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.