with, and were limited to, the standard of appellate review to be employed when resolving challenges to the sufficiency of the evidence to support the conviction. (6) The Malik Court made it clear that its "new rule" was limited to sufficiency challenges and acquittals resulting from such a successful challenge: "[T]he standard we formulate today ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than mere error in the jury charge submitted." Malik, 953 S.W.2d at 240. However, in the instant point of error, appellant does not challenge the sufficiency of the evidence to support his conviction on the second and fourth paragraphs of the indictment; rather, that challenge was made in the first and second points of error. Instead, this point raises the issue of jury charge error, which requires a new trial rather than an acquittal. This case is, therefore, indistinguishable from Guevara, where the trial court erroneously authorized the jury to convict under penal code section 7.02(a)(3) even though there was no evidence to support that theory of prosecution. See Guevara, 191 S.W.3d at 207-08. The Texas Court of Criminal Appeals held that article 36.19 of the code of criminal procedure dictated the appropriate harm analysis. Guevara v. State, 152 S.W.3d 45, 54 (Tex. Crim. App. 2004). The Court of Criminal Appeals did not rely upon or even cite Malik in its opinion because Malik has no place in a charge error harm analysis. Having determined that the appropriate standard for gauging harm is article 36.19, the next issue is what degree of harm is required for reversal. That issue is determined by whether the error was preserved for appellate review. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996). Preserved error warrants reversal if appellant suffered "any harm, regardless of degree." Id. (citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986)). In the instant case, the error was preserved by appellant's timely objection. In assessing whether "any harm" had been suffered, the reviewing court may consider 1) the charge, 2) the state of the evidence, including contested issues, 3) the argument of counsel, and 4) any other relevant information revealed by the record. Hutch, 922 S.W.2d at 171. We will consider those factors seriatim. First, the charge authorized the jury to return a general verdict of guilt under the four theories of murder alleged in the indictment; however, two of those theories were not supported by the evidence. The Hutch Court found it important that the error, as in this case, occurred in the application paragraph, that portion of the charge which authorizes the jury to act, rather than in some abstract portion of the charge. Id. at 172. The second factor asks if the jury charge error related to a contested issue. Id. at 173. The facts recounted in part I, supra, establish the state of the evidence-the decedent was killed in a motel room occupied only by herself and appellant. From these facts, it is fair to say that cause of death was the only contested issue during trial. (7) From the outset, both lawyers recognized that the cause of death was the critical issue and discussed it during their opening statements. The prosecutor stated: When you hear that your decision has to be unanimous, what we're talking about is that he murdered her. That has to be unanimous. How he did it does not have to be unanimous. That's why it's plead in so many different ways. And if you're just not sure how it happened there is a paragraph for that too. Because the Grand Jurors said it's possible that we don't know what happened, but we do know that he murdered her. We will get into that more in detail when we do the Charge of the Court and this jury can see the charge. You will hear the different language of what you need to select but either way, whether he murdered her with a stun gun, with his bare hands face to face or cold-bloodied killing or someone (sic) that we don't know how he murdered her, the whole point is that he murdered her. Defense counsel stated: "The evidence will show that the doctor himself doesn't know what caused the victim's death, but he is speculating by saying she was strangled . . . . In other words, our position is going to be that the doctor may not know but he is guessing, well, maybe it happened this way, okay." The third factor involves review of the closing arguments. These arguments mirror the opening statements. In his closing argument, the prosecutor stated: The second page [the page containing the error] is going to be, I guess, one of the more important pages. Detailing the four individual paragraphs that we set out in discussing with you in the indictment. ... That he choked her with his hand. Now, it's become an issue in this case as to how this woman died. I believe defense counsel has made this a very big issue as to how she died and how the doctor reached his conclusion as to what the cause of death was. Now, you heard Doctor Salinas ... talking about the cause of death. That it was asphyxia, in his opinion, by strangulation or which he says is another way of saying choking. * * * * * And then the whole X factor in this case was the stun gun. And that's the whole point of pleading in the alternative. That's the way you say it when there is one, two, three, four different versions of how this murder occurred. What you need to understand is that the doctor said it was 95 percent certainty that she died from choking but that there was a slight possibility that she may have died from the stun gun . . . . And the whole point of this is there is the word here, that you will see on page two, "or" by choking , or by being killed by the stun gun or by some unknown manner that we just don't know. ... As I said yesterday [during his opening statement], what we need to be is unanimous in that he murdered her. The way it happened does not need to be unanimous. You could have three of you picking each one of these paragraphs. The whole point is that the 12 of you agree that he murdered her. And that's specifically what this language is all about. Defense counsel argued as follows: "[Y]ou remember the testimony of one of [Dr. Salinas'] associates, and that was Mr. Pena, he indicated that the doctor told him, hey, this is a difficult case. I can't determine the cause of death . . . . Even Doctor Salinas indicated, when I cross-examined him, that it was very difficult for him in these type of cases to determine the cause of death. ***** And there is a question also, in my opinion -- in my opinion, as to what is the cause of death. I really do believe that. And in talking to the doctor yesterday and asking him questions, the doctor did indicate that it was one of the more difficult cases for him. But I think the doctor - in analyzing the whole situation, I think the doctor at the last minute decided to put the cause of death by strangulation. The fourth factor asks us to consider any other relevant information revealed by the record. The most striking revelation is that the charge error wholly undermined the defensive theory, i.e., the State's failure to prove cause of death. Under the erroneous charge, the jury could have rejected Dr. Salinas's conclusions that the decedent died either from choking or the stun gun, thereby accepting the defensive theory that a precise cause of death was not proven, yet was still authorized to convict. In other words, the jury could have taken the position that the cause of death was not proven to be either from choking or the stun gun but, having taken that position, the jury would have necessarily found that the manner and means of causing the death was unknown to the grand jury. Consequently, the erroneous charge deprived appellant of the ability to successfully argue his specific defensive theory and deprived the jury of the opportunity to accept and give effect to that argument. In view of these four factors, each militating toward harming appellant, we find appellant suffered, at a minimum, "some harm" from the trial judge authorizing the conviction of appellant on theories not supported by the evidence. (8) Accordingly, we sustain the fourth point of error. The judgment of the trial court is reversed and the case remanded for a new trial. CHARLES BAIRD, Justice Publish. Tex. R. App. P. 47.2(b). Opinion delivered and filed this the 15th day of March, 2007. 1. Former Texas Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005). 2. On cross-examination, Dr. Salinas testified that "asphyxia by strangulation" was "obvious" and the strangulation was done manually, or by hand. 3. All emphasis is supplied unless otherwise indicated. 4. The State disagrees with this conclusion, arguing the manner and means appellant employed to kill the decedent was not conclusively established and therefore, under Hicks, a prima facie showing was made that the manner and means was unknown to the grand jury. However, the record evidence does not support this argument. To the contrary, Dr. Salinas repeatedly testified the decedent's death was caused either by choking or the stun gun. The certainty of Dr. Salinas's testimony was referred to by the State in its closing argument: "What you need to understand is that the doctor said it was 95 percent certainty that she died from choking but that there was a slight possibility that she may have died from the stun gun." 5. Specifically, the State quotes that opinion, which dealt with a murder prosecution, for the proposition that "The State was under no further obligation to prove that the grand jury used good faith and due diligence in determining the identity of the murder weapon when it produced the disjunctive indictment that described the offense as being committed either 'with a razor blade' or 'with a sharp object to the Grand Jurors unknown.'" In re A.J.G., 131 S.W.3d 687, 695 (Tex. App.-Corpus Christi 2004, pet. denied). 6. For example, in A.J.G., the court specifically stated it was applying Malik to the defendant's sufficiency challenge. In re A.J.G., 131 S.W.3d at 694 ("We apply the Malik standard of the hypothetically correct jury charge in sufficiency challenges to the present appeal despite its nature as a juvenile proceeding."). Accordingly, the quotation from A.J.G. relied upon by the State in the preceding footnote was necessarily limited to sufficiency challenges. 7. This conclusion is borne out by the State's closing argument, where the prosecutor stated: "[I]t's become an issue in this case as to how this woman died. I believe defense counsel has made this a very big issue as to how she died and how the doctor reached his conclusion as to what the cause of death was." 8. We say "at a minimum" because the harm in the instant case is as bad as that in Guevara which the San Antonio Court found to be egregious. Guevara, 191 S.W.3d at 209.

I bet that Scmoe's Schister told the Putz.."I think they got an airtight case against ya" plea if you believe the twit

Robert W. Emfinger, R. Ph., CR No. 92 (1990)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

DATE: August 8, 1990
Docket No. C-207

In the Case of:

Robert W. Emfinger, R. Ph.

Petitioner,

- v. -

The Inspector General.

DECISION

In this case, governed by section 1128 of the Social Security Act, Petitioner timely filed a request for a
hearing before an administrative law judge (ALJ) to contest the November 24, 1989 notice of
determination (Notice) issued by the Inspector General (the I.G.). The Notice informed Petitioner that he
was being excluded from participating in the Medicare and Medicaid programs for five years. Neither
party contends that there are questions of material fact which would require a hearing. Based on the entire
record before me, I conclude that summary disposition is appropriate in this case, that Petitioner is subject
to the minimum mandatory exclusion provisions of sections 1128(a)(1) and 1128(c)(3)(B) of the Social
Security Act, and that Petitioner's exclusion for a minimum period of five years is mandated by federal law.

ISSUE:

The issue in this case is whether Petitioner was "convicted" of a criminal offense within the meaning of
section 1128(i) of the Act.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all times relevant to this case, Petitioner was a pharmacist licensed in Texas. P. Br. 2.

2. On April 10, 1989, the 86th Judicial District Court of Kaufman County, Texas (court), accepted
Petitioner's plea of guilty to the charge of tampering with a governmental record; specifically, Petitioner
was charged with submitting fraudulent Medicaid claims for reimbursement. I.G. Ex. 1; P. Ex. B.

3. In accepting the plea, the court found that the evidence substantiated Petitioner's guilt of
tampering with a governmental record. I.G. Ex. 1.

4. The Court deferred an adjudication of guilt at that time, pursuant to Art. 42.12, Sec. 3d of the
Texas Code of Criminal Procedure. I.G. Ex. 1.

5. Petitioner was placed on probation and the court ordered him to pay court costs and to make
restitution in the amount of $803.00. I.G. Ex. 1.

6. On October 2, 1989, the court dismissed the action against Petitioner based on Petitioner's motion. P.
Ex. A.

7. On November 8, 1989, the Texas State Board of Pharmacy ordered that Petitioner's pharmacist's license
be suspended for two years on the condition that he pay a fine of $250.00 and that he abide by federal and
state laws. P. Ex. B.

8. Pursuant to section 1128(b)(1) of the Social Security Act, the Secretary of the Department of Health and
Human Services (Secretary) had authority to impose and direct exclusions against Petitioner from
participation in the Medicare and Medicaid programs. Social Security Act, section 1128(b)(1).

9. The Secretary delegated to the I.G. the authority to determine, impose, and direct exclusions
pursuant to section 1128 of the Social Security Act. 48 Fed. Reg. 21662, May 13, 1983.

10. On November 24, 1989, the I.G. advised Petitioner that he was being excluded from participating in
the Medicare program and was directing that Petitioner be excluded from participating in State health care
programs for five years.

11. The exclusions were based on the I.G.'s determination that Petitioner had been convicted of a criminal
offense related to the delivery of an item or service under the Medicaid program.

12. Petitioner's plea of guilty in Court constitutes a "conviction" within the meaning of sections 1128(a)(1)
and 1128(i)(3) of the Social Security Act, notwith-standing the provisions of Article 42.12 of the Texas
Code of Criminal Procedure, or the terms of the October 2, 1989 Order dismissing the aforementioned
charges against Petitioner.

13. The actions taken by the I.G., excluding Petitioner from participating in the Medicare program and
directing his exclusion from participating in State health care programs, were mandated by section 1128 of
the Social Security Act.

ANALYSIS

I. Petitioner was "convicted" of a criminal offense within the meaning of section 1128(i) of the
Social Security Act.

There are no disputed material facts in this case. Petitioner acknowledges that a plea of guilty was entered
against him, charging him with tampering with a governmental record. P. Br. 1. Petitioner does not deny
that the offense to which he pled guilty was an offense related to the delivery of an item or service under
the Medicaid program, nor does he dispute that if his plea is a "conviction" of an offense within the
meaning of 42 U.S.C. 1320a-7(a)(1) and 7(i), then his exclusions were mandated by law.

Section 1128(a)(1) of the Social Security Act requires the Secretary (or his delegate, the I.G.) to exclude
from participation in Medicare, and to direct the exclusion from participation in Medicaid of:

any individual or entity that has been convicted of a criminal offense related to the delivery of an item or
service under . . . [Medicare] or under . . . [Medicaid]. (Emphasis added).

The term "convicted" is defined at section 1128(i) of the Social Security Act. The law provides that an
individual or entity is considered to have been "convicted" of a criminal offense:

(l) when a judgment of conviction has been entered against the individual or entity by a Federal, State,
or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or
other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt againstthe individual or entity by a Federal, State, or
local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal,
State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication,
or other arrangement or program where judgment of conviction has been withheld. (Emphasis added).

The Texas Code of Criminal Procedure states, at Art. 42.12, Sec. 7, that after a defendant convicted in a
criminal proceeding has satisfactorily completed a term of probation the sentencing court shall "amend or
modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge
the defendant." This section further states that, with exceptions, the court may, in discharging the
defendant, "set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the
accusation, complaint, information or indictment against such defendant, who shall thereafter be released
from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to
which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known
to the court should the defendant again be convicted of any criminal offense."

Petitioner pled guilty to the offense of fraudulently submitting claims for reimbursement of prescription
drugs to the Texas Department of Human Services. In accepting his plea, the Texas court found that
sufficient evidence existed to convict Petitioner for the offense of tampering with a governmental record.
Thus, Petitioner's plea fell within the statutory definition of a "conviction." It is irrelevant that under Texas
law Petitioner was permitted to subsequently withdraw his plea after satisfactorily completing a period of
probation. See Carlos Z. Zamora, M.D, DAB Civ. Rem. C-74 (1989), aff'd DAB App. 1104 (1989).

Petitioner denies that his plea was a "conviction" under the law of Texas and makes several arguments to
support his contention. He claims that his plea of April 10, 1989 was dismissed against him by the court
on October 2, 1989 pursuant to the terms of Art. 42.12, Sec. 3d and 7 of the Texas Code of Criminal
Procedure. He bases his principal argument on this fact, alleging that after his plea of guilty was entered,
he received a deferred adjudication for the charge of tampering with a governmental record. He contends
that once he fulfilled probation, paid court costs, and made restitution of $803.95, the court dismissed the
cause of action against him. Petitioner claims that the court's October 2, 1989 Order dismissed any action
against him which could constitute a "conviction."

The I.G. argues that Petitioner incorrectly asserts that because his judgment was deferred and the charges
of tampering with a governmental record were dismissed pursuant to Texas law, there is no conviction
under federal law and thus no conviction for purposes of this exclusion action. I.G. Br. 4.

Pursuant to Texas' law, Petitioner was permitted to plead guilty to the charge of tampering with a
governmental record as alleged in the criminal information. The court found that the evidence against
Petitioner, substantiated his guilt as charged in the information and as confessed by him in his plea of
guilty. However, the court deferred further proceedings without an adjudication of guilt as provided in Art.
42.1, Sec. 3d of the Texas Code of Criminal Procedure. I.G. Ex. 1. The court then placed Petitioner on
probation for a period of one year with the stipulation that it could alter or modify the conditions of his
probation. Petitioner, thereafter, having made restitution, paid the penalty and court costs, and applied on
his own motion to the court for a dismissal of the charges against him.

The Texas court accepted Petitioner's guilty plea within the meaning of section 1128(i)(3). Petitioner
offered to admit his guilt to a criminal offense in return for: (1) a term of probation; (2) payment by
Petitioner of restitution, costs, and a penalty; and (3) the opportunity to apply to the court to have the
criminal information dismissed upon satisfactory completion of the aforesaid conditions.

The term "accept" is not specifically defined in section 1128(i)(3) or elsewhere in section 1128. In the
absence of a specific statutory definition, the term should be given its common and ordinary meaning.
"Accept" is defined in Webster's Third New International Dictionary 1969 Edition as:

2a: to receive with consent (something given or offered) . . .

A guilty plea is "accepted" within the meaning of section 1128(i)(3) whenever a party admits his guilt to a
criminal offense and a court disposes of the case based on that party's plea. See James F. Allen, M.D.F.P.,
DAB Civ. Rem. C-152 (1990).

This interpretation is consistent not only with the common and ordinary meaning of the term "accept," but
also with Congressional intent, as expressed through legislative history. Congress intended that its
definition of conviction sweep in the situation where a party has been adjudicated guilty of an offense, and
the situation where a party admits guilt in order to dispose of a complaint. In Congress' view, a party's
admission of guilt in order to dispose of a criminal complaint is sufficient to establish a conviction,
regardless of how that admission is treated under the various states' criminal statues and procedures. The
Congressional committee which drafted the 1986 version of section 1128 stated:

The principal criminal dispositions to which the exclusion remedy [currently] does not apply are the
"first offender" or "deferred adjudication" dispositions. It is the Committee's understanding that States are
increasingly opting to dispose of criminal cases through such programs, where judgment of conviction is
withheld. The Committee is informed that State first offender or deferred adjudication programs typically
consist of a procedure whereby an individual pleads guilty or nolo contendere to criminal charges, but the
court withholds the actual entry of a judgment of conviction against them and instead imposes certain
conditions or probation, such as community service or a given number of months or good behavior. If the
individual successfully complies with these terms, the case is dismissed entirely without a judgment of
conviction ever being entered.

These criminal dispositions may well represent rational criminal justice policy. The Committee is
concerned, however, that individuals who have entered guilty or nolo [contendere] pleas to criminal
charges of defrauding the Medicaid program are not subject to exclusion from either Medicare or
Medicaid. These individuals have admitted that they engaged in criminal abuse against a Federal health
program and, in the view of the Committee, they should be subject to exclusion. If the financial integrity
of Medicare and Medicaid is to be protected, the programs must have the prerogative not to do business
with those who have pleaded to charges of criminal abuse against them.

H. Rep. No. 727, 99th Cong., 2d Sess. 1986 reprinted in 1986 U.S. Cong. Code & Admin. News, 3607,
3664-65; see Zamora, supra, at 5-6.

I disagree with Petitioner's contention that the Texas court's determination to defer adjudication until a later
date meant that the court did not accept Petitioner's plea. Petitioner admitted his guilt in order to dispose of
the criminal information, and the court received Petitioner's plea. That transaction amounts to acceptance
of a plea within the meaning of federal law, irrespective of the court's characterization of its actions.

Finally, Petitioner argued that the plain meaning of 42 U.S.C. 1320-7(a)(i) states that a punishment could
be asserted for certain actions, and according to Petitioner, said punishment puts him in jeopardy of his
federal and state constitutional rights. I am not persuaded by this argument, and I conclude that the Texas
deferred adjudication statute and the federal exclusion law do not conflict. The Petitioner's double
jeopardy/due process argument is necessarily premised on the assertion that the exclusion is an additional
punishment. An exclusion is not a punishment, but a consequence of certain court actions defined by the
federal statute as "convicted." The Petitioner has not been subjected to double jeopardy, nor has he been
denied due process, by application of the federal definition of "convicted."

It is evident from the face of the federal statute, as well as from the legislative history cited above, that
Congress' intent in enacting the exclusion legislation was remedial and not punitive. A principal objective
of the law was to protect the financial integrity of federally-funded health care programs from those who
have proven themselves to be untrustworthy. That excluded individuals might be financially
disadvantaged by their exclusions is an incidental effect. Because the intent of Congress was not to
"punish," the exclusion remedy cannot be viewed as constituting an additional punishment beyond that
contemplated by Texas law.

I find and conclude that Petitioner was "convicted" within the meaning of sections 1128(a)(1) and (i)(3) of
the Social Security Act because he pled guilty to the charge of tampering with a governmental document
and the court "accepted" his plea. I also find that Petitioner was convicted of a program-related offense.

II. A Minimum Mandatory Five--Year Exclusion Was Required In this Case.

Section 1128(a)(1) of the Social Security Act clearly requires the I.G. to exclude individuals and entities
from the Medicare program, and direct their exclusion from the Medicaid program, for a minimum period
of five years, when such individuals and entities have been "convicted" of a criminal offense "related to the
delivery of an item or service" under the Medicare or Medicaid programs within the meaning of section
1128(a)(1) of the Social Security Act. Congressional intent on this matter is clear:

A minimum five-year exclusion is appropriate, given the seriousness of the offenses at issue. . .
. Moreover, a mandatory five-year exclusion should provide a clear and strong deterrent against the
commission of criminal acts.

S. Rep. No. 109, 100th Cong., 1st Sess. 2, reprinted in 1987 U.S. Code Cong. and Admin. News 682, 686.

Since the Petitioner was "convicted" of a criminal offense, and it was "related to the delivery of an item or
service" under the Medicaid program within the meaning of section 1128(a)(1) and (i) of the Social
Security Act, the I.G. was required to exclude the Petitioner for a minimum of five years.

CONCLUSION

Based on the law and the undisputed material facts, I conclude that the I.G.'s determination to exclude
Petitioner from participation in the Medicare program, and to direct that Petitioner be excluded from
participation in State health care programs, for five years, was mandated by law. Therefore, I am entering
a decision in favor of the I.G. in this case.

_________________________
Steven T. Kessel
Administrative Law Judge

Insurance that delays benefits.......builds the Enron may'd n a flash......waste of time and comity

U.S. Department Of Veterans Affairs Office of Inspector General Office of Investigations South Central Field Office 4040 N. Central Expwy, Suite 500 Dallas, TX 75204-3158

In Reply Refer To: January 10, 2005 FOR IMMEDIATE RELEASE (713) 794-3652

Sugarland, TX, Woman Indicted for Tampering with a Government Record

John P. McDermott, Special Agent in Charge, Department of Veterans Affairs (VA), Office of Inspector General (OIG), announced today that Tara Poche, of Sugarland, TX, was Indicted by a Grand Jury seated in Fort Bend County, TX, located in Sugarland, TX, for Tampering With a Governmental Record, a violation of Texas State Penal code, Section 37.10. McDermott stated that the Indictment of Poche is the result of an investigation by his Houston Resident Agency. The Indictment charged that Poche, the wife of a deceased veteran, forged a VA Designation Beneficiary form by listing both herself and her minor child as beneficiaries on her deceased husband's VA life insurance policy. Poche had been previously indicted for the murder of her deceased husband and arson. This case is being prosecuted by the Fort Bend County District Attorney's Office, Sugarland, TX.