If the State Appeals, It Must Have Preserved Error Below

Facts:

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

Issue:

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

Short Answer:

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

Discussion:

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

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

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

Minimum Length of Time for Deferred Adjudication

Issue:

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

Short Answer:

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

Discussion:

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

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

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

Facts:

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

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

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

Issue:

Did Doe commit burglary of a building?

Short Answer:

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

Discussion:

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

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

Conclusion:

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

Jury Misconduct by Considering Parole

Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

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

Endnotes:

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

Indictment for Sexual Performance by a Child

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

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

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

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

Issue:

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

Short Answer:

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

Discussion:

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

Conclusion:

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

Discussion (In the Alternative):

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

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

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

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

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

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

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

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

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

Conclusion (In the Alternative):

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

Indictment for Conspiracy to Commit Capital Murder

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

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

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

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

Issue 1:

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

Short Answer:

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

Discussion:

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

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

Conclusion:

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

Issue 2:

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

Short Answer:

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

Discussion:

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

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

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

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

Conclusion:

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

Issue 3:

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

Short Answer:

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

Discussion:

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

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

Conclusion:

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

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

Facts:

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

Issue:

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

Short Answer:

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

Discussion:

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

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

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

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

Conclusion:

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

Additional Information:

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

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