Comedy of Errors

False or true? Failure to appear charges as well for Judge unavailable at said hearing required is it not?

2008-11-10T03:46:00.000-08:00

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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



                                     DIVISION I



STATE OF WASHINGTON,                        )  NO.  56220-7-I

                                           )

                     Respondent,           )

                                           )

      v.                                   )  PUBLISHED OPINION

                                           )

TYLER PARKS,                                )

                                           )

                     Appellant,            ) FILED: DECEMBER 18, 2006



      BECKER. J.  --  Tyler Parks failed to appear as promised at a scheduled



hearing in municipal court on the charge of minor in possession of alcohol.  The



court ordered the issuance of a bench warrant for his arrest.  During a search



incident to the arrest on the bench warrant, the police found cocaine in his



pocket.  Parks was convicted of possession of a controlled substance after an



unsuccessful motion to suppress. Because the record does not show that a



court ever found probable cause to support the underlying offense, the bench



warrant for his arrest was invalid and the fruits of the search incident to arrest 



No. 56220-7-I/2



should have been suppressed.  The conviction is reversed.



      According to the records of the Marysville Municipal Court, Tyler Parks



was cited for minor in possession of alcohol, a gross misdemeanor, on January



5, 2003.  Filing of the citation the next day initiated the case.  The docket shows



that Parks, appearing pro se, was arraigned on the charge at a hearing on



January 14, 2003.  He pled not guilty and waived his right to a jury trial. 



      At a scheduled pre-trial hearing, Parks confirmed that the case was set



for a March 24 trial date.  He failed to appear for trial on March 24.  The



municipal court ordered a bench warrant for failure to appear and set bail at



$1,000.  Parks was informed of the warrant by telephone.  The next day, he



came to the clerk's counter and signed a promise to appear on April 1, 2003, for



a show cause hearing on the outstanding warrant.  When he appeared on April



1, the case was reset for a pre-trial hearing on May 12 and a bench trial on May



19.  The bench warrant was recalled. 



      Parks failed to appear for the May 12 hearing and the process repeated



itself.  Over the next year, there were several more occasions when Parks failed



to appear despite new bench warrants, new bail settings, new promises to



appear, and recalling of the warrants.  New dates for a pre-trial hearing and trial



were set at least three more times.



                                          -2-



No. 56220-7-I/3



      Finally, when Parks failed to appear on January 12, 2004, for a scheduled



pre-trial hearing, the court ordered a no recall bench warrant for failure to



appear and set bail at $5,000.  The municipal court docket shows no further



activity on the case for almost a year. Then, on November 23, 2004, Parks was



arrested on the warrant.  The arrest occurred when a police officer responded to



a report of a fight in front of a residence.  At the scene the officer detained



Parks, checked his driver's license, discovered the Marysville bench warrant,



and took Parks into custody.  A search incident to arrest turned up cocaine in his



pocket. 



      Charged in superior court with felony possession, Parks moved to



suppress.  He argued that the police lacked authority to arrest and search him



on November 23, 2004.  According to Parks, the bench warrant was invalid



because there had never been a judicial determination of probable cause on the



underlying charge of minor in possession. Counsel for Parks stated that in her



experience, some district courts made it a practice to find probable cause on the



underlying charge, but Marysville Municipal Court did not.  The State responded



that the warrant was valid because it was issued under CrRLJ 2.5, a rule that



authorizes issuance of a bench warrant for a defendant who fails to appear after



promising to do so or otherwise having notice to appear.  The rule does not



explicitly require a finding of probable cause preliminary to issuance of a bench



                                          -3-



No. 56220-7-I/4



warrant for failure to appear:



             The court may order the issuance of a bench warrant

      for the arrest of any defendant who has failed to appear

      before the court, either in person or by a lawyer, in answer

      to a citation and notice, or an order of the court, upon which

      the defendant has promised in writing to appear, or of

      which the defendant has otherwise received notice to

      appear, if the sentence for the offense charged may include

      confinement in jail.



CrRLJ 2.5.



      The superior court judge observed that "the lower courts are somewhat



inconsistent on how they procedurally do this" and recalled her own experience



in a lower court "where it was our policy to make a finding of probable cause



before the issuance of warrants." While expressing a belief that "the best



practice for a lower court is to make a finding of probable cause prior to the



issuance of a warrant", the court nevertheless agreed with the State that CrRLJ

2.5 was the controlling rule and its requisites had been satisfied.1 The court



denied the motion to suppress and convicted Parks of cocaine possession on



stipulated facts.  Parks appeals.



      The State does not dispute that if the warrant was invalid, the motion to



suppress should have been granted.  Therefore, our analysis is limited to a



single question:  Did the municipal court, at some point, have to make a finding



of probable cause on the underlying minor in possession charge in order to



      1 Report of Proceedings, Motion to Suppress (March 18, 2005) at 14-15.



                                          -4-



No. 56220-7-I/5



issue a valid bench warrant for failure to appear?  We answer "yes" to that



question.



      The United States Constitution commands that "no warrants shall issue,



but upon probable cause, supported by oath or affirmation". U.S. Const. amend.



IV. 



      It is undisputed that the municipal court did not make a finding of probable



cause on the underlying charge at any time during the two years preceding the



issuance of the bench warrant.  The prosecutor conceded as much below: "there



doesn't seem to be any indication that there was ever a specific probable cause



finding made by a judge regarding the underlying charge, but the State's

argument is that that's not required."2



      One basis for the State's argument that a judicial finding of probable



cause was not required is State v. Walker, 101 Wn. App. 1, 11, 999 P.2d 1296



(2000).  The State relies on our language in Walker to the effect that CrRLJ 2.5



can supply the "authority of law" required by Art. I, § 7 of the state constitution as



a prerequisite for the invasion of privacy that occurs when an arrest warrant is



served.   As in Walker, the State here offers CrRLJ 2.5 as a source of lawful



authority for the issuance of the bench warrant.  But while the facts of Walker



are similar to our case, the issue there did not turn on the probable cause



      2 Report of Proceedings at 8.



                                          -5-



No. 56220-7-I/6



requirement of the Fourth Amendment.  The arrest warrant in Walker for failure



to appear had been issued by a clerk who rubber-stamped a court



commissioner's facsimile signature on the warrant's signature line.  The narrow



holding was that CrRLJ 2.5 does not authorize a clerk to issue such a warrant



without judicial participation; the word "court" means judge or commissioner. 



Walker does not address the Fourth Amendment issue we face--whether a



warrant, even one that nominally satisfies CrRLJ 2.5, is invalid if there has never



been a judicial finding of probable cause on the underlying charge. 



      Below, the State acknowledged the Constitutional requirement for



probable cause before an arrest, and argued the requirement was satisfied



because the issuing court obviously had probable cause to believe the



defendant had failed to appear. But failure to appear is not a crime.  Walker,



101 Wn. App. at 6.  Probable cause for arrest as it is normally understood is



defined in terms of circumstances sufficient to warrant a prudent person in



believing that the suspect had committed or was committing a crime.  See, e.g.,



Gerstein v. Pugh, 420 U.S. 103, 111, 124 S. Ct. 854, 143 L. Ed. 2d 54 (1974). 



"An arrest warrant is issued by a magistrate upon a showing that probable cause



exists to believe that the subject of the warrant has committed an offense and



thus the warrant primarily serves to protect an individual from an unreasonable



seizure."  Steagald v. United States, 451 U.S. 204, 213, 101 S. Ct. 1642, 68 L.



Ed. 2d 38 (1981). 



                                          -6-



No. 56220-7-I/7



      On appeal, the State does not contend that probable cause in the context



of this case means anything other than cause to believe the subject of the



warrant has committed a crime.  Having abandoned the argument that it is



enough to show probable cause for failing to appear, the State now argues that



under CrRLJ 2.2, a probable cause finding as to the underlying charge would



have already been made at an earlier point in the history of the case -- and



therefore, the Municipal Court did need to not make a new finding of probable



cause at the time the bench warrant was issued. 



      We agree with the State that if in fact there had been an earlier probable



cause finding as to the minor in possession charge against Parks, it would not



be necessary for the court to make a new finding of probable cause to support



issuance of a bench warrant for Parks' failure to appear.  In fact, according to



comments of the task force that drafted the present rules for courts of limited



jurisdiction in 1987, the task force explicitly denominated the warrant referred to



in CrRLJ 2.5 as a "bench warrant" in order to eliminate the need for an affidavit



of probable cause.  "Thus, failure to appear after signing a promise to appear



would in itself be a sufficient basis for issuance of the warrant." 4B Karl B.



Tegland, Washington Practice: Rules Practice, CrRLJ 2.5, task force cmt. at 447



(6th ed. 2002).



      The problem here is that, as the State conceded in superior court, there



simply is nothing in the record documenting an earlier finding of probable cause. 



                                          -7-



No. 56220-7-I/8



Other rules do require a judicial determination of probable cause in situations



that may arise at the beginning of a case. For example, the rules require a



judicial determination of probable cause before a warrant of arrest can be issued



upon an initial complaint, CrRLJ 2.2(a)(2), or upon a failure to appear in



response to a summons issued in lieu of an arrest warrant, CrRLJ 2.2(c).  



Because Parks initially appeared in court voluntarily in response to an officer's



citation, he was not in the situations covered by these sections of CrRLJ 2.2,



and therefore we cannot infer that there must have been an earlier finding of



probable cause.  And in any event it is doubtful that without documentation of



some kind we would infer that a probable cause finding was made earlier, merely



on a showing that the rules required it to be made.



      The State also argues that even if there never was a finding of probable



cause to believe that Parks was guilty of the charged crime, the undisputed fact



that he did not appear when he was supposed to automatically established



probable cause to believe he was guilty of two other crimes, namely contempt or



bail jumping.  The face of the warrant undermines this claim, as it states "Failure



to Appear for Hearing" as the reason for the issuance of the warrant.  Further,



just as the court's docket contains no record of a judicial finding of probable



cause for the underlying charge, it also contains no record of a judicial finding of



probable cause for contempt or bail jumping.  And finally, the State's cursory



argument has not demonstrated that Parks' breach of his promise to appear



                                          -8-



No. 56220-7-I/9



constituted probable cause to believe him guilty of contempt or bail jumping. 



There is no showing of a lawful court order that he disobeyed, the foundation for



the crime of contempt.  RCW 7.21.010(1)(b).  Similarly, there is no showing that



Parks was "released by court order or admitted to bail", as is required to



establish the crime of bail jumping.  RCW 9A.76.170(1).  Parks could not have



been released by court order or properly admitted to bail because there had



never a judicial finding of probable cause on the underlying charge. When there



has been no finding of probable cause, an accused must be released without



conditions.  CrRLJ 3.2.



      Nothing in the comments of the task force suggest that the task force



intended CrRLJ 2.5 to do away altogether with the fundamental necessity of 



probable cause as a prerequisite for authorizing the arrest of a person whose



guilt has not yet been adjudicated.  Taken as a whole, the criminal rules for the



courts of limited jurisdiction are designed to enforce, not evade, the



constitutional requirement that warrants shall not issue except upon probable



cause. CrRLJ 2.5 must be interpreted in light of the constitutional command. 



There should have been a judicial finding of probable cause made on the record



before the court attempted to force Parks to appear in court.  We hold that



making such a finding is not only a "best practice" but also a constitutional



obligation of the issuing court.



      Under CrRLJ 2.5, it is not necessary that a probable cause finding be



                                          -9-



No. 56220-7-I/10



made at the time of issuing the bench warrant.  But the bench warrant will not be



valid unless the record establishes that the court made a finding of probable



cause at some earlier point in the history of the case.



      Because in this case there was no judicial determination that probable



cause existed to believe Parks guilty of the charge of minor in possession of



alcohol, the bench warrant for his arrest should have been held invalid and the



motion to suppress granted.



Reversed.



WE CONCUR:



                                         -10-

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The right to an impartial judge is so sacred that the United States Supreme Court has declared a violation of this right to be "structural" error.

2008-08-31T03:50:00.000-07:00

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NUMBER 13-07-733-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JUAN ANTONIO HERNANDEZ, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 197th District Court of Cameron County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Yañez and Benavides

Opinion by Justice Yañez

Appellant, Juan Antonio Hernandez, was indicted for the offense of robbery,⁽¹⁾ with an enhancement for a prior felony conviction.⁽²⁾ After a bench trial, Hernandez was found guilty and sentenced to twenty-four years' imprisonment. In three issues, Hernandez asserts that (1) he did not intelligently waive his right to a jury trial; (2) his conviction is based on insufficient evidence; and (3) the trial court erred in refusing to consider the full range of punishment available when determining his sentence. We affirm in part and reverse in part.

I. Legal Sufficiency

We begin by addressing Hernandez's second issue on appeal because it affords him the greatest relief if sustained.⁽³⁾ In his second issue, Hernandez claims that the evidence is insufficient to support his conviction. Hernandez does not state whether he is raising a legal or factual sufficiency challenge, or both. He sets out no standards of review. The State contends that we should find this issue waived for inadequate briefing.⁽⁴⁾ We decline to waive the issue, and shall address it as a legal sufficiency challenge because, at the conclusion of Hernandez's argument, he states that affording him relief on this issue would prohibit the State for retrying him for robbery.⁽⁵⁾ If it was Hernandez's intent to raise a factual sufficiency challenge, that challenge is waived.⁽⁶⁾

1. Applicable Law

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.⁽⁷⁾ This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.⁽⁸⁾ The trier of fact is the sole judge of the weight and credibility of the evidence.⁽⁹⁾ Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder.⁽¹⁰⁾ We must resolve any inconsistencies in the evidence in favor of the finding of guilt.⁽¹¹⁾

To prove that Hernandez was guilty of robbery, the State had to prove that Hernandez, "in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property," either: "intentionally, knowingly, or recklessly cause[d] bodily injury to another," or (2) "intentionally or knowingly threaten[ed] or place[ed] another in fear of imminent bodily injury or death."⁽¹²⁾ The penal code defines theft as unlawfully appropriating property with intent to deprive the owner of the property.⁽¹³⁾ Bodily injury is "physical pain, illness, or any impairment of physical condition."⁽¹⁴⁾ This definition is broadly construed to include "even relatively minor physical contacts so long as they constitute more than mere offensive touching."⁽¹⁵⁾ In the case of robbery, the bodily injury element is satisfied when "violence is clearly perpetrated against another for the purpose of . . . preventing or overcoming resistance to theft."⁽¹⁶⁾

2. Discussion

Hernandez's brief only asserts that there is legally insufficient evidence that Hernandez "intentionally, knowingly, or recklessly cause[d] bodily injury to another."⁽¹⁷⁾ This assertion, however, is refuted by the testimony of Juan Jose Moron, who, as loss prevention officer at J.C. Penney, intercepted Hernandez as he walked out of J.C. Penny with unpaid merchandise. Moron testified that he and Hernandez got "into a scuffle," during which time Hernandez "was pushing and tr[ying] to get away." As a result of the pushing, Moron suffered injuries to his nose, shoulder, right wrist, and left hand. Based on Moron's testimony, we find there is legally sufficient evidence that Hernandez intentionally, knowingly, or recklessly caused bodily injury to Moron. Accordingly, we overrule Hernandez's second issue.

II. Waiver of Jury Trial

Article 1.13(a) of the code of criminal procedure provides, in relevant part, that the defendant "shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State."⁽¹⁸⁾ Hernandez's open court waiver occurred in the following manner:

THE COURT: You can have a jury trial or a bench trial. Which one do you want?

[HERNANDEZ]: What is a bench trial?

THE COURT: The judge makes the decision.

[HERNANDEZ]: You can make the decision for me, ma'am.

MS. CHURCH: All right. Then we will do a bench trial.⁽¹⁹⁾

Hernandez thus waived his right to a jury trial in open court by electing to communicate any waiver through his counsel, Ms. Church. The record further reveals that Hernandez made his waiver in a writing, which stated:

COMES NOW Juan Antonio Hernandez, the Defendant in the above entitled and numbered cause, a felony less than capital, in person and in writing in open Court, and with the consent and approval of the Court and with the written and signed consent and approval of the attorney representing the State, and prior to the entering of a plea herein, waives the right of a trial by jury, both as to the issue of guilt or innocence and as to the punishment therefor, should be convicted.⁽²⁰⁾

Hernandez argues, however, that "the record does not show that the Court explained the dangers of proceeding with a bench trial, nor the fact that the Court would determine punishment. Instead, the Court informed [him] that he could not elect to have a jury determine punishment because he had previously been convicted a [sic] felony."⁽²¹⁾ Hernandez does not specify what "dangers" the trial court should have discussed with him. And though the record does not reflect that the trial court told Hernandez that it would be determining punishment, Hernandez's written waiver indicates his awareness of this matter.

As for the trial court informing Hernandez "that he could not elect to have a jury determine punishment," this did not occur. Hernandez directs us to the following pretrial discussion between the State, the trial court, and his counsel, Ms. Church:

MS. CHURCH: Your Honor, I do have an election of punishment that I think is in the file, but I'm not sure, so I will hand this to the court.

[THE STATE]: Your Honor, just for the record, that motion does say election for punishment by a jury and application for probation. As the court is aware, he has a prior conviction and with a prior conviction he is not eligible for probation.

MS. CHURCH: That's why there is no affidavit attached.

THE COURT: Okay. Since he's not eligible, he doesn't get to make that choice.

MS. CHURCH: No.

We disagree with Hernandez's contention that the trial court's reference to him not getting "to make that choice" represented the court instructing him that he could not elect to have the jury determine punishment. It is clear to this Court that the trial court was referring to Hernandez's inability to bring the issue of probation before a jury. Accordingly, with the record showing that the requirements of article 1.13 were satisfied, and without any legitimate basis for questioning whether the waiver was voluntary and intelligent, we overrule Hernandez's first issue on appeal.

III. Failure to Consider Full Range of Punishment

In his third issue, Hernandez argues that the trial court "denied him due process" by failing to consider the full range of available punishment when determining his sentence.⁽²²⁾ According to Hernandez, the trial court failed to consider the full range of punishment because the trial court had a policy of sentencing repeat offenders to double the time he or she had previously been sentenced. Hernandez thus contends that the trial court sentenced him to twenty-four years' imprisonment because he had previously been sentenced to twelve years' imprisonment for a different offense.

1. The Trial Record

At a pretrial hearing held on September 11, 2007, Hernandez's counsel had the following exchange with the trial court:

MS. CHURCH: And Your Honor, is it--I have tried to explain to my client that it's the standard operating procedure in this Court that if a person has gotten like twelve years in prison before--

THE COURT: I double it.

MS. CHURCH: You double it.

THE COURT: Whatever the highest one you have, I double. Okay?

MS. CHURCH: Thank you, Your Honor.

THE COURT: Yes, thank you. You're welcome. Ask the other prisoners in jail, they will tell you. Anything else?

MS. CHURCH: That's all we have, Judge.

At another pretrial hearing held on November 5, 2007, Ms. Church again discussed with the trial court her attempts to explain to Hernandez the court's policy of doubling punishment. The trial court made no attempt to disavow Ms. Church's statements.

The trial court found Hernandez guilty on November 15, 2007. The trial court asked Hernandez if he had previously been sentenced to twelve years' imprisonment, and he answered in the affirmative. The State and Ms. Church then expressed their opinions as to what punishment should be assessed against Hernandez; their remarks encompassed all the argumentation put forth on the issue of punishment:

[THE STATE]: Your Honor, may the record also reflect that the defendant has been charged in an indictment for robbery, and we used that prior conviction in that prior trip for twelve years as an enhancement count, Your Honor. So it changes the range of punishment from a second degree robbery to a first degree robbery, punishable by five to ninety-nine years, Your Honor.

Your Honor, the defendant has been to the penitentiary before for twelve years. If you double that, that's twenty-four years, Your Honor.

He also has picked up another felony conviction for robbery in the past, Your Honor, was placed on probation. But that also was a felony conviction. We would ask that you extend and add six more years to his punishment, and punish the defendant for no less than thirty years for robbery enhanced.

MS. CHURCH: Your Honor, I think for this--a theft of $166 and a scuffle with a hurt nose is--thirty years is a bit outrageous for that. One of our problems with this case was his priors, and the rule of this Court, and I am going to ask that you consider the twelve years again, because he does have--he does have some problems. . . .

. . . .

THE COURT: I will give him twenty-four years TDC.⁽²³⁾

2. The Trial Court Failed to Consider Full Range of Punishment

The court of criminal appeals has held that "a trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process."⁽²⁴⁾ "Due process requires a neutral and detached hearing body or officer. The Texas Constitution requires no less. Nonetheless, in the absence of a clear showing to the contrary, we will presume the trial judge was a neutral and detached officer."⁽²⁵⁾

The presumption that the trial judge was a neutral and detached officer has been overcome in this case. Prior to trial, the trial court explicitly informed Hernandez of its intent to assess punishment by doubling his highest, previously imposed sentence, stating: "Whatever the highest one you have, I double. Okay?"⁽²⁶⁾ The trial court made it clear to Hernandez that it would be following its tradition of doubling a defendant's previous sentence, by directing him to "[a]sk the other prisoners in jail, they will tell you." The trial court's adherence to its sentencing policy was clear to the prosecutor and Hernandez's counsel--both of them discussed the trial court's policy in the course of debating punishment. Lastly, the trial court's imposition of a twenty-four year sentence conforms with its stated policy of doubling a defendant's highest, previously imposed sentence, which for Hernandez was twelve years. Based on these facts, it is clear that the trial court arrived at Hernandez's punishment by relying on an arbitrary mathematical formula, rather than a careful and fair consideration of the evidence relevant to punishment. This being the case, the trial court's conduct is not in accordance with the due course of the law because (1) it effectively excludes evidence relevant to punishment; (2) it precludes the court from considering the full range of punishment prescribed by law; and (3) it deprives the defendant of a fair and impartial tribunal at the punishment phase.⁽²⁷⁾

3. Is the Trial Court's Error Waived?

The rights of an accused are separated into three categories with regard to waiver of those rights: (1) absolute requirements and prohibitions which cannot be waived; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request.⁽²⁸⁾ "Rights which are waivable only, as well as absolute systemic requirements and prohibitions, cannot be made subject to rules of procedural default because, by definition, they are not forfeitable."⁽²⁹⁾ Accordingly, if we are to find, as the State suggests we should, that Hernandez waived the trial court's error by failing to object to his punishment at trial, we must first find that Hernandez is complaining of a right that falls into the third category articulated in Marin (i.e., that it is a right which is to be implemented upon request).

In Blue v. State, the court of criminal appeals reversed a conviction based on comments made by the trial court during voir dire even though Blue failed to object at trial.⁽³⁰⁾ Specifically, the court was apologizing to a group of prospective jurors for their long wait and stated, among other things, the following:

[This case] . . . is a situation where the attorney has been speaking to his client about what does he want to do. And when you are on the button like these cases, it's a question. Frankly, an offer has been made by the State or do I go to trial. And he has been back and forth so I finally told him I had enough of that, we are going to trial. You have been sitting out here and this is holding up my docket and I can't get anything done until we know if we are going to trial or not.

Frankly, obviously, I prefer the defendant to plead because it gives us more time to get things done and I'm sure not going to come out here and sit. Sorry, the case went away and we were all trying to work toward that and save you time and cost of time, which you have been sitting here and I apologize about that.⁽³¹⁾

A majority of the court concluded that the trial court's comments constituted reversible error despite Blue's failure to object at trial, although the judges did not agree as to the reason why.

Four of the court's judges concluded that the trial court's statements tainted Blue's presumption of innocence and thus constituted fundamental error that required no objection.⁽³²⁾ Judge Keasler wrote a concurring opinion in which he agreed that Blue did not waive his complaint; he reasoned, however, that these statements showed partiality and thus violated Blue's absolute right to an impartial judge, stating:

Regardless of whether a violation of the presumption of innocence is a violation of an absolute right, it is clear to me that the violation of the right to an impartial judge is an absolute right. The judge's comments in this case violated that right.

. . . .

. . . The trial judge went so far as to say that he would prefer that the defendant plead. Why else would a judge want a defendant to plead unless he had pre-judged the defendant's guilt? While we rarely see such statements as these, there will be a few cases where the judge's statements when viewed objectively are so egregious as to render him biased. This is one of those cases.

No matter what the evidence was against him, Blue had a right to an impartial judge. The right to an impartial judge is so sacred that the United States Supreme Court has declared a violation of this right to be "structural" error. The presence of a biased judge on the bench is a structural defect in the trial mechanism. Although, as the dissent points out, there are some "structural" errors that can be forfeited, I do not think that the right to an impartial judge should be a right that the defendant can forfeit. This right should be included in the very select class of absolute rights.

Furthermore, I believe that our prior cases holding an objection is required to preserve error are distinguishable from this case because the trial judge's comments were "so egregious" as to deem him biased, and because the right violated--the right to an impartial judge--is one of the absolute rights that do not require an objection under Marin. This case is highly unique and litigants should not view this holding as an invitation to appeal without making proper, timely objections.⁽³³⁾

Partly relying on Judge Keasler's concurrence in Blue, five courts of appeals have determined that the right to an impartial judge is an absolute requirement.⁽³⁴⁾ One of these courts, the First Court of Appeals, has observed that the right to an impartial judge articulated in Judge Keasler's concurrence should encompass a criminal appellant's complaint that a trial court refused to consider the full range of punishment.⁽³⁵⁾

We find that a defendant has an absolute right to an impartial judge not only when guilt and innocence are at issue, but also when punishment is at issue. Guided by Judge Keasler's concurrence in Blue and the First Court of Appeals' reasoning in Jaenicke, we further find that a defendant may complain for the first time on appeal about a trial court's refusal (i.e., lack of impartiality) to consider the full range of punishment--so long as the trial judge's conduct is so egregious as to deem the judge biased on the matter of punishment.⁽³⁶⁾ In the instant case, the trial judge's bias and partiality stemmed from her strict adherence to an ill-conceived mathematical formula that was meant to formulate a punishment that satisfied the interests of justice. No mathematical formula, however, can ever intelligently satisfy those interests. Moreover, the trial judge's comments were so egregious that they clearly evidenced the judge's bias on punishment. As previously stated, the judge told Hernandez, "Whatever the highest one [previous sentence] you have, I double. Okay?" The judge did not state that she "might," "may," or "would probably" assess Hernandez's punishment by doubling his highest previous sentence; rather, the judge made her intended plan for assessing punishment unequivocal. Accordingly, we reject the State's contention that Hernandez waived his complained-of error, and sustain Hernandez's third issue on appeal.

IV. Conclusion

The judgment of conviction for robbery is affirmed, but the judgment is reversed and the cause is remanded for a new trial as to punishment.⁽³⁷⁾ Consistent with this opinion, the trial court should reassess an appropriate sentence within the entire punishment range.

LINDA REYNA YAÑEZ,

Justice

Publish. Tex. R. App. P. 47.2(b).

Opinion delivered and filed this

the 28th day of August, 2008.

1. Tex. Penal Code Ann. § 29.02(a)(1) (Vernon 2003).

2. Id. § 12.42(b) (Vernon 2003).

3. See Tex. R. App. P. 43.3.

4. See id. 38.1(e).

5. The State would only be barred from retrying Hernandez if this Court reversed on legal sufficiency grounds.

6. See Tex. R. App. P. 38.1(e).

7. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).

8. Jackson, 443 U.S. at 319.

9. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

10. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

11. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

12. Tex Penal Code Ann. § 29.02(a).

13. Id. § 31.03 (Vernon 2003).

14. Id. § 1.07(a)(8) (Vernon 2003).

15. Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).

16. Id. at 787 (internal quotations omitted).

17. Tex. Penal Code Ann. § 29.02(a)(1).

18. Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon 2005).

19. Ms. Church was Hernandez's defense counsel.

20. Emphasis added.

21. Hernandez's Brief at 8.

22. Hernandez's Brief at 34.

23. Emphasis added.

24. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005).

25. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.-Corpus Christi, pet. dism'd) (citation omitted).

26. Emphasis added.

27. See Fielding v. State, 719 S.W.2d 361, 368 (Tex. App.-Dallas 1986, pet. ref'd) (Guittard, C.J., dissenting).

28. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

29. Id.

30. Blue v. State, 41 S.W.3d 129, 129-30 (Tex. Crim. App. 2000) (plurality op.).

31. Id. at 130.

32. Id. at 132.

33. Id. at 138-39 (Keasler, J., concurring) (citations and footnotes omitted).

34. See Abdygapparova v. State, 243 S.W.3d 191, 209-10 (Tex. App.-San Antonio 2007, pet. ref'd); Gentry v. State, No. 06-05-00237-CR, 2006 Tex. App. LEXIS 2923, at *5 (Tex. App.-Texarkana Apr. 12, 2006, no pet.) (mem. op., not designated for publication); Rodriguez v. State, No. 08-03-00497-CR, 2005 Tex. App. LEXIS 7746, at *11-12 (Tex. App.-El Paso Sept. 22, 2005, no pet.) (not designated for publication); Jaenicke v. State, 109 S.W.3d 793, 796 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd); Brooks v. State, No. 12-00-00118-CR, 2002 Tex. App. LEXIS 2160, at *16-18 (Tex. App.-Tyler Mar. 20, 2002, no pet.) (not designated for publication).

35. See Jaenicke, 109 S.W.3d at 796; but see Brumit v. State, No. 07-03-0462-CR, 2004 Tex. App. LEXIS 10893, at *4-6 (Tex. App.-Amarillo Dec. 2, 2004) (finding that appellant's failure to object at trial waived his right to complain about trial court's refusal to consider the full range of punishment, despite appellant's contention that the trial court's refusal constituted fundamental error), aff'd on other grounds, 206 S.W.3d 639 (Tex. Crim. App. 2006).

36. See Blue, 41 S.W.3d at 139 (Keasler, J., concurring).

37. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon 2006).

A review of the record shows that appellant did not introduce any evidence with respect to his plea.

2008-08-31T03:10:00.000-07:00

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NUMBER 13-07-502-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

HUGO XAVIER DE LOS SANTOS, Appellant,

DONNA JOHNSON, Appellee.

On appeal from County Court at Law No. 2

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela

This is an appeal from a trial court order striking appellant, Hugo Xavier De Los Santos's, pleadings as a sanction for discovery abuse. The judgment awards appellee, Donna Johnson, $4,699.50, plus interest, attorney's fees and conditionally awards appellate attorney's fees. By twelve issues, appellant complains of the trial court's sanctions order as well as the court's orders denying his motion to transfer venue, denying his plea in abatement, and denying his motion for continuance. We affirm.

The Underlying Case

Donna Johnson is a vocational rehabilitation counselor. Appellant is an attorney. Johnson filed a sworn account against appellant in 2005, to recoup fees she claimed she earned by serving as an expert in a medical malpractice case in which appellant was representing John Hess.

The facts regarding Johnson's engagement are hotly disputed. For instance, appellant claims that Johnson solicited employment from him in San Antonio, even though it is undisputed that appellant first called Johnson, a Corpus Christi resident, for her assistance in the underlying medical malpractice action. The crux of appellant's claim is that he does not owe Johnson the money she claims she is owed for services performed. Appellant contends that Johnson agreed to look only to Hess, his client, for payment of her expert fees. Conversely, Johnson denies agreeing to look solely to the client for payment. Johnson also claims she was not told when appellant first called her on October 9, 2003, that he needed her to produce a report within twenty-four hours. Yet, she claims she prepared a report to meet the October 10 deadline, later traveled to San Antonio to meet with Hess, and prepared and forwarded appellant a supplemental report, dated May 17, 2004, along with her bill. Appellant sent additional medical records for her to review and Johnson contends she was asked to prepare for her deposition that was later cancelled. Appellant denied Johnson's claims, urging that she agreed to look to Hess for payment. He later expressed some dissatisfaction with the work she performed on the case. When he failed to pay the bill, Johnson filed suit against appellant for $4,699.50, for personal services she rendered. In response, appellant filed a motion to transfer venue to Bexar County, denied that there was an agreement between Johnson and him, and asserted affirmative defenses of estoppel, accord and satisfaction, laches, unreasonable and unnecessary charges, and limitations.

Discovery Dispute

The case was originally tried on May 3, 2006, and judgment was rendered for Johnson. Thereafter, the trial court granted appellant's motion for new trial. The reasons for granting the new trial are not discussed by either party in their respective briefs. After the new trial was granted, discovery disputes continued. One of the main disputes involved taking Hess's deposition. Another was an attempt to get the redacted engagement agreement between Hess and appellant. Johnson sought this portion of the agreement because appellant was refusing to pay her for her services based on appellant's purported agreement with Hess which required him to pay expenses of litigation. Although ordered to produce the redacted portion of the agreement in camera, he refused. The document, which formed the basis for appellant's decision not to pay Johnson, was never produced either as part of a confidentiality agreement, in an in camera inspection, or otherwise.

After a year or more of disputes over various discovery matters, on March 26, 2007, the trial court held a hearing on Johnson's motion for sanctions. At the hearing, the court asked counsel for appellant if he brought the redacted portion of the engagement agreement to the sanctions hearing. The court swore appellant as a witness and asked him to specify the terms of the agreement. He refused, stating it was privileged. Counsel for appellant also agreed that the document or any portion of it was never produced for in camera inspection, even though production had been ordered. After allowing both sides to fully present their arguments, the trial court entered a lengthy order where it found the following violations, as well as others not discussed here:

1. Appellant had not complied with the trial court's discovery order of February 23, 2007 in several respects.

2. Appellant abused the discovery process by resisting discovery in filing responses, answers and objections that were unreasonably frivolous, including numerous objections raised by appellant in response to requests for production.

3. Appellant de-designated expert witnesses after his objections to requests for production had been overruled. The court found that appellant had designated six new experts, causing delay and needlessly increasing the cost of litigation.

4. Appellant failed to comply with the trial court's order of January 11, 2006, ordering production of specified documents described in an exhibit attached to that order. Appellant did not assert any privilege or tender any documents for in camera inspection.

5. Appellant falsely responded that he had no documents in response to requests for disclosure asking for the agreement between appellant and Hess regarding proceeds which have been escrowed to pay the claim and settlement agreement reached in connection with the Hess malpractice lawsuit.

6. Appellant consistently hindered the discovery process by failing to produce the original bill faxed to him by Johnson which would have shown the date he received it, failing to produce the redacted portion of the engagement letter allegedly obligating Hess for payment of expert witness expenses, failing to respond to direct questions from the Court about the agreement with Hess about the expenses, refused to hand over documents that criticized Johnson's work and refused to allow Hess to testify about any of the above referenced matters.

The court found that the undisclosed documents were relevant in light of appellant's defense that he was not obligated to pay Johnson because the obligation was his client's. The trial court noted that appellant was an experienced attorney who was familiar with the litigation process and understood how discovery abuses can substantially increase the burdens on an adverse party, particularly in a controversy that was less than $5,000. The court also found that it had imposed lesser sanctions and that they had failed. For instance, the order states:

1. In an order dated January 11, 2006, the court ordered appellant to present himself for deposition at his cost.⁽¹⁾

2. In an order dated January 30, 2006, the court denied appellant the right to introduce any documentary evidence that should have been produced in his deposition, but was not.

3. In an order dated January 22, 2007, the court ordered appellant to produce Hess for continuation of his deposition in Corpus Christi at appellant's additional cost, instead of San Antonio. The court also imposed the additional costs of the deposition and video services on appellant.

4. In an order dated February 20, 2007, the court reordered the deposition of Hess, production of the responsive documents and warned appellant that it was withholding further orders or sanctions pending a further hearing.

The court ordered the sanctions pursuant to both the Texas Rules of Civil Procedure and the trial court's inherent power to sanction.

Standard for Sanctions

An appellate court reviews a trial court's ruling on a motion for discovery sanctions for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. See id. at 839. An appellate court reviews the entire record, including the evidence, arguments of counsel, written discovery on file, and the circumstances surrounding the party's discovery abuse. Response Time, Inc. v. Sterling Commerce (N. Am.), Inc., 95 S.W.3d 656, 659 (Tex. App.-Dallas 2002, no pet.).

Discovery sanctions are authorized by Texas Rule of Civil Procedure 215. See Tex. R. Civ. P. 215. If a party fails to comply with an order compelling discovery or abuses the discovery process, a trial court is authorized to strike the party's pleadings or render a judgment by default after notice and a hearing. See Tex. R. Civ. P. 215.2(b)(5), 215.3. Any sanction that adjudicates a claim and precludes the presentation of the merits of the case constitutes a "death penalty" sanction. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 845 (Tex.1992); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991). Discovery sanctions serve three purposes: (1) to secure the parties' compliance with the discovery rules; (2) to deter other litigants from violating the discovery rules; and (3) to punish parties who violate the discovery rules. Response, Inc., 95 S.W.3d at 660. Although the choice is left to the sound discretion of the trial judge, the sanctions imposed must be just. See Tex. R. Civ. P. 215.2; Cire, 134 S.W.3d at 839; Response Time, 95 S.W.3d at 660. In order for a sanction to be just (1) it must have a direct relationship with the offensive conduct, i.e., it must be directed toward remedying the prejudice to the innocent party and (2) it must not be excessive, i.e., the trial court must consider the availability of less stringent sanctions and whether those lesser sanctions would promote full compliance. See Cire, 134 S.W.3d at 839; TransAmerican, 811 S.W.2d at 917; Response Time, 95 S.W.3d at 660.

Discovery sanctions cannot be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of the discovery process justifies a presumption that the party's claims or defenses lack merit. TransAmerican, 811 S.W.2d at 918. However, if a party refuses to produce material evidence, despite the imposition of lesser sanctions, the trial court may presume that an asserted claim or defense lacks merit and dispose of it. Id.

Analysis

By appellant's issues one through four, he argues that the trial court abused its discretion in entering death penalty sanctions because there was no showing of discovery abuse, there was no direct relationship between the conduct and the sanction, the sanction was excessive and unjust, and the court did not consider lesser sanctions.

The trial court's order enumerates numerous and specific incidents of discovery abuse, including violations of the trial court's prior orders and giving false answers to discovery. The relationship between the conduct and the sanction is clear. Appellant claims he did not owe Johnson the money. Rather, he claims that his client was to pay her expenses. Yet, he did not produce the document that would have shown, one way or another, what the agreement entailed. If the document was privileged, appellant should have either properly preserved the privilege or he should have produced the document in a manner to retain the privilege. He did neither. In addition, the sanctions order was directed to appellant's violation of multiple orders. The trial court's order was imposed directly on the offender, not his attorney for this dispute. The trial court did not abuse its discretion in this regard. Similarly, the trial court's sanctions were not excessive.

The trial court's order set forth the instances wherein it had issued lesser sanctions. In Cire, the supreme court discussed that a lesser sanction may be an order charging all or a portion of the expenses of discovery on the disobedient party. Id. at 839. The trial court's order states that it was requiring appellant to pay deposition costs that would not ordinarily have been borne by him. Discovery sanctions cannot be used to adjudicate the merits of a party's claim or defense unless the hindrance justifies a presumption that its claims or defenses lack merit. Id. at 839. Here, the trial court was not rash. It ultimately determined that appellant's conduct was flagrant and callous, but, the trial court did not award death penalty sanctions until many of its orders had been violated in a case that began as a simple sworn account to recover less than $5,000. Again, we find no showing that the trial court abused its discretion. Appellants's issues one through four are overruled.

By appellant's fifth issue, he argues that the trial court erred in compelling the testimony of Hess, his client in the medical malpractice case. The record reflects that appellant entered into a Rule 11 agreement to produce Hess. Regardless, the trial court did not direct any sanctions against Hess, nor did the court grant or deny Hess any relief in the sanctions order. Even if the trial court erred in determining that appellant had the right to control Hess, there were numerous transgressions that supported the trial court's sanctions order against appellant. We overrule issue five.

Appellant's six, seventh, and eighth issues urge that the trial court abused its discretion in ordering Hess to produce documents, in denying appellant's rehearing of Johnson's motion to compel because the documents sought were privileged and in denying his request for an in camera inspection of documents it claims were privileged. From our review of the record it does not appear that appellant ever presented evidence to the trial court or initially tender documents to the trial court so that a determination with regard to privilege could be made. Once appellant made an in camera tender of only a few of the requested documents, it was clear to the trial court that the documents tendered were not privileged. Again, appellant never tendered the engagement letter or the redacted version of the engagement letter to the trial court for a determination of privilege. The record also shows that appellant was allowed an in camera inspection of documents. No abuse of discretion is shown. Appellant's sixth, seventh, and eighth issues are overruled.

By appellant's ninth issue, he complains of the trial court's denial of his motion to transfer venue from Nueces County to Bexar County. Johnson, as the plaintiff, chose to file suit in Nueces County. Generally, venue is the plaintiff's choice. In Re: Continental Airlines, 988 S.W.2d 733 (Tex. 1988). Suit may be brought in any county in which all or a substantial part of the events or omissions giving rise to the claim occurred. Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1) (Vernon 2002). Johnson's affidavit states that except for visiting with Hess in San Antonio, all activities were conducted in Nueces County. Considering the record as a whole, the trial court did not err in denying the motion to transfer venue. See id. § 15.064(b). We overrule issue nine.

In issue ten, appellant argues that the trial court abused its discretion in denying his plea in abatement because his client, Hess, was an indispensable party. A review of the record shows that appellant did not introduce any evidence with respect to his plea. The trial court did not abuse its discretion in denying the plea. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). The plea was also requested at a time when appellant had shown up for the first trial about forty-five minutes after trial was scheduled to began. Issue ten is overruled.

By issue eleven, appellant urges that the trial court erred in making the monetary awards that it did. The amount awarded with respect to the sworn account was amply supported. Likewise, the attorney's fees in this case were awarded as sanctions, which does not require proof of reasonableness or necessity. Brantley v. Etter, 677 S.W.2d 503, 504 (Tex. 1984); see also Condit v. Gonzalez, No. 13-04-426-CV, 2006 WL 2788251, *12 (Tex. App.-Corpus Christi, September 28, 2006, pet. denied) (mem. op.). Regardless, the trial court did not abuse its discretion in the amount of fees it awarded.

In issue twelve, appellant complains that the trial court abused its discretion in granting his motion for continuance. There was no written motion filed of record. An oral motion unsupported by an affidavit will not satisfy the requisites of Texas Rule of Civil Procedure 251. See Tex. R. Civ. P. 251. Generally, when a movant fails to comply with rule 251's requirement that a motion for continuance be supported by affidavit, there is presumption that the court did not abuse its discretion in denying the motion. Villegas v. Carter, 722 S.W.2d 624, 626 (Tex. 1986). Because appellant's motion did not comply with the rules of civil procedure, there was no abuse of discretion.

Conclusion

The judgment of the trial court is affirmed.

ROSE VELA

Justice

Memorandum Opinion delivered and

filed this 28th day of August, 2008.

1. Johnson urges that appellant did not include several pertinent orders and hearings conducted by the trial court. Although we ordinarily presume those in favor of the trial court's order, we believe there is sufficient evidence before this Court, without taking those missing documents and hearings into consideration, to uphold the trial court's sanctions order.

pursuant to the definitions of §§ 37.10(a)(3) and 37.10(a)(5) is very different from advocating a ...............

2008-05-03T04:54:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0351-05

THE STATE OF TEXAS

v.

JAMES VASILAS, Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY

Meyers, J., delivered the opinion of the unanimous Court.

O P I N I O N

We granted the State's petition for discretionary review to decide whether a petition for expunction qualifies as a "governmental record" under section 37.01 of the Texas Penal Code. One definition of a governmental record is "anything belonging to, received by, or kept by government for information, including a court record." Tex. Penal Code Ann. § 37.01(2)(A) (Vernon Supp. 2004-2005). The definition of a court record is "a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court." Tex. Penal Code Ann. § 37.01(1) (Vernon Supp. 2004-2005). We will resolve whether pleadings filed with but not issued by a court fall within the definition of a governmental record pursuant to § 37.01(2)(A).

Facts

Appellee, James Vasilas, is an attorney whose client was charged with the state jail felony of delivery of marijuana. Appellee's client was convicted of the lesser-included offense of possession of marijuana. Thereafter, Appellee signed and filed a petition of expunction of the records relating to his client's arrest on the delivery charge. The State then charged Appellee in a four-count indictment of tampering with a governmental record pursuant to Tex. Penal Code § 37.10, alleging that he made three false entries in the petition for expunction. Appellee filed a nonsuit of the expunction lawsuit.

Subsequently, Appellee filed a motion to quash the indictment on two grounds. First, he asserted that § 37.10 of the Texas Penal Code and Texas Rule of Civil Procedure 13 (1) were in pari materia, with Rule 13 controlling over § 37.10. Second, he claimed that pleadings in civil suits were not governmental records under the definition of § 37.01(2)(A). After hearing oral argument, the trial court granted the motion to quash without filing findings of fact or conclusions of law. The State timely filed its notice of appeal.

Because the State did not appeal the trial court's granting of the motion to quash the first three counts of the indictment, the sole issue before the court of appeals was whether the trial court erred in granting the motion to quash Count IV, which alleged that Appellee did "with intent to defraud and harm another, namely, the State of Texas, make, present, and use a governmental record, to wit: a Petition for Expunction of Records, with knowledge of its falsity." (2) The court of appeals affirmed the trial court, holding that "the petition for expunction filed by appellee was not a governmental record within the meaning of chapter 37 of the penal code." State v. Vasilas, 153 S.W.3d 725, at *5 (Tex. App.-Dallas 2005, pet. granted). The court of appeals reasoned that by including a court record in the definition of a governmental record, the legislature meant to exclude every type of court document that was not a court record. Since the definition of a court record under the Texas Penal Code is a document issued by a court, the court of appeals concluded that a pleading, such as a petition for expunction, which is created by a party or attorney and merely filed with a court, cannot be a governmental record. Having resolved this issue against the State, the court of appeals did not address whether Tex. Penal Code § 37.10 and Rule 13 were in pari materia.

Issue Presented

The State argues that "under the plain language of the statutory definition of 'governmental record,' which encompasses anything received by a court for information, a petition for expunction can be a governmental record even though it is filed with, not issued by, a court." The State asserts that the court of appeals' interpretation of the definition of a governmental record violates section 311.005(13) of the Texas Government Code, commonly referred to as the Code Construction Act, which defines "including" as a term of enlargement and not of limitation. Furthermore, the State submits that the court of appeals should not have looked beyond the plain language of the statute to its legislative history in discerning the meaning of a governmental record, and that it erred by misinterpreting the legislature's intent in amending the definition of governmental record in 1997 to include a court record. (3) While Appellee concedes that the word "including" is not itself a term of limitation, he argues that a petition for expunction does not qualify as a governmental record because: 1) the words "for information" in § 37.01(2)(A) exclude documents that seek to destroy information; 2) the legislature did not explicitly include pleadings within the definition of a governmental record; and 3) the petition for expunction was not a governmental record when the false entries were made. Although Appellee also advances the argument that § 37.10 and Rule 13 of the Texas Rules of Civil Procedure are in pari materia, the court of appeals did not reach this issue, and it is not the issue for which we granted review. We will reverse the court of appeals' decision.

Analysis

The resolution of this case depends on the meaning of the word "including" in the definition of "governmental record" in § 37.01(2)(A). The construction to be given a statute is a question of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). In our leading statutory interpretation case, Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991), we explained that courts must begin with the plain language of a statute in order to discern its meaning. This is because the court's interpretation of statutes must "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Id. at 785 (citing Camacho v. State, 765 S.W.2d 431 (Tex. Crim. App. 1989)). In Boykin, we established that if the literal text of the statute was clear and unambiguous, we would ordinarily give effect to that plain meaning. 818 S.W.2d at 785 (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). However, we also held:

If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.

Id. at 785-86. The seminal rule of statutory construction is to presume that the legislature meant what it said. Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim. App. 2005). In adhering to this rule, we show our respect for the legislature and recognize that if it enacted into law something different from what it intended, it would amend the statute to conform to its intent. Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (citing Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004) ("It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result.")).

The legislature has provided the Code Construction Act to assist in statutory interpretation. It instructs that "words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Tex. Gov't. Code Ann. § 311.011(b) (Vernon 2005). In § 311.005(13) of the Code Construction Act, the legislature expressly stated its intent regarding its use of the word "including" in statutory provisions, providing: "'Includes' and 'including' are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded." Tex. Gov't. Code Ann. § 311.005(13) (Vernon 2005). This Court relied on § 311.005(13) in interpreting the statutory meaning of "including" in Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992) (plurality opinion), superseded by statute, Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994). Pursuant to § 311.005(13), we established that the list following "including" in Article 37.07(3)(a) of the Texas Code of Criminal Procedure (4) was not exclusive as to the evidence admissible at the sentencing phase of trial, as long as it was relevant to sentencing. Grunsfeld, 843 S.W.2d at 525 (explaining that the legislature's use of the term "including" in amending Article 37.07(3)(a) rendered the list following it nonexclusive); see also Beasley v. State, 902 S.W.2d at 456-57 (holding that evidence concerning the activities of a gang, to which the appellant belonged, was admissible under Article 37.07(3)(a) because matters relevant to sentencing were not limited to "the prior criminal record of the defendant, his general reputation and his character"). (5)

The lower courts have also interpreted the legislature's use of the word "including" as a means of illustration and not exclusion. For instance, in Leach v. State, the court of appeals applied § 311.005(13) to the defendant's community supervision condition, which tracked statutory language in the Texas Code of Criminal Procedure, and held that the word "including" did not "creat[e] a presumption against further inclusion of terms not expressly stated." 170 S.W.3d 669, 673 (Tex. App.-Fort Worth 2005, pet. ref'd) (holding that because "including" was a term of enlargement, the defendant had violated his community supervision by going within 1000 feet of a grassy area where children played, even though this location was not specified in the list of prohibited premises). Similarly, in Wilburn v. State, the court of appeals relied on § 311.005(13) to reject the appellant's argument that, by specifically including franchise taxes in the Franchise Tax Act, the legislature had intended to exclude directors' and officers' liability for all other taxes. 824 S.W.2d 755 (Tex. App.-Austin 1992, no pet.). In H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., this same court of appeals reasoned that the Railroad Commission of Texas's use of the word "including" in a notice provision did not create an exclusive list of interests entitled to notice. 36 S.W.3d 597 (Tex. App.-Austin 2000, pet. denied). In fact, citing § 311.005(13), the court of appeals stated that "the Commission's use of the word 'include' in the provision signified that the list is not exclusive." Id. at 603 (emphasis added).

Both this Court and the lower courts of appeals have construed "including" as a term of enlargement in accordance with the legislature's intention. By employing the word "including" to illustrate an example of a governmental record, the legislature did not by its plain language intend to exclude documents that were filed with the court from the definition of § 37.01(2)(A). In spite of the fact that the word "including" is unambiguous and the legislature has assigned it a particular meaning of enlargement, Appellee argues that the definition of a governmental record still excludes the petition for expunction at issue.

First, Appellee claims that the legislature would have included pleadings in the express language of § 37.01(2)(A), if it had intended them to be governmental records. We have already explained that the legislature's decision to name a court record as an example of a governmental record does not narrow what qualifies as a governmental record. Furthermore, we agree with the State that "it is difficult to see how the legislature would have to make any additions to the definition of governmental record for the current word 'anything' to include a pleading." (6) Second, Appellee contends that the phrase "for information" in the definition of governmental record operates to exclude the petition for expunction because it seeks to destroy other governmental records. Just because the filing of a petition for expunction may result in the destruction of certain records does not take away from the fact that the petition gives the government information about which records the petitioner wants to expunge. Third, Appellee contends that the petition for expunction is not a governmental record because it had not been received by the government when the false entries were made. See Pokladnik v. State, 876 S.W.2d 525 (Tex. App.-Dallas 1994, no pet.); Constructors Unlimited v. State, 717 S.W.2d 169 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). Appellee's argument is misplaced because he relies on cases in which defendants were charged under § 37.10(a)(1), which requires knowingly making a false entry in, or false alteration of, a governmental record, and not under § 37.10(a)(5), which requires making, presenting, or using a governmental record with knowledge of its falsity. Although the petition for expunction was not a governmental record when Appellee prepared it, it became a governmental record once the court received it and he used it in seeking to obtain the expunction of records. See Morales v. State, 11 S.W.3d 460 (Tex. App.-El Paso 2000, pet. ref'd) (holding that even if a petition containing signatures for placement on the ballot was not a governmental record when it was falsified, it became a governmental record after it was accepted by the party chairperson and the candidate relied on it to maintain his position on the ballot). We conclude that the legislature's definition of a governmental record is clear and unambiguous and may include a court record, such as the petition for expunction at issue.

Having established that the clear and unambiguous language of § 37.01(2)(A) does not exclude pleadings, such as a petition for expunction, from the definition of a governmental record, it is necessary to determine whether bringing the petition for expunction within the language of the statute would lead to an "absurd result that the legislature could not possibly have intended." Getts, 155 S.W.3d at 155 (citing Boykin, 818 S.W.2d at 785-86). Relying on § 311.021(5) of the Code Construction Act for the proposition that in enacting a statute, there is a presumption that public interest is favored over any private interest, Appellee describes the allegedly falsified petition for expunction as a mistaken pleading, the prosecution of which "would have a chilling effect upon our system of jurisprudence." He characterizes the result of including pleadings in the definition of a governmental record as: "the State's orwellian [sic] persecution of lawyers by attempting to deprive counselors licensed by the Supreme Court of Texas of their ability to earn a living practicing before our courts." Clearly, Appellee misses the point of § 37.10, which does not effectively disbar attorneys, but makes them criminally liable if they tamper with a governmental record. While § 37.10(a)(5) makes it an offense to make, present, or use a governmental record with knowledge of its falsity, § 37.10(a)(3) makes it an offense to intentionally destroy, conceal, remove, or impair a governmental record, which is effectively what the falsified petition for expunction was attempting to do. There is nothing absurd about the legislature seeking to prohibit these acts with respect to a petition for expunction or other pleadings, and these prohibitions do not preclude effective lawyering, as Appellee suggests, by forbidding attorneys from entering alternative pleadings. Tampering with a governmental record pursuant to the definitions of §§ 37.10(a)(3) and 37.10(a)(5) is very different from advocating a client's interests by advancing different legal theories which have bases in the facts and the law.

Furthermore, we have not often considered the issue of what constitutes a governmental record, but our caselaw indicates that there is nothing unique about a petition for expunction such that the legislature would seek to treat it differently from all the other records that would fall within its scope. For instance, applications for government benefits, such as the one in State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999), clearly qualify as governmental records. It is not at all absurd for the legislature to include pleadings within the meaning of a governmental record pursuant to § 37.10(a)(5). The legislature obviously meant to protect the people of the State by making it a crime to tamper with governmental records. By enacting § 37.10, the legislature intended to prevent a multitude of harms, including the destruction of governmental records, the perpetration of a fraud upon the court, and the miscarriage of justice that could result from the use of falsified records. There is nothing absurd about the legislature criminalizing such conduct.

Conclusion

Because the legislature's definition of a governmental record is clear and unambiguous, and including pleadings in this definition does not lead to an absurd result, it is unnecessary to examine the legislature's intent in amending the definition of a governmental record in 1997. The court of appeals erred in undertaking such an analysis. We reverse the decision of the court of appeals and remand the case for consideration of the second ground for review.

Meyers, J.

Delivered: March 22, 2006

Publish

1. Rule 13 of the Texas Rules of Civil Procedure is entitled "Effect of Signing of Pleadings, Motions and Other Papers; Sanctions."

2. Section 37.10(a)(5) provides that a person commits the offense of tampering with a governmental record if he "makes, presents, or uses a governmental record with knowledge of its falsity." Tex. Penal Code Ann. § 37.10(a)(5) (Vernon Supp. 2004-2005). Pursuant to § 37.10(c)(1), this offense is "a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony." Tex. Penal Code Ann. § 37.10(c)(1) (Vernon Supp. 2004-2005).

3. In 1997, the legislature amended § 37.01 by adding the phrase "including a court record" to the definition of "governmental record" in what had previously been § 37.01(1)(A). The legislature moved the definition of governmental record from subsection (1) to subsection (2) and added a definition of a "court record" in § 37.01(1). See Tex. Penal Code Ann. § 37.01 (Vernon Supp. 1998).

4. At the time we decided
Grunsfield, Article 37.07(3)(a) provided that "regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character." Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1991) (emphasis added). Subsequent to our decision in Grunsfeld, the legislature amended the language of § 37.07(3)(a) to clarify that evidence of unadjudicated extraneous offenses and prior bad acts were admissible at punishment. See Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994); Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App. 1995) (plurality opinion) (McCormick, P.J., concurring).

5. Although we decided
Beasley in 1995, we relied on the earlier version of Article 37.07(3)(a), which we interpreted in Grunsfeld and which was in effect when the appellant had committed his offense.

6. The State first advanced this argument in its brief to the Fifth Court of Appeals.

* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint .........

2008-04-03T04:20:00.000-07:00

Thursday, April 3, 2008

* Preservation of error is an inter-court systemic requirement, it is not an intra-court requirement. Both trial and appellate courts have the authority to exercise discretion and consider claims and arguments that were not timely made in that particular court as long as they are made while the parties are still in that particular court and the court otherwise has jurisdiction to hear them. State v Herndon (February 28, 2007, PD-1954-03)

* A trial judge may, but need not, grant a motion for new trial on the basis of unpreserved trial error if that error is sufficiently serious that it has affected the defendant's substantial rights. State v Herndon (February 28, 2007, PD-1954-03)

* Nothing in the Rules of Appellate Procedure or any Texas statute requires, as a predicate to the trial court's authority to exercise its discretion to grant a motion for new trial, a defendant to have preserved the error during trial that he asserts in his post-trial motion for new trial. State v Herndon (February 28, 2007, PD-1954-03)

* Def failed to take steps required to preserve error where his motion for mistrial following admission of evid in violation of motion in limine was too late. In instant case, grounds for def's motion for mistrial first became apparent during testimony of witness, yet def failed to move for a mistrial until after both that witness and following witness had concluded their testimony. Griggs v State (January 31, 2007, PD-0727-05)

* Errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court. Sanchez v State (December 13, 2006, PD-1754-05)

* Def's motion for new trial was sufficient under Rule 33.1 to preserve for review his "unconstitutionally vague as applied" challenge to sec. 42.07(a)(4) PC. Def filed pretrial motion to quash information, citing due process and due course of law clauses of US and Texas constitutions and arguing that terms of the statute were unconstitutionally vague; at start of trial, before any evidence had been adduced, def urged his motion to quash and argued that "the vagueness" of the statute was "readily apparent"; during guilt stage (once during c/w's testimony and once after both sides had rested) def objected again that the language of the statute was "unconstitutionally vague." Each time def objected, the trial court overruled his objection. Def filed a timely motion for new trial and presented it to the trial court for a ruling. In his motion, def, again citing the due process and due course of law clauses of US and Texas constitutions, argued the statute was "unconstitutional as applied to him in his case." Although def did not use the word "vague" or "vagueness" in his motion for new trial, he did argue that "[n]ow that the evidence has been adduced," the trial court could "more readily discern the unconstitutionality of the statute" as it had been applied against him. Motion for new trial was later overruled by operation of law. Motion for new trial was adequately specific on the vagueness-as-applied claim: Although the word "vague" or "vagueness" appeared nowhere in the motion, any reasonable trial judge probably would have understood the motion, in context, to be asserting an "unconstitutionally vague as applied" challenge to the statute, since def's consistent complaint throughout trial had been that the statute was too vague to be enforceable. On the other hand, no reasonable trial judge would have understood the motion for new trial, even in context, to be asserting an "unconstitutionally overbroad as applied" challenge to the statute. Neither the word "overbroad" nor the word "overbreadth" appeared in the motion for new trial, and at no point during the trial did def make an overbreadth challenge to the statute. The motion for new trial was timely within the meaning of Rule 33.1: (1) It provided trial court with opportunity to take corrective action - granting the motion for new trial - without burdening the parties and the judicial system with a costly appeal and retrial. (2) It gave the state a fair opportunity to respond. Although def could have filed a motion to dismiss after the close of all the evidence, his delay until the motion for new trial did not prejudice the state in any way. (3) Def's delay until his motion for new trial did not impair the orderly and effective presentation of the case to the jury. Cause remand to court of appeals so that it may reconsider def's point of error. Gillenwaters v State (September 27, 2006, PD-1443-05)

* Actions and statements of trial judge unquestionably indicated judge overruled def's motion to suppress, and issue was preserved for review, where record showed that at end of hearing on def's motion to suppress trial judge stated, "I would assume that I can probably review the tape this afternoon. But I may wait till tomorrow to have it - - to have the opportunity to read whatever the State's brief before I - - where I can see where both of you are coming from and then view the tape, and I'll rule." The last line on trial court's docket sheet stated, "appeal preserved as to issues presented." Def's amended notice of appeal stated, "This is notice of the defendant's right to appeal to the court of appeals from the judgment or other appealable order in this case." Included on the document containing def's amended notice was trial judge's certification of def's right to appeal. Trial judge certified that def's appeal "is in a plea-bargain case, and is on matters that were raised by written motion filed and ruled on before trial." Montanez v State (April 26, 2006, PD-0894-04)

* Timely objection requirement did not prevent def from raising complaint on appeal (that conditions of probation imposing two consecutive 180-day periods of confinement in jail violated requirement under 3.03(a) PC that sentences be served concurrently), where grounds for complaint were not apparent at time trial judge announced sentence and conditions of probation in open court, and grounds for complaint were first apparent on the next day, when def signed "Conditions of Community Supervision" in each case. There was no reporter's record of this proceeding; it was not noted on the court's docket sheets; the record did not show whether either the state or def was represented by counsel; no counsel signed the conditions; the trial judge did not participate (the conditions were signed by another judge "for" the trial judge); and def and a "court liaison officer" also signed the conditions. Appeals court concluded the document was signed in def's meeting with a community supervision officer, rather than during a hearing before the trial judge. Thus, def had no meaningful opportunity to object to these specific conditions of his probations. Therefore def did not "waive," or fail to preserve, his complaint for appellate review. Kesaria v State (April 5, 2006, PD-1802-04)

* Where def claimed juror was asleep during trial, court of appeals erred in concluding nothing was preserved for review on the ground that counsel's statement in the trial record that a juror was sleeping was no evid of the matter; counsel's trial record statement was some evid; cause remanded for further proceedings. Thieleman v State (December 14, 2005, No. PD-1743-04)

* A trial counsel's undisputed statements may be accepted as both true and sufficient to preserve an issue for appellate review. Such a statement, when made in open court without being contradicted or disputed by either opposing counsel or the trial court, provides some evidence of the fact of occurrence that is being asserted. At the very least, the assertion alerts the trial court that there may be a controversy over whether such an event occurred. The assertion does not, however, conclusively prove that the event occurred. The weight of the assertion is increased if the assertion about the alleged event is made contemporaneously to the event, thus giving opposing counsel and the trial court the opportunity to observe the event. If the asserted event is not the focus of attention at the time it occurs, it is all the more incumbent upon the objecting party to make a contemporaneous objection. The weight of the contemporaneous assertion may similarly increase if a description of a non-oral event is entered into the record without objection. If the circumstances warrant, the assertion may be supported by a bystander's bill. An uncontroverted assertion by counsel about an event, particularly a non-contemporaneous assertion, may be taken as true only if: (1) the event could not have happened without being noticed; and (2) the assertion is of the sort that would provoke a denial by opposing counsel if it were not true. If these two conditions are met, the opposing party may be held to have adoptively admitted the assertion, and the assertion will be accepted as both true and sufficient to preserve an issue for appellate review. Thieleman v State (December 14, 2005, No. PD-1743-04)

* Ordinarily, after court of criminal appeals concludes that the court of appeals erred in holding that a defendant did not preserve his complaint for appellate review, it would remand to that court to determine whether the trial court abused its discretion. In instant case, because the court of appeals had already performed a thorough review of the substance of the def's motion for continuance, court of criminal appeals did not remand, but instead addressed def's complaint that the court of appeals' opinion did not accurately reflect the record. Harrison v State (December 14, 2005, No. PD-1511-04)

* Although the Rule of Evidence 103(a) makes clear that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling, that is not always suff. Appellate Rule 33.1 provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." So it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Reyna v State (June 29, 2005, No. PD-0255-04)

* It was error for court of appeals to reverse conviction and order case dismissed, on theory of prosecutorial vindictiveness that was never pleaded, proved, or ruled upon in trial court. Def's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, def never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The state was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness. Neal v State (November 17, 2004, No. 1559-03)

* Waiver requires "an intentional relinquishment or abandonment of a known right or privilege" by actual renunciation or intentional conduct inconsistent with claiming that known right. Wappler v State (June 30, 2004, No. 772-03)

* The concept of "systemic requirement" has to do with preservation of error, while the concept of "structural error" has to do with harmfulness of error. A "structural error" is not subject to a harmless-error test. Mendez v State (June 30, 2004, No. 817-01)

* A "systemic requirement" (also known as an "absolute requirement or prohibition") is a law that a trial court has a duty to follow even if the parties wish otherwise. Any party that is entitled to appeal may complain on appeal that such a requirement was violated, even if the party failed to complain about the failure or waived the application of the law. A party may be estopped from complaining about an error that it invited, however. Mendez v State (June 30, 2004, No. 817-01)

* The general requirement for preservation of complaints for appeal is Rule of Appellate Procedure 33.1(a). It could be summarized as requiring a timely, specific objection and a ruling by the trial court. Rule 33.1(a) was meant to reaffirm the basic principles of adversary litigation, not to amend or repeal them. It applies only to actions of the trial court concerning which a party forfeits the benefit of a right belonging to him if he does not complain about it at trial. The rule does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal. That is, there are two types of complaints to which Rule 33.1(a) does not apply. Mendez v State (June 30, 2004, No. 817-01)

* Court of criminal appeals listed several ways that statement in Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Cr. App. 1999), about Rule 33.1(a) ["Except for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1."] was incorrect: (1) It omitted one of the types of complaints to which the rule does not apply: complaints about rights that are waivable only. (2) It incorrectly described complaints about systemic requirements as "complaints involving fundamental constitutional systemic requirements." Systemic requirements are not necessarily constitutional. Ibarra used the word "fundamental" to describe the systemic requirements, which could be misleading. "Fundamental" has been used to identify complaints that may be raised for the first time on appeal. Questions of "fundamental error" now are considered in the framework of Marin v. State, 851 S.W.2d 275 (Tex. Cr. App. 1993). (3) It was a mistake in Ibarra to say that noncompliance with Rule 33.1(a) results in complaints being "waived." Marin carefully distinguished waiver, which requires the intentional relinquishment or abandonment of a known right or privilege, from the forfeiture that is the consequence of not complying with Rule 33.1(a). A statement that is correct, and perhaps less susceptible of being misread, would be, "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez v State (June 30, 2004, No. 817-01)

* A law that puts a duty on the trial court to act sua sponte creates a right that is waivable only. It cannot be a law that is forfeitable by a party's inaction. Mendez v State (June 30, 2004, No. 817-01)

* A defendant may preserve error for appeal by moving for a mistrial without first making an objection and requesting an instruction to disregard, and in such case it is error to overrule such a motion for mistrial when an instruction to disregard could not have cured the harm of the objectionable event. Because the objection, the request for an instruction to the jury, and the motion for mistrial seek judicial remedies of decreasing desirability for events of decreasing frequency, the traditional and preferred procedure for a party to voice its complaint has been to seek them in sequence - that is, (1) to object when it is possible, (2) to request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not sufficient. However, this sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses. In most instances, an objection will prevent the occurrence of the prejudicial event, and the failure to make a timely, specific objection prevents appellate review. If an objectionable event occurs before a party could reasonably have foreseen it, the omission of objection will not prevent appellate review, because it is not possible to make a timely objection to an unforeseeable occurrence, and an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Similarly, the request for an instruction to disregard an objectionable occurrence is essential only when the such an instruction could have had the desired effect, which is to enable the continuation of the trial by a impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been "cured" by such an instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Faced with incurable harm, a defendant is entitled to a mistrial and if denied one, will prevail on appeal. Accordingly, when a party's first action is to move for mistrial, the scope of appellate review is limited to the question whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been prevented by timely objection or cured by instruction to the jury will not lead to reversal on an appeal by the party who did not request these lesser remedies in the trial court. Limited as this scope of appellate review may be, such an appellate review is available to such a party. Young v State (June 9, 2004, No. 904-02)

* Court of Appeals erred in addressing the merits of def's claim regarding one of his challenges for cause, where def stood mute in the face of the court stating erroneous facts as the basis for the denial and requesting correction if necessary before denying def's request for an additional peremptory strike. Although court of appeals was correct that def fulfilled the steps for preservation of error regarding denial of a challenge for cause, in limiting its preservation analysis to the those procedures it ignored a fundamental principle of error preservation: that the trial court must be made aware of a complaint at a time and in a manner so that it can be corrected. The trial court's ruling was based not on the record but on the judge's erroneous recollection, which was stated on the record explicitly for the parties to correct, if necessary. Defense counsel said nothing to cast doubt on the trial court's recollection of events. The trial court had no obligation to grant def's request for additional peremptory strikes unless def first showed his challenge for cause should have been granted. Loredo v State (April 7, 2004, No. 1075-03)

* When a trial judge is aware that def has a problem understanding the English language, def's right to have an interpreter translate the trial proceedings into a language which the defendant understands is a category-two Marin right [Marin v S, 851 S.W.2d 275 (Tex. Crim. App. 1993)]. In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by def. The judge may become aware of def's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte. Garcia v State (March 24, 2004, No. 0489-03)

* On claim by def that was error for trial court to rule that simply asking witness a question for impeachment purposes would render entire videotaped interview of extraneous offenses admissible under rule 107, no merit to state's contention that def failed to preserve error for review because he never actually called witness to testify and tape was never played for jury. Requirements of rule 33.1 were satisfied; court distinguised cases relied on by state, which held that def must actually testify in order to preserve error on ruling allowing state to impeach def with prior convs. Sauceda v State (March 10, 2004, No. 0612-02)

* Where hearing on the motion to suppress and the jury trial were conducted in a unitary proceeding, def preserved error by re-urging his motion to suppress at the introduction of the physical evidence seized. Cause remanded to court of appeals to address merits of admissibility of evid. Garza v State (January 28, 2004, No. 1691-02)

* Def preserved complaint on admission of evid where def filed motion to suppress and trial judge told def that he would hear the evidence as it was presented before the jury, commenting that, "[i]f I grant your motion, [the jury is] not going to have any evidence, so they would be subject to an instructed verdict ... and if I deny your motion [to suppress], it doesn't make any difference, the jury gets to hear it all anyway." The judge further stated, "any other ruling that either side wishes to make, then you will be instructed to approach the bench outside the presence of the jury and then we'll make a determination as to that." Though the general rule would require def to object and obtain a ruling at the earliest opportunity, the specific pre-trial comments made by the judge in this case essentially directed def to wait until all the evidence was presented before he obtained any ruling from the judge. From these comments, it is clear that any additional attempt by def to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told def that he would not rule on the motion until the jury had heard the evidence. Def was reasonable to interpret those comments as an instruction to seek a ruling at the conclusion of the state's presentation of evidence, and not sooner. Cause remanded to court of appeals to address merits of issue. Garza v State (January 28, 2004, No. 1691-02)

* Def was estopped on appeal from complaining of trial court denying mistrial, and trial court instead excusing juror, after was learned during trial that juror knew person who was father of victim in extraneous offense and who might testify, where at trial def made alternative requests for mistrial and for excusal of juror. Def could not complain where trial court granted one of options requested by def. Jones v State (November 5, 2003, No. 74,060)

* Rule 33 governs the preservation of appellate complaints. To preserve error for appellate review under Rule 33.1(a) the record must show (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial judge either ruled on the request, objection, or motion (expressly or implicitly), or he refused to rule and the complaining party objected to that refusal. Geuder v State (September 10, 2003, No. 1005-02)

* Court of criminal appeals has authority to consider and address threshold issues, that is, issues which were not directly raised by the parties but which must be considered and decided in the course of reviewing the grounds presented. Once an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court's discretion and any valid restrictive statute. Such discretionary consideration of threshold issues is especially appropriate when the issue implicates the authority of the trial court to act. Castaneda v State (July 2, 2003, No. 2012-01 through 2016-01)

* No harm shown on claim was error to refuse to rule on def's formal bill of exception under rule 33.2, where much of info included in her formal bill of exception was already in record on appeal, and remaining info did not relate to her claims on appeal. Routier v State (May 21, 2003, No. 72,795)

* It was error for court of appeals to rule that def had preserved error by proper objection to gang-related evid, where counsel did not object to all the gang-related evid, failed to request a running objection, and failed to request a hearing outside presence of jury on admissibility of gang-related evid. Martinez v State (February 12, 2003, No. 0185-02)

* It was error for court of appeals to reverse conviction on a theory not presented at trial or on appeal. At trial and on appeal def claimed that trial court erred in denying him an article 38.23 instruction regarding whether def had failed to maintain a single lane of traffic, but court of appeals held that def was entitled to an article 38.23 jury instruction concerning whether a police officer could stop def outside of his geographical jurisdiction and reversed and remanded the case to the trial court. Gerron v State (February 5, 2003, No. 1963-01)

* No merit to contention that state's tactics for introducing document prejudiced def by requiring def to repeatedly object in front of jury, where record did not support def's assertions. Canales v State (January 15, 2003, No. 73,988)

* Nothing presented for review on claim was error to overrule objection to permitting prosecutor to read letter to jury with prejudicial inflection, where def made objection before letter was read, trial court ruled state could read letter and def could object to manner of reading letter during reading of letter, and def made no objection during reading of letter. Canales v State (January 15, 2003, No. 73,988)

* Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are "judge-protecting" rules of error preservation. The basic principle of both rules is that of "party responsibility." Thus, the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question. And so it is that appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised. This "raise it or waive it" forfeiture rule applies equally to the state and defendant. Martinez v State (December 11, 2002, No. 344-02)

* No merit to state's contention that under rule 33.1 def failed to preserve error because he did not obtain a ruling on his objection to trial court granting challenge for cause. An objection after a challenge for cause is sustained is by itself sufficient to preserve error. So long as the objection is made immediately after the challenge is granted, the discharge of the prospective juror from service is tantamount to an adverse ruling on the objection. Ortiz v State (September 25, 2002, No. 73,692)

* Where def's motion to suppress asserted that traffic stop and search were done without a warrant, under 28.01 sec. 1(6) the motion to suppress was itself an allegation of a Fourth Amendment violation, so was error for court of appeals to rule that failure to allege absence of warrant in def's affidavit submitted to trial court in support of motion authorized trial court to deny motion; court of appeals should have considered both the motion to suppress and the affidavits in addressing def's complaint about the trial court's ruling on that motion. Bishop v State (September 25, 2002, No. 1887-01)

* It was error for court of appeals to reverse trial court's decision on a theory not presented to the trial court and upon which the trial court had no opportunity to rule. This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 2002, No. 1437-01)

* State's confession of error in U.S. Supreme Court was contrary to state's procedural law for presenting a claim on appeal, as well as U.S. Supreme Court's enforcement of such procedural law when it is presented with equal-protection claims. After independent examination of the claim, court of criminal appeals held that no complaint was presented for appellate review because def did not make a trial objection to testimony on future dangerousness issue at punishment stage in capital case, that there is a correlation between ethnicity and recidivism. Saldano v State (March 13, 2002, No. 72,556)

* Rule 33.1 provides in part that "as a prerequisite to presenting a complaint for appellate review," a timely request, objection or motion must be made and ruled upon by the trial court. This rule ensures that trial courts are provided an opportunity to correct their own mistakes at the most convenient and appropriate time - when the mistakes are alleged to have been made. Hull v State (January 30, 2002, No. 1812-00)

* Def waived complaint regarding trial court's "zero tolerance" probation where he raised his complaint for the first time on appeal. Fact that "zero tolerance" was not a listed condition in trial judge's probation order did not result in situation where there was nothing to object to at the time of sentencing. Fact that written probation conditions stated that a violation "may result" in revocation, did not entitle def to rely upon that representation rather than the court's stated "zero tolerance" policy. Def was not without grounds on which to move to recuse the judge until after the judge actually applied the zero tolerance policy and revoked appellant's probation. Record showed that def understood the "zero tolerance" policy and was not confused by the court's admonishment in light of the written conditions, and that def understood the "zero tolerance" policy to be overriding and controlling. At the very least def could have objected to a discrepancy between the written conditions and the court's stated policy. Hull v State (January 30, 2002, No. 1812-00)

* Appeals court accepts as true factual assertions made by counsel at trial which could have been, but were not, disputed by opposing counsel. Hayden v State (November 14, 2001, No. 610-00)

* No merit to state's contention that def did not preserve error because his written motion to suppress did not attempt to suppress expert's testimony, but only attempted to suppress the results of the breath test, where at the suppression hearing def argued for the suppression of expert's testimony on the grounds that it was not reliable, and trial court denied the motion to suppress after hearing def's argument. Def timely informed the trial court of his grounds with sufficient specificity and, therefore, he preserved error. Mata v State (June 6, 2001, No. 133-00)

* One of the obvious linguistic differences between Rule 33.1(a) and prior Rule 52(a) is that Rule 33.1(a) allows for a ruling by the trial court "either expressly or impliedly" while Rule 52(a) simply required that the party obtain "a ruling." Gutierrez v State (January 31, 2001, No. 693-00)

* While the general rule is that counsel must object to the trial judge's comments during trial in order to preserve error (TRAP 33.1), pursuant to Texas Rule of Evidence 103(d), appeals court is authorized to "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Some rights are widely considered so fundamental to the proper functioning of adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly. Blue v State (December 13, 2000, No. 1254-99)

* Comments* of trial judge in instant case could not be viewed as fair and impartial. While the judge himself might have been able to maintain impartiality in presiding over the trial, despite his apparent hostility toward the defendant for causing delay, his comments "vitiated the presumption of innocence" before the venire, adversely affecting his right to a fair trial. The comments of the trial judge, which tainted def's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection. Def's failure to object to the trial judge's comments did not waive error. Blue v State (December 13, 2000, No. 1254-99)

* Helms Rule (that a knowing and voluntary guilty plea waives all nonjurisdictional errors "that occurred prior to the entry of the guilty plea.") did not apply to def's challenge to constitutionality of sex registration law imposed as condition of probation. Regardless of when the trial court ruled that there would be a condition that required def to register as a sex offender, the plea of guilty did not "waive" the issue. If the ruling was made before the plea, it was not waived under the Helms Rule because of recent decision in Young v. State, 8 S.W.3d 656 (Tex. Cr. App. 2000), that Helms Rule no longer applies, and a valid plea of guilty or nolo contendere does not "waive" or forfeit the right to appeal a claim of error, when the judgment of guilt is not rendered independent of, and is supported by, the error. If the trial court's ruling was made after the plea of guilty, when the condition of probation was imposed, the Helms Rule never came into play, and the plea of guilty that was entered before the ruling did not "waive" this issue. Cause remanded for consideration of def's points of error. Brasfield v State, 18 S.W.3d 232 (May 24, 2000)

* Def did not preserve for appeal, claim that his mother lacked authority to consent to search of def's room, where the focus of def's motion to suppress and the pretrial hearing was on whether consent actually occurred, not on whether someone had the authority to consent. From the record, court could not conclude that the trial court was made aware that def was contesting his mother's authority to consent to a search. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

* Nothing preserved for review on claim of exclusion of evid, where trial court never ruled on the admissibility of X's testimony. Although def objected to the trial court's refusal to rule at the time it was first offered, after the state rested the trial court gave def the opportunity to introduce X's testimony and def made no subsequent attempt to introduce it. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

* Reasons previously given by court of criminal appeals for not enforcing a procedural bar under Rule 33.1(a) to raising ineffective assistance of counsel claim, include: (1) A defendant could not, by inaction at trial, waive the right to make an ineffective assistance of counsel claim on appeal. (2) There is not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions. In this regard, a post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate such a Sixth Amendment challenge. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)

* Court of Appeals erred in concluding that def forfeited his right to complain that his attorney rendered ineffective assistance of counsel by failing to comply with Rule 33.1(a). There was no evidence in the record that def waived his right to the effective assistance of counsel. There was also no meaningful or realistic opportunity for def to present his ineffective assistance of counsel claim to the trial court either at trial or in a motion for new trial. In instant case, the time requirements for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court. Moreover, it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)

* To be timely, a complaint must be made as soon as the grounds for complaint is apparent or should be apparent. That subsequent events may cause a ground for complaint to become more apparent does not render timely an otherwise untimely complaint. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)

* Under Rule 33.1, where issue was first raised at hearing on motion for new trial, nothing was preserved for review on claim case should be reversed because def (a Mexican national) was not informed of his rights, upon arrest, as guaranteed by the Vienna Convention on Consular Relations (which grants a foreign national who has been arrested, imprisoned, or taken into custody a right to contact his consulate and requires the arresting authorities to inform the individual of this right ôwithout delayö). Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)

* Where def objected at trial to the failure to record bench conferences, and after the objection all conferences were recorded, the objection was untimely as to the earlier conferences. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* When bench conferences are not recorded, an objection and request for a mistrial without some attempt to supplement the trial record with the substance of the unrecorded bench conferences is an inadequate basis for alleging that anything pertinent for the purpose of appeal transpired. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* It was not error to refuse to instruct jury to disregard unresponsive answer by defense witness during direct examination (emotional outburst by def's mother berating the court with obscenities), where def did not object to the outburst at earliest opportunity, but waited until end of testimony. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* Where def, after state rested, said ôAt this time the defense would like to make an opening statement,ö and court ruled ôThat will be denied,ö and defense counsel said, ôOkay. In that case we will call [our first witness],ö def preserved the right to raise issue on appeal that the ruling was in error. In context, the word ôOkayö did not waive issue. Def did all that is generally required to preserve this complaint for review of appeal. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* The general prerequisite to presenting a complaint for appellate review is a showing in the record that (1) the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of complaint, and (2) the trial court ruled adversely (or refused to rule, despite objection). Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint for appellate review. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* Rule 33.1 ensures that trial courts are provided the opportunity to correct their own errors before a case need be appealed. If a defendant fails to inform the trial judge of the potential error through a timely request, objection, or motion, there is no such opportunity for correction at the trial level. It is for this reason that defendants must object to alleged errors on the record before those errors may be appealed. Vidaurri v State (June 20, 2001, No. 515-99)

rules (TRAP Rule 33. Preservation of Appellate Complaints.)

* When def requests a procedure that varies from proper procedure, and his request is followed, he can obtain relief only if the proper procedure is an ôabsolute requirement or prohibitionö to be implemented regardless of the partiesÆ wishes. Busby v State, 990 S.W.2d 263 (March 31, 1999)

issue not preserved (TRAP Rule 33. Preservation of Appellate Complaints.)

* Nothing presented for review on claim trial court erred in admitting certain testimony during the punishment phase of trial where was no trial objection. Brooks v State, 990 S.W.2d 278 (March 31, 1999)

* Where def made no request to proceed ex parte concerning his request for a jury consultant, he failed to preserve error on issue of denial of ex parte hearing. Busby v State, 990 S.W.2d 263 (March 31, 1999)

Labels: Leavenworth, Political Prosecution. Kangaroo Court, What is behind the White House?

posted by dannoynted1 | 2:01 AM | 0 comments

Making my way downtown....

2008-03-20T04:55:00.000-07:00

VANESSA CARLTON LYRICS

"A Thousand Miles"

Making my way downtown
Walking fast
Faces pass
And I'm home bound

Staring blankly ahead
Just making my way
Making a way
Through the crowd

And I need you
And I miss you
And now I wonder....

If I could fall
Into the sky
Do you think time
Would pass me by
'Cause you know I'd walk
A thousand miles
If I could
Just see you
Tonight

It's always times like these
When I think of you
And I wonder
If you ever
Think of me

'Cause everything's so wrong
And I don't belong
Living in your
Precious memories

'Cause I need you
And I miss you
And now I wonder....

If I could fall
Into the sky
Do you think time
Would pass me by
'Cause you know I'd walk
A thousand miles
If I could
Just see you
Tonight

And I, I
Don't want to let you know
I, I
Drown in your memory
I, I
Don't want to let this go
I, I
Don't....

Making my way downtown
Walking fast
Faces pass
And I'm home bound

Staring blankly ahead
Just making my way
Making a way
Through the crowd

And I still need you
And I still miss you
And now I wonder....

If I could fall
Into the sky
Do you think time
Would pass us by
'Cause you know I'd walk
A thousand miles
If I could
Just see you...

If I could fall
Into the sky
Do you think time
Would pass me by
'Cause you know I'd walk
A thousand miles
If I could
Just see you
If I could
Just hold you
Tonight

[Thanks to h3nn3ssy@hotmail.com, belle93@popstar.com, p_chanmisao@hotmail.com for correcting these lyrics]

[ www.azlyrics.com ]

"Defendant is simply attempting to gain discovery so that he can more adequately determine whether a selective prosecution claim might indeed be viab

2008-01-25T00:50:00.000-08:00

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUN 23 2000 [date stamped]

UNITED STATES OF AMERICA,
Plaintiff,

v. Criminal No. 99-1417 JP

WEN HO LEE,
Defendant.

MOTION FOR DISCOVERY OF MATERIALS
RELATED TO SELECTIVE PROSECUTION

Dr. Wen Ho Lee, through undersigned counsel, respectfully moves the Court, pursuant to the Due Process Clause of the Fifth Amendment to the Constitution of the United States of America, for discovery of materials relevant to establishing that the government has engaged in unconstitutional selective prosecution.

The grounds for this motion are set forth in the accompanying memorandum.

Respectfully submitted,

O'MELVENY & MYERS LLP

By
Mark Holscher
Richard E. Myers II

400 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 430-6000
Fax: (213) 430-6407

FREEDMAN BOYD DANIELS HOLLANDER
GOLDBERG & CLINE P.A.

By:
Nancy Hollander
John D. Cline

20 First Plaza, Suite 700
Albuquerque, NM 87102
Telephone: (505) 842-9960
Fax: (505) 842-0761

Attorneys for Defendant Dr. Wen Ho Lee

I HEREBY CERTIFY that a true copy of the foregoing was mailed to opposing counsel this 25th day of June, 2000.

Nancy Hollander

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUN 23 2000 [date stamped]

UNITED STATES OF AMERICA,
Plaintiff,

v. Criminal No. 99-1417 JP

WEN HO LEE,
Defendant.

MEMORANDUM IN SUPPORT OF MOTION FOR DISCOVERY
OF MATERIALS RELATED TO SELECTIVE PROSECUTION

INTRODUCTION

Defendant Wen Ho Lee is the only person the U.S. Department of Justice (DOJ) has selected for indictment under the draconian Atomic Energy Act since it was passed in 1948. During this fifty-year period, the DOJ has repeatedly declined to fully investigate, much less charge, individuals who may have compromised classified nuclear weapons related information.

The DOJ also indicted Dr. Lee under 18 U.S.C. § 793(c) and (e) for the alleged mishandling of computer codes and data files, even though these files had not been classified at the time of Dr. Lee's alleged activities. Instead, the computer codes and data files had been designated as "protect as restricted data" (PARD), which ranks between unclassified and confidential on the Los Alamos National Laboratory (LANL) security hierarchy. Moreover, the government obtained the indictment under § 793 even though it concededly has no evidence that the codes and data files were ever transferred to any unauthorized person. Not one person other than Dr. Lee has ever been charged under § 793 for mishandling materials that had not been formally classified and that were not transferred.

Dr. Lee has obtained concrete proof that the government improperly targeted him for criminal prosecution because he is "ethnic Chinese." This direct evidence includes the following:

* A sworn declaration from a LANL counterintelligence official who participated in the investigation of Dr. Lee that Dr. Lee was improperly targeted for prosecution because he was "ethnic Chinese."

* Videotaped statements of the FBI Deputy Director who supervised counterintelligence investigations until last year admitting that the FBI engaged in racial profiling of Dr. Lee and other ethnic Chinese for criminal counterintelligence investigations.

* The sworn affidavit the U.S. Attorney's Office used to obtain the warrant to search Dr. Lee's home, in which the FBI affiant incorrectly claimed that Dr. Lee was more likely to have committed espionage for the People's Republic of China (PRC) because he was "overseas ethnic Chinese."

* A posting to the Los Alamos Employees Forum by a LANL employee who assisted counterintelligence investigations and personally observed that the DOE engaged in racial profiling of Asian-Americans at Los Alamos during these investigations.

Dr. Lee has requested that the government provide specific reports and files to him that squarely relate to the issue of whether he has been selectively prosecuted as a result of improper racial profiling. The government has refused to provide any of these documents to Dr. Lee.

Because Dr. Lee is the only person who has ever been selected for prosecution under the Atomic Energy Act,1 and the only person ever prosecuted in remotely similar circumstances under § 793, and because he has uncovered specific direct admissions from the government that he was targeted for criminal investigation because he is "ethnic Chinese," he has made the necessary showing to obtain this discovery. Even if Dr. Lee did not have this direct evidence, he has also satisfied the stringent requirements of United States v. Armstrong, 517 U.S. 456 (1996), which held that in the absence of direct evidence of impermissible racial targeting, a defendant is nevertheless entitled to discovery if he provides some evidence that similarly situated people have not been prosecuted and that his investigation and prosecution were caused by improper racial motivations.

1 At Dr. Lee's detention hearing on December 13, 1999, FBI Special Agent Robert Messemer conceded that Dr. Lee is the only person who has ever been charged under the Atomic Energy Act. See Transcript of Proceedings, December 13, 1999, at 139.

This memorandum summarizes compelling evidence that the DOJ had an informal policy of refusing to bring criminal charges in situations similar to and (even more egregious than) Dr. Lee's case. In addition, we provide several specific examples of similarly situated individuals whom the government has chosen not to indict under either the Atomic Energy Act or § 793. Unlike the meritless selective prosecution discovery motions discussed in Armstrong, where several thousand men and women of all races had been charged under the same statutes as the defendants, Dr. Lee can conclusively establish that he is the only person whom the government has ever chosen to indict under the Atomic Energy Act and the only person indicted in similar circumstances under § 793.

FACTUAL BACKGROUND

A. The Indictment

On December 10, 1999, the government brought a fifty-nine-count indictment against Dr. Lee. Thirty-nine counts allege that Dr. Lee violated the Atomic Energy Act because he purportedly mishandled material containing restricted data, with the intent to injure the United States, and with the intent to secure an advantage to a foreign nation. Dr. Lee was also charged with ten counts of unlawfully obtaining national defense information in violation of 18 U.S.C. § 793(c), and with ten counts of willfully retaining national defense information in violation of 18 U.S.C. § 793(e).

B. Dr. Lee's Discovery Requests

Dr. Lee's counsel have made a written request to the prosecution for specific materials his counsel believe contain direct evidence that Dr. Lee was improperly selected for prosecution because he is "ethnic Chinese." 2 Among the several categories of materials requested were: (1) the reports and memoranda supporting the findings of the DOE's Task Force on Racial Profiling's January 2000 report, (2) the Defensive Information to Counter Espionage videotapes, that were created by DOE counterintelligence and shown to DOE employees until last year, and are now prohibited at LANL because they allegedly contain racial stereotypes; (3) DOE or DOJ memoranda and reports confirming that the FBI targets Americans of Chinese ethnicity for potential criminal espionage involving the PRC; (4) the DOJ's and DOE's responses to the numerous Congressional inquiries related to the justification for and details of the investigation of Dr. Lee; (5) the classified September 1999 State Department report by Jacqueline Williams-Bridger, detailing hundreds of cases of mishandling classified information, including cases of actual passing of classified information; and (6) information concerning specific cases in which the government declined to prosecute under circumstances similar to, or more egregious than, this case. The government has refused to produce any of the materials requested by Dr. Lee's counsel.

2 See May 1, 2000, letter from Mark Holscher to AUSA Robert Gorence, attached as Exhibit A.

I. THE LEGAL STANDARD FOR DISCOVERY REGARDING SELECTIVE PROSECUTION

The Supreme Court established the threshold for discovery on selective prosecution claims in United States v. Armstrong, 517 U.S. 456 (1996). The Court held that to obtain discovery in a case in which the court is asked to infer discriminatory purpose, a defendant must produce (1) some evidence that similarly situated individuals have not been prosecuted, and (2) some evidence of improper motivation in deciding to prosecute. The Court did not decide whether a defendant should be required to produce some evidence that similarly situated persons have not been prosecuted if the prosecution has admitted having a "discriminatory purpose." Id. at 469 n.3.

II. DR. LEE MORE THAN MEETS THE LEGAL STANDARD FOR DISCOVERY REGARDING SELECTIVE PROSECUTION

As we demonstrate below, Dr. Lee clearly meets the legal standard that Armstrong establishes for discovery related to a selective prosecution claim. In Part A, he presents direct evidence that government officials have admitted a racial basis for investigating Dr. Lee, and in Part B, he establishes that the government has declined to prosecute similarly situated persons.

A. Dr. Lee has Direct Evidence that He was Targeted for Criminal Investigation Because He is "Ethnic Chinese."

The troubling chain of events that led to Dr. Lee's indictment began when the DOE's Chief Intelligence Officer, Notra Trulock, incorrectly concluded in 1995 that the PRC had obtained the design information for the W-88 warhead from someone at the Los Alamos National Laboratory.3 Mr. Trulock began an Administrative Inquiry to identify the suspect or suspects who should be the focus of this counterintelligence investigation. On May 29, 1996, Mr. Trulock issued the Administrative Inquiry which listed Dr. Lee as the main suspect. This Administrative Inquiry led to meetings between DOE counterintelligence officials and FBI Special Agents in New Mexico regarding Dr. Lee. The FBI then opened a criminal investigation of Dr. Lee.

3 Just last year the DOJ conceded in a press conference that this conclusion was incorrect, and it opened a criminal investigation into the over 450 individuals outside LANL who had received this design information. See, e.g., Vernon Loeb and Walter Pincus, New Leads Found in Spy Probe, Washington Post, Nov. 19, 1999 at Al, attached as Exhibit B.

1. Vrooman's Declaration Establishes that the Government Engaged in Improper Racial Profiling

Robert Vrooman, who was the Chief Counterintelligence Officer at LANL from 1987 until 1998, participated in the Administrative Inquiry and assisted in the resulting criminal investigation of Dr. Lee. Mr. Vrooman is adamant that Mr. Trulock's targeting of Dr. Lee for investigation was the result of improper racial profiling. In a declaration, attached as Exhibit C, Mr. Vrooman states:

Mr. Trulock's office chose to focus specifically on Dr. Lee because he is "ethnic Chinese." Caucasians with the same background and foreign contacts as Dr. Lee were ignored.

Vrooman Decl., Ex. C at 3, ¶ 9. Vrooman is also unequivocal in stating that this impermissible racial profiling was the main reason Dr. Lee was targeted for criminal prosecution. "I state without reservation that racial profiling was a crucial component in the FBI's identifying Dr. Lee as a suspect." Id. at 3,¶ 12.4

4 Vrooman consistently raised this concern with federal officials, long before he provided his declaration here. As he indicated in a May 1999 letter to U.S. Senator Domenici: "[e]thnicity was a crucial component in identifying Lee as a suspect. Caucasians with the same background as Lee were ignored." See Ex. I to Ex. C. Vrooman also wrote to Senator Conrad Burns in June 1999 that "Mr. Lee was selected as the prime suspect mainly because he is ethnic Chinese." See June 25, 1999, letter from Robert Vrooman to U.S. Senator Conrad Bums, attached as Exhibit D.

Vrooman has also made clear that Trulock, who was the highest ranking DOE employee overseeing all counterintelligence investigations, intentionally targeted "ethnic Chinese" because Trulock held the belief that these American citizens could not be trusted like other American citizens. As Vrooman states in his declaration, Trulock told him that "ethnic Chinese should not be allowed to work on classified projects, including nuclear weapons." Id. at 3, ¶ 13.5 Trulock made these statements while he was chief of the DOE's counterintelligence office, and when he was personally assisting the criminal investigation of Dr. Lee. Trulock's statements that American citizens who are "ethnic Chinese" should be barred from sensitive jobs at LANL are a violation of federal civil rights statutes that prohibit racial discrimination for employment.6 Trulock's statements are further corroboration that Trulock intentionally targeted Dr. Lee because he was "ethnic Chinese."

5 Vrooman confirmed this troubling fact in the letter he wrote to Senator Domenici on May 11, 1999, See Ex. I to Ex. C.

6 See 42 USCA § 2000e-2 ("It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.").

2. Former FBI Deputy Director Paul Moore has Confirmed that Dr. Lee was Targeted by the FBI Due to Racial Profiling

The FBI used the same impermissible racial profiling in its criminal investigation of Dr. Lee. The Deputy Director of the FBI responsible for all criminal counterintelligence prosecutions until 1999 confirmed that the FBI's criminal investigation of Dr. Lee was premised on the same impermissible racial bias, namely, that "Chinese-Americans" were more likely to commit espionage. The Deputy Director, Paul Moore, oversaw portions of the criminal investigation of Dr. Lee. In a televised interview with Jim Lehrer, on December 14, 1999, regarding the arrest and indictment of Dr. Lee, Deputy Director Moore admitted that racial profiling was used, but attempted to justify this racial classification as reasonable:

There is racial profiling based on ethnic background. It's done by the People's Republic of China. ... Now the FBI comes along and it applies a profile, so do other agencies who do counter intelligence investigations -- they apply a profile, and the profile is based on People's Republic of China, PRC intelligence activities. So, the FBI is committed to following the PRC's intelligence program wherever it leads. If the PRC is greatly interested in the activities of Chinese-Americans, the FBI is greatly interested in the activities of the PRC as [regards] Chinese-Americans.

The News Hour With Jim Lehrer, December 14, 1999, Tuesday, Transcript #6619, attached as Exhibit E at 12.

Moore's statements ignored the fact that senior FBI officials, in memoranda the government is withholding from Dr. Lee, had concluded long before December 1999 that it did not have credible evidence that the Taiwanese-born Dr. Lee had engaged in any improper activities with the PRC. In his videotaped interview, Moore then attempted to explain why the DOJ had indicted Dr. Lee:

So, now, the U.S. in my opinion, this signals that the U.S. is fighting back. This is the situation quite similar to the Al Capone case where they couldn't [lock] him up for his racketeering activities, so they cast about and they found something else that they could get him for.

Id. at 14.

Moore, however, later conceded that the FBI's targeting of American citizens who are "ethnic Chinese" for increased scrutiny for espionage did not make sense. In response to a statement by Nancy Choy of the National Asian Pacific-American Bar Association that targeting people for criminal investigation based on their race was improper, Moore backtracked from his earlier statement that the racial targeting of "ethnic Chinese" by the FBI was reasonable. After Ms. Choy challenged the profiling, Moore admitted that:

Ethnic profiling doesn't work for the PRC, it doesn't work for the FBI. You cannot predict someone's intelligence, somebody's espionage behavior based on his ethnic background. (Emphasis added.)

Id. at 13.

Moore did not even attempt to address the issue of how such racial targeting could even be considered for a citizen of the United States who was born in Taiwan. The Attorney General of the United States, in testimony before a Senate subcommittee, also stated that it was illogical to claim that a Taiwanese-born scientist like Dr. Lee would be predisposed to assist the PRC. "Now, if you are using that information to suggest that you are an agent of a foreign power, to whit, [sic] the PRC, the immediate question is raised, how are you that if you are clearly working with the Taiwanese Government on matters that apparently involve non-classified information?" Top Secret Hearing Before the Senate Committee on the Judiciary, 106th Cong. (1999), (visited June 22, 2000) (http://www.fas.org/irp/congress/1999_hr/renofisa.html) (statement of Attorney General Janet Reno).

3. Acting Counterintelligence Director Washington Also Confirmed Trulock's Profiling of Chinese Americans

Eugene Washington, who was DOE's acting Director of Counterintelligence in 1996, also believes that Trulock engaged in improper racial profiling. Washington confirmed in an interview with the Washington Post in August 1999, that "he told Trulock that he was unfairly singling out Lee and another Chinese American scientist." Vernon Loeb and Walter Pincus, Espionage Whistleblower Resigns: Energy's Trulock Cites Lack of Support as Debate About His Tactics Grows, Washington Post, August 24, 1999, attached as Exhibit F. Washington apparently sent Trulock a memorandum recommending that the investigation be closed and apparently questioning the DOE's focusing on Chinese Americans. This government has not produced this memorandum to Dr. Lee.

4. The Search Warrant Affidavit the DOJ Submitted to Search Dr. Lee's House Contains Additional Proof that Dr. Lee was Targeted Because He is "Ethnic Chinese."

The once-sealed affidavit in support of a search warrant to search Dr. Lee's home confirms that the government considered Dr. Lee's race to be evidence of possible espionage.7

7 This affidavit was written after internal FBI memoranda apparently concluded that Dr. Lee did not pass W-88 information to the PRC. The government has refused to turn over to the defense the FBI 302's dated November 29, 1998, January 22, 1999, February 26, 1999, and September 3, 1999, memoranda which, according to multiple press reports, directly contradicted the sworn declaration provided to the United States Magistrate Judge in New Mexico.

To support the now fully discredited allegations that Dr. Lee may have committed espionage, the affidavit asserts that FBI counterintelligence experts were relying in part on the fact that Dr. Lee was "ethnic Chinese." As the affidavit states, the "supervisory Special Agent of the FBI who specializes in counterintelligence investigations regarding the People's Republic of China" who"has supervised from FBI headquarters PRC counterintelligence investigations for the past five years" explained to the investigative agent "that PRC intelligence operations virtually always target overseas ethnic Chinese." The affidavit leaves no doubt that improper racial profiling, which started with Mr. Trulock, continued to be a substantial basis for the targeting of Dr. Lee in 1999.

5. Another LANL Employee Has Also Confirmed that the DOE Engaged in Racial Profiling.

Dr. Lee has uncovered additional corroboration that DOE's counterintelligence staff used racial profiling. In an e-mail to his fellow employees, Michael Soukup wrote that the DOE pressured him to investigate Asian-Americans because of their ethnicity when he assisted the DOE in counterintelligence investigations. See Letter of Michael Soukup, dated April 12, 2000, and published in the Los Alamos National Laboratory Online Forum, http://www.lanl.gov/orgs/pa/News/forum/letter2000-080.html.

Specifically, Soukup states:

While I was assigned to NIS-9 (until mid-1998), I supported, on a part-time basis, the counterintelligence investigation into alleged Chinese espionage at Los Alamos. Based upon my experience and observations, I conclude that racial profiling of Asian-Americans as a result of the investigation indeed took place, but principally at the DOE. Further, DOE personnel directed some Los Alamos National Laboratory staff to undertake research that profiled Asians and Asian-Americans at the Laboratory. I do not believe any of us were happy with this.

Soukup's statement buttresses Vrooman's declaration and provides an additional basis to believe that discovery regarding selective prosecution could lead to additional proof of improper racial profiling.

B. Evidence that Similarly Situated Individuals Have Never Been Prosecuted Under the Atomic Energv Act or § 793(c) and (e)

It is clear that race played an impermissible role for selecting Dr. Lee for prosecution under the Atomic Energy Act and the Espionage Act, 18 U. S.C. § 793. During the past fifty-two years, no American has ever been prosecuted under the Atomic Energy Act. FBI Special Agent Messemer conceded this fact at the December 13 bail hearing. See fn.1, supra. Evidence that similarly situated individuals have not been prosecuted can be found in both statements of DOJ officials concerning the practices of the DOJ in declining to prosecute similar or more egregious cases as well as specific examples of similarly situated individuals that the DOJ declined to charge.

Not only have there been no other prosecutions under the Atomic Energy Act, the DOJ had a policy of not bringing cases such as this under § 793 as well. As a former DOJ official told the Washington Post a few months ago, for twenty years the Department had followed a practice of not prosecuting civilians where no evidence existed that the classified materials in question had been transferred to a third party. According to this official, "[n]o matter how gross the violation, there would be no prosecution if the agency took strong administrative action." See Walter Pincus and Vernon Loeb, U.S. Inconsistent When Secrets Are Loose, Washington Post, March 18, 2000, at Al, attached as Exhibit G. Here, not only had Dr. Lee's files not been classified at the time he allegedly mishandled them, but also the indictment does not allege that the files in question were provided to any third party and the government conceded at the detention hearing that it has no such evidence. Dr. Lee was terminated -- obviously "strong administrative action" -- and under DOJ practice there should have been "no prosecution."

Further evidence that DOJ has never prosecuted similarly situated individuals can be found in the Department's apparent blanket refusal to bring criminal charges where State Department officials have mishandled classified materials. In 1999 alone, the State Department investigated thirty-eight incidents of mishandling classified information. See id. A classified analysis by the State Department likewise detailed numerous similar breaches, in a September 1999 report written by Jacqueline Williams-Bridger. According to press reports, this classified document, which the government has not provided to the defense, details hundreds of breaches of appropriate procedures for handling classified information, including the intentional transferring of secret information, which did not result in criminal prosecution. See, e.g., S. Rep. No. 106-279, at 10-15 (2000); Vernon Loeb & Steven Mufson, State Dept. Security Has Been Lax, Audit Finds: Many Offices Not Swept For Listening Devices, Washington Post, Jan. 17, 2000, at Al, attached as Exhibit H. It is critical to note that these individuals who were not prosecuted included State Department employees who intentionally transferred secret or top secret information to unauthorized persons. By contrast, Dr. Lee did not provide information to any unauthorized person, and the material at issue had not been classified at the time of his alleged actions.

Employees of the DOE and the national weapons laboratories have a long history of unprosecuted mishandling of classified information. According to the 1999 Report by the President's Foreign Intelligence Advisory Board entitled Science at Its Best, Security at Its Worst, attached as Exhibit I, designs of classified weapons had been left unsecured on library shelves at Los Alamos, and personnel were "found to be sending classified information to outsiders via an unclassified email system," yet no prosecutions resulted. This report also outlined dozens of examples of systemic mishandling of classified information by laboratory employees. See id. at 3-6, 15, 22. During the entire time of LANL's woeful security record, nota single employee faced charges under the Atomic Energy Act or § 793. Based on discovery Dr. Lee has received to date, the DOE investigated dozens of cases of mishandling of classified information at LANL, without a single prosecution. See Pincus, U.S. Inconsistent When Secrets are Loose, Ex. G at 4.

In addition to the evidence of the government's practice of not prosecuting violations of the Atomic Energy Act and § 793(c) and (e), Dr. Lee has uncovered several individuals who have not been investigated criminally, much less indicted.

* John Deutch: During his tenure as director of the CIA, former Director John Deutch used his unsecured personal computer at home to create and access top secret files even though he had a secure computer in his home. See S. Rep. No. 106-279, at 9 (2000); Bob Drogin, CIA Reprimands 6 for Actions in Deutch Investigation, L.A. Times, May 26, 2000, at A14, attached as Exhibit J.

* Kathleen Strang: According to published reports Arms Control and Disarmament Agency employee, Kathleen Strang "improperly removed. . . [classified] documents from a storage vault at the State Department, repeatedly left them overnight in an open safe accessible to dozens of people without security clearances" and then ignored several warnings to protect these documents. These classified documents reportedly included highly sensitive details of how the U.S. intelligence community monitors nuclear tests and weapons development. These reports state that Ms. Strang gave other sensitive information to the Japanese. Apparently, one could draw a complete picture of how U.S. intelligence monitors nuclear tests and weapons development from these documents. See Bob Woodward, ACDA Aide Faulted on Security, Washington Post, Nov. 4, 1986, at Al, attached as Exhibit K.

* Anonymous sources of Bill Gertz: A government employee or government employees unknown to Dr. Lee provided Bill Gertz with classified material from the National Security Agency published in the May 1999 book Betrayal, which includes fifty-nine pages of secret documents (including those covered by the Atomic Energy Act) relating to Chinese missile technology. See Bill Gertz, Betrayal: How the Clinton Administration Undermined American Security (1999).

* Fritz Ermarth: CIA employee Fritz Ermarth reportedly transferred secret and top secret files between his home computer and his work computer, resulting in a virus entering the CIA's classified network. See Pincus, U.S. Inconsistent When Secrets Are Loose, at Al, Ex. G.

* LANL Scientist: A LANL nuclear scientist allegedly downloaded the "Green Book" containing secret restricted data regarding U.S. nuclear strategy and the vulnerabilities of U.S. nuclear weapon systems onto an unclassified LANL computer with Internet access. See id.8

8 Dr. Stephen Younger, whose testimony that the nuclear balance of power would be adversely affected if Dr. Lee were released is partly responsible for Dr. Lee being held without bond, was involved in evaluating the seriousness of this security violation and deferring the appropriate punishment of the LANL scientist referred to above.

* M.K: A CIA agent identified only as M.K. sold twenty-five CIA computers to the public without erasing top-secret information on their hard drives. The CIA learned of the breach when an individual who purchased a computer called to say that the hard drive of his computer contained files that he didn't think should be there. See Vernon Loeb, CIA Employees Sue Agency for Unfettered Right to Legal Help, Washington Post, May 14, 1999, at A31, attached as Exhibit L.

* James R. Conrad: In 1987 the government declined to prosecute defense contractor James R. Conrad, who Department of Defense investigators accused of removing classified documents from the Pentagon. Conrad earlier had transmitted classified information including missile launch commands and wartime bomber routes over unsecured computer lines from his computer in San Diego to Fairfax County, Virginia. See Secrets Breach Reported, The Dallas Morning News, June 12, 1987, at A8, attached as Exhibit M.

* Unnamed defense contractor: The DOJ investigated an employee of a defense contractor in Southern California for transferring hundreds of secret documents and storing them in his garage. DOJ lawyers apparently overruled the investigative agencies and declined to prosecute this employee.

The defense has been unable to locate a single reported decision dating back to the 1950s in which a civilian was prosecuted under § 793(c) or (e) without any allegation that he provided classified material to an unauthorized person. Unlike the defendants in the cases that have been brought, 9 the government has not even alleged that Dr. Lee transferred national-defense information to any unauthorized recipient.

9See e.g., Coplon v. United States, 191 F. 2d 749, 750-53 (D.C. Cir. 1951) (defendant was arrested while attempting to deliver data slips of F.B.I. reports to a Russian agent); Scarbeck v. United States, 317 F.2d 546, 548 (D.C. Cir. 1962) (defendant communicated classified information to representatives of the Polish Government); United States v. Dedeyan, 584 F.2d 36, 38 (4th Cir. 1978) (defendant showed a cousin who was working with a Soviet agent a classified study); United States v. Kampiles, 609 F.2d 1233, 1235 (7th Cir. 1979) (defendant was charged with willfully delivering a national-defense document to unauthorized persons); United States v. Truong Dinh Hun, 629 F.2d 908, 911 (4th Cir. 1980) (defendant arranged to have someone deliver classified papers to Vietnamese agents); United States v. Harper, 729 F.2d 1216, 1217 (9th Cir. 1984) (defendant was charged with obtaining and selling national-defense information to Polish agents; United States v. Smith, 780 F.2d 1102, 1103 (4th Cir. 1985) (defendant sold classified information to a Soviet agent); United States v. Walker, 796 F.2d 43, 45 (4th Cir. 1986) (defendant was arrested while attempting to deliver classified defense information to a Soviet agent); United States v. Zettl, 835 F.2d 1059, 1060 (4th Cir. 1987) (defendant delivered Navy program element descriptions to an unauthorized person); United States v. Morison, 844 F.2d 1057, 1060 (4th Cir.1988) (defendant sent secret Naval satellite photographs to a British publisher for publication); United States v. Whitworth, 856 F.2d 1268 (9th Cir. 1988) (defendant was charged with obtaining and delivering national-defense information to a foreign government); United States v. Miller, 874 F.2d 1255, 1258 (9th Cir. 1989) (defendant copied and delivered national-defense information to the Soviet government).

Even the defendants in reported military court cases, tried under the more stringent provisions of the Uniform Code of Military Justice, were tried when the evidence showed that they actually transferred materials or allowed an unauthorized third-party to physically obtain classified information.10

10 See, e.g., United States v. Roller, 42 M.J. 264, 265 (C.M.A. 1995) (defendant left classified documents in his garage, which allowed a moving company employee to obtain access to the documents); United States v. Baba, 21 M.J. 76, 77 (C.M.A. 1985) (defendant was charged with willfully delivering or cause to deliver three documents to unauthorized persons); United States v. Gonzalez, 16 M.J. 428, (C.M.A. 1983) (defendant left two classified messages in an unauthorized recipient's desk drawer); United States v. Grunden, 25 C.M.A. 327, 2 M.J. 116,119 (C.M.A. 1977) (defendant attempted to communicate national-defense information); United States v. Anzalone, 40 M.J. 658, 813 (N-M.C.M.R. 1994) (defendant disclosed and mailed information about military forces to unauthorized persons); United States v. Schoof, 34 M.J. 811, 813 (N-M.C.M.R. 1992) (defendant attempted to deliver microfiches to a foreign power); United States v. Lonetree, 31 M.J. 849, 852 (N-M.C.M.R. 1990) (defendant identified the names of United States intelligence agents to Soviet agents and provided the floor plans and office assignments of personnel in United States Embassies in Moscow and Vienna). But see United States v. Chattin, 33M.J. 802, 803 (N-M.C.M.R. 1991) (Defendant pleaded guilty to removing classified documents and willfully retaining it. Chattin was sentenced to confinement for four years, reduction to pay grade E-1,forfeiture of all pay and allowances, and a bad conduct discharge. The convening authority suspended all confinement in excess of three years for twelve months).

Similarly situated individuals who have not transferred any national-defense information have not been prosecuted under the Espionage Act. 11 The government has never alleged that Dr. Lee transferred the materials to anyone, nor that he left them unprotected where they could be stumbled upon by anyone. In fact, the evidence presented by the government itself at the bail hearings in this case confirms that Dr. Lee password-protected any materials on which he worked.

11 Dr. Lee anticipates that the government will attempt to rely on United States v. Poulsen, 41 F.3d 1330,1333-35, (9th Cir. 1994) (defendant was charged with violating 18 U.S.C. § 793(e), in a second superseding indictment, for storing computer tapes of United States Air Force tasking orders in a rental storage unit). But Poulsen was not similarly situated to Dr. Lee because Poulsen allowed a third party to gain actual access to the tapes. Unauthorized third-party access constitutes transfer of the information. Poulsen stole the computer tapes from a previous employer and stored the tapes under a false name and address. Defendant then defaulted on the rental payments. The tapes were discovered by a third party, the rental-unit owner, while the rental-unit owner was evicting all contents from the unit due to defendant's seventy-one-day default.

C. Dr. Lee Meets Both Prongs of the Test Stated In Armstrong.

Dr. Lee indisputably meets both prongs of the Armstrong test, and must be granted discovery because he has submitted credible evidence that similarly-situated individuals have not been prosecuted as well as statements from government and law enforcement officials demonstrating improper motivations to prosecute Dr. Lee. Dr. Lee was selected from among more than a dozen identically situated individuals at LANL for criminal investigation in 1996 because he was "ethnic Chinese." This improper classification was employed for the next three years, and was explicitly reaffirmed in the April 9, 1999, search warrant application. The evidence of selective prosecution Dr. Lee has already uncovered far exceeds the Armstrong threshold.

Armstrong denied discovery to defendants who were charged with distributing crack cocaine in violation of 21 U.S.C. §§ 841 and 846. In Armstrong, the defense offered only one hearsay affidavit that in the year Armstrong was prosecuted, the twenty-three other § 841 cases handled by the Federal Public Defender in Los Angeles involved black defendants. See id. at 459. The defendants in Armstrong presented no evidence that the prosecution undertook any targeting based on race, see id., nor did the defendants make any showing that non-blacks had not been charged in other years or by one of the ninety-two other U.S. Attorney's Offices in 1991. In Armstrong, the government submitted proof that 3,500 defendants had been charged with violating § 841 in the previous three years and eleven non-blacks had been charged for distributing crack cocaine. Id. at 482 n.6.

Dr. Lee's compelling showing here stands in stark contrast to the anemic showing in Armstrong. First, this Court has direct evidence in the form of a sworn declaration and a videotaped statement from government agents who assisted in the criminal investigation of Dr.Lee, which establish that a racial profiling was used to target Dr. Lee. Second, in contrast to Armstrong, where the government proved that 3,500 men and women of all races had been charged under §§ 841 and 846 during a three-year period, Dr. Lee is the only person who has been charged under the Atomic Energy Act in the past fifty-two years. Third, Dr. Lee has provided this Court with examples of similarly situated non-Asians who have not been prosecuted under either the Atomic Energy Act or § 793. The defendants in Armstrong made no showing whatsoever that similarly situated non-blacks had not been prosecuted. Equally as compelling, Dr. Lee has provided this Court with evidence that the DOJ had a policy of not prosecuting individuals similarly situated to Dr. Lee. Additionally, no case has been brought under § 793 involving prosecution for information that had not been formally classified at the time of the defendant's conduct.

The evidence Dr. Lee has presented by far exceeds the threshold found sufficient to permit discovery in other cases decided under the Armstrong standard. For example, In United States v. Jones, 159 F.3d 969 (6th Cir. 1998), the Sixth Circuit overturned a District Court's decision and granted discovery under circumstances directly analogous to this case. In Jones police officers sent taunting letters to two black defendants, but not to a white defendant involved in the same conspiracy, and made a T-shirt with the black defendants' pictures, but not the white defendants. In Jones, the court found that the taunting letters and T-shirt had established a prima facie case of racial motivation on the part of the investigating officers, and had set forth "some evidence" of discriminatory effect, warranting discovery. The court found that although the defendant was unable to produce "prima facie evidence" of discriminatory effect, "some evidence" was enough when coupled with the evidence of discriminatory motivation. Id. at 977. The Jones analysis holds even greater force here, where key investigators have unequivocally stated that the DOE practiced racial profiling which led to Dr. Lee's indictment, and the lead counterintelligence official at DOE made racially-charged statements regarding the fitness of American citizens who are "ethnic Chinese" to work on nuclear weapons programs. Dr. Lee has presented more than "some evidence" of discriminatory effect. Unlike the defendant in Jones who could not show that others were not prosecuted, Dr. Lee has shown that no one else has ever been prosecuted under the Atomic Energy Act provisions at issue in this case, nor has anyone else been prosecuted under § 793 for mishandling information that had not been formally classified and that had not been furnished to any unauthorized person.

Similarly, in United States v. Tuitt, 1999 WL 791927 (D.Mass. 1999), the trial court ordered that the defendant be provided discovery under far less compelling circumstances. In Tuitt, the defendant's attorney compared four counties within the judicial district over a four-month period and found a statistically significant difference between the crack cocaine prosecutions brought in federal court and the crack cocaine prosecutions brought in state court. See id. at *4. Tuitt held that this showing was enough to meet the Armstrong standard where "Defendant is simply attempting to gain discovery so that he can more adequately determine whether a selective prosecution claim might indeed be viable." Id. at * 11. Again Dr. Lee far surpasses the threshold met by the Tuitt defendant. Rather than four months, Dr. Lee's attorneys examined reported cases covering fifty years, and rather than four counties, the search covered fifty states, without finding a single other reported case of prosecution under the Atomic Energy Act.

Similarly, in United States v. Glover, 43 F. Supp. 2d 1217 (D. Kan. 1999), the court granted discovery on a selective prosecution claim regarding imposition of the death penalty where the defense provided far less evidence on either prong of the Armstrong test. In Glover, the defendant presented some statistical evidence that over a three-and-one-half-year period, "the Attorney General authorized a greater number of black defendants for death-penalty prosecution than white defendants." Id. at 1234. The court found that this evidence, coupled with evidence that two other similarly-situated defendants were not prosecuted in federal court, was enough to permit discovery. See id. Rather than the mere statistical inference found sufficient in Glover, Dr. Lee has presented credible evidence in the form of specific statements made by investigators in this case that race was a factor in selecting Dr. Lee for prosecution. Moreover, he has presented some evidence of not two, but several individuals mishandling classified information without facing criminal charges of any kind, much less a potential life sentence.

CONCLUSION

Dr. Lee has presented compelling evidence the government singled him out for prosecution because of his race and refused to prosecute similarly situated individuals. Dr. Lee is entitled to the information the government is withholding from him -- information that will prove this is an egregious example of selective prosecution in violation of Dr. Lee's rights under the United States Constitution.

This Court should grant this motion and order the government to provide Dr. Lee the requested discovery materials, as set forth in Exhibit A.

Respectfully submitted,

O'MELVENY & MYERS LLP

By
Mark Holscher
Richard E. Myers II

400 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 430-6000
Fax: (213) 430-6407

FREEDMAN BOYD DANIELS HOLLANDER
GOLDBERG & CLINE P.A.

By:
Nancy Hollander
John D. Cline

20 First Plaza, Suite 700
Albuquerque, NM 87102
Telephone: (505) 842-9960
Fax: (505) 842-0761

Attorneys for Defendant Dr. Wen Ho Lee

Evidence to rebut alibi is admissible if it places the accused at a place where he claimed not to be, or if the evidence shows the impossibility

2007-12-28T06:15:00.000-08:00

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NUMBER 13-00-706-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RAMON JESUS REYES , Appellant,

v.

THE STATE OF TEXAS , Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas.

O P I N I O N

Before Justices Hinojosa, Castillo, and Baird (1)

Opinion by Justice Baird

Appellant was charged by indictment with the offense of burglary of a habitation with the intent to commit and actually committing sexual assault. Tex. Pen. Code Ann. � 30.02(a)(1), (3) (Vernon Supp. 2002). The indictment alleged a prior felony conviction for the purposes of enhancing the range of punishment. A jury convicted appellant of the charged offense. Upon appellant's plea of true to the enhancement allegation, the trial court found that allegation true, and assessed punishment at twenty-five years confinement in the Texas Department of Criminal Justice--Institutional Division. We reverse.

I. Factual Summary.

Appellant's sole point of error contends the trial judge erred in admitting evidence of an extraneous offense. We will begin with a summary of the testimony developed in the trial court.

A. The State's Case In Chief.

i. Testimony Related to the Charged Offense.

The State called the following witnesses in its case in chief. We will set forth their testimony in chronological order, rather than the order they testified at trial.

Mario Dios Dado lived in the same home as the complainant, her husband and their young son; Dios Dado worked with the complainant's husband. (2) On March 21, 1999, the two men left work at midnight, and returned home where they loaded their fishing gear from the garage and left. Dios Dado remembered the garage door was not locked when the two departed from the complainant's residence.

By March 21, the complainant had lived in her home with her husband, son and Dios Dado for four months, and was familiar with her neighbors. Appellant lived across the street with his mother who the complainant had visited on several occasions. She had seen appellant both inside and outside his home. In the early morning hours of March 21, the complainant and her son were asleep. Although her bedroom light was off, a bright security light shone into the bedroom from outside. This lighting permitted her to see in the bedroom even when the interior light was off. While laying in her bed, the complainant felt a finger inside her vagina. She awoke, and saw an intruder whom she identified as appellant. She began hitting him on the back and said: "You mother fucker, you touched me! It was you!" She chased him out of the bedroom and through the kitchen where the light was on and she again recognized appellant as the intruder. The chase continued from the kitchen, through the garage, to the edge of the street where the complainant saw the intruder proceed to the back of appellant's home. The complainant testified that while inside her home, the intruder knew where he was going. She stated he was wearing only boxer shorts, and was not wearing glasses. The complainant testified she had never seen appellant wearing glasses.

The complainant further testified the police asked her about a second suspect, but she told the police that suspect, who was tattooed, was not the intruder. When pressed, the complainant stated she was sticking with her previous statement that the intruder did not have a tattoo, and did not wear glasses. However, on re-direct examination, she testified she was not sure whether the intruder had a tattoo. She reiterated that she had seen the intruder's face. She viewed State's exhibit one, a photograph of appellant wearing only boxer shorts and was asked if she saw a tattoo. She replied: "I don't think so."

At approximately 2:00 a.m. on March 21, Robin Duggan, a dispatcher with the Aransas Pass Police Department, received a telephone call from the complainant, who was hysterical. After being calmed by Duggan, the complainant stated she was asleep in her bed and awakened when she felt someone touching her. The complainant named the intruder as Jesse, a person who lived across the street. Duggan dispatched police officers to the complainant's home.

The first officer to arrive at the complainant's home was Roberto Gonzales who met the complainant standing in her garage holding a small child. The complainant was crying hysterically. She stated she was asleep in her bed with her child when someone touched her in a "sexual manner." She did not elaborate. When the complainant fully awoke and realized the person who had touched her was not her husband, she chased the intruder from the bedroom, out of the house and through the garage. She identified the intruder as Jesse Reyes, a person who lived across the street, and stated he was wearing only a pair boxer shorts. Patrol Officers Robert Cunningham and Dennis Anders arrived at the scene shortly after Gonzales. Both Cunningham and Anders overheard the complainant identify the intruder. Cunningham remembered the complainant identifying the person not by name, but rather as "the gentleman that lived across the street." However, Anders remembered the complainant identifying the intruder by the name of Jesse Reyes.

Darrell Jones, a detective with the Aransas Pass Police Department, received the case from Gonzales. After arriving at the complainant's home, Jones dusted for fingerprints, photographed the premises and seized the sheets from the complainant's bed. He interviewed the complainant at the police station where she stated she was awakened by her vagina being rubbed by the person who lived across the street. Jones compiled a photo spread from which the complainant identified appellant as the intruder. (3) Jones took this information to a magistrate and obtained a warrant for appellant's arrest.

At approximately 4:00 a.m., Jones, Gonzales and Anders traveled to appellant's home, which was across the street from the complainant's, and executed the warrant for appellant's arrest. Appellant was found in a bedroom, lying in a bed with a female. Jones and Anders testified they noticed redness on appellant's back. Appellant introduced into evidence two booking photographs which did not show the redness.

The evidence recovered by Jones at both the complainant's and appellant's homes was tested but rendered negative results to match appellant.

ii. Testimony of the Extraneous Offense.

At the conclusion of the complainant's testimony, the State sought to offer evidence of an extraneous offense. The trial court retired the jury, and took the matter under consideration. The State wished to offer the evidence on the issue of identity, stating the extraneous offense was "very similar" to the charged offense. Appellant objected under Rules of Evidence 403 and 404(b). Appellant conceded his only defense to the charged offense was identity.

a. Testimony Outside Jury's Presence.

The trial court heard the following testimony outside the jury's presence. Naomi Mircovich was asleep in her bed with her husband, Kirk, and their four-year-old son on August 10, 1998. (4) There were others in the house as her other son had several friends over; they were sleeping in the living room in front of the television. She awoke in the early morning hours when she felt someone fondling her breasts and vaginal area. Thinking these were amorous advances by her husband, Naomi asked: "What are you doing?" The intruder replied: "Shhhhh, don't wake your husband." Naomi turned and saw her husband and son; then turned and saw a man huddled in a fetal position with his head down. She could not see his face. She asked: "Who are you?" and the man replied: "My name is Jeremy." The intruder used a chair to enter the residence through a window. This incident occurred less than one block from the location of the charged offense.

Kirk Mircovich testified he awoke in the early morning hours of August 10 when his wife screamed his name, and said someone was in the house. Kirk saw the intruder and began pursuit. He was unable to restrain the intruder. However, he was able to see the intruder because the living room light was illuminated. Kirk identified appellant as the intruder. Kirk testified appellant was not wearing glasses, and was fully clothed at the time of this incident.

At the conclusion of the testimony, the trial court overruled appellant's objections lodged under Rules 403 and 404(b). In so ruling, the trial court made the following comments:

I don't find that from August the 10th, 1998 to March 21st of 1999 is an outrageously long period of time. I find that each of these events took place in less than one block from the residence of the Defendant, or within one block of each other. Each event took place in the dark of night somewhere between two and three o'clock. If you get rid of Daylight Savings Time, they probably happened within just a few minutes of each other.

In each of the circumstances the complaining witness was a female in her bedroom not alone in her bed, and indeed had a child in the bed with them. Whether the husband was home or made it home or not, I don't find particularly germane to the issue. I find that in each situation the home was actually lit when the person entered the home; that, in each circumstance it was unforced entry into the home; and that in each circumstance when the perpetrator was confronted he did not resist, but in fact ran off and exited the residence in the - in what appears to be the way that he entered. And in neither circumstance was the perpetrator wearing glasses.

I don't know if that has a lot do to with the case, but it certainly seems germane based on the questions that have been asked of this witness.

On those findings, even though there are some differences, one complaining witness is a Hispanic and one is an Anglo, one had her husband in bed, and one didn't, I find that these crimes are sufficiently similar to me that I have a hard time telling them apart. And I will allow them for the limited purpose of aiding the jury, if it does aid the jury, in determining the identity of the perpetrator in this case, and will allow it over your objection. Your objection is duly noted in the record.

b. Testimony Admitted Before the Jury.

Following the ruling on the admissibility of the extraneous offense, the jury returned to the courtroom, and the trial court instructed the jury as follows:

Generally speaking, in a case involving a criminal accusation, circumstances or allegations against the Defendant alleging that they committed some other crime other than the one that he or she is standing trial for is not admissible in court.

In the trial today, I'm going to allow some testimony to come in to the case through this witness and the next witness that may have to do with some allegations concerning another crime that may have been committed by somebody. I'm going to allow this testimony in this trial for your to consider, and you'll be getting a written instruction telling me (sic) how you're to limit your consideration of this testimony.

But I want you to know that the testimony that's being allowed at this point in time is admitted to assist you in determining the identity of the perpetrator of the charges alleged in this case, and admitted for that purpose and that purpose only. You cannot consider the testimony that will be coming in through this and the next witness for any other purpose than to help you, if it does help you, in determining the identity of the perpetrator in this case. Do y'all understand my limitation?

Normally when evidence is introduced, the jury can consider and do anything you want to with it. What I'm telling you is when this evidence comes in, you have to put it aside in a special little category, and you can use it only for one purpose, and that's to determine - when you determine identity of the Defendant, if it does help you. I'm not telling you that it will; but if it does, its's allowed for that purpose. (5)

Naomi then testified that she was at her home on August 10, 1999 along with her husband, their two children and two friends of her oldest son. As she slept she felt someone fondling her breasts and vaginal area. Thinking it was her husband, she asked: "What are you doing?" An intruder answered: "Shhhhh, don't wake your husband." Naomi saw a person crouched down in such a way that Naomi could only see the top of his head, and asked, "Who are you?" And the intruder replied: "My name is Jeremy." Naomi screamed, the intruder fled, and Kirk pursued. Naomi later determined the intruder entered though an unlocked window in an empty bedroom.

Kirk testified that he awoke when Naomi screamed that someone was in the house. Kirk identified the intruder as appellant who was not wearing glasses. Kirk was not able to apprehend appellant who exited the residence through a bedroom window.

B. Appellant's Case In Chief.

Appellant's mother, Viola Solis, testified that she lived across the street from the complainant. She met the complainant when she first moved into the neighborhood, and the two would frequently watch television together in Solis' home. Appellant began living with Solis after the complainant established her residence; appellant was living with Solis in March of 1999. He slept in a bedroom with his fianceé, Ruby Gallegos. A fourth person, Hortensia Martinez , also lived in the home. Solis had surgery on March 14, 1999, which made sleeping difficult. Around midnight on March 21, appellant and Ruby went to their bedroom. At 1:30 a.m. Solis left her bedroom and turned off the television in the living room. Solis then peeked into the bedroom and saw appellant and Gallegos in bed. Solis returned to bed where she began watching television. At 1:50 a.m. Solis heard someone screaming. Solis checked on appellant and Gallegos and they were still in their bedroom. After hearing a lot of traffic, Solis called her next door neighbor, Gilbert Ramos, who said the screams were not coming from his house but rather from across the street. Around 3:00 a.m., Solis heard a man say "I'm going to kill you. I'm going to kill you." At 4:00 a.m. the police arrived. Solis escorted them to appellant's room, and called to appellant. He awoke, crossed over Gallegos, put on some underwear and eyeglasses, and was subsequently arrested. Solis stated appellant had been wearing glasses since before the age of ten, that he was required to wear glasses in order to drive, and that appellant did not wear contact lenses. She testified appellant wore his glasses at all times except when bathing and sleeping. Solis also identified a photograph of a tattoo of the Virgin Mary on appellant's inner forearm which he obtained when he was fifteen years old. Photographs of appellant wearing glasses, and of his tattoo were introduced into evidence.

Ruby Gallegos was appellant's fianceé at the time of the alleged offense; the two had married by the time of appellant's trial. On March 21, they went to bed between midnight and 12:30 a.m. Gallegos was awakened later by Solis who was inquiring about someone screaming. Gallegos testified appellant did not leave their bed until his arrest at approximately 4:00 a.m. She testified she would have known if appellant had left their bed, and that the bedroom had only one window but it had an air conditioner in it. Gallegos stated appellant wore his glasses at all times. She further testified appellant had a tattoo on his left inner forearm of the Virgin Mary.

Hortensia Martinez testified that on March 21 she was asleep in her bedroom which was next to appellant's. She also testified that she had not been awakened by anyone prior to the police arriving to arrest appellant.

Amber Moss, a forensic scientist with Gene Screen, examined and tested the sheets and pillow cases from the complainant's bed, the shorts the complainant wore on the night of March 21, a sleeping bag and a pair of boxer shorts from appellant. Her results revealed no DNA match with appellant.

Richard Lasarte, an optometrist for twenty-two years, examined appellant's eyes following his arrest for the instant offense. Lasarte testified that appellant suffered an astigmatism which is a condition that affects the shape of the cornea. The astigmatism caused blurred and distorted vision without the use of corrective lenses. Without eyeglasses, appellant is legally blind. Lasarte stated that people with vision problems like appellant wore glasses for two reasons: first, without glasses, they would not be able to identify faces or judge distances; second, this vision impairment without glasses would lead to headaches and tremendous eye strain. Furthermore, the dryness of appellant's eyes prevented him from wearing contact lenses. Lasarte stated to a reasonable medical probability that appellant's eyesight was so deficient that he could not maneuver without glasses in an unfamiliar place without using his hands to guide him.

C. State's Rebuttal.

In rebuttal, the State called several witnesses. George Hammond, who was outside the home of Gilbert Ramos in the early morning hours of March 21, testified he saw Gallegos crossing the street between 2:00 and 4:00 a.m. However, Hammond did not see anyone run from the complainant's home. He further testified that he had not known appellant to wear glasses before March 21, but that appellant began wearing glasses afterwards. A neighbor, Rita Villarreal, testified that she saw appellant without glasses several times. She also saw Gallegos crossing the street prior to appellant's arrest. Ramon Villarreal, another neighbor, testified to having seen appellant without glasses. Finally, Corporal Gonzales was recalled and testified that when appellant got out of his bed, he did so by getting out on his side, and not by crossing over Gallegos.

D. Defense's Rebuttal.

Viola Solis was recalled as a witness, and through her appellant introduced several more photographs, each showing him wearing glasses. Additionally, Felix Esquivel was called as a witness. Esquivel lived with Gallegos's mother in a house across the street from Solis. Esquivel stated appellant always wore glasses. He further testified that Gallegos did not come to his home until after appellant's arrest.

E. Jury Instruction and Closing Arguments.

At the conclusion of the testimony, the trial court included the following instruction in the jury charge.

You are instructed that if there is any testimony before you in this case regarding the defendant's having committed an offense other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense, if any was committed, and even then you may only consider the same in determining the identity of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.

Both attorneys referred to the extraneous offense in their arguments. Defense counsel reminded the jury of the limited purpose for which the evidence was admitted and argued: "If you go back [to the jury deliberations room] and you convict [appellant] on the sole basis of the Mircovich case, that would be against the law, because you can only rely on it for identity." In contrast, the State used the opportunity to conclude the arguments with an extended reference to the extraneous offense to bolster the complainant's identification of appellant, and to undermine the testimony of Dr. Lasarate.

During its deliberations, the jury sent the trial court a note requesting more specificity "about the phrase 'for identification purposes' only in the Mircovich testimony." The record is silent as to what, if any, response the trial court made to this request. Ultimately, the jury convicted appellant of the charged offense.

II. Extraneous Offenses.

In the instant case, trial counsel lodged specific and timely objections on the basis of Rules 403 and 404(b) of the Texas Rules of Evidence. Therefore, this issue is preserved for our review, and we shall reach the merits of appellant's point of error. We are instructed by Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App. 1990) (op. on reh'g), that appellate review of the trial court decision to admit the extraneous offense evidence is a two-fold process.

A. Rule 404(b) Analysis.

It is a fundamental tenet of our criminal justice system that an accused may be tried only for the offense for which he is charged and not for being a criminal generally. Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992). Rule 404(b) incorporates this tenet by prohibiting the admission of uncharged misconduct evidence that shows nothing more than the accused's general propensity to commit criminal acts. Id. Specifically, Rule 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, ....

Therefore, in order for evidence of other crimes, wrongs, or acts to be admissible, it must have relevance apart from its tendency to prove character conformity. Montgomery, 810 S.W.2d at 387. Relevant evidence is that which has a tendency "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Therefore, evidence of extraneous conduct that logically serves to make more probable or less probable (1) an elemental fact; (2) an evidentiary fact that inferentially leads to an elemental fact; or (3) defensive evidence that undermines an elemental fact is relevant beyond its tendency to prove the character of a person to show that he acted in conformity therewith. (6) Montgomery, 810 S.W.2d at 387.

In the instant case, the trial court determined the extraneous offense evidence was relevant apart from character conformity because it tended to establish the elemental fact of identity, and instructed the jury accordingly. Tex. R. Evid. 105(a). When reviewing a trial court's ruling under Rule 404(b) we employ the abuse of discretion standard. Montgomery, 810 S.W.2d at 391. In this context, if "the trial court's ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede." Id. In the case at bar, when the trial court was considering the Rule 404(b) objection, the following exchange occurred:

THE COURT: [Defense counsel], correct me if I am wrong, the defense in this case is identity, right?

DEFENSE COUNSEL: Right, that was incorrect (sic).

THE COURT: I mean, there is no other defense to this case. I haven't heard that the crime wasn't committed, I haven't heard there was no penetration, that the actor whoever it was, was not attempting to commit a Sexual Assault. There is one issue in this case for the jury to decide, and that issue is identity; am I correct?

THE STATE: That's correct, Your Honor.

DEFENSE COUNSEL: Yes, that's correct.

THE COURT: I'll allow it with a limiting instruction. I'll note your exception, [defense counsel].

Our case law is clear that extraneous offense evidence may be admissible to show identity only when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App. 1985). In light of the mutual agreement of the parties that the only issue in the case was identity, we do not find the trial court abused its discretion in ruling the evidence of the extraneous offense was relevant to the elemental fact of identity apart from its tendency to prove the character conformity. Montgomery, 810 S.W.2d at 387. (7)

B. Rule 403 Analysis.

Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. (8) Texas Courts have followed their federal counterparts and have interpreted Rule 403 to require exclusion when prejudice outweighs probative value. Montgomery, 810 S.W.2d at 392 (quoting United States v. Preston, 608 F.2d 626, 639, n. 16 (5th Cir. 1979)). We apply the abuse of discretion standard when analyzing the trial court's decision to admit evidence over a Rule 403 objection. Montgomery, 810 S.W.2d at 391. This analysis requires more than simply determining whether the trial court conducted a balancing of probativeness and prejudice. Id. at 392. Instead, we measure the trial court's decision to admit the extraneous offense evidence against the relevant criteria by which a Rule 403 decision is to be made. Id. (9) When the relevant criteria is viewed objectively and leads to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the proffered evidence, the appellate court should declare that the trial court erred in failing to exclude it. Id. Finally, when determining whether an abuse of discretion occurred, we consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Hardesty v. State, 667 S.W.2d 130, 135 n. 6 (Tex. Crim. App. 1984). (10)

i. The State's Need for the Extraneous Offense Evidence.

Determining the admissibility of extraneous offense evidence focuses not only on the relevance of that evidence, but the State's need for it as well. Montgomery, 810 S.W.2d at 392. Although rare, the State's need for the extraneous offense evidence may arise as a result of the defendant's cross-examination. Because permitting the introduction of an extraneous offense merely because of cross-examination would undermine the constitutional right to confront one's accusers, U.S. Const. amend VI; Tex. Const. art. I, � 10, the identifying witness must be impeached about (1) a material detail of the identification; (2) the conditions surrounding the charged offense and the witness' identification of the defendant in that situation; or, (3) an earlier misidentification of the defendant. Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985).

In the instant case, the cross-examination of the complainant was inefficacious, and she was not impeached in any material respect. (11) While she testified the intruder did not have a tattoo, there was no evidence at that time to show appellant did, in fact, have a tattoo. The only photograph introduced at the time of her cross-examination showed appellant's outer arms. His inner forearm, which is tattooed, is not visible in the photograph. (12) She further testified that the conditions at the time of the offense were conducive to making a positive identification because of the bright security light outside her bedroom window, and the kitchen light was illuminated. Finally, there was no evidence the complainant made an earlier misidentification of the defendant. To the contrary, the testimony is clear that she identified appellant from a photo spread, and that she did not identify a second suspect. Additionally, she identified appellant as the perpetrator to Duggan, the dispatcher, and to Officer Gonzales. The latter identification was overheard by Officers Cunningham and Anders. Therefore, we find the State's need for the extraneous offense evidence was non-existent. Consequently, we hold the trial court erred in admitting that evidence during the State's case-in-chief.

ii. Untimely Admission of Extraneous Offense Evidence.

Error stemming from the premature admission of extraneous offense evidence may be cured by a defendant's subsequent actions at trial. Siqueiros, 685 S.W.2d at 72; Rubio v. State, 607 S.W.2d 498, 502 (Tex. Crim. App. 1980). (13) An alibi defense may raise the issue of identity. Mayfield v. State, 803 S.W.2d 859, 867 (Tex. App.-Corpus Christi 1991, no pet.); Bruce v. State, 707 S.W.2d 651, 652 (Tex. App.-Corpus Christi 1985, pet. ref'd). In the instant case, appellant raised the defensive theory of alibi when Solis and Gallegos testified he was at home when the charged offense occurred. Additionally, those witnesses raised the issue of identity when they testified as to appellant's glasses and tattoo. Therefore, we find that even though there was no need to admit the extraneous offense evidence during the State's case in chief, there was such a need after appellant's case in chief. Therefore, the evidence may have been admissible in rebuttal.

iii. Similarity of Offenses.

Our law is clear that raising the issue of identity does not automatically render extraneous offense evidence admissible. Lane, 933 S.W.2d at 519. The traditional rule regarding the admission of such evidence for the purpose of showing identity is that the extraneous offense must be so similar to the offense charged that the accused's acts are marked as his handiwork, that is, his signature must be apparent from a comparison of circumstances in both cases. Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993) (citing Beets v. State, 767 S.W.2d 711, 740 (Tex. Crim. App. 1987)); Owens, 827 S.W.2d at 915; Messenger v. State, 638 S.W.2d 883 (Tex. Crim. App. [Panel Op.] 1982), overruled on other grounds, Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984); Collazo v. State, 623 S.W.2d 647 (Tex. Crim. App. 1981). The Court of Criminal Appeals has long recognized that to some extent the commission of any particular offense will have some generic qualities:

there will always be similarities in the commission of the same type of crime. That is, any case of robbery by firearms is quite likely to have been committed in much the same way as any other. What must be shown to make the evidence of the extraneous crime admissible is something that sets it apart from its class or type of crime in general, and marks it distinctively in the same manner as the principal crime.

Ford v. State, 484 S.W.2d 727, 730-31 (Tex. Crim. App. 1972). See also Murphy v. State, 587 S.W.2d 718, 721-22 (Tex. Crim. App. 1979). Therefore, each case must be measured on its own merits. And this measurement must reveal some connective similarity, either in the singular or plural, that rises to the level of a distinguishing characteristic common to both the extraneous offense and the offense charged.

By way of example, in Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979), the court found the charged and extraneous offenses to be sufficiently similar because both occurred at night, in the same area, within a period of one month. The perpetrator was alone, carried a small gun, and tied up the victims in a similar manner. Additionally, in both cases a robbery preceded the rape, and all coins but pennies were stolen from the victims. Id. Similarly, in Clarke v. State, 785 S.W.2d 860, 867 (Tex. App.-Ft. Worth 1990), aff'd 811 S.W.2d 99 (Tex. Crim. App. 1991), the court found the evidence of an extraneous sexual assault was sufficiently similar to the offense charged where in both offenses: the victims were attacked at home during the night; the assailant used duct tape to blindfold both victims and bind their hands and feet; the assailant's face was covered during both attacks; the assailant used a knife in the attack, and asked each victim whether she had a gun in the house; the assailant forced each victim to engage in sexual intercourse several times; and, the assailant either washed the victim's vagina after the attack or made the victim wash her vagina before he left. Id.

But there have been any number of cases where the offenses were not sufficiently similar. Ford, 484 S.W.2d at 730. The most recent example is Avila v. State, 18 S.W.3d 736, 741 (Tex. App.-San Antonio 2000, no pet.), where the State successfully argued in the trial court that the two offenses were sufficiently similar because: both rapes occurred in the dark, at night, when both victims were asleep; both occurred in Crystal City; in both instances the perpetrator entered the room without the consent of the victim; in both instances the perpetrator turned the victims over; in both instances the sexual act was essentially in the same type of position. However, the Avila Court held:

[T]here is nothing in this case that would act as the signature of the perpetrator and affirmatively link the charged offense to the extraneous offense. Although the two offenses share some similarities, we find those similarities are not substantial enough to warrant the admissibility of the extraneous conduct testimony. Both rapes occurred within the city limits of Crystal City during the early morning hours while both victims were sleeping. In each case, the assailant entered the premises without the consent of the victim and raped each victim in a common sexual position. None of these similarities would mark both offenses as the handiwork of the accused. Instead, the similarities are more in the nature of the similarities common to the type of crime itself, rather than similarities peculiar to both offenses involved here.

Avila, 18 S.W.3d at 741 (internal quotation marks and citations omitted). See also Bishop, 869 S.W.2d at 346 (acts testified to by ex-wife were not so unusual and distinctive and so nearly identical to the charged offense as to amount to a signature of the defendant).

In the instant case, the similarities are the intruder, not wearing glasses, entered two residences in the same vicinity, in the early morning hours, fondled the complainants while they slept with a child, and fled when they awoke. In Messenger, 638 S.W.2d at 886-87, the Court of Criminal Appeals held the similarities between the two offenses, namely the assailant entering the victim's houses at night, uninvited, when no man was present in the house, were not so distinctive to rise to the level of the defendant's signature. Likewise, we find the similarities in the instant case are more in the nature of the similarities common to this type of crime itself, i.e., burglary of a habitation with intent to commit and committing sexual assault, rather than similarities peculiar to both offenses. (14) Beyond these similarities, are a number of dissimilarities: the complainants were not of the same race; the intruder was fully clothed in one, but wearing nothing but boxer shorts in the other; (15) on the earlier occasion the intruder fondled both the breasts and vaginal area of the person, while on the latter the intruder fondled only the vaginal area which resulted in digital penetration; the bedroom in the extraneous offense was not lit, but the complainant's bedroom was well lit by an exterior light; there were several people at home in the first offense but only the complainant and her son in the charged offense; and, entry in the extraneous offense was gained by using a chair and climbing through a window, but in the charged offense it was through the unlocked garage. We find no signature characteristic unique to these offense as to mark them as having been committed by the same individual. Without sufficient similarity, the probative value of the extraneous offense evidence is substantially outweighed by its prejudicial effect. Bishop, 869 S.W.2d at 346.

In addition to similarity, remoteness is another factor to be considered in determining whether the extraneous offense bears the defendant's signature. Clarke, 785 S.W.2d at 866. In the instant case, the extraneous offense occurred on August 10, 1998, and the charged offense occurred on March 21, 1999, a period of seven months and eleven days. As a general rule, the greater the time period between the charged and extraneous offenses, the greater likelihood of error in admitting the evidence of the extraneous offense. Siqueiros, 685 S.W.2d at 68 (twenty-six days; upheld); Dickey, 646 S.W.2d 232, 233 (Tex. Crim. App. 1983), (five days; affirmed);Messenger, 638 S.W.2d at 885 (nineteen days; reversed); Bachhofer v. State, 633 S.W.2d 869 (Tex. Crim. App. 1982) (fifty-two months; reversed); Ford, 484 S.W.2d at 731 (two months, reversed); Collazo, 623 S.W.2d at 648 (one year; reversed);Wintters v. State, 616 S.W.2d 197, 199 (Tex. Crim. App. 1981) (two months; affirmed); Collins v. State, 577 S.W.2d 236, 238 (Tex. Crim. App. 1979) (twelve days; affirmed); James v. State, 554 S.W.2d 680, 683 (Tex. Crim. App. 1977) (thirty-three months; reversed); McDonald v. State, 513 S.W.2d 44, 51-52 (Tex. Crim. App. 1974) (one year; affirmed); Robledo v. State, 480 S.W.2d 401, 402 (Tex. Crim. App. 1972) (fifty-one months; reversed).

However, the El Paso Court of Appeals recognized a corollary rule after a careful examination of the temporal proximity evaluation in the aforementioned cases. Lang v. State, 698 S.W.2d 735 (Tex. App.-El Paso 1985, no pet.). The Lang Court found that in each of the cases reversed primarily upon remoteness, there was "a great time lapse with no intervening relevant misconduct to narrow the gap." Id. at 737. In applying this rule, the court found the defendant's subsequent telephoning of the victims to be a distinguishing factor because the telephone calls evidenced "a peculiar diligence in locating their names and telephone numbers and a peculiar persistence of interest in them which rises to the level of signature status." Id. at 737-38. Therefore, the remoteness of thirty-nine months did not militate toward reversal because "this particular modus operandi was alive and operative through the intervening period." Id. However, when this rule is applied in the instant case, we find no intervening misconduct to narrow the seven month and eleven day gap.

Under Montgomery when the record reveals "a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, then an appellate court should conclude that the trial court acted irrationally in failing to exclude it, and thus abused its discretion." 810 S.W.2d at 393. For the reasons stated above, we find we are presented with such a record in the instant case. The relevant criteria, viewed objectively, leads us to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the extraneous offense evidence. Id. at 392. Therefore, we hold the trial court erred in admitting the extraneous offense evidence on the issue of identity. Tex. R. Evid. 403.

iv. Admissible for Another Purpose.

The State argues that if the extraneous offense evidence was not admissible on the issue of identity, it was nevertheless admissible to rebut appellant's alibi. We reject this argument for two reasons. First, the evidence was not offered in the trial court for the limited purpose of rebutting appellant's alibi. Indeed, it could not have been because appellant had not raised his alibi when the extraneous offense was admitted. Consequently, the jury was not instructed that it could consider the evidence for that limited purpose. Tex. R. Evid. 105(a). (16) Such a limiting instruction must be given at the time the evidence is admitted, otherwise the jury is permitted to consider the evidence for all purposes. Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001). Therefore, for an appellate court to hold the trial court erred in admitting evidence for a limited purpose, e.g., identity, but to further hold the evidence was admissible for a separate limited purpose, e.g., to refute a defensive theory, would wholly undermine the rationale and utility behind Rule 105(a).

Beyond the impact of such a holding on Rule 105(a), there is federal precedent in this area. In Giordenello v. United States, 357 U.S. 480, 488 (1958), the defendant challenged the validity of the warrant which led to his arrest and, in turn, the seizure of heroin. The trial court found the warrant was valid and overruled the motion; the Fifth Circuit Court of Appeals affirmed; and, the Supreme Court granted certiorari to consider the legality of the arrest. When the Supreme Court found the warrant was deficient, the prosecution advanced an alternative argument to support the seizure. The Supreme Court refused to consider the alternative argument because it had not been advanced in the trial court. "To permit the Government to inject its new theory into the case at this stage would unfairly deprive [the defendant] of an adequate opportunity to respond. This is so because in the District Court [the defendant], being entitled to assume that the warrant constituted the only purported justification for the arrest, had no reason to cross-examine [the arresting officer] or to adduce evidence of his own to rebut the contentions that the Government makes here for the first time." Giordenello, 357 U.S. 480, 488. (17)

The same is true in the instant case. As can be seen in part I, A, ii, supra, the State's only argument in the trial court justifying admission the extraneous offense evidence was the issue of identity. That it was admitted for this limited purpose is borne out by the trial court's instruction to the jury at the time of its admission to consider the evidence only "in determining the identity of the perpetrator." Accordingly, appellant was entitled to assume identity was the sole purpose for admitting the evidence and responded only to that argument. Therefore, consistent with Giordenello, the State is not now permitted to advance the alternative argument that the extraneous offense evidence was admissible to rebut appellant's alibi.

Second, even if such an argument were permissible, we hold the extraneous offense evidence was not admissible to rebut appellant's alibi. Evidence to rebut alibi is admissible if it places the accused at a place where he claimed not to be, or if the evidence shows the impossibility of his alibi, notwithstanding the fact that it shows the commission of an offense, even if that offense is dissimilar to the charged offense. Ford, 484 S.W.2d at 731. "This is so because in the case of alibi, the evidence is offered to show that the accused was not where he claimed to be, and similarity is not an element of admissibility." Id. But if the alibi concerns only the date of the charged offense, evidence that the defendant committed an offense on a different date does not refute the alibi. Id. Applying this precedent to the instant case, we find the extraneous offense which was more than seven months before the charged offense, could not serve to refute appellant's alibi which was limited to the date of the charged offense, March 21, 1999. Messenger, 638 S.W.2d at 887. (18)

IV. Harm Analysis

Having determined the trial court erroneously admitted the extraneous offense evidence, we must conduct a harm analysis. Rule 44.2(b) of the Texas Rules of Appellate Procedure prescribes the harm analysis for error stemming from the erroneous admission of extraneous offense evidence. Tex. R. App. P. 44.2(b); Webb v. State, 36 S.W.3d 164, 181 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Under that rule, error that does not affect a substantial right must be disregarded. A substantial right is violated when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776 (1946)). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). However, if the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Webb, 36 S.W.3d at 182. Neither party has the burden of proof under rule 44.2(b). Id. Rather, the appellate court will examine the record for purposes of determining harm. Id.

As noted above, the extraneous offense evidence was relied upon heavily by the State in its final argument to both bolster the testimony of the complainant and to undermine the credibility of Dr. Lasarte. Additionally, we find the evidence was considered by the jury to some extent because of the jury's note asking the trial court how to apply the Mircoviches' testimony "for identification purposes." And because the evidence carried little probative value, it would tend to impress upon the jury the notion that appellant acted in conformity with his character, an impression the law seeks to avoid. Tex. R. Evid. 404(a); Avila, 18 S.W.3d at 742. Finally, we know from established precedent that evidence of sexually related misconduct is inherently inflammatory. Bishop, 869 S.W.2d 346. Accordingly, we find the erroneous admission of the extraneous offense evidence had a substantial and injurious effect or influence on the jury's verdict. Consequently, we hold a substantial right was affected. See Tex. R. App. P. 44.2(b). Appellant's sole point of error is sustained.

The judgment of the trial court is reversed, and this cause is remanded for a new trial.

___________________________

Charles F. Baird,

Justice

Publish .

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 31st day of January, 2002.

1. Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. � 74.003 (Vernon 1998).

2. Dios Dado further testified the complainant's husband had been killed in an automobile accident between the date of the alleged offense and the time of trial.

3. When asked why he did not ask the complainant for a description of the intruder, Jones answered: "[S]he had already told the officer at the scene his name, knew where he lived, and she identified him out of a photo line-up. I was convinced that she knew who the perpetrator was."

4. It is the author's policy not to refer to complainants by name. However, because of the circumstances presented here that policy cannot be followed.

5. We note that the limiting instruction was deficient in one respect; it failed to instruct the jury that they must first believe the evidence beyond a reasonable doubt. Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (citing George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994) (if requested at guilt phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense.).

6. Examples of elemental facts are identity or intent; evidentiary facts are motive, opportunity or preparation which lead inferentially to an elemental fact; a defensive theory may be mistake or accident. Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App).

7. Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992), is an excellent example of evidence that does not have a relevance apart from character conformity. In Owens, the only ultimate fact in dispute was whether the appellant committed the charged offense, i.e., aggravated sexual assault of a child; there was no dispute as to identity, motive, intent or any of the other exceptions listed in Rule 404(b). The jury heard the testimony of the defendant and the complainant, appellant's daughter; the State then produced another of the appellant's daughters as a rebuttal witness after the appellant denied the offense occurred. The Court of Criminal Appeals held that evidence of an extraneous offense tending to show the appellant's "system" could not assist the jury in its determination of whether or not the appellant molested the complainant except by showing character conformity in violation of rule 404(b). Thus, under Rule 404(b), evidence of an extraneous crime, wrong or act is admissible only if it helps prove something other than simple propensity to commit crimes.

8. In its entirety, Rule 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."

9. The Montgomery Court specifically noted the following as a non-exhaustive list of relevant criteria: (1) the ultimate issue was not seriously contested by the opponent; (2) that the State had other convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; (3) that the probative value of the misconduct evidence was not, either alone or in combination with other evidence, particularly compelling; and, (4) that the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious. 810 S.W.2d at 392-3. As will be seen infra, the relevant criteria in the instant case are the State's need for the evidence and whether the two offenses are sufficiently similar.

10. An exception to this general rule is applicable where the suppression issue has been consensually re-litigated by the parties during trial on the merits. Hardesty v. State, 667 S.W.2d 130, 135 (Tex. Crim. App. 1984). That exception is not applicable in the instant case.

11. The complainant gave three statements regarding the charged offense; statements one and two were made to male officers, the third was given to a female officer. She did not mention the vaginal penetration to the male officers as she felt uncomfortable. However, the complainant did tell the female officer of the penetration. She admitted that in her three statements she did not say that she had seen appellant before the date of the alleged offense.

12. The instant case is distinguishable from Walker v. State, 588 S.W.2d 920 (Tex. Crim. App. 1979), where defense counsel asked the complainant if she noticed any tattoos and scars on her assailant. When the complainant responded negatively, defense counsel had the defendant stand and display his scars and tatoos for the witness and jury.

13. These cases actually use the term "harmless" in this situation. However, we believe the more accurate term is "cured" because the complaint about the untimely admission is alleviated when the subsequent events at the trial render the evidence admissible.

14. This is borne out by the State argument in the instant case that these offenses are sufficiently similar as to be the handiwork of appellant because, inter alia, (1) both offenses occurred by the offender breaking into private residences; (2) both residences where the offenses occurred were houses; (3) both victims were females; (4) both victims were married with children; (5) both victims were living in their homes with their husbands and children; and, (6) in both cases the appellant entered the residence without consent. But these common characteristics would fit the facts of virtually any burglary of a habitation with the intent to commit and committing sexual assault.

15. The State explained the difference in dress by arguing appellant wore pants to the Mircovich home because of the distance from his house, but wore only boxer shorts to the complainant's home because it was closer. But this argument cuts both ways; by arguing the greater distance is the reason for appellant wearing pants, the State undermines its argument that the offenses were in close proximity.

16. Rule 105(a) states in relevant part: When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; ...

17. Giordenello has been favorably cited for that proposition by the Court of Criminal Appeals. State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998). See also, Steagald v. United States, 451 U.S. 204, 209 (1981).

18. Twenty years ago, the Messenger Court attempted to clarify the misconception that the defense of alibi necessarily authorized the admission of extraneous offense evidence. In Messenger, neither of the extraneous offenses occurred on the night of the charged offense. Therefore, neither extraneous offenses tended to show the defendant was not where he said he was on the night of the charged offense, namely with his ex-wife. Therefore, the extraneous offense evidence was not admissible to rebut the alibi. Messenger v. State, 638 S.W.2d 883, 887 (Tex. Crim. App. [Panel Op.] 1982).

The State acted inconsistently by complaining on direct appeal that the motion was not properly verified, and then shifted positions.......

2007-11-02T04:13:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,108

EX PARTE RODNEY KEITH CASH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS COURT

FROM HARRIS COUNTY

Holcomb, J., filed a dissenting opinion, in which Price, Womack, and Johnson J.J. joined.

D I S S E N T I N G O P I N I O N

I respectfully dissent. The majority denies habeas relief because applicant did not show that he was prejudiced under the second prong of Strickland. (1) I would hold that applicant met the first prong of Strickland (that trial counsel was deficient) and also its second prong, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors , the result of the proceeding would have been different." 466 U.S. at 694.

I. Deficient Performance

Because the majority does not hold whether counsel was deficient, i.e., whether "counsel's representation fell below an objective standard of reasonableness," id. at 688-89, I find it unnecessary to discuss it at great length, other than to say that we have held, in a variety of contexts, that failing to follow clear procedural rules will usually be considered objectively unreasonable representation. See e.g., Ex parte Coy, 909 S.W.2d 927, 928 (Tex. Crim. App. 1995); Ex parte Dietzman, 790 S.W.2d 305 (Tex. Crim. App. 1990); cf. Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986) (rejecting applicant's claim that his lawyer was unfamiliar with the rules of evidence).

I would add, however, that in my view, the motion for community supervision was adequately verified. The "defect" in the motion, according to the majority is that the signature line where applicant's name should appear is blank on the affidavit attached to the motion; however, applicant's signature appears on the face of the motion. But more importantly, the affidavit is subscribed by the trial court clerk, and he or she avers that applicant appeared and swore to the facts contained in the motion. (2) This is and should be sufficient; otherwise, we are elevating form over content. (3)

II. Prejudice

When evaluating whether an applicant was prejudiced by the unprofessional errors of his attorney, a habeas court may not apply an outcome determinative test. Strickland, 466 U.S. at 693-94. That is, we must not place a burden on the applicant to show that he was more likely to have prevailed than not if his lawyer had not committed the unprofessional errors. See id. This standard is inappropriate because the defendant suffers from "the absence of one of the crucial assurances that the result of the proceeding is reliable." Id.

After a careful review of the appellate and habeas records, it appears to me that the majority placed a burden of proof upon the applicant to show that the evidence preponderates in his favor; namely, that applicant did not demonstrate that he would have received probation or a lesser sentence had the jury had the option of granting community supervision. Specifically, the majority concludes that "the central issue of prejudice under Strickland, is whether there is a reasonable probability that applicant's sentencing jury would have recommended probation had the issue been submitted to it." (4) (citing Warden v. Visciotti, 537 U.S. 19 (2002)). Setting aside for the moment that Visciotti is plainly distinguishable, it is also plain that, according to the majority's holding today, applicant would have to demonstrate that there was a reasonable probability that the jury would have recommended probation or a lesser sentence in order to be entitled to relief. This is, in the plain words of Strickland, inappropriate--the holding here is nothing more than an application of the outcome determinative standard prohibited by Strickland.

Now, back to Woodford v. Visciotti. Without more than a parenthetical summary of Visciotti, the majority denies relief because applicant must show (but did not show) that the jury would have recommended a more favorable sentence. However, Visciotti does not set forth, as a substantive rule, that second-prong Strickland error during sentencing must be such that the jury would have given the defendant a lesser sentence. Rather, the Supreme Court in Visciotti simply concluded, as it has many times, that federal habeas review of state-court habeas proceedings must focus on whether the state court's judgment was an unreasonable--not just incorrect--application of federal law. Deciding that the Ninth Circuit had substituted its judgment for the state habeas court, the Supreme Court reversed, noting it may have agreed with either the state or the federal court's interpretation of whether Visciotti was prejudiced by his lawyer's failure to introduce mitigating evidence, but further held that the federal court's duty is not to consider whether the state-court decision is incorrect, but rather, if it involved an unreasonable application of Strickland. As such, Visciotti is not precedent as substantive law to be applied by the state habeas court; instead, it is a decision which limits, pursuant to statute, the federal court's right to reverse a state court's ruling on habeas corpus relief.

After explaining that relief in this case would be based on "pure conjecture and speculation," (5) the majority cites this Court's "highly questionable" pre-Strickland holding in Mercado v. State, 615 S.W.2d at 228, to deny relief. See George E. Dix & Robert O. Dawson, 43A Texas Practice and Procedure § 39.22 (2001) [hereinafter Dix & Dawson]. Mercado was charged with possession of heroin, a jury found him guilty, and assessed punishment at 17 years imprisonment. 615 S.W.2d at 226. In a motion for new trial, Mercado complained that he received ineffective assistance of counsel because his lawyer never told him that he was eligible for an instruction on probation and his lawyer did not file a motion for probation. At the hearing on the motion for new trial, trial counsel testified that he indeed failed to file the motion or inform Mercado that he was entitled to the instruction on probation. Importantly, however, trial counsel testified (unlike trial counsel here; see Strickland, 466 U.S. at 690-91) that his decision not to submit the issue of probation to the jury was one of trial strategy; i.e., that such a request could be viewed by the jury as a partial admission of guilt. 615 S.W.2d at 227.

As a pre-Strickland case, the Mercado panel devoted most of the opinion to hashing out the proper standard of review, and concluded in two sentences (the latter of which is an alternative holding) that Mercado was not entitled to relief because (1) there was no evidence admitted at the motion for new trial or in the record to show that Mercado was eligible for probation, and (2) "[f]urther, under the penalty assessed by the jury under the facts of the case, the jury would not have reached the consideration of any motion for probation, even if one had been filed." Id. at 228.

Thus, the "rule" in Mercado is most certainly dicta, as it was clearly an alternative holding to the conclusion that Mercado had not shown he was entitled to probation in the first place. But the dicta in Mercado has, sadly, morphed into some sort of "rule" which has become to be known as such--when a jury assesses punishment at more than ten years, the improper failure to submit probation as a punishment option cannot be reversible error because the jury would not have reached the consideration of a motion for probation. See Resendez v. State, 2005 Tex. App. Lexis 3340 *3-4 (Tex. App.--San Antonio 2005, no pet.) (not designated for publication); Dix & Dawson, 43Texas Practice and Procedure § 36.58. Indeed, this "rule" is no less speculative or based on conjecture than a conclusion that the lack of a probation instruction did not prejudice applicant. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (per curiam).

Simply put, there is not a sufficiently strong logical connection between the majority's conclusion (that the jury would not have given a more lenient sentence had it had the probation option before it) and the premise (the jury assessed a 40-year sentence). (6) See Dix & Dawson, 43A Texas Practice and Procedure § 39.22 (2001) (if defendant was entitled to have issue of probation submitted to the jury, but it was not, that would surely affect the jury's punishment deliberations because it would not be considering the full range of punishment applicable to the case).

Alas, my belief that Mercado's dicta is unsound because it is based on pure conjecture and speculation, has not swayed a majority of the judges of this Court to overrule this mischievous precedent, but my voice is not without strong allies. Namely, Professors Dix and Dawson have decried the "rule" in Mercado, and more eloquently than I, explain its fallacy as follows:

[The analysis in Mercado] seems incomplete because failure to charge on probation may well affect the length of the sentence the jury ultimately gives because failure to charge on probation gives a false picture of the seriousness of the offense. Further, the jury is instructed that it must assess a punishment of 10 years or less for the defendant to be eligible for probation. [Tex. Code Crim. Proc. Ann. art. 42.12 § 4(d)(1)]. It would not be unusual for a jury to assess 10 years and give probation, when that is an option, but to assess more than 10 years in the absence of the option of probation. In other words, the fact that without a probation option the jury assessed more than 10 years does not mean that it would have rejected probation had that option been made available to it.

Dix & Dawson, 43Texas Practice and Procedure § 36.58 (citing Snow v. State, 697 S.W.2d 663, 665 (Tex. App.--Houston [1st Dist.] 1985)).

In Snow, the court of appeals explained the "gravitational influence" that the probation option may have had on a jury's ultimate verdict:

[T]here is a reasonable probability that a jury instruction concerning probation would have altered the outcome of the punishment by influencing the jury to seriously consider lower sentence that 10 years imprisonment. The right to be considered for probation is valuable, even if probation is not given, because the jury instruction concerning probation forcefully directs the jury's attention to the lowest punishment allowed by law.

I would "overrule" Mercado and follow Snow. See 697 S.W.2d at 665.

The majority cannot say with any assurance that the result of the proceeding was reliable when admitting that the jury did not have before it the proper range of punishment. See Strickland, 466 U.S. at 668. Nor does the majority dispute that the proper range of punishment in this case would have included the option of community supervision. See Maj. Op. at *3 & n.4. Applicant was fifteen years old at the time of the present offense, and the record reflects that he had one prior offense for unauthorized use of a vehicle, committed when he was fourteen years old. This prior offense would not prevent the trial court from granting a jury charge on community supervision. See Tex. Fam. Code Ann. § 51.13(d). Therefore, there was no legal bar to submitting the question of probation to the jury, and the trial court should have done so. (7)

We have repeatedly held that any punishment selected by the jury must fit within the statutory range of punishment. Cartwright v. State, 833 S.W.2d 134, 135 (Tex. Crim. App. 1992); Stein v. State, 515 S.W.2d 104, 108 (Tex. Crim. App. 1974); see also Gonzales v. State, 672 S.W.2d 618, 620 (Tex. App.--Amarillo 1984); Dix & Dawson, 43Texas Practice and Procedure § 36.53. As Professors Dix and Dawson opined,"it seems abundantly clear that the mere fact that the jury selected a punishment within the correct range does not mean automatically that the defendant was not harmed by the mistaken instruction." Dix & Dawson, 43Texas Practice and Procedure § 36.53. A jury is likely to attempt to assess the culpability of the defendant's offense within a continuum of severity as reflected in the range of punishment it was erroneously given by the trial court. Id. Therefore, if the range of punishment is overstated, that would tend to cause the jury to select a more severe sentence than it might have selected had it been correctly instructed. Id. (citing Uribe v. State, 688 S.W.2d 534, 538 (Tex. Crim. App. 1985), overruled on other grounds by Cartwright, 833 S.W.2d at 135).

We discussed an analogous problem in Uribe v. State, saying that when the jury is given a punishment greater than what the law allows, "[t]he court's misdirection thus harms the defendant because the jury is instructed to consider his offense as more serious than the law grades it." 688 S.W.3d at 538. Similarly, since applicant's jury did not receive a charge with the proper range of punishment, and instead received one that erroneously failed to show that the law would have allowed for probation, applicant was surely harmed because it likely caused the jury to consider his crime far more serious than the law graded it. See id. In sum, the fact that applicant suffered from the absence of the minimum punishment allowed by law, applicant sufficiently showed that the outcome of the case was undermined. See Strickland, 466 U.S. at 696. (8)

III. Conclusion

We must always be mindful that when reviewing claims of ineffective assistance of counsel, our ultimate duty is to insure the "fundamental fairness of the proceeding." See id. The process here has not been fair as contemplated by Strickland. See id. Moreover, the record reflects an unreliable result due to a breakdown in the adversarial process, which had more than a mere conceivable affect on the outcome of the proceeding. See id. at 693. Because I do not believe that the proceedings produced a "just result" in this case, I respectfully dissent. See id. at 696; Vasquez v. State, 830 S.W.2d at 951.

Filed: November 16, 2005.

Publish

1.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

2. The State acted inconsistently by complaining on direct appeal that the motion was not properly verified, and then shifted positions on habeas review (where such an argument would be grounds for relief) and argued that the motion was indeed properly verified. Obviously then, the State took the mutually exclusive positions when it would be favorable to itself. This created a fundamentally unfair situation for both applicant and his lawyer.
See e.g., New Hampshire v. Maine, 532 U.S. 742, 749 (2001) ("Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position . . . . "); Tex. Code Crim. Proc. Ann. art. 2.01 (It shall be the primary duty of all prosecuting attorneys not to convict but to see that justice is done).

3.
But even though I believe that trial counsel should not be found deficient for failing to insure that the motion for community supervision was verified properly, applicant's argument that trial counsel was deficient for failing to put on any evidence to show that applicant was indeed entitled to probation is a more compelling argument. See Tex. Code Crim. Proc. Ann. art 42.12 § 4(e); see e.g., Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. [Panel Op.] 1981).

4. While it is hard to imagine how applicant could ever meet such a burden as set forth by the majority today, see Tex. R. Evid. 606(b), Strickland clearly states that the applicant need not do so to be entitled to habeas relief.
Strickland, 466 U.S. at 694 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.").

5. The majority concludes that the basis for granting relief in this case would amount to "conjecture and speculation." Webster defines "conjecture" as "a conclusion deduced by surmise or guesswork." Webster's Ninth New Collegiate Dictionary 277 (1983). "Speculate" means "to take to be true on the basis of insufficient evidence." Id. at 1133. Would it not though be equally true that the majority's holding today, and the reasoning in Mercado, are also based on pure conjecture and speculation?

6. The "Modus Ponens" reasoning of Mercado goes something like this:

If "P" then "Q".

"P"; Therefore "Q"

Assign "the jury gave a forty-year sentence in this case without the probation option" to P; Assign "the jury would not have considered a lighter sentence even with probation option" to Q. The equation we end up with is this:

If the applicant received a forty-year sentence, then the jury would not have considered probation or a lighter sentence. Applicant received a forty-year sentence; therefore, the jury would not have considered probation or a lighter sentence.

This reasoning merely affirms the consequence, which is a non-sequitur ("it does not follow") and faulty logic. See A. R. Lacey, A Dictionary of Philosophy (3d ed. 1996). By plugging other facts into the model, the faulty logic is easier to see:

If the streets are wet, then it's raining. The streets are wet; therefore, it's raining.

I would solidly renounce Mercado.

7. "[A] a court should presume . . . that the judge or jury acted according to law." Strickland, 466 U.S. at 694. I find footnote 6 of the majority opinion worthy of comment. Strickland instructs that we must presume the judge and the jury acted in accordance with the law. As the majority has nearly conceded, applicant was entitled to the probation instruction. Accordingly, whether the trial court would have committed error anyway is not a proper consideration and should not be a factor in this Court's reasoning upon applicant's ineffective assistance of counsel claim. This improper consideration further indicates a fundamentally unfair result in this case. See id. at 696.

8. Errors that undermine confidence in the fundamental fairness of the proceeding justify habeas relief. See, e.g., Teague v. Lane, 489 U.S. 288, 311-314 (1989).

Republican Party People

2007-09-02T20:30:00.000-07:00

Prosecutors admit error in whistleblower conviction.......
Posted on July 22, 2007 at 03:31:43 AM by d1

They dont have to admit error at all, there is no law that forces them to, even if wrong. Who wants to put in writing for all to see that you screwed up in such a major way? It is clear from the filing that they prosecuted

for revealing the vulnerability, they specifically said that they were wro...

[ more ] [ reply ]
The government does not admit error lightly 2003-10-16
Anonymous
I smell civil suit, go get them!...

[ more ] [ reply ]
Prosecutors admit error in whistleblower conviction 2003-10-16
Ben (2 replies)
This is big. With all of the full-disclosure discussions going on, the government saying that just saying that there is a flaw isn't illegal is HUGE.

Everyone on those mailing lists and the security researchers should thank McDanel....

[ more ] [ reply ]
Prosecutors admit error in whistleblower conviction 2003-10-16
Anonymous1
Egregious enough to sue for lost wages ?...

[ more ] [ reply ]
Prosecutors admit error in whistleblower conviction 2003-10-17
Anonymous
According to an latimes article, he was not allowed to work (partly due to dirty tricks) for 3 years. Maybe he will eventually get a job again :/

http://www.latimes.com/business/la-fi-squirrel16oct16,1,1837317.story?coll=la-home-todays-times

...
http://www.securityfocus.com/cgi-bin/index.cgi?c=articlecomments&op=display_comments&ArticleID=7202&expand_all=true&mode=threaded

Evidence to support a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable pr

2007-08-24T00:32:00.000-07:00

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NUMBER 13-06-501-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROBERT S. SALINAS, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Justice Benavides

Appellant Robert Salinas claims that he received ineffective assistance from his trial counsel when counsel failed to (1) present and obtain rulings from the trial court on filed motions and (2) secure a witness through subpoena. We disagree and affirm the judgment of the trial court.

I. Factual Background

On February 2, 2006, Robert Salinas was indicted for aggravated sexual assault of a child, a first degree felony, and indecency with a child by touching, a second degree felony. Tex. Penal Code Ann. § 22.021(a) (Vernon 2007); Tex. Penal Code Ann. § 21.11 (Vernon 2007).

Salinas's counsel, during the course of trial preparation, filed the following motions: (1) a Motion for Discovery and Inspection of Evidence, (2) a Motion for Discovery of Punishment Evidence, (3) a Motion for Production of Favorable Evidence, and (4) a Motion for Production of Witness Statements after Direct Examination. Although trial counsel filed these motions, he did not present any of the motions to the trial court or obtain rulings on them. During the trial, no dispute arose over any discovery matters which would have related back to the pretrial motions filed.

At trial, Salinas sought to have a witness testify on his behalf who did not appear. Salinas's trial counsel did not secure the witness through subpoena. Trial counsel stated that the witness's testimony would only last five to ten minutes, but did not otherwise expound upon the substance of the testimony. Trial counsel then requested, and was granted, an extra ten minutes to wait for the witness to appear, but she never did. After the recess, the defense rested. Salinas's counsel did not make a record of what the witness would have said or why her testimony would have changed the outcome of the trial.

Salinas was convicted on both counts on August 8, 2006. He received sentences of fifty years and twenty years, respectively, in the Texas Department of Criminal Justice Institutional Division. The district court ordered the sentences to run concurrently. Salinas now appeals his conviction, arguing that his trial counsel was ineffective.

II. Standard of Review

When evaluating claims of ineffective assistance of counsel, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim App. 1986) (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)). In order to overcome this presumption, an appellant must demonstrate by a preponderance of the evidence that (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's professional errors the trial result would have been different. Strickland, 466 U.S. at 688. A "reasonable probability" means a probability sufficient to undermine confidence in the outcome. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). The defendant bears the burden of proving both elements of an ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.-Corpus Christi 2000, no pet.).

III. Analysis

The acts or omissions complained of in an ineffective assistance of counsel appeal must appear on the record, and a silent record providing no explanation for counsel's conduct is insufficient to overcome the presumption of reasonableness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). It is "critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic." Batiste v. State, 217 S.W.3d 74, 83 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

An appropriate record, including counsel's reasons for his actions, is generally prepared at a hearing on a motion for new trial or developed by a writ of habeas corpus. Batiste, 2006 Tex. App. LEXIS 8822, at *19-20. "'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Goodspeed, 187 S.W.3d at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). Absent an opportunity for the attorney to explain his actions, an appellate court should not "find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

This presumption of reasonable professional judgment which we extend to trial counsel means that we may not speculate about the reasons that trial counsel did not file a particular motion. Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.-Waco 2000, pet. ref'd). It is possible, for instance, that trial counsel may simply have decided that the presentation of a particular motion would have been frivolous. Id. If there is no explanation for trial counsel's actions in the record, then we must presume that counsel was better positioned than the appellate court to judge the pragmatism of the decision. Ex parte Okere, 56 S.W.3d 846, 856 (Tex. App.-Dallas 2001, no pet.).

Similarly, an appellate court is also barred from revisiting trial counsel's failure to subpoena a witness unless there is an explanation in the record as to what the testimony of the witness would have established. Id. Lacking an offer of proof or any other evidence that would provide such an explanation, a court has no basis for evaluating whether there was a reasonable probability that the outcome of the trial would have been different had the witness been subpoenaed and testified. See Reese v. State, 905 S.W.2d 631, 635-36, 638 (Tex. App.-Texarkana 1995, pet. ref'd). To do so would be mere speculation on our part.

Salinas argues that his counsel's failure to present four motions and subpoena a specific witness constituted ineffective assistance of counsel. The record is silent, however, as to any explanation for counsel's actions in either situation. With no explanation of the motivation behind counsel's decisions, we find that Salinas has failed to overcome the strong presumption of reasonable assistance extended to trial counsel. Salinas has not shown that his counsel's actions fell below an objective standard of reasonableness or that but for these actions the outcome of his trial would have been different. Strickland, 466 U.S. at 687.

IV. Conclusion

The judgment of the district court is AFFIRMED.

_________________________

GINA M. BENAVIDES,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 23rd day of August, 2007.

Watt is the priority? Husband starves wife...or STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE mata? hmmmm

2007-08-13T03:05:00.000-07:00

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Supreme Court Briefs

In the Supreme Court of the United States

BUSH, George W.
v.
PALM BEACH COUNTY CANVASSING BOARD, ET AL
No. 00-836

Brief Amicus Curiae on
Behalf of
DISENFRANCHISED VOTERS IN THE USA
Brief in Support of Neither Party
Affirming in Part the Opinion of the Florida Supreme Court and
Seeking Equitable Relief

Filed Under Rule 37.6 of the United States Supreme Court Nov. 28, 2000
EXPEDITED BRIEF ON 81/2 by 11 paper, white cover (Final version to be delivered to the Clerk of the US Supreme Court with appropriate colored cover on or before 4p.m. Tuesday December 5, 2000)

Attorney for Amicus Curiae
Ilise L. Feitshans JD and ScM
Counsel of Record
Adjunct Faculty Cornell University ILR and
The George Washington University School of Public Health
Post Office Box 2233 Haddonfield NJ USA 08033
856 428 0605 fax 856 428 4198
ilise@prodigy.net

NOTE: THIS BRIEF WAS INITIALLY FILED ON BEHALF OF CHARLES WEILER, MARYANN HUNSBURGER AND PATRICK McFADDEN, citizens who voted in the November 2000 Election for the 43rd President of the United States. By leave of these Amici and of the Clerk of the Supreme Court of the United States, this brief is hereby Consolidated with Petitions Pro Se by two voters who were unaware of the Rules of Procedure of the US Supreme Court of the United States and would have otherwise been without representation in this matter even though they have spent time and effort writing briefs for this case on their own. Those two voters, Gregory Apelain and Justin A. Frank, have joined the original Amici. Their comments essentially parallel the view of the original Amici and therefore will appear as Exhibit 1 and Exhibit 2 of the final version of this brief.

Brief Amicus Curiae on
Behalf of DISENFRANCHISED VOTERS IN THE USA
Brief in Support of Neither Party
Affirming in Part the Opinion of the Florida Supreme Court
and Seeking Equitable Relief

Table of Contents
Table of Authorities and Cases Cited

STATEMENT OF INTEREST BY AMICUS

SUMMARY OF THE ARGUMENT

1. RULE 37.6 NOTIFICATION

2. QUESTIONS PRESENTED BY THIS COURT

3. STATEMENT OF THE CASE

1. POTENTIAL UNCONSTITUTIONAL PRACTICES IN FLORIDA IMPACT THE ENTIRE NATION

2. STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE

4. QUESTIONS PRESENTED TO THE COURT

QUESTION 1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. s 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day.

1. JUDICAL REVIEW, ALTHOUGH RETROSPECTIVE IS NOT A RETROACTIVE USE OF THE LAW.

2. THE FLORIDA COURT RULED NARROWLY, CONSISTENT WITH THE UNITED STATES CONSTITUTION AND THE VOTING RIGHTS ACT OF 1965 AND THE OBLIGATION OF COURTS TO RESOLVE POST-ELECTION DISPUTES.

3. VOTING RIGHTS OF ALL VOTERS ARE IMPACTED BY THESE CIRCUMSTANCES REQUIRING A COMPLETE RECOUNT OF ALL BALLOTS OR A NEW ELECTION:

QUESTION 2: Whether the state court's decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct."

1. THE UNITED STATES CONSTITUTION ALLOWS LEEWEAY TO THE STATES BUT DOES NOT ALLOW OR ENCOURAGE LEGISLATORS TO SUBSTITUTE THEIR WISHES OR DESIRES FOR THE WILL OF THE PEOPLE

2. THE WILL OF THE PEOPLE OF FLORIDA IS PRESENTLY UNKNOWN

Question 3. What would be the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with 3U.S.C Sec. 5?

UNCONSTITUTIONAL ELECTION LAWS REQUIRE REMEDIES SUCH AS RECOUNT OR A NEW ELECTION

CONCLUSION:
UNCONSTITUTIONAL LAWS CANNOT BE SUPPLANTED BY THE ARBITRARY SELECTION OF ELECTORS BY LEGISLATORS AND REQUIRE A FULL RECOUNT OF ALL BALLOTS OR A NEW ELECTION

EXHIBITS:
1 and 2 AWAITING COPY FROM AUTHORS

Brief Amicus Curiae on
Behalf of DISENFRANCHISED VOTERS IN THE USA
Brief in Support of Neither Party
Affirming in Part the Opinion of the Florida Supreme Court
and Seeking Equitable Relief

Table of Authorities and Cases Cited
CASES CITED:

Anderson v. Celebrezze, 460 U.S. 780 (1983),

FLADELL and ALBERTA MCCARTHY and LILLIAN GAINES, Plaintiffs. vs. PALM BEACH COUNTY CANVASSING BOARD, as constituted by County Court Judge Charles Burton; Supervisor of Elections Theresa LePore; and County Commissioner Carol Roberts; GEORGE W. BUSH, DICK CHENEY, AL GORE and JOE LIEBERMAN, Defendants. CASE NO. CL '00 10965 Florida Circuit Court, Fifteenth Judicial Circuit, Palm Beach County. November 8, 2000

Kramer v Union Free School District No. 125 395 US 621 (1969).

League of United Latin American Citizens (LULAC) v. North East Independent School Dist., W.D.Tex.1995, 903 F.Supp. 1071.)

Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803)

McCulloch v Maryland 17 US (4 Wheat.) 316, 421 (1819)

McDERMOTT, et al , CANVASSING BOARD OF VOLUSIA COUNTY, FLORIDA, Plaintiffs, v. HONORABLE KATHERINE HARRIS,

MILLER, a registered voter of the State of Florida Plaintiff, v. KATHERINE HARRIS, Secretary of State, et. Al. DOCKET-NUMBER: 00-9004-CIV United States District Court, S.D. Florida. November 8, 2000) (withdrawn)

National Ass'n for Advancement of Colored People, Inc. (NAACP) v. City of Niagara Falls, N.Y., W.D.N.Y.1994, 913 F.Supp. 722, affirmed 65 F.3d 1002.)

SIEGEL, et al., Florida REGISTERED VOTERS, PLAINTIFFS/APPELLANTS, and GOVERNOR GEORGE W. BUSH and DICK CHENEY, et.al. v. THERESA LePORE, et. Al. COUNTY CANVASSING BOARDS of PALM BEACH, MIAMI-DADE, BROWARD and VOLUSIA COUNTIES, 00-15981 United States Court of Appeals, Eleventh Circuit. November 15, 2000;

South Carolina v Katzenbach 383 US 301, 314-15

STATUTES AND U.S. CONSTITUTIONAL PROVISIONS
Civil Rights Act 42 U.S.C. 1983

United States Constitution: Article IV: Section 1.

United States Constitution Fourteenth Amendment

United States Constitution Due Process Clause or 3 U.S.C. s 5

Voting Rights Act of 1965 (Amended 1970) 42 U.S.C. 1973

OTHER AUTHORITIES:
Brief of Petitioner George W. Bush Jr. Bush v. Palm Beach County Board of Cavassers United States Supreme Court 00-836 November 22, 2000

Laurence Tribe, AMERICAN CONSTITUTIONAL LAW "RIGHTS OF POLITICAL PARTICIPATION" Second Edition, The Foundation Press NY at 1086-87]

In the Supreme Court of the United States
BUSH, George W.
v. PALM BEACH COUNTY CANVASSING BOARD, ET AL
No. 00-836
Brief Amicus Curiae on
Behalf of
DISENFRANCHISED VOTERS IN THE USA
Brief in Support of Neither Party
Affirming in Part the Opinion of the Florida Supreme Court and Seeking Equitable Relief
Filed Under Rule 37.6 of the United States Supreme Court

Nov. 28, 2000

Attorney for Amicus Curiae
Ilise Levy Feitshans JD and ScM
Counsel of Record
Adjunct Faculty Cornell University ILR and
The George Washington University School of Public Health
Post Office Box 2233
Haddonfield NJ USA 08033
856 428 0605 fax 856 428 4198
ilise@prodigy.net

STATEMENT OF INTEREST BY AMICUS
Charles J. Weiler is a voter from the State of New Jersey. Mr Weiler has been an American citizen since he was born, and served in the US Peace Corps. Mr Weiler has been a registered voter since 1972. He is a self-declared "Independent" voter who does not regularly associate with any particular political party affiliation. Maryann B. Hunsberger, a voter from the State of New Jersey, has been an American citizen since she was born, and has been a registered voter since 1976. She is a disabled American. Patrick J. McFadden, is a voter from Pennsylvania, and has been an American citizen since he was born; he has been a registered voter since 1969. Gregory Apelain is a voter from the State of New Mexico. Mr. Apelian has been an American citizen since he was born. Mr. Apelian has been a registered voter since 1980. Justin A. Frank, MD, is a voter from the District of Columbia, (Washington, D.C.). He has been an American citizen since he was born and has been a registered voter since 1964.

Mr. Weiler and similarly situated US Citizens who voted in the State of New Jersey and other states in the United States during the national presidential election that was held on November 7, 2000 have an interest in preserving his franchise and that of other voters. Mr. Weiler and other similarly situated voters run the risk of having their vote diluted or disenfranchised by any or all unconstitutional Florida State Electoral laws or unconstitutional practices under Florida Election laws that obfuscate their votes so that the will of the people cannot be heard.

SUMMARY OF THE ARGUMENT
A fundamental precept of democracy embraces recourse to the courts after events have occurred. A fundamental precept of asking the courts to solve problems retrospectively is the essence of Judicial Review, which often requires crafting a new rule to fix a pre-existing problem after the problem has become manifest, but in the process also filling the void in the law with a new rule in order to solve the problem at bar. The case at bar involves the decision of the Florida Supreme Court solving a problem by crafting a rule as needed, but not in a prohibited "retroactive" manner. The problem it attempted to solve threatens to disenfranchise voters throughout the United States of America who voted in the national election for the 43rd President of the United States, if the laws in Florida are found to be unconstitutional or if the electoral process in Florida as applied in that election cannot withstand strict scrutiny as the sacrosanct right to vote requires under the United States Constitution. If the Florida law can be repaired as the Florida Supreme Court attempted, there should be a statewide recount of votes. If the law is so flawed that it must be discarded, there should be a new election as a consequence of these flaws. The legislature, although authorized under the US Constitution to select electors, cannot supplant the will and voice of the people if that voice as expressed through voting has not been clearly heard. The Florida legislature must therefore await such recounted ballots or new election before it can instruct or select its electors.

I. RULE 37.6 NOTIFICATION
All parties to this case have granted a blanket consent for Amici. Note: this brief was initially filed on behalf of CHARLES WEILER, MARYANN HUNSBURGER AND PATRICK McFADDEN, citizens who voted in the November 2000 Election for the 43 rd President of the United States. By leave of these Amici and of the Clerk of the Supreme Court of the United States, this brief is hereby Consolidated with Petitions Pro Se by two voters who were unaware of the Rules of Procedure of the US Supreme Court of the United States and would have otherwise been without representation in this matter even though they have spent time and effort writing briefs for this case on their own. Those two voters, Gregory Apelain and Justin A. Frank, have joined the original Amici. Their comments essentially parallel the view of the original Amici and therefore will appear as Exhibit 1, (Gregory Apelian) and Exhibit 2 (Justin Frank) in the final version of this brief.

II QUESTIONS PRESENTED BY THIS COURT
1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. s 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day.

2. Whether the state court's decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct."

3. What would be the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with 3U.S.C Sec. 5?

III. STATEMENT OF THE CASE

A. POTENTIAL UNCONSTITUTIONAL PRACTICES IN FLORIDA IMPACT THE ENTIRE NATION
The United States Constitution (Article IV: Section 1.) requires "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the relief thereof." [See also: Exhibit 1 by Gregory Apelian]

The national election of President and Vice President transcends state boundaries and has implications beyond local (State) elections. Upholding the election laws faithfully executed in other States of the United States requires under the United States Constitution, as a social contract, that each State create through its legislature and implement through its own means lawfully impartial and fair elections. That social contract is codified in Article IV of the United States Constitution, the "full faith and credit" clause.

While the process may be shaped by the legislature of each State in part, that process is subject to judicial review to correct unforseen problems or irregularities, and the integrity of the entire nation election rests upon the good faith belief that each State will respect the other by refraining from improper practices. The appearance of impropriety in an election harms the integrity of the outcome of the whole and therefore is a matter of constitutional and national concern. Furthermore, this Court has consistently given matters regarding the paramount right to vote strict scrutiny. Democracy so requires. The concept of Judicial Review, endemic in an appreciation of all the workings of this Court and the Courts of the States of the United States is a long-cherished principle of democracy, first pronounced by this Court nearly two hundred years ago, Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803), which asked questions that would be equally apt before the Florida Supreme Court this year, "2d.If he has a right, and that right has been violated, doo the laws of this country afford him a remedy? [and] 3d. If they do afford him a remedy, is it a mandamus issuing from this Court?"

The Marbury Court exhibited prescience again, regarding events in Florida recent to us but centuries after it wrote its opinion, "It is not the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined".

As stated by Petitioner (p.4)"The choosing of presidential electors is a matter of great national importance and interest."ÔAs this Court stated in Anderson v. Celebrezze, 460 U.S. 780 (1983), [I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.'Id. at 794-95. As cited by Petitioner. Furthermore, one need not have a special interest or stake in the outcome of a particular election in order to have a voice as a voter in that election (Kramer v Union Free School District No. 125 395 US 621 (1969). Under vigorous equal protection scrutiny, this Court has suggested that the fundamental character of the right to vote is crucial to ensuring that elected officials fairly represent the electorate. [Laurence Tribe, AMERICAN CONSTITUTIONAL LAW "RIGHTS OF POLITICAL PARTICIPATION" Second Edition, The Foundation Press NY at 1086-87]

One unprecedented aspect of the recent election in Florida is that it has produced a remarkable amount of litigation, characterized by the Petitioner as "chaos". Without addressing the merits of these cases, the mere existence of such litigation demonstrates that the existing Florida laws are, if not unconstitutional, then problematic at best. Dozens of cases have been filed, only a small sample of which are cited here for brevity. (See: McDERMOTT, et al , CANVASSING BOARD OF VOLUSIA COUNTY, FLORIDA, Plaintiffs, v. HONORABLE KATHERINE HARRIS, as SECRETARY OF STATE, STATE OF FLORIDA, and HONORABLE KATHERINE HARRIS, HONORABLE BOB CRAWFORD, HONORABLE LAURENCE C. ROBERTS, as the ELECTIONS CANVASSING COMMISSION, Defendants requesting extended time from the Secretary of State of Florida to count votes; See also: MILTON H. MILLER, a registered voter of the State of Florida Plaintiff, v. KATHERINE HARRIS, Secretary of State, Chief Election Officer, THERESA LePORE. Supervisor of Elections for Palm Beach County, Florida, and FLORIDA DEPT OF STATE, DIVISION OF ELECTIONS Defendant, seeking EMERGENCY MOTION FOR INJUCTIVE RELIEF DOCKET-NUMBER: 00-9004-CIV United States District Court, S.D. Florida. November 8, 2000)

In Miller V,. Harris, above, (withdrawn) Plaintiff voted for a presidential candidate but was unsure of who he voted for as a result of the "confusing and misleading ballot" See also: SIEGEL, et al., Florida REGISTERED VOTERS, PLAINTIFFS/APPELLANTS, and GOVERNOR GEORGE W. BUSH and DICK CHENEY, as CANDIDATES for PRESIDENT and VICE PRESIDENT of the UNITED STATES OF AMERICA, Plaintiffs-Appellants v. THERESA LePORE, et. Al. COUNTY CANVASSING BOARDS of PALM BEACH, MIAMI-DADE, BROWARD and VOLUSIA COUNTIES, Respectively, Defendants-Appellees. 00-15981 United States Court of Appeals, Eleventh Circuit. November 15, 2000; See also ANDRE FLADELL and ALBERTA MCCARTHY and LILLIAN GAINES, Plaintiffs. vs. PALM BEACH COUNTY CANVASSING BOARD, as constituted by County Court Judge Charles Burton; Supervisor of Elections Theresa LePore; and County Commissioner Carol Roberts; GEORGE W. BUSH, DICK CHENEY, AL GORE and JOE LIEBERMAN, Defendants. CASE NO. CL '00 10965 Florida Circuit Court, Fifteenth Judicial Circuit, Palm Beach County. November 8, 2000 which states in its pleadings: "all of the candidates for the Presidential election were listed on two facing pages of the ballot booklet that is attached to each voting machine. The punch holes for each candidate were in a single column that ran between the facing pages.. The names of independent (non- Democratic and non-Republican candidates such as Pat Buchanan) and the punch holes for such candidates were placed adjacent to the names of the Democratic Candidates, Al Gore and Joe Lieberman. . As a result, many voters, and in particular, many senior citizens, intending to vote for Al Gore and Joe Lieberman, mistakenly punched the punch hole on the ballot card designated for Pat Buchanan and Ezola Foster (hole #2).[That same document continues]"In addition, the holes in the ballot cards for numbers 4 (Gore and Lieberman) and 5 (Pat Buchannan and Ezola Foster) were directly adjacent to the section of the ballot listing the Democratic candidates (Gore and Lieberman). As a result, many voters, and in particular, many senior citizens, intending to vote for Al Gore and Joe Lieberman punched punch hole numbers 4 and 5 in the mistaken belief that such numbers referred to a vote for Al Gore and Joe Lieberman. It has been reported in the Palm Beach Post that in Palm Beach County Reform Candidates (Pat Buchannan and Ezola Foster) received 3,040 votes."). Despite this morass, Florida law does clearly require the counties and if necessary, reviewing courts "to determine the voter's intent." Fla. Stat. s 102.166(7) (emphasis added). The totality of the problems described in good faith in these and other pleadings silence the voice of the people in Florida so that the true intentions of the voters remains unknown.

B. STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE

When viewed in the aggregate, the citizen cases filed in good faith (listed above) raise a suspicion of impropriety that merits strict scrutiny when the fundamental right to vote is at stake, especially when the election involved is a national election for the President of the United States.

This situation was further complicated on November 26, 2000 when, pursuant to the first of two deadlines made available to the Florida Secretary of State in her discretion for accepting final vote tallies for certification, the Secretary of State accepted a combination of original tallies from some counties, hand counted-recount tallies with corrections from other counties, and rejected a partial recount from yet another county which requested additional time to complete its task, even though that same county noted that its work would be completed before the second of the court- established deadlines. It has also been reported in news media that there may be anywhere from ten thousand to twenty thousand uncounted votes across various Florida counties. The Voting Rights Act was designed to protect every citizen's vote from precisely such errors. Also, the law is designed top prevent the dilution or usurpation of the votes from blacks, other minorities or other suspect classifications in a pattern, "had all people cast ballots that could be counted along the same lines as their neighbors, Mr. Gore would have gained nearly 7000 (seven thousand) votes. [See New York times, Wednesday Nov 29 2000 "Racial Pattern In Demographics of Error-Prone Ballots" A25 by Josh Barbanel and Ford Fessenden] The same article previously noted that, "The impact of these differences on the outcome will never be known but their potential magnitude is evident in Miami-Dade County, where predominantly black precincts saw their votes thrown out at twice the rate as Hispanic precincts and nearly four times the rate of white precincts. In all, one out of eleven ballots in predominantly black precincts were rejected, a total of 9,904 (nine thousand nine hundred and four)." Id., New York Times. [See also: Exhibit 2 by Justin A. Frank, MD]

The Voting Rights Act of 1970 was enacted to enforce the Fifteenth Amendment which provides that the right of citizens to vote shall not be denied or abridged by the United States or by any state on count of race, color, or previous condition of servitude. (National Ass'n for Advancement of Colored People, Inc. (NAACP) v. City of Niagara Falls, N.Y., W.D.N.Y.1994, 913 F.Supp. 722, affirmed 65 F.3d 1002.)

Thus, the "standardless" recounting in "chaos" about which the Petitioner initially complained was actually compounded by partisan refusal to accept partial tallies and await a later, but no less convenient deadline before certification [See Petitioner's Brief]. Consequently, whether by intention or by inherent flaws in the Florida Election laws and its attendant process, the Certified votes for Florida at the time of this writing are an incomplete admixture of several inconsistent tallying methods and cannot accurately reflect the will of the people. Such problems, regardless of their cause or their precise number, rise to such a level of magnitude that they encompass the entire voting process and have undermined the integrity of the entire nation's votes, threatening to abridge the Fourteenth Amendment due process rights of all voting citizens in the United States.

The more voters that are disenfranchised in Florida and in the nation, the more we give up our democracy. The good faith obligation of the States to pass and uphold fair election laws is a part of the social contract between the States of the United States that is a fundamental bedrock of our nation's union. Under the United States Constitution Article IV, full faith and credit for the acts of the respective States requires no less than an honorable and honored mutual respect, exhibited in part through fair and accurate election laws and attendant electoral process. To be meaningful, such requirements for full faith and credit necessarily include keeping "such acts, records, and proceedings" of elections for President and Vice President of the United States. Furthermore, the failure of any one State to uphold its portion of the social contract that requires fair, accurate and objective counting (or recounting) of ballots is a breach of the social contract between the States of the United States as expressed and implied in the US Constitution. Such a breach of the social contract taints the entirety of any national Presidential election, thereby disenfranchising all citizens who voted in said national election.

IV QUESTIONS PRESENTED TO THE COURT
1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. s 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day.

A. JUDICIAL REVIEW, ALTHOUGH RETROSPECTIVE IS NOT A RETROACTIVE USE OF THE LAW.
Petitioner mischaracterizes the decision of the Florida Supreme Court as "retroactive" and perhaps even prohibited "ex post facto" laws (See Petitioner's Brief) . Yet, the logic of a situation rife with inconsistencies in the written legislative statute mandates that a court review the election laws as applied to ballots cast by voters. Such review can only occur after the electoral process has revealed its embedded errors, and therefore by definition must be a post-hoc review. To be meaningful, the court must be able to rule without being considered to have written prescribed retroactive or ex post facto rules. The Constitutional principle of Judicial Review has long been known to this Court, first articulated nearly two hundred years ago in Marbury v. Madison 1 Cranch 137, 2 L.Ed 60 (1803).

Petitioner has noted, "Given the national significance of the Florida election results, it is essential that the counting of ballots be conducted in a fair and consistent manner in accordance with established Florida law". Petitioner fails to point out that the system, absent judicial intervention, had reached an impasse because of the legislature's failure to provide clear deadlines for beginning or completing requested or mandatory recounts of ballots. The Florida Supreme Court crafted a deadline to save the statute. In Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803), whose remarkable prescience speaks to the issues at Bar, [supra] this Court further opined, "Those then who controvert the principle that the Constitution is to be considered, in court, as paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law".

If anything, the more convenient was also the later deadline: Tallies accepted at the first deadline required the Secretary of State on Sunday November 26 2000 to open her offices, which would otherwise be closed for the National Holiday of the Thanksgiving weekend; the second deadline was Monday morning at 9a.m.

B. THE FLORIDA COURT RULED NARROWLY, CONSISTENT WITH THE UNITED STATES CONSTITUTION AND THE VOTING RIGHTS ACT OF 1965 AND THE OBLIGATION OF COURTS TO RESOLVE POST-ELECTION DISPUTES
To the extent that errors in the Florida electoral process impinge on the franchise within and without the State, the Florida Supreme Court surgically attempted to reconstruct the broken fragments of the statute in order revive an otherwise lifeless will of the people as it was laid before its bar.

To rectify this situation requires either a statewide recount with appropriate guidelines set forth by this Court, or a new election under new laws. The Florida Supreme Court held that the right to vote is the paramount right and therefore read savings measures into the text of the otherwise unworkable statute that governed the Florida election for the 43rd President of the United States. The alternative would have required the voters to hold a new election without clear rules to govern the election,.

Absent a special session of the Florida legislature to craft such rules six or more days prior to the election itself. The Florida Supreme Court articulated again the principle often expressed by this Court, that the primacy of voting and respect for the exercise of the franchise is a fundamental right to all citizens. The court reaffirmed that voting is the paramount right of the people; one that could not be supplanted or transgressed by hyper technical attention to deadlines, if the price of those deadlines cost voters their rights. Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803), "It is emphatically the province and duty of the judicial department n to say what the law is".

Petitioner has erroneously claimed "By retroactively changing the law in Florida through judicial intervention, the Supreme Court of Florida's decision preventing the Secretary of State of Florida from exercising her legislatively conferred authority to perform the act of certification that would complete the electoral process in Florida has added to that angst and has strayed from established federal constitutional and statutory law."

If anything, however, the Florida court ruled too narrowly and with too little retrospective oversight, leaving to the discretion of the counties the methods for recounting votes and a too- small window of opportunity for recounting by hand the votes in densely populated counties, who later abandoned their recount efforts. To the extent that the Petitioner complains there are no standards, the court wisely attempted to defer to counties to allow them their traditional freely chosen methods, in a reading of the very clause that Petitioner cites for the argument that the States shall choose electors "in such Manner as the Legislature thereof may direct". In essence, the Petitioner's suggested reading of the United States Constitution is counter-intuitive; restraining the counties from determining the methods of tallying the ballots from their own voters while giving the legislature unbridled discretion regarding the selection of electors. Neither of these approaches can be tolerated if they fail to pass constitutional muster under the strict scrutiny afforded the right to vote.

Petitioner continues: "The manual recount underway in certain Florida counties is unconstitutional because it is being conducted in the absence of meaningful objective standards." A recount cannot, by its nature be, unconstitutional. The methods written by the legislature to achieve the tabulation and recording of votes can, however, be so flawed that the system is unconstitutional as applied in a given case. We believe that in this case, the Florida law has been applied in a manner that is unconstitutional and must be rectified or in the alternative, if it is indeed beyond repair, then new rules must be set forth by this Court or the Florida legislature in a timely manner with a new election by Florida voters for the 43rd President of the United States.

The lack of adequate timetables in the Florida Electoral law for candidates to request recounts, and for recounts to be completed; the ambiguity within the Florida statute that did not reveal a specific preference for hand counted-ballots or machine counted ballots for the purposes of recounting; and the absence of any clarifying instruction on a statewide basis to determine how electoral ballots are to be counted are not necessarily fatal to the statute in itself if any one of these problems could be viewed in isolation.

The totality of these peculiar circumstances, however, makes it so very difficult to sort out the precise nature of the problems that questions can be answered and problems can be corrected. There remain the lingering doubts raised by improperly drafted ballots that were not legible to voters; improper tallying by a hodgepodge of methods with so-called "standardless" procedures; (See Petitioner's Brief, in several instances) defects in the availability and accessibility of voting places themselves. Media accounts suggest that these irregularities also have occurred in great proportion in areas inhabited by blacks, minorities and certain ethnic groups, whose voting rights enjoy special protection under the Fourteenth and Fifteenth Amendments of the United States Constitution, as implemented Congress in the Voting Rights Act and upheld by this Court in previous cases. The aim of the Voting Rights Act is to prevent political bodies from implementing election systems or practices which Act, whether intentionally or not, to minimize, cancel or dilute the voting strength or political effectiveness of minority groups. (League of United Latin American Citizens (LULAC) v. North East Independent School Dist., W.D.Tex.1995, 903 F.Supp. 1071.) Such discriminatory consequences, whether intended or not, would also raise concern that the entire election was tainted by potential violations of the Voting Rights Act.

Thus, the post-election "judicial limitations" in this case that concern the Petitioner were designed to foster, rather than burden, constitutional due process. The Florida Supreme Court carefully reasoned in order to save a defective election process, in order to avoid the very confusion that confronts our nation today.

In this regard, the Florida Supreme Court should not be reversed for having been too deferential to a statute that was in fact defective. The election laws, and not the written opinion of the reviewing court that attempted to mend the statutes errors, was inartfully drafted and has thereby obfuscated the will of the people. The choice before this Court, therefore, is whether to further rectify the errors in the statute by reading into it new deadlines that will reasonably allow time to recount by hand or otherwise all of the ballots of all the voters in the State of Florida, or in the alternative, declare the statute and the election that was conducted pursuant to it invalid, thereby requiring a new election to be held in the State of Florida to determine who will be the winner of the 43rd Presidential election in Florida.

C. VOTING RIGHTS OF ALL VOTERS ARE IMPACTED BY THESE CIRCUMSTANCES REQUIRING A COMPLETE RECOUNT OF ALL BALLOTS OR A NEW ELECTION
Under the Civil Rights Act 42 USC 1983 and the Voting Rights Act 42 USC 1973 and the Fourteenth Amendment of the US Constitution , The right of the people to vote and to express their political will in elections by exercising their franchise is sacrosanct under the US Constitution and is protected by the Voting Rights Act as upheld in South Carolina v Katzenbach 01, 314-15 (1966).As evinced by the pending or withdrawn litigation cited above, these allegations filed in good faith by citizens are only a small fraction of the totality of the irregularities and improprieties within the voting process as it was conducted in Florida in the November 2000 Presidential election.

The U.S. Constitution, Amendment XIV: Section 1 clearly protects the franchise of all citizens equally regardless of state of residence: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United State; nor shall any state deprive any person of life, liberty, or prosperity without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

Any effort to undermine the integrity of this vital social contract that binds the States to each other by allowing a State to fall below the necessary minimum protections of the right to vote for its citizens in a National Presidential election undermines the integrity of all of the states and taints the valued franchise of citizens in those states that have followed the agreed upon due process standards. Such protections are reinforced by the Voting Rights Act (42 USC 1973) (quote) 42U.S.C.A. ¤1973 UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 20--ELECTIVE FRANCHISE SUBCHAPTER I-A-- ENFORCEMENT OF VOTING RIGHTS ""¤¤ 1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

In order for the national election of the 43rd President of the United States to be viewed as fair and impartial in the eyes of all USA voters who participate in that process, as well as the world or other third party objective observers it is imperative these federal standards, set forth in the Voting Rights Act as upheld by this Court, be met. When use of the law is popularly viewed as unfair and people believe that something happened that was improper, such that voters feel cheated by the process itself in Florida, (whether or not there has been any underlying fraud or corruption in the process itself,) impurity of the voice of the people thereby undermines the voice of all franchised voters who voted in the same national election for the US President.

These types of irregularities bespeak an underlying corruption in the process, whether or not any such improprieties have occurred and resemble more of the civil and political rights issues seen in foreign nations than the USA's proud democratic history. The harms caused by that appearance of impropriety which is repugnant to our democratic system of governance must be remedied. In such a case the sole valid remedy must be to remove the taint upon the people's franchise by calling for a re-election whereby the voters of Florida whose voice has been overtaken by the existing system will have a new opportunity to vote for the President and Vice President of the United States.

QUESTION 2:
Whether the state court's decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct."

A. THE UNITED STATES CONSTITUTION ALLOWS LEEWEAY TO THE STATES BUT DOES NOT ALLOW OR ENCOURAGE LEGISLATORS TO SUBSTITUTE THEIR WISHES OR DESIRES FOR THE WILL OF THE PEOPLE.
Ironically, the answer to Petitioner's seemingly obvious question in this case is one of first impression without precedent before this Court. Thus, we must look to the logic of the plain meaning of the words in their context, as a part of the totality of the precepts that create a framework for democratic republican governance, in order to guide the use of these words. Although States are left to fashion their methods of determining electors as their representatives, it is nonetheless dictated by logic as well as constitutional principles that such electors must vote in a manner that is consistent with the will of the majority and that any selection before all votes have been counted, or any selection based on an arbitrary portion of the votes to be tallied (but not all the ballots cast that have been tallied) is a usurpation of the legitimate power of the people as expressed through exercising their franchise. It is unlikely, if not inconceivable, that the US Constitution could be read to allow Florida legislators (or the legislators of any other State) to simply select a Presidential candidate of their choice who has not been chosen by the majority of the voters in their state. The full faith and credit clause Article IV of the US Constitution, demands that such appointment of electors be achieved without abridging the rights of any voters in order to maintain the integrity of the votes of citizens from other states. Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803), instructs us that in such situations, " The constitution is either superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable".

The US Constitution grants States leeway and discretion in selecting their electors, but only insofar as the selection is consistent with the fundamental precepts of democracy. The choice must not be anarchistic or autocratic, but consistent with democratic principles, guided by and reflecting the will of the majority of the voters in that State. Furthermore, the methods chosen by said legislatures must comport with the parameters of democratic governance set forth in the United states Constitution and must exhibit mutual respect for the other States, consistent with Article IV's commitment by the States to accord each other full faith and credit. Thus, the States have reserved the right to make certain discretionary choices regarding the methodology for selecting electors, but the candidate for whom those electors cast their ballots must be chosen by democratic means and must be consistent with the wishes of the majority of voters in the State.

B. THE WILL OF THE PEOPLE OF FLORIDA IS PRESENTLY UNKNOWN
It would be unconscionable, as well as unconstitutional for the legislature to disregard the will of the people by selecting a candidate that the people would not have elected. So too, in an election so close that the difference between the votes separating the certified winner and the loser is smaller than the statistical margin of error for counting, it is unclear whether the will of the people can be discerned or clearly heard. Therefore, the Florida legislature cannot proceed to select electors if either of the two following consequences have arisen: (1) the underlying Florida law that governed the election itself was based on an unconstitutional statute or (2) the votes from the State have not been counted properly or all votes have not been tallied, regardless of the certifications by election officials.

The consequences of finding otherwise, would be the ability of a state Legislature to pick any electors they wish, without regard to the total vote of the people, thereby breaking the full faith and credit clause of the US Constitution.

QUESTION 3
What would be the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with 3U.S.C Sec. 5?

UNCONSTITUTIONAL ELECTION LAWS REQUIRE REMEDIES SUCH AS RECOUNT OR A NEW ELECTION
If Florida is found to have breached the social contract between the states that implicitly but inevitably is a fundamental part of the respect accorded each and every State of the United States to the other States, breaking the obligation to grant each State "full faith and credit" under Article IV of the US Constitution, immediate and deliberate efforts must be made to repair the breach. Otherwise, such a breach of the social contract by Florida would taint the democratic process of the national election, thereby disenfranchising each citizen in the United States who voted in the election.

The simplest and most trustworthy method for correcting these defects for the immediate question at bar concerning the election of the 43rd President of the United States of America: either recount all the votes in the State of Florida with oversight from federal authorities, or hold a new election with federal oversight pursuant to the precepts of the Voting Rights Act 42 US.C. 1973. Judicial oversight in this regard, despite the disparaging characterization used by Petitioner, is a necessary and appropriate use of the power of Judicial Review as it appears as a gloss in the text of Article III of the United States Constitution, and is commonplace when there are election problems to be sorted out. In the alternative, we believe the People of this Nation will be better satisfied if all the discomfort of the tainted Florida election can be removed by calling for a new direct ballot election in the State of Florida.

CONCLUSION:
UNCONSTITUTIONAL LAWS CANNOT BE SUPPLANTED BY THE ARBITRARY SELECTION OF ELECTORS BY LEGISLATORS AND REQUIRE A FULL RECOUNT OF ALL BALLOTS OR A NEW ELECTION
The full faith and credit clause in Article IV of the US Constitution requires that states extend the same rights to all citizens of the United States and to express the same respect for all of the laws of the separate states equally. As Justice Marshall stated in McCulloch v Maryland 17 US (4 Wheat.) 316, 421 (1819), "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to this end, which are not prohibited but consistent with the letter and spirit of the constitution are constitutional".

Due to the exceptionally small margin which is within the margin of error of the machines themselves, a hand count of all ballots in Florida essential to preserving the franchise of every citizen who has voted in this nations''November 2000 election. It is inconceivable that a manual hand count, although cumbersome and time consuming, can be so long in its duration to amount to a violation of due process rendering it unconstitutional. In the event that this Court finds such delays would harm the Republic without regard to Constitutional issues, it is respectfully requested that there be a new vote in the State of Florida, following, if necessary, laws that may be written by its State legislature to correct defects in existing Florida State Election laws, or such other remedies as this Court may deem appropriate. We nonetheless most respectfully and most vehemently pray that this Court should make every effort to include the votes of all Florida voters, whether by hand count or by a new voter election, so that democratic process will go forward and that the franchise of all voters shall be preserved.

PLEASE NOTE: TWO BRIEFS WRITTEN BY CITIZENS ALONE WILL APPEAR AS EXHIBIT ONE AND EXHIBIT TWO IN THE FINAL VERSION OF THIS DOCUMENT

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A divine comedy is a Comedy of errors......lest we be consumed by an inferno

2007-08-12T23:35:00.000-07:00

prejudicial events have occurred "whose effects continued to stigmatize helpless or hated individuals

2007-04-02T11:32:00.000-07:00

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Ex parte ROBERTO FLORES,

Appellant.

§

§

§

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§

No. 08-01-00213-CR

Appeal from the

County Court at Law No. Two

of El Paso County, Texas

(TC# 20010D01808)

O P I N I O N

This is an appeal from the trial court's denial of Appellant's requested relief pursuant

to a writ of habeas corpus. We affirm the trial court's order denying the requested relief.

I. SUMMARY OF THE EVIDENCE

Appellant filed his application for writ of habeas corpus on April 24, 2001. A hearing on the writ was held on May 10, 2001. The evidence adduced at the writ of habeas corpus hearing reveals that on March 23, 2001, Appellant was arrested for an offense involving family violence. He was taken before Magistrate James T. Carter and Judge Carter issued a Magistrate's Emergency Order for the Protection of the Family and/or Household pursuant to Texas Code of Criminal Procedure Article 17.292. Appellant was prohibited from committing acts of family violence regarding Martha Flores. Further, Appellant was prohibited from communicating directly with any member of the protected parties in a threatening or harassing manner, and he was prohibited from communicating any threats to such parties. The order also prohibited Appellant from engaging in conduct that constituted stalking regarding a member of the family or household. Lastly, Appellant was forbidden from going within 200 yards of the family residence and the protected residents, the place of employment located at 1359 Lomaland, and the schools of the two children except incidental contact at LeBarron Elementary School where Appellant's daughter attended and Appellant worked.

The order stated that a violation of the order by commission of an act prohibited by the order may be punishable by a fine of up to $4,000 or by confinement in jail for a period as long as one year or both. It further stated that an act that results in family violence or a stalking offense may be prosecuted as a separate misdemeanor or felony offense. The order stated that an act prosecuted as a separate felony offense, would be punishable by confinement in prison for at least two years. The order was effective until the 23rd day of May, 2001 - not to exceed sixty-one days. It was signed by both Judge Carter and Appellant.

Judge Carter testified that Article 17.292 did not provide for a modification or cancellation procedure. Further, no procedure for modification or cancellation was provided in the statute. There is no provision for a hearing. Judge Carter stated that he did not schedule a hearing when he issued this type of protective order, but he would entertain a review, modification, or cancellation of the order. It was Judge Carter's opinion that he could modify or cancel the Article 17.292 order within the sixty-one day period that the protective order was allowed to be in effect. He testified that there was no provision in the statute for one who is the subject of such an order to present evidence in opposition, but that he had allowed such evidence on occasion. Judge Carter stated that he had allowed such evidence in this case and had adjusted the order accordingly.

Judge Carter also testified that Article 17.292 requires that someone be under arrest when such an order is issued, and that he always had either a probable cause affidavit or a police report to review. He stated that he structured the order based upon the information contained in the document before him and had done so in this case.

Appellant testified that he was an assistant principal and he worked at LeBarron Elementary School. He stated that he had been living with his sister since the issuance of the protective order. He had no need to go to the family residence.

Enrique Medina, an El Paso Police Officer, stated that on March 22, 2001, he arrested Appellant after meeting with Martha Flores and preparing an arrest warrant. Medina stated that Flores was distraught. Based on his observations of Flores, Medina arrested Appellant and requested a protective order from Judge Carter.

II. DISCUSSION

In Issue No. One, Appellant asserts that the constitutionality or statutory validity of Article 17.292 has not become moot due to the expiration of the protective order. (1) The mootness doctrine limits courts to deciding cases in which an actual controversy exists. In re Salgado, 53 S.W.3d 752, 757 (Tex. App.--El Paso 2001, no pet.); Olson v. Commission for Lawyer Discipline, 901 S.W.2d 520, 522 (Tex. App.--El Paso 1995, no writ). When there has ceased to be a controversy between the litigating parties which is due to events occurring after judgment has been rendered by the trial court, the decision of an appellate court would be a mere academic exercise and the court may not decide the appeal. Salgado, 53 S.W.3d at 757; Olson, 901 S.W.2d at 522. In most circumstances, the expiration of an order granting injunctive or protective relief would render the issue moot. Salgado, 53 S.W.3d at 757. However, two exceptions to the mootness doctrine currently exist: (1) the "capable of repetition yet evading review" exception and (2) the "collateral consequences" exception. Salgado, 53 S.W.3d at 757; Olson, 901 S.W.2d at 522. The first exception applies when the challenged act is of such short duration that an Appellant cannot obtain review before the issue becomes moot. Salgado, 53 S.W.3d at 757. The second exception has been applied when Texas courts have perceived that prejudicial events have occurred "whose effects continued to stigmatize helpless or hated individuals long after the unconstitutional judgment had ceased to operate." Id. In such an instance, the effects are not absolved by mere dismissal of the cause as moot. Id.

In the present case, we find that the "capable of repetition yet evading review" exception to the mootness doctrine applies. Certainly, a sixty-one day protective order which has expired before an appellate opinion can be rendered is capable of repetition yet evading review. See In the Matter of Cummings, 13 S.W.3d 472, 475 (Tex. App.--Corpus Christi 2000, no pet). Further, there is a stigma attached to the issuance of a protective order as well as attendant legal consequences such as the fact that the Texas Family Code requires a court to consider the commission of family violence in making child custody determinations. See Tex. Fam. Code Ann. § 153.004 (Vernon 2002). Accordingly, we find that the "collateral consequences" exception also applies. See Salgado, 53 S.W.3d at 757-58; Cummings, 13 S.W.3d at 475. Appellant's Issue No. One is overruled.

In Issue No. Two, Appellant contends that the right to a jury trial, entitlement to counsel, compulsory process and confrontation of witness, the right to due course of law, and the ability to petition for redress of grievances found in the Constitution of the State of Texas are violated by Article 17.292 in that the statute does not provide for any of those rights. In Issue No. Three, Appellant maintains that the Magistrate's Order for Emergency Protection statute denies the statutory rights found in the Texas Code of Criminal Procedure such as the right to jury, counsel, confrontation of witness, due process, freedom from unreasonable seizure, jury trial, and a liberal construction of the code.

Initially, we must address the State's claim that Appellant has waived any contention that the challenged statute is unconstitutional as applied to him. When a litigant asserts that a statute is facially unconstitutional, he contends that the statute is unconstitutional in all its applications. In contrast, under an "unconstitutional as applied" challenge, the moving party generally concedes the constitutionality of the statute, but argues that it is being unconstitutionally applied to his particular circumstances. See Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 461 n.5 (Tex. 1997). One may raise a facial challenge for the first time on appeal. However, in order to preserve an "as-applied" challenge to the constitutionality of a statute, the defendant must have first raised the issue in the trial court. See Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994). The State contends that Appellant did not raise the "as-applied" challenge before Judge Carter and has waived the issue on appeal. While we have some reservations about requiring a person probably not represented by counsel at a summary proceeding after arrest where the taking of a record is unlikely to occur to lodge such an objection, we find it has no implication in the present appeal. We take it from Appellant's pleadings and brief that he is asserting a facial challenge to the statute in that he asserts that it is constitutionally infirm in all its applications.

When reviewing the constitutionality of a statute, we are to presume the statute is valid and the legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The burden rests on the party challenging the statute to establish its unconstitutionality. Id. Further, we are to uphold the statute if we can determine a reasonable construction which will render the statute constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). A facial challenge is the most difficult because the challenger must establish that no set of circumstances exists under which the statute would be valid. Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App. 1990). When challenging the constitutionality of a statute, a defendant must first make a showing that the statute is unconstitutional as applied to him; that it may be unconstitutional as to others is not sufficient. Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).

In essence, Appellant is contending that Article 17.292 fails to provide a right to a hearing before the issuance of the emergency protective order. With the exception of emergency situations, due process requires that when a governmental entity seeks to terminate a protected interest, it must afford notice and opportunity for a hearing which is appropriate to the nature of the case before the termination becomes effective. See Board of Regents v. Roth, 408 U.S. 564, 570 n.7, 92 S.Ct. 2701, 2705 n.7, 33 L.Ed.2d 548 (1972). No court in this state has determined the constitutionality of Article 17.292. However, courts in other jurisdictions have ruled on the constitutionality of statutes similar to the one under consideration in this case. In Sanders v. Shephard, 541 N.E.2d 1150, 1155 (Ill. App. Dist. 1989), the Illinois appellate court held that an emergency protective order issued pursuant to a domestic violence act met procedural due process requirements because evidence of domestic violence constitutes a showing of exigent circumstances. In State v. John Doe, 765 A.2d 518 (Conn. Super. 2000), the state authorities requested a protective order for a spouse by means of the investigating officer compiling a report concerning an act of domestic violence. The court held that the offending spouse's due process rights were not violated by the issuance of a protective order without an adversarial hearing. The court reasoned that the need for prompt assumption of judicial control following a family violence arrest outweighed the need for adversary procedures and held that the protective order was constitutionally entered. Id. at 527-28. In a similar situation, the New York District Court upheld the issuance of protective orders without benefit of an adversarial hearing. See People v. Koertge, 701 N.Y.S.2d 588, 593-96 (N.Y. Dist. Ct. 1998).

Appellant points to various provisions of Tex. Fam. Code Ann. Title 4 (Vernon Supp. 2002) in support of his contentions. The provisions in Title 4 allow for protective orders up to two years. They contain an extensive series of due process procedures in order to obtain such orders. See id. A twenty-day ex parte order is available but it has a provision for a motion to vacate which is lacking in Article 17.292. See Tex. Fam. Code Ann. § 83.004 (Vernon 2002). However, as decided in the other state authorities cited, it is the temporary and emergency nature of emergency protective orders which allows them to pass constitutional muster. (2)

Further, while Article 17.292 does not provide for a cancellation or modification procedure, the availability of the writ of habeas corpus procedure affords one the opportunity to obtain an adversarial hearing to contest the emergency protective order. This ameliorates the ex parte nature of the procedure. See Ex parte Shockley, 683 S.W.2d 493, 495 (Tex. App.--Dallas 1984, pet. dism'd). We find that Article 17.292 is constitutional. Appellant's Issues Nos. Two and Three are overruled.

Having overruled each of Appellant's issues on review, we affirm the trial court's denial of Appellant's writ of habeas corpus.

July 25, 2003

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Publish)

1.
Tex. Code Crim. Proc. Ann. art. 17.292 (Vernon Supp. 2003) entitled "Magistrate's Order for Emergency Protection" provides:

(a) At a defendant's appearance before a magistrate after arrest for an offense involving family violence or an offense under Section 42.072, Penal Code, the magistrate may issue an order for emergency protection on the magistrate's own motion or on the request of:
(1) the victim of the offense;
(2) the guardian of the victim;
(3) a peace officer; or
(4) the attorney representing the state.
(b) At a defendant's appearance before a magistrate after arrest for an offense involving family violence, the magistrate shall issue an order for emergency protection if the arrest is for an offense that also involves:
(1) serious bodily injury to the victim; or
(2) the use or exhibition of a deadly weapon during the commission of an assault.
(c) The magistrate in the order for emergency protection may prohibit the arrested party from:
(1) committing:
(A) family violence or an assault on the person protected under the order; or
(B) an act in furtherance of an offense under Section 42.072, Penal Code;
(2) communicating:
(A) directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner; or
(B) a threat through any person to a member of the family or household or to the person protected under the order;
(3) going to or near:
(A) the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or
(B) the residence, child care facility, or school where a child protected under the order resides or attends; or
(4) possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.
(d) The victim of the offense need not be present in court when the order for emergency protection is issued.
(e) In the order for emergency protection the magistrate shall specifically describe the prohibited locations and the minimum distances, if any, that the party must maintain, unless the magistrate determines for the safety of the person or persons protected by the order that specific descriptions of the locations should be omitted.
(f) To the extent that a condition imposed by an order for emergency protection issued under this article conflicts with an existing court order granting possession of or access to a child, the condition imposed under this article prevails for the duration of the order for emergency protection.
(g) An order for emergency protection issued under this article must contain the following statements printed in bold-face type or in capital letters:
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER."
(h) The magistrate issuing an order for emergency protection under this article shall send a copy of the order to the chief of police in the municipality where the member of the family or household or individual protected by the order resides, if the person resides in a municipality, or to the sheriff of the county where the person resides, if the person does not reside in a municipality. If the victim of the offense is not present when the order is issued, the magistrate issuing the order shall order an appropriate peace officer to make a good faith effort to notify, within 24 hours, the victim that the order has been issued by calling the victim's residence and place of employment. The clerk of the court shall send a copy of the order to the victim.
(i) If an order for emergency protection issued under this article prohibits a person from going to or near a child care facility or school, the magistrate shall send a copy of the order to the child care facility or school.
(j) An order for emergency protection issued under this article is effective on issuance, and the defendant shall be served a copy of the order in open court. An order for emergency protection issued under this article remains in effect up to the 61st day but not less than 31 days after the date of issuance.
(k) To ensure that an officer responding to a call is aware of the existence and terms of an order for emergency protection issued under this article, each municipal police department and sheriff shall establish a procedure within the department or office to provide adequate information or access to information for peace officers of the names of persons protected by an order for emergency protection issued under this article and of persons to whom the order is directed. The police department or sheriff may enter an order for emergency protection issued under this article in the department's or office's record of outstanding warrants as notice that the order has been issued and is in effect.
(l) In the order for emergency protection, the magistrate may suspend a license to carry a concealed handgun issued under Section 411.177, Government Code, that is held by the defendant.
(m) In this article:
(1) "Family," "family violence," and "household" have the meanings assigned by Chapter 71, Family Code.
(2) "Firearm" has the meaning assigned by Chapter 46, Penal Code.

2.
Appellant also analogizes to the bail provisions in the Code of Criminal Procedure where he asserts greater due process procedure are provided. However, these provisions do not contemplate the emergency situation provided for in Article 17.292.

right to secure the attendance of witnesses whose testimony would be both favorable and material to the defense..A subpoena is proof ,state hinders...

2007-04-02T10:50:00.000-07:00

the defense. When the defense exercises their sixth amendment right to compulsory process to obtain testimony, the state is "entrusted" to comply and since they know the "crucial" nature of this witness the state hinders the rights of the defendant "to secure their attendance" the state is routinely incapable of this exercise.

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DELIA MARTINEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

§

§

§

§

§

No. 08-05-00116-CR

Appeal from the

205th District Court

of El Paso County, Texas

(TC# 20030D02379)

O P I N I O N

This is an appeal from a jury conviction for two counts of failure to stop and render aid. The court assessed punishment at five years’ community supervision. We affirm.

FACTUAL SUMMARY

On May 6, 2003, Maria Chavez was driving with her young daughter on Montana Street. She proceeded through the intersection at Gateway North on a green light. Another vehicle ran the red light and struck her car, causing it to spin around. Chavez did not see the vehicle that hit her. She felt pain to her neck and shoulders, and her daughter hit the side of her face. The driver of the other vehicle left the scene.

Roderick Mendoza was working at his family business when he heard the collision. He looked outside and saw a white car speed off. He did not get a good look at the driver’s face but he determined that the driver was a woman because he saw a silhouette of her hair.

The first police officer who arrived on the scene found a license plate in the intersection. He issued a spot broadcast to other police units indicating that the license plate probably belonged to the fleeing vehicle. Officer Ricky L. Jordan ran the number through the computer in his patrol car and determined that the car was registered to Appellant. Officer Jordan went to Appellant’s address, identified the vehicle from the collision, and saw Appellant getting into another car by herself.

When Officer Jordan spoke to Appellant, he realized that she only spoke Spanish. He called for assistance, and Officer Alex Bastidas responded. About the same time, Appellant’s husband, Luis Carlos Martinez, came out of the house and asked what was happening. Officer Jordan spoke with Mr. Martinez in English. Officer Bastidas explained to Appellant he would take her back to the scene of the accident to see if any witnesses could identify her. Appellant was not handcuffed. Officer Robert Calderon and his partner, Officer Pineda, were still at the scene of the accident. Officer Pineda estimated that the accident had occurred around 5:35 p.m. While Officer Calderon was interviewing the witnesses, one pointed behind him. He turned to see Appellant arrive in Officer Bastidas’s patrol car. The witness pointed to Appellant and indicated that she was the driver who had fled the scene. The officer stated that the witness had an unobstructed view of Appellant sitting in the patrol car when she first arrived.

Appellant was transported to the police station and placed in a cell. When she complained of back pain, EMS was called, but Appellant refused transportation to the hospital. While Officer Calderon was typing his report, Appellant spoke to him without prompting. She told him she had panicked, that she had been driving for over thirty years, and that this was her first accident. She was scared and had left the scene, but she was going to have her husband drive her back.

The defensive theory at trial was that Mr. Martinez was actually driving the car. The couple’s son, Carlos, testified that on the day of the accident, Appellant got home at 4:40 p.m. and started doing some laundry. His father arrived sometime later. In response to a question about his father’s demeanor, Carlos testified his father said, “[t]hat he had hit a lady.” The court did not rule on the prosecutor’s objection that Carlos’s statement was non-responsive to the question; however, the witness was instructed not to state what others had told him. Carlos testified that some police officers arrived at the house and arrested his mother. None of the officers spoke to Carlos.

Appellant testified in her own behalf. The family owned two vehicles, a Geo and an Oldsmobile Ciera. Her husband normally drove the Geo, which was the car involved in the collision. Appellant usually drove the Ciera. Both vehicles were registered in her name. Appellant arrived home from work at about 4:45 p.m. and started some laundry. Her husband got home sometime after 5 p.m. He was nervous and pale. When Appellant asked how his day had been, he seemed distressed. After he told her about the accident, Appellant got her keys and said they needed to go back to the scene of the accident. As she was getting into her car, the police arrived.

Appellant claimed that all she said to Officer Calderon was that she had been driving for thirty years and had never had an accident. She denied telling him that she had gotten scared and fled the scene. When Appellant informed the court that she intended to call her husband as a witness, counsel for Mr. Martinez advised him to invoke his Fifth Amendment right against self-incrimination. The husband verified that he had elected not to testify, and he did not take the witness stand.

RESTRICTION OF ARGUMENT

In Issue One, Appellant contends that the court prevented her from arguing that her husband committed the offense. During closing argument at the guilt-innocence stage of trial, the following exchange occurred:

DEFENSE:It is a shame that the wrong person is being put through this. Okay. That’s a shame. Why is it a shame? Because her husband is the one that was driving the car.

STATE:Your Honor, I am going to object to defense attorney referencing to evidence that was not presented to the jury.

COURT:The objection is sustained.

DEFENSE:Judge, I believe that circumstantially speaking, Your Honor, that’s a deduction they can make with the circumstantial evidence, Your Honor.

COURT:The evidence did not show that. If that’s an inference, the jury can make on their evaluation, that’s something they can do.

DEFENSE:Well, you can make that inference with the evidence that was presented here before you. You can certainly make that inference. Think about it. Her son gets there like at 4:00, 4:30, whatever time it was. I think it was 4:00. And then my client gets there at about 4:45-ish. She gets off work at 4:30-ish. She gets there at 4:45-ish. Okay. She starts doing some, washing some clothes. Her husband shows up sometime after that. She is watching a show on tv, television show. Okay. And then she comes outside the car, goes to the car, where she is going to take, she is going to go back to the scene and get her husband back to the scene and then what happens?

Jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex.Crim.App.1990). Counsel may draw all reasonable inferences from the facts in evidence that are “reasonable, fair, and legitimate.” But an argument that misstates the law or is contrary to the court's charge is improper. Grant v. State, 738 S.W.2d 309, 311 (Tex.App.--Houston [1st Dist.] 1987, pet. ref’d).

Although the trial court has broad discretion in controlling the scope of closing argument, it may not prevent defense counsel from making a point essential to a defensive theory of the case if it is supported by the evidence. Such a prohibition amounts to a denial of the defendant’s right to counsel. McGee v. State, 774 S.W.2d 229, 238 (Tex.Crim.App.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1535, 108 L.Ed.2d 774 (1990); Lemos v. State, 130 S.W.3d 888, 892 (Tex.App.--El Paso 2004, no pet.).

Appellant cites Lemos in support of his contention that the court’s restriction of his argument warrants reversal. There, the accused was charged with intoxication manslaughter. Evidence indicated that his blood alcohol level was .10 one hour and forty minutes after the accident. No retrograde-extrapolation evidence was offered. Id. at 890. Defense counsel tried to argue that the defendant’s blood-alcohol level could have been rising, rather than falling, at the time of the accident. Id. at 890-91. The court sustained the State’s objection that the argument was outside the scope of the evidence, and told the jury the State’s argument made common sense. Id. at 893. On appeal, the State conceded that the argument should not have been allowed. While the State claimed harmless error, we found the error to be harmful under the standard enunciated in Tex.R.App.P. 44.2(a). Id. at 893.

Here, Appellant was not prohibited from presenting her defense that her husband was actually driving the car. Though she was prevented from directly arguing the issue, the jury could properly infer that such was the case. In fact, her attorney argued, “My client was not the driver of that car. That day. No, she drives the other car, the Ciera car, that’s her car. That’s the car that she drives.” Counsel also argued that no witness at trial was able to identify Appellant as the driver. As Appellant was able to develop her defensive theory, we perceive no error. We overrule Issue One.

EXCLUSION OF HEARSAY STATEMENTS

In Issue Two, Appellant complains that the court erred in excluding testimony that Mr. Martinez told Appellant and Carlos that he had been involved in an accident. She claims that the statements were admissible as either excited utterances or statements against penal interest.

Carlos testified his father told him “[t]hat he had hit a lady.” Carlos described him as “freaking out,” “in shock,” “real nervous,” “scared,” and “panicking.” Carlos did not remember the date of the accident, nor could he remember how much time had elapsed between the accident and his father’s statements. The court indicated it needed additional information on the date and time frame before admitting the statements as excited utterances.

Appellant testified that she got home at approximately 4:45 p.m. She was washing clothes when her husband arrived sometime after 5 p.m. He was nervous and pale. She asked how his day at work had been, and he seemed upset. Appellant then sought to have her husband’s responses admitted as excited utterances and as statements against penal interest. On voir dire examination, Appellant testified that after she asked her husband how his day at work had gone, he said, “It went okay at my job but right now a woman, she got in front of me and I hit her.” He stated that he left the scene because the woman in the other car also left. Appellant described her husband as usually very joyful, but when she saw his expression, “the way his eyes looked told [her] everything.” The court concluded that the excited utterance exception had not been established:

COURT:She can testify as to what she observed and the agitation and the fact that it was the day of the arrest but as to being specific and the way that, right now the way that I hear the testimony, I am going to have to sustain the objection unless there is any other information.

Standard of Review

We review the court’s ruling for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The trial court does not abuse its discretion unless the ruling lies outside of the zone of reasonable disagreement. Id. This standard applies to both the excited utterance or statement against penal interest exceptions to the hearsay rule, and the trial court’s ruling should not be reversed unless a clear abuse of discretion is shown. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005); Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999).

Excited Utterance

Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R.Evid. 801(d). For hearsay to be admissible, it must fit into an exception provided by a statute or the rules of evidence. Tex.R.Evid. 802. One exception is an excited utterance. Tex.R.Evid. 803(2). An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id.; Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001). In determining whether a hearsay statement is admissible as an excited utterance, the ultimate inquiry is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition” when the statement was made. Apolinar, 155 S.W.3d at 186-87. The court may consider factors such as “the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving.” Id. at 187. However, no single factor is dispositive, but merely bears on our ultimate determination. See Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995); Penry v. State, 903 S.W.2d 715, 750-51 (Tex.Crim.App. 1995).

Both Appellant and Carlos testified that Mr. Martinez was in an agitated state when he arrived home. While neither witness could exactly identify the time, both statements were purportedly made shortly after the distressing event. The State concedes the court could have admitted the statements, but the issue is whether the ruling is within the zone of reasonable disagreement. Zuliani, 97 S.W.3d at 595. The court could have reasonably concluded that the traffic accident was not such a startling event that Mr. Martinez was still dominated by the emotions, excitement, fear, or pain of the event or condition when the statement was made. The accident was not of a serious nature; the vehicle was still operable and the injuries were relatively minor. The statements were made in response to a question and were untrue since the driver of the other car had not left the scene. Because the ruling was within the reasonable zone of disagreement, we find no abuse of discretion.

Statement Against Interest

Appellant also maintains that Mr. Martinez made statements against interest. Rule 803(24) provides an exception to the hearsay rule:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Whether a statement is admissible requires a two-step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). First, the trial court must determine whether the statement tends to expose the declarant to criminal liability. Id. Second, corroborating evidence must be sufficiently convincing to “clearly indicate the trustworthiness of the statement.” Id.; see also Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). The burden is on the proponent and “the test is not an easy one.” Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994).

Appellant did not proffer her husband’s statements to Carlos as admissions against interest. And while she proffered the statements made to her as statements against penal interest, she did not obtain a ruling on that theory. See Tex.R.App. P. 33.1(a). Because error has not been preserved, we overrule Issue Two.

LEADING QUESTIONS

In Issue Three, Appellant complains that the court prevented her from explaining the statements she made to police after her arrest by repeatedly sustaining the prosecutor’s objections to leading questions:

DEFENSE: You heard the officer testify as to that part about you complaining that your back hurt. Do you remember that?

STATE:I would object to leading.

COURT:Sustained. Please restate the form of the question.

DEFENSE:Do you remember when the officer was testifying about how your back was hurting you? Do you remember that?

STATE:Your Honor, I am going to object to leading.

COURT:The objection is leading, sustained. Please restate the form of the question.

DEFENSE:I am sorry, Your Honor, but I am not leading. I don’t think trying to elicit a certain answer from her, [sic] Your Honor, either she remembers that and if she does remember that, that’s what I want to ask her about a certain statement about her being hurt, that’s all.

COURT:You can ask her directly.

DEFENSE:Well that’s what I am attempting to do. Did you tell the officers that your back was hurting you because you were involved in a car accident?

STATE:Your Honor, I am going to object to the leading nature of the question.

COURT:Sustained.

DEFENSE:Wow. Was your back hurting you because you were involved in a car accident?

WITNESS:Of course not. It had already passed two hours since I had gotten out of work and I do have arthritis. You can see it in my fingers and it was just a normal pain.

DEFENSE:And if you remember when the officer testified about how you supposedly told him that you had gone home and you were panicking due to the accident?

STATE:Your Honor, I am going to object to the leading.

COURT:Objection sustained. Please restate the form of the question.

DEFENSE:Did you ever tell the officer that you had arrived home and panicked due to the accident?

STATE:Your Honor, I am going to object to the leading.

COURT:The objection is sustained.

DEFENSE:Your Honor, I am doing this because an officer testified to this and I am going to ask her if that was true or not and I think I have every right to ask that type of question to get to the truth and veracity of this witness, Your Honor.

COURT:The objection is sustained.

DEFENSE:It is in the rules of evidence in the 600, Your Honor.

COURT:The objection is leading. Sustained. Please restate the form of the question.

DEFENSE:I don’t think I am eliciting a certain response from her, Your Honor, but I will see what I can do. Did you ever tell an officer that you panicked due to the accident?

STATE:Your Honor, I am going to object to leading.

DEFENSE:How is that leading? She can say yes or no. I mean we are trying to get--may I approach, Your Honor?

COURT:Yes.

(Bench Conference)

STATE:Your Honor, leading questions are answered by yes or no.

DEFENSE:I just don’t understand how--I am not telling her to say yes, I am not telling her to say no. Either it is a yes or no. I mean I don’t see how I am eliciting an answer from that.

COURT:The question results in a response yes or no.

DEFENSE:No, no, it doesn’t. Trying to elicit a certain answer, that’s a leading question.

COURT:Why don’t you ask her what did you tell the officer?

(Bench Conference Ends)

DEFENSE:Shortly before you were taken to the cell did you say anything to the officers?

WITNESS:No.

DEFENSE:Do you remember telling the officer--I know what’s going to happen right now--that’s. Did you ever talk about how many years you had been driving, do you remember that?

STATE:Your Honor, I am going to object to the leading question.

COURT:Sustained.

DEFENSE:At the cell did you say something to the officer when he was taking his report?

WITNESS:Of course I did.

DEFENSE:What was that?

WITNESS:He asked me a question and I said, Why are you asking me that? And he told me, I am writing up a report. Then write in there that I have been driving for 30 years and I have never had an accident and I have never had any problems, any traffic problems.

DEFENSE:And that’s all you said to him?

WITNESS: I don’t recall if I told him that where I was going was to the scene of the accident. I don’t recall that.

Rule 611 governs the interrogation and presentation of witnesses at trial. Tex.R.Evid. 611. The trial court has reasonable discretion to control the mode and order of interrogating witnesses in order to: (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time; and (3) to protect witnesses from harassment or undue embarrassment. See Tex.R.Evid. 611(a). A witness may be cross-examined on any matter relevant to any issue, including credibility. Tex.R.Evid. 611(b). Except as may be necessary to develop the testimony of a witness, leading questions should not be used on direct examination. Tex.R.Evid. 611(c). But leading questions should be permitted on cross-examination. Id . When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may proceed by leading questions. Id.

The mere fact that a question may be answered by a simple “yes” or “no”will not render it impermissibly leading. Newsome v. State, 829 S.W.2d 260, 269 (Tex.App.--Dallas 1992, pet. ref’d). A leading question is one which instructs the witness how to answer or puts words into the witness’s mouth. Id. Permitting leading questions on direct examination is a matter within the sound discretion of the trial court. Wyatt v. State, 23 S.W.3d 18, 28 (Tex.Crim.App. 2000). Unless Appellant was unduly prejudiced, no abuse of discretion can be shown. Id.; Hernandez v. State, 643 S.W.2d 397, 400 (Tex.Crim.App. 1982); see also Ballew v. State, 452 S.W.2d 460, 461 n.1 (Tex.Crim.App. 1970) (“The matter of permitting the asking of leading questions rests in the sound discretion of the trial judge, and unless the defendant can show that he was unduly prejudiced by virtue of such questions, no reversal of his conviction can be had.”).

Each question that was disallowed by the court required Appellant to confirm or deny statements of her lawyer. The court did not prevent the questions from being asked; the court instructed counsel to rephrase the question. Appellant was eventually able to deny that her back hurt from the accident and to deny that she said anything incriminating to Officer Calderon. As Appellant is unable to demonstrate harm, we find no abuse of discretion. Issue Three is overruled.

FACTUAL SUFFICIENCY

In Issue Four, Appellant complains that the evidence is factually insufficient to support the conviction. Specifically, she argues that no witness at trial identified her as the driver, that the evidence was too weak to support the conviction, and that the State did not refute her defensive theory.

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder’s determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

The State’s evidence demonstrated that the Geo was registered to Appellant. One eyewitness testified at trial that the driver was a woman. Another eyewitness who did not testify identified Appellant as the driver. Her identification was admitted through the testimony of Officer Calderon. Appellant told Officer Calderon that the collision was her first accident, that she had panicked, and that she was going back to the scene when the police arrived at her home.

Viewing the evidence in a neutral light, we conclude that the jury was rationally justified in finding beyond a reasonable doubt that Appellant was the driver, and that the direct and circumstantial evidence was not so weak as to render the jury’s verdict clearly wrong and unjust. We overrule Issue Four.

PRE-TRIAL IDENTIFICATION

In Issue Five, Appellant challenges that the denial of her motion to suppress the pretrial identification. She maintains that there was insufficient evidence from which the court could determine that the identification was reliable and that the identification procedures were impermissibly suggestive.

At the first hearing, Appellant testified that two police officers picked her up at her house and took her to the scene of the accident. Two or three officers were present at the scene. The officers spoke with one another, and they pointed at her and asked whether she was the driver. On cross-examination, she testified she did not see any of the officers question the witnesses, but on redirect, she admitted that the officers questioned a female. Officer Calderon testified that he had arrived on the scene five to ten minutes after the accident was reported. Appellant arrived within the next twenty minutes. She was not handcuffed. Officer Calderon was talking with two witnesses, Petra Arredondo and her sister Rosa Orozco, who had been in the car behind the complainant’s car. Arredondo pointed at Appellant and stated, “That’s her, that’s the one that was driving.” The identification was made spontaneously and without questioning by the officer. The hearing was recessed and resumed three months later. At this hearing, defense counsel announced that he had five witnesses available, including the complainant (Maria Chavez), Serina Thompson, Rosa Orozco, Esmeralda Arrendondo, and Roderick Mendoza. Petra Arredondo was not present. Counsel asked that he be allowed to call them to testify. The prosecutor objected that their testimony was irrelevant as it was only the officer’s conduct that was relevant to identification. Defense counsel maintained that the testimony was relevant, he did not anticipate that the officers would admit to any wrongdoing, and he wanted to hear what the witnesses would say with regard to the totality of the circumstances. The hearing was reset to allow the testimony of an officer who was not present in court. Three months later, the hearing resumed yet again. Defense counsel argued that the “one-on-one” showup was unduly suggestive as Appellant was the only person brought to the scene, and she arrived in a police car. The trial court denied the motion to suppress.

At trial, Officer Alex Bastidas testified that he transported Appellant back to the scene of the accident in a police car. She was not handcuffed. Officer Calderon reiterated that as he was speaking to the witnesses, one of them pointed to the patrol car as it drove by and identified Appellant as being the driver. Appellant’s objection to this testimony was overruled. Then, without objection, Officer Calderon testified that the witness--Petra Arredondo--identified Appellant before the officers established a one-on-one identification procedure. Officer Calderon informed his partner that one of the witnesses had positively identified Appellant. The officer testified that he never saw any officers pointing out Appellant to the witnesses, nor did he hear any officers tell the witnesses that Appellant was the driver. Appellant claimed that the officers removed her from the patrol car, talked among themselves, placed her back in the patrol car, and took her to the police station. Petra Arredondo did not testify.

An on-the-scene identification possesses a degree of suggestiveness, and under certain circumstances it may amount to a denial of due process. See Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App. 1981). Nevertheless, the admission of evidence of a one person show up, without more, does not violate due process. Id. Where a witness has made an in-court identification, Appellant must show that it was tainted by improper pretrial procedure and confrontation. In re G.A.T., 16 S.W.3d 818, 827 (Tex.App.--Houston [14th Dist.] 2000, pet. denied). In determining the admissibility of an in-court identification, we employ a two-step inquiry: (1) whether the out-of-court identification procedure was impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Id. We examine the totality of the circumstances in any case to determine if due process has been violated. Id. These circumstances include: (1) the witness’s opportunity to view; (2) the witness’s degree of attention; (3) the accuracy of the description; (4) the witness’s level of certainty; and (5) the time between the crime and the confrontation. Garza, 633 S.W.2d at 513.

In weighing these factors, the burden in on the accused to show, by clear and convincing evidence, that the witness’s identification was unreliable. See Pace v. State, 986 S.W.2d 740, 744 (Tex.App.--El Paso 1999, pet. ref’d). The trial court’s ruling admitting the identification is reviewed under an abuse of discretion standard, and the trial court’s ruling should not be overturned if it is supported by the record. See id.

The evidence indicates that Appellant was brought back to the scene fifteen to thirty minutes after the collision. Petra Arredondo positively identified Appellant, and she did so spontaneously. There was no specific description given by the witness, but one of the primary factors we consider is whether the police prompted any of the witnesses to identify the suspect. See Jackson v. State, 657 S.W.2d 123, 125 (Tex.Crim.App. 1983); Doty v. State, 820 S.W.2d 918, 922 (Tex.App.--Fort Worth 1991, pet. ref’d). There is no indication here that the police prompted the witness to identify Appellant. Finding that Appellant did not meet her burden to demonstrate that the identification was unreliable or suggestive, we overrule Issue Five.

RIGHT TO COMPULSORY PROCESS

In Issue Six, Appellant maintains that the court erred by refusing to allow her to present witnesses at the pretrial suppression hearing. Specifically, she contends that the testimony of the civilian witnesses was clearly relevant to the reliability of the identification.

An accused has a Sixth Amendment right to compulsory process which includes the right to call and present witnesses in one’s own defense. Coleman v. State, 966 S.W.2d 525, 527 (Tex.Crim.App. 1998). However, this right guarantees only the right to secure the attendance of witnesses whose testimony would be both favorable and material to the defense. Id. at 527-28. The burden is on defendant to make a plausible showing to the trial court, by sworn evidence or agreed facts, that the particular witness’s testimony would be both material and favorable. Id. at 528. Failure to make this demonstration results in no Sixth Amendment violation, and no error is shown. Id.; Perkins v. State, 902 S.W.2d 88, 97 (Tex.App.--El Paso), supplemental op., 905 S.W.2d 452 (Tex.App.--El Paso 1995, pet. ref’d).

Appellant failed to make an offer of proof demonstrating what the testimony of the witnesses would have been save for defense counsel’s statement to the court that he wanted to hear what the witnesses would have to say. She has thus waived error. We overrule Issue Six and affirm the judgment of the trial court.

ANN CRAWFORD McCLURE, Justice

February 8, 2007

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), sitting by assignment, not participating

(Do Not Publish)

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

2007-03-23T04:04:00.000-07:00

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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.

Comedy of Errors

False or true? Failure to appear charges as well for Judge unavailable at said hearing required is it not?

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