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)).

Expunction of Deferred Adjudication

Facts:

A defendant pled guilty to a felony offense and received deferred adjudication for a term of ten years. But after six years, the court terminated the defendant's deferred adjudication and released him without any further conditions.

Issue:

Can the defendant's criminal record be expunged of the felony offense for which he received deferred adjudication?

Short Answer:

No. The purpose of article 55.01 of the Code of Criminal Procedure is to expunge the records of individuals who have been wrongfully arrested or charged for an offense, not to expunge the records of those who are arrested, plead guilty to an offense, and receive some form of court-ordered probation.

Discussion:

The Code of Criminal Procedure authorizes the expunction of criminal records of certain individuals. Tex. Code Crim. Proc. Ann. art. 51.01 (Vernon 2006). The requirements to expunge a criminal record are found in article 51.01 of the Code of Criminal Appeals:

a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and

(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

And a person who successfully completes deferred adjudication, without more, is not entitled to the expunction of her criminal records because deferred adjudication qualifies as court ordered probation under article 51.01. In the Matter of the Expunction of Ramirez, 143 S.W.3d 856, 858 (Tex. App.---El Paso 2004, no pet.); Tex. Dept. of Public Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.---Corpus Christi 1997, no pet.); Harris County District Attorney's Office v. D.W.B., 860 S.W.2d 719, 721 (Tex. App.---Houston [1st Dist.] 1993, no pet.); State v. Knight, 813 S.W.2d 210, 212 (Tex. App.---Houston [14th Dist.] 1991, no pet.). In Bulter, Bulter pleaded guilty to a third degree felony, received deferred adjudication, successfully completed the terms of deferred adjudication, and moved to have his record expunged of the felony offense. 941 S.W.2d at 319. The court held that deferred adjudication qualifies as court ordered probation under article 42.12 of the Code of Criminal Procedure, and therefore, Butler could not satisfy the requirements of article 55.01. Id. at 321. Because Butler could not satisfy the requirements of article 55.01, the court refused to expunge his record of the felony offense. Id.

Like Butler, the defendant pleaded guilty to a felony offense, received deferred adjudication, and successfully completed the terms of deferred adjudication. But deferred adjudication qualifies as court ordered probation under article 42.12. Because deferred adjudication qualifies as court ordered probation, the defendant does not satisfy the requirements of article 55.01. Therefore, he is not entitled to have his record expunged of the offense for which he received deferred adjudication.

Proving a Green, Leafy Substance Is Marijuana at Trial

Facts:

Defendant was arrested and charged for possession of marijuana. The State has not done a chemical analysis of the substance found on the defendant to determine whether it was marijuana. Rather, the State intends to rely solely on the testimony of police officers to prove the substance found on the defendant was marijuana.

Issue:

Is the testimony of police officers, absent a chemical analysis, sufficient to prove the substance found on the defendant was marijuana?

Short Answer:

Yes. The testimony of an officer who has been trained to recognize marijuana by its physical characteristics is sufficient to prove the substance found in the possession of the defendant is marijuana.

Discussion:

When it charges a defendant with possession of marijuana, the State must prove the substance found in the defendant’s possession is marijuana. See Tex. Health & Safety Code Ann. § 482.121 (Vernon 2003); Adair v. State, 482 S.W.2d 247, 253-54 (Tex. Crim. App. 1972); Boothe v. State, 474 S.W.2d 219, 220-21 (Tex. Crim. App. 1972). But the State does not need to conduct a chemical analysis of the substance to determine whether it is marijuana. Boothe v. State, 474 S.W.2d at 221. In fact, the testimony of the officer who discovered the substance on the defendant is sufficient to prove the substance is marijuana as long as he has received sufficient training in identifying marijuana by its physical characteristics. Id. In Boothe v. State, a boy led two narcotics officers to a building under construction where they found several bags containing a “weed looking substance.” Id. at 220. One officer had spent three years in the narcotics division, had been trained to recognize marijuana by its physical characteristics, and had encountered marijuana hundreds of times on the average of five times per week. Id. The other officer had been in the narcotics division for only one-and-one-half years but had been trained to recognize marijuana by its physical characteristics. Id. The officers determined the “weed looking substance” was marijuana and set up a stake out to apprehend whoever had left it in the building. Id. Boothe arrived to retrieve the marijuana and was arrested. Id. A chemical analysis was performed on the marijuana, and Boothe attacked the test, arguing the State could not establish the chain of custody to prove the substance he retrieved and the substance the police found were the same. Id. The Court of Criminal Appeals did not address Boothe’s claim and held no chemical analysis was necessary because the testimony of the two officers was sufficient to prove the “weed looking substance” was in fact marijuana. Id. at 221.

In the present case, the State intends to rely solely on the testimony of police officers to prove the substance found on the defendant was marijuana. As long as the officers have the qualifications to identify marijuana by its physical characteristics, like the officers in Boothe, their testimony is sufficient to prove the substance is marijuana. Therefore, no chemical analysis is necessary to prove the substance is marijuana.

4th Amendment Consent

Facts:

The police spot a parked car occupied by two young men and approach it even though they have no justification for suspecting the young men are engaged in criminal activity. The young men notice the police and one of them bends down. The police ask the driver of the car if they can search the car for drugs. The driver consents, and during the search, the police find two rocks of crack-cocaine under the driver’s seat.

Issue:

Did the police’s suspicionless search of the car violate either the young man in the driver seat’s or the young man in the passenger seat’s Fourth Amendment rights against unreasonable searches and seizures?
Short Answer:

No. A reasonable person in these young men’s situation would have felt free to refuse the officer’s request to search the vehicle because the police merely identified themselves and asked to search the vehicle.

Discussion:

Police encounters with individuals fall into two categories: (1) non-seizures or consensual encounters and (2) seizures, which can be divided into two subcategories: (a) investigatory detentions and (b) arrests. See State v. Bryant, 161 S.W.3d 758, 761 (Tex. App.—Fort Worth 2005, no pet.) (citing State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Police do not need to suspect an individual of any criminal wrongdoing before they engage in a consensual encounter with a person. Florida v. Royer, 460 U.S. 491, 497 (1983). But once a person submits to either physical restraint or an official show of authority by the police, the person has been “seized” for Fourth Amendment purposes. Florida v. Bostick, 501 U.S. 429, 434 (1991). But when an officer approaches him to ask him questions or permission to search him, his possessions, or his property, the person has not been “seized” as long as a reasonable person in the same circumstances would feel “free to refuse” the officer’s demands. Id. at 431. And whether a reasonable person would feel free to refuse an officer’s demands is a “totality of the circumstances” consideration. Id. at 439-40. Yet when an officer merely identifies himself and asks if a person is willing to answer questions, a reasonable person will always feel free to refuse the officer’s request and the encounter is consensual. Royer, 460 U.S. at 497. And as long as a person consents to an officer’s request to search him, his possessions, or his property during a consensual encounter, the search does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. Florida v. Bostick, 501 U.S. at 433-34.

In Florida v. Bostick, two police officers, one carrying a pistol in a zipped bag, boarded a bus and began questioning its passengers. Id. at 431. The officers approached Bostick and asked for his ticket and identification. Id. After looking at his ticket and identification, the police returned them to him and identified themselves as narcotics agents looking for illegal drugs. Id. at 431-32. The officers, without drawing their weapons or gesturing with the pistol in the bag, asked Bostick if they could search his luggage and told him that he had the right to say no. Id. at 432. Bostick agreed, and the police found cocaine in one of his bags. Id. At trial, Bostick argued the police had “seized” him, his consent to search his luggage was tainted by an illegal detention, and therefore, the cocaine must be suppressed because it was the fruit of an illegal detention. Id. at 432-33. The Supreme Court rejected Bostick’s claim, holding a reasonable person who had been approached in the same, non-accusatory way as he had would have felt free to refuse the officers’ request to search his luggage. Id. at 439-40.

Texas courts have also considered when a reasonable person would feel free to leave when a police officer approaches him. In Harper v. State, a police officer responded to a call that a woman was passed out in her car in a Walgreen’s parking lot. 217 S.W.3d 672, 674 (Tex. App.—Amarillo 2007, no pet. h). When he arrived, the officer found that EMS was already attending to her. Id. Harper was slow to respond to questions posed to her and was groggy. Id. Concerned about Harper’s ability to drive home safely, the officer asked her to step out of her car. Id. When she did, a bag of methamphetamine fell from her lap to the ground. Id. Harper argued that officer’s request to step out of the car escalated an otherwise consensual encounter to a seizure, but the court rejected her argument, holding the police officer was merely trying to resolve the call he had received and a reasonable person in her situation would have felt free to leave. Id. at 675.

But in Hayes v. State, an officer’s consensual encounter with Hayes escalated to a seizure. An officer observed Hayes, who he had arrested before for selling drugs, crossing the road. 132 S.W.3d 147, 150 (Tex. App.—Austin 2004, no pet.). The officer, thinking Hayes may have had warrants issued for his arrest, initiated a conversation with Hayes and asked for Hayes’ identification. Id. The officer called for backup, and while he ran Hayes’ information, the other officer watched Hayes’ hands, feet, and face to make sure he did not flee and discovered a bag of drugs sticking out of Hayes’ clothing. Id. Because another officer made sure Hayes did not leave, the court held a reasonable person in Hayes’ position would not have felt free to leave, and Hayes had been seized. Id. at 153. The court also held the officer’s suspicion that Hayes may have had warrants issued for his arrest was not a reasonable suspicion to stop Hayes. Id. Therefore, the drugs the officers found on Hayes were suppressed. Id.

Like Harper, the young men were in a parked car when the police approached them. And like the officers in Bostick, the officers merely identified themselves to the young men and asked permission to search their vehicle. Further, the officers did not threaten the young men or point their weapons at them. And unlike the officers in Hayes, prior to the time the young men consented to the search of the vehicle, the officers did not do anything to detain the young men in any way. They merely approached the car, identified themselves, and asked permission to search the car. Without more, a reasonable person in the young men’s situation would have felt free to refuse the officers’ request to search the vehicle. Therefore, the young men had not been seized when the officers asked for permission to search the vehicle, and no violation of their Fourth-amendment rights occurred.

And you asked me whether United States v. Valdez helps the young men. In Valdez, a patrol officer pulled Valdez over because it appeared Valdez’s vehicle registration sticker was out of date and the tint on Valdez’s windows was too dark. 267 F.3d 395, 396-97 (5th Cir. 2001). After the officer saw the vehicle’s registration was not expired and the windows’ tint was not too dark, he ran a criminal history check on Valdez, finding he had been convicted of a felony. Id. He also asked the Valdez if he had any drugs or guns, and Valdez voluntarily surrendered a loaded pistol and a rifle. Id. All parties conceded Valdez had been seized when he was pulled over on a traffic stop. Id. at 397-99. Because Valdez had been seized, the Fifth Circuit considered (1) whether the seizure was “justified at its inception,” that is whether the officer had a reasonable suspicion that Valdez was engaged in criminal activity and (2) whether the scope of the officer’s actions were reasonably related to the “circumstances that justified the stop in the first place.” Id. at 398. Valdez argued that while the he had a reasonable suspicion that Valdez was engaged in criminal activity and lawfully stopped him, the officer exceeded the permissible scope of the stop when, after he learned there were no problems with Valdez’s registration sticker and window tint, he ran a criminal background check on Valdez and questioned Valdez about drugs and weapons. Id. The court agreed and suppressed the weapons. Id. at 398-99.

Unlike Valdez, the young men in this case were never “seized.” Because they were never seized, the police were free to ask them any question or to search the vehicle as long as a reasonable person would have felt free to refuse to answer the officer. And the analysis which resulted in the suppression of the weapons which Valdez had with him does not apply to these young men.

Conclusion:

The young men were never “seized” because a reasonable person who had been sitting in his vehicle, was approached by the police, and was asked whether the police could search his car would have felt free to refuse the police’s request. Therefore, their Fourth-amendment rights were not violated.