Right to Counsel in Administrative Removal – Gomez v. Sessions (9th Circuit)

Eladio Gomez – Velazco,

Petitioner

v. 

Jeff Sessions, 

Respondent

Nos. 14-71747, 14-73303

A205-829-885

Issues in this Case:

Does an alien (a non citizen) have the right to counsel in administrative removal immigration proceedings?

Yes. But the right is limited. The alien must pay for counsel and they have no right to appointment counsel in immigration proceedings. If the right to counsel is denied in administrative removal proceedings, the alien must show that they were harmed.

(This opinion is out of the Ninth Circuit. Other jurisdictions may have a different holding)

Procedural History:

Gomez-Velasco complained that his right to due process was violated where he was denied access to counsel after being served notice of administrative removal under 8 U.S.C. § 1228(b).

Gomez-Velasco’s appeal came to the 9th Circuit on a petitioner for review from the Department of Homeland Security’s final administrative order of removal under 8 U.S.C. § 1228.

The question before the Court of Appeals was whether reversal required Gomez-Velasco to demonstrate prejudice on account of the due process violation or whether prejudice should be conclusively presumed.

Holding:

The Ninth Circuit Court of Appeals held that an alien who is deprived of their right to counsel in administrative removal proceedings, at least during the initial interaction with the Department of Homeland Security, must show that they were prejudiced by the denial of counsel for a reviewing court to reverse an order of removal.

What Happened

Gomez-Velasco, a native and citizen of Mexico, was held in county jail. Shortly after his release from jail, he was detained on a Department of Homeland Security (DHS) warrant. DHS served him with Notice of Intent to Issue a Final Administrative Removal Order. The notice alleged that Gomez-Velazco is not a citizen of the United States; that he has not been lawfully admitted for permanent residence; and that he has been convicted of an aggravated felony. The notice advised Gomez-Velazco of his right to contest the charges and his right to be represented by counsel of his choosing at no expense to the government.

The DHS officers knew Gomez-Velazco had retained an attorney because two months earlier the attorney had notified them of Gomez-Velazco’s pending application for a U-visa. Although Gomez-Velazco refused to provide a sworn statement, he nonetheless admitted the allegations in the notice and conceded that he was removable as charged. He did not claim fear of persecution or torture in Mexico, but he declined to waive the 14-day waiting period for execution of the removal order. He made each of these decisions without the benefit of counsel’s advice because his attorney was not present.

Immediately after Gomez-Velazco conceded that he was removable as charged, and before he had a chance to consult with his attorney, the deciding officer issued a removal order under § 1228(b). Because Gomez-Velazco had not waived the 14-day waiting period, he was not removed from the country, and before the waiting period expired his attorney filed a petition for review in this court challenging the validity of the order.

Gomez-Velazco argued that DHS officers violated his right to counsel by pressuring him to concede removability without advice of counsel in his proceedings under 8 U.S.C. § 1228(b), a form of summary removal proceedings in which he did not have a hearing before an immigration judge.

The Ninth Circuit Court of Appeals assumed that there was a due process violation, then addressed the question of whether prejudice was presumed or if Gomez-Velasco was required to show prejudice on account of the violation.

Opinion

The Department of Homeland Security (DHS) can seek to remove non-citizens from the United States through several different means. The most formal process involves a hearing in immigration court before an immigration judge, at which the individual to be removed can contest the charges against him and request various forms of relief from removal. Most non-citizens are ordered removed through streamlined proceedings— expedited removal, administrative removal, and reinstatement of removal—that do not involve a hearing before an immigration judge. The proceedings are summary in nature and conducted by front-line immigration enforcement officers employed by DHS.

DHS commences administrative removal proceedings by serving the alien with a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice must allege each of the three predicates necessary to trigger eligibility for administrative removal. The notice must also advise you of certain rights, among them the right to be represented by counsel of your choosing at no expense to the government, the right to rebut the charges against you, and the right to request withholding of removal if you fear persecution or torture in the country to which you would be removed.

Upon receipt of the notice, the alien has ten days to file a response. In the response the alien may attempt to debuted the charges, request an opportunity to review the evidence, and request withholding of removal. Alternatively, the alien may also waive the right to pursue the options and concede removability.

If the deciding officer orders removal, the order may not be executed for 14 days unless that period is waived in writing. The 14 day period is to allow for judicial review of the administrative removal order.

The right to counsel at one’s own expense is not provided by the Sixth Amendment. It is the Due Process Clause of the Fifth Amendment, and the Immigration and Nationality Act, that is the source of this right. Biwot v. Gonzales, 403 F.3d 1094, 1098–99 (9th Cir. 2005); see also 8 U.S.C. § 1228(b)(4)(B). Thus, an individual who asserts that he was denied the right to counsel in immigration proceedings is asserting that his right to due process was violated.

As a general rule, an individual may obtain relief for a due process violation only if he shows that the violation caused him prejudice, meaning the violation potentially affected the outcome of the immigration proceeding.

The Ninth Circuit found that Gomez-Velazco was not denied the assistance of counsel throughout the entirety of the administrative removal process, which commences with service of the Notice of Intent to Issue a Final Administrative Removal Order and ends with execution of the order. Instead, he lacked counsel at one discrete stage of the process—the point of his initial interaction with DHS officers. The Court noted that this is an important stage because Gomez-Velazco had to decide whether to contest the charges against him and whether to request withholding of removal, decisions that turn on potentially complicated factual and legal issues which virtually all lay people need the assistance of counsel to analyze intelligently.

The Ninth Circuit found no reason to presume prejudice for the denial of counsel at the point of the initial interaction with DHS officers. The Court reasoned that if the individual admits the allegations in the notice and concedes removability, as Gomez-Velazco did here, the lawyer can still file a response asserting any valid grounds for contesting removability within the ten-day period. The Court’s opinion stated that it doubted that DHS would refuse to consider the response on the theory that the individual’s earlier un-counseled concession of removability is somehow irrevocable. But even if the agency took that dubious position, a reviewing court would be able to assess whether the grounds asserted raise a plausible basis for contesting removability, and thus could determine whether counsel’s absence during the initial interaction with DHS officers caused prejudice.

The full text of the opinion is available here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/10/14-71747.pdf

Texas Pretrial Intervention as a Conviction under the INA

Matter of Ali Mohamed Mohamed

Respondent

27 I&N Dec. 92(BIA 2017)

Interim Decision #3900

Procedural History. This case is an appeal from an order of an Immigration Judge terminating the proceedings in immigration court upon a finding that an alien’s agreement to participate in pretrial intervention, under Texas Government Code 76.011 and Texas Code of Criminal Procedure 102.012. The Department of Homeland Security appealed the Immigration Judge’s decision to the Board of Immigration Appeal.

Holding: An agreement to participate in a Texas pretrial intervention program in criminal court is a conviction for immigration purposes under Immigration and Nationality Act § 101(a)(48)(A) where the alien admitted under oath to the elements of the offense, entered a stipulation of evidence, and agreed that any violation of the pretrial agreement would automatically result in a conviction.

What Happened

The alien/defendant was a lawful permanent resident. He was accused by indictment of the offense of possession of a controlled substance. He entered into a pretrial intervention agreement which included community service, multiple fees fee, community service, and a no contact order. DHS initiated removal proceedings against him based on this agreement. The immigration court found that participation in a pretrial agreement did not amount to a conviction under INA § 101(a)(48)(a). DHS appealed the immigration court’s holding to the BIA. The BIA found that the alien’s agreement, including the admission to the elements of the offense, constituted a conviction.

Opinion

The INA defines convictions as:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-

(i) judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

INA § 101(a)(48)(A).

The BIA acknowledged that there was no formal judgment of guilt in this matter, then proceeded to analyze whether the pretrial agreement was a withheld adjudication of guilt under INA § 101(a)(48)(A). The BIA found that the alien’s sworn admission of guilt entered as part of the pretrial intervention agreement in this matter satisfied subsection (i). The BIA noted,

After he was sworn and placed under oath, the respondent admitted in the stipulation of evidence that he “committed each and every element alleged and ha[d] no defense in law.” He further admitted that he is “guilty of the offense set out [in the indictment] and all lesser included offenses charged against [him].

While this admission is likely sufficient to have met subsection (i), the BIA found that DHS’s position was further supported by the fact that the alien had “agreed that any violation of the pretrial intervention agreement would automatically result in a conviction based on the admission of guilt in the stipulation of evidence.”

As to the second prong of INA §101(48)(A), the BIA found that the costs, conditions, and restrictions agreed to in exchange for the prosecutor’s dismissal to have been ordered by the judge. In making this determination, the BIA found that language authorizing the imposition of pretrial fees vested the authority to impose those fees with the trial court. Tex. Code Crim. Proc. Art. 12.012. The BIA cited Texas Government Code 76.002(a)(1) and Fisher v. State, 832 S.W.2d 641,643 (Tex. App. – Corpus Christi, no pet. 1992) for the proposition that “a defendant could only enter into a pretrial intervention agreement, and therefore a pretrial intervention program, with the court’s authorization.”

The BIA concluded “[b]ecause only a judge can authorize a pretrial intervention agreement, which in this case included community supervision and community service, restitution, and a no-contact order in addition to the imposition of fees, we conclude that the respondent’s admission into a pretrial intervention program under Texas law is a “form of punishment, penalty, or restraint on the alien’s liberty” that was “ordered” by a judge.”

See the full opinion here: https://www.justice.gov/eoir/page/file/994641/download

Case Notes

Administrative Decisions:

“if an individual pleads guilty or nolo contendere, or admits sufficient facts to support a guilty finding, but the court defers entry of the judgment to allow the individual to complete a period of probation or a diversion program, the individual has been convicted for TPS purposes even if the charge is ultimately dismissed.

Some states, however, have pretrial diversion programs where the individual may enter into a counseling or treatment program and potentially avoid criminal prosecution. If the charges are dismissed following successful completion of a pretrial diversion program which occurred prior to a pleading or finding of guilt, the individual is not considered convicted for TPS purposes.”
MATTER OF N-R-R- APPEAL OF VERMONT SERVICE CENTER DECISION APPLICATION: FORM I-821, APPLICATION FOR TEMPORARY PROTECTED STATUS

“if an individual pleads guilty or nolo contendere, or is found guilty but the court defers entry of the judgment to allow the individual to complete a period of probation or a diversion program, the individual has been convicted for immigration purposes even if the charge is ultimately dismissed.”
MATTER OF J-T- APPEAL OF VERMONT SERVICE CENTER DECISION APPLICATION: FORM I-821, APPLICATION FOR TEMPORARY PROTECTED STATUS,

 

Ex Parte Pete: Mistrial as to the Full Trial Proceeding or Punishment Phase Only

 

Ex Parte Andrew Pete

NOS. PD-0771-16, PD-0772-16 & PD-0773-16

In the Court of Criminal Appeals of Texas

nypl.digitalcollections.510d47db-b5e1-a3d9-e040-e00a18064a99.001.w

Procedural History: This case was brought to the Court of Criminal Appeals by way of the appeal of a district court’s decision on a pre-trial writ of habeas corpus. The defendant’s matter was tried to a jury. During the punishment phase of trial, before a jury, defense counsel moved for a mistrial based on the jury seeing that the defendant was restrained at counsel table. The trial court granted the mistrial as to the punishment phase only. Defense counsel filed a pre-trial writ of habeas corpus asserting that the defendant was entitled to a new trial as to both phases of trial. The trial court denied the defendant relief. The Court of Appeals in Dallas held that the trial court could not grant limited relief in the form of a new trial in the punishment phase alone. The Court of Appeals held that the defendant was entitled to a new trial on both guilt and punishment.

Holding: Generally, where a criminal defendant moves for a mistrial, and does not limit his motion to the punishment phase, a mistrial effects the entire proceeding, and a new trial on both guilt and punishment is warranted. In this case, where the defense moved for a mistrial, the trial judge stated that the motion for mistrial was as to the punishment phase only, and defense counsel did not correct the trial court’s statement, the defense invited the error and could not remedy it on appeal.

What Happened?

During trial on punishment, the defense called the defendant to the stand. When then defendant stood, it became obvious that he was shackled at counsel table. Defense counsel moved for a mistrial. The trial court took the motion for mistrial under advisement and allowed the punishment trial to proceed. After the defendant testified, the trial judge and counsel retired to the court’s chambers. After the conference, the trial court stated “The Defense has made a motion for mistrial with regard to the punishment phase of this trial. I’m going to grant that motion for mistrial with regard to the punishment phase.”

The Opinion

The Court of Criminal Appeals ruled that trial counsel did not preserve the issue complained of on appeal. The record showed that defense counsel moved for a mistrial and did not limit his motion for a mistrial to the punishment phase alone. After the motion for mistrial, and prior to ruling on the motion, the trial court held a hearing off the record. After the conference, the trial court stated “The Defense has made a motion for mistrial with regard to the punishment phase of this trial. I’m going to grant that motion for mistrial with regard to the punishment phase.” The written order granting mistrial did not limit the scope of the mistrial. The record did not show any effort on the part of defense counsel to correct the trial court’s characterization of the motion for mistrial as limited to the punishment phase alone.

This Court of Criminal Appeals decision seems to establish that had the trial record established that defense counsel sought a mistrial as to guilt and punishment, then a new trial for the entire trial would have been warranted. In so noting, the Court of Criminal Appeals cited Article 37.07 § 2(b)(2), which requires “the same jury” that convicts a defendant to assess punishment. The Court emphasized that this provision, and the requirement for an entirely new trial, only applies where the defendant properly elects, in writing, for the jury to assess punishment as opposed to the judge.

The Court of Criminal Appeals noted that this is a different result than where the new trial is requested by way of a motion for new trial after sentencing, or on appeal. After sentencing, if the error is limited to the punishment phase only, a trial court may only grant a new trial as to punishment. Similarly, where an appellate court finds error on appeal that is limited to the punishment phase, a defendant is limited to a new trial at punishment alone. Tex. R. App. P. 21.9(a) & (c); Tex. Code Crim. Proc. Ann. Art. 44.29(b).

The full opinion is available here.

(Image Credit: NYPL Digital Collection)

Morgan v. State of Texas: Greater Right of Possession in a Burglary Prosecution

Morgan V. State of Texas

NO. PD-0758-15

In the Court of Criminal Appeals

Procedural History: This case went to the Court of Criminal Appeals on PDR by the State. Appellant was convicted for burglary of a habitation. The Second Court of Appeals overturned Appellant’s conviction for legal insufficiency of the evidence. The State filed PDR.

Holding: A person can be convicted for burglarizing their own home, if another has a greater right to possession to the home, than the defendant.

What happened?

The evidence at trial appeared to be that the Appellant moved in with his romantic partner. There appeared to be no dispute that the place was his residence: he had a key, his belongings were kept there, he helped out with household expenses and he had been living there for months. His romantic partner had her name alone on the lease and she alone paid rent. Appellant’s driver’s license showed a different address.

The couple had a fight. She locked him out of the house. He broke in and attacked her.

The jury found him guilty of burglary with intent to commit assault. As he did not have equal rights to possession of the home, the Court of Criminal Appeals affirmed the conviction  (for him burglarizing a place that was clearly his own home).

How did we get here?

The Second Court of Appeals overturned Appellant’s conviction, noting that Texas Code of Criminal Procedure Article 21.08 states “Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them.”

The Court of Criminal Appeals reasoned that the lower appellate court’s reliance on 21.08 was misplaced. Article 21.08 is a rule of pleading and not a part of the definition of the offense of burglary, the Court reasoned.

The CCA reinstated the conviction based on the Penal Code definition of owner:

a person who “has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.” Texas Penal Code 1.07.

This paragraph best sums up the Court’s decision:

The Penal Code definition of “owner” clearly indicates that a defendant who has some, but less, right to control a habitation than the alleged owner may be prosecuted for burglary. The key is not whether Appellant had a right to possession of the property, but whether Regina’s right to possess the property was greater than Appellant’s. Only her name was on the lease, and she paid the rent. Regina is the one who gave Appellant a key to the apartment, and she is the one who could take it away. His status as her roommate at the time did not give him equal “ownership” rights to the apartment. We hold that, at the time of the offense, Regina’s right to possess the apartment was greater than Appellant’s. At that time, she was the “owner.”

You can read the full text of the opinion here.

 

Ex Parte Cox; WR-42,794-05; Plea Bargaining Multiple Counts and IAC

Plea Bargaining on Multiple Counts: In a 2 count plea bargain, where the conviction in Count II was overturned as unenforceable and on account of ineffective assistance of counsel, and the consideration exchanged was a waiver to a jury trial in both cases in exchange for an agreed sentencing cap in Count II, both counts were overturned.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-42,794-05

EX PARTE GILMORE FRANKLIN COX, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-29,938-A IN THE 217th DISTRICT COURT FROM ANGELINA COUNTY

JOHNSON, J., delivered the opinion of the Court in which MEYERS, ALCALÁ, RICHARDSON, and NEWELL, JJ., joined. KELLER, P.J., filed a concurring opinion in which KEASLER and HERVEY, JJ., joined. YEARY, J., concurred.

OPINION

Pursuant to a plea bargain, applicant plead guilty to one count of possession of a controlled substance (Count I) and no contest to one count of possession of certain chemicals with intent to manufacture a controlled substance (Count II). The trial court found him guilty and sentenced him to twenty years’ imprisonment on Count I and thirty-five years’ imprisonment on Count II, with the sentences to run concurrently. On appeal, applicant challenged his conviction on Count II, alleging that it failed to sufficiently allege an offense. The state argued that the court of appeals should dismiss applicant’s appeal because he had entered his pleas and waived appeal as part of a plea bargain, and the court of appeals agreed. Cox v. State, No. 12-11-00297-CR, 2012 WL 2501031 at *2 (Tex. App.–Tyler June 29, 2012, no pet.) (mem. op., not designated for publication). Applicant filed this application for a writ of habeas corpus. After review, we find that, because the plea bargain was a package deal and part of this plea bargain cannot be fulfilled, the entire plea bargain is unenforceable, thus the parties must be returned to their original positions. We remand this case to the trial court for re-sentencing.

Facts

The record in this case contains a number of inaccurate or contradictory assertions, and it is sometimes difficult to ascertain what actually happened. It is undisputed that applicant’s indictment alleged in Count I that he possessed methamphetamine in an amount less than one gram, a state-jail felony.(1) Count II alleged that, with the intent to manufacture methamphetamine, he possessed its immediate precursors, namely “acetone, lye, iodine crystals, lighter fluid, and/or red phosphorus,” a second-degree felony.(2) The indictment also contained four enhancement paragraphs that alleged prior sequential felonies as to both charged offenses.3 As enhanced, Count I was punishable as a second-degree felony, and Count II was punishable as a habitual felony.4 Applicant’s potential punishment range was thus from two to twenty years in prison for Count I and from twenty-five to ninety-nine years or life in prison for Count II.(5)

The trial court denied applicant’s motion to suppress, and then, on the advice of counsel, applicant waived his right to a jury trial by signing a handwritten statement of waiver. However, according to the affidavit of defense counsel, applicant did not plead to the charges at that time.

According to the affidavit of the prosecutor, the original plea bargain was twenty years for Count I and a cap of thirty-five years for Count II. In exchange, as to Count II only, the state agreed to both drop one of the four enhancement paragraphs (which, it was the prosecutor’s belief, reduced the punishment range to that of a first-degree felony) and recommend a punishment cap of thirty-five years in prison. There was no explicit plea offer as to Count I, and the punishment range remained that of a second-degree felony.(6)

Defense counsel believed that dropping one enhancement paragraph would decrease the punishment range for Count II to that of a second-degree felony with a maximum of twenty years in prison. Both beliefs were incorrect; waiving one enhancement paragraph did nothing to affect the habitual-punishment range, which requires only two paragraphs and three such paragraphs remained. When the mistakes were recognized, applicant moved to withdraw his waiver of jury trial.

During the hearing on the motion to withdraw applicant’s jury waiver, and with the court’s encouragement, counsel engaged in a brief negotiation and reached a plea bargain.7 At a second setting, applicant agreed to plead guilty to Count I and no contest to Count II. The offer was essentially the same as the original, and again contained no explicit terms as to Count I except applicant’s waiver of jury trial and appeal. The trial court accepted the plea bargain, found applicant guilty on both counts,8 and sentenced him to twenty years in prison for Count I and thirty-five years in prison for Count II, to run concurrently.

Applicant appealed, challenging both the denial of his motion to suppress evidence and the voluntariness of his pleas. The state argued that applicant had waived his right to appeal. The court of appeals agreed, finding that applicant, as part of the plea bargain, entered his pleas and waived appeal in exchange for the dismissal of enhancements and a cap on punishment. The court of appeals reasoned that, because the state gave some consideration for the waivers, the pre-sentencing waivers of appeal were enforceable. Cox at *3 (citing Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009)).

Applicant filed this application for a writ of habeas corpus contending, among other things, that his trial counsel failed to investigate whether the substances alleged in Count II were, in fact, immediate precursors, causing him to plead guilty to an invalid count. On our first review, we remanded the writ to the trial court to determine if the substances that were plead as “immediate precursors” in the indictment for manufacturing methamphetamine were, in fact, “immediate precursors.” The trial court found that the substances either were not precursors or had been suppressed and that Count II, manufacturing, was invalid.

The state continued to assert that the acetone seized from applicant’s home was actually 3,4-methyenedioxyphenyl-2-propanone. We remanded the writ again, instructing the trial judge to determine if 3,4-methyenedioxyphenyl-2-propanone is also known as acetone. If it is not, the trial judge was instructed to consider whether the plea bargain was a package and, if so, consider the appropriate remedy. The trial court concluded that acetone is not 3,4-methyenedioxyphenyl-2- propanone and that the conviction on Count II was invalid, but equivocated as to whether the plea bargain was a package deal: the trial judge found that the plea bargain was not a package deal, yet two sentences later stated, “If there is any doubt that the Counts and the deals were inseparable, then Cox can be placed into the position he was in prior to the pleas by restoring his right to a Jury Trial that he requested be restored prior to his plea.” Because the valid conviction under Count I remains, we filed and set this case for submission to determine the appropriate remedy when, as here, only a part of a plea bargain is invalidated.

Plea Bargains

Because plea bargains are contractual agreements between the state and defendant,(9) we apply general contract-law principles. Ex parte Moussazadeh, 64 S.W.3d 404, 411 (Tex. Crim. App. 2001).

“Plea bargaining is a process which implies a preconviction bargain between the State and the accused whereby the accused agrees to plead guilty or nolo contendere in exchange for a reduction in the charge, a promise of sentencing leniency, a promise of a recommendation from the prosecutor to the trial judge as to punishment, or some other concession by the prosecutor that he will not seek to have the trial judge invoke his full, maximum implementation of the conviction and sentencing authority he has,” i.e., it is the process where a defendant who is accused of a particular criminal offense, and his attorney, if he has one, and the prosecutor enter into an agreement which provides that the trial on that particular charge not occur or that it will be disposed of pursuant to the agreement between the parties, subject to the approval of the trial judge. Put another way, “plea bargaining is the process by which the defendant in a criminal case relinquishes his right to go to trial in exchange for a reduction in charge and/or sentence.”

Perkins v. Third Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987) (quoting Heuman, Plea Bargaining (1978 edition)).

However, “[a]lthough contractual concepts apply to plea bargains, such should not be strictly enforced to the detriment of due process.” Ex parte Adkins, 767 S.W.2d 809, 810 (Tex. Crim. App. 1989). The terms of plea agreements, being contractual in nature, are left to the parties to determine and agree upon, and this Court will rarely disturb the terms of such agreements. Ex parte Williams, 758 S.W.2d 785, 786 (Tex. Crim. App. 1988). This is not to say, however that “mutual benefit should not also be considered.” Ex parte Adkins, 767 S.W.2d at 810 (citing Shannon v. State, 708 S.W.2d 850, 851 (Tex. Crim. App. 1986).

It is well established that, after the judge has accepted a plea bargain in open court, a defendant has a right to enforce the state’s part of the plea bargain. Bitterman v. State, 180 S.W.3d 139, 141 (Tex. Crim. App. 2005). Plea bargains play an important role in the criminal-justice system. In order to protect the constitutional rights of the defendant, there are strict federal and state guidelines and requirements regarding the defendant’s ability to enter into such an agreement, including a requirement that, if a defendant’s plea is made based on a promise given by the state, the state must keep its promise or the plea will be rendered involuntary. Id. When defendants accept a plea-bargain offer, they waive a number of fundamental constitutional rights including, among others, a trial by jury, the right to confront one’s accusers, the right to present witnesses in one’s defense, the right to remain silent, and the right to be convicted only by proof beyond a reasonable doubt. See Santobello v. New York, 404 U.S. 257, 267 (1971). Under Texas appellate rules, a defendant also waives the right to appeal. Tex. R. App. P. 25.2(a)(2).

When the state breaches its promise with respect to a plea agreement that has been accepted by the trial court, the defendant pleads based on a false premise, and the conviction cannot stand. Bitterman at 142.

Multiple-Count Plea Bargains

Article 21.24 (a) of the Texas Code of Criminal Procedure states that “two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.” Consistent with contractual concepts, the state and the defendant are free to reach a bargain as to one count, multiple counts, or none at all. Factors that might persuade the parties to agree to a plea bargain include, but are not limited to, the weight of the evidence, the seriousness of each offense, future availability of witnesses or evidence, the criminal history of the defendant, the way in which these factors intertwine with one another, and the connection between the counts in the indictment. In determining the remedy when a multi-count plea bargain has been broken, we consider whether the bargain was a “package deal” or an agreement with severable parts.

Article 21.24 requires the underlying facts to be closely connected,10 so multiple-count indictments always have some interplay between the separate offenses. But, as with any plea bargain, the consideration that is offered by the state and induces the plea is key. When a plea bargain rests to any significant degree on a promise or agreement by the state, such that the promise or agreement can be said to be part of the consideration, the promise must be kept. Because of the due-process protections provided to defendants in plea negotiations, if the promise cannot be kept, the plea is rendered involuntary, and both parties must be returned to their original positions. Santobello v. New York, 404 U.S. at 262. See also Shannon v. State at 852.

Analysis

In Shannon, the defendant was charged with delivery of diazepam in an amount over 400 grams. In exchange for Shannon’s agreement to plead guilty, the state agreed to reduce the delivery charge to possession and to recommend a sentence of two years in prison. Id. at 851. On discretionary review, we found that the agreement was invalid because possession of diazepam is a Class A misdemeanor and therefore could not be punished with a two-year prison sentence. Id. at 852. We held that, when a defendant who has entered a negotiated plea of guilty challenges his conviction and is successful, the appropriate remedy, if possible, is specific performance of the plea. If specific performance is not available, then the appropriate remedy is withdrawal of the plea, with both parties returning to their original positions. Id. Returning the parties to their original positions means a return to the positions that the parties held before the plea agreement was made and therefore does not bind the state to its previous agreement. Ex parte Rich, 194 S.W.3d 508, 514-15 (Tex. Crim. App. 2006) (citing Shannon) (“the proper remedy is to allow Applicant to withdraw his plea and remand the case to the trial court, putting both parties back in their original positions before they entered into the plea bargain.”).

In State v. Moore,(11) we applied the same remedy, albeit without citing Shannon.

Ordinarily, when one side fails to abide by the plea agreement, two potential remedies exist. First, pertaining mainly to the defense, a plea may be withdrawn. Second, the non-breaching party may demand specific performance of the remainder of the plea agreement. The application of these remedies for breach of a plea agreement has been illustrated in multiple holdings.

Id. at 251-52 (citing Perkins v. Court of Appeals, 738 S.W.2d 276, 283 (Tex. Crim. App. 1987)).

In Ex parte De Leon,12 we explicitly reaffirmed the Shannon holding, finding that the “proper remedy is to return both parties to their original pre-plea positions.” Id. at 90-91.

However, in Ervin v. State, 991 S.W.2d 804, 816 (Tex. Crim. App. 1999), we held that, in some circumstances, the state may waive an invalid portion of the judgment and retain the remainder of the plea agreement. That decision was based on implications from Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997).

McJunkins was indicted for capital murder. He reached a plea agreement whereby he would plead guilty to murder and aggravated robbery and the state would dismiss the capital-murder indictment. Id at 39. The trial court accepted the plea arrangement and sentenced the applicant to two consecutive life sentences. Id. McJunkins did not appeal, but filed an application for habeas corpus seeking relief from the cumulation order. Id. We initially granted relief, but after the state offered to request removal of the cumulation order, we withdrew our mandate and granted a rehearing to determine if the state can waive the benefit of a cumulation order and whether a defendant can waive the benefit of the concurrent-sentences provisions. Id. We determined that the provisions of Texas Penal Code § 3.03 (defendant’s right to mandatory concurrent sentences for offenses consolidated under Texas Penal Code § 3.02) in combination with the provisions of Texas Penal Code § 3.04 (defendant’s right to severance of offenses consolidated under Texas Penal Code § 3.02) resulted in a defendant’s right to waive both the right to severance by agreeing to a single trial and the right to concurrent sentences by electing to sever consolidated offenses. Whether such waivers became part of a plea bargain was a decision left entirely to the parties. Id. at 40.

Ervin agreed to plead guilty to charges of intoxication manslaughter and manslaughter arising out of a traffic accident involving a single victim. Ervin at 805. This Court concluded that intoxication manslaughter and manslaughter were the same offense for double-jeopardy purposes when they involve the same victim and accordingly found that Ervin’s convictions violated double jeopardy. Id. at 817. But instead of urging this Court to set aside the entire plea agreement, the state suggested that we vacate only the manslaughter conviction, and we held that the state “may be able to waive an illegal portion of a judgment and maintain the remainder of the plea agreement.” Id. Although both charges were plead together, perhaps raising the appearance of a “package deal,” Ervin did not claim that his plea was involuntary for those reasons.13 He asserted only that the plea was involuntary because of the double-jeopardy violation, and we granted relief. As with Ex parte McJunkins, the record did not show that the parties were not satisfied with the consideration that they received. In neither of those cases, however, were there allegations that the plea was not intelligent,knowing, and voluntary.

Application

In the instant case, applicant agreed to plead guilty to Count I and no contest to Count II and waive his rights to appeal and to jury trial as to both counts. In exchange, the state agreed, as to Count II only, to waive one enhancement paragraph and to recommend a sentencing cap of thirty-five(11) years. On remand from this court, the trial court entered findings of fact and conclusions of law determining that the plea agreement was not a “package deal.” We disagree.(14)

Because Count II did not state an offense and was therefore not supported by the evidence, the terms of the plea bargain in regard to Count II were unenforceable. The consideration given by the applicant as to Count I was the waiver of his right to a jury trial on Count I in order to reduce the punishment range on Count II. Because the terms as to Count II are unenforceable, the plea bargain became an agreement by applicant to plead guilty to Count I for the maximum sentence allowed and to waive his rights to appeal and to jury trial, all without any consideration required from the state. Because the negotiated consideration by the state was the waiver by applicant of a constitutional right in one count for the reduction of the sentence by the state in a different, invalid count, we hold that the plea agreement to be a “package deal”; a reduced punishment range for Count II was the consideration offered by the state to induce the promise of applicant to waive his right to a jury trial in Count I. Because applicant plead guilty to an allegation that did not state an offense, we cannot say that he knowingly, intelligently, or voluntarily waived his rights. In these circumstances, applicant’s successful challenge to his conviction for Count II negates the entire plea bargain, and the parties must be returned to their original positions.

Accordingly, we grant relief and direct the trial court to allow applicant to withdraw his plea and to return both parties to their original positions.

Delivered: January 27, 2016 Publish

1  TEX. HEALTH & SAFETY CODE § 481.115(a), (b).

2  TEX. HEALTH & SAFETY CODE § 481.124(a)(2), (d)(1).

3

1) Oct. 1978, burglary, cause number 9099

2) Dec. 1987, manufacture of a controlled substance, cause number 13,477 3) May 1992, forgery, cause number 15,999

4) Jan. 1998, engaging in organized criminal activity, cause number 20,241

4  TEX. PENAL CODE §§ 12.425(b), 12.42(d).

5 TEX. PENAL CODE §§ 12.33, 12.42(d).

6 “The original plea offer was extended on August 6, 2010. The offer was 20 years TDCJ-ID on Count I, which was a state jail felony enhanced to second-degree punishment, and 35 years TDCJ-ID on Count II, which was a second [-]degree offense enhanced to 25-life punishment. After negotiation with the Defendant’s attorney, the State agreed to drop one of the enhancements to make Count II a first-degree punishment range, and also recommend a cap of 35 years as to Count II. No cap or other agreement was made as to Count I.” Affidavit of Assistant District Attorney at trial. Supplemental Writ Application at 74.

7 Applicant was not present at that hearing. Defense counsel had requested that a bench warrant be issued to secure his attendance, but the request had not been processed because the person in the District Attorney’s office who did that job had left the office.

8 Even though the parties agree that applicant plead no contest to Count II, the judgment reflects a plea of guilty to that count. The judgment also contains findings of true as to two enhancement paragraphs on each count and states that there was no plea bargain.

9 State v. Moore, 240 S.W.3d 248, 251 (Tex. Crim. App. 2007).

10 Article 21.24 requires that the “offenses arise out of the same criminal episode.”

11 240 S.W.3d 248 (Tex. Crim. App. 2007).

12 400 S.W.3d 83 (Tex. Crim. App. 2013).

13 Applicant raised ineffective assistance of counsel for failing to conduct a diligent investigation and for failing to file a motion to suppress and a motion for discovery.

14 The trial court determined that “[i]n the original plea deal Cox received no consideration in exchange for his guilty plea to Count I other than the consideration that only affected the punishment range for Count II. When Count II was found to be invalid, Cox’s plea to Count I was left with no consideration and as such was not a plea bargain.” When the invalidation of one count destroys the plea bargain, each count is not separate from one another. W e determine that to be the essence of a “package deal.”

Concurring Opinion

KELLER, P.J., filed a concurring opinion in which KEASLER and HERVEY, JJ., joined.

We filed and set this case to decide what the proper remedy is when a defendant pleads guilty to multiple counts pursuant to a plea bargain and one of the counts is invalid. Should the remainder of the plea agreement be salvaged or should both counts be set aside because the agreement was a package plea deal? And, by the way, what makes a plea bargain a “package deal?”

I would hold, first, that a defendant’s pleas to multiple counts or causes is a package deal when each plea is related to and conditioned on the acceptance of the plea recommendations in the other counts or causes. When the plea offer is “all or nothing,” I would hold that the parties have entered into a package deal. I agree with the Court that there was a package deal in this case.

As to the larger question, there are two variables that affect what should happen when a defendant is successful in invalidating part of the plea bargain. (1) If he establishes that the plea was involuntary, then the contract was never valid, and the entire plea should be set aside. (1) To show an involuntary plea, the defendant must establish that, absent the invalidity, he would not have pled guilty but would have insisted on a trial.(2) (2) If the plea was voluntary, but a defendant shows that he is entitled to get out of one part of the plea bargain, he gives up his right to hold the State to its end of the plea bargain: the State is entitled to have the entire plea undone.(3) But the State has another option. If it decides it would rather give up the right to have the entire plea undone and enforce the remaining part of the contract, it should be able to do that instead.(4)

Here, I agree that applicant’s plea was involuntary, but not for the reason stated by the Court. A defendant might well enter a voluntary plea, and benefit from it, even when one allegation fails to state an offense.

For these reasons, I concur in the Court’s judgment.

1 See Ex parte Mable, 443 S.W.3d 129, 130 (Tex. Crim. App. 2014).

2 See Ex parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012).

3 See Ex parte McJunkins, 926 S.W.2d 296, 297-98 (Tex. Crim. App. 1996), different result reached on reh’g, 954 S.W.2d 39 (Tex. Crim. App. 1997).

4 See Ex parte Ervin, 991 S.W.2d 804, 817 (Tex. Crim. App. 1999); McJunkins, 926 S.W.2d at 297-98.

Filed: January 27, 2016 Publish

Original CCA Opinion:

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

nypl.digitalcollections.510d47d9-41ce-a3d9-e040-e00a18064a99.001.w

 

Griffin v. State, NO. AP-76,834, Legal Sufficiency

Legal Sufficiency of the Evidence & Capital Murder: A felony that is committed as an afterthought and unrelated to the murder is not sufficient to prove capital murder. In this case, the CCA overturned a conviction for capital murder after finding that the murder was not committed in the course of committing or attempting to commit kidnapping.

STANLEY LAMAR GRIFFIN, Appellant v.

THE STATE OF TEXAS ON DIRECT

APPEAL FROM CAUSE NO. 10-05176-CRF-361 IN THE 361ST JUDICIAL DISTRICT COURT BRAZOS COUNTY

JOHNSON, J., delivered the opinion of the Court in which KEASLER, HERVEY, ALCALÁ, RICHARDSON, and NEWELL, JJ., joined. YEARY, J., filed a dissenting opinion in which KELLER, P.J., and MEYERS, J., joined.

O P I N I O N

In June 2012, a jury convicted appellant of the capital murder of Jennifer Hailey committed on or about September 19, 2010. TEX. PENAL CODE § 19.03(a)(2). Based on the jury’s answers to the special issues set forth in the Texas Code of Criminal Procedure article 37.071, sections 2(b) and2(e), the trial judge sentenced appellant to death. Art. 37.071, § 2(g).(1) Direct appeal to this Court is automatic. Art. 37.071, § 2(h). After reviewing appellant’s points of error, we find that the record does not support the offense of capital murder. Consequently, we reverse the trial court’s judgment and sentence of death and remand this cause to the trial court for reformation of the judgment and a new punishment hearing.

FACTS

Appellant was charged with intentionally causing Jennifer Hailey’s death while he was in the course of committing or attempting to commit the offense of kidnapping against Cameron Lockhart. The trial record shows that appellant met Jennifer(2) and her nine-year-old son, Cameron, when Jennifer and appellant’s then-girlfriend, Andrea Copelyn, worked at the same medical clinic. Jennifer and Cameron sometimes saw appellant at the clinic when he picked up Copelyn after work. They would also see appellant when Copelyn’s daughter babysat Cameron in the home where Copelyn, her three children, and appellant lived. Appellant and Copelyn had been living together, but had separated. However, Copelyn and appellant continued to have a romantic relationship, and appellant continued to interact with Copelyn’s co-workers at the clinic. For reasons that do not appear in the record, on September 19, 2010, around 10:00 p.m., appellant asked an acquaintance to drop him off near a unnamed friend’s apartment. Once at the requested apartment complex, appellant went to the two-bedroom apartment where Jennifer and Cameron lived. Appellant had never been to their apartment before. The record reflects that there were pry marks and other signs of forced entry on the frame of the door into Jennifer’s apartment, but no one could say when the marks were made.

Jennifer’s son, Cameron, was the only witness to the assault on Jennifer. He had gone to bed at 9:00 p.m., but after sleeping for a couple of hours, got up to get a drink of water. As he walked toward the kitchen, he saw appellant and Jennifer on the floor in the living room. Appellant was on top of Jennifer, and it seemed to Cameron that appellant was hugging her. Jennifer was face down, and her hand was moving a little bit. Cameron called out to her. Appellant appeared startled and partially rose. Cameron asked, “Stanley, what are you doing?” Appellant replied that he was not Stanley; rather, he was “Michael from Huntsville.” Cameron continued to address appellant as Stanley. Appellant told Cameron to go back to bed, and Cameron did. Ten or fifteen minutes later, Cameron again left his bedroom. As he stood in the hallway, he could see Jennifer lying face up on the floor of her bedroom. He knew from experience that Jennifer fainted easily, but could not tell from that distance whether she had fainted or was hurt. Cameron told appellant that he had to go to the bathroom, although that assertion was only a way to get nearer to his mother. Although there was a bathroom across the hall from Cameron’s bedroom, Cameron chose to use the bathroom in his mother’s room. He was thus able to get a closer look at his mother, but he was still unable to ascertain whether she was hurt. As Cameron walked out of his mother’s room, appellant told Cameron that he wanted to “chill” with him. Hoping that appellant would leave, Cameron told appellant that he was going back to bed. Cameron walked toward his bedroom, but appellant grabbed him from behind, choked him, and then repeatedly struck Cameron’s jaw, back, and neck with a garden trowel that appellant had retrieved from the “washroom.” Cameron passed out in the hallway. When Cameron awoke, he was lying on the living-room floor under a comforter that had been taken from his bed, and appellant was gone from the apartment. Jennifer was still lying on the floor of her bedroom. Cameron could not awaken her and thought that she was dead. He called his grandmother, Nancy Hailey, around 5:00 a.m. and asked for help. Nancy then called 911 and her son, Jayson Hailey. Jayson reached Jennifer’s apartment shortly before emergency responders did. After much pounding on the door by Jayson, Cameron opened it for him and told him what had happened. Jayson went to Jennifer’s bedroom and picked her up, intending to take her to the hospital, but as he carried her, he concluded that she needed immediate care. He put her down near the front door and prepared to begin CPR. When he moved Jennifer’s bloodied hair away from her face, he saw that her face was purple and swollen and that her tongue was blocking her airway. When the EMTs arrived, they took over attending to Jennifer. They also saw a big gash on Cameron’s neck and smaller gashes on the side of his face and therefore transported Cameron to the hospital. He had lost a significant amount of blood, but he survived his injuries.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, appellant asserts that the evidence was legally insufficient to prove that he intentionally murdered Jennifer in the course of kidnapping Cameron. Appellant concedes that the evidence is legally sufficient to show that he intentionally murdered Jennifer, but he asserts that the evidence did not prove capital murder because it did not show that appellant committed the murder to facilitate a kidnapping: “Nothing suggests that appellant strangled Jennifer Hailey merely to disable or harm her so that he could abduct Cameron Lockhart.” Appellant also concedes that the evidence proved that he attacked Cameron in order to delay the discovery of Jennifer’s murder, but he also asserts that the evidence demonstrated that Jennifer “had been murdered before appellant said or did anything to Cameron Lockhart.”

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard recognizes the fact finder’s role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from it. Id. (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This Court determines whether the necessary inferences made by the fact finder are reasonable, based upon the cumulative force of all of the evidence. Id. (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). Texas Penal Code section 19.03(a)(2) provides that a person commits capital murder if the person commits murder, as defined under section 19.02(b)(1) (intentionally or knowingly causing the death of an individual), and the person intentionally commits the murder in the course of committing or attempting to commit a specified offense, in this case, kidnapping. The parties agree that, as used in Texas Penal Code section 19.03(a)(2), “in the course of committing” is defined as conduct occurring during an attempt to commit, during the commission of, or in immediate flight from, the forbidden behavior. See, e.g., Rivera v. State, 808 S.W.2d 80, 93 (Tex. Crim. App. 1991).

Texas Penal Code section 20.03(a) provides that a person commits kidnapping if he intentionally or knowingly abducts another person. “Abduct” means to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force. TEX. PENAL CODE § 20.01(2). “Restrain” means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. TEX. PENAL CODE §20.01(1). Restraint is without consent if it is accomplished by: (A) force, intimidation, or deception; or (B) any means, including acquiescence of the victim, if he is a child less than fourteen years of age and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement. Id.

A kidnapping becomes a completed offense when (1) a restraint is accomplished, and (2) there is evidence that the actor had the specific intent to prevent liberation by secretion or the use or threatened use of deadly force. Santellan v. State, 939 S.W.2d 155, 162 (Tex. Crim. App. 1997) (citing Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995)). The law imposes no minimal requirement for restraint other than the interference with the person’s liberty be substantial. Earhart v. State, 823 S.W.2d 607, 618 (Tex. Crim. App. 1991) (citing Rogers v. State, 687 S.W.2d 337, 342 (Tex. Crim. App. 1985)). Nothing in the kidnapping statute requires the state to prove that a defendant moved a victim a certain distance or held him for a specific length of time. Reyes v. State, 84 S.W.3d 633, 636-37 (Tex. Crim. App. 2002) (citing Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. 2002)). The statute does require, however, evidence of both restraint and intent to prevent liberation by secreting or holding him in a place where he is not likely to be found or using or threatening to use deadly force.

The evidence is insufficient to show that appellant murdered Jennifer in the course of kidnapping Cameron, but is sufficient to show a murder, followed by a number of other possible offenses, including aggravated assault, injury to a child, or attempted murder. Appellant, while choking Jennifer, told Cameron to go to his room, and Cameron complied. But Cameron was not restrained under the language of the statute; he was free to move about the apartment, and he did so. He returned to his bedroom, then left it again, told appellant that he needed to go to the bathroom, then went to the bathroom that was in his mother’s room rather than the one closest to his room. As Cameron left his mother’s bedroom, he told appellant that he was going back to bed. Only at that point did appellant grab Cameron and restrict his freedom of movement.

More tellingly, it was only after the murder, with Jennifer dead on the floor of her bedroom, that appellant restricted Cameron’s movements without consent and interfered substantially with his freedom of movement. TEX. PENAL CODE § 20.01(1)(B)(i). Certainly, appellant used force in his assault on Cameron, but the record does not show any specific intent to hide Cameron or to confine him. Appellant’s intent at that time was not to kidnap Cameron, but rather to kill him with the trowel and thereby remove him as a possible witness against appellant for the already completed murder of Jennifer, and appellant’s use or threatened use of deadly force was for that purpose only. See, e.g., Laster v. State, 275 S.W.3d 512, 524-25 (Tex. Crim. App. 2009) (a defendant’s intent may be discerned from the surrounding circumstances). To equate the mere use of force with kidnapping is to make every assault into kidnapping. See TEX. PENAL CODE § 20.01(2)(A), (B); see also Brimage v. State, 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994) (to prove kidnapping, the State must prove that a restraint was completed and that the actor evidenced an intent to prevent liberation by either secretion or deadly force).

Appellant argues that the evidence was insufficient to prove capital murder because it failed to show that he committed the murder to facilitate the kidnapping. However, the plain language of Section 19.03(a)(2) contains no general requirement that in order to constitute capital murder, the murder must be committed to facilitate the underlying felony offense. We have previously rejected arguments that the evidence must show that the murder was committed in furtherance of the underlying felony. See, e.g., Dorough v. State, 639 S.W.2d 479, 480-81 (Tex. Crim. App. 1982)(evidence of capital murder was sufficient when defendant drove victims into the desert, raped female victim, told victims to walk away, then murdered male victim); Moore v. State, 542 S.W.2d 664, 674-75 (Tex. Crim. App. 1976) ( the legislature did not intend for a defendant to escape capital murder charges when he kidnapped victim from scene of robbery and killed her to prevent her testimony). In each of the above cases, the murder was committed during or after the commission of the charged underlying felony. That is not the case here.

Appellant correctly observes that a felony that is committed as an afterthought and unrelated to the murder is not sufficient to prove capital murder under Section 19.03(a)(2). See, e.g., Herrin v. State, 125 S.W.3d 436, 440-41 (Tex. Crim. App. 2002) (evidence of capital murder was insufficient when there was no evidence that appellant intended to kidnap victim before or during intentional murder). In this case, appellant assaulted Cameron only after Jennifer’s murder was completed, seemingly to eliminate a witness to that murder. See id. There is nothing in the record to indicate that appellant’s intent when he entered Jennifer’s apartment was to kidnap Cameron and that, during that attempt, appellant murdered Jennifer. Instead, the record reveals that appellant killed Jennifer before he became aware that Cameron was in the apartment and awake. After the murder, appellant did not seek Cameron out and attempt to abduct him; rather, concerned for his mother, Cameron went looking for her and found his mother and appellant in his mother’s bedroom. Until appellant seized Cameron and assaulted him with the trowel, Cameron was no more restrained than he was before appellant entered the apartment. We find that Cameron was assaulted but not kidnapped. Because the murder was complete before the attack on Cameron, and because Cameron was not restrained by appellant before appellant attacked Cameron with the trowel, the evidence does not support a conviction for capital murder.

In Thornton v. State, 425 S.W.3d 289, 295-300 (Tex. Crim. App. 2014), we discussed the development of our jurisprudence regarding the availability of a reformation of a judgment after a finding of insufficient evidence. In Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim. App. 2013), we pointed out that, when the evidence is legally insufficient only as to an aggravating element, it is appropriate for an appellate court to strike the unproved aggravating element and reform the judgment to reflect guilt of a lesser-included offense. And in Thornton, 425 S.W.3d at 300, we explained that, when the lesser-included offense is one that the jury necessarily found and the evidence is sufficient to support that lesser-included offense, the appellate court is required “to avoid the ‘unjust’ result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser-included offense.” This case does not involve a lesser or greater culpable mental state, but rather insufficient evidence to prove the alleged aggravating element that raised Jennifer’s murder to capital-murder. In this case, the jury charge included an instruction regarding the lesser-included offense of murder: whether appellant was guilty of intentionally causing Jennifer Hailey’s death. This lesser included- offense instruction did not include any reference to the aggravating element–causing a death in the course of committing or attempting to commit the offense of kidnapping against Cameron Lockhart.

Appellant concedes that the evidence is legally sufficient to show that he intentionally murdered Jennifer, and our review of the evidence confirms that the evidence was sufficient for a rational jury to find that appellant intentionally caused the death of Jennifer Hailey by strangling her. We conclude that the jury necessarily found that appellant committed the lesser-included offense of murder and that the evidence is sufficient to support such a finding, thus reformation of the judgment is appropriate. We find that the evidence does not support a verdict of guilty as to capital murder and that, based upon the judgment’s reformation to reflect a conviction for murder, punishment must be reassessed. Accordingly we remand this case to the trial court for reformation of the judgment to reflect a conviction for murder and for a new punishment trial. See Herrin, 125 S.W.3d at 443-44 (Tex. Crim. App. 2002). In these circumstances, we need not address the remainder of appellant’s points of error, all of which assert error during the punishment proceedings and are rendered moot by our reformation of the conviction and remand for a new punishment hearing.

1 Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

2 To avoid confusion, we refer to Jennifer Hailey and other members of the Hailey family by their first names.

DISSENTING OPINION

YEARY, J., filed a dissenting opinion in which KELLER, P.J., and MEYERS, J., joined.

Because I believe that the evidence was sufficient to establish that Appellant caused Jennifer Hailey’s death while in the course of kidnapping Cameron Lockhart, I dissent to reforming the judgment to reflect conviction for the lesser-included offense of murder and remanding for a new punishment proceeding. Furthermore, because Appellant has asserted no guilt phase trial error, and because I find no trial error that was committed at the punishment phase, I would affirm the trial court’s judgment in all respects.

STATEMENT OF FACTS

Appellant was charged with intentionally causing Jennifer Hailey’s death while he was in the course of committing or attempting to commit the offense of kidnapping against Cameron Lockhart. Viewed in the light most favorable to the verdict, the trial record shows that Appellant met Jennifer(1) and her nine-year-old son, Cameron, when Jennifer and Appellant’s girlfriend, Andrea Copelyn, worked at the same medical clinic. Jennifer and Cameron sometimes saw Appellant at the clinic when he came in to pick up Copelyn after work. They would also see Appellant when Copelyn’s daughter babysat Cameron in the home where Copelyn, her three children, and Appellant lived.

Appellant and Copelyn began dating in the spring of 2006, and they began living together in February or March 2007. Appellant physically abused Copelyn on several occasions. When Copelyn learned that Appellant had also abused her son, she decided to leave Appellant in order to protect her children. On July 24, 2010, Copelyn and her children moved out of the house. Appellant had to move out when the lease ended on July 31. However, Copelyn and Appellant continued having a romantic relationship, and Appellant continued interacting with Copelyn’s co-workers at the clinic. Appellant believed that Copelyn would let him live with her again if he did “something good,” such as finding a job or completing a spiritual development program.

On September 17, 2010, Copelyn met Appellant at the mission where he was staying so that they could go to church services together. Appellant wanted to go home with Copelyn, but she told him that he could not live with her again until her children went off to college. Appellant became very upset. He climbed into Copelyn’s car and refused to get out. He yelled repeatedly for Copelyn to take him home. People who overheard the noise intervened on Copelyn’s behalf so that she could leave. As a result of this outburst, Appellant was barred from the mission.

Some time after midnight, Appellant went to Copelyn’s house. He knocked on her front door, but she did not answer. She saw him looking through the windows before he left. On September 19, 2010, around 10:00 p.m., Appellant asked an acquaintance to drop

him off near a friend’s apartment. Appellant did not name the person he intended to visit. Once at the apartment complex, Appellant went to the two-bedroom apartment where Jennifer and Cameron lived. Appellant had never been to their apartment before.

Cameron had gone to bed at 9:00 p.m., but after sleeping for a couple of hours, he got up to get a drink of water. As he walked toward the kitchen, he saw Appellant and Jennifer in the living room. Appellant was on top of Jennifer on the couch. It looked to Cameron like Appellant was hugging her, and he later told an investigating officer that he had seen Appellant with his hands around Jennifer’s throat. Jennifer was face down, and Cameron could see that her hand was moving a little bit. Cameron called out to her. Appellantappeared startled and raised up. Cameron asked, “Stanley, what are you doing?” Appellant replied that he was not “Stanley”; rather, he was “Michael from Huntsville.” He told Cameron to go back to bed and Cameron complied.

Ten or fifteen minutes later, Cameron again left his bedroom. As he stood in the hallway, he could see Jennifer lying face up on the floor of her bedroom. Cameron could not tell if she was hurt. He knew from experience that Jennifer fainted easily. Cameron told Appellant that he had to go to the bathroom. Although there was a bathroom across the hall from Cameron’s bedroom, Cameron went to the bathroom in his mother’s room. He was able to take a closer look at Jennifer, but he was still unable to ascertain whether she was hurt.

As Cameron walked out of his mother’s room, Appellant told Cameron that he wanted to “chill” with him. Hoping that Appellant would leave, Cameron told Appellant that he was going back to bed. Cameron walked toward his bedroom, but Appellant grabbed him from behind and choked him. Appellant struck Cameron’s jaw, back, and neck with a garden trowel he had retrieved from the utility room. Cameron passed out in the hallway. When Cameron awoke, Appellant was no longer in the apartment. Cameron was lying on the living room floor under a comforter that had been taken from Jennifer’s bed. Jennifer was lying in her bedroom. Cameron could not wake her up and thought that she was dead. He called his grandmother, Nancy Hailey, around 5:00 a.m. Nancy then called 9-1-1 and her son, Jayson Hailey.

Jayson reached Jennifer’s apartment shortly before emergency responders did. Cameron opened the door for him and told him what had happened. Jayson entered Jennifer’s bedroom and observed that her hair, matted with dried blood, was covering her face. He picked her up, intending to take her to the hospital, but as he carried her, he concluded that she needed more immediate care. He lay her down near the front door to perform CPR. When he moved Jennifer’s hair away from her face, he saw that her face was purple and swollen. The chest compressions associated with performing CPR caused blood to come out of her mouth.

Emergency responders observed a big gash on Cameron’s neck and smaller gashes on the side of his face. They transported Cameron to the hospital. Cameron had lost a significant amount of blood, but he survived his injuries.

SUFFICIENCY OF THE EVIDENCE

Whether the jury could rationally conclude that Appellant kidnapped Cameron on this record depends upon whether it could rationally find: (1) that Appellant “restrained” him and, if so, (2) that Appellant also “abducted” him. That is to say, did Appellant “restrain” Cameron with the additional specific intent to ultimately prevent Cameron’s liberation—intending to accomplish that ultimate goal either by secreting or holding him in a place where he was not likely to be found, or by using or threatening to use deadly force against him? In order to accomplish an abduction, Appellant need not have actually secreted or held Cameron, or used or threatened to use deadly force; he need only have had the intent to do so at the time he restrained Cameron. Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009); Santellan v. State, 939 S.W.2d 155, 162 (Tex. Crim. App. 1997); Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995); Brimage v. State, 918 S.W.2d 466, 475 (Tex. Crim. App. 1994) (plurality opinion on original submission).

Restraint: The simple “restraint” element can be accomplished by either moving or confining the victim “so as to interfere substantially” with the victim’s liberty. It is true that Appellant did not literally pick Cameron up and carry him, or otherwise physically move Cameron. He simply told Cameron, “Go back to your bed. Go back to your room[,]” and Cameron complied. But the Court should not construe the definition of restraint to require that the actor himself physically move his victim from one place to another. It is enough that he cause the victim somehow to move or be moved. Otherwise, it would not be possible for purposes of “restraint” to move a victim from one place to another “by . . . intimidation or deception[.]” TEX. PENAL CODE § 20.01(1)(A). Neither of these statutorily contemplated means of moving a victim—intimidation or deception—necessarily requires the actor himself to have physically moved the victim. So long as the actor causes the victim to move or be moved without consent from one place to another “so as to interfere substantially with [the victim’s] liberty,” id. § 20.01(1), he has perpetrated a restraint. The jury might rationally have concluded that Appellant “moved” Cameron by this definition. Moreover, the jury might rationally have concluded that, as an adult instructing Cameron in no uncertain terms to go back to his bedroom, Appellant also effectively “confined” him there.

With this understanding of the “restraint” element, the evidence in this case would permit the jury to conclude that Appellant “restrained” Cameron. He caused Cameron to “move” to his bedroom “by . . . any means,” including by simply telling him to do so, and he also thereby “confined” him. TEX. PENAL CODE § 20.01(1)(B)(I). The fact that Cameron acquiesced does not establish that the restraint was consensual, since Cameron was less than 14 years old and his mother did not acquiesce. See id. (restraint is non-consensual “if it is accomplished by . . . any means, including acquiescence of the victim, if” the victim is younger than 14 and the parent has not acquiesced in the victim’s movement or confinement).

Abduction: Does the evidence also establish that Appellant “abducted” Cameron? While Appellant restrained Cameron, did he also have the specific intent, not just to substantially interfere with his liberty, but to actually “prevent his liberation by . . . [either] secreting or holding him in a place where he is not likely to be found [or] using or threatening to use deadly force”? See Laster, 275 S.W.3d at 521 (“The offense of kidnapping is legally completed when the defendant, at any time during the restraint, forms the intent to prevent liberation by secreting or holding another in a place unlikely to be found.”). In my view, the evidence supports a rational inference that when Appellant restrained Cameron, he did in fact harbor the additional intent, not just to interfere with his liberty, but to prevent his liberation—if not only by “secreting or holding” him, then also by using deadly force against him in order to dispatch the only witness to Jennifer’s murder. The jury might rationally have concluded that, even as of the time that Appellant instructed Cameron to go back to bed—and in any event at some point during the restraint, he formulated the intent to secret or hold Cameron or even to kill Cameron so that Cameron could not later be a witness against him. Thus, the jury could reasonably have concluded, the purpose of Cameron’s initial restraint was to hold Cameron in a place from which he could not interfere with Appellant’s assault upon Jennifer or communicate with someone else who might interfere. Alternatively, the jury might rationally have concluded that, when Appellant initially restrained Cameron, his purpose was to ensure that Cameron would never be liberated, a goal that Appellant intended to accomplish by later using deadly force against him. Viewed in the light most favorable to the jury’s verdict, the evidence supports a finding beyond a reasonable doubt that Appellant abducted, and hence kidnapped, Cameron.(2)

Indeed, Appellant does not vigorously contest that he kidnapped Cameron. He argues, however, that the evidence fails to show that Jennifer’s murder occurred during the course of Cameron’s kidnapping. Specifically, he contends:

“[s]he had been murdered before [A]ppellant said or did anything to Cameron Lockhart. At most, the State’s evidence may show a kidnapping in the course of a murder. This theory of capital murder is contrary to the plain language of Texas Penal Code, Sec. 19.03(a)(2). See Herrin v. State, 125 S.W.3d 436, 440 n.7 (Tex. Crim. App. 2002).”

Appellant’s Brief at 12.

In Herrin, the Court observed that, when it comes to a murder alleged as capital because it was committed in the course of also committing the predicate offense of kidnapping, “[t]he critical question is whether the murder was committed in the course of the kidnapping or attempted kidnapping, not the other way around.” 125 S.W.3d at 440. Appellant argues that the evidence shows that he had already completed Jennifer’s murder by the time he restrained Cameron, that the kidnapping was an “afterthought,” and that it cannot therefore be said that he murdered her “in the course of” kidnapping Cameron. See id. at 440 n. 6 (“The same principle applies in the robbery/capital murder context. If the robbery is committed as an afterthought and unrelated to the murder, the State has not proven the murder was committed in the course of the robbery.”). As is the case with a murder that is a capital offense because committed in the course of a robbery, to be a capital offense, the “intent to [kidnap] must be formed before or at the time of the murder.” Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). Appellant contends that there is insufficient evidence to permit a jury to rationally conclude that he formed an intent to kidnap Cameron “before or at the time of” the murder. Santellan, 939 S.W.2d at 164. I disagree.

The medical examiner testified that Jennifer’s cause of death was “homicide asphyxia to include strangulation,” and that the deprivation of oxygen to her brain killed her. He also testified that to cause death in this way is not a quick process:

Q. And so to be killed by strangulation does there have to be pressured [sic] applied after the person is motionless?

A. Yes.

Q. For how long?

A. We’re talking for a good minute, two, maybe even three.

Cameron told an investigating officer that when he first saw Appellant and his mother in the living room, he saw Appellant “on top of his mother with his hands around her throat holding her down on the couch.”(3) Cameron himself seemed less sure of exactly what he saw, testifying that “I couldn’t really tell — the last thing I would know is he was choking her. From my angle I guess he was just hugging her or something like that.” At any rate, when asked whether at this time he could see Jennifer’s hand moving, Cameron answered, “Yeah, a little bit.” When Cameron re-emerged later from his bedroom, Jennifer had been moved from the living room to her bedroom, but by this time she was no longer moving at all. A rational jury could conclude from the totality of circumstances that, by the time Appellant told Cameron to return to his room, thus abducting him, he had not yet applied the sustained pressure to Jennifer’s neck needed to not only incapacitate her, but also to cause her death by strangulation. This evidence indicates that, while Appellant may have already begun to strangle Jennifer when Cameron first interrupted him, he did not finish the job until after he had restrained Cameron by sending Cameron back to his room. The jury could have credited this evidence in order rationally to conclude that Appellant had initiated Cameron’s kidnapping before or at the time he killed Jennifer.

Appellant insists, however, that the evidence must show that he murdered Jennifer in order to “facilitate” Cameron’s kidnapping, and “not the other way around.” Herrin, 125 S.W.3d at 440. Even if Jennifer was still alive when Appellant restrained Cameron, he maintains, it was not a capital murder because the kidnapping was committed to facilitate the murder rather than the murder facilitating the kidnapping. It is true that we said that, in the context of murder/robbery, in order to be a capital offense, the murder must “facilitate the taking of the property.” Id. n.6 (quoting Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App. 1992)). This notion that a capital murder under Section 19.03(a)(2) of the Penal Code must be committed to “facilitate” the commission of the predicate offense apparently derives from the statutory language requiring that the murder be committed “in the course of committing” that predicate offense. Id. But our decision in Herrin itself did not turn on this “facilitation” construction of the phrase “in the course of committing.”4 I would reject this construction because I think it represents a less expansive understanding of “in the course of committing” than the Legislature intended. It is enough to effectuate the legislative purpose that the evidence show that Appellant had begun to commit the predicate offense of kidnapping “before or at the time of” the commission of the murder.

Herrin cited Moody for the proposition that “facilitation” is required. Moody (which also did not depend on the “facilitation” construction of “in the course of committing” for its holding and, indeed, did not even involve a sufficiency of the evidence claim) in turn cited Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986). In Ibanez, we observed that “[a] killing and unrelated taking of property do not constitute capital murder under [Section] 19.03(a)(2): the State must prove a nexus between the murder and theft, i.e.[,] that the murder occurred in order to facilitate the taking of the property.” 749 S.W.2d at 807. Ibanez, in turn, cited three opinions of this Court,5 none of which used any form of the word “facilitate” to convey the idea that, for a murder to be capital, it must be committed “in the course of” robbery or one of the other predicate felonies listed in Section 19.03(a)(2). In fact, I find no prior case that squarely holds as much.

I do not believe that the statutory language, while it undoubtedly requires some level of relatedness of the murder to the predicate offense, necessarily requires that it must facilitate (i.e., “to make easier or less difficult”)6 the commission of the predicate offense. If that were what the Legislature meant, it would likely have used language similar to that which is found in the felony murder statute. There, the Legislature proscribed causing the death of an individual “in the course of and in furtherance of the commission” of a predicate felony offense. TEX. PENAL CODE § 19.02(b)(3)(emphasis added).7 At the same time, the phrase “in the course of committing” is certainly narrower than the phrase “the same transaction,” to be found in the mass murder subsection of the capital murder statute. See TEX. PENAL CODE § 19.03(a)(7)(A) (making it a capital offense to murder more than one person “during the same criminal transaction”).8 I think it enough to distinguish the phrase “in the course of committing” from these other two statutory phrases to say that it requires that an accused have initiated the commission of the predicate offense either “before, or as,” he committed murder. E.g., White v. State, 779 S.W.2d 809, 815 (Tex. Crim. App. 1989).

Accordingly, I would hold that a murder need not facilitate the commission of the predicate offense in order to have been committed “in the course of” the predicate offense. It is sufficient that the actor initiated the commission of the predicate offense at some point before or during the time he engages in the conduct that results in the murder. This is as much “nexus” as the Legislature meant to require in the capital murder-in-the-course-of-a-felony context. While murder in the course of committing one of the predicate felonies may often incidentally serve to facilitate the commission of the predicate felony, I do not believe the Legislature intended that to be a prerequisite to a conviction for capital murder under Section 19.02(a)(2).9 An offender who goes on to commit a completely gratuitous murder while carrying out one of felonies designated under the statute is surely still guilty of committing a murder “in the course” committing the predicate felony, regardless of whether the murder “facilitated” the predicate felony.

Because there is evidence from which the jury could have rationally concluded that Appellant had in fact kidnapped Cameron (having restrained him with the requisite intent to constitute abduction) as he was still engaging in the protracted conduct by which he eventually caused Jennifer’s death, a rational jury could have concluded that he committed murder in the course of committing kidnapping. We need not also decide whether the [sic] Jennifer’s murder “facilitated” Cameron’s kidnapping. I would overrule Appellant’s first point of error and proceed to a review of the balance of Appellant’s points of error.

FIFTH AMENDMENT

In points of error two through four, Appellant asserts that the trial court violated Article 1, Section 10, of the Texas Constitution, Article 38.08 of the Code of Criminal Procedure, and the Fifth Amendment to the United States Constitution. Specifically, Appellant complains that the trial court erroneously overruled his objection that the prosecutor improperly placed Appellant’s failure to testify into evidence when the prosecutor elicited Dr. Timothy Proctor’s testimony that Appellant refused to speak to Proctor about details of the offense. Contrary to Appellant’s allegations, the record shows that Proctor did not testify that Appellant refused to speak to him about details of the offense. Rather, Proctor testified that he did not discuss the facts of the offense with Appellant because the court had instructed him not to. Accordingly, these points of error are without merit because the record does not support the factual allegations upon which they rely. I would overrule points of error two through four.

In points of error five through seven, Appellant asserts that the trial court violated Article 1, Section 10, of the Texas Constitution, Article 38.08, and the Fifth Amendment to the United States Constitution. Specifically, Appellant complains that the trial court erroneously overruled his objection that the prosecutor improperly placed Appellant’s failure to testify into evidence when the prosecutor elicited Proctor’s testimony that Proctor did not discuss the facts of the offense with Appellant because the court had granted the defense’s request that Proctor not discuss the details of the offense with Appellant. Appellant contends that he is entitled to a new punishment hearing because the trial court committed a constitutional error that “genuinely corrupted the fact-finding process” and therefore was not harmless under Rule 44.2(a) of the Texas Rules of Appellate Procedure.

The record reflects that a defense expert, Dr. Mark Cunningham, and the State’s expert, Dr. Proctor, each evaluated Appellant for mental retardation and future dangerousness. Both experts testified at trial that they had been instructed not to discuss the facts of the offense with Appellant. Appellant objected generally before trial that the State’s motion for a psychological evaluation would violate his right to remain silent under Article 1, Section 10, of the Texas Constitution. However, he never specifically objected, under the state constitution or Article 38.08, to the complained-of part of Proctor’s testimony. See Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007) (finding that an attack on testimony in general, advanced before any testimony was heard, did not place the trial court on notice that the appellant would find particular testimony objectionable). Therefore, Appellant did not preserve his state constitutional and Article 38.08 claims for appeal. See TEX. R. APP. 33.1(a); see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). However, Appellant timely and specifically objected under the Fifth Amendment of the United States Constitution to the complained-of part of Proctor’s testimony. Therefore, he preserved his federal constitutional claim.

I would reject Appellant’s Fifth Amendment claim on the merits for the reasons we rejected the same claim in an unpublished opinion addressing a similar fact pattern. See Milam v. State, AP-76,379, slip op. at 37-41 (Tex. Crim. App. May 23, 2012) (not designated for publication). In Milam, we held that the trial court did not err by allowing the parties’ evaluating experts to testify that they had been instructed not to discuss the facts of the offense with the appellant. We stated that such testimony did not violate the appellant’s Fifth Amendment right to remain silent because the appellant constructively took the stand and waived his Fifth Amendment right to remain silent when he spoke to his own expert and introduced the expert’s testimony based on that interview. Id. at 40 & n.79 (citing Chamberlain v. State, 998 S.W.2d 230, 234 (Tex. Crim. App. 1999); Lagrone v. State, 942 S.W.2d 602, 610-11 (Tex. Crim. App. 1997); and Soria v. State, 933 S.W.2d 46, 58-59 (Tex. Crim. App. 1996)). The State was then entitled to offer rebuttal testimony, limited to the issues raised by the defense expert, and to test the experts’ opinions by questioning them about how they arrived at those opinions. Id. at 40 & n.80 (citing Lagrone, 942 S.W.2d at 611, and Renteria v. State, No. AP-74,829, slip op. at 87-89 (Tex. Crim. App. May 4, 2011) (not designated for publication)).

I would hold that, like the defendant in Milam, Appellant constructively took the stand and waived his Fifth Amendment right to remain silent when he spoke to his own expert and introduced testimony based on that interview. The State was then entitled to offer rebuttal testimony and to question the experts about how they arrived at their opinions. I would overrule points of error five through seven.

MENTAL RETARDATION

In point of error eight, Appellant asserts that the jury’s adverse finding on Appellant’s mental retardation special issue was so against the great weight and preponderance of the evidence as to be manifestly unjust.(10) Appellant notes that the trial court submitted the question of whether Appellant was mentally retarded as a special issue at punishment and instructed the jury that Appellant had to prove by a preponderance of the evidence that he was mentally retarded.

When the issue is presented at trial, a defendant bears the burden of proof, by a preponderance of the evidence, to establish that he is mentally retarded. Hunter v. State, 243 S.W.3d 664, 667 (Tex. Crim. App. 2007). In evaluating the sufficiency of the evidence to support a jury’s rejection of a claim of mental retardation on direct appeal, we must consider all of the evidence relevant to the issue and evaluate whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. We afford great deference to the jury’s finding because the jury was in the best position to assess witness  credibility and to resolve conflicts in the evidence. See Williams v. State, 270 S.W.3d 112, 114 (Tex. Crim. App. 2008).

We define mental retardation as a disability characterized by: (1) “significantly subaverage” general intellectual functioning; (2) accompanied by “related” limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18. Hunter, 243 S.W.3d at 666 (citing Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004)). In weighing evidence as indicative of mental retardation, fact finders in the criminal trial context may also focus upon other evidentiary factors. See id. at 666-67.

Both parties presented substantial evidence relevant to the question of whether Appellant is mentally retarded. Appellant’s experts and the State’s expert relied on much of the same evidence, although they reached different conclusions. Cunningham, a clinical and forensic psychologist, testified for the defense that Appellant is mildly mentally retarded. Proctor, also a clinical and forensic psychologist, testified for the State that Appellant is not mentally retarded but is within the low range of borderline intellectual functioning.
1. Intellectual functioning

Significantly subaverage intellectual functioning is generally characterized by a full- scale IQ score of about 70 or below. See Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App. 2010) (citing the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders). There is a margin of error of approximately five points in assessing IQ. Id. Thus, a score may be approximately five points higher or lower than the subject’s actual IQ. Id. In assessing the validity of an IQ test score, fact finders may generally consider the effect of matters that could detract from the over-all validity of the score obtained, such as malingering, depression, lack of concentration, and test obsolescence, but such considerations do not warrant adding or subtracting from an IQ score. See Ex parte Cathey, 451 S.W.3d 1, 5 (Tex. Crim. App. 2014).

The record reflects that Appellant completed six IQ assessments from the time he was sixteen to the time of trial. In 1981, the school system evaluated him for special education placement. At that time Appellant obtained an IQ score of 65 on the Wechsler Intelligence Scale for Children – Revised (“WISC-R”). While in prison in 1991, Appellant obtained an IQ score of 73 on the Wechsler Adult Intelligence Scale-Revised (“WAIS-R”). In May 1993, again while in prison, Appellant obtained an IQ score of 76 on the WAIS-R. Appellant also completed a Beta-II test while in prison, but because it measured non-verbal abilities only, the testifying experts did not give weight to the results of that test in forming their opinions. In April 2012, while in jail awaiting trial in this case, Appellant obtained an IQ score of 73 on the Wechsler Adult Intelligence Scale Fourth Edition (“WAIS-IV”), administered by the defense’s expert, Dr. James Underhill, a clinical psychologist. The State’s expert, Proctor, administered another WAIS-IV on June 12, 2012, and Appellant obtained an IQ score of 72.

Both State and defense experts concluded that there was no evidence that Appellant malingered when he took the IQ tests. However, Proctor expressed concern that the IQ test he administered was the only IQ test that had been accompanied by a separate test of effort, which was the most reliable way to know whether Appellant had given good effort during the IQ testing. Proctor acknowledged that previous test administrators did not note any concerns with Appellant’s efforts and that some administrators had indicated that Appellant appeared to exert good effort during the testing. Proctor stated, however, that personal observation was not the best way to measure effort. Proctor acknowledged that Appellant gave good effort during the tests that Proctor administered.

Proctor also acknowledged that Appellant’s first IQ score of 65, obtained when Appellant was sixteen years old, fell within the range of mild mental retardation. However, Proctor did not believe that this score accurately represented Appellant’s level of intellectual functioning at the time of the offense and trial. Proctor attributed the variation between the 1981 score of 65 and the more recent scores either to a possible lack of effort during the first test, or to the possibility that the score accurately reflected Appellant’s level of intellectual functioning in 1981, but his cognitive functioning had continued to develop and had moved beyond the range of mild mental retardation by the time of the later IQ tests. Cunningham and Proctor both testified that mild mental retardation is not necessarily a lifelong diagnosis and that a person can outgrow it or develop through it in some cases.(11)

Both State and defense experts concurred that full-scale IQ scores have a confidence interval of approximately five points, meaning that a test subject’s actual IQ is somewhere within a range that extends approximately five points below the score and five points above the score. Underhill and Cunningham testified for the defense that it was just as likely that Appellant’s IQ was any number within the range as it was that Appellant’s IQ was the IQ score actually obtained. Proctor, however, testified that Appellant’s IQ was most likely to be the score actually obtained or one of the numbers closest to it. The further away the numbers in the range were from the score actually obtained, the less likely it was that those numbers represented Appellant’s true IQ. Thus, Proctor testified, Appellant’s full-scale IQ score of 72 signified a range of approximately 67 to 77, but Appellant’s IQ was more likely to be 71 or 73 than to be 68 or 76.

Proctor and Cunningham concurred that the WAIS-R was normed in 1978, and so when Appellant took that test in 1991 and 1993, his scores were inflated by the Flynn effect. See Cathey, 451 S.W.3d at 6 n.8 (citing Alan S. Kaufman, IQ Testing 101, 203 (2009), for its explanation of the Flynn effect as the phenomenon of obsolete norms inflating IQ scores as time passes from the date an IQ test was standardized). Cunningham opined that Appellant’s 1991 and 1993 scores should be adjusted downward by 0.3 points for every year that passed between the norming date and the date the test was administered. Cunningham based his opinion on the American Association on Intellectual and Developmental Disabilities’s (“AAIDD’s”)(12) recommendation that such a revision was appropriate for an IQ score and on a similar recommendation in the WAIS-III technical manual.

Cunningham also noted that studies of WAIS-R scores for mildly mentally retarded subjects had found that the scores were distorted when compared with scores obtained contemporaneously from other measures of intellectual functioning. Cunningham stated that because of this problem, Professor James Flynn had written that a WAIS-R score near 70 is so defective that it “should simply be set aside because of the difficulty in understanding” what it means, but that if the score had to be used, it should be lowered by four or five points.13 This revision would be in addition to any downward revision for the Flynn effect. Therefore, Cunningham opined, Appellant’s 1991 IQ score of 73 was closer to 64 and his 1993 IQ score of 76 was closer to 66. Based on all of Appellant’s IQ scores over the years, Cunningham concluded that Appellant’s actual IQ was likely to be between 65 and 73. Therefore, he opined, Appellant had a disability characterized by significantly subaverage intellectual functioning.

Proctor disagreed with Cunningham’s precise downward revision of the WAIS-R scores. He noted that the test publisher had acknowledged the Flynn effect but had not recommended adjusting scores according to a particular formula. Proctor stated that when the accuracy of a score is suspect, the best practice is to rely on a score obtained from a different, non-suspect, testing instrument. See Cathey, 451 S.W.3d at 5-6 (“The preferred solution to an outdated IQ score is not to start subtracting from that score, it is to retest with a more recently normed IQ test.”). Thus, Proctor opined, Appellant’s IQ is best represented by the recent IQ scores obtained from the W AIS-IV . Proctor stated that the W AIS-IV was published in 2008 and therefore it was not out-of-date when it was administered in 2012, and moreover the June 2012 test was the only IQ test accompanied by a separate effort test. Thus, Proctor testified that Appellant’s IQ scores of 73 and 72 were the most reliable indicators of Appellant’s cognitive functioning.

Proctor testified that, based on the “practice effect,” he would have expected Appellant’s score on the June 2012 test to be higher than his score on the April 2012 test. Proctor noted that, while he was administering the June test to Appellant, Appellant told Proctor he was worried about the upcoming trial. Proctor observed that Appellant appeared to be somewhat distracted at times. Proctor stated it was possible that Appellant’s test score was somewhat lower as a result of Appellant’s being worried and distracted. Proctor did not know whether Appellant had also been worried when Underhill tested him in April 2012. Proctor stated that, based on the IQ score of 72, Appellant’s true IQ is between 68 and 77, but it is most likely close to 72. Proctor opined that, although a case could be made that Appellant’s IQ score placed him within the range for mild mental retardation, Appellant’s level of intellectual functioning was better characterized as borderline.

Defense expert Underhill opined that the IQ score of 73 that Appellant obtained on the April 2012 WAIS-IV “could go either way.” Although Underhill had not administered a separate effort test, he stated that, based on Appellant’s performance on the “reliable digit span” portion of the IQ test and Underhill’s personal observations of Appellant’s cooperation, mood, and demeanor during testing, Appellant had made a good effort. Underhill testified that, particularly in light of the confidence interval, this IQ score alone did not answer the question of whether Appellant’s intellectual functioning was most accurately characterized as mildly mentally retarded or borderline.

2. Adaptive functioning

Adaptive behavior or adaptive functioning refers to the ordinary skills that are required for people to function in their everyday lives. Cathey, 451 S.W.3d at 19. The determination of mental retardation in the context of a criminal trial is complicated by the problems associated with retrospective assessment and the well-known consequence of a diagnosis of mental retardation – exemption from the death penalty. Id. “Both experts and those answering questions about a person’s adaptive functioning may exhibit significant conscious or unconscious bias in addressing this issue.” Id. A significant impairment in adaptive behavior may be viewed as the extent to which an individual has required assistance to carry out age-appropriate activities. Id. at 23.

Cunningham testified that the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition – Text Revision (“DSM-IV-TR”) and the AAIDD’s user’s guide (“AAIDD manual”) identify ten or eleven domains of adaptive functioning, depending upon whether “health and safety” is regarded as a single domain or as two separate domains.(14) Cunningham identified eleven domains, while Proctor identified ten. Cunningham testified that in recent editions of the AAIDD manual, the criteria are grouped into three categories: conceptual, social, and practical. See, e.g., Hearn, 310 S.W.3d at 428 & n.9. Cunningham and Proctor concurred that a person must demonstrate significant deficits in two or more domains of adaptive functioning in order to be diagnosed as mildly mentally retarded. See, e.g., Atkins, 536 U.S. at 309 n.3.

Cunningham testified that, on behalf of the defense, Dr. Thomas Oakland administered the Adaptive Behavior Assessment System – Second Edition (“ABAS-II”) to Appellant’s mother, Dorothy Hicks; sister, Jackie Griffin; brother, Willie Griffin;15 and maternal aunt, Illian Kenon. Oakland also administered the ABAS-II to Appellant’s ex-wife, Alycia Mason, and Copelyn. Cunningham testified that the results obtained from Appellant’s family members varied greatly from the results obtained from Mason and Copelyn. The family members’ scores ranged from 40 to 55, while Mason’s and Copelyn’s scores ranged from 75 to 105. To explain this disparity, Cunningham testified that it was possible that family members had underestimated Appellant’s abilities because of the pending litigation, but that it was also possible that Mason and Copelyn had overestimated Appellant’s abilities because they did not want to appear to have been romantically involved with a mentally retarded person.

Cunningham also acknowledged that Hicks and Kenon had answered the questions based on their recollections of Appellant’s functioning as a seventeen-year-old, which was problematic because adaptive behavior instruments are not meant to be completed retrospectively, and Appellant was about forty-six years old when the ABAS-II was administered. Therefore, Cunningham did not place much weight on the ABAS-II scores but instead relied primarily on witness interviews and records.

Cunningham testified that he assessed Appellant’s adaptive functioning by reviewing available records of Appellant’s academic history and other records that he deemed informative of Appellant’s ability to function in the community. Cunningham also administered the Wide Range Achievement Test 4 (“WRAT-IV”), which he described as a test of functional academic literacy and capability, and the Reynolds Intellectual Assessment System (“RIAS”), which he described as being similar to an IQ test. Cunningham interviewed Appellant for five hours. He also interviewed Copelyn; Hicks; Jackie; Willie; Appellant’s former neighbors, Pat and Nancy Roman; and Appellant’s former employer, Eddie Smith.

Proctor testified that he did not administer the ABAS-II because he could not find a reliable historian who had recent, frequent contact with Appellant. He opined that the scores Oakland obtained from Appellant’s family members were too low to be consistent with mild mental retardation; they were more consistent with severe or moderate mental retardation. Proctor did not think that the ratings Copelyn provided to Oakland were inflated, but he thought that they were problematic because Appellant had been in jail for approximately two years when Copelyn provided them. Therefore, like Cunningham, Proctor assessed Appellant’s adaptive functioning based on witness interviews and records rather than scores on an adaptive functioning inventory.

In preparing his report concerning Appellant’s adaptive functioning, Proctor interviewed fourteen people, including the seven people Cunningham had interviewed. Proctor did not give any weight to his interviews with Hicks, Jackie, and Willie. Proctor stated that when he interviewed them, it was apparent that they had already decided what they wanted to tell him. They provided narrative accounts about Appellant’s abilities and deficits, but they would not answer Proctor’s questions. Hicks and Jackie would change the subject rather than answer a question directly. Willie ended the conversation when Proctor began to ask him questions.

Proctor gave more weight to his interview with Copelyn. Proctor opined that Copelyn gave a “fairly balanced” impression of Appellant. She was willing to acknowledge Appellant’s deficits, and she did not say implausible things or overemphasize Appellant’s strengths.

Cunningham identified four domains of adaptive functioning in which Appellant had significant deficits: functional academic skills, work, self-direction, and social interpersonal relationships. With respect to Appellant’s functional academic skills, Cunningham opined that Appellant’s WRAT-IV and RIAS scores were consistent with mild mental retardation. Cunningham noted that the RIAS was twelve years old when he administered it to Appellant in 2012. Therefore, he opined, the score of 74 should be lowered to account for the Flynn effect.(16) Cunningham also noted that Appellant went through adaptive functioning testing when he was sixteen. Appellant’s scores from the WRAT administered in 1981 reflected that Appellant was reading at a 5.4 grade level. He was spelling at a 3.9 grade level. His math skills were at a 3.9 grade level. Cunningham stated that these test results led the school to classify Appellant as “educable mentally handicapped,” a term formerly used by school systems that was equivalent to the term “mildly mentally retarded.”

The prison administered the WRAT-R to Appellant in 1993. Cunningham stated that the results reflected that Appellant was reading at a third grade level. His spelling was below a third grade level. His math skills were at a fifth grade level. Regarding the WRAT-IV that Cunningham administered on June 10, 2012, Appellant’s word reading, sentence comprehension, and composite reading were at a 5.5 grade level. His spelling was at a 4.7 grade level. His math skills were at a 5.9 grade level. Cunningham opined that Appellant’s approximately fifth grade achievement level was consistent with mild mental retardation.

Cunningham also considered records from classes that Appellant had taken as an adult while in prison and records from a Commercial Drivers License (“CDL”) course that Appellant took in 2009. Appellant had to take the CDL course more than once and he had to take parts of the CDL test multiple times before he passed. From this information, Cunningham concluded that Appellant has a significant deficit in the domain of functional academics.

Proctor also administered the WRAT-IV and the RIAS to Appellant. The WRAT-IV results reflected that Appellant was reading at a 5.4 grade level; his sentence comprehension and composite reading were at a 5.5 grade level; his spelling was at a 5.9 grade level; and his math skills were at a 7.4 grade level. Proctor stated that these scores were similar to the results that Cunningham reported. However, Proctor interpreted these scores as well as Cunningham’s scores as being consistent with borderline intellectual functioning rather than mild mental retardation.

Proctor also reviewed the results of the 1981 adaptive functioning instrument completed by Appellant’s teacher and mother. He did not perceive that those results warranted classifying Appellant as “educable mentally handicapped.” He noted that all of Appellant’s teacher’s ratings for various areas of adaptive functioning placed Appellant’s functioning around the thirtieth percentile and all but one of Appellant’s mother’s ratings placed Appellant “well above” the second percentile that would have been consistent with a finding of mild mental retardation. Proctor stated that although the school had determined from these ratings that “there were areas of deficit,” these scores were not “at the low level that [Proctor] expected” for someone who was “ultimately labeled as being educable mentally handicapped.”

Proctor acknowledged that Appellant’s 1991 prison records contained a clinical note stating that Appellant’s “level of adaptive functioning is questionable and may need to be further evaluated,” and Appellant was referred for an evaluation. However, Appellant was not placed into a Mental Health/Mental Retardation (“MHMR”) program in prison and was not on MHMR caseloads while he was on parole and probation. Appellant’s former probation officer testified that Appellant was not on the MHMR caseload because Appellant did not meet the criteria for mental illness and did not have an IQ score below 70.

Proctor spent eleven hours with Appellant at the jail. When they first met, Proctor handed Appellant a form explaining why Proctor was meeting with him and what Proctor hoped to accomplish. Appellant appeared to read the form, and when Proctor discussed it with him, Appellant seemed to understand it. Proctor also noted that, while in jail, Appellant read and wrote letters. Appellant accurately described to Proctor a story that he had read in the newspaper. Proctor concluded that Appellant did not have a significant deficit in the domain of functional academic skills.

Lay witnesses provided additional testimony relevant to Appellant’s functional academic skills. Copelyn testified about Appellant’s efforts to obtain a CDL, stating that Appellant studied very hard for the course but had trouble with some parts of it. She helped him with the chapter concerning air brakes. They reviewed that chapter so many times that Copelyn grew frustrated with Appellant. Appellant had a hard time retaining the information, but he really wanted to get through it. Appellant had to take the air brakes portion of the CDL test, which involved mathematical calculations, two or three times before he passed it. Copelyn testified that Appellant was able to text her using a mobile telephone. If they went out to a restaurant, Appellant could calculate the tip and pay the bill without help. Copelyn also testified that Appellant watched the game show, Wheel of Fortune, with her. Sometimes he solved the puzzles faster than the contestants, but sometimes he came up with crazy guesses. When that happened, Copelyn could not tell if Appellant thought he had the right answer or if he was just being funny. Copelyn observed Appellant reading the Bible. When Copelyn read the book, Angela’s Ashes, Appellant also read it and discussed it with her. Copelyn clarified that Appellant “worked his way through it.” In addition, Appellant read the newspaper every morning while they lived together. He wrote to Copelyn every day from jail and she wrote back. Copelyn acknowledged that Appellant was capable of doing things when he put his mind to them, but he often chose not to.

Elizabeth Farmer testified that she had been a special needs teacher at Appellant’s high school in 1981, when Appellant was placed in the educable mentally handicapped program. Farmer had written Appellant’s Individual Education Plan (“IEP”) because she was his home room teacher. Appellant’s school records contained grades ranging from 32 to the 80s. The records included a note that Appellant was failing science because of ten unexcused absences.

Farmer acknowledged that Appellant’s 1981 social assessment contained a notation that Appellant had a history of academic failure compounded by his general apathy and apparent lack of ambition. She also acknowledged that a school social worker had noted in Appellant’s records that his performance on the adaptive behavior scale was impaired by his lack of interest. Another teacher described Appellant as a child who did not care or take interest in anything. Appellant’s family members reported to the school that Appellant was lazy, grumbled about working, and occasionally threw a tantrum when he did not get his way. Appellant’s mother reported that he had no ambition or aspirations and that he lied frequently but not always effectively. Following Appellant’s placement into the educable mentally handicapped program, Appellant passed some of his special needs classes. Farmer pointed out that the work was much simpler in those classes than in the typical classes.

Concerning the domain of work, Dr. Cunningham testified that Appellant’s employers described him as having limited abilities, deficient conceptual understanding, impaired skill acquisition, and poor self-direction or initiative. For example, Eddie Smith, who had hired Appellant to help him clear land, told Cunningham that Appellant could not learn to use a chain saw. Appellant was good with simple tasks, but Smith had to check on Appellant’s progress periodically. If Smith told Appellant to complete several tasks, Appellant would complete the first task and then stop until Smith reminded him what to do. Cunningham testified that Smith continued to give Appellant work several days a month because Appellant was friendly and made an effort.

Cunningham testified that Pat Roman, Appellant’s neighbor, was a plumber who sometimes hired Appellant to help him. Roman described Appellant as “a strong back and a weak mind.” Roman tried to teach Appellant to do simple plumbing repairs, but Appellant could not learn. If Appellant did a job wrong and Roman corrected him, Appellant would fix the mistake, but the next time Appellant did the job, he would make the same mistake again. Roman commented that Appellant was mostly helpful with lifting things.

Cunningham stated that Roman reported that he once gave Appellant a job application for a Denny’s restaurant, but Appellant could not fill it out. Further, Appellant seemed intimidated by the job description. Roman also recalled that Appellant could not assemble a basketball goal without help. Roman told Cunningham that Appellant could follow instructions, but he sometimes seemed vague or unfocused. Appellant was not sensitive to social cues and could not tell when Roman wanted to be alone. Roman stated that Appellant was generally respectful and friendly, but he could be argumentative and easily frustrated when they worked together.

Cunningham also testified that Appellant’s brother, Willie, sometimes hired Appellant to work with him clearing land. Willie told Cunningham that Appellant had no understanding of the job and no common sense about danger. For example, Appellant would walk under a tree while it was being cut down, apparently unaware that it might fall on him. Willie would not allow Appellant to use power tools because Appellant would hold them dangerously or ruin them.

Willie reported to Cunningham that Appellant needed direct and immediate instructions to move from one task to the next. Appellant could sometimes do a good job with a simple, repetitive task. However, Willie told Cunningham that his own eleven-year-old son could do a better job of smoothing sand than Appellant did; Appellant was more like a six-to- eight-year-old child on the job.

Copelyn also told Cunningham that Appellant had trouble getting and keeping a job. When Appellant lost a job, he would give her an implausible explanation, such as saying that he was fired because the boss did not like him chewing gum. Copelyn observed that Appellant did his best work when he had a concrete task, limited co-worker interaction, and clear direction, such as yard work-type jobs.

Cunningham opined that Appellant’s employment records were consistent with the observations of the people he interviewed. For example, records from a job that Appellant briefly held at a chicken processing plant showed that Appellant was written up several times for working too slowly. Appellant’s employment records reflected many short-term employments, a recurrent inability to work with others, excessive tardiness, absenteeism, and poor job performance. Cunningham noted that Appellant needed a job but did not behave in ways that would help him get and keep a job.

Cunningham acknowledged that, for a person with a higher IQ, these types of behaviors might be characteristic of a personality disorder. He opined, however, that when a person with an IQ of 70 exhibited such behavior, the behavior was characteristic of intellectual disabilities because the person was not capable of better performance. Cunningham stated that age and IQ were critical factors in determining the meaning of these behaviors. Cunningham concluded that Appellant showed substantial deficits in the domain of work related to his subaverage intellectual functioning.

Proctor interviewed the same former employers that Cunningham did. Proctor also interviewed John Ellis, Appellant’s former supervisor at a bread company. Unlike Cunningham, Proctor did not rely on what Appellant’s brother Willie told him about Appellant’s work because Proctor did not view Willie as a reliable historian.

Proctor’s interviews with Smith and Roman led him to form a different impression than Cunningham had formed. Smith told Proctor that Appellant could not use heavy machinery and had to be reminded to start each separate task, but Smith also stated that Appellant could complete manual labor tasks satisfactorily, was reliable, showed up on time, and did the work. Smith hired Appellant because Smith needed the work done and Appellant could do it. When Proctor asked Smith if he thought that Appellant could perform that type of work on a regular basis, Smith stated that he thought that Appellant could probably work long-term in a setting such as a ranch where there was an ongoing need for someone to clear and maintain the property.

Roman told Proctor that he had problems with Appellant’s work, but Roman also acknowledged that he did not have much patience. Further, Appellant’s inability to do the work to Roman’s satisfaction was only one of the reasons that Roman quit using him. Roman told Proctor that he stopped working with Appellant because Appellant wanted Roman to split the money fifty-fifty with him and Appellant wanted Roman to help him with the jobs that  Roman had hired Appellant to do, such as carrying supplies and digging. Proctor did not think that Appellant’s inability to pick up plumbing-related tasks right away or the fact that Roman became impatient with Appellant signaled significant adaptive deficits.

Ellis told Proctor that he had supervised Appellant in the warehouse of the bread company for a total of two years. Ellis described Appellant as a good and valuable employee. He described the work that Appellant did and stated that Appellant did it well. However, Appellant had problems getting along with his co-workers.

Proctor opined that Appellant’s problems in the work domain were not necessarily related to subaverage intellectual functioning. Proctor pointed out that Appellant had spent much of his adult life in prison, which hindered his ability to acquire work experience and obtain jobs. Appellant also had a special education diploma, which might make it hard to obtain jobs. Despite these obstacles, Appellant had obtained numerous jobs, although he was not able to keep many of them for very long. Appellant’s employment records reflected a pattern of conflicts and arguments. Proctor concluded that Appellant did not have significant deficits in the work domain. To the extent that Appellant had trouble holding a job, Proctor opined that this trouble was related to Appellant’s personality.

Lay witnesses provided additional testimony relevant to Appellant’s ability to function at work. Ellis testified that Appellant’s primary job at the bread company was to receive a truckload of fifty types of bread products and then sort the products for distribution to stores and restaurants along seven delivery routes. Appellant sorted the products according to a chart that indicated how much of each product needed to go on each route. The chart varied daily. Ellis stated that Appellant was efficient, timely, and did not make mistakes. Appellant’s job at the bread company also included keeping the warehouse clean. Ellis noted that Appellant kept the warehouse “immaculate.” Ellis commented that Appellant sometimes performed above and beyond the job expectations, taking initiative and doing the tasks that he saw needed to be done. This was especially true with respect to cleaning. Appellant swept and pressure-washed the warehouse. Ellis acknowledged that Appellant generally worked by himself and the job was relatively repetitive.

After Appellant had worked at the bread company for about a year and a half, Ellis fired him because of interpersonal conflicts. Appellant had begun “bossing” and arguing with other employees, including Ellis. However, about six months after firing Appellant, Ellis rehired him because Ellis had not been able to find anyone else who could do the job as well as Appellant. Appellant promised that he would control himself and get along with his co- workers. Appellant kept his promise, and Ellis was satisfied with Appellant’s work. Appellant was friendly and a good conversationalist. Appellant left the job after six months because he was jailed after committing a criminal offense.

Copelyn testified that she sometimes accompanied Appellant on his job at the bread company. She observed that Appellant’s work of sorting the products into bins and getting the bins onto the right trucks was complicated, but Appellant did it well and quickly. Copelyn stated that she did not think that she would have been able do the job as well as Appellant did.

Appellant’s friend, Bruce Leggett, testified that Appellant had acknowledged that he had lost jobs because he would not back down in a confrontation. Leggett also testified that Appellant was not mechanically inclined. Leggett suspected that Appellant had trouble reading, based on Appellant’s inability to follow instructions for setting up musical equipment.

Marshell Robinson testified that she worked with Work Force Solutions, an organization that helps people obtain training and find jobs, and that she had helped Appellant. In October 2009, Appellant went to Robinson’s office and told her that he was interested in becoming a professional truck driver. Work Force approved Appellant for training. In exchange for receiving help from Work Force, Appellant agreed to comply with conditions such as calling in regularly and completing paperwork to verify that he was looking for a job. Work Force paid for Appellant’s CDL course and provided him with money for transportation. Appellant had trouble completing the CDL tests and had to take the course twice, but eventually he obtained his CDL.

After Appellant obtained his license, however, he stopped calling in regularly. He never provided Robinson with any job search documentation. Robinson notified Appellant of job fairs and job openings. She gave Appellant twenty job referrals, but Appellant never followed up. He gave Robinson excuses for postponing the application process, or he stated that he did not want the jobs that were available. One time, Appellant was offered a job as a truck driver, but he did not accept the job because he would have to be gone overnight.

Another time when Robinson called Appellant about a job opening, he told her that the company could call him if they wanted him. Work Force eventually terminated Appellant from the program in August 2010. Robinson testified that, on September 17, 2010, Appellant was notified that he had lost a food stamp benefit because he was not participating in the program as required and that he would not be eligible to re-apply for six months.

Concerning the self-direction domain, Dr. Cunningham observed that Appellant had never lived on his own. He was always supported emotionally and financially by the women with whom he lived. Cunningham noted that Appellant collapsed functionally and emotionally when Copelyn stopped living with him. Cunningham opined that Appellant’s act of locking himself in Copelyn’s car was a very childlike way to try to get her to “not break ties” and to take him home. Appellant’s sister, Jackie, told Cunningham that Appellant was easy to manipulate. He craved approval and would try hard to get it. Jackie stated that Appellant could not follow a series of tasks; he had to be told one task at a time. When Appellant went out to run an errand, he would have to call home because he would forget what the errand was. Jackie reported to Cunningham that Appellant was easily frustrated and could not problem-solve.

Copelyn reported to Cunningham that she managed the household and was responsible for the budgeting, bills, and parenting. She stated that she could send Appellant to the store for a few items, but she could not send him to shop independently for the week’s groceries. Cunningham opined that Copelyn’s narrative account of Appellant’s abilities was inconsistent with the conceptual and practical ratings she had provided on the ABAS-II, which placedAppellant in the “normal” range.

Cunningham testified that Copelyn told him that if Appellant had a job, he would go to it, but that Appellant took little initiative in finding a job. Cunningham opined that it was consistent with mild mental retardation to lack initiative, be apathetic, and “just sit” as opposed to engaging actively with the environment. Copelyn told Cunningham that Appellant would contribute money to a bill if the bill arrived on payday, but he could not think ahead about saving money and was apt to spend his entire paycheck in one night. He was oblivious to due dates. For example, he would not pay a telephone bill until the service was cut off. Copelyn told Cunningham that Appellant’s family took advantage of him. For example, Willie would hire Appellant to do a job, but then pay him less than promised. Appellant’s mother was always asking everyone for money, and Appellant would give her whatever money he had. Cunningham concluded that Appellant had substantial deficits in the area of self-direction.

Proctor opined that Appellant’s deficits in the self-direction domain were not significant. Appellant could make decisions and follow them through. Proctor learned from Copelyn that Appellant was very good about performing household duties on his own. Appellant drove Copelyn’s car and took Copelyn to and from work every day. Appellant also taught Copelyn’s son to drive a manual transmission. Appellant’s neighbor, Pat Roman, told Proctor that Appellant kept his yard very clean. Appellant won an award from the city because his yard was so well-maintained.

Lay witnesses provided additional testimony relevant to Appellant’s self-direction and social interpersonal functioning. For example, Copelyn testified that when Appellant lived with her, he washed and ironed clothes and kept the house “immaculate.” He also grilled and cooked food. He prepared balanced meals. He baked cookies and cakes from box mixes. Similarly, Copelyn’s friend, Christina Camp, testified that while Appellant was a guest in her house, he was “very clean” and helped with the groceries and cooking. Appellant’s former girlfriend, Charisma Green, recalled that Appellant was a good cook and could handle money.

Leggett testified that when he first met Appellant through Copelyn, Appellant was fairly quiet but also a good conversationalist. Appellant seemed genuinely interested in what Leggett had to say, and he responded appropriately. After they had known each other for a couple of months, Appellant would call Leggett on the telephone to talk or to ask him if he wanted to go fishing. They would see each other two or three times a week. Appellant would go out to watch Leggett’s band perform and they would go fishing together.

Leggett stated that he sometimes called Appellant on the telephone following arguments with his wife. Leggett explained that he and his wife went through a period of arguing more than usual because Leggett was “on a short fuse” following his service in Iraq and he and his wife had recently lost a child. When Leggett called Appellant, Appellant would go to Leggett’s house to help calm him down and remove him from the situation.

Appellant counseled Leggett not to lose his temper or “risk a domestic violence situation” that could get him into legal trouble and jeopardize his family and livelihood. Leggett testified that Appellant had a good relationship with Leggett’s children. Appellant sometimes babysat them or took them fishing and they were happy to spend time with him. Leggett also testified that Appellant had a good relationship with Janiesha, who was the youngest daughter of Appellant’s sister, Jackie. Appellant took Janiesha to father- daughter functions at her school and sometimes he picked her up from Jackie’s house on the weekends. Copelyn testified that Appellant maintained a good relationship with Jackie because he wanted to see Janiesha, and he took good care of Janiesha when she visited them.

In addition, Copelyn and Leggett each testified that they trusted Appellant to babysit their children. They thought that Appellant would be able to handle an emergency situation if anything went wrong while he was taking care of the children. Appellant’s former employer, Smith, testified that his two grandchildren were very fond of Appellant. They would stay outside and talk with Appellant while he worked on Smith’s property. Once when the children’s parents were unable to attend a school function, Appellant attended instead.

Appellant’s former neighbor, Kim Galindo, testified that she met Appellant when they lived in the same apartment complex in 2004 or 2005. At that time, Galindo and Appellant were both around forty years old. Galindo was in graduate school. Galindo never went to Appellant’s apartment, but she understood that Appellant was living with his girlfriend.

Galindo would see Appellant outside and they chatted as neighbors. They occasionally took walks or went to a coffee shop together. These outings were generally spur-of-the-moment; Galindo would see Appellant and invite him to join her. Sometimes Galindo’s graduate student friends would join them. If Galindo and her friends discussed international politics or their dissertation research, Appellant would “sit back quietly” because those conversations went over his head. Galindo testified that Appellant was easy to talk to, but they conversed about only a few subjects. They usually talked about what was going on in their lives.

Galindo testified that she continued to see Appellant occasionally at the coffee shop after he left the apartment complex and moved in with a new girlfriend. Appellant talked to Galindo about problems he had getting along with his girlfriend’s children. Galindo once told him that he needed to control his temper with his girlfriend. Appellant responded “like a reprimanded child”; he agreed that he needed to work on controlling his temper and he did not try to defend himself.

Galindo testified that she never saw Appellant lose his temper, but she acknowledged that she never saw him in a situation where he was provoked. In addition, she never saw Appellant take on a leadership role; he would go along with whatever she wanted to do. Galindo observed that Appellant was able to handle himself socially, but he always lived with a girlfriend who “helped him out.” Galindo was not sure whether Appellant was capable of living independently. He seemed to rely on others for direction; Galindo once helped him get a short-term job distributing flyers. Galindo received a few letters from Appellant after she completed her graduate work and left College Station in 2007.

Concerning the social interpersonal domain, Dr. Cunningham noted that Appellant was “competitive with” Copelyn’s children. He acted like “another kid in the house.” He did not mind if Copelyn spent money on herself, but he did not want her to spend money on her kids. Appellant was possessive, insisted on accompanying Copelyn everywhere, and expressed abandonment anxiety. Appellant seemed unaware that his clingy behavior was likely to drive Copelyn away. Copelyn reported to Cunningham that when Appellant was frustrated with her or one of the children at home, he would sit in front of whoever he was mad at and yell continuously for four to five hours, saying the same thing over and over again. Cunningham opined that this behavior indicated a failure in self control and emotional regulation, an inability to read feedback, and an inability to foresee that such behavior was likely to drive others away.

Cunningham testified that Appellant’s employment records also reflected recurrent interpersonal conflicts. Appellant’s criminal records likewise reflected a recurrent difficulty in dealing with anxiety, frustration, and conflict in romantic and step-family relationships. Appellant’s prison and jail records also reflected interpersonal difficulties with other inmates and staff. Specifically, these records reflected that Appellant was sometimes obstinate, argumentative, and bullying.

Cunningham acknowledged that, for a person with a higher IQ, this type of behavior could be consistent with a pathological condition. However, he opined that for a person with an IQ of 70 who also exhibited other adaptive deficits, this behavior was less likely to be the result of a disturbed personality and more likely to be the product of intellectual limitations. Therefore, he concluded, Appellant demonstrated significant or substantial deficits in the social interpersonal domain that were related to his subaverage intellectual functioning.

On the other hand, Proctor testified that Appellant’s functioning in the domain of social interpersonal skills was a “mixed bag.” He noted that Appellant had a lot of friends and was outgoing, but that Appellant also had a history of disagreements and arguments with people. In light of Appellant’s strengths in this domain, Proctor did not believe that Appellant’s social interpersonal problems were significant. Further, Proctor opined that Appellant’s problems were associated with personality issues, such as being controlling and demanding. Therefore, Proctor did not conclude that Appellant had significant deficits in this domain related to subaverage intellectual functioning.

3. Onset prior to eighteen

The record reflects that in 1981, when he was sixteen years old, Appellant obtained an IQ score of 65 on the WISC-R and was classified as “educable mentally handicapped” – a term that both Cunningham and Proctor described as equivalent to the term “mild mental retardation.” However, Proctor did not believe that a diagnosis of mild mental retardation was appropriate at the time of the offense. Cunningham and Proctor both testified that mild mental retardation is not necessarily a lifelong diagnosis and that a person can outgrow it or

develop through it in some cases. In addition, Proctor did not perceive that the results of the adaptive functioning testing administered in 1981 placed Appellant within the range of mental retardation, and he interpreted Appellant’s academic functioning as being consistent with borderline intellectual functioning.

4. Briseno factors

“There are other evidentiary factors which fact-finders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder.” See Briseno, 135 S.W.3d at 8-9.(17) Cunningham and Proctor both testified that these other factors are not part of the clinical diagnosis of mental retardation within the professional scientific community but that they may be considered by the fact finder in the criminal trial context. See, e.g., Sosa, 364 S.W.3d at 892 (“While we did not make consideration of any or all of these factors mandatory, they reflected our concern that the AAIDD’s guidelines should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in Atkins.”).

Cunningham noted that during Appellant’s developmental period, Appellant was diagnosed as mildly mentally retarded and placed into special education classes. Cunningham also stated that Appellant’s plans since he reached adulthood were “extraordinarily poorly formulated and reflect[ed] . . . judgment impulsivity.” Cunningham noted that no one ever described Appellant as a leader. Appellant might be a bully on occasion, but that was not the same as being a leader. Appellant did not lead anyone; he required a high degree of structure and instruction from other people. Cunningham stated that Appellant’s sister, Jackie, described him as gullible and easily manipulated. Proctor disagreed with this description. Based on his interactions with Appellant, Proctor opined that Appellant was skeptical and guarded.

Cunningham testified that Appellant was easily frustrated and engaged in recurrently irrational and inappropriate conduct toward employers, Copelyn, and her children. Cunningham noted that when he questioned Appellant, Appellant’s initial responses would be on point, but then Appellant would wander into unrelated matters until Cunningham redirected him back to the topic. Cunningham also observed that Appellant did not effectively hide facts or lie. For example, Appellant gave Copelyn implausible reasons for losing jobs—he lied, but not effectively.

Cunningham opined that Appellant’s conduct during the instant offense strongly suggested impulsivity, poor planning, and clumsy execution of purpose. Appellant had a witness drop him off at the victim’s apartment complex, he had no weapon, and he apparently did not anticipate Cameron’s interruption (although he previously had seen Cameron with Jennifer at the clinic). He did not succeed in killing Cameron.

Similarly, Cunningham opined that Appellant’s efforts to get rid of evidence were ineffective. Appellant left his cap and footprint at the scene. Appellant threw the trowel with Cameron’s blood on it into a trash can near the victim’s apartment. He washed his clothes but left blood on his shoes. He was still wearing shoes with blood on them when he was arrested the next day. After law enforcement officers knocked on the front door of his mother’s house, Appellant looked out the front window and disturbed the curtains. Then he hid in the bathroom, where officers found him. Appellant confessed to the offense within approximately twenty-four hours of his arrest.

Based on Appellant’s IQ test results, adaptive deficits, and classification of “educable mentally handicapped” at the age of sixteen, Cunningham concluded that Appellant is mildly mentally retarded and therefore ineligible for the death penalty. Cunningham testified that the other factors identified by this Court in Briseno supported this conclusion.

Unlike Cunningham, Proctor concluded that Appellant does not have significant adaptive deficits in any domain. Proctor found evidence of a personality disorder, not otherwise specified, with antisocial and paranoid personality traits. Proctor testified that there is evidence that Appellant meets each of the DSM-IV’s diagnostic criteria for antisocial personality disorder.18 See also Briseno, 135 S.W.3d at 13 n.52. Proctor concluded that Appellant’s adaptive deficits arise from Appellant’s personality as well as his borderline intellectual functioning.

Dr. Jolie Brams, a clinical psychologist, testified for the defense that Proctor incorrectly attributed Appellant’s adaptive deficits to personality issues. Brams stated that a person who is intellectually deficient has oddities of functioning that mimic a personality disorder but that actually reflect the person’s delayed or deficient intellectual functioning. She noted that “one of the hallmarks of intellectual deficiency are difficult, problematic interpersonal relationships.” The reason for such problems is that an adult with an intellectual deficiency does not possess the same communication skills, problem solving skills, judgment, confidence, and maturity as other adults. Therefore, Brams concluded, Appellant’s adaptive  deficits were fully consistent with subaverage intellectual functioning and it was improper to attribute them to a personality disorder.

Lay witnesses provided additional testimony regarding whether Appellant’s adaptive functioning was indicative of mental retardation. See Briseno, 135 S.W.3d at 8. For example, Jodi Piacente testified that she met Appellant through her boyfriend in 1990, when they lived in the same apartment complex. Piacente’s boyfriend knew Appellant because Appellant was the apartment complex’s “drug guy” who supplied him with marijuana. One night, Appellant broke into Piacente’s apartment. He tackled Piacente in her living room and tried to break her neck, but she escaped when Appellant became distracted by her seven-year-old son walking in and asking Appellant why he was trying to kill his mommy. As a result of this incident, Appellant was convicted of burglary. The prosecutor in the instant case argued that Appellant had learned from this incident that he should not leave witnesses who could testify against him.

Green, Appellant’s former girlfriend, testified that she met Appellant in late 2005, when his mother lived in Green’s apartment complex. Initially, Appellant seemed nice and outgoing. They were friends for a couple of months before Appellant moved in with Green. They used crack cocaine together. Appellant physically abused Green’s four-year-old daughter and would push Green away if she tried to intervene. After a month or two of such abuse, Green sent her daughter to live with her paternal grandmother. Appellant also hit and pushed Green. Appellant left Green in February 2007 when the lights in her apartment “got turned off.”

Copelyn testified that she was unaware that Appellant had been living with another girlfriend before he moved in with Copelyn in 2007. If Appellant was using illegal drugs during that time, he successfully hid that fact from Copelyn. Copelyn acknowledged that Appellant lied to her about the facts of his previous offense, and that he still had not told her the real facts of that offense. Copelyn also acknowledged that Appellant persuaded her “for a while” that he was not involved in the instant offense. She testified that Appellant had called her after her first day of testimony in the instant trial, ostensibly to see how she was doing. Copelyn stated that Appellant “could sweet talk anyone”; he could be very manipulative when he wanted something.

To summarize, the trial record contains substantial evidence that Appellant is mildly mentally retarded, but it also contains substantial evidence that Appellant is not mentally retarded. Under these circumstances, we defer to the fact finder. See Williams, 270 S.W.3d at 114; Briseno, 135 S.W.3d at 9. Based on Appellant’s 2012 IQ scores and witnesses’ testimony about his adaptive functioning as an adult, the jury could have reasonably found that Appellant’s IQ score of 65 and “educable mentally handicapped” classification in 1981 did not accurately reflect Appellant’s cognitive and adaptive functioning at the time of the offense in 2010. Cf. Cathey, 451 S.W.3d at 19 (noting that the relevant consideration for Eighth Amendment purposes is whether a person was mentally retarded during the developmental period and at the time of the offense). In addition, the jury reasonably could have found that any deficits in Appellant’s adaptive behavior were related to his personality and not necessarily to subaverage intellectual functioning. The jury was in the best position to make credibility determinations and evaluate conflicting evidence. See Hunter,243 S.W.3d at 671-72. On this record, the jury’s finding that Appellant is not mentally retarded is not so against the great weight and preponderance of the evidence as to be manifestly unjust. I would overrule Appellant’s eighth point of error.

MENTAL RETARDATION SPECIAL ISSUE

In point of error nine, Appellant asserts that the trial court erred by instructing the jury that, in deliberating on the mental retardation special issue, the jury “shall consider all the evidence admitted at both” phases of the trial, including evidence of Appellant’s background, character, or the circumstances of the offense that militate for or mitigate against the imposition of the death penalty. Appellant acknowledges that he did not object to this instruction. He argues, however, that the instruction constitutes egregious error because it tells jurors that they may view the evidence proving Appellant’s subaverage intellectual functioning as evidence that militates in favor of the death penalty. Appellant argues that, by informing the jury that it may consider evidence of mental retardation as evidence militating for the death penalty, this instruction “runs afoul of the gist of the United States Supreme Court[’s] ruling in Atkins,” and violates Appellant’s rights under the Eighth and Fourteenth Amendments.

Because Appellant failed to timely object to the instructions submitted to the jury, he must establish that these instructions were erroneous and that they “egregiously harmed” him. See Williams, 270 S.W.3d at 133. Harm is egregious if it deprives the Appellant of a fair and impartial trial. Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). The degree of harm must be assayed in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other relevant information revealed by the record of the trial as a whole. See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).

In this case, the entire jury charge concerning mental retardation was as follows:

The Defendant must prove Special Issue No. 3 submitted to you by a preponderance of the evidence, and you shall return a Special V erdict of “YES” or “NO” on Special Issue No. [3].

“Preponderance of the evidence” means the greater weight and degree of credible evidence, including testimony, that has been introduced in this case.

Special Issue No. 3 asks: “Is the Defendant mentally retarded as that term is defined herein.”

“Mental retardation” is defined as a disability characterized by: (1) significant subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.

“Sub-average general intellectual functioning” refers to measured intelligence on standardized psychometric instruments of two or more standard deviations below the age-group mean for the tests used.

“Adaptive behavior” means the effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person’s age and cultural group.

In deliberating on Special Issue No. 3, you shall consider all the evidence admitted at both the guilt or innocence phase of the trial and the punishment phase of the trial, including evidence of the defendant’s background, character, or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.

You may not answer Special Issue No. 3 “YES” unless you agree unanimously. You may not answer Special Issue No. 3 “NO” unless you agree unanimously.

You are further instructed that you are not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling in considering all of the evidence before you and in answering Special Issue No. 3.

Special Issue Number 3 on the verdict form asked, “Do you find from a preponderance of the evidence that the Defendant is mentally retarded as that term is defined herein?” The jury unanimously answered this special issue in the negative.

Assuming arguendo that the complained-of portion of the jury instruction was erroneous,19 it did not egregiously harm Appellant. The state of the evidence relevant to this issue, including the contested issues and weight of probative evidence, is described in point of error eight. Appellant received a full and fair hearing of his mental retardation claim. See Williams, 270 S.W.3d at 132. Further, the State did not argue that Appellant’s subaverage intellectual functioning increased Appellant’s future dangerousness or otherwise constituted an aggravating factor. The jury instruction and form correctly informed jurors that if they determined that Appellant proved mental retardation by a preponderance of the evidence, then they should answer the mental retardation special issue affirmatively. Contrary to Appellant’s reading, the instruction did not invite jurors to answer the mental retardation special issue in the negative if they found that Appellant had proven mental retardation by a preponderance of the evidence but also believed that Appellant’s mental retardation evidence militated in favor of the death penalty. On this record, I would not conclude that Appellant was deprived of a fair determination of the mental retardation special issue or that he was egregiously harmed by the jury instruction. See id. at 134. I would overrule point of error nine. ARTICLE 37.071

In points of error ten and eleven, Appellant asserts that the trial court erred in denying his motions to hold Article 37.071 unconstitutional. In point of error ten, Appellant asserts that Article 37.071, sections 2(e) and 2(f), are unconstitutional because they impermissibly shift the burden of proof on mitigation to the defendant. In point of error eleven, Appellant asserts that Article 37.071, section 2(f), is unconstitutional because it limits mitigating evidence to evidence that reduces a defendant’s blameworthiness. He acknowledges that we have rejected similar claims. See, e.g., Davis v. State, 313 S.W.3d 317, 355 (Tex. Crim. App. 2010); Coble v. State, 330 S.W.3d 253, 296 (Tex. Crim. App. 2010). I am not persuaded that we need to reconsider our previous decisions. I would overrule points of error ten and eleven.

Accordingly, I would affirm the judgment of the trial court. Because the Court does not, I respectfully dissent.

1 I will refer to Jennifer Hailey and other members of the Hailey family by their first names.

2 Appellant’s conduct fits within the statutory definitions of “restraint” and “abduction” as those terms have been authoritatively construed by this Court, which were submitted to the jury in this case. The jury was authorized to convict Appellant of capital murder or, failing that, the lesser included offense of murder. The jury convicted Appellant of the greater offense, which establishes that it was persuaded beyond a reasonable doubt that Appellant’s conduct satisfied the statutory criteria for conviction for capital murder, including the kidnapping element.

3 The Court has no occasion to decide whether the investigator’s testimony here constituted objectionable hearsay, since Appellant did not object on that basis at trial. Unobjected-to hearsay has probative value. TEX. R. CR. EVID. 802; Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Furthermore, even had the investigator’s testimony been erroneously admitted over an objection, the Court would still take it into account in our its sufficiency analysis. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).

5 O’Pry v. State, 642 S.W.2d 748, 761-63 (Tex. Crim. App. 1982) (Opinion on reh’g); Autry v. State, 626 S.W.2d 758, 762-63 (Tex. Crim. App. 1982); Cannon v. State, 691 S.W.2d 664, 675 (Tex. Crim. App. 1985).

6 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED, at 812 (2002).

7 The Penal Code does not define the phrase “in furtherance of.” The word “furtherance” has been defined to mean (reminiscent of “facilitate”) “a helping forward: ADVANCEMENT, PROMOTION.”WEBSTER’STHIRDNEWINTERNATIONALDICTIONARYOFTHEENGLISHLANGUAGE UNABRIDGED, at 924 (2002). Black’s defines “furtherance” to mean “[t]he act or process of facilitating the progress of something or of making it more likely to occur; promotion or advancement.” BLACK’S LAW DICTIONARY, at 790 (10th ed. 2009). See Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008) (recognizing a similar dictionary definition of “furtherance” for felony murder purposes). Cf. TEX. PENAL CODE § 7.02(b) (assigning party liability to an actor who was a member of a conspiracy for the felonious conduct of another actor so long as that other actor’s conduct was, among other things, “in furtherance of” the conspiracy—i.e., the other actor’s conduct advanced, promoted or facilitated the conspiracy).

8 A murder committed “during the same transaction” as a predicate felony would presumably not even require that the intent to commit the predicate felony be formulated at or before the time the murder was committed, so long as both offenses occurred “in a continuous and uninterrupted chain of conduct occurring over a very short period of time” or “in a rapid sequence of unbroken events.” Coble v. State, 871 S.W.2d 192, 197-99 (Tex. Crim. App. 1993); Rios v. State, 846 S.W.2d 310, 314 (Tex. Crim. App. 1992).

9 To illustrate: Suppose an arsonist who was about to set the blaze to destroy his warehouse for purposes of fraudulently collecting insurance proceeds unexpectedly encountered the night watchman and intentionally killed him. This would certainly constitute a capital murder, since killing the watchman may have been necessary to the arsonist’s purpose. Under these circumstances, the murder certainly “facilitated” the arson. But there is no reason to suppose that the Legislature intended to limit the concept of murder “in the course of” committing arson to such a scenario. Suppose the watchman was inside the warehouse, and the arsonist set the blaze for the purpose of collecting the insurance proceeds, but also, he incidentally intended to kill the watchman whom he happened to dislike for reasons quite apart from his motive for setting the blaze. Such an intentional murder would hardly facilitate the arson. And yet, it is hard to accept that the Legislature might have intended for the first hypothetical to encompass capital murder, but not the second. Nothing about the phrase “in the course of committing” forces us to incorporate the “facilitation” concept to rule out capital murder in our second hypothetical.

10 The Supreme Court in Atkins employed the term “mental retardation.” See Atkins v. Virginia, 536 U.S. 304, 321 (2002). More recently, the Supreme Court has used the term “intellectual disability” to describe the identical condition. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). In this opinion, I will employ the term “mental retardation” because that term is used by the parties and by the legal authorities cited herein, and it is also the term that appears in the trial record. See, e.g., Ex parte Cathey, 451 S.W.3d 1, 4 n.4 (Tex. Crim. App. 2014).

11 This Court has observed the same fact, explaining that “mental retardation is not necessarily a lifelong disorder.” Ex parte Briseno, 135 S.W.3d 1, 6 (Tex. Crim. App. 2004) (quoting AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (Text Revision, 4th ed. 2000) (DSM-IV)).

12 The AAIDD was formerly named the American Association on Mental Retardation.

13 This appears to be the same Professor James Flynn whom we discussed at length in Ex parte Cathey, 451 S.W.3d 1, 12-18 (Tex. Crim. App. 2014).

14 Cunningham identified those domains as communication, self-care, home living, social/ interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. See also Atkins, 536 U.S. at 309 n.3.

15 The ABAS-II assesses adaptive behavior by scoring answers supplied by so-called “informants”—usually those who are familiar with the subject, such as nuclear and extended family, teachers, employers, etc.—to questions designed to gauge the subject’s adaptive abilities. I will refer to members of the Griffin family by their first names.

16 In Ex parte Cathey, 451 S.W.3d at 18, we specifically determined that, in assessing mental retardation for purposes of determining immunity from execution in Texas, the Flynn Effect may be considered, but IQ scores themselves “may not be changed.”

17 These factors are:

Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, authorities – think he was mentally retarded at that time, and, if so, act in accordance with that determination?

Has the person formulated plans and carried them through or is his conduct impulsive?

Does his conduct show leadership or does it show that he is led around by others?

Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?

Can the person hide facts or lie effectively in his own or others’ interests?

Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

See Williams, 270 S.W.3d at 114 (citing Briseno, 135 S.W.3d at 8).

18 Proctor identified these criteria: (1) failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest; (2) deceitfulness as indicated by repeated lying, use of aliases or conning others for personal profit or pleasure; (3) impulsivity or failure to plan ahead; (4) irritability and aggressiveness as indicated by repeated physical fights or assaults; (5) reckless disregard for safety of self or others; (6) consistent irresponsibility as indicated by repeated failure to sustain consistent work behavior or honor financial obligations; and (7) lack of remorse as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.

19 Article 37.071, Section 2(d)(1), explicitly requires the trial court to give an instruction to the jury that, “in deliberating on the issues submitted under Subsection (b) of this article, it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant’s background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty[.]” (Emphasis added.) But nowhere does Article 37.071 itself explicitly authorize an instruction with respect to mental retardation at all, much less does it require the trial court to instruct the jury to consider all guilt and punishment stage evidence in making the mental retardation determination. This is not necessarily to say that a trial court would err to give such an instruction as part of an extra-statutory, constitutionally required mental retardation special issue instruction. I would not decide that question today. I would remark only that such an instruction, if it is required, would best be tailored explicitly to the mental retardation issue, such that it directed the jury to consider all evidence from both stages of trial in determining whether it “militates for or mitigates against” a finding of mental retardation—not whether it “militates for or mitigates against” imposition of the death penalty in a more generalized sense. Here, the trial court embedded within the mental retardation special issue an instruction that the jury must consider all the evidence from both stages of trial to decide whether it “militates for or mitigation against the imposition of the death penalty.” For the reasons given in the text, I would hold that this instruction, if error, was not egregiously harmful.

FILED: January 27, 2016 PUBLISH

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

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IAC, Plea Bargains, and Recusal: Israel Ytuarte Rodriguez v. State of Texas; PD-0278-14

Ineffective Assistance of Counsel & Trial Court Recusal:  The defendant in this case sought to have a 10 year TDCJ-ID plea offer reinstated and accepted by the trial court.  Defendant’s trial counsel failed properly advise him of the possible consequences of the plea, and the court found that the State would most likely not have withdrawn their offer, so the offer was reinstated.  The defendant sought recusal of the original judge on the grounds that the judge was biased for having heard the trial.  Another judge heard the plea bargain proceedings, and rejected the 10 years proposed plea bargain.  The Court of Criminal Appeals found that the original judge was not biased for having heard the facts of the case at trial AND that it was not error for the replacement judge to refuse to accept the 10 year imprisonment plea bargain.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD–0278–14

ISRAEL YTUARTE RODRIGUEZ, Appellant v.
THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY

MEYERS, J., announced the judgment of the Court and delivered an opinion in which ALCALA, RICHARDSON, and NEWELL, JJ., joined. KELLER, P.J., and JOHNSON, KEASLER, and HERVEY, JJ., concurred. YEARY, J., did not participate.

OPINION

Appellant was charged with ten counts of sexual assault of a child and indecency with a child. Based on the advice of his counsel, he declined the State’s plea bargain recommending a ten-year sentence and proceeded to trial. The jury found Appellant guilty and assessed a punishment of eight life sentences and one twenty-year sentence. He filed a motion for new trial claiming ineffective assistance of counsel. The trial judge granted the motion for new trial and motion to require the State to reinstate the plea- bargain offer of ten years. The State reinstated the plea offer, and Appellant accepted it. After admonishing Appellant and accepting his stipulations of guilt, the trial judge rejected the plea agreement and advised Appellant that he could withdraw his guilty plea and go to trial or accept a 25-year sentence. Appellant rejected the 25-year sentence and moved to recuse the trial judge on the basis of demonstrated prejudice. The judge voluntarily recused herself, and a new judge was assigned to the case. Appellant filed another motion to require the State to re-offer the ten-year deal. The new judge declared that the slate was wiped clean by the original judge’s recusal but that she would accept a new agreement if one were reached. The State offered a plea deal of 25 years and Appellant accepted, pleading guilty to five of the counts in exchange for the waiver of the other five counts. The judge accepted the deal and signed the judgments of conviction.

COURT OF APPEALS

Appellant appealed, claiming that he was entitled to a ten-year plea-bargain offer from the State and that the trial court was required to accept the ten-year plea agreement. To determine whether Appellant was prejudiced by his counsel’s deficient performance, the court of appeals considered whether Appellant would have accepted the original plea deal had he been given competent advice by counsel, whether the State was likely to withdraw the plea bargain, and whether the trial court was likely to accept the plea bargain. Rodriguez v. State, 424 S.W.3d 155 (Tex. App.–San Antonio 2013).

Concluding that Appellant was indeed prejudiced, the court of appeals determined that the proper remedy was to require the State to reoffer the ten-year plea bargain and to have the agreement presented to a judge who had not recused herself. Id. at 163. The court of appeals disagreed with Appellant that he was entitled to specific performance of the plea agreement and stated that the new judge had the discretion to accept or reject the agreement. Id. The court of appeals reversed the judgment of the trial court and remanded the case with instructions for the State to re-offer the ten-year plea bargain. Id. at 164.

The State filed a petition for discretionary review, which we granted to consider the following grounds for review:

1. Did the court of appeals err by considering the original trial judge’s voluntary recusal?

2. Did the court of appeals err by concluding that there was a reasonable probability that the original trial judge would have accepted the original ten- year plea bargain?

3. Did the court of appeals err by concluding that the second trial judge was required to order the State to reoffer the ten-year plea bargain a second time?

4. Was the court of appeals correct to reverse the trial court’s judgment as to conviction and sentence? Or should the court of appeals have only reversed the trial court’s judgment as to sentence?

The State argues that the conclusions of the court of appeals regarding the original judge’s recusal are unsound and affected the court’s analysis. The State says that there is nothing in the record demonstrating the judge’s bias in this case and Appellant’s motion to recuse did not allege any facts to support an allegation of bias. The State notes that although the judge rejected the ten-year plea bargain, she was within her discretion to do so. The State argues that a voluntary recusal, in and of itself, cannot be considered as evidence to support a claim under Lafler v. Cooper, 132 S.Ct. 1376 (2012) or Missouri v. Frye, 132 S.Ct. 1399 (2012).

The State contends that the court of appeals’s conclusion that there was a reasonable probability that the original trial judge would have accepted the ten-year plea agreement was based on a misreading of Frye and the assumption that the trial judge was biased. According to the State, the court of appeals’s reading of Frye conflicts with our holding in Ex parte Argent, 393 S.W.3d 781 (2013). The State asserts that, under the court of appeals’s reasoning, the defendant has carried his burden of showing prejudice unless the State proves that the trial court would have rejected the plea bargain. The State says the record shows that both trial judges reviewed the case and the applicable law before denying Appellant’s request for a ten-year sentence. And, because there is no evidence that the trial judge would have accepted the ten-year plea bargain, Appellant did not show prejudice.

Finally, the State argues that, even if the trial court erred, under Lafler, Appellant is entitled only to reconsideration of his sentence. Appellant has entered two voluntary guilty pleas, and his guilt is not in question. Because both of the bargained-for sentences were within the allowed range of punishment, the court of appeals should have affirmed Appellant’s convictions and remanded the case for the trial judge to determine the proper sentence.

Appellant argues that, in analyzing claims of ineffective assistance of counsel, a reviewing court should consider the entire record and review the claim under the totality of the circumstances. Thus, the court of appeals properly considered the recusal of the first judge. Appellant says that the court of appeals also properly followed our mandate in Argent and found that there was a reasonable probability that the trial court would not have rejected the plea agreement. Appellant argues that the State’s proposed analysis would require direct testimony from the trial court on what it would have done in a particular scenario, which is not the burden of proof contemplated by Strickland v. Washington, 104 S.Ct. 2025 (1984). Appellant states that the court of appeals’s remedy does nothing more than place him back in the position he was in prior to his misadvised rejection of a ten-year plea-bargain offer. This remedy neutralizes the taint of the Sixth Amendment violation and is consistent with the relief afforded the petitioner in Lafler. Finally, Appellant argues that the State’s assertion that he is entitled only to a new sentencing hearing fails to neutralize the taint of the constitutional violation.

CASELAW

In Frye, defense counsel failed to inform the defendant that the prosecution had made two plea bargain offers–one to plead guilty to a felony with 10 days in jail, and a second to plead guilty to a misdemeanor with a recommended 90-day sentence. The offers expired without Frye’s knowledge, and he subsequently pleaded guilty with no

underlying plea agreement and was sentenced to three years in prison. The Supreme Court noted that the negotiation of a plea bargain is a critical point and defense counsel have the responsibility to provide adequate assistance at this stage. Frye, 132 S.Ct. at 1407-08. The Court applied the Strickland standard and stated:

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

Id. at 1409. Determining that Frye had shown that he would have accepted the plea offer had he known about it, the Supreme Court remanded the case to the court of appeals to consider whether the agreement would have been adhered to by the prosecution and accepted by the trial court. Id. at 1411.

The same day as the Frye decision, the Supreme Court considered Lafler v. Cooper. In Lafler, counsel did inform the defendant of the plea bargain offered by the State, but counsel advised the defendant to reject the favorable offer. The defendant followed his counsel’s advice and rejected the deal, went to trial, and was convicted by a jury. The sentence returned by the jury was harsher than the one recommended by the State in the plea offer. The Supreme Court reiterated that, to show prejudice in such

circumstances, a defendant must show that, but for counsel’s ineffective advice, there is a reasonable probability that the defendant would have accepted the plea offer, that the prosecution would not have withdrawn it, that the court would have accepted its terms, and that the conviction or sentence would have been less severe under the offer’s terms than under the judgment and sentence that were, in fact, imposed. Lafler, 132 S.Ct. at 1385. The Court stated that when a defendant has shown prejudice, the appropriate remedy depends upon whether resentencing alone will fully redress the constitutional injury. If not, the proper way “to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” Id. at 1389. Specifically, the Court in Lafler decided that the proper remedy was to order the State to reoffer the plea agreement and if the defendant accepted the offer, the “trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondant pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.” Id. at 1391.

As the Supreme Court noted in Frye, courts must consider whether state law grants trial judges the discretion to refuse a plea. Texas Code of Criminal Procedure Article 26.13(a)(2) states:

Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of the fact that the recommendation of: the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of a plea bargain agreement between the state and the defendant and, if an agreement exists, the court shall inform the defendant whether it will follow or reject the agreement in open court and before any finding on the plea. Should the court reject the agreement, the defendant shall be permitted to withdraw the defendant’s plea of guilty or nolo contendere.

Thus Texas law provides trial judges with broad discretion even when there is a plea agreement between the State and the defendant.

In Ex parte Argent we considered whether to adopt Lafler and Frye’s more demanding standard for determining prejudice from ineffective assistance during the plea bargaining process. 393 S.W.3d 781. We followed Lafler and Frye and held that, to establish prejudice due to counsel’s ineffective assistance in the context of pretrial plea negotiations, a defendant must show a reasonable probability that he would have accepted the original offer if counsel had not given ineffective assistance, that the State would not have withdrawn the offer, and that the trial court would have accepted the plea bargain. Id. at 784.

ANALYSIS

First, we note that, in both Lafler and Frye, the defendants received fair trials with ineffective assistance only in the pretrial plea-bargaining process. In the case before us, a new trial was granted in the interest of justice because it was apparent to the trial judge “that not all of [trial counsel’s] decisions were trial strategy and that some of them may have not been correct assessments of either the case and/or the law.” When a new trial was ordered, the convictions from the first trial were vacated and the case was restored to the pretrial position.1 While this case is distinguishable from Lafler and Frye, Appellant was still entitled to a determination of whether he was prejudiced by his counsel’s ineffective assistance during the initial plea bargaining process. We agree with the court of appeals that he was. Appellant likely would have accepted the ten-year plea deal had he received competent advice of counsel.2 The State likely would not have withdrawn the plea because the record shows that there may have been difficulties getting the victims to testify at the time of trial.3 The only question is whether there is a reasonable probability that the original trial judge would have accepted the ten-year plea agreement when it was initially offered, prior to the trial. While there were no intervening circumstances that would have given the trial court reason to reject the agreement, the trial judge would have had Appellant’s lengthy criminal history and extensive police reports for the charged offenses to consider. Despite this evidence against Appellant, there is nothing in the record to indicate that the trial judge would have rejected the agreement had it been presented to her prior to the trial. In answer to the State’s second ground for review, the court of appeals did not err in concluding that there was a reasonable probability that the trial judge would have accepted the plea agreement.

Because Appellant was prejudiced by counsel’s ineffective assistance in pre-trial plea bargaining, the first trial judge followed the remedy outlined in Lafler and ordered the State to reoffer the ten-year plea. However, despite the direction from Lafler and Frye, she did not have the option to leave the convictions from trial undisturbed because the convictions had already been vacated by the granting of a new trial. Thus, the trial judge’s only choices were the same as they would be had the trial never occurred: to follow the prosecution’s sentencing recommendation or to reject the agreement and allow the defendant to withdraw his plea. See CODE CRIM. PROC. § 26.13(a)(2). She exercised her discretion to reject the ten-year sentence and allowed Appellant to either accept a sentence of 25 years or to withdraw his guilty plea and go to trial.4 When rejecting the reinstated plea agreement the judge stated, “I, of course, have had the opportunity to look at the evidence, but I have also sat through the evidence. And having done both, Mr. Rodriguez, I’m going to give you the opportunity, if you so wish, to withdraw your guilty plea. I am not going to take the plea bargain that’s been outlined.” Appellant withdrew his guilty plea, and the case was set for trial the following day.

Appellant filed a motion to recuse the trial judge, which stated that “The Judge granted Defense motion to require state to reinstate plea bargain offer of 10 years and thereafter rejected the plea bargain.” Appellant said in his motion that this demonstrated prejudice against him and the judge must be removed from the case and a new hearing on his motion to reinstate the plea bargain offer must be held before an impartial court.

Rule of Civil Procedure 18a provides that when a motion to recuse a judge is filed, the judge must either sign an order of recusal or sign an order referring the motion to the regional presiding judge. Because the administrative judge who would have heard the defense motion was out of town, the trial judge voluntarily recused herself for “judicial efficiency so this case can move on.” She stated:

I am not acknowledging a single thing in that motion. There is nothing in that motion that I think is true. There’s nothing in that motion that I would support. And I am in no way conceding anything that is in that motion. What I am saying is that there’s a court available to try this case next week. This is a five-year-old case that needs to be tried. And frankly the ability that we have had for the past two hours to ascertain whether or not the fourth region administrative judge is available to hear this so it can be fought in an actual courtroom is not happening right now. And so rather than postpone it for three or four, or five more days for me to get up to say basically what I’m saying right now, I think is not in the best interest of time. And I think it just delays the case three, four, five, six–ten more days. Let’s be very clear. There is no concession on that motion. I’m simply voluntarily agreeing that if this case is going to be heard in the next few days, it should be heard by someone else.

The case was then reassigned to a new judge.
In its first ground for review, the State asks us whether the court of appeals erred in considering the trial judge’s voluntary recusal. The court of appeals considered the recusal in determining whether there was a reasonable probability that the trial judge would have accepted the plea agreement if it had been presented to her before trial. As stated above, we agree with the court of appeals’s conclusion that the trial judge likely would have accepted the plea agreement prior to the trial. However, the court of appeals did err in assuming that the original trial judge had recused herself on the basis of prejudice. The court stated that “The degree of speculation demanded by this review is exacerbated in a case where the judge voluntarily recuses herself, seemingly on the basis of prejudice.” Rodriguez, 424 S.W.3d at 161. There is nothing in the record indicating prejudice on the part of the original trial judge. She was within her discretion to reject the State’s ten-year sentence and offer instead a 25-year sentence, which is still at the low range for the charged offenses. See supra note 4. Appellant’s motion to recuse did not state any basis for prejudice on the part of the trial judge other than that she had granted his motion for the State to reoffer the ten-year plea deal and then rejected the plea deal. As we stated in Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim. App. 2011), “recusal is not required when based solely on judicial rulings, remarks, or actions.” Even the trial judge’s comment that she was rejecting the plea agreement in part because she “sat through the evidence” at trial is not a basis for finding that the judge was prejudiced against Appellant. The Supreme Court stated that “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. US, 510 U.S. 540 (1994). The court of appeals erred in holding that Appellant was entitled to have the original plea agreement presented to a trial judge who had not recused herself.

Appellant said in his motion to recuse the trial judge that her rejection of the plea agreement demonstrated prejudice against him and that a new hearing on his motion to reinstate the plea-bargain offer must be held before an impartial court. Although the trial judge’s ruling did not demonstrate bias against him, Appellant still got what he asked for. After the trial judge’s voluntary recusal, the second judge held a new hearing on Appellant’s motion to reinstate the plea-bargain offer. She noted that the original judge had voluntarily agreed to recuse herself and stated, “Now, when that happens, everything, the slate is wiped clean. That means that a new judge, myself in this case, has two options: one, to accept a plea bargain agreement if it is offered and accept[ed] or go to trial.” We agree. Upon recusal of the trial judge and assignment of the new judge, the case started over from the beginning, and it was as if no plea negotiations had ever occurred. The court of appeals erred by concluding that the second judge was required to order the State to reoffer the ten-year plea bargain a second time and thus the State’s third ground for review is sustained.

Because we hold that the trial court [sic] erred in reversing the trial court’s judgment, we need not reach the State’s fourth ground for review.

CONCLUSION

Appellant received everything he requested in this case: the trial judge granted his motion for new trial, granted his motion to require the State to reoffer the most favorable plea deal, and then recused herself so that a new judge could hear the case. The new judge was not required to give Appellant what the previous judge, whom he sought to recuse, had already given him.

We reverse the decision of the court of appeals. The slate was wiped clean upon the recusal of the original trial judge and the court was entitled to start anew. The 25-year sentence that was offered by the State, agreed to by Appellant, and accepted by the trial court is reinstated.

1 Rule of Appellate Procedure 21.9(b) says, “Granting a new trial restores the case to its position before the former trial, including, at any party’s option, arraignment or pretrial proceedings initiated by that party.”

2 The record does indicate that the State made the initial plea offers during the time Appellant was represented by his original attorneys. It is unclear whether the offers were relayed to Appellant and those attorneys were subsequently replaced by Appellant’s trial counsel.

3 At hearings after Appellant was granted a new trial, the prosecutor from the first trial stated that she had made the ten-year plea offer because the victims were “going through a whole lot of things personally” at the time the offer was made and she was not sure about their ability to testify. She stated that, as the years progressed and the trial began, “The girls were able to begin to deal with a lot of their issues. They were maturing. They were going through therapy, and there was a lot of healing that was going on in their family situation. And they were a lot more capable of sharing what had happened to them during the years when they had been involved with the defendant.”

4 As a repeat offender, Appellant was eligible for punishment from five to 99 years or life. Even after five of the counts were dropped by the State in exchange for a guilty plea, the judge could have chosen to make Appellant’s sentences run consecutively. See TEX. PENAL CODE Section 3.03(b)(2)(B) (stating that, even if a plea agreement has been reached between the State and the defendant, a trial court has the discretion to order the sentences to run consecutively when a defendant is found guilty of more than one offense of child sexual assault and indecency with a child arising out of the same criminal episode). Thus, the judge in this case had a great deal of discretion in sentencing Appellant even though the State had agreed to a sentencing recommendation and to drop half of the charges against Appellant.

Delivered: September 23, 2015 Publish

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.Text of original opinion available here: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=fdf291c5-2895-4b07-b9d0-0e2af79bf8fd&coa=coscca&DT=OPINION&MediaID=e6ed5ea6-f39d-4fdd-a1d3-67d9729f81cb

Confrontation and Forensic Analysis: Jovany Paredes v. State; NO. PD-1043-14

Confrontation and Forensic Analysis:   The Court of Criminal Appeals held that a defendant in a criminal case may not have a confrontation right to cross-examine a lab analyst who conducts an analysis to create raw data.  The Court noted in making its finding that the testifying expert in this matter formed their own opinion based on data obtained by an analyst and was not acting as a surrogate of another expert to testify about another witness’s findings.

97856704323

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-1043-14

JOVANY PAREDES, Appellant v.
THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

NEWELL, J., delivered the opinion of the unanimous Court.

OPINION

Does the admission of a supervising DNA analyst’s opinion regarding a DNA match violate the Confrontation Clause when that opinion is based upon computer-generated data obtained through batch DNA testing? Neither this Court nor the United States Supreme Court has squarely answered this question. In this case, we hold that it does not. Consequently, we affirm the court of appeals’s holding that the admission of the supervising analyst’s testimony did not violate the Confrontation Clause.

Facts

Appellant, a member of the Houston-area SPPL street gang, gathered a group of gang members and entered the apartment of Rafael Sanchez Cantu and Abelardo Sanchez to attempt to steal money and drugs from the two men. In the course of the robbery, both Cantu and Sanchez were shot and killed. Appellant gave a fellow gang member, Jessica Perez, the T-shirt he had worn during the crime and asked her to wash it. She did not. Instead, she informed the police who then recovered the shirt from Perez and sent it to Identigene, a private forensic laboratory, for DNA testing. DNA testing of a bloodstain on appellant’s shirt matched one of the victims.1

At trial, the State called Robin Freeman, the forensic-laboratory director for Identigene, to testify about the DNA analyses in appellant’s case. Freeman testified that DNA testing is conducted in an assembly-line batch process. A different laboratory analyst conducts each step of the DNA testing in order to generate raw DNA data. One analyst applies chemicals to the biological sample to isolate the DNA in the cells. A second analyst then determines the amount of DNA present. A third analyst copies the DNA sequence and loads the data onto the capillary electrophoresis instrument that yields a DNA graph–the raw data–that can be used to compare the produced DNA profile to other evidence. Finally, an analyst takes that graph and uses it to determine whether the DNA profile obtained from the testing matches the DNA profile of a known individual, in this case the victim.

Freeman testified that the batch process in this case was conducted by three different analysts and that she supervised the proceedings and conducted the final analysis–comparing the produced DNA profiles to the evidence and determining a match:

[Defense counsel:] With regard to what you’re about to testify to, did you conduct these tests yourself?

[Freeman:] The testing is done in a batch process. So, we have technicians that would extract the samples and do the amplification portion of that. But I am qualified in those different areas, and I do the interpretation from the data they obtain.

[Defense counsel:] So that I’m clear, what you’re saying, basically, is that what you’re testifying to is what you are overseeing or, technically, supervising, but you didn’t conduct the test that you’re about to testify to yourself?

[Freeman:] I do the interpretation and the comparison of the D.N.A. profiles. I did not do the physical extraction process.

[Prosecutor:] And in this particular case, did you take their results from what they put the things through the instruments–the evidence through the instruments, applied the chemical reagents, extracted that D.N.A., that entire process; did you oversee that entire process in this case?

[Freeman:] Yes, in this case.

[Prosecutor:] And did you take their raw data and then compile it yourself and you personally do the analysis leading to your ultimate opinion?

[Freeman:] Yes, I do the comparison and interpretation.

Freeman acknowledged that she did not physically watch each of the three analysts conduct the DNA testing process, but she explained that Identigene has safety protocols to identify errors in the process. Freeman testified that if there were “a problem in the analysis, then what happens is you get no result as opposed to a wrong analysis.” The three analysts in this case provided Freeman with the raw data she used to determine that (1) the complainant’s DNA matched the DNA found in a stain on the T-shirt, and (2) scrapings from the collar of the T-shirt contained DNA from at least three contributors, and one was the major contributor.2

The State did not introduce into evidence any documents concerning the raw data that Freeman relied upon to perform her analysis, and none of the three analysts who conducted the batch process testified at trial. However, Freeman made clear that she was not testifying about someone else’s opinions because she was responsible for compiling the data generated by the various instruments and reaching the ultimate conclusion:

[Prosecutor:] But, then, am I to understand correctly that you took the results of those instruments or the readings that you got from various equipment in the lab, you compiled it, you looked at it, you compared it, you analyzed it and interpreted it?

[Freeman:] Right.

[Prosecutor:] Right. So, the ultimate opinion is yours?

[Freeman:] Correct. It’s my opinion.

[Prosecutor:] You’re not testifying for someone else. This is what you discovered, correct?

[Freeman:] Correct.

The record is unclear about whether Freeman herself created a report based on her opinions, but even if she did, the State did not admit any such report into evidence. The State offered only Freeman’s opinion testimony.

Appellant objected, arguing that he was entitled to cross-examine the people who actually conducted the testing on which the expert opinion was based. The State responded that Freeman’s analysis was the relevant testimony:

What these other people did was they took the evidence and they just put it through the instruments and they applied chemical reagents for it. She’s looking at all the data. She’s comparing the data. So, the only steps that she didn’t do is actually take the physical stuff, the evidence, and place it into the instruments and apply the chemical reagents that gave these scientific readings . . . . She’s comparing them. She’s analyzing them. She’s doing the interpretation. The final result is what’s coming before the jury.

The trial judge overruled appellant’s objection, and appellant was ultimately convicted of capital murder and sentenced to life in prison without the possibility of parole.

Appeal

The Fourteenth Court of Appeals affirmed, holding, among other things, that Freeman’s testimony did not violate the Confrontation Clause. Subsequently, this Court held in Burch v. State that the introduction of a lab report containing drug-test results violated the Confrontation Clause when the testifying witness explaining the report was merely a surrogate for the lab technician who had performed the test. 401 S.W.3d 634, 637 (Tex. Crim. App. 2013). Consequently, this Court granted appellant’s petition for discretionary review, vacated the court of appeals’ judgment, and remanded the case to allow the court of appeals the opportunity to consider Burch and its applicability to this case. Paredes v. State, No. PD-1420-11, 2013 WL 4507075 (Tex. Crim. App. Aug. 21, 2013) (per curiam) (not designated for publication).

On remand, the court of appeals again affirmed, distinguishing appellant’s case from both Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013) and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). As we observed, the testifying lab supervisor in Burch had no personal knowledge of the specific tests used to determine that the seized substance was cocaine as detailed in the lab report because she did not observe or perform any analysis. 401 S.W.3d at 635. Similarly, in Bullcoming, the United States Supreme Court considered both a certified lab report and testimony from an analyst who had not actually participated in or observed the testing of the defendant’s blood, though the analyst was familiar with a forensic lab’s blood-alcohol-content testing procedures. 131 S. Ct. at 2709.

But as the court of appeals observed in this case, Freeman had personal knowledge of the tests used, and she conducted the crucial analysis by comparing the DNA profiles and determining that the complainant’s DNA profile matched the DNA from the bloodstain on appellant’s T-shirt. Paredes v. State, 439 S.W.3d 522, 526 (Tex. App.–Houston [14th Dist.] 2014). The court of appeals further distinguished appellant’s case by noting that the raw DNA data was not found in a formal report and was not admitted into evidence. Id. at 527. Furthermore, the court of appeals held that the raw DNA data was not used as a substitute for out-of-court testimony, but rather it merely provided the basis for the opinion developed by Freeman. Id. Because appellant had the opportunity to cross-examine Freeman, the person who conducted the analysis linking him to the crime, the court of appeals held that appellant’s Confrontation Clause rights were satisfied. Id.

We granted appellant’s second petition for discretionary review to determine whether the Confrontation Clause should have precluded the admission of Freeman’s testimony when she relied on raw DNA data generated by non-testifying analysts to form her opinion.

Forensic Testing and the Confrontation Clause

The Confrontation Clause of the Sixth Amendment guarantees the accused the right to confront the witnesses against him. Pointer v. Texas, 380 U.S. 400, 403 (1965). The United States Supreme Court has applied this rule to “testimonial” statements and held that such statements are inadmissible at trial unless the witness who made them either takes the stand to be cross-examined or is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 54 (2004). In Crawford, the Supreme Court included in the class of testimonial statements those “that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 52; see also Burch, 401 S.W.3d at 636 (“While the exact contours of what is testimonial continue to be defined by the courts, such statements are formal and similar to trial testimony.”).

Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico

Since Crawford, the Supreme Court has considered the Confrontation Clause in three cases involving forensic reports. First, in Melendez-Diaz v. Massachusetts, the Court held that the admission into evidence of notarized “certificates of analysis” prepared by a state laboratory and listing the composition, quality, and weight of the narcotics at issue violated the Confrontation Clause. 557 U.S. 305, 309-11 (2009). The testing analysts did not testify at trial, and the defendant was not given any opportunity to cross-examine them. Id. The Supreme Court held that the certificates of analysis were testimonial because they were “functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.” Id. at 310-11 (internal quotation marks omitted). Therefore, the reports were inadmissible without the testimony of the analysts who performed the testing and prepared the reports. Id. at 311. Notably, however, the Court explicitly refused to hold in Melendez-Diaz that “anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Id. at 311 n.1.

The Supreme Court next addressed the applicability of the Confrontation Clause to the admission of forensic lab reports in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). In Bullcoming, the defendant was charged with driving while intoxicated, and the prosecutor introduced a lab report certifying that the defendant’s blood-alcohol content was above the limit for the New Mexico offense of aggravated DWI. Id. at 2709. The analyst who had tested the defendant’s blood and signed the report did not testify because he was on unpaid leave from the laboratory. Id. at 2711-712. Rather than call the analyst who had performed the testing, the prosecution called a different analyst, one who was familiar with general BAC testing procedures conducted at the lab, but who did not review the prior analyst’s work or sign the forensic report. Id. at 2712. The Supreme Court held that the lab report was testimonial and that the “surrogate testimony” given by the non-testing analyst explaining the report did not satisfy the defendant’s Confrontation Clause rights. Id. at 2715. The Court rejected the argument that the testing analyst was a “mere scrivener” who transcribed the results calculated by a machine because the testing analyst’s role involved checking for human error, not just reading machine-generated raw data. Id. at 2714.

Williams v. Illinois

The Supreme Court’s most recent attempt to come to terms with the application of the Confrontation Clause to forensic-opinion testimony resulted in an irreconcilably divided opinion. In Williams v. Illinois, the Illinois State Police lab sent vaginal swabs to Cellmark, a private lab, and Cellmark developed a DNA profile from the semen contained in those swabs. 132 S. Ct. 2221, 2229 (2012). The prosecution did not call any of the analysts from Cellmark. Id. at 2229. Instead, a forensic specialist testified that she compared the Cellmark-created DNA profile from the vaginal swabs to the defendant’s DNA profile in the state DNA database and determined that they were a match. Id. at 2229-230. The forensic specialist also noted that Cellmark’s DNA profile would “exhibit certain telltale signs if it had been deduced from a degraded sample,” but she didn’t see any evidence of that. Id. at 2231. The Cellmark report itself, however, was not admitted into evidence. Id. at 2230.

While a majority of the Supreme Court held that the evidence did not violate the Confrontation Clause, a majority of the Court could not agree on a rationale to support this holding. A plurality opinion authored by Justice Alito held that there was no Confrontation Clause violation because the testifying expert’s implicit, in-court adoption of an underlying report was not offered to prove the truth of the matter asserted (that the DNA profile came from semen found in the victim). Alternatively, the plurality held that the reference to the underlying report was not testimonial because the report was generated before there was a suspect in the case. Id. at 2228. Justice Thomas concurred that the admission of the evidence did not violate the Confrontation Clause, but he, along with the four dissenting Justices, rejected the rationales offered in Justice Alito’s plurality opinion. Justice Thomas agreed that the report was offered for the truth of the matter asserted, but he believed the admission did not violate the Confrontation Clause because the testimony’s implicit reference to an un-introduced report was not formal enough to be considered testimonial. Id. at 2255- 256 (Thomas, J., concurring).

While Williams dealt with the same type of testing at issue in this case, unique characteristics of the opinion limit its value as precedent. The general rule for interpreting opinions in which no single rationale is adopted by a majority of the Court is “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted). But because each of the Williams opinions applies a different rationale to determining whether the use of forensic evidence violates the Confrontation Clause, and because five members of the Supreme Court disagreed with the plurality’s rationale, there is no narrow rule that this Court can apply from Williams. See Young v. United States, 63 A.3d 1033, 1043 (D.C. 2013) (noting that the narrow-grounds approach “works only when the narrowest opinion actually does represent a common denominator. If one opinion does not fit entirely within a broader circle drawn by the others, the Marks approach . . . would turn a single opinion to which eight of nine justices do not subscribe into law.”) (internal quotation marks omitted). Ultimately, Justice Breyer’s concurring opinion may have summarized the problem with Williams most succinctly: “This case raises a question that I believe neither the plurality nor the dissent answers adequately: How does the Confrontation Clause apply to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians?” 132 S. Ct. at 2244 (Breyer, J., concurring). A majority of the Justices of the United States Supreme Court agree that the implicit admission of underlying technical statements in Williams did not violate the Confrontation Clause; they just can’t settle on why.3

However, some consistency with Bullcoming may be teased out when considering a portion of the testimony at issue in Williams. The Court divided over an answer to a hypothetical question that included certain, critical facts:

[Q:] Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as having originated from Sandy Williams?

[A:] Yes, there was.

Williams, 132 S. Ct. at 2236. According to Justice Kagan’s dissent, this testimony was the equivalent of “surrogate” expert testimony because the testifying expert could not convey what the testing analyst knew or observed about the testing or the testing process. Williams, 132 S. Ct. at 2267 (Kagan, J., dissenting). Neither could the testifying expert expose any lapses or possible protocol errors, not only because she was not there to observe the testing, but also because the testifying expert had no knowledge of Cellmark’s operations. Id. Thus, four Justices found the expert’s opinion testimony to be surrogate testimony similar to the formal lab report introduced in Bullcoming because the expert’s answer to the hypothetical question necessarily included an opinion that the DNA testing at issue had been done properly and that the material tested was the same material that had been collected from the victim. Id.

Burch v. State

With this legal backdrop in mind, this Court examined how the Confrontation Clause applies to forensic testing in Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013). In Burch, the State offered into evidence a lab report certifying that the substance tested was cocaine. Id. at 635. Both the testing analyst and the reviewing analyst signed the lab report, but the State called only the reviewer at trial. She testified that she “basically double- checked everything” that the testing analyst did, but there was no indication that she had personally conducted any tests or observed any tests being performed. Id. at 635-36. We held that this violated the Confrontation Clause because the reviewer had no personal knowledge that the tests were done correctly. Id. at 637-38. (“Without having the testimony of the analyst who actually performed the tests, or at least one who observed their execution, the defendant has no way to explore the types of corruption and missteps the Confrontation Clause was designed to protect against.”).

Analysis

From these cases, several general principles are clear, assuming a defendant was afforded no prior opportunity to cross-examine. The admission of a lab report created solely by a non-testifying analyst, without calling that analyst to sponsor it, violates the Confrontation Clause. Doing so deprives a defendant of his opportunity to cross-examine the non-testifying expert about the conclusions contained in the report and how the non- testifying expert arrived at those conclusions. Additionally, testimony from an expert explaining that non-testifying analyst’s report does not provide an adequate substitute for cross-examination even if the testifying expert is generally familiar with how the relevant analysis is customarily performed. When the testifying expert has no personal knowledge of how the testing was conducted, a defendant still cannot adequately challenge through cross-examination the conclusion of that non-testifying analyst offered in that non-testifying analyst’s report. For an expert’s testimony based upon forensic analysis performed solely by a non-testifying analyst to be admissible, the testifying expert must testify about his or her own opinions and conclusions. While the testifying expert can rely upon information from a non-testifying analyst, the testifying expert cannot act as a surrogate to introduce that information.

Turning to the facts of this case, we agree with the court of appeals that this case is distinguishable from Bullcoming and Burch because here the testifying expert was more than a surrogate for a non-testifying analyst’s report. In Bullcoming, the testifying analyst merely knew about the laboratory’s procedures but did not participate in testing the defendant’s blood. 131 S. Ct. at 2709. Likewise, in Burch, the State called the testing analyst’s supervisor who signed the lab report but had not performed or observed any testing. 401 S.W.3d at 634-35. In both cases, the prosecution offered a lab report containing testimonial statements through the expert testimony of a person who did not make those statements and could not verify the authenticity of those statements.

Yet in this case, as the court of appeals noted, Freeman performed the crucial analysis determining the DNA match and testified to her own conclusions. See Paredes, 439 S.W.3d at 526. She was not merely a supervisor who “checked the boxes” on the lab report.

Furthermore, the lab reports Freeman relied on to come to these conclusions were not offered into evidence. Cf. Bullcoming, 131 S. Ct. at 2722 (“[T]his is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”) (Sotomayor, J., concurring); Burch, 401 S.W.3d at 639 (“[M]ore in line with Bullcoming, the report at issue here was offered and admitted into evidence. Consequently, it was not merely mentioned as an underlying basis of the expert’s opinion: the report itself was primary evidence.”). This is not a case in which the State attempted to bring in a testimonial lab report through a surrogate.

Additionally, this case does not present the human-error problem this Court observed in Burch. In Burch, the defendant had no opportunity to challenge the opinion of the testifying reviewer because that witness “could not verify that the results were properly generated.” Burch, 401 S.W.3d at 637. Appellant contends that the analysts could misreport information or mishandle the samples, but the Supreme Court has held that the Confrontation Clause does not mandate “that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device” must testify. Melendez-Diaz, 557 U.S. at 311 n.1. More importantly, Freeman testified about the safety measures in place at Identigene to detect such errors and stated that, if part of the analysis were done improperly, the laboratory procedure would not generate an incorrect DNA profile. The testing would yield no result at all rather than an improper result.

Indeed, this case is distinguishable from prior cases because the testifying expert in this case relied upon raw, computer-generated data in reaching her conclusion rather than another laboratory analyst’s report. As the United States Supreme Court has observed, testimonial statements include:

ex parte in-court testimony or its functional equivalent–that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially. . . .

Crawford v. Washington, 541 U.S. 36, 51-52 (2004). The Supreme Court has held that forensic documents were testimonial in two instances: (1) when three “certificates of analysis” stated that the tested substance was cocaine and reported the weight, and (2) when a report certified that the defendant’s blood-alcohol content was above the legal limit. Melendez-Diaz, 557 U.S. at 309-11; Bullcoming, 131 S. Ct. at 2715. In both of those cases, the forensic reports alone were surrogates for in-court testimony. The certificates in Melendez-Diaz showed that the substance in question was an illegal drug. No further analysis was required to render a testimonial statement. Similarly, in Bullcoming, the report on its own certified that the defendant’s blood was above the legal limit. See Bullcoming, 131 S. Ct. at 2722. That is not so with the raw data produced by the Identigene analysts in this case. Without Freeman’s independent analysis, the DNA profiles–the raw, computer-generated data–that the capillary electrophoresis instrument produced stand for nothing on their own. See Burch, 401 S.W.3d at 641-42 (Hervey, J., concurring) (“If the State can produce ‘another’ [analyst] who may have developed his or her own separate conclusion based on data supplied through testing (i.e., particular ‘testing’ is really performed through machinery and analysts develop opinions from that data), I see no reason why that witness should be denied the opportunity to testify.”). They are not the functional equivalent of live, in-court testimony because they did not come from a witness capable of being cross-examined. They came from a computer.4

Conclusion

The lower court was correct that the evidence in this case did not violate the Confrontation Clause. Freeman did not introduce or testify regarding a formal report or assertion from a non-testifying analyst. Instead, she used non-testimonial information–computer-generated DNA data–to form an independent, testimonial opinion and appellant was given the opportunity to cross-examine her about her analysis. We affirm the decision of the court of appeals.

Delivered: June 3, 2015 Publish

1Appellant did not object that the chain of custody was broken or argue that the Confrontation Clause required testimony from every person who formed a link in that chain.

2An analyst from a different lab testified that appellant’s DNA matched the DNA of this major contributor on the T-shirt, but appellant does not raise an issue about that testimony on appeal. It was, after all, appellant’s T-shirt.

3Other courts have likewise found Williams unhelpful when deciding Confrontation Clause issues. See, e.g., State v. Michaels, 95 A.3d 648, 666 (N.J. 2014) (“We find Williams’s force, as precedent, at best unclear.”); Jenkins v. United States, 75 A.3d. 174, 176 (D.C. 2013) (“We now hold that the splintered decision in Williams, which failed to produce a common view shared by at least five Justices, creates no new rule of law that we can apply in this case.”); People v. Merritt, ___ P.3d. ___, 2014 WL 4748090 (Colo. Ct. App. 2014) (“Given the absence of majority support for any of the reasoning behind the outcome of Williams, it provides no clear guidance as to the current state of the law regarding the testimony of experts whose opinions are based on forensic reports which they themselves did not prepare. . . . Thus, the holding in Williams is not entirely helpful.”).

4While the Fourteenth Court of Appeals has been the leading proponent of this position among Texas courts of appeals, her sister courts have also upheld the admissibility of expert testimony based upon computer-generated data. See, e.g., Hamilton v. State, 300 S.W.3d 14, 21- 22 (Tex. App.–San Antonio 2009, pet. ref’d.) (holding that testifying expert’s recitation of non- testifying DNA analyst’s opinions violated the Confrontation Clause, but the testifying expert’s independent opinion based upon computer-generated data did not); Blaylock v. State, 259 S.W.3d 202, 207 (Tex. App.–Texarkana 2008, pet. ref’d.) (upholding the admission of expert witness’s independent opinion based, in part, upon “printed results from instruments”). Likewise, other states have followed this approach with regard to forensic analysts who use raw data generated by others to form an independent opinion. See, e.g., State v. Roach, 95 A.3d 683, 695 (N.J. 2014) (holding similar testimony admissible if “provided by a truly independent and qualified reviewer of the underlying data and report, and the witness may not merely parrot the findings of another”); State v. Medicine Eagle, 835 N.W.2d 886, 895 (S.D. 2013) (permitting DNA expert who did not conduct every step of the analysis to testify because “she independently reviewed, analyzed, and compared the data . . . [and] came to her own independent conclusions . . . [and] only testified about her own conclusions”).

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.Text of original opinion available here: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=2b2e09f2-b229-46e1-83b5-63f7645de1c9&coa=coscca&DT=OPINION&MediaID=d51fc5b8-0c54-4a34-8fa0-a867d1715af8

Photocredit ( Jay Mantri via finda.photo)

Oops, That Was a Felony: Ten Crimes You Might Not Have Known Were Felonies

After seven years of school and almost 10 years of practice, I still don’t know all of the criminal laws in the state of Texas.  While most of the crimes in the State of Texas of are provided for in the Penal Code, some are scattered across the Government Code, Health and Safety code, Transportation Code, Agriculture Code, Occupations Code, the Water Code and others.

Many criminal statutes are common sense, “do unto others” Golden Rule type of prohibitions, while others are regulatory creations of the legislature.  Whether they are common sense laws or legislatively created regulation, the punishments available under the law often surprise people.

Here is a list of ten felony offenses in the State of Texas that you might not have known carry such severe punishments:

10. Improperly Disposing of Car Oil

Sunflower-oil-free-license-CC0

It is a felony offense to improperly dispose of used oil.  A first offense for dumping oil in the sewer, mixing it with waste headed to a land fill, or dumping on the ground could result in a prison sentence of up to five years and a fine of up to $50,000.

See Texas Water Code 7.176; 7.187(2)(F).

9. Online Impersonation FFPJ3S8U5Y

While it is wrong to impersonate or intimidate someone, it might surprise people to know that when you do it online, in Texas, it can be a felony offense.  Texas’s legislature has outlawed online impersonation if it is done “without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person.”  Creating a website or social media account, sending a Facebook message, or Tweet to someone in violation of this statute could land you in prison for two to ten years with a fine of up to $10,000.

See Texas Penal Code §33.07(a).

8. Falsely Holding Oneself Out As a Lawyer 

RJQ5YA1291

Most people know that it is against the law to impersonate a police officer.  See Texas Penal Code §37.11.  What surprises many people is that it is the same level offense (a third degree felony) to impersonate a lawyer.  Texas Penal Code §38.122.  Both laws require the state to prove that the offending person impersonated the peace officer/officer of the court with certain malicious intent (for profit, in the case of lawyers, and to obtain submission to authority in the place of public servants).  A person convicted of either offense is looking at two to ten years in the penitentiary and a fine of up to $10,000.  By the way, it is also a third degree felony to practice medicine without a proper license.  Texas Occupation Code §165.152.

Don’t worry, your Halloween costume is (probably) still okay as long as you don’t go around actually trying to get people to think you are a police officer, firefighter, doctor… or lawyer.

7. Illegal Bingo

Bingo card - 02

It might be okay if your nursing home does it, if they do it the right way: for folks over 60, and for nothing of value.  It can be okay if you do it in the privacy of your home for fun (again, can’t win anything of value and make sure your following the law).   But if you get together a bingo game in the State of Texas outside the bounds of the statute, you are may end up in prison for two to twenty years and have a felony conviction on your record.

See Occupations Code §2001.551

6. Unlicensed Horse Racing

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It is legal in Texas to horse race and dog race.  Again, just make sure you have the proper license and follow all of the regulations.  It is a state jail felony to violate the horse racing statute, and failing to properly comply with the rules could result in 180 days to 2 years imprisonment in state jail.  Vernon’s Texas Civil Statutes Art. 179e §14.16.

While you are at it, the statute specifically prohibits unlawful touting. (“A person commits an offense if, with an intent to deceive and an intent to obtain a benefit, the person knowingly makes a false statement or offers, agrees to convey, or conveys false information about a greyhound race or horse race to another.”) Vernon’s Texas Civil Statutes Art. 179e §14.01.

Isn’t it kind of curious that the punishment for organizing an unlicensed horse race is less severe than the punishment for illegal bingo.

Illegal horse racing, and the prosecution of this crime is evidently a growing trend in Texas: http://www.kltv.com/story/26075133/kltv-7-investigates-illegal-horse-racing-growing-trend-in-texas

Next up, in the same vein:

5. Cockfighting

Sure, this law is of no consequence to most, and sure, no one should cause domestic fowl to fight each other, but it is still a curious statute:

“A person commits an offense if the person knowingly: (1) causes a cock to fight with another cock.”  Texas Penal Code §42.105(b)(1). (That’s what the law says, go read it.)  In this statute, a “‘cock’ means the male of any type of domestic fowl.”  Texas Penal Code §42.105(a).  It is also a felony to “participate in the earnings” from such a fight.  A person convicted of such an offense may face from 180 days to two years in state jail and a fine up to $10,000.

4. Bovine Related Felonies

FB26A10511

We in Texas Love our burgers, steaks, and bar-b-que;  we also love our ranchers who raise that good Texas beef that we put on our grills and smokers.  So, the legislature has provided those who raise our livestock with special protection for their property.

It is a felony in Texas, punishable by prison time anywhere from two to twelve years, to alter a brand (“registered tattoo mark”) on livestock.  Texas Agriculture Code §144.127.  Cattle rustling, the sale, barter, or transportation of another’s branded livestock, is also a felony.  Texas Agriculture Code §144.128.  Theft of less than $100,000 of cattle (with no apparent minimum) is a third degree felony and punishable by two to ten years in prison.  Texas Penal Code  §31.03(e)(5).

3. Carrying a (Big) Knife into a Bar

Louisiana Renaissance Festival Kights Combat with Axe and Sword
In Texas, it is illegal to carry on your person a knife with a blade that is longer than 5 1/2 inches.  If a person happens to walk into a bar, or other “premises licensed for the sale of beverages,” with a knife longer than 5 1/2 inches, that person could be prosecuted for a third degree felony (2 to 10 years penitentiary time and up to a $10,000 fine).

See Texas Penal Code §46.02(a)(1), (c).

2. Delivery of a Controlled Substance

IMG_7761

It is no surprise that it is against the law to deliver drugs.

What surprises many people is that it can be a felony level offense to give an adult friend or family member one of their prescription pain pills, cough medicine, or anxiety medicines.  Alprazolam (Xanax) is a penalty group 3 controlled substance, so are certain codeine cough syrups and diazepam (Valium).  When a person gives another person any of these, and just about any other prescription medicines, they are committing a felony under Texas law.  There is, of course, an exception for a doctor or pharmacist lawfully dispensing drugs.  The delivery of even one pill can be punished by up to two years in jail and a $10,000 fine.

And don’t get caught with a pill outside of a bottle, you might get arrested for that as well.

See Texas Health and Safety Code §§ 481.104, 481.114.

1. Bank Slandering

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It is a felony to slander or libel a bank or other financial association.   Slander is the act of making a false spoken statement, libel is when the false statement is in writing.  It is generally not a crime to slander or libel a person, though it may subject you to a civil suit.  But, if you slander a financial institution, it could land you in state jail  for up to two years with a felony conviction on your record.  I could not find an instance where anyone was actually prosecuted under this statute.

See Texas Finance Code §59.002; §89.101 (These slander / libel statutes are not old laws and were passed in 1997 and 2009, respectively).’


Nothing in this post is intended to constitute legal advice. If you have a question about the law, you should consult a lawyer.

Photo credits:Oil (Skitter Photo via finda.photo); Keyboard (Jaroslaw Puszcyznski via stocksnap.io); Suit and tie (Ben Rossett via stocksnap.io); Bingo (wikimedia commons); Horse Racing (Viktor Hanacek via picjumbo.com); Rooster (Paulo Morales via Unsplash via finda.photo); Cattle (Ryan McGuire via stocksnap.io); Knights (wikimedia commons); Bank (Dave Meier via stocksnap.io)

Christopher Allen Phillips v. The State of Texas; PD-0789-14: Jailhouse Witness Testimony

Jailhouse-Witness Testimony: The Court of Criminal Appeals gave a broad reading to “a statement against the defendant’s interest” in interpreting Article 38.075(a) to to determine the necessity of a jury charge requiring corroboration of jailhouse-witness testimony.

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0789-14

CHRISTOPHER ALLEN PHILLIPS, Appellant v.
THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS McLENNAN COUNTY

RICHARDSON, J., delivered the opinion of the unanimous Court. KELLER, P.J. filed a concurring opinion. NEWELL, J. filed a concurring opinion.

OPINION

Appellant, Christopher Allen Phillips, was convicted of aggravated robbery. On appeal, Phillips argued that the trial court erred by failing to include an instruction in the jury charge pursuant to the jailhouse-witness corroboration statute.1 The Tenth Court of Appeals held that the trial court did not err, concluding that Article 38.075(a) did not apply because the jailhouse witnesses did not testify to any statements made by Phillips that were “statements against [Phillips’] interest.” We granted Phillips’ petition for discretionary review to examine this holding.2 Because the trial court should have included an article 38.075(a) instruction in the jury charge, we vacate the appellate court’s judgment and remand this case to the court of appeals to conduct a harm analysis and to address the remaining issues raised on appeal.

BACKGROUND

A. The Mane Attraction

Loraine Price was having her hair colored and styled by Marcia Judd at The Mane Attraction Beauty Salon on January 17, 2011. Just as Judd was putting on the finishing touches,3 Phillips came through the door, gun drawn, demanding money. Phillips was dressed in all black, and wore a black mask and black gloves. Neither Judd nor Price had any money on them at the time, but Judd told Phillips that her purse was “in the back,” so he led Judd to the back of the salon. Just as Phillips was looking back at Price and telling her to “get up,” Judd remembered having Mace in her pocket. She attempted to spray Phillips, and they fought over the Mace. Price ran outside. Judd fell and hit her head on the floor. Price said she heard a gunshot. Phillips grabbed Judd’s purse and ran out the door. As he was running, Phillips took a shot at Price as she ran from the salon. Phillips left behind his green backpack with a crack pipe in it.

Jerry Sims testified that he was at a veterinary clinic next door to The Mane Attraction when Price came in terrified and said that someone was going to shoot them. Sims stepped out of the clinic and saw Phillips jump into the passenger side of a car. The car then sped away “burn[ing] rubber.”

About thirty minutes later, a credit card from Judd’s stolen purse was used at A & A Food Mart in McGregor. Hewitt Police Detective Brad Bond testified about a surveillance video that captured Andre Dulin using Judd’s credit card and Phillips standing next to him when he used it. Dulin is only five feet, seven inches tall, and Detective Bond said that Phillips matched the description given of the actual robber, who was described as being six feet tall. The video also showed Phillips getting into the passenger seat of a car matching Sims’ description of the car that had left The Mane Attraction and Dulin getting into the driver’s seat.

Several days after the robbery, Dulin was stopped and arrested because he had outstanding warrants. McGregor Police Officer Kelly Dunlap inventoried Dulin’s vehicle and found a purse between the passenger seat and the center console. The contents of the purse belonged to Judd and The Mane Attraction. Dulin was arrested for aggravated robbery, and he later implicated Phillips, who was then also arrested.

Dulin testified at Phillips’ trial. Dulin stated that he was driving with Phillips as his passenger when Phillips saw The Mane Attraction and told him to pull in. Dulin pulled in and backed his car into a parking space. When asked if he knew that Phillips wanted to rob the place, Dulin replied, “No, not really.” Dulin said that he first knew Phillips wanted to rob The Mane Attraction when he saw Phillips put on gloves and a hoodie as he was backing up the car. Dulin said Phillips was in The Mane Attraction about four or five minutes, then came out of the salon with a purse in his hand. They drove off and went to the gas station in McGregor, where he used the credit card. After Dulin was arrested he called his cousin and told him to call Phillips. The cousin told Phillips that Dulin was mad at him because Dulin had been arrested because Phillips left Judd’s purse in his car.

B. The Jailhouse-Witness Testimony of Kavin Diggs and Elroy Slaughter

After the State rested its case in chief, and after the defense presented its witnesses, the State called two rebuttal witnesses who had been inmates with Phillips in the McLennan County Jail.

Kavin Diggs testified at trial about a conversation he had with Phillips while both were in jail:

Q. . . . Did [Phillips] ever tell you anything about – relating to this case? Did he ever try to get you to say anything?

A. Yeah, he tried to get me to say that if I – if I heard his co-defendant say that he did it or whatever. I told him I wasn’t going to play with nobody life like that.

***
Q. Are you saying that this defendant tried to get you to say that you heard Andre [Dulin] say he did it by himself?

A. Y eah.

Elroy Slaughter testified on direct examination that he was in jail with Phillips about three months before the trial:

Q. Did he [Phillips] ever try to talk to you about a robbery case?

A. Yes, sir.

Q. And what did he try to talk to you about?

A. About pretty much signing a statement or a written affidavit or something saying that, you know what I’m saying, Andre Dulin was going to try to put the case off on him or something.

***
Q. What exactly was he trying to get you to say in an affidavit or a statement?

A. That – you know what I’m saying, that Andre was going to try and put the case off on him, pretty much.

Q. Okay. And you – did you feel like he was trying to get you to lie for him?

A. Yeah, from – now that, you know what I’m saying, everything that came out, I feel like he was trying to get me to sign an affidavit so he could clear himself from the case.

Q. Okay. So this defendant approached you to sign an affidavit about this case?

A. Yes, sir.

While still under direct examination, Elroy Slaughter testified that he had never spoken with Andre Dulin. Slaughter testified that he knew who Dulin was but did not know him personally and never talked to him about this case.

During cross examination, however, Slaughter admitted that while in his holding cell he told the case investigator that he had spoken with Dulin. Nevertheless, although defense counsel attempted to impeach Slaughter by pointing out inconsistencies in what he had stated earlier and his testimony at trial, Slaughter stuck to his story:

Q. Okay. So Chris never specifically said, “I want you to lie about this.”

A. He asked – he pretty much, you know what I’m saying, asked me to sign an affidavit. Just like I told him and said first, pretty much asked me to sign an affidavit saying that Andre was going to try to put the case off on him, you know what I’m saying. If it’s saying lying or what you feel like that is, I don’t know .

On redirect, Slaughter again explained his interpretation of what Phillips was trying to achieve by asking Slaughter to sign an affidavit

Q. Elroy, [defense counsel] asked you if Chris ever told you he did this robbery and you said, “Not being blunt.” But what do you mean by that?

A. Like, pretty much, you know what I’m saying, from what he [Phillips] was trying to get me to do, you know what I’m saying, as far as like signing an affidavit saying that Dulin did it, did the robbery, you know what I’m saying, that could be anything. I feel like he’s trying to use me as an escape goat [sic]. I ain’t got nothing to do with it, you know what I’m saying, to have backup in his defense. It could be to get himself clear and get himself off.

Q. So from everything that was going on, did you feel like Chris Phillips was trying to get you to lie for him?

A. Yeah. Yes, sir.

The two sides then rested and closed. Thereafter, the trial judge excused the jury and asked the two sides if there were any objections to the jury charge. Both the defense and the State said that they had no objections to the jury charge. The jury charge that was read by the court contained the standard instructions as well as an accomplice-witness charge pursuant to Article 38.14 of the Texas Code of Criminal Procedure,4 instructing the jury that Dulin was an accomplice and that they could not convict Phillips on the testimony of Dulin alone without other evidence tending to connect Phillips with the offense charged. There were no other additional instructions given in the jury charge, and no additional instructions were requested by the parties.

During closing argument, the prosecution recalled the jailhouse-witness testimony for the jury, asking the rhetorical question, “Does an innocent person go around the jail asking people he’s just met to sign affidavits and lie for him?” Without any objections from defense, the prosecution continued to emphasize that “an innocent person doesn’t have to do that because they didn’t do anything wrong. When you’ve done something wrong, when you know you’re caught is when you have to start asking people to come to court and lie for you. Think about that. That makes perfect sense.”

C. The Court of Appeals’ Decision

On direct appeal, the State argued that, because Diggs and Slaughter did not testify to any admissions or confessions made by Phillips, their testimony did not include statements that were against Phillips’ interest, and thus no corroboration and no instruction under Article 38.075(a) was required. The appellate court agreed with the State that Article 38.075 did not apply to this case, and held that, because the testimony of Diggs and Slaughter did not “connect” Phillips with the aggravated robbery, their testimony could not be characterized as statements Phillips made that were “against [his] interest.”5 The court of appeals held that “‘the testimony of a person to whom the defendant made a statement against the defendant’s interest’ must, at a minimum, tend to connect the defendant with the offense committed before that person’s testimony can be ‘corroborated’ by ‘other evidence’ tending to connect the defendant with the offense committed.”6 The appellate court concluded that the trial court did not err by failing to include an Article 38.075(a) instruction in the guilt-phase charge to the jury. Because the court held that Article 38.075 did not apply to this case, it did not address the remaining two related issues raised on appeal.

Chief Justice Tom Gray wrote a detailed concurring opinion recognizing the close similarities between Article 38.075 and the accomplice-witness statute, Texas Code of Criminal Procedure Article 38.14. Justice Gray noted that in analyzing whether or not the accomplice-witness law can be applied by analogy to the instructions to be given in this jury charge for jailhouse-witness testimony, he believed that the majority’s limitation on the applicability of Article 38.075 was too narrow to implement the purpose of the statute. In particular, he said, “limiting its application to ‘admissions or confessions’ is an improper limitation on the purpose for which the statute was designed.” Chief Justice Gray opined that the trial court erred in failing to give a limiting instruction requiring corroboration of the jailhouse-witness testimony in this case. Yet, after determining that the error was harmless, Chief Justice Gray concurred in the decision to affirm the trial court’s judgment of conviction.

ANALYSIS

Our first duty in analyzing a jury-charge issue is to decide whether error exists.7 If we find error, a harm analysis must then be done.8 Phillips did not object to the jury charge, nor did he request an instruction be given to the jury tracking the language of Article 38.075(a). Nevertheless, a trial court must instruct the jury sua sponte on the “law applicable to the case.”9 Thus, Phillips was able to raise the issue on appeal that the trial court erroneously omitted from the jury charge a jailhouse-witness instruction pursuant to Article 38.075(a), even though there was no objection to the content of the jury charge as given or to the omission of a necessary instruction.

In determining whether Article 38.075(a) applies to the facts of this case, the only question before us is whether Diggs and/or Slaughter testified to any statements Phillips made to them that were against Phillips’ interest. Because our answer to that question is “yes,” we find that the trial court erroneously omitted a jailhouse-witness instruction that should have been given pursuant to Article 38.075(a).

A. What Is “A Statement Against The Defendant’s Interest?”

In construing statutory language, “we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment.”10 However, where the language of the statute is not plain, but rather ambiguous, a court may consider “such extra-textual factors as executive or administrative interpretations of the statute or legislative history.”11 In this context, ambiguity exists when a statute may be understood by reasonably well-informed persons in two or more different senses; conversely, a statute is unambiguous where it reasonably permits no more than one understanding.12

Article 38.075 does not define or explain what the phrase “statement against a defendant’s interest” means. Reasonably well-informed persons could interpret that phrase in more than one sense. One interpretation, given by the court of appeals, is that, for a statement to be against the defendant’s interest, it must tend to connect him with the charged offense.13 A second interpretation gives the term “statement against interest” the same meaning given in Texas Rule of Evidence 803(24).14 A third interpretation gives the phrase a broad meaning, being any statement or assertion made by a party to a case and offered against that party.15 Because the plain language is ambiguous, we consider extra-textual factors.

B. Extra-textual Factors

Article 38.075 was enacted in recognition that incarcerated individuals have an incentive to provide information against other incarcerated individuals and that this testimony should be corroborated.16 Article 38.075’s legislative history recognizes that “[t]he veracity of an in-custody informant’s statement can be highly suspect,” and that “[t]he testimony of [an] in-custody informant” should be corroborated by at least one other piece of evidence.17 Jailhouse-witness testimony is inherently unreliable due to the inmate’s incentive to better his circumstances.

Similarly, accomplice-witness testimony must be corroborated because it is inherently unreliable due to the strong likelihood of finger-pointing.18 The testimony of an accomplice witness is untrustworthy, and it should be received, viewed, and acted on with caution.19 In Edwards v. State,20 this Court noted that, “the test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense.”

Just as Article 38.14 was enacted to address how to handle accomplice-witness testimony, Article 38.075 was enacted to similarly address the unreliability of jailhouse- witness testimony. However, we are not being called upon to decide whether there was sufficient corroboration of the jailhouse-witness testimony of Diggs and Slaughter. Unlike the accomplice-witness rule (Article 38.14), which requires an instruction in the jury charge if the accomplice witness testifies at all, the jailhouse-witness rule (Article 38.075(a)) requires a jury instruction only if the jailhouse witness testifies about a statement made by the defendant that was against the defendant’s interest.

 

C. Were Phillips’ Statements “Against [His] Interest?”

The appellate court used the corroboration language in Article 38.075(a)21 to determine whether a statement made by a defendant was, in fact, against his interest. In other words, the court of appeals held that if the corroborating evidence must tend to connect the defendant with the offense committed, then whatever the defendant said to the jailhouse witness must do so also, thereby seemingly equating a “statement against the defendant’s interest” under Article 38.075(a) with a statement that must tend to connect the defendant with the offense committed. Relying on Fernandez v. State,22 the court of appeals concluded that, because Phillips’ statements to Diggs and Slaughter did not tend to connect Phillips to the aggravated robbery, they were not against his interest. In Fernandez, the purported evidence—that Fernandez attempted to get two witnesses to testify that they had seen him at a certain location on the day in question—was evaluated on whether or not it sufficiently corroborated other accomplice-witness testimony, not whether such evidence was a statement against Fernandez’s interest. Yet, the rules of procedure can apply differently to the same piece of evidence, depending upon how such evidence is to be used. A statement made by a defendant may be interpreted as being against that defendant’s interest (under Article 38.075(a)) even though such statement may not be legally sufficient evidence, on its own, to corroborate accomplice-witness testimony (under Article 38.14). We find, therefore, that the appellate court’s interpretation of what it means to be “a statement against the defendant’s interest” is too narrow.

Both sides have taken the position that a statement against a defendant’s interest for purposes of Article 38.075(a) should be determined in accordance with Texas Rule of Evidence 803(24). And, while Phillips and the State agree that statements that would tend to subject a person to criminal liability would constitute a “statement against interest” under both Rule 803(24) and Article 38.075(a), Phillips argues that his statements to Diggs and Slaughter did expose him to criminal liability, and the State argues that they did not. Because there is nothing in the plain language of Article 38.075(a) expressly limiting its application to “statements against interest” that are admissible pursuant to Rule 803(24), we decline to impose such a limitation. We conclude that a statement made by a defendant to a jailhouse witness can be against his interest even if it does not expose him to criminal liability.23

In enacting the jailhouse-witness statute, it appears that the legislature was concerned not only with whether the content of the statement made to that witness was trustworthy, but also with whether the jailhouse witness himself was trustworthy. Therefore, although there is nothing included within the legislative history that expressly clarifies what constitutes a “statement against the defendant’s interest,” we hold that the purpose behind Article 38.075(a) would be best achieved by giving that term the broadest possible meaning—a statement that is against a defendant’s interest is one that is adverse to his position.

Diggs’ testimony indicated that Phillips “tried to get him to say” that he (Diggs) heard Dulin admit to committing the robbery on his own. Slaughter testified that Phillips asked him to sign an affidavit that he (Slaughter) heard Dulin say that Dulin was going to try to shift all the blame to Phillips. Slaughter summarized his own testimony saying that Phillips was trying to get him to lie about who committed the robbery so that it would seem like Dulin committed the robbery by himself. Diggs’ and Slaughter’s testimony could be interpreted as evidence that Phillips somehow tried to persuade them to say that they heard Dulin make comments indicating that Dulin committed the robbery on his own—in other words, that Phillips asked them to lie in order to help his position. That was precisely what the State argued to the jury: “Does an innocent person go around the jail asking people he’s just met to sign affidavits and lie for him?”24 We find that Phillips’ purported requests of Diggs and Slaughter to lie for him were offered against Phillips at trial, can most certainly be interpreted as being adverse to his position, and thus were statements made by Phillips to Diggs and Slaughter while they were incarcerated together that were against Phillips’ interest.

CONCLUSION

We hold that the trial court erred by not including an instruction in the jury charge pursuant to Article 38.075(a). Because the court of appeals has not had the opportunity to conduct a harm analysis under the Almanza standard, or to address Phillips’ second and third issues raised on appeal, we vacate its judgment and remand this case to the court of appeals for further proceedings.

DELIVERED: June 3, 2015 PUBLISH

1 TEX. CODE CRIM. PROC. art. 38.075(a) (“A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.”).

2 Appellant’s ground for review asked us to determine “whether the Court of Appeals erred in holding that the provisions of Article 38.075 Texas Code of Criminal Procedure do not apply in this case, thereby overruling Appellant’s first three issues on appeal.”

3 The prosecutor asked Price how far along Judd had gotten in the process of dying Price’s hair when Phillips entered the salon – “had she got it dyed?” To that question, Price answered, “Yes, thank God.”

4 TEX. CODE CRIM. PROC. art. 38.14 (“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed . . .”).

5 Phillips v. State, 436 S.W.3d 333, 338 (Tex. App.—Waco 2014, pet. granted).

6 Id. (citing to Fernandez v. State, 396 S.W.2d 885, 886 (Tex. Crim. App. 1965) (“We do not agree with the State that appellant’s attempt to get two witnesses to testify that they had seen him at a certain location on the day in question constitutes a declaration sufficient to corroborate the testimony of the accomplice witnesses and which tends to connect the appellant with the offense committed.”)).

7 Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

8 Id.; see also, Saenz v. State, 451 S.W.3d 388 (Tex. Crim. App. 2014) (holding that, when appellant does not object to the jury charge, the case will be remanded to the court of appeals so that the trial court’s error can be analyzed for egregious harm under Almanza v. State, 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).

9 Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008) (holding that the trial court was under a duty to instruct the jury sua sponte in accordance with Article 38.075, which requires corroboration of testimony of person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility).

10 Whitfield v. State, 430 S.W.3d 405, 408 (Tex. Crim. App. 2014) (citing to Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)).

11 Mahaffey v. State, 346 S.W.3d 908, 913 (Tex. Crim. App. 2012) (citing to Boykin, 818 S.W.2d at 785-86).

12 Id. (citing to State v. Neesley, 239 S.W.3d 780, 783 (Tex. Crim. App. 2007).

13 Phillips, 436 S.W.3d at 338 (“‘the testimony of a person to whom the defendant made a statement against the defendant’s interest’ must, at a minimum, tend to connect the defendant with the offense committed . . .”).

14 Texas Rule of Evidence 803(24) provides that a “statement against interest” is not excluded by the hearsay rule and defines it as “a statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” See Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App. 2008) (“the trial court must determine whether the statement, considering all the circumstances, subjects the declarant to criminal liability”).

15 At one time, Black’s Law Dictionary defined “against interest” as simply being “adverse to [one’s] position.” BLACK’S LAW DICTIONARY 31 (Abridged 5th ed. 1983). The current version of Black’s does not define “against interest,” but defines “statement against interest” as a “declaration against interest” or an “admission against interest.” BLACK’S LAW DICTIONARY 1629 (10th ed. 2014). A “declaration against interest” is defined as “a statement by a person who is not a party to a suit, discussing a matter that is within the declarant’s personal knowledge and is adverse to the declarant’s pecuniary, proprietary, or penal interest.” Id. at 494. An “admission against interest” is defined, in pertinent part, as “any statement or assertion made by a party to a case and offered against that party.” Id. at 56. This is a somewhat roundabout evolution of the definition, “adverse to [one’s] position,” since a statement is typically not going to be offered against a party at trial unless it is adverse to that party’s position.

16 Senate Comm. On Criminal Justice, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. (2009).

17 Id. See also, House Research Organization, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. (2009) (“Supporters say [that] . . . because jailhouse informants have a strong incentive to fabricate confessions or incriminating evidence in exchange for lighter sentences or the goodwill of the criminal justice system, it is important to make sure that their testimony is corroborated by at least one additional piece of evidence.”).

18 TEX. CODE CRIM. PROC. art. 38.14 (“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed . . .”); Walker v. State, 615 S.W.2d 728, 731 (Tex. Crim. App. 1981).

19 Id.
20 427 S.W.2d 629 (Tex. Crim. App. 1968).

21 The corroboration language in Article 38.075(a) dictates that the testimony of a person to whom the defendant made a statement against the defendant’s interest must be “corroborated by other  evidence tending to connect the defendant with the offense committed.” (Emphasis added).

22 396 S.W.2d at 886.

23 Moreover, the admissibility of Phillips’ statements to Diggs and Slaughter under Rule 803(24) is not an issue before this Court. There was no objection to the testimony offered into evidence and no discussion of the basis for its admissibility. Therefore, we express no opinion on the admissibility of that evidence. The jury was free to consider the testimony for any purpose. Because the testimony was admitted without any limitation on its use, the State was entitled to argue, and did argue, that Phillips’ statements to Diggs and Slaughter were evidence of his guilt.

24 Such position taken by the State in closing argument is in stark contrast to the position the State now takes, which is that Phillips’ statements to Diggs and Slaughter were merely exculpatory, did not subject him to criminal liability, and thus were not statements against his interest requiring corroboration and an Article 38.075(a) instruction. The State cites to Miles v. State, 918 S.W.2d 511, 515 (Tex. Crim. App. 1996) (holding that exculpatory statements do not subject a defendant to criminal liability); Trevino v. State, 218 S.W.3d 234, 250 (Tex. App.—Houston [14th Dist.] 2007) (finding that blame-shifting does not expose a defendant to criminal liability); and Kennedy v. State, 184 S.W.3d 309, 316-18 (Tex. App.—Texarkana 2005, pet. ref’d) (holding that attempts to have witnesses “get their stories straight” do not expose a defendant to criminal liability). However, these cases involve the admissibility of evidence under Rule 803(24), and thus we find them inapplicable to our analysis.

Link to opinion: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=3522f57c-67a0-41cc-b7ea-f10fcc6fd460&coa=coscca&DT=OPINION&MediaID=a1c57ea6-9145-45a3-8c0f-5929ad78c9c0

http://www.search.txcourts.gov/Case.aspx?cn=PD-0789-14&coa=coscca


 

CONCURRING OPINIONS

NEWELL, J., filed a concurring opinion.

I join the majority opinion, but I write separately to further clarify why the application of Article 38.075(a) is so confusing, particularly as it applies to this case.

Without rehashing the operative facts, appellant’s robbery conviction was based, in part, upon the testimony of two rebuttal witnesses who had been inmates with appellant in the McLennan County Jail. These two witnesses testified that appellant tried to get them to lie for him by implicating a co-defendant, Andre Dulin.

There was no dispute about the character of these witnesses–they were unquestionably imprisoned or confined in the same correctional facility as appellant at the time appellant made the statements at issue. The dispute arose about the character of the statements. These statements tended to cast suspicion on defendant, but they were not strictly admissions or confessions.

Presiding Judge Keller correctly observes in her concurring opinion that this statute was designed to operate like Article 38.14, the accomplice-witness statute. Under that statute, a conviction cannot stand on the testimony of an accomplice unless that testimony is corroborated by other evidence. TEX. CODE CRIM. PROC. ANN., ART. 38.14. What triggers the need for an instruction is a particular type of witness—not the content of the testimony. Article 38.14, and its obligation to instruct the jury on the accomplice-witness rule, hinges on whether a particular witness was a “blameworthy participant” in the offense and could be prosecuted for it, or for a lesser-included offense. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). The underlying premise of Article 38.14 is that an accomplice witness is a “discredited witness” whose testimony “must be carefully scrutinized, not only because of any interest he . . . might have, but because . . . his testimony is evidence from a corrupt source.” Beathard v. State, 767 S.W.2d 423, 429 (Tex. Crim. App. 1989). The witness, and the evidence he offers, is suspect regardless of the content.

Article 38.075(a) is also premised on the potential unreliability of a particular type of interested witness—namely, the jailhouse informant. Unlike Article 38.14, however, the need for a jailhouse informant instruction is triggered by a combination of both a particular type of witness and a particular type of testimony. Under the plain wording of Article 38.075(a), only a “statement against . . . interest” necessitates a jailhouse-informant instruction. Both parties rely on Rule 803(24), the hearsay exception for statements “against interest,” to inform their arguments regarding why the character of the evidence admitted did or did not necessitate a jury instruction on the corroboration of testimony from the jailhouse informants. But the hearsay exception for statements against interest focuses on the content of the statement and “stems from the commonsense notion that people ordinarily do not say things that are damaging to themselves unless they believe they are true.” Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App. 2008). This exception does not address the trustworthiness of the person relating the statement against interest, only the trustworthiness of the statement itself. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. TEX. R. EVID. 803(24). Rule 803(24) focuses on whether the statement is true, not on whether the statement was ever made.

And that is where Article 38.075(a) comes into play. As the majority correctly observes, the legislature’s sole concern when passing Article 38.075(a) was the highly suspect veracity of an in-custody informant. The legislature did not intend Article 38.075(a) to require parsing the content of each statement to determine whether it is “against the defendant’s interest.” As with the accomplice-witness statute, the focus of Article 38.075(a) is less on the reliability of the content of a defendant’s out-of-court statements than on the reliability of the witness testifying about those statements. While the legislature drafted Article 38.075(a) to require an instruction when a particular type of statement is offered into evidence, a narrow reading of the phrase “statement against interest” frustrates the legislative intent to require corroboration for testimony from a particular class of interested witness.

That is why I agree with the majority’s broad reading of the phrase “statement against interest.” A jury instruction is warranted–as it was in this case–whenever a jailhouse informant testifies regarding a defendant’s statement that could be used against the defendant at trial. I do not, however, agree with Presiding Judge Keller’s observation that the lack of an instruction will generally be harmless in cases where the statement at issue is not an admission or confession. In a close case, a trial court’s denial of a requested Article 38.075 instruction could still have some effect on the jury’s verdict. See, e.g., Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (“The difference in harm standards impacts how strong the non-accomplice evidence must be for the error in omitting an accomplice-witness instruction to be considered harmless.”). Like cases involving the absence of an accomplice-witness instruction, the harm analysis for the omission of a jailhouse informant instruction should also be flexible. Id. But I do agree with Presiding Judge Keller that the need for a jailhouse informant instruction will be at its apex when the statement offered is an admission or a confession.

With these thoughts, I join the majority.


KELLER, P.J., filed a concurring opinion.

I believe that the jailhouse-witness statute was designed to operate like the accomplice witness statute. Therefore, I would analyze the testimony in this case as I would if it had beenaccomplice-witness testimony.1 The question, then, is whether corroboration would be required if an accomplice witness testified to incriminating evidence that was not an admission or confession.

The “convicted of an offense on the testimony of”2 language in the jailhouse-witness statute and the “conviction cannot be had upon the testimony of”3 language in the accomplice-witnessstatute is designed to avoid the conviction of an innocent person on the testimony of an interestedwitness.4 But a person cannot be “convicted on” testimony that does not establish guilt.Nevertheless, we typically require an accomplice-witness instruction for any accomplice witness testimony,5 so I would require an instruction in this case as well. But it seems clear that when the questionable testimony of the witness does not relate an admission or confession, the lack of a jury instruction on the matter will be harmless.6 This is because, unless other evidence “tending to connect the defendant to the offense” independently establishes the defendant’s guilt, the evidence to support the conviction will be insufficient. I join the court’s opinion.

1 See Watkins v. State, 333. S.W.3d 771, 778 (Tex. App.–Waco 2010, pet. ref’d) (concluding that “the standard for corroboration of statements against interest made while incarcerated is the same as that for the corroboration of accomplice witness testimony”); see also Ruiz v. State, 358 S.W.3d 676, 680 (Tex. App.–Corpus Christi 2011, no pet.) (“We find the reasoning of the Waco Court persuasive and conclude that the standard for corroboration of jailhouse informant testimony under article 38.075 is the same as standard for corroboration of accomplice-witness testimony under article 38.14.” (citing Watkins, 333 S.W.3d at 778)).

2 TEX. CODE CRIM. PROC. ANN. art. 38.075(a).

3 TEX. CODE CRIM. PROC. ANN. art. 38.14.

4 Senate Committee on Criminal Justice, Bill Analysis, 81st Leg., S.B. 1681 (April 1, 2009) (describing the need for art. 38.075 because “[t]he veracity of an in-custody informant’s statement can be highly suspect.”).

5 Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).

6 See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (“Therefore non accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.”); see also Brooks v. State, 357 S.W.3d 777, 781-82 (Tex. App.–Houston [14th Dist.] 2011, pet. ref’d) (“Therefore, the existence of corroborating evidence tending to connect appellant to the offense can render harmless the trial court’s failure to submit an article 38.075 instruction by fulfilling

Link to concurrence: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=2e232c56-389d-4288-a4cf-4566a8c44f18&coa=coscca&DT=OPINION&MediaID=376ec54e-4c51-4258-9d0b-dfda8b7a9d36

Filed: June 3, 2015


 

The text of this decision is from the appellate court’s website, copied on the date of posting.  I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

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