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

Morales v. Dougherty and Mabe, dba Top Gun Trucking (Published Memo): Here's one for the personal injury practitioners.  Truck wreck case upholding the submission of a sudden emergency instruction and the admission of testimony about the plaintiff's insurance coverage.

Here's the crash scenario, with letters representing vehicles.

A    B    C    Hill    D

The plaintiff, A, was waiting to make a left turn on a rural highway.  B, and then C came up behind her.  D then topped the hill.  D couldn't stop in time, so he went off road on the right around C.  But D then lost control and veered back onto the road, into A.  C, another trucker, testified that, in his opinion, D did all that could be done and that A was dawdling.

That fact pattern supports a sudden emergency instruction for D.  Even without D having plead for such an instruction.  Sudden emergency is not an affirmative defense, so D could simply request the instruction during the charge conference.

The Tyler court holds that the plaintiff opened the door to testimony about her insurance coverage.  She asked for thousands of dollars for medical procedures.  She said that she had not gotten the procedures because she couldn't pay for them.  But she had insurance.  The trial court and the Tyler court say that the plaintiff's plea of poverty opened the door to her insurance coverage.

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Floyd v. State (Unpublished Memo): There was no factual basis to support a Tex. Code Crim. Proc. Ann. art. 38.23(a) jury instruction, thus a failure to request the instruction cannot amount to ineffective assistance of counsel.

Floyd believes that there was no basis for the traffic stop that resulted in a search that turned up cocaine.  The traffic stop was over an unlit license plate.  Those things are supposed to be lit so that the plate can be read from fifty feet away.  The officer and her dash cam say Floyd's plate wasn't properly lit.  Floyd's attorney cross-examined them on this point, but didn't produce any conflicting testimony.  And there's the rub.

Under Art. 38.23(a), a defendant is entitled to an instruction to the jury that they can disregard evidence if there was a fact question over whether it was obtained improperly (e.g., unlit plate = proper stop, or lit plate = traffic stop without probable cause) and the jury resolves that fact question against the State.

But here, there was no "unlit or lit" fact question.  There was only the officer's testimony.  Cross-examination questions, however pointedly worded and emphatically stated, do not raise a fact issue.

With no fact issue, no basis for the jury instruction.  No basis for the jury instruction, no error by the attorney in "failing" to request it.

Side note: the Tyler court could have taken the easy way out and relied on the Strickland presumptions.  Instead, they grabbed the issue head-on and said that the trial counsel's work was actually effective.

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Carter v. State (Unpublished Memo): Conviction for intoxication manslaughter stands even though the defendant's intoxication may not have been the only cause of the victim's death.  Motorcycle operator and rider were both drunk.  Wreck killed the rider.  Rider had apparently been so drunk that she had trouble staying on the back of the bike -- in fact, she may have triggered the wreck by starting to slide off the seat. 

So was the wreck caused by the operator's intoxication, or by the rider's?  That's a trick question.  It's not an either-or proposition.  A "both" answer supports the conviction. "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient."  Tex. Penal Code Ann. § 6.04(a) (Vernon 2003).

This is where time is crucial.  The operator tries to keep the focus entirely on the wreck itself.  But, much like it did in another case this year, the Tyler court focuses on the wreck, the earlier events on the road, and the even earlier decision to ride.  As to the wreck, the operator's own accident reconstruction expert admitted that his intoxication may have been "a factor."  (Incidentally, the operator's blood alcohol level, by ER blood sample, was .146)  In short, a sober rider might have been able to keep the bike on the road in spite of what the rider was doing.  A sober operator might also have maintained a more reasonable speed throughout the night's journey.  More to the point, a sober operator wouldn't have made this ride in the first place.  The operator had been drinking at a "biker bar" with his girlfriend/rider. He knew that she was literally stumbling drunk.  He admitted as much, and even said that he didn't start the ride until she had had a few minutes at the bar to sober up.

The operator's claim of charge error gets nowhere because his requested instruction wasn't a correct statement of the law.  His proposed instruction tried to box the jury into an either-or question.  The trial court was right to reject it.

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Blanton v, State (Unpublished Memo): Burglary of a habitation conviction affirmed because Blanton only presented the Reporter's Record from the first day of a three day trial.  That doomed all of his complaints on appeal.  The Tyler court can't conduct legal or factual sufficiency reviews of the evidence without all of the evidence.  Likewise, Blanton complains of the trial court's handling of a question from the jury, but the court reporter's record from that day is missing.  Finally, Blanton's complaint about the jury charge is doomed to failure as well because, even if there is error, the Tyler court would need to review the whole record to see if that error caused harm.

Although not necessary to the decision, the Tyler court does give some guidance on future burglary of a habitation cases.  Blanton wanted an instruction on consent to enter the habitation, apparently on the belief that consent is an affirmative defense.  The Tyler court notes that:

[S]trictly speaking, it is not a defense to a burglary charge that entry into a habitation was consensual. Rather, the State must prove that entry was without the consent of the owner.

Also of note: The Tyler court observes that Blanton's failure to bring forward the whole record is a strategic choice of the sort that the State made in Must Have Been a Boring Video.

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Ingram v. State (Published): Ingram was convicted of burglary of a habitation.  Based on a prior burglary conviction, his punishment range was enhanced, and he was sentenced to thirty-six years plus a $4,000 fine.  Ingram contents that his conviction should be overturned because he didn't think the building was a habitation -- he thought it had been abandoned.  He requested a jury instruction on this "mistake of fact" but that request was denied by the trial court.

The trial court was right to deny the requested instruction.  The only "intent" part of a burglary of a habitation charge is entry with intent to steal.  Ingram had intent to steal.  The crime does not require intent to enter a habitation.  So whether Ingram thought this building was inhabited or not is irrelevant.  You break in with intent to steal, you take your chances on the legal status of the building.

In this case, though, it's easy to see how Ingram thought his thoughts did matter.  The State requested a jury charge that asked the jury to find that Ingram "intentionally or knowingly enter[ed] a habitation."  Even so, the Tyler court held that: "Because this erroneous requirement was not an element of the offense or necessary to support a conviction, the mere fact that it was included in the jury instructions did not expand the rights of Appellant such that he was entitled to a mistake of fact instruction."

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Avila v. State (Published): In some Spanish-speaking countries, a “notario” is a legal advocate. Playing on this, some notaries in Texas (and elsewhere) have taken up providing immigration and other legal advice. Two problems: 1. the notary laws in Texas have a general prohibition against providing legal advice, and 2. only attorneys and specially-qualified representatives of non-profit agencies may represent petitioners before the Immigration and Naturalization Service (now Citizenship and Immigration Services).

In 2003, the Texas AG’s office announced that it was going after notarios. This case is a successful product of that well-publicized effort.

The AG sued a husband and wife “notario” team in Tyler for the unauthorized practice of law and deceptive trade practices, seeking civil damages and an injunction.

At trial, the husband and wife objected to the unauthorized practice of law questions on grounds that they were duplicative, and there was no evidence to support their submission to the jury. On appeal, they complained that the questions were immaterial, and constituted a comment on the weight of the evidence.

The Tyler court held that the charge error complaints were waived because the complaints at trial didn’t match the complaints on appeal.

On other issues raised in this appeal, the Tyler court held that ...
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Middleton v. State (Unpublished Memo): On the evening of Easter Sunday, 2006, Middleton fired a great number of rounds with his AK-47. He didn’t kill the people he was shooting at. Instead, the rounds carried some distance, and one of his bullets killed an innocent bystander, Dorcas Peroutka,

The sheriff didn't need a warrant to get the murder weapon -- he had consent..  Middleton was 18 years old and living with his father.  Middleton thought his bedroom was his, and his alone.  So he stashed the AK-47 there.  But his father testified that he could go into that room as he pleased, without asking the son's permission.  Consequently, the father had the authority to let the sheriff search Middleton's bedroom.

Middleton also asserted that his father consented to the search out of fear of the sheriff.  In other words, it was coercion, not consent.  But the father testified that he had known the sheriff for years, was on a first name basis with the sheriff, and felt comfortable around the sheriff.  No coercion there.

No charge error: Middleton had the option to request that the jury consider a lesser included offense. As a matter of strategy, he put the jury to a choice of murder or acquittal. The jury chose murder. The omission of some statutorily mandated instructions can be reviewed under the “egregious error” standard even when there was no request for the instruction at trial. The defendant here asked for review under that standard. But lesser included offenses are not statutorily mandated. This is not an “egregious error” case. This is plain old waiver.

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Garcia v. State (Unpublished Memo): Garcia appeals four counts of sexual assault of minors and a single indecency with a child charge.  At trial, Garcia agreed to a jury charge that omitted a statutorily required instruction.  Even though he agreed to that omission at trial, he complains of it on appeal.  His appeal is dismissed because the omission didn't harm him.

The good news for criminal defendants is that they can still appeal certain errors in the charge, even if they agreed to them.  The bad news two fold.  First, such appeals are limited to the omission of statutorily required elements of the charge.  Second, the defendant has to show that the omission caused him "egregious harm."

The jury charge at issue omitted a parole instruction required by Article 37.07 of the Texas Code of Criminal Procedure.  In essence, that instruction tells the jury that the sentences they give aren't hard numbers.  Instead, a combination of "good time" plus time served may result in parole prior to the end of the jury's sentence.  Of course, once jurors hear that, they figure they've got to give somebody 20 years if they want him to serve 10.

That instruction helps the State.  There's no harm to the defendant in leaving it out.  Certainly no egregious harm.  Appeal dismissed.

While the omission didn't hurt Garcia, it didn't help him either.  The jury gave him four life sentences for the things he did to his own grandsons.

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