East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Crocker v. State (Published): Since 2005, DWIs from as far back as records can be found can be used to enhance the sentence of a new DWI.  That's a change.  It used to be that DWI convictions more than ten years old couldn't be used.  Like it or not, the change is constitutional.  Someone needs to give a heads up to folks currently having a mid-life crisis who are figuring that all of that "college stuff" in the 1970's, 80's or 90's is water under the bridge.

Crocker had 1992 and 1993 convictions and new, 2006 offense.  He argued that the ten years had run on his old counts as of 2003, and (under the ex post facto doctrine) the 2005 change in the law should not revive them.  The infinite look-back should only apply to offenses committed in 2005 and beyond, after the infinte look-back took effect.

Crocker's argument is rejected.  True, the constitutions of both the United States and the State of Texas prohibit ex post facto laws (i.e., punishing someone for acts that only became criminal because of a law passed after the fact). But Crocker is in trouble because of his 2006 actions; the State is not coming back and trying to give him stiffer sentences for the 1992 and 1993 offenses.

Crocker also argues that the old law, the ten year limit, was a promise that he was entitled to rely on.  He makes an analogy to a deferred adjudication case, Scott.  In Scott, the defendant plead guilty to a sex crime, was sentenced to deferred adjudication, and successfully completed his sentence.  At that time, the law provided that successful completion of deferred adjudication would prevent the offense from ever being used to enhance a sentence for a future crime.  Sure enough, the Texas Legislature decided to change the law to allow deferred adjudications to enhance future sentences.  And, (also sure enough) Scott committed another crime.  But the Court of Criminal Appeals held that Scott was entitled to rely on the law at the time he completed his deferred adjudication.  So his prior offense could not be used to enhance the sentence for his current one.

Unfortunately for Crocker, the analogy doesn't hold.  The limitation on the future use of Scott's deferred adjudication was a clear and definite part of the deal for that offense.  The ten year DWI look-back window was not a clear and definite limitation on his 1992 and 1993 sentences.  Instead, it was a conditional pledge by the Legislature that could be changed.  In the words of the Tyler court :

"the former ten year time limitation on the use of DWI convictions 'was not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time.'" (quoting a Houston case, and citing cases from Austin and San Antonio that reached the same conclusion on this issue.)

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Wooten v. State (Unpublished Memo): Another of a raft of sufficiency of the evidence cases.  This one is a little different because it's an appeal from a revocation of community supervision.

Wooten was sent to a Substance Abuse Felony Punishment facility as part of his probation.  He was required to abide by all the rules and terms of the program.  He didn't.  So it didn't matter that he completed the program with a "minimal completion" discharge.  His failure to abide by the rules included threatening other participants.  That was enough to get Wooten kicked out of community supervision and into prison.

This one wasn't really a close call, but is is worth noting that the standard of review in this context is "abuse of discretion" and not the typical legal or factual sufficiency standards.

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Purvis v. State (Unpublished Memo): Purvis was convicted of possessing 21 rocks of crack cocaine with intent to distribute. Purvis says he didn’t have the cocaine on him at the time of his arrest, and he wasn’t seen trying to sell the rocks, so the evidence doesn’t support either possession or intent to distribute. Purvis also says that the bench where the drugs were found was private, and shouldn’t have been searched without a warrant. Finally, Purvis complains that the State lost a videotape that showed part of the scene. The Tyler court rejects those arguments and affirms the conviction. Continue Reading...

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Adair v. State (Unpublished Memo):  Put this one in the "no harm, no foul" category.  Adair was convicted of third degree felony assault of a public servant.  The public servant was a juvenile correctional officer with the Crockett State School.  The officer had tried to search Adair for contraband, and Adair had grabbed her wrist, causing injury.  Adair contends that he didn't intend injury.

Normally, assault on a public servant has a 2-10 year punishment range.  Adair got a 15 year sentence under Section 12.42 because of a juvenile adjudication that he had sexually assaulted a child under 14 years of age.

Adair's only ground on appeal is ineffective assistance of counsel.  On that front, his trial counsel didn't object to the admission of the sexual assault.  Nor did trial counsel object to Adair's 300-or-so disciplinary incidents in the Crockett State School.  In addition, his trial counsel did not object to a jury charge that allowed the jury to convict based on the lower "nature of the conduct" standard, nor did trial counsel request a proper charge on the higher "result of the conduct" standard.

Under the Strickland test, the Tyler court presumes that Adair's trial counsel had good strategic reasons for those inactions.  What might those reasons be?  The Tyler court doesn't say.  Even so, it's presumed that Adair got effective counsel.  At first blush, a non-lawyer might find this non-sensical.

The bottom line on this case, however, is two pronged.  First, even with a "result of the conduct" charge, a jury can consider recklessness.  The jury could have found that Adair recklessly brought about the result.   And the jury could have reached that result without evidence of the prior sexual assault or the 300 incidents.  Second, though the sexual assault adjudication might not have been admissible at the guilt/innocence phase, it was fair game for purposes of enhancing the sentence.  All-in-all, Adair had the burden to show that the result would have been different if the things he complains about had been changed.  He didn't carry that burden.  No harm, no foul.

To understand the logic behind cases like Adair's, see presentations on Strickland by retired Justice Sandra Day O'Connor and State Senator Rodney Ellis.  Of all her decisions, Justice O'Connor considers Strickland one of the two she'll be most remembered for.

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Ex parte McAndrew (Unpublished Memo): McAndrew was convicted of assaulting his ex-wife's new hubby during a visitation exchange (McAndrew and his ex have a daughter).  McAndrew complains of ineffective assistance of counsel on several grounds.  All of which are denied.

This case has a good overview of the caselaw and standards of review for ineffective assistance of counsel in the habeas setting.  In large part, that's because the Tyler court had seen this case before. Initially, the trial court denied relief without a hearing.  McAndrew successfully appealed the lack of hearing.  But in a case of "watch what you ask for ..." he got the hearing.

And after the hearing, the trial court entered detailed findings of fact adverse to McAndrew that were relied on by the Tyler court.

First, McAndrew feels that his attorney should have objected when his ex testified that he was an abusive hothead prone to violence.  But, by the time his wife got to the stand, McAndrew had already shown himself to be a hothead.  In spite of his attorney's advice about appearance and proper courtroom demeanor, McAndrew showed up for trial with a rumpled shirt and wild hair.  He rolled up his sleeves.  Every time he heard something he didn't like, he'd get red-faced and lean over the table like he was "ready to pounce."  His attorney figured it would only hack the jury off to pretend that McAndrew wasn't a hothead.  The trial court agreed.

Likewise, McAndrew felt that his attorney should have cross-examined his ex on a prior written statement that could be read to contradict her testimony about the assault .  But the trial attorney figured that the statement, while ambiguous on the details of the assault, was very clear on some other, damaging matters.  The statement was better off left alone.  The trial court agreed with that, too.

McAndrews felt that his daughter should have been called to the stand to refute her mother's testimony.  McAndrew's trial attorney recalled that, at the time of trial, McAndrews didn't want his daughter testifying.  But the attorney didn't recall the exact reasons for that decision.  In any event, under the standard of review, if there's no evidence of the attorney's reasons, it's presumed he had good ones.  The trial court offered a couple.  One: maybe McAndrews at least had the decency not to put his daughter in the middle of this.  Two: this was a "damage control" case.  They jury was going to say he committed the assault, the only question was how mad they were going to get and how long the sentence would be.   Calling a child to the stand tends to get juries mad.

Finally, there's the jury argument issue.  McAndrews said the assualt was self-defense.  The State said the situation had to be viewed from the standpoint of a reasonable person in McAndrew's shoes -- not the way McAndrews himself subjectively viewed things.  McAndrews thought that was an objectionable misstatement of the law.  It wasn't..  It's a correct statement of the law.

 

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Crosby v. Dixon, et al. (Published Memo): Prisoner civil rights suits can be dismissed without a hearing.

This is a matter of separating the wheat from the chaff. We want the door to be open to legitimate complaints by prisoners, but with all that time on their hands, prisoners are notorious for taking a “free bite at the apple” with lawsuits alleging violations of civil rights.  Perhaps the most notorious is the one where the prisoner complained that he was forced to eat crunchy peanut butter instead of creamy (or was it vice versa?).  See this post about the response to such suits in the federal judiciary.

Tex. Civ. Prac. & Rem. Code Chapter 14 attempts to strike a balance by imposing requirements that inmates bringing pro se suits in forma pauperis must state certain procedural matters plainly at the outset – or their cases get tossed.

But how, exactly, do they get tossed? The prisoner here asserted that the trial court should have given him a hearing before tossing his case. Chapter 14 states that prisoner suits must be brought within 31 days after the prisoner gets an adverse decision from the prison grievance system. What's more, their suits must state the date on which they got that notice.

The suit here didn’t state the date. Not much point of a hearing on that. In the words of the Tyler court, the defect is “clear and wholly ascertainable from the record.” Dismissal without hearing was within the trial court’s discretion.

Now you know why this short memorandum opinion was designated for publication.  It's only January (and least as far as trial judges are concerned) it looks like we've got a Case-'o-the-Year frontruner.

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