June 2022 SDR – Voice for the Defense Vol. 51, No. 5

Voice for the Defense Volume 51, No. 5 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Not many cases for the month of May, if you’re only counting non-leaked opinions. And that is officially the closest I think I’m allowed to get to that. What else might be going on this month you might ask? Well, I can report (significantly of course) that losing an earlobe worthy of kissing and nibbling is not that serious. Also, all the electronic harassment constitutional challenges got resolved. Considering that I maintain an electronic edition of this report, I am thoroughly petrified that my harassing, annoying, and alarming commentary is gonna get me jammed up. Good thing I know a few good lawyers.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

This publication is intended as a resource for the membership, and I welcome feedback, comments, or suggestions: (972) 369-0577.

Kyle Therrian

United States Supreme Court

The United States Supreme Court did not hand down any significant or published opinions since the last Significant Decisions Report. See my comment above.

Fifth Circuit

United States v. Castelo-Palma, 40 F.4th 284 (5th Cir. 2022)

Issue & Answer. A defendant who transports illegal aliens for financial gain is subject to a Sentencing Guidelines enhancement for doing so in a manner that creates a substantial risk of death or serious bodily injury. Should this enhancement apply to an individual because he put more passengers in his vehicle than the manufacturer intended? No.

Facts. A drug cartel paid the defendant to smuggle eight individuals into the United States in a 2003 Ford Explorer. He pled guilty without a plea agreement to the charge of transportation of illegal aliens for financial gain. In calculating his federal sentencing guideline points, the probation officer assessed a three-level enhancement for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” In support of the enhancement, the probation officer cited the fact that nine individuals were inside a Ford Explorer with a rated capacity of seven passengers. The district court overruled the defendant’s objection to the assessment of the enhancement and sentenced the defendant to 24 months of imprisonment. 

Analysis. A 3-point enhancement under the sentencing guidelines applies in cases of alien smuggling conducted in a manner that creates a substantial risk of death or serious bodily injury. U.S.S.G. § 2L1.1(b)(6). The Fifth Circuit has identified five factors for consideration when applying this enhancement: (1) availability of oxygen, (2) exposure to extreme temperatures, (3) the aliens’ ability to communicate with the driver, (4) the aliens’ ability to exit the vehicle quickly, and (5) the danger to aliens if an accident occurs. The commentary to 2L1.1(b) suggests the enhancement should apply when “carrying substantially more passengers than the rated capacity of a motor vehicle or vessel.” The Government argues that the crowded vehicle rendered it difficult to exit and dangerous in the event of an accident. The government reaches this conclusion based on hypotheticals not supported by the evidence. Nothing in the record indicated a risk to passengers greater than that of an ordinary passenger, even when considering the fact that the passengers were not wearing seat belts.

Comment. A nailbiter to the end, I thought the answer would be yes. Not that it should be, just . . . I guess it’s a Pavlovian conditioning sort of thing.

Texas Court of Criminal Appeals

Wade v. State, No. PD-0157-20 (Tex. Crim. App. 2022)

Issue & Answer. A defendant is entitled to a lesser-included offense instruction when at least a scintilla of evidence establishes the lesser offense as a valid rational alternative to the charged offense. Can this scintilla of evidence come in the form of the defendant’s own lay opinion regarding the severity of his victim’s injury in an aggravated assault case? Yes.

Facts. Defendant was in a physical altercation with his ex-wife’s new boyfriend. He bit the guy’s earlobe off. The State charged him with aggravated assault with a deadly weapon (to wit: his teeth). They specifically alleged he caused serious permanent disfigurement. EMS took the lobe and the lobeless victim to the hospital where they sewed the earlobe back on. There was no serious bleeding, the injury was non-life-threatening, and the victim declined pain medication. Defendant testified that it was his personal opinion that biting the victim’s earlobe off may have caused some permanent disfigurement but that the disfigurement was not “serious” and was mostly unnoticeable. The victim testified that he considered his injury to constitute permanent disfigurement but said nothing about whether he considered it to be “serious.” The trial court denied the defendant’s request for a lesser-included assault charge to the jury.

Analysis. A lesser-included instruction is required when there is at least a scintilla of evidence from any source establishing a valid rational alternative to the charged offense. For a lesser included offense to be a valid rational alternative, there must be some evidence casting a reasonable doubt upon the charged offense. This analysis requires the court to look at the evidence in the light most favorable to the requested instruction. Here, the issue pertains to the degree of the injury: serious bodily injury versus bodily injury. Thus, for a lesser included instruction of bodily injury assault, there must be some evidence that would have permitted the jury to rationally doubt the injury to the victim’s earlobe constituted serious bodily injury—in this case, defined as serious permanent disfigurement. “The relevant issue in determining the degree of disfigurement is the damage caused by the wound when inflicted, not the disfigurement as exacerbated or ameliorated by medical treatment. However, bodily injury cannot be elevated to serious bodily injury by postulating potential complications that are not in evidence. There must be evidence of some significant cosmetic deformity caused by the injury.” Not every scar constitutes serious permanent disfigurement. A jury is free to apply its own logic in this regard. Appellant was entitled to rely on his own lay opinion testimony to cast doubt on the severity of the victim’s injury. His lay opinion regarding the seriousness of the victim’s injury was sufficient to obtain a lesser-included offense instruction.

Dissenting (Keller, J.). There is no dispute about what the victim’s injury was and therefore the issue of serious permanent disfigurement is a question of law, not fact.

Dissenting (Slaughter, J.). Losing the entirety of a named body part (earlobe) should constitute per se serious permanent disfigurement. People can wear earrings or intimately “kiss and nibble” on an earlobe and thus the loss of the earlobe is serious.

Comment. This case has an Amicus brief from the 105th Judicial District Attorney who basically says in fewer pages than take up the table of contents that a defendant’s opinion shouldn’t matter. Why was that necessary?

Chambers v. State, No. PD-0424-19 (Tex. Crim. App. 2022)

Issue & Answer. Texas Code of Criminal Procedure Article 38.23 requires a trial court to submit an instruction permitting a jury to suppress evidence obtained unlawfully. There must be a factual dispute before the right to such an instruction is triggered. Must the factual dispute rise to the level of affirmative proof contradicting the State’s evidence? No.

Facts. An officer stopped the defendant for driving without a rear license plate. The defendant did have a license plate. The State’s evidence showed definitively that a paper license was attached to the back of the defendant’s truck. During the stop, the officer found guns and drugs. The trial court denied a pretrial motion to suppress. At trial, the defendant requested an Article 38.23 instruction requiring the jury to disregard evidence obtained in violation of the Constitution. The trial court also denied this instruction. The Texarkana Court of Appeals affirmed the trial court’s denial.

Analysis. A defendant must meet three requirements for submission of an Article 38.23 instruction to the jury: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested fact issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. The defendant met these requirements. There existed an issue of fact about whether a license plate was affixed to the vehicle; the fact was contested by the parties; the fact was material to the stop. The court of appeals’ opinion suggests that a defendant must affirmatively prove the officer could see the license plate in order to get an Article 38.23 instruction. This is not the standard. “[T]he evidence need not prove the existence of the fact; it just has to raise the factual issue.”

Comment. I’m not 100 percent on the distinction between “affirmative proof” of a fact and injection of facts which raise a factual issue. In this case it seems to mean that the defendant did not have to prove that the officer could see a license plate despite the officer’s claims he could not. But that only became a factual issue by affirmative proof that a license plate was affixed to the vehicle. I think it would be easier to comprehend by stating: a defendant is entitled to a 38.23 instruction if some evidence from any source contradicts the State’s theory that evidence was lawfully obtained.

Ex parte Sanders, No. PD-0469-19 (Tex. Crim. App. 2022)

Issue & Answer. Is Texas’s electronic harassment statute facially invalid under the First Amendment? No.

Analysis. The statute at issue, Texas Penal Code § 42.07(a)(7), provides:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) in this section:

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in party by a wire, radio, electromagnetic, photoelectronic, or photo-optical system . . .

The essential issue presented in this case is whether the Court’s precedent in Scott v. State should be overruled or whether it should stand, and its rationale in the context of telephonic harassment should be applied to electronic harassment statute (texts, emails, social media, etc.). 322 S.W.3d 662 (Tex. Crim. App. 2010) The Scott Court found that telephonic harassment (repeatedly ringing a person’s phone to annoy/harass/etc.) was not communicative conduct. Telephonic harassment was neither legitimate communication nor expressive. Telephonic harassment is the infliction of emotional distress for its own sake. The Scott Court also found that, even when communicative, speech which invades a substantial privacy interest of another in an essentially intolerable manner is outside the protection of the First Amendment.

Defendant argues the Court created a new category of unprotected speech by creation of the “invasion of substantial privacy interest” standard. But the core holding of Scott was not in the creation of a new category of protected speech. The core holding in Scott was a finding that the conduct proscribed was not speech at all—it was noncommunicative or pure harassment. The First Amendment forbids the abridgement only of speech, but it is not enough that the statute might touch on some potential kernel of expression. A statute must regulate conduct with a significant expressive element before it treads into First Amendment territory.  To this end the Supreme Court has permitted Congress to revoke funding from law schools that banned military recruiters in response to the military’s stance on homosexuality. The Supreme Court also green-lit Nevada legislation requiring the recusal of legislators on bills involving a matter of personal interest. The telephonic harassment statute does not target expression—it does not require the speaker to even use spoken words.

Ultimately, the electronic harassment provision is no different than the telephonic harassment provision. The statute does not target speech and does not require the electronic communication to be expressive. “A person intending to harass another could violate the statute by sending several e-mails containing only the letter “B” (arguably a “writing”) or e-mails containing nothing (some minimal level of “data”). Nor is there a requirement that the data be understandable by either man or machine.

Concurring (Yeary, J.). The electronic harassment statute protects individuals.

Dissenting (Keller, J.). Too many of the statute’s applications will affect speech and too many of those applications will affect protected speech. The statute is overly broad and thus violates the First Amendment.

Comment. The court is pretty well split on this one. A facial first amendment analysis is a three (maybe four or five, but we’ll keep it basic) step process: (1) does it target speech? (2) if yes, then do a substantial number of its applications target protected speech (i.e., is it narrowly tailored)? and (3) if yes, then is there a compelling government interest? The Court does not even get past step one. Step two is the alarming part of the statute because the answer is unquestionably “yes.” But the court’s position is that overbreadth doesn’t matter if the statute is not designed to target speech.

The Court signals throughout its opinion that the Statute is ripe for as-applied challenges—challenges to the constitutionality of the statute based on the specific nuances of a particular case. This was a facial challenge aiming to strike down the statute altogether because its application is unconstitutional in too many instances. Don’t give up your constitutional challenges, this is still a viable issue on a case-by-case basis.

Ex parte Barton, No. PD-1123-19 (Tex. Crim. App. 2022)

Issue & Answer. Same as Sanders

Analysis. This case reaches the Court of Criminal Appeals from the Second Court of Appeals. The Second Court of Appeals declared the electronic harassment statute unconstitutional by relying on the Court of Criminal Appeals post-Scott opinion of Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014). In Wilson, the Court of Criminal Appeals overruled an intermediate court holding that telephonic communications were not “repeated” under the statute because one of the phone calls relied upon by the State to achieve the repetitious nature of the phone calls had a legitimate purpose (other than to harass, annoy, etc.). The Court of Criminal Appeals explained “the existence of evidence that may support the conclusion that the call had a facially legitimate purpose does not legally negate the prohibited intent or manner of the call.” The court of appeals in the instant case took this to be an acknowledgement of facially legitimate reasons behind phone calls satisfying the elements of a harassment. This interpretation reads Wilson too expansively. What Wilson stands for is this:

[The telephonic harassment statute] makes it an offense to make repeated telephone communications, where those communications are made in a manner reasonably likely to harass, annoy, [etc.], so long as the person making said communications has an intent to harass, annoy, [etc.]. If the person harbors some extra intent in making those communications, he nevertheless still has an intent to harass, annoy, [etc.]. Unless the separate intent is specifically an intent not to harass, annoy, [etc.], the existence of a separate, facially legitimate intent to communicate does not negate the prohibited intent.”

The point of Wilson was not to declare that the harassment statute implicates expressive conduct.

Concurring (Yeary, J.). Same as in Sanders.

Dissenting (Keller, J.).

Suppose a citizen, unhappy with an opinion from this Court, sent repeated emails to a group of like-minded citizens, saying “Texas is in trouble” and “This is arguably the most devastating ruling I have ever received from a court” and “It’s time to get serious and get on the phone, write letters, etc. to EVERYONE YOU KNOW to make them aware of what’s happening. Name names on this court! If this stands we lose Texas. It’s do or die this time.” Has that citizen committed a crime? Under the Court’s decision today, the answer is “Yes.” At the risk of being prosecuted myself for violating § 42.07(a)(7) of the Texas Penal Code, let me say here that the people of Texas should be alarmed by this holding.

The statute unquestionably targets speech. The harassment statute is “far broader” than the telephonic harassment statute. What distinguishes the two statutes—if there must be a distinction—is that telephonic harassment will always involve a captive audience. Someone must endure their phone ringing, but the same cannot be said about a person being “harassed” electronically.

Comment. Judge Keller is right.

Ex parte Nuncio, No. PD-0478-19 (Tex. Crim. App. 2022)

Issue & Answer 1. Is Texas’s “obscene harassment statute” overly broad in violation of the First Amendment? It “will have to wait for another day”

Issue & Answer 2. Is Texas’s “obscene harassment statute” unconstitutionally vague under the First Amendment? No.

Analysis 1. The statute at issue, Texas Penal Code § 42.07(a)(1) provides:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) Initiates a communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene

(b) in this section:

(3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of excretory function.

The obscene harassment statute regulates speech and therefore Scott does not apply. The conduct in the instant case is entirely different than telephonic harassment. Telephonic harassment is committed by causing someone’s phone to ring irrespective of communicating anything. Obscene harassment criminalizes conduct specifically because of the content of the speech. Here, whether the statute targeting speech is overly broad depends on the definition of “obscene.” The court of appeals found the Legislature’s definition narrower than the description given by Miller v. California when defining obscenity as outside the limits of First Amendment protection. But the Legislature’s definition is broader than the court of appeals acknowledges. The Legislature’s definition does not incorporate a requirement that the comments appeal to “prurient interests” nor does it exclude comments with “serious literary, artistic, political, or scientific value. These are important prongs to the Miller standard for unprotected obscene speech. “We conclude, therefore, that obscenity defined by § 42.07(b)(3) and restricted by 42.07(a)(1) includes both unprotected speech and protected speech. However that is not the end of our analysis.” An overbroad statute must be substantially overbroad before invalidating it on First Amendment grounds. Here, the defendant mistakenly believed it was the State’s burden to show the statute is not overbroad and made no attempt to expound upon the hypotheticals in which the Law cannot be applied. “The answer to the overbreadth question will have to wait for another day.”

Analysis 2. Defendant targets the phrases “ultimate sex act” and “patently offensive” as used in the obscene harassment statute. “Ultimate sex act” is not vague because the statute provides an “exemplary list of ultimate sex acts” illustrating what it means to prohibit: more than a general allegation of sexual activity. “Patently offensive” is not vague because it is a phrase defined in a sister statute found to survive First Amendment vagueness scrutiny.

1st District Houston

Ex parte Mazuera, No. 01-21-00612-CR (Tex. App.—Houston [1st Dist.], Apr. 14, 2022)(not designated for publication)

Issue & Answer. When a trial court rejects an agreed bond amount as sufficient to satisfy the statutory factors in setting bond, must the trial court’s decision be supported by specific evidence pertaining to those factors? Yes.

Facts. The State indicted the defendant with ten child pornography offenses. For each offense a court set his bail at $100,000. Defendant filed a pretrial writ of habeas corpus and argued he is entitled to a bail amount he can afford. Defendant presented evidence of his significant ties to the community, his service in the United States Marines and National Guard, his college education, his employment, and his lack of prior criminal history. Defendant requested $10,000 bond in each of his cases and urged the trial court to set conditions that would satisfy any concerns regarding his flight risk or potential danger to the victim or community. The State requested bail reduced to $15,000 in each case. The trial court reduced bail to $75,000 in each case.

Analysis. A trial court’s determination in setting bail is reviewed for an abuse of discretion. “We acknowledge that an abuse-of-discretion review requires more of the appellate court than simply deciding that the trial court did not rule arbitrarily or capriciously. An appellate court must instead measure the trial court’s ruling against the relevant criteria by which the ruling was made.”

A court must consider certain statutory factors when determining an appropriate bond amount: (1) the bond must be sufficiently high to secure appearance and compliance with bond conditions, (2) bond may not serve as an instrument of oppression, (3) the nature and circumstances of offense, (4) the defendant’s ability to make bail, and (5) safety of victim and community. A court may also consider work record, family and community ties, residence, prior criminal history, conformity with previous bond conditions, aggravating factors alleged in the instant offense.

Here, no evidence suggested a risk of flight, an aggravated fact pattern, or public safety concerns. The State’s request for a $15,000 bond in each concern actually reflected the opposite of these particularized concerns. The defendant did not present evidence regarding “specific assets or financial resources [or] explain what efforts, if any, were made by appellant to furnish bail in the amounts set by the trial court.” However, in this case, the defendant’s failure to present financial evidence is easily remedied by his length of pretrial incarceration without securing release financially. Ultimately, the trial court’s setting bond without reference to guiding principles was indicative of an intent to keep the defendant locked up arbitrarily and as an instrument of oppression.

Comment. A 34-page opinion on pretrial habeas should be designated for publication. Or be shorter.

2nd District Fort Worth

Ex parte Hance, No. 02-19-00237-CR (Tex. App.—Fort Worth, Apr. 21, 2022)(not designated for publication)

Issue & Answer. When criminal investigators fail to turn over material evidence and only disclose its existence mid-trial, is it an abuse of discretion for a trial court to proceed with trial and deny a defendant’s motions for continuance, dismissal, and mistrial when the nature of the concealed evidence does not lend itself to quick review and usage by defense counsel? Yes.

Facts. A jury convicted the defendant of aggravated sexual assault of a child under six years of age. At trial, the defendant’s wife (mother of the child) testified regarding the defendant’s computer search history which included searches for information about daddy-daughter and toddler molestation. Nearly two years before trial began, the defendant’s wife provided the relevant laptop to law enforcement who in turn sent it to a specialty agency for forensic evaluation. A mirrored hard drive and forensic report were generated. While prosecutors were aware of the laptop seizure, they did not become aware of its forensic analysis until it was revealed mid-trial by their chief investigator. Defense counsel filed a verified combined motion for mistrial, dismissal and continuance. The trial granted a continuance for two weeks, appointed a defense forensic expert, and ordered the laptop produced to this forensic expert. However, the trial court changed course and reconvened trial when two jurors indicated their unavailability in the event of further delay. Before trial resumed the State announced it had refused to turn over the laptop to the defendant’s expert because it contained “nonchild pornography.” The prosecutor rationalized that nonchild pornography could be indicative of potential child pornography. The trial court again denied the defendant’s motions for mistrial, dismissal, and continuance. Instead, the trial court ordered the State to provide defense counsel with a mirrored hard drive for overnight review.

Analysis. “When the trial judge ordered the State to turn over the computer’s hard drive to the defense expert, the State decided the court’s order was infirm and should not be complied with.” The prosecutor raised concern about the possibility of child pornography which was not an objection the prosecutor made when the trial court ordered the laptop produced to the defendant’s expert. Notwithstanding the prosecutor’s ignorance of law enforcement’s investigation, the State—through its investigators—possessed the laptop, the forensic report, and material evidence for almost two years. “The rule is well established that the knowledge of one part of the prosecution team is imputed to all members of the prosecution team.” The trial court’s denial of further continuance and forcing trial to proceed instead of declaring a mistrial was “denial of counsel and denial of fair trial.” The defendant should have been afforded the ability to conduct an independent forensic analysis of the laptop for information which may have been relevant to impeaching the State’s theory regarding the defendant’s proclivities and search engine activity.

3rd District Austin

Ex parte Boyd, No. 03-20-00395-CR (Tex. App.—Austin, April 18, 2022)(not designated for publication)

Issue & Answer. Executive Order GA-13—which is still a thing—suspends the release of inmates on personal bond pursuant to Texas Code of Criminal Procedure Article 17.151. This provision requires release of an inmate after 90 days of pretrial incarceration without indictment. Is a trial court required to release an unindicted murder suspect after 90 days of delay, notwithstanding Executive Order GA-13? Yes. 

Analysis. The Court of Criminal Appeals determined in Ex parte Lanclos that, notwithstanding the existence of Executive Order GA-13, a trial court must at a minimum “release [] defendants on bonds they can afford” when Article 17.151 is properly invoked. The State’s attempt to circumvent the Lanclos decision by citing the Texas Supreme Court Emergency Orders authorizing trial courts to modify or suspend court proceedings is unpersuasive. An individual’s pre-indictment incarceration is not a court proceeding. Article 17.151 relief does not require a court-proceeding. The authority given by the legislature to the Texas Supreme Court to extend court proceeding deadlines was given in the wake of Hurricane Harvey. After Hurricane Harvey, courts were without infrastructure to conduct necessary business. There is nothing about the pandemic that prevents a trial court to review the basic facts material to an Article 17.151 determination and rule accordingly.

Comment. Also, GA-13 is unconstitutional. If I say it enough, it will be real. Right? It’s unconstitutional.

4th District San Antonio

Vitela v. State, No. 04-19-00737-CR (Tex. App.—San Antonio, Apr. 27, 2022)

Issue & Answer. Is it proper for an appellate court to rely on evidence produced at trial to uphold a pretrial ruling on a motion to suppress? Yes. 

Facts. This is an opinion on rehearing from the court’s November 2021 opinion. The motion to suppress arose from law enforcements search and seizure of the “black box” on defendant’s vehicle following a deadly vehicle collision. Defendant did not pay for the tow fee and failed to collect the wreckage of his vehicle from the impound lot. The State argued the property had been abandoned and the Defendant therefore relinquished his expectation of privacy. The Court of Appeals agreed and affirmed the trial court’s denial of defendant’s motion to suppress. On rehearing the defendant argued that the trial court improperly relied on facts presented at trial after the trial court had already denied his motion to suppress.

Analysis. For as long as the trial court has continuing jurisdiction over the case it is free to reconsider an earlier suppression ruling. “It is [only] the reviewing court that is generally limited to what was before the trial court when it made its ultimate decision.” Black v. State, 362 S.W.3d 626 (Tex. Crim. App. 2012).

Comment. The Fourth Court kind of picks some state-convenient quotes from the Black opinion and passes over the quote introduced with the phrase “the general rule.”

The general rule: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing—the evidence that was before the court at the time of its decision.  According to Vitela’s briefing, “Neither the prosecution nor the Appellant requested to reopen the suppression hearing.”

Williams v. State, No. -04-21-00486-CR (Tex. App.—San Antonio, Apr. 27, 2022)

Issue & Answer. Aggravated promotion of prostitution can be committed by various acts (“owns, invests in, finances, controls, supervises, or manages). When an indictment charging a person with aggravated promotion of prostitution merely tracks the statute and does not identify which of the various acts the State intends to prove, has that indictment provided sufficient notice? No.

Facts. The State alleged that the defendant promoted prostitution in Kerrville. Evidence showed that the defendant procured several women for a “rancher” “looking to party.” Defendant was explicit in the text messages regarding the sexual acts which the women could perform for a fee. The “rancher” turned out to be the police. Defendant and the prostitutes were arrested. The jury convicted.

Analysis. A person commits aggravated promotion of prostitution if he (1) knowingly, (2) owns, invests in, finances, controls, supervises, or manages, (3) a prostitution enterprise, (4) that uses two or more prostitutes. The indictment did nothing more than track the language of the statute. Both the Texas and US Constitutions require the State to provide a defendant with fair notice which conveys information sufficient to allow the accused to prepare a defense. Chapter 21 of the Code of Criminal Procedure explains how this should be done: with plain intelligible words stating everything the State must prove in a manner that identifies conduct which may not be re-prosecuted upon judgment. Normally an indictment that tracks the criminal statute will suffice, but not always. Statutory language may not be “completely descriptive of an offense.” This is especially true when the statute provides more than one manner and means for committing an offense. Because aggravated promotion of prostitution can be committed by acts of owning, investing, financing, controlling, supervising, or managing, there is more than one manner and means identified by the statute. The statute alone is not completely descriptive of the offense. The indictment did not provide sufficient notice, nor did any actual notice by the State cure the deficient indictment.

5th District Dallas

The Fifth District Court of Appeals in Dallas did not hand down any significant or published opinions since the last Significant Decisions Report.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

The Seventh District Court of Appeals in Amarillo did not hand down any significant or published opinions since the last Significant Decisions Report.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

The Tenth District Court of Appeals in Waco did not hand down any significant or published opinions since the last Significant Decisions Report.

11th District Eastland

The Eleventh District Court of Appeals in Eastland did not hand down any significant or published opinions since the last Significant Decisions Report.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi / Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Turner v. State, No. 14-20-00041-CR (Tex. App.—Houston [14th Dist], Apr. 19, 2022)

Issue & Answer. An assault committed against a person “living together” in the “same dwelling” constitutes family violence because the victim is statutorily deemed a “member of the defendant’s household.” When a defendant sometimes stays overnight in a hotel room with a woman he has compelled into prostitution, are the two “living together” in the “same dwelling” for purposes of sustaining a family violence conviction? Yes.

Facts. The complainant met the defendant on a dating app. They texted each other for several months and eventually met in person. When the complainant was kicked out of her house, the defendant offered her a place to stay. The complainant attempted to move to Houston. She met with the defendant at a woman’s home, then went to a motel where she hung out with the defendant and other women. “The next day, appellant took [complainant’s] phone and posted Backpage ads offering [complainant] as a prostitute.” The complainant testified how the defendant compelled her into prostitution over the next several days. This three-week period ended in a violent assault where the defendant picked the complainant up by the throat and held her up, feet dangling, before throwing her to the ground. Defendant denied having a relationship with the complainant, but when he was arrested, officers found his clothes and personal property in the motel room the complainant used. He also denied living together and argued that he and the complainant only had “transient stays together in multiple motels for prostitution purposes.”

Analysis. Family violence can be established by proof that the victim is of the same household as the complainant. Proof is sufficient if it is shown the complainant and the defendant were “living together” in the same “dwelling.” “Living together” means to dwell, reside, or occupy a home together. A “dwelling” is a shelter to live in. The complainant testified that she and the defendant were constantly together, including overnight in various motels. The defendant’s personal belongings and clothing were found in the room where the assault occurred. The law does not require cohabitation for any specific period of time. The purported transient nature of the defendant’s cohabitation with the complainant is immaterial.

Comment. Considering that courts have considered homeless people sleeping in the same car as “living together” in the same “dwelling,” this result is not surprising.

Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

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