Tanya Dohoney
Questions
1
Code of Criminal Procedure article 12.01(4)(A) prescribes a five-year limitations period for theft crimes. In 2005, a Harris County grand jury returned four aggregated theft indictments against Christopher Tita. Each alleged a different several-month time period falling between 1999 and 2000. A fifth indictment issued in 2006; on its face, this indictment’s language fell outside the limitations period because it contained no tolling provision.
Tita sought dismissal on limitations grounds. In reply, the State obtained judicial notice of the 2005 indictments and argued that the prior indictments (which were ultimately dismissed) tolled the limitations period because they alleged the same criminal conduct. The trial court rejected the motion to quash and, in turn, the 14th Court of Appeals denied Tita’s request to review the pretrial limitations claim. The appellate court held that limitations claims are akin to legal defenses that need not be pled by the State. Was this holding correct?
____ yes ____ no
2
Turning back to the Harris County aggregated theft prosecution, legal insufficiency became an issue, too. During trial, Tita unsuccessfully moved for an instructed verdict (twice), piggybacking this sufficiency claim on his limitations argument. The State proffered no evidence on the limitations issue at trial, and nothing was submitted to the jury on the issue either. Did Tita’s insufficient-evidence claim prevail?
____ yes ____ no
3
Curtis Lee Bass ministered to a local Harris County congregation. In 1994, he used his pastoral position to molest a 16-year-old church member in his church office and the parking lot. The victim failed to officially report the abuse until 10 years later when she learned Bass had victimized another young woman.
When Bass’ trial began, his attorney presented an opening statement and described the victim’s allegations as “pure fantasy” and “fabrication.” Bass’ counsel also asserted that the sexual-abuse allegations were unworthy of belief because Bass was the “real deal” minister-wise. Defense counsel also mentioned that the State might attempt to “prop up” the victim’s “scattered, crumbling accusation” with extraneous unadjudicated allegations that never resulted in prosecution.
The trial continued, and the young woman detailed the minister’s assaultive behavior. Defense counsel attacked the victim’s credibility on cross-examination and exposed that, when the young girl had outcried 10 years earlier, neither her mother nor three educators believed her (which is why no charges were pursued). After the victim’s testimony, the State proffered evidence that Bass had also molested two other children in his church office: a 5-year-old in 1995 and an 11-year-old in 2000. Again, in those extraneous cases, no criminal charges resulted. Limiting instructions followed this testimony. Convicted on both counts, Bass was sentenced to 10 years’ confinement on one and probation on the other.
The 14th Court of Appeals reversed the convictions, holding that the trial judge abused his discretion by allowing the extraneous acts into evidence. The court distinguished between a “fabrication” defense and a “frame-up” defense and found that a “mere fabrication” claim did not open the door to extraneous rebuttal evidence.
The State sought review. One of the State’s grounds focused on whether defense counsel’s sweeping opening-statement comments, which gushed about Bass’ impeccable reputation as a minister, authorized the State to introduce extraneous crimes in rebuttal. Can the door to admission of extraneous offenses be kicked in during opening argument? Is the court of appeals’ fabrication distinction meritorious?
____ yes ____ no
4
Sergio Barrera stabbed his sister-in-law more than 60 times, killing her. A Hidalgo County jury convicted him of murder, heard punishment evidence, and maxed him out with a 99-year sentence and a $10,000 fine. When imposing this prison sentence, the trial court ordered Barrera to pay the victim’s family for funeral expenses. No evidence had been admitted on this matter, but at the sentencing hearing, the trial judge asked the prosecutor to quantify the expenses; the prosecutor asserted that the funeral had cost $12,000. Barrera did not object to the prosecutor’s valuation assertion or to the entry of this restitution order.
Barrera changed his tune on appeal and claimed that insufficient evidence supported the restitution imposed. The court of appeals agreed and deleted the restitution order. Was this the proper remedy on the restitution issue in a case where incarceration was assessed?
____ yes ____ no
5
Robert Henry Shepherd lived in a neighborhood where people looked out for each other. Shepherd typically kept his front door shut and also customarily accessed his house via his garage. Knowing Shepherd’s habits for more than 16 years, one neighbor became concerned after noticing Shepherd’s front door standing wide-open one day. The neighbor worried that Shepherd’s home had been burgled, especially because Shepherd’s car was not in the driveway. After enlisting another neighbor, the two called inside the open front door but received no response. The neighbors’ anxiety over the situation mounted, so they called police.
Officers apparently receive open-door calls with some frequency. From these experiences, they believe that an open portal indicates a possible burglary. Protocol in these instances requires that officers announce themselves at the door and, if no answer is received, they must enter and clear the premises, discerning whether a suspect or injured party is inside. If no one is discovered, the officers secure the building and attempt to find the owner to determine why the door was open.
When officers responded to the open-door call at Shepherd’s home, officers heard no reply after announcing. They drew their weapons and entered to avert or respond to any possible danger to the homeowner. The officers found no one when checking the house and its closets; they did not open drawers. While sweeping through the premises, the officers saw and seized a bong and a baggie of marijuana resting in plain view on a living room table. Was this a good search?
____ yes ____ no
6
Twenty-two-year-old Arsenio Clarke moved from New York to live with his extended family in Harris County. That family included a 14-year-old stepcousin whom Arsenio sexually assaulted. After an open pleading to the trial court, the judge found him guilty and ordered a PSI. During the subsequent sentencing hearing, defense counsel objected to statements made by the victim’s mother THAT contained innuendo regarding a possible extraneous crime back in New York. The State presented additional evidence, and the court sentenced Arsenio to 10 years’ confinement.
Clarke moved for a new trial, asserting grounds pertaining to the mother’s unfounded PSI allegations. At the hearing on this motion, defense counsel threw in a new legal argument pertaining to the unfounded allegations. Without saying “Brady,” the defense accused the prosecutor of knowing that the victim’s mother’s PSI statements had been false and not informing defense counsel or correcting the trial court’s false impression. At this post-trial hearing, the prosecution apparently presented no evidence or argument. The trial court denied the defense motion.
On appeal, Clarke argued that Brady applied. The State pointed out that this contention was not raised in the written motion for new trial but argued only at the hearing. Was this legal issue preserved despite not being included in the written motion for new trial or in a timely amended motion?
____ yes ____ no
7
Robert Huffman killed Rafael Garcia in a hit-and-run collision in San Antonio. By the time officers arrived at the crash scene, Huffman had fled, but he was later charged with failure to stop and render aid (FSRA). The Transportation Code proscribes the conduct that constitutes this offense as follows: When a motor-vehicle operator is involved in an accident resulting in injury or death, that person must immediately stop the vehicle at the scene or as close to the scene as possible; immediately return to the accident scene if the vehicle is not stopped; and remain at the scene until complying with various notification and safety provisions. (Tex. Transp. Code §550.021.) At the conclusion of Huffman’s FSRA trial, the unobjected-to court’s charge set out three methods of violating this provision in the disjunctive. On appeal following his conviction, Huffman contended that the disjunctive wording of the court’s charge violated his constitutional right to a unanimous verdict. The San Antonio appellate court agreed but found the error harmless.
The State petitioned for review complaining of the jury unanimity violation. Did the charged conduct (failing to stop, return, or remain) set out three separate offenses requiring unanimity or merely three different methods of committing the same offense?
____ yes ____ no
8
Shortly after returning to school following winter break, a highly intelligent 10-year-old informed her school counselor, Ms. Batchelder, that her father had been messing with her. This young girl specified that her daddy, Nicholas Klein, had routinely touched her between her legs using his fingers and tongue. After outcrying to the counselor, the child repeated her allegations to other officials.
Denton County indicted Klein on eight counts spread over four dates with two separate acts, digital penetration and lingual contact, set out on each of the four dates alleged. Evidence pertaining to the date of the offenses came from many sources. The young girl narrowed the time of her abuse to her fifth-grade school year, and she explained that the molestation happened “most nights” and “many times” when her mother was away at dance class. The mother claimed that her dance classes occurred only on Monday nights over a six-to-eight-week period; she agreed that, during these times, the victim was home alone with her father. Of the four dates listed in the indictment, three preceded the child’s fifth-grade school year and only one fell within that time frame. The trial court included a statute-of-limitations instruction in the jury’s charge, and the jury returned a guilty verdict on each count.
The Fort Worth Court of Appeals reversed this child-sex conviction after finding legally insufficient evidence supporting the commission of the crimes on the three pre-fifth-grade dates, reversing and entering acquittals on six counts. Was this ruling correct?
____ yes ____ no
9
In the same eight-count Klein child-sex case, shortly after the victim reported abuse to her school counselor, she repeated the story to a CPS investigator and a police officer, then changed her story, denying ever being victimized.
When trial rolled around, the prosecutor introduced the counselor’s testimony as substantive outcry evidence and was unsure what the child’s testimony would entail. When the young girl began her testimony, she informed the jury that her father did not molest her, but she admitted making allegations about his prurient misdeeds. Still on direct, the prosecutor asked her about the quality of her memory and remembering when “it started.” The victim proceeded to describe how her father had entered her room at night while her mother was gone. She explained that his acts were just as she had previously described to her school counselor, and she specifically agreed that he touched her vagina with his fingers and tongue; yet, the girl reverted back to claiming that no abuse occurred later on direct. In other words, the girl’s testimony contained substantial internal conflicts. On cross-examination, defense counsel sought to reaffirm the victim’s recantation and implied that any other claim was recently fabricated.
In an effort to rebut the defensive theory, the prosecution sought to introduce the victim’s statements to the CPS investigator and officer as prior consistent statements. Objecting vehemently, defense counsel contended that the prosecutor’s devious questions “seduced” the girl. The trial court ruled the evidence admissible, allowing both witnesses to repeat the girl’s prior consistent statements. During closing argument, Klein’s attorney repeated his contention that the prosecutor’s questioning improperly influenced the girl’s testimony to the extent that she admitted the accusation. Did the victim’s conflicting testimony give rise to the prior statements’ admission?
____ yes ____ no
10
Stephon Lavelle Walter and his buddy Markel Henson robbed the Texarkana Outback Steakhouse, shooting three employees in the head, execution-style. The next morning, Markel Henson enlisted his brother, Roderick, in burning and storing evidence of the crime. He also told his brother about the robbery-murder. Shortly thereafter, Roderick’s actions resulted in the arrest of the two capital perpetrators.
The prosecution sought to introduce Markel’s statements to his brother under the statement-against-interest hearsay exception (Tex. R. Evid. 803(24)). When Roderick saw his brother the day after the murders, Markel said that he and Walter went to the Outback to “hit a lick,” meaning make some money. Markel said that Walter went into the office, got the money, gave it to Markel, and returned to the office. Markel believed that Walter was looking for a safe key. While standing in the hall, Markel heard six gunshots after hearing people begging for their lives, asking Walter by name to not shoot. Markel said that they planned to get the money out of the safe but could not find a key. Afterwards, they split the $800 at Walter’s apartment where, Markel said, Walter put a gun to Markel’s head and threatened to kill him if he told anyone.
Roderick testified to this narrative in Walter’s trial, pointing the finger at Walter as the sole shooter while also implicating himself. The defense agreed that the brother could relate Markel’s self-inculpatory statements, but they objected to Roderick describing Markel’s assertions that inculpated only Walter, contending that those hearsay statements were Markel’s attempts to shift blame to Walter and minimize Markel’s culpability. Was this entire conversation admissible as a statement against interest?
____ yes ____ no
Answers
1
No. Code of Criminal Procedure article 21.02(6) sets out indictment requisites and mandates that they facially reveal their limitations validity. Where an indictment’s face reveals that the statute of limitations bars prosecution, article 27.08(2) rewards a dismissal to a defendant who objects on this issue. Tita v. State, No. PD-1574-07, ___ S.W.3d ___, 2008 WL 4149708 (Tex. Crim. App. September 10, 2008) (Holcomb) (7:1:0). Tolling paragraphs or explanatory averments suffice to show a valid prosecution within the limitations period. Therefore, the Harris County trial judge should have dismissed Tita’s indictment.
2
No. Tita never raised the issue before the jury. If some evidence, regardless of the source, suggests that the prosecution is limitations-barred, a defendant may assert this defense by requesting a limitations jury instruction. When a court submits such an instruction, the State must prove beyond a reasonable doubt that a limitations bar does not apply. Because no limitations instruction was requested or submitted here, the State bore no obligation to prove that its prosecution was not barred, and Tita’s sufficiency claim fails. Tita v. State, No. PD-1574-07, ___ S.W.3d ___, 2008 WL 4149708 (Tex. Crim. App. September 10, 2008) (Holcomb) (7:1:0).
3
Yes and no. An opening statement can open the door to the admission of extraneous-offense evidence to rebut the defensive theory presented in the opening statement. Bass v. State, Nos. PD-0494,0495-07, ___ S.W.3d ___, 2008 WL 4149701 (Tex. Crim. App. September 10, 2008) (Hervey) (8:1:0). However, the “fabrication” distinction drawn by the interim appellate court fails. Extraneous evidence is admissible when it harbors some logical relevance aside from character conformity. Evidence that suggests either fabrication or a frame-up/retaliatory motive can possess relevance aside from character conformity. Here, the trial judge did not abuse his discretion in admitting extraneous crimes to counter the defense theory voiced in the opening statement.
4
No. Public policy favors restitution to crime victims. Because constitutional jeopardy protections do not apply to noncapital sentencing per Monge v. California, 524 U.S. 721, 118 S.Ct. 2246 (1998), remanding the restitution matter to the trial court is the best way to solve the restitution question. Barrera v. State, No. PD-1642-07, ___ S.W.3d ___ 2008 WL 4149709 (Tex. Crim. App. September 10, 2008) (Holcomb) (8:0).
5
Absolutely. Shepherd v. State, No. PD-1551-07, ___ S.W.3d ___, 2008 WL 4149707 (Tex. Crim. App. September 10, 2008) (Keller) (7:2). The Fourth Amendment does not prohibit a warrantless home entry and search when officers reasonably believe that a person within the premise is in need of immediate aid. See Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct 2408 (1978).
The emergency doctrine applies when officers reasonably believe that their actions are immediately necessary to protect or preserve life or avoid serious injury; it does not apply when police are carrying out their crime-fighting role. Such searches are strictly circumscribed by the exigencies that justify their initiation, but anything in plain view may be seized during the officers’ legitimate emergency activities. When reviewing these Fourth Amendment cases, a court must consider the objective facts and inferences known to the officers, including the officers’ training and experience. Shepherd’s facts pass this objective test since a reasonable officer could have believed that entering the house was necessary to protect or preserve life or to avoid a serious injury. Under the circumstances known to the officers, the Fourth Amendment certainly did not require them to walk away.
6
Yes. The gist of the Brady argument was strenuously voiced during the hearing on the motion for new trial, and the State did not object. Although the defense argument did not contain the constitutional legal support underpinning it and the “gussied up” appellate complaint did, the overarching theory voiced by the defense has remained the same: The prosecutor had a duty to inform defense counsel and the court that the extraneous matter in the PSI was false. Furthermore, trial courts are authorized to consider the merits of untimely new-trial amendments when the State fails to object, so the issue was preserved for appeal. Clarke v. State, No. PD-1454-07, ___ S.W.3d ___, 2008 WL 4331008 (Tex. Crim. App. September 24, 2008) (Cochran) (6:3).
7
Failing to stop, failing to return, and failing to remain are simply alternate methods of committing the same offense and therefore, the jury’s disjunctive consideration of these acts did not violate Huffman’s right to a unanimous verdict. Huffman v. State, No. PD-1539-07, ___ S.W.3d ___, 2008 WL 4414520 (Tex. Crim. App. October 1, 2008) (Keller) (6:1/1/1/4:0);1 Tex. Transp. Code §550.021.
Presiding Judge Keller’s decision thoroughly discusses, with examples, the eighth-grade-grammar analysis developed by Judge Cochran to analyze unanimity complaints. Judge Keller concludes that failure to stop and render aid is a circumstances-surrounding-the-conduct offense because the driving conduct becomes criminal only due to the driver’s knowledge of circumstances surrounding the conduct: a wreck and an injured victim. Hence, each wreck and each victim constitute an allowable unit of prosecution. Also, the language of the statute includes acts—stop, return, and remain—that are serial requirements that relate, step-by-step, to what a driver must do at the scene of a car collision. The offense arises when a driver fails to comply with any of these acts.
Concurring, Judge Cochran also relies on her eighth-grade-grammar analysis, but she believes that the majority applied this test to the wrong subsection of the statute. The final clause of this Transportation Code section innocuously reads: “A person commits an offense if the person does not stop or does not comply with the requirements of this section.” Applying the sentence-diagraming formula to this offense-defining phrase, Judge Cochran concludes that the main transitive verbs of the sentence are “stop or comply.” She writes that the failure either to stop or to comply with the provision’s other requirements is the forbidden conduct, while the earlier statutory language about stopping, returning, and remaining (along with providing information and assistance) statutorily defines the requirements with which a driver must “comply.”
Editor’s note: For more on disjunctive jury charges, see page 18.
8
No. Klein v. State, No. PD-0502-06, ___ S.W.3d ___, 2008 WL 4414498 (Tex. Crim. App. October 1, 2008) (Hervey) (5:4/4).2 At a minimum—and giving unwarranted credence to the mother’s defense-serving testimony which limited her dance schedule to several weeks—the evidence showed that the child suffered sexual assaults on at least four separate occasions on Monday nights while her mother attended dance lessons during the fall semester of the child’s fifth-grade year. Specific testimony recounted at least four separate sexual assaults. Therefore, the court of appeals erred by finding that the record was void of any specific evidence of separate incidents constituting the commission of additional offenses.
9
Yes, but just barely. In general, conflicting testimony—in and of itself—will not authorize admission of prior consistent statements offered to rebut an express or implied charge of recent fabrication or improper influence or motive. However, based upon the facts and posture of the arguments in this case, the trial court did not abuse its discretion in admitting the victim’s out-of-court assertions to the CPS investigator and officer to show that the child had said the same things to others earlier. The court reversed the court of appeals’ decision. Klein v. State, No. PD-502-06, ___ S.W.3d ___, 2008 WL 4414498 (Tex. Crim. App. October 1, 2008) (Hervey) (5:4/4)
Judge Cochran’s dissent would narrow the application of Rule 801(e)(1)(B) to allow rehabilitation of a witness only when the recent-fabrication accusation arose based upon “some improper reason” such as a bribe, plea deal, civil lawsuit, etc.
10
No. Only statements that are directly against the speaker’s penal interest—including blame-sharing statements—are admissible pursuant to Rule 803(24). Walter v. State, No. PD-1929-06, ___ S.W.3d ___, 2008 SL 4414536 (Tex. Crim. App. October 1, 2008) (Cochran) (8:2). The statement-against-self-interest hearsay exception stems from the common-sense notion that people ordinarily do not say things that are damaging to themselves unless they believe they are true. To be admissible, a self-inculpatory statement must subject the declarant to criminal liability and the declarant must realize this when it was uttered; also, sufficient corroborating circumstances should indicate the statement’s trustworthiness. The fact that a person makes a broadly self-inculpatory confession does not make the confession’s non-self-inculpatory assertions credible; indeed, one of the most effective ways to lie is to mix falsehood with truth. Thus, the self-exculpatory statements that shift the blame to another person must be excluded, and trial judges must separate and exclude the self-inculpatory comments from the mix. The trial court abused its discretion by admitting Markel’s narrative in toto without discerning whether each assertion was directly self-incriminating or, at a minimum, shared blame equally. ✤
Endnotes
#1 This case generated five opinions: Six judges joined the majority; the other three judges wrote separate concurrences, and Judge Cochran delivered a four-vote concurrence that included votes from two other judges who had, like Cochran, also joined the majority. No one dissented.
#2 Four members of the court participated in a concurring and dissenting opinion authored by Judge Price as well as Judge Cochran’s dissent. The four members of the mixed-result opinion concurred on the sufficiency issue.