Admissibility of Bail Bonds at Trial

Facts:

During a trial for murder, the State offered bail bonds it found in John Doe's father's house to prove John Doe (Doe) lived there at the time of the offense. Even though there were numerous other pieces of evidence proving Doe lived with his father at the time of the offense, the trial court admitted the bail bonds into evidence.

Issue:

Did the trial court err by admitting the bail bonds into evidence?

Although relevant to proving a "fact of consequence," evidence of extraneous offenses is inadmissible if its danger of unfairly prejudicing the defendant outweighs its probative value. Tex. R. Evid. 403; Prible v. State, 175 S.W.3d 724, 732-33 (Tex. Crim. App. 2005); Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990). And four factors are used to determine whether the evidence's danger of unfairly prejudicing the defendant outweighs its probative value: (1) the "probative value of the evidence," (2) the "potential to impress the jury in some irrational, yet indelible way," (3) "the time [during trial] needed to develop the evidence, and (4) "the proponent's need for the evidence." Prible, 175 S.W.3d at 733; Montgomery, 810 S.W. 2d at 389-90. And if other evidence is available to establish the "fact of consequence," the offered evidence weighs less than if it were the only available evidence. Montgomery, 810 S.W.2d at 390.

Using these factors, the trial court erred when it admitted the bail bonds proving Doe was on bond for misdemeanor offenses. The State offered the bail bonds to prove Doe lived next to the home where Joel Garcia was murdered inasmuch as it related to identifying him as the murderer. (1) The probative value of the bail bonds was slight: They merely proved that Doe had been in the home adjacent to the murder and left bail bond papers there. Therefore, this factor weighs in favor of excluding the bail bonds. (2) The bail bonds also depicted Doe as a man in trouble with the law who had most likely committed the offenses listed on the bail bonds. And the jury likely concluded Doe was nothing but a criminal and must have murdered Joel Garcia. This factor also weighs in favor of excluding the bail bonds. (3) The State did not need to spend much time developing the bail bonds. It merely needed to prove the bonds were found in the home adjacent to the murder scene and had been issued to Doe. Thus, this factor weighs in favor admitting the bonds into evidence. (4) But the State had other evidence which established Doe was a resident in the home adjacent to the murder scene: Doe's father testified that Doe lived with him in the home; Esmeralda Martinez testified Doe lived in the home and identified the photograph of Doe as Saul Doe, who lived in the home next door. This evidence, especially the testimony of Doe's father, diminishes the probative value of the bail bonds substantially, and this factor also weighs in favor of excluding the bail bonds from evidence. In fact, the State did not need to admit the bail bonds at all to prove Doe lived next to the murder scene.

Therefore, the bail bonds' danger of unfairly prejudicing the defendant outweighs their probative value, and the trial court erred when it admitted the bail bonds into evidence.

Sixth Amendment Issue

Facts:

One week prior to the trial of John Doe, the district attorney invited John Doe's sister, Jane Roe, to speak with him. During the meeting, the district attorney told Jane Roe that he was offering John Doe thirty five years if he pleaded guilty to murder. The district attorney asked Jane Roe to communicate the offer to John Doe and arranged for her to speak with him in an attorney conference room at the county jail.

Issue:

Was John Doe deprived of the effective assistance of counsel through the district attorney's actions?

Discussion:

The Sixth Amendment of the United States Constitution, made applicable to the States through the Due Process Clause of the Fourteenth Amendment guarantees a defendant in a criminal proceeding the right to the assistance of counsel. U.S. Const. amend. VI; Gideon v. Winwright, 372 U.S. 335, 343-45 (1963). The right to the assistance of counsel attaches when the State initiates “formal adversarial procedures” against a person. State v. Frye, 897 S.W.2d 324, 328 (Tex. Crim. App. 1995). The State initiates formal adversarial procedures against a person when it charges him with a crime by complaint or indictment. Id. at 327-28. And after the State charges a person by complaint or indictment, the accused must have the assistance of counsel during all critical stages of the criminal proceedings against him. United States v. Ash, 413 U.S. 300, 313 (1973). Pretrial proceedings are critical stages when the defendant “requires aid in meeting with his adversary.” Hale v. State, 220 S.W.3d 180, 182 (Tex. App.—Eastland 2007, no pet. h) (citing Ash, 413 U.S. at 313; Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994).

If the State deprives the accused of the assistance of counsel during a critical stage of a criminal proceeding, then the court must tailor a remedy which will “neutralize the taint” of the State’s actions. Frye, 897 S.W.2d at 330 (citing United States v. Morrison, 449 U.S. 361, 365 (1961). Generally, a court neutralizes the taint of the deprivation of the assistance of council when it suppresses evidence discovered through the deprivation of the assistance of counsel or limits the State’s ability to cross examine a witness. Frye, 897 S.W.2d at 330. But when the accused “suffers demonstrable prejudice, or a substantial threat thereof,” and the court does not have the ability to suppress evidence or limit cross examination, the only means remaining to neutralize the taint resulting from the deprivation of the assistance of counsel is to dismiss the indictment against the accused. Id. (citing Emery v. State, 881 S.W.2d 702, 708-09 (Tex. Crim. App. 1994); Phillips v. State, 650 S.W.2d 396, 399-403 (Tex. Crim. App. 1983); United States v. Morrison, 449 U.S. 361 (1981).

In State v. Frye, the Court of Criminal Appeals dismissed the indictment charging Frye with theft of services after the State deprived him of the assistance of counsel. See generally State v. Frye, 897 S.W.2d 324 (Tex. Crim. App. 1995). After Frye’s right to the assistance of counsel had attached, an intern at the Harris County’s District Attorney’s office contacted him and questioned him. Id. at 325, 329-330. Although Frye constantly advised the intern that he was represented by Foreman, DeGeurin, and Nugent, the intern continued questioning him. Id. at 325. Some time later, the same thing happened when an assistant district attorney also called Frye and questioned him. Id. at 325-26. During these conversations, Frye revealed some of his defenses and strategies. Id. at 331. The Court of Criminal Appeals found both telephone conversations with Frye were critical stages of the proceedings against Frye and both deprived him of the assistance of counsel, prejudicing his defense because the State learned Frye’s defense strategies and evidence through the conversations. Id. at 330. And because the State learned of Frye’s defense strategies and evidence, the court held the suppression of evidence “was insufficient” to neutralize the taint resulting from the State’s actions. Id. at 331.

Like Frye, Doe was deprived of the assistance of counsel during a critical stage of the criminal proceeding against him when his sister, Jane Roe, spoke to him on behalf of the District Attorney. The meeting between Jane and Doe was a critical stage because it was a pretrial, adversarial meeting between an agent of the State and the accused, and Doe needed the assistance of counsel to ensure he did not reveal information vital to his defense to the State. See Hale v. State, 220 S.W.3d 180, 182 (Tex. App.—Eastland 2007, no pet. h) (citing Ash, 413 U.S. at 313; Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994). Although she was not employed by the State, Jane was acting as an agent of the District Attorney, like the intern in Frye. Seven days prior to trial, the District Attorney enlisted Jane, Doe’s sister who was under subpoena to be a witness for the State, to speak with Doe in jail. When she arrived at the jail, J.R. Kessinger, an investigator for the District Attorney’s office, arranged for Jane to speak with Doe in an attorney conference room and gave her his card with instructions to call him if she had any questions. Jane then spoke to Doe without Doe’s attorney present. And there is no substantive difference between the intern’s conversation with Frye and Jane’s meeting with Doe. Both the intern and Jane acted on behalf of the District Attorney. Neither Frye’s attorney nor Doe’s attorney were present during either conversation. Frye was deprived of the assistance of counsel, and so was Doe.

Because Doe was deprived of the assistance of counsel, the indictment against him must be dismissed. Although the hearing on the motion to dismiss Doe’s indictment did not indicate the meeting between Jane and Doe resulted in demonstrable prejudice, the meeting posed a substantial threat of prejudicing Doe’s defense. See Frye, 897 S.W.2d at 330 (stating “demonstrable prejudice, or a substantial threat thereof,” resulting from the deprivation of the assistance of counsel justifies dismissing an indictment against a defendant). The meeting occurred seven days prior to trial, and evidently, the State was concerned that it would not be able to prove its case against Doe. So the State enlisted the help of Jane to ensure Doe would be held accountable for the death of Joel Garcia. While she met with him, Jane, like the intern in Frye, learned of Doe’s trial strategy, his defenses, and the strengths and weaknesses of his case. All Jane had to do to prejudice Doe’s defense was call Kessinger and tell him all she had learned. And dismissing the indictment against Doe is the only remedy available to this court to “neutralize the taint” of the District Attorney’s actions. The meeting between Jane and Doe did not result in any evidence to suppress, and because Jane would be a witness for the State, the State would not be cross examining her, and therefore, could not be limited in cross examining her. Thus, the only means by which this court can ensure “reverence” for Doe’s Sixth-amendment right to counsel is to dismiss the indictment against Doe. See Frye, 897 S.W.2d at 331.

Tree Harvesting

Facts:
John Doe (Doe) purchased rights to harvest timber from Ms. Green (Green) and later sold those rights to Joe, a Hispanic male. Joe harvested timber from Green’s land and harvested timber from Jacob Roe’s land, even though Jacob Roe (Roe) never agreed to let Doe harvest timber from his property. Jacob Roe never received payment for the timber which was taken from his land. As a result, a Grand Jury indicted Doe that he “acting as a trustee, did then and there, knowingly or with intent to defraud, directly or indirectly retain and use and disperse and otherwise divert more than $500 of trust money without first fully paying all of the beneficiaries, to-wit: Jacob Roe, the purchase price of the timber.”

Issue:

Was Doe a trustee of trust money obtained through the sale of Jacob Roe’s timber?

Short Answer:

No. Before a trustee-beneficiary relationship can exist between two individuals under § 151.101-.105, the trustee must have purchased the rights to the timber on the beneficiary’s land. Doe never purchased the right to harvest timber from Roe’s land, and therefore, is not a trustee of the money Joe received through the sale of the timber he harvested from Roe’s land.

Discussion:

Under section 151.103 of the Natural Resources Code, a trustee of trust money[1] obtained through the sale of harvested timber is a “timber purchaser and each . . . partner or agent of a timber purchaser.” Tex. Nat. Res. Code Ann. § 151.103 (Vernon Supp. 2006). And a timber purchaser is “a person who purchases standing timber for harvest.” Id. at § 151.101. Therefore, for a trustee-beneficiary relationship to exist between two people, there must be a “purchaser-seller relationship for the sale of standing timber” between them. Harris v. Nelson, 25 S.W.3d 917, 923 (Tex. App.—Beaumont 2000, no pet.). At minimum, for a purchaser-seller relationship to exist between a landowner and another person, the landowner must have agreed with the other person to let the other person harvest timber off his land. Id. Harris v. Nelson is a civil case, but it is the only case which construes the definition of “trustee” under the Natural Resources Code.[2] Id. at 919, 922. In Harris v. Nelson, Nelson agreed with Mr. Tauber (Tauber) to sell Tauber fifty-three acres of land. Id. at 919. But the transaction was never consummated, and Nelson never gave permission to harvest timber from her property. Id. at 919, 923. But while the sale of the property was pending, Tauber contracted with Harris to cut and remove timber from the fifty-three acres. Id. at 919. Harris’ employee, Marshall, not knowing Tauber never purchased Nelson’s property, harvested timber from the fifty-three acres belonging to Nelson and sold it for $16,000. Id. at 919. On appeal, Harris argued he was not a trustee because he had not purchased from Nelson any rights to harvest the trees from his property. Id. The court of appeals agreed and held Harris was not a purchaser of Nelson’s timber because Nelson never agreed to let Harris harvest timber from her land. Id. at 923. Because he was not a purchaser, Harris was not a trustee of the money received for the timber. Id.

There is no substantive difference between the situation involving Nelson and Harris and the situation involving Roe and Doe. Roe, like Nelson, never agreed to let Doe harvest timber from his property. Because he never agreed to let Doe harvest timber from his property, no seller-purchaser relationship existed between them, and Doe is not a “timber purchaser” under section 151.101 of the Natural Resources Code of the timber harvested from Roe’s property. And because he is not a “timber purchaser” of the timber harvested from Roe’s property, Doe cannot be a trustee of the money Joe received for the timber he harvested from Roe’s property.

Conclusion:

Doe is not a trustee of the money Joe received for the timber which was harvested from Roe’s property because Roe never agreed to let Doe harvest timber from his property. Therefore, no purchaser-seller relationship existed between Doe and Roe, and because no purchaser-seller relationship existed between Doe and Roe, Doe was not a “timber purchaser” under section 151.101 of the Natural Resources Code. And to be a trustee under section 151.103 of the Natural Resources Code, a person must be a timber purchaser. Therefore, because he was not a timber purchaser of the timber harvested from Roe’s land, Doe is not a trustee of any money Joe received for the timber he harvested from Roe’s land.

Endnotes:

[1] Trust money, under the Natural Resources Code, is “money a timber purchaser collects for harvested timber.” Tex. Nat. Res. Code Ann. § 151.102.
[2] Since the Beaumont Court of Appeals decided Harris v. Nelson, the Texas Legislature has renumbered the statutes defining trustees and timber purchasers under the Natural Resources Code, but it did not change the wording of the statutes.

Hindering Secured Creditors

Facts:
James Doe (James) is a disabled veteran living on disability payments who had never defaulted on an auto loan prior to 2003. Discovery 13, 21. In April 2003, James Doe and his wife Jane Doe (Jane)—who was working as an assistant manager at Blockbuster Video, id.—purchased a van from Lake Country Auto Sales (the dealership) in James’s name. Id. at 21. After a few months, James and Jane had marital problems and separated. Jane stayed in Longview at 206 N. Lane Wells Dr., but James moved to Wood County. As part of their separation, Jane took the van and agreed to make the payments on it.

In December 2003, Jane had financial problems and ceased making payments on the van. Id. at 15. After three months of non-payment, the dealership received a check dated March 3, 2004. Id. at 25. The check was written in Jane’s handwriting but signed by James. Compare Jane’s Signature on id. at 18 and the writing on the check on id. at 25; compare also the checks signature on id. at 25 with the signature on the driver license on id. at 23. One month later, on April 12, 2004, the dealership sent a certified letter to 206 N. Lane Wells Dr. Jane received the letter and signed for it, even though James was living in Wood County at the time. Id. at 18. Jane called the dealership, notified it that James was living in the Lake Fork area, and gave it James’s pager number. Id. at 16. But even though it called the pager number Jane provided, the dealership never contacted James about the van or its demands that James pay the money he owed or return the van. Id.

The dealership reported the non-payment to the authorities, and a warrant was issued for James’s arrest. Id. at 6. On August 14, 2004, James was stopped for a traffic violation in Wood County and was arrested pursuant to the warrant. Id. at 3. But this was the first time James learned of the dealership’s request for him to return the van. And after his arrest, James returned the van to the dealership where he and his wife purchased it. The van was in good condition, and his obligation with the dealership was satisfied. Nevertheless, the Smith County District Attorney’s office has indicted James with Hindering Secured Creditors under Tex. Pen. Code Ann. § 32.33 (Vernon 2003).

The elements alleged in the indictment are

1. James Doe having therefore signed a security agreement

2. did conceal the van by failure to pay the part then due when payment was demanded and failure to deliver possession of secured property when return was demanded. (Actus Reus)

3. without the effective consent of Marie Womack

4. with the intent to hinder enforcement of the security agreement (Mens Rea).

The first and third elements do not pose any issues, but there are substantial issues concerning the second and fourth. I will address each in turn.

I. Actus Reus

Issue:

Did James conceal his van by failing to make on-time payments to satisfy his obligation under the security agreement between him and the dealership?

Short Answer:

No. To conceal property under section 32.33 of the Penal Code, (1) a person having signed a security agreement to obtain property must fail to make a payment on the security agreement; (2) the creditor must contact the person and request the return of the collateral property, and (3) the person, after having been contacted, must refuse to return the property or pay the money owed. See Anzaldua v. State, 696 S.W.2d 911, 912 (Tex. Crim. App. 1985); Montgomery v. State, 91 S.W.3d 426, 428, 430-31 (Tex. App.—Eastland 2002, pet. ref’d). James failed to make payments, but the dealership never contacted James to request that he make payments on the van or return the van. Rather, the dealership contacted James’s estranged wife, Jane, while James was living in another county. And the state has no evidence that James ever received the dealership’s requests. Because James never received the dealership’s request until after he was arrested, it was impossible for him to refuse to return the van because he did not know it was required of him.

Discussion:

For a person to be guilty of Hindering Secured Creditors under section 32.33 of the Penal Code, after signing a security agreement to obtain property, he must have “destroy[ed], remove[d] [taken the property out of State, Id. at § 32.33(a)(1)], conceal[ed], encumber[ed], or otherwise harm[ed] or reduce[ed] the value of the property.” Id. at § 32.33(b). James signed a security agreement to obtain a van and did not transfer the title of the car to his wife when they agreed that she would take it and make the payments for it. But James did not destroy the car, remove the car from the State, encumber the car, or harm it or reduce its value in any other way.

But the State alleges that James concealed the vehicle by failing to pay the part then due when payment was demanded and failing to deliver possession of the van when return was demanded. “Conceals” is not defined within the statute. In Anzaldua v. State, the Court of Criminal Appeals addressed the definition of “conceals” in the context of section 32.33 of the Penal Code. 696 S.W.2d 911, 912 (Tex. Crim. App. 1985). Anzaldua had borrowed money to purchase a weed eater, a lawnmower, a bicycle, and a ladder and used them as security for the loan. Id. at 911. Anzaldua defaulted on the loan, and his lender contacted him personally and demanded that he return the property. Id. Anzaldua refused. Id. He was charged by an information which alleged he concealed the property “by refusing to return [it].” Id. The Court of Criminal Appeals held that merely refusing to return collateral property upon the demand of the creditor is not “concealing” the property. Id. at 912. Rather, the refusal to return the property must harm the value of the property in some way for it to constitute “concealing” the property. Id. Therefore, the information failed to charge Anzaldua with an offense, and the case was dismissed. Id.

The recent case of Montgomery v. State further clarifies the definition of “conceal,” even though the court did not explicitly address it. See generally 91 S.W.3d 426 (Tex. App.—Eastland 2002, pet. ref’d). Montgomery obtained two loans, one for $20,500 secured by three cars and another for $38,000 secured by another six cars. Id. at 428. Montgomery defaulted on the loans, and when his lender contacted him personally and requested the return of the property, he refused to do so. Id. Montgomery was convicted, and the court upheld his conviction. Id. at 432. Like Anzaldua, Montgomery failed to return the property when his lender demanded its return, but unlike Anzaldua, the State proved the requisite “harm” to the value of the property to satisfy that he concealed the vehicles; that is, the failure to pay on-time harms the value of the property secured by a lien. Id. at 430-32.

Therefore, to conceal under section 32.33 of the Penal Code (1) a person having signed a security agreement to obtain property must fail to make a payment on the security agreement; (2) the creditor must contact the person and request the return of the collateral property, and (3) the person, after having been contacted, must refuse to return the property or pay the money owed. See Anzaldua v. State, 696 S.W.2d 911, 912 (Tex. Crim. App. 1985); Montgomery v. State, 91 S.W.3d 426, 428, 430-31 (Tex. App.—Eastland 2002, pet. ref’d).

Applying this definition of “conceal” to James’s situation, James did not “conceal” the van. He signed a security agreement when he purchased the vehicle, and like Anzaldua and Montgomery, he stopped paying for the van. But unlike Anzaldua and Montgomery, James never received the dealership’s request that he pay for the van or return it to the dealership. And the State has no evidence that he did (The certified letter was received and signed for by Jane who then called the dealership to inform them that James was living in Wood County, and the dealership never contacted James personally. Discovery 16, 18.) Because he did not receive the dealership’s request, James could not refuse to return the van or pay the money owed. It is impossible to refuse to do something without knowing someone asks you or requires you to do it.

Therefore, James did fail to make payments on the van, but he did not refuse to return the van or pay for it because he never knew it was required of him. And James did not “conceal” the van for purposes of section 32.33 of the Texas Penal Code.

II. Mens Rea

Issue:

Did James intend to hinder the enforcement of the lien on the van when he failed to make on-time payments to satisfy his obligation under the security agreement?

Short Answer:

No. Considering the facts surrounding James’s failure to pay on the security agreement, no rational trier of fact could find that he intended to hinder the enforcement of the security agreement on the van. Although the loan, which was in James’s name, was in default for several months and the van was not returned after the dealership requested it(1) James was not in possession of the van; (2) James did not drive the van during the time when Jane stopped paying for it; (3) when the dealership requested the return of the van, James was living in a different county than where the van was located; (4) James did not know Jane was not paying for the van until after he was arrested; (5) James did not know the dealership had requested that he return the van; (6) once James was arrested and learned the dealership had requested the return of the van, James returned the van to the dealership, and (7) like Bellamy, James fully cooperated with law enforcement and the demands of the dealership after his arrest.

Discussion:

Even if the court rejects James’s Actus Reus argument, James did not have the Mens Rea to have violated section 32.33 of the Penal Code. For him to be guilty of Hindering Secured Creditors under section 32.33 of the Penal Code, James must have acted with the intent to hinder the enforcement of the lien on his van when he failed to make on-time payments to satisfy his obligation under the security agreement. Tex. Pen. Code Ann. § 32.33(b). A person acts with intent to hinder the enforcement of the lien on his vehicle “when it is his conscious objective or desire to engage [in the concealment of property subject to a security agreement].” Id. at § 6.03(a). The State’s only evidence that James intended to hinder the enforcement of the lien on his vehicle is that he failed to make on-time payments for the van which was in his name. But James stopped making payments on the van when he and Jane separated. But it was not his conscious objective or desire that Jane also stop paying for the van. Instead, his conscious objective was for Jane to fulfill her promise to make regular, on-time payments in exchange for the use of the van. This was reasonable because Jane had a job working for Blockbuster Video. From the time of James and Jane’s separation to the time of his arrest, James had no reason to believe Jane was having problems making payments.

And James’s state of mind is evident in the facts surrounding this occurrence: (1) James was not in possession of the van; (2) James did not drive the van during the time when Jane stopped paying for it; (3) when the dealership requested the return of the van, James was living in a different county than where the van was located; (4) James did not know Jane was not paying for the van until after he was arrested; (5) James did not know the dealership had requested that he return the van; (6) once James was arrested and learned the dealership had requested the return of the van, James returned the van to the dealership, and (7) like Bellamy, James fully cooperated with law enforcement and the demands of the dealership after his arrest.

James did nothing to keep the dealership from enforcing its rights under the security agreement and did not intend to hinder its enforcement.

But the State will point out that the section 32.33 of the Penal Code allows a presumption that when a person fails to pay on a security agreement, it is presumed he acted with the intent to hinder the enforcement of the security agreement. Tex. Pen. Code Ann. § 32.33(c)(1). As long as a presumption in a criminal statute allows the trier of fact to accept or reject it, it is constitutional. Court of Ulster v. Allen, 442 U.S. 140, 157 (1979). But a statutorily created presumption does not relieve the State of proving an element of a crime beyond a reasonable doubt. Allen, 442 U.S. at 157; Willis v. State, 790 S.W.2d 307, 309-10 (Tex. Crim. App. 1990). And the fact finder must know it is free to accept or reject the presumption. Allen, 442 U.S. at 157; Tex. Pen. Code Ann. § 2.05(a)(2)(B); Willis, 790 S.W.2d at 310. In the present case, James failed to pay on the security agreement which was created when he purchased the van. And because he failed to pay on the security agreement, the presumption arises that he intended to hinder the enforcement of the lien on the van.

But a defendant can challenge the validity of a presumption as it applies to his individual circumstances. Willis, 790 S.W.2d at 311; Bellamy v. State, 742 S.W.2d 677, 684 (Tex. Crim. App. 1987). A presumption is invalid as applied to a defendant “if, under the facts of the case, there is no rational way the trier [of fact] could make the connection permitted by the inference.” Allen, 442 U.S. at 157; Willis, 790 S.W.2d at 311.

In Bellamy v. State, Bellamy was a professor at Stephen F. Austin University who also dealt in secondhand jewelry and silverware. 742 S.W.2d at 679. As he dealt in jewelry, a seventeen-year-old boy who had a continuing relationship with Bellamy as a seller of gold and silver items sold Bellamy property which the boy had taken in the course of a burglary. Id. at 680. Bellamy did not know the property was stolen. Id. at 684. Bellamy was charged with theft for having purchased stolen property knowing it was stolen. Id. at 678. The statute under which Bellamy was charged created a presumption that a person engaged in the business of buying and selling secondhand property knowingly purchases stolen property if at the time of the purchase, he fails to record the name, address, and physical description of the person selling him the property. Id. at 678 n.1. And using this presumption to prove Bellamy’s mental state, the State prevailed in convicting him. Id. at 678. The Court of Criminal Appeals enumerated the facts in favor of the presumption: The young man selling the property may have been too young to be selling the amounts of gold and silver to Bellamy as he did; Bellamy had equipment for the melting down of gold and silver, and Bellamy taught the boy about how to identify different grades of gold and silver. Id. at 680. But the court also listed the factors weighing against the presumption: Only a small portion of Bellamy’s gold and silver, two rings, was actually stolen property; Bellamy cooperated fully with the police, and Bellamy was paying a reasonable amount for the gold and silver he was purchasing. Id. at 681. Weighing these factors, the Court of Criminal Appeals held there was no rational way for a trier of fact could use the presumption to find Bellamy knowingly purchased stolen property beyond a reasonable doubt. Id. at 684.

And there is no rational way a trier of fact could find James intended to hinder the enforcement of the security agreement beyond a reasonable doubt. Although there are few similarities between Bellamy and James, it is possible to weigh the facts for and against the presumption that James intended to hinder the enforcement of the security on the van. The facts weighing in favor of the presumption are (1) the loan, which was in James’s name, was in default for several months, and (2) the van was not returned after the dealership requested it. The facts weighing against the presumption are (1) James was not in possession of the van; (2) James did not drive the van during the time when Jane stopped paying for it; (3) when the dealership requested the return of the van, James was living in a different county than where the van was located; (4) James did not know Jane was not paying for the van until after he was arrested; (5) James did not know the dealership had requested that he return the van; (6) once James was arrested and learned the dealership had requested the return of the van, James returned the van to the dealership, and (7) like Bellamy, James fully cooperated with law enforcement and the demands of the dealership after his arrest.

Weighing these facts, the facts opposing the presumption that James intended to hinder the enforcement of the security agreement which arose because he had not made on-time payments outweigh the facts supporting it. James had no motive to hinder the enforcement of the security agreement because he was receiving no benefit from it. And it is unlikely that James even cared whether Jane kept or lost the van. It was his estranged wife, Jane, who would have had a motive to prevent the van from being repossessed: She possessed the van and drove it. But Jane did not sign the security agreement and cannot be prosecuted.

Therefore, no rational trier of fact could rationally find James intended to hinder the enforcement of a security agreement beyond a reasonable doubt simply because he failed to make regular, on-time payments on it. And the presumption contained in section 32.33 of the Penal Code as applied to James is invalid.

If the State Appeals, It Must Have Preserved Error Below

Facts:

After watching a video which recorded an illegal stop of a defendant, the trial court suppressed evidence which was discovered pursuant to that stop. The State did not object to the trial court’s decision or offer evidence contradicting it. In fact, the State dismissed the case against the defendant. Nevertheless, the State is appealing the trial court’s decision to suppress the evidence found during the illegal stop.

Issue:

Did the State’s failure to object to or present evidence concerning the suppression of the evidence waive its ability to complain about the trial court’s decision to suppress the evidence on appeal?

Short Answer:

Yes. The rules governing procedural default and the preservation of error apply equally to the State and the defense. All parties who appeal a trial court’s decision regarding a motion to suppress bear the burden of proving the trial court abused its discretion by granting or denying the motion. And during the hearing, the appellant must have made a timely request, objection, or motion concerning the trial court’s decision to grant or deny the motion and the trial court must have ruled on the request, objection, or motion before the appellant can raise the claim on appeal. The State failed to object to and present evidence concerning the trial court’s decision to suppress the evidence, and therefore, waived any complaint it may have had on appeal.

Discussion:

Before a party can present a complaint for appellate review, the trial record must show the party made the complaint to the trial court “by a timely request, objection, or motion.” Tex. R. App. P. 33.1(a)(1). The party, complying with Texas rules of evidence or procedure, must have also stated the grounds for the complaint with “sufficient specificity” to apprise the trial court of the complaint. Id. at 33.1(a)(1). The trial court must then rule on the request, objection, or motion. Id. at 33.1(a)(2). And theories not presented to the trial court are deemed waived, or procedurally defaulted, on appeal. State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998). These procedures to preserve error for appeal in a criminal proceeding apply “equally to the State and the defense.” Id. at 78. And when it appeals a trial court’s decision to suppress evidence, the State bears the burden to prove the trial court abused its discretion when it granted the defendant’s motion to suppress. Id. at 77. But before an appellate court can consider the State’s appeal, the State must have objected to the trial court’s decision to suppress the evidence and have presented the theory of law upon which it intends to rely on appeal to the trial court so the trial court could rule on it. Id.

In Mercado, Mercado sought to suppress drugs which were found in a zipped bank bag during an inventory search of his vehicle. Id. at 76. During the motion to suppress the drugs, the State relied solely on the inventory search doctrine to justify opening the zipped bag without a warrant, but the trial court granted the defendant’s motion to suppress the drugs. Id. The State appealed and argued the discovery was justified because the drugs were discovered during a search incident to arrest, even though that theory had not been presented to the trial court. Id. The Court of Criminal Appeals held the principles of procedural default apply equally to the State and the defense, and therefore, because it did not argue the drugs were found during a search incident to arrest to the trial court, the State waived that argument on appeal. Id. at 78.

In the present case, after the trial court granted the defendant’s motion to suppress, the State neither objected to the trial court’s ruling to suppress the evidence nor presented evidence contradicting the court’s ruling. And because it did not object to the trial court’s ruling, the State did not comply with Tex. R. App. P. 33.1. Therefore, the State did not properly preserve error for appeal. Additionally, like the State in Mercado, the State failed to present the theory upon which it is relying on appeal to the trial court; in fact it presented no theory at all. Because it did not present any theory upon which it is relying on appeal to the trial court, the State has waived all theories upon which it intends to rely on appeal. Therefore, the State’s claims have been procedurally defaulted, and it has no claim on appeal.

Minimum Length of Time for Deferred Adjudication

Issue:

In an aggravated assault case in which the defendant has received deferred adjudication, is there a minimum length of time which the defendant must serve?

Short Answer:

No. Only article 42.12, section 5 of the Code of Criminal Procedure (“section 5”) governs the term of deferred adjudication a person must serve. Unless it expressly mandates otherwise, section 5 imposes no minimum length of time a person must serve on deferred adjudication. Section 5 does not expressly mandate that a person who receives deferred adjudication for aggravated assault must serve a minimum length of time.

Discussion:

The length of time defendants who receive community supervision—including deferred adjudication, regular community supervision, shock supervision, boot camp, and state-jail-felony supervision—must serve is within the trial court’s discretion with few limitations. See generally Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon 2006). One limitation is that when a defendant receives deferred adjudication for pleading to a felony offense, the term of deferred adjudication cannot exceed ten years. Id. at art. 42.12 § 5(a). But unless section 5 expressly mandates it, there is no minimum term of deferred adjudication a defendant must serve. State v. Juvrud, 187 S.W.3d 492, 496 (Tex. Crim. App. 2006). And section 5 only mandates those who receive deferred adjudication for indecency with a child, Tex. Pen. Code Ann. § 21.11 (Vernon 2003), sexual assault, Id. at § 22.011, aggravated sexual assault, Id. at § 22.021, indecent exposure, Id. at 21.08, prohibited sexual conduct, Id. at 25.02, aggravated kidnapping—if the defendant intended to sexually abuse the victim, Id. at 20.04(a)(4), burglary—if the defendant intended to commit one of the aforementioned offenses, Id. at 30.02, sexual performance by a child, Id. at 43.25, and employment harmful to children, Id. at 43.26. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a).

Recently, the Texas Court of Criminal Appeals emphasized that a defendant who receives deferred adjudication does not need to serve a minimum length of time. In State v. Juvrud, Juvrud pleaded guilty to misapplication of fiduciary property and was placed on deferred adjudication for ten years. 187 S.W.3d at 493. After four months, Juvrud moved to dismiss and discharge the case against him, and the court granted his motion. Id. The State claimed the trial court did not have authority to terminate Juvrud’s deferred adjudication early because section 20 of article 42.12 of the Code of Criminal Procedure (“section 20”) required Juvrud to serve a minimum of two years. Juvrud, 187 S.W.3d at 493; see also Tex. Code Crim. Proc. Ann. art. 42.12 § 20. The Court of Criminal Appeals rejected the State’s argument, holding section 20 does not govern deferred adjudication and the term of deferred adjudication a person must serve is governed solely by section 5. Juvrud, 187 S.W.3d at 496. And because misapplication of fiduciary property is not one of the offenses for which section 5 requires a minimum term of deferred adjudication, the trial court did have authority to terminate Juvrud’s deferred adjudication early. Id.

Like misapplication of fiduciary property, aggravated assault, Tex. Pen. Code Ann. § 22.02, is not listed in section 5 as an offense for which a minimum term of deferred adjudication must be served. See Tex. Code Crim. Proc. art. 42.12 § 5(a). Therefore, like Juvrud, a person who is placed on deferred adjudication for aggravated assault does not need to serve a minimum length of time on deferred adjudication.

Facts:

John Doe (Doe) came from Louisiana to find work but did not succeed in finding any. While in Tyler, Doe occupied his time with Mark Massie (Massie). According to Doe, on March 24, 2006, Doe, who had been consuming alcohol and was either intoxicated or hung-over, was riding with Massie in Massie's silver Pontiac. Massie stopped at the 1st Baptist Church Annex, left Doe in the vehicle, and returned carrying three electric guitars.

Massie then drove with Doe to several pawn shops and music stores to pawn the guitars. Massie told Doe he had forgotten his identification and asked Doe to try to pawn the guitars. Doe agreed, and when he was asked for identification, Doe produced his own drivers license.

At the first shop, the proprietor suspected the guitars had been stolen, photographed two of the guitars, and refused to take the guitars. As Doe walked away, the shop owner heard Doe tell Massie the store would not buy the guitars. Massie then said something like, "It's okay, Mike Mott will buy them." Doe was only able to pawn one guitar.

Issue:

Did Doe commit burglary of a building?

Short Answer:

No. Doe did not enter the building or take the guitars, and the State does not have any evidence that he did. Further, Doe cannot be convicted pursuant to section 7.02 of the Penal Code because he neither intended Massie to burglarize the Church Annex nor solicited, encouraged, directed, aided, or attempted to aid Massie to burglarize the annex.

Discussion:

To commit the offense of burglary, Doe must have "without the effective consent of the owner . . . enter[ed] [the annex] . . . and commit[ed] . . . a theft. . . ." Tex. Pen. Code Ann. § 30.02 (Vernon 2003). While Doe admits to being at the scene while the burglary occurred, he never entered the annex, and the State does not have any evidence proving Doe did: There was no sign of forced entry, and the police did not find any fingerprints on the scene. Instead, Doe remained in Massie's car while Massie went into the annex and returned with the three guitars. Because Doe never entered the annex, he did not commit burglary of a building. The State will point out Doe tried to pawn the guitars and the guitars were stolen from within the annex. But it is difficult to conceive why Doe would admit to being on the scene, to trying to pawn the guitars, and then lie about not going inside the annex.

Even though he did not enter the annex, Doe still may be found guilty pursuant to section 7.02 of the Penal Code. To be convicted, Doe must, with the intent that Massie burglarize the church annex, have solicited, encouraged, directed, aided, or attempted to aid Massie to burglarize the annex. Further, mere presence is not sufficient to satisfy the requirements of section 7.02, and even knowing about a crime and failing to conceal it to the authorities is not enough either. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999) (citing Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998); Smith v. State, 721 S.W2d 844, 851 (Tex. Crim. App. 1986). Doe was merely present as he sat in Massie's care while Massie burglarized the annex. And Doe was not driving the vehicle and cannot be considered the getaway car driver. And there is no evidence he was acting as a lookout either. Instead, Doe was incapacitated, either intoxicated or hung-over, and was sitting in the car while Massie entered the annex for reasons unknown to Doe. Doe's assistance came after Massie burglarized the annex when he attempted to pawn the guitarsCguitars he did not know had been stolen, and at worst, he merely concealed Massie's suspicious activities at the annex. But concealment after the fact is not enough to satisfy section 7.02 of the Penal Code. Id. And there is no evidence that Doe solicited, encouraged, directed, aided, or attempted to aid Massie during the burglary.

Conclusion:

John Doe did not enter the annex and cannot be convicted for burglary of a building because of his own actions. And he cannot be convicted pursuant to section of 7.02 of the Penal Code because he did not intend for Massie to commit burglary, nor did he solicit, encourage, direct, aid, or attempt to aid Massie during the commission of the burglary of the annex.

Jury Misconduct by Considering Parole

Facts:

John Doe (Doe) was convicted for committing burglary of a habitation. During the sentencing phase of trial, as the jury deliberated, the jurors requested an explanation of operation of parole and a black board so they could “organize their thoughts.” At the conclusion of the trial, the Bailiff of the 7th Judicial District Court retrieved several papers listing in chart form particular sentences and time actually served after parole credit. On one of these papers, one of the jurors had written thirty-seven (37) years and $4,000.00 fine. The jury eventually assessed Doe’s punishment at thirty-six (36) years and $4,000.00 fine.

I. The Five Factors Articulated in Sneed v. State, 670 S.W.2d 262 (Tex. Crim. App. 1984), to Determine Whether a Jury’s Deliberation of Parole Violate the Separation of Powers Under the Texas Constitution, and Sneed Must Be Overruled.

The Texas Constitution divided Texas’ sovereign power into the Executive, Legislative, and Judicial branches, and no one exercising the power of one of these branches can lawfully exercise the power reserved to a different branch of government, unless the Texas Constitution permits it. Tex. Const. art. II, § 1. The Texas Constitution mandated that the legislature create a Board of Pardons and Paroles and allowed the legislature to enact laws governing the operation of parole. Id. at art. IV, § 11. The Board of Pardons and Paroles is an agency within the executive branch,[1] and the power to grant pardons and paroles rests solely within the power of the executive branch of the Texas Government. Id. But the Texas Constitution does allow the legislature to enact legislation permitting a trial court to inform juries about the effect of good conduct time and parole eligibility. Id. And the legislature has done so. See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2003 & Supp. 2006).

Juries belong to the judicial branch of the Texas Government.[2] Tex. Const. art. V, § 10. Although it has the right to know of the possibility parole and the effect of good time credit on eligibility for parole, a jury cannot discuss the operation of parole while it deliberates about the sentence to be imposed upon a defendant. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). But as the law currently stands, when a jury deliberates about the operation of parole, it does not commit reversible error unless there was a “(1) misstatement of law; (2) asserted as fact, (3) by one professing to know the law; (4) relied upon by other jurors, and (5) who for that reason changed their vote to a harsher punishment.” Sneed v. State, 670 S.W.2d 262, 265-66 (Tex. Crim. App. 1984). In other words, a jury is free to deliberate about the operation of parole—and alter an offender’s sentence accordingly—as long as the juror or jurors explaining its operation do so accurately or qualify the explanation with “but I’m not really sure.” Sneed, 670 S.W.2d at 267-68 (Odom, Judge, dissenting).

And by discussing the operation of parole as applied to a particular defendant, the jury is usurping the power reserved to the executive branch in the Texas Constitution. When a jury deliberates about the operation of parole law and sentences a defendant with a harsher penalty than it would have if it had not deliberated about the operation of parole, it is determining when the defendant will be parole eligible. Id. But the power to determine when a person is parole eligible belongs to the Texas Board of Pardons and Paroles. Tex. Const. art. 4, § 11. Therefore, when a jury deliberates about the operation of parole and determines when the defendant should be parole eligible, it is exercising powers reserved to the executive branch in violation of Article II section 1 of the Texas Constitution, even if no juror makes a misstatement of the law as the jury discusses the operation of parole. Id.

Because it allows the jury to exercise the power to determine a defendant’s eligibility for parole, a power reserved to the executive branch, the standard articulated in Sneed to determine when a jury’s deliberations about the operation of parole constitutes reversible error violates the separation of powers guaranteed in the Texas Constitution.

II. Even Following the Five Sneed Factors, the Jury’s Deliberation of the Operation of Parole in Doe’s Case Deprived Doe of a Fair Trial.

It is improper for a jury to discuss the operation of parole when assessing the penalty to be imposed on a defendant who has been found guilty. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). But for a defendant to prevail, he must prove (1) the jury actually deliberated about the operation of parole and (2) the jury’s deliberation deprived him of a fair trial. Id. at 519-20. And the trial court’s instruction not to consider the operation of parole during jury deliberations creates a rebuttable presumption that the jury did not discuss the operation of parole. Id. at 520. But a simple note inquiring about parole eligibility is insufficient to rebut this presumption. Id.; Graham v. State, 96 S.W.3d 658, 661 (Tex. App.—Texarkana 2003, pet. ref’d). If a defendant succeeds in rebutting this presumption, his sentence will not be reversed unless the jury’s deliberation about the operation of parole deprived him of a fair trial. Sneed v. State, 670 S.W.2d 262, 265-66 (Tex. Crim. App. 1984). And the mere discussion of the operation of parole does not deny a defendant of a fair trial. Dawkins v. State, 822 S.W.2d 668, 673-74 (Tex. App.—Waco 1991, pet. ref’d) (stating jurors are free to discuss things within the realm of common knowledge such as the fact that many people convicted of crimes do not serve their entire sentences in prison). Rather, a defendant is deprived of a fair trial if during jury deliberations there was a “(1) misstatement of law; (2) asserted as fact, (3) by one professing to know the law; (4) relied upon by other jurors, and (5) who for that reason changed their vote to a harsher punishment.” Sneed, 670 S.W.2d at 266.

First, there is sufficient evidence to rebut the presumption that the jury did not discuss parole during its deliberations. In Colburn, while it considered whether Colburn should receive the death penalty or a life sentence, the jury sent a note to the court asking, “Given a life sentence, is there a possibility of parole in this case?” 966 S.W.2d at 519. The trial court responded that the Texas Constitution prohibited the jury from discussing parole during its deliberations. Id. The court held the note was evidence the jury considered parole as a preliminary topic, but the note was insufficient to rebut the presumption that the jury obeyed the trial court’s instruction in response to the jury’s note. Id. at 520. Like the jury in Colburn, the jury considering Doe’s sentence sent a note to the trial court inquiring about the operation of parole.[3] But unlike the jury in Colburn, the jury considering Doe’s sentence did not merely send a note to the trial court inquiring about the operation of parole. After the jury sentenced Doe to thirty-six (36) years and a $4,000 fine, the bailiff for the 7th District Court found several papers listing in chart form particular sentences and time actually served after parole credit. On one of these papers, one of the jurors had written thirty-seven (37) years and $4,000.00 fine, a sentence substantially similar to the sentence Doe received.

These papers prove the jury not only considered parole at a preliminary stage of deliberations but that the operation of parole and the time Doe would actually serve because of parole eligibility was central to its deliberations. Because the jury’s discussions concerning the operation of parole in Doe’s case were central to its deliberations, the presumption the jury did not consider the operation of parole is rebutted, and the jury actually discussed the operation of parole as a central topic of its deliberations. Therefore, the jury actually deliberated about the operation of parole, and the court must consider whether the jury’s conduct constitutes reversible error which necessitates a new trial.

Second, the jury’s conduct while deliberating about Doe’s sentence constitutes reversible error. Again, for the jury’s deliberations to have deprived Doe of a fair trial and constitute reversible error, there must have been a “(1) misstatement of law; (2) asserted as fact, (3) by one professing to know the law; (4) relied upon by other jurors, and (5) who for that reason changed their vote to a harsher punishment.” Sneed, 670 S.W.2d at 266. In Sneed, during jury deliberations, one of the jurors asked whether it was true that a “prison year” is only seven months long. Id. at 263. While there was conflicting testimony about the extent and duration of how long Sneed would actually spend in prison, all jurors who testified agreed that no one professed to know the law. Id. at 265-66. And even though the jurors who testified admitted that they voted for a harsher sentence because of the jury’s discussion about the operation of parole, the Court of Criminal Appeals held the discussion was not reversible error because Sneed could not satisfy the first three factors of the aforementioned test. Id. at 266.

Furthermore, in Dawkins v. State, one of the jurors considering the sentence to impose on Dawkins was a former jailer at the Hill County Jail. 822 S.W.2d 668, 673 (Tex. App.—Waco 1991, pet. ref’d). During deliberations, another juror asked her about how much of a person’s sentence is actually served. Id. The former jailer answered that inmates serve approximately twenty-eight days for every year but was “not for sure exactly.” Id. The court held the former jailer’s assertion was not a misstatement of law asserted as fact by one professing to know the law because the former jailer qualified her words with “not for sure exactly.” Id. at 675. Further, Dawkins failed to offer evidence to prove the remaining factors; therefore, the court affirmed his sentence. Id.

Neither Sneed no Dawkins could satisfy the first three prongs of the Sneed test. But Doe can. The jury in Doe’s case (1) misstated the law when it created charts enumerating sentences and time actually served on those sentences. The jurors did not have information about the sentences of other offenders, and their charts consisted of simple, mathematical calculations which subtracted three-fourths of each sentence. The remaining time was labeled “Time Served.” But the jurors did not consider that the remaining one-fourth of each sentence cannot be considered time served because the final determination for when a defendant is eligible for parole rests with the Texas Board of Pardons and Paroles. Tex. Const. art. IV, § 11; Tex. Gov. Code Ann. § 508.145 (Vernon 2005). And the Board of Pardons and Paroles considers much more than just the sentence imposed on an offender when he was convicted. The Board of Pardons and Paroles also considers “the seriousness of the offense, the offender’s age, the offender’s juvenile history, the offender’s prior criminal history, the number of the offender’s prison incarcerations, the offender’s previous arrests, the offender’s participation in TDCJ-CID proposed or specialized programs, and letters of support and protest to the offender’s being released on parole.” http://www.tdcj.state.tx.us/bpp/what_is_parole/pg13.htm. Therefore, the simple calculations made by the jurors misstated the law governing the operation of parole because inmates do not simply serve one-fourth of their sentences and then are released on parole.

And the calculations of time served after parole credit would be granted were (2) asserted as facts. The number of calculations and notes about how much time would “actually” be served given a particular sentence indicates the jury believed that was how the law governing parole operates. And if the calculations were not asserted as facts, then they would not have been such an integral part of jury deliberations.

Additionally, the calculations were (3) made by one professing to know the law. The note the jury sent to the trial court indicates the jurors listened to the trial’s instruction about parole because it is possible for a defendant to serve only one-fourth of his sentence. And all the jurors who created charts professed to know the law as they created the charts listing sentences and time that would actually be served.

And (4) the jurors relied on the calculations on the charts when they assessed Doe’s punishment at thirty-six years. The charts prove the jury deliberated about the actual amount of time Doe should spend in prison. The jurors recognizing that nine is one-fourth of thirty-six felt Doe should spend nine years in prison. On one of the charts, a juror listed the sentence of thirty-seven years, only one year more than the sentence actually given to Doe, and one-fourth of thirty-seven is only slightly more than nine. But had they not relied on the charts and assumed Doe would only serve nine years in prison, as indicated by the charts, the jurors would not have assessed Doe’s punishment at thirty-six years.

And the jury’s the misstatement of the law caused (5) the jurors to change their votes to a harsher sentence. As noted, the jury’s consideration of what it believed the law governing parole caused it—assuming Doe will only serve nine years in prison—to assess Doe’s punishment at thirty-six years, indicating many jurors felt Doe’s actions merited a nine-year sentence or a sentence slightly higher than nine years. But because jurors misstated the law when they said Doe would only serve nine years of a thirty-six year sentence, the jurors who felt Doe’s sentence should be close to nine years voted to sentence him to thirty-six years, four times the sentence they would have imposed on Doe but for the other jurors’ misstatement of parole law!

Conclusion:

Jurors (1) misstated the law governing parole when they created charts to do mathematical calculations to determine how much time Doe would “actually serve.” The jurors who made the charts (2) asserted their charts as fact while (3) they professed to know the law governing parole; that is, their belief that offenders only serve one-fourth of their sentences. Other jurors relied on the charts when they assessed Doe’s sentence at thirty-six years, believing he would only serve nine years in prison, and (5) for that reason those jurors changed their votes from sentences close to nine years to the harsher punishment of thirty-six years.

Therefore, the jury’s misconduct of discussing the operation of parole laws deprived Doe of a fair trial, and justice demands that Doe receive a new trial.

Endnotes:

[1] Article IV of the Texas Constitution enumerates the powers of the executive branch.
[2] Article V of the Texas Constitution enumerates the powers of the Judicial Branch.
[3] The note said, “The jury requests that all evidence be provided. Also clarification, can we consider that possibly ¾ of a sentence may be removed because of parole?”

Indictment for Sexual Performance by a Child

Facts: (Names have been changed to protect the privacy of those involved).

Jane Doe (Doe) was indicted under section 43.25 of the Penal Code for Sexual Performance by a Child. The indictment charges Doe with two counts of Sexual Performance by a Child. The first count alleges that “Jane Doe did then and there intentionally or knowingly authorize and induce a child younger than 18 years of age . . . to engage in sexual conduct or sexual performance, . . .” The second count alleges that Doe “intentionally or knowingly consent[ed] to the participation by Sally Doe, a child younger than 18 years of age, to participate [sic] in a sexual performance . . . and the defendant was then and there the parent and legal guardian; . . .” Section 43.25(b) of the Penal Code states,

A person commits an offense if, knowing the character and content thereof, he ploys, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

Nevertheless, the indictment does not allege Doe knew the character and content of the conduct or performance was sexual in nature.

Issue:

Does the indictment’s failure to allege in the first count that Doe knew the character and content of the conduct or performance render the indictment defective?

Short Answer:

Yes. “Knowing the character and content thereof” is the mens rea which the State must prove before it convicts a person of Sexual Performance by a Child. The indictment fails to allege Doe knew the character and content of Sally’s conduct or performance, which were allegedly sexual in nature. Because it has not been alleged in the indictment, the indictment is defective. Alternatively, “knowing the character and content thereof” is a particular intent and a material fact as applied to Doe. Under article 21.05 of the Code of Criminal Procedure, this particular intent must be alleged and proved by the State. The State has not alleged Doe knew the character and content of Sally’s conduct or performance. Therefore, the indictment is defective.

Discussion:

An indictment must allege all elements necessary to be proved to convict a person of a felony. Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989). And unless a statute defining a criminal offense “plainly dispenses” of it, a person’s mens rea is an element that must be alleged in the indictment. Tex. Pen. Code Ann. § 6.02(b) (Vernon 2003). The mens rea required for the commission of Sexual Performance by a Child, Tex. Pen. Code Ann. § 43.25, is that a person must “‘know[] the character and content of’ the conduct [or performance] induced is sexual in nature.” Dornbusch v. State, 156 S.W.3d 859, 869 (Tex. App.—Corpus Christi 2005, pet. ref’d).. The indictment charging Doe does not allege she knew the content of the conduct or performance of a child younger than 18 years-old was sexual in nature. Rather, it alleges she “intentionally or knowingly authorize[d] and induce[d]” the child “to engage in sexual conduct or performance.” Therefore, the indictment does not allege the mens rea required to convict Doe of Sexual Performance by a Child. Because it does not allege the mens rea required to commit Sexual Performance by a Child, the indictment is defective.

Conclusion:

The indictment fails to allege the mens rea required by section 43.25(b) of the Texas Penal Code. This is an element necessary to be alleged and proved at trial. Because it has not been alleged in the indictment, the indictment is defective.

Discussion (In the Alternative):

The State may argue that by stating Doe intentionally or knowingly authorized or induced the child’s sexual conduct or performance, the indictment is not defective. An indictment must allege all elements necessary to be proved to convict a person of a felony. Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989). When a statute defining an offense requires a “particular intent” which is a “material fact” in the commission of an offense, the indictment must allege that “particular intent” in the indictment. Tex. Code Crim. Proc. Ann. art. 21.05; Victory v. State, 547 S.W.2d 1 (Tex. Crim. App. 1976). In Victory, Victory was indicted for Indecency with a Child, section 21.11(a)(1) of the Penal Code. Victory v. State, 547 S.W.2d 1, 1 (Tex. Crim. App. 1976). Section 21.11(a)(1) states,

(a) A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact.

This statute does not list a required mens rea for the commission of Indecency with a Child, so the State alleged Victory “knowingly and intentionally engage[d] in sexual contact with J___ V___.” Victory, 547 S.W.2d at 2. However, “sexual contact” is defined in a different section of the same chapter of the penal code as touching “with the intent to arouse or gratify the sexual desire of any person.” Tex. Pen. Code Ann. § 21.01. Victory argued “intent to arouse” was a particular intent which was a material fact, and the State needed to allege it in the indictment. Victory, 547 S.W.2d at 2. The Court of Criminal Appeals agreed, and because the State failed to allege it in the indictment, the court reversed Victory’s conviction. Id. at 2.

However, a particular intent within a statute may not be a material fact in a specific case. In Cardenas v. State, the State charged Cardenas with violating section 43.01(a) and alleged in an information that Cardenas “knowingly offered and agree[d] to engage in sexual conduct, to-wit: sexual contact.” 640 S.W.2d 291, 292 (Tex. Crim. App. 1982). The State did not allege Cardenas had the “intent to arouse” when she knowingly offered and agreed to engage in sexual conduct. Id. Relying on Victory v. State, Cardenas argued the information was defective because it did not allege the particular intent, “intent to arouse.” Id. The Court of Criminal Appeals rejected her argument because the intent to arouse was not a material fact in her case. Id. at 292-93. The court reasoned the act alleged was not sexual contact but offering sexual contact and the intent to arouse does not need to be present when a person offers sexual contact. Id. Therefore, in as applied to Cardenas, the intent to arouse was a particular intent, but it was not a material fact. Id. And the information was not defective for failing to allege Cardenas possessed the intent to arouse when she offered to engage in sexual conduct. Id.

And like “intent to arouse” in Victory, “knowing the character and content [of the sexual conduct or performance engaged in by a child],” Tex. Pen. Code Ann. § 43.25(b), is a particular intent and a material fact which the State must allege to prove Doe is guilty of Sexual Performance by a Child. Section 43.25(b) of the Penal Code states,

(b) A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

This statute does not specify the state of mind which needs to accompany a person’s employment, authorization, or inducement of a child to engage in sexual conduct or performance, and the State may have been justified in alleging Doe’ intentionally or knowingly authorized and induced a child’s sexual conduct or performance. But section 43.25(b) requires a person to know the conduct or performance is “sexual in nature”—a particular intent—in addition to the state of mind the person possessed during the employment, authorization, or inducement of the child. Tex. Pen. Code Ann. § 43.25(b); Dornsbusch, 156 S.W.3d at 869.

And the particular intent of “knowing the character and content” is a material fact. A person cannot be criminally responsible unless he knows the conduct or performance engaged in by a child is “sexual in nature.” Dornbusch, 156 S.W.2d at 869. Consider, hypothetically, a high-school drama teacher who requires her students to choose and to perform a scene from a play in front of the rest of the class. Prior to the performance of the scene, he must authorize the students’ selections. A group of students approaches the teacher with a scene from the musical “Hair.” The teacher reads the scene, and finding nothing objectionable, authorizes the performance of it. The students selected the scene because, unbeknownst to the teacher, during professional performances of it, one actor disrobes and jumps into the lap of an unsuspecting audience member. When the group of students performs the scene before the class, a sixteen-year-old boy, the school class clown, takes off his clothes, and completely naked jumps into the lap of another student before his teacher can stop him. The conduct and performance involved in the scene from “Hair” fall squarely into the definition of sexual conduct and performance under section 43.25 of the Penal Code, and the teacher knowingly authorized the students to perform it. But the teacher cannot be convicted because he did not know the sexual nature of the scene. Therefore, it is essential that a person know the sexual nature of a child’s conduct or performance before he can be convicted for Sexual Performance by a Child. Id. And because it essential for a person to know the sexual nature of a child’s conduct or performance, “knowing the character and content” of the conduct and performance is a material fact which must be alleged in an indictment charging a person of Sexual Performance by a Child.

The indictment charging Doe alleges she “did then and there intentionally or knowingly authorize and induce” Sally to engage in sexual conduct or sexual performance. Like the indictment in Victory, the indictment charging Doe alleges she acted intentionally or knowingly, but like the statute which Victory was accused of violating, the statute Doe is accused of violating does not simply require a person to act intentionally or knowingly: The statute in Victory requires intent to arouse, and Sexual Performance by a Child requires Doe to have known of the sexual nature of the conduct or performance she authorized or induced Sally to engage in. Both of these requirements are particular intents which are material facts that must be alleged and proved pursuant to article 21.05 of the Code of Criminal Procedure. And the indictment charging Doe of Sexual Performance by a Child does not allege she knew the character and content of Sally Doe’ conduct or performance. Because it does not allege she knew the character and content of Sally’s conduct or performance, the indictment fails to allege the particular intent required by section 42.25(b) of the Penal Code which is a material fact in this case. Therefore, the indictment is defective because it fails to allege Doe knew the character and content of Sally’s conduct or performance.

Conclusion (In the Alternative):

“Knowing the character and content thereof” is a particular intent and a material fact as applied to Doe. Under article 21.05 of the Code of Criminal Procedure, this particular intent must be alleged and proved by the State. The State has not alleged Doe knew the character and content of Sally’s conduct or performance. Therefore, the indictment is defective.

Indictment for Conspiracy to Commit Capital Murder

Facts: (Names have been changed to protect the privacy of the individuals involved).

A Smith County Grand Jury indicted Jane Doe (Doe) for conspiracy to commit capital murder. The following is the pertinent passage of the indictment:

Jane Doe did then and there, with the intent that capital murder, a felony, be committed, agree with John Green and Jesse Smith and John Roe and Sally Roe that they would engage in conduct that would constitute said offense, and the said defendant performed an overt act in pursuance of said agreement, to-wit: that Jane Doe, communicated with John Green while John Green was confined in Smith County Jail and bonded Jesse Smith out of Smith County Jail and loaned her car to John Roe and advised John Roe to meet with Jesse Smith.

And the indictment does not name the victim of the offense.

Issue 1:

Does the indictment for conspiracy to commit capital murder need to include the elements of capital murder?

Short Answer:

No, but it is nevertheless insufficient to merely allege Doe conspired to commit capital murder. There are nine (9) separate ways in which a person can commit capital murder, and the indictment requires Doe to prepare nine (9) separate defenses to prove she did not conspire to commit capital murder. Because it requires Doe to prepare so many defenses, the indictment is not specific enough to provide Doe with adequate notice.

Discussion:

A person accused of a crime is entitled receive “precise notice” of facts which will enable him to adequately prepare for trial and will bar a future prosecution for the same offense for which he is accused. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App. 1980). The instrument charging the person must give notice sufficient to allow him to prepare an adequate defense for the particular offense for which he stands charged, regardless of the facts he already knows. Lindsay v. State, 588 S.W.2d 570, 572 (Tex. Crim. App. 1979). Generally, if the language of an indictment tracks the language of the statute defining the offense, it is sufficient. Moff, 154 S.W.3d at 602. And when charging a person for conspiracy, the indictment does not need to specify the crime the conspiracy intended to commit with the same specificity necessary when charging for the underlying crime by itself. Carter v. State, 116 S.W.2d 371, 383 (Tex. Crim. App. 1937). But when tracking the language of the statute still requires the defendant to prepare to defend against multiple unknown theories of prosecution, the indictment must be more specific to provide the defendant with adequate notice. Id. at 602-603. In Moff, Moff, the Chief Appraiser of the Nueces County Appraisal District, was indicted for the misapplication of fiduciary property. Id. at 600. The indictment alleged the misapplication occurred “on or about and between January 1, 1993 and December 31, 1999.” Id. at 603. During that time, Moff had made numerous purchases, and the Court of Criminal Appeals held that even though the language of the indictment tracked the language of the statute, it was insufficient to provide Moff with adequate notice because he would be required to prepare a defense for every purchase he made in his capacity of Chief Appraiser for the seven-year period alleged in the indictment. Id.

Certainly, Doe’s indictment is not as broad as Moff’s, but it nevertheless lacks the necessary specificity to allow her to prepare an adequate defense. A person commits capital murder only if she murders an individual and there are additional, aggravating factors accompanying the murder. See Tex. Pen. Code Ann. § 19.03 (Vernon 2003 & Supp. 2006). And there are nine (9) aggravating factors which will elevate murder to capital murder. Id. Yet Doe’s indictment merely alleges she agreed to commit capital murder and fails to specify how her agreement was not merely to commit murder and requires Doe to prepare nine (9) separate defenses to prove she did not conspire to commit capital murder in addition to her defense that she did not agree to commit murder at all. And eight of these defenses will prove to be useless and will detract from the time Doe needs to spend preparing to defend against the actual aggravating factor which the State claims elevates the alleged agreement to conspiracy to commit capital murder. Therefore, the indictment lacks the specificity necessary to give Doe adequate notice to prepare for her defense, and the indictment must be quashed.

Conclusion:

An indictment for conspiracy to commit capital murder does not need to enumerate the specific elements of capital murder, but because there are nine aggravating factors, each sufficient to charge a person with capital murder, Doe must prepare nine separate defenses, eight of which will be useless. Therefore, the indictment must allege the aggravating factor to which Doe agreed that would prove she conspired to commit capital murder. The indictment does not specify any aggravating factor, and because it does not, the indictment must be quashed.

Issue 2:

Does the language in the indictment, “they would engage in conduct that would constitute said offense” provide sufficient notice to Doe of the act or acts which the State claims formed the basis of Doe’s alleged agreement?

Short Answer:

No. A person charged with conspiracy to commit capital murder must know the specific act or acts forming the basis of her agreement to engage in conduct that would constitute capital murder. That is, the indictment must allege the actions the person agreed to do to carry out the capital murder. The indictment does not allege any of the acts which Doe agreed to perform as part of the conspiracy. It does not even allege the name of the person whom those in the conspiracy allegedly agreed to murder.

Discussion:

A person accused of a crime is entitled receive “precise notice” of facts which will enable him to adequately prepare for trial and will bar a future prosecution for the same offense for which he is accused. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App. 1980). The instrument charging the person must give notice sufficient to allow him to prepare an adequate defense for the particular offense for which he stands charged, regardless of the facts he already knows. Lindsay v. State, 588 S.W.2d 570, 572 (Tex. Crim. App. 1979). A person charged with conspiracy to commit capital murder must know the specific “act or acts” forming the basis of her agreement to “engage in conduct that would constitute [capital murder].” Id. That is, the indictment must allege the actions the person agreed to do to carry out the capital murder. Id. In Lindsay v. State, Lindsay was charged with conspiracy to commit capital murder. Id. at 571. The following is the pertinent part of the indictment charging her:

[Lindsay] did then and there with intent that a felony, to wit: Capital murder for remuneration and the promise of remuneration, be committed the said Judith Lindsay did then and there agree with Kenneth G. Davis, Jewelle Beard and Larry Whittaker that the said Judith Lindsay, Kenneth G. Davis, Jewelle Beard and Larry Whittaker Engage in conduct that would constitute said offense and said Kenneth G. Davis, performed an overt act in pursuance of said agreement, to wit: by shooting Larry Lindsay with a firearm. . . .

Id. The Court of Criminal Appeals held this indictment should have been quashed at trial because “[c]aptial murder for remuneration and the promise of remuneration” failed to give sufficient facts which formed the basis of Lindsay’s alleged agreement to “engage in conduct that would constitute said offense.” Id. at 572. Rather, the court held the indictment must have alleged either the role Lindsay agreed to occupy or how she agreed to be involved in the murder for remuneration. Id.

Like Lindsay, Doe faces charges of conspiracy to commit capital murder. And like Lindsay’s indictment, Doe’s indictment does not allege the role Doe agreed to occupy or how she agreed to be involved in the commission of capital murder. Instead, Doe’s indictment merely states she spoke with John Green in the Smith County Jail, bonded Jesse Smith out of Smith County Jail, loaned her car to John Roe, and advised John Roe to meet with Jesse Smith. The indictment does not allege Doe agreed to do perform the above as part of the alleged conspiracy. In fact, the indictment does not allege any of the acts which Doe agreed to perform as part of the conspiracy. It does not even allege the name of the person whom those in the conspiracy allegedly agreed to murder. Therefore, Doe’s indictment does not allege the actions she agreed to do to carry out the capital murder and must be quashed for failing to provide Doe with sufficient notice which will allow her to prepare a defense to disprove any agreement existed between her and her alleged coconspirators.

Conclusion:

The indictment charging Doe with conspiracy to commit capital murder does not allege the actions she agreed to do to carry out the capital murder. Because she does not know the details of her alleged agreement, Doe has no way to prepare a defense which would disprove such an agreement existed. Therefore, the indictment must be quashed.

Issue 3:

Does the indictment’s failure to name the victim of the capital murder fail to provide Doe sufficient notice of the offense for which she stands charged?

Short Answer:

Yes. The name of the victim of a crime must be alleged in the charging instrument and proved beyond a reasonable doubt at trial. Doe’s indictment fails to name the victim of the actual offense for which she stands charged. Because it does not name the victim of the capital murder, the indictment does not provide Doe with sufficient notice.

Discussion:

A person accused of a crime is entitled receive “precise notice” of facts which will enable him to adequately prepare for trial and will bar a future prosecution for the same offense for which he is accused. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App. 1980). The instrument charging the person must give notice sufficient to allow him to prepare an adequate defense for the particular offense for which he stands charged, regardless of the facts he already knows. Lindsay v. State, 588 S.W.2d 570, 572 (Tex. Crim. App. 1979). And the name of the victim of a crime must be alleged in the charging instrument and proved beyond a reasonable doubt at trial. Williams v. State, 975 S.W.2d 375 (Tex. App.—Waco 1998, pet. ref’d) (citing Blakenship v. State, 785 S.W.2d 158, 159 (Tex. Crim. App. 1990). The means by which the State can satisfy this requirement are hardly strenuous: An indictment may use the initials of the victim’s name, or if the name of the victim is unknown, the instrument may allege it and provide a description of the victim. Tex. Crim. Proc. Ann. art. 21.07 (Vernon 2003). In King v. State, King was charged with capital murder. 594 S.W.2d at 426. The indictment charging King failed to name the victim of the aggravating offense, which elevated the murder for which he was accused to capital murder calling her merely “the complaintant.” Id. The Court of Criminal Appeals held the victim of the aggravating offense’s name is a “crucial fact” necessary for the preparation of an effective defense, and describing the victim of the aggravating offense as “the complaintant” was insufficient to name the victim and to give King adequate notice. Id. at 427. Therefore, the trial court erred when it refused to quash the indictment charging King of capital murder. Id.

And if the failure to name the victim of an aggravating offense was insufficient, then failure to name the actual or intended victim is also insufficient. Unlike King’s indictment, Doe’s indictment fails to name the victim of the actual offense for which she stands charged. Certainly, like the name of the victim of an aggravating offense, the name of the victim of the actual offense is also a crucial fact necessary for Doe to adequately prepare for trial and to give her notice sufficient to bar a future prosecution for the same conspiracy to commit capital murder. See King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App. 1980); Williams v. State, 975 S.W.2d 375 (Tex. App.—Waco 1998, pet. ref’d). Therefore, Doe’s indictment does not provide her with sufficient notice because it fails to identify the victim of the conspiracy to commit capital murder.
And because Doe has not received sufficient notice, the indictment charging her with conspiracy to commit capital murder must be quashed.

Conclusion:

The name of the victim of a crime must be alleged in a charging instrument, but no victim is name in the indictment charging Doe of conspiracy to commit capital murder. Because no victim is name, the indictment fails to provide Doe with sufficient notice to prepare for her defense. Therefore, the indictment must be quashed.

Impact on a Defendant's Refusal to Debrief on Federal Sentencing

Facts:

C.C. has pleaded guilty to a drug-related, Federal offense but has refused to discuss the circumstances surrounding his offense—including the source of the drugs involved in the offense—with the United States Attorney because he is afraid the government will not be able to protect him. Because he will not discuss the circumstances surrounding his offense with the United States Attorney, the government argues C.C. should not receive the three-point reduction section 3E1.1 of the Federal Sentencing Guidelines provides for acceptance of responsibility.

Issue:

Can the trial court refuse to reduce C.C.’s offense level for acceptance of responsibility because he refuses to reveal the source of the drugs involved in his offense out of fear that the government will not be able to protect him?

Short Answer:

Yes. If a defendant timely pleads guilty to his offense, truthfully admits to the circumstances surrounding his offense—including the source of the drugs involved in the offense, and admits to or, at least, does not falsely deny additional relevant conduct for which he is accountable under section 1B1.3 of the Federal Sentencing Guidelines, there is sufficient evidence to reduce the defendant’s offense level for acceptance of responsibility. C.C. has pleaded guilty and does not falsely deny any relevant conduct for which he is responsible. However, because he has not revealed the source of the drugs involved in his offense, C.C. has not truthfully admitted to the conduct comprising his offense. Therefore, C.C. will not receive a reduction in his offense level for accepting responsibility.

Discussion:

If a defendant who is guilty of a Federal crime accepts responsibility for his actions, the trial court may decrease his offense level up to three levels. U.S.S.G. § 3E1.1 (2006). Acceptance of responsibility is a question of fact, United States v. Medina-Anicacio, 325 F.3d 638, 647 (5th Cir. 2003) (citing United States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996)), and the defendant bears the burden to prove he has accepted responsibility for his actions. Medina-Anicacio, 325 F.3d at 647 (citing United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996)).

Accepting responsibility requires a defendant to do more than merely plead guilty to an offense. Spires, 79 F.3d at 648 (citing Flucas, 99 F3d at 180; U.S.S.G. § 3E1.1, comment n.3). In addition to pleading guilty, a defendant must “truthfully admit[] [the] conduct comprising the offense” and either “truthfully admit[] or not falsely deny[] any additional relevant conduct for which he is accountable under [U.S.S.G.] § 1B1.3. . . .” U.S.S.G. § 3E1.1, comment n.3. But the defendant does not need to volunteer additional information or “affirmatively admit relevant conduct” beyond the scope of the offense for which he is convicted to receive the reduction in his offense level for accepting responsibility. Salinas, 122 F.3d at 7. And if the defendant pleads guilty, admits the conduct comprising the offense, and admits or does not falsely deny relevant conduct for which he is accountable, there is sufficient evidence allowing a trial court to grant the defendant a reduction in his offense level. U.S.S.G. § 3E1.1, comment n.3; Medina-Anicacio, 325 F.3d at 648 (citing United States v. Salinas, 122 F.3d 5, 7 (5th Cir. 1997)). Nevertheless, the conduct comprising the offense of a defendant pleading guilty to a drug offense includes revealing the source of the drugs involved in the offense, and the refusal to reveal the source of drugs equates with a refusal to truthfully admit to the conduct comprising the offense. See United States v. Tellez, 882 F.2d 141, 143 (5th Cir. 1989); United States v. Becerra, 2007 WL 1202777 *1, *1 (5th Cir. April 24, 2007) (not designated for publication). In United States v. Tellez, Tellez attempted to enter the United States from Mexico with large quantities of marijuana hidden in his vehicle. 882 F.2d 141, 142 (5th Cir. 1989). Even though he pleaded guilty, Tellez refused to reveal the source of the marijuana he attempted to smuggle into the United States. Id. at 143. The court reasoned Tellez’s refusal to reveal the source of the marijuana was a failure to admit to the conduct comprising his offense. Id. Therefore, there was not sufficient evidence to hold Tellez had accepted responsibility for his offense. Id.

And just last April, the Fifth Circuit reaffirmed the need for a defendant to reveal the source of the drugs involved in his offense. In Unites States v. Becerra, Becerra pleaded guilty to possession of marijuana with the intent to distribute but refused to identify the source of the drugs involved in his offense. 2007 WL 1202777 at *1. Because he would not identify the source of the marijuana, the court held Becerra had “failed to truthfully admit all the conduct comprising his offense.” Id. (citing Tellez, 882 F.2d at 143).

Like Tellez and Becerra, C.C. has not revealed the source of the drugs involved in his offense. Because he has not revealed the source of the drugs, C.C. has not admitted to the conduct comprising his offense. Thus, there is not sufficient evidence to find C.C. has accepted responsibility for his offense because he has not admitted to the conduct comprising his offense.

Conclusion:

C.C. refuses to reveal the source of the drugs involved in his offense. Because C.C. has not revealed the source of the drugs, he has not truthfully admitted to the conduct comprising his offense and has not accepted responsibility. Therefore, C.C. will not receive the reduction in his offense level for accepting responsibility.

Additional Information:

Additional evidence may exist which rebuts the evidence that he has accepted responsibility for his actions even though he has pleaded guilty, “truthfully admit[ed] conduct comprising the offense” and either “truthfully admit[ed] or not falsely den[ied] any additional relevant conduct for which he is accountable under [U.S.S.G.] § 1B1.3. . . .” U.S.S.G. § 3E1.1, comment n.3. The Fifth Circuit requires a defendant to show sincere contrition before he receives a reduction in his offense level for acceptance of responsibility. Medina-Anicacio, 325 F.3d at 648 (citing United States v. Nguyen, 19 F.3d 656, 658 (5th Cir. 1999)). When it considers whether a defendant is truly contrite, a trial court may consider whether a defendant has discussed the circumstances surrounding his offense to the probation officer who prepares his pre-sentence report. Medina-Anicacio, 325 F.3d at 648 (citing United States v. Nevarez-Arreola, 885 F.2d 243, 244, 246 (5th Cir. 1989)). And if a defendant refuses to discuss the circumstances surrounding his offense, a trial court may find the defendant has not accepted responsibility for his actions because he is not sufficiently contrite. Id.

The Fifth Circuit has recently emphasized the need for a defendant to discuss the circumstances of his offense to the probation officer preparing his pre-sentence report to prove he has accepted his responsibility. See generally United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003); United States v. Becerra, 2007 WL 1202777 *1 (5th Cir. April 24, 2007) (not designated for publication). In Medina-Ancacio, Medina refused to discuss the circumstances of his offense with the probation officer preparing his pre-sentence report even though he admitted to the police and pleaded guilty at trial to illegally entering the United States. 325 F.3d at 648. Because he did not discuss the circumstances of his offense with the probation officer, the court held Medina had not accepted responsibility for his actions. Id. And in Becerra, Becerra pleaded guilty to possession of drugs with the intent to distribute but refused to discuss the circumstances surrounding his offense with the probation officer preparing his pre-sentence report. 2007 WL 1202777 at *1. Because he refused to discuss the other circumstances surrounding his offense, the court ruled Becerra was not entitled to the reduction for acceptance of responsibility. Becerra, 2007 WL 1202777 at *1 (citing United States v. Nevarez-Arreola, 885 F.2d 243, 245-46 (5th Cir. 1989); United States v. Tellez, 882 F.2d 141, 143 (5th Cir. 1989)).