Expunctions DWI Obstruction of a Highway Jury Instructions

So, in this situation where the DWI is dismissed and there’s no probation for the DWI but it’s reduced to a deferred, not a conviction but its reduced to a deferred so the person is not convicted. In most jurisdictions that DWI’s going to be able to be expunged. Unfortunately, in the jurisdiction of the 3rd court of appeals and other courts that may follow that, we’ve got a real bad case called ‘Travis County attorney versus M.M.’ and in that case, M.M. was charged with DWI, resisting and assault on a police officer. The DWI was dismissed, there was a deferred adjudication on resisting and then a 1245, the assault into the deferred which don’t ask me how they did that, but they did. and then so, what was, the court held on that was; now sub-section A says; the person…. very first part of the expunction says, “the person is entitled to have all records and files related to an arrest expunged if they meet all these requirements.” well the court said that Because sub-section A the unit to be expunged is arrest then that’s the only thing that can be expunged, not the individual charge. so, basically the holding of that case is,” unless everything arising out of an arrest is expugnable, then none of it is”

so in that situation of what we’re talking about the DWI reduced to obstructing a highway, even though the probation was not for the DWI the M.M. court, the 3rd court and M.M. said that,” because everything is not expugnable out of it, then none of it is.” and, but take heart if you do have that issue in one of yours, or you have a judge who’s inclined to follow M.M., that it is based on a previous version of a statute and the appeals that are contesting that, just haven’t gone through yet. So, I’m hopeful that once they do, they’ll acknowledge that the law has changed and that’s no longer the case. and there’s only one case that has even cited M.M. and followed it and that is Ex parte M.R.L and if you ever need this case there’s a foot note on it that says that,” we disagree with M.M. because…” well not that we disagree with it but the legislature has substantially changed the law since M.M. was decided so if you need that, that’s where you look for that.

So, charges that have not been filed. You got different timelines for your cases that have never been filed and your cases filed and dismissed. if an indictment or information has not been presented: then you have the right to expunction, a 180 days after your arrest if it’s a class C misdemeanor, a year from the arrest if it’s for a class A or B misdemeanor, or 3 years if it’s a felony. Now these are timelines that allow you to do an expunction way before the statute of limitations expires. Except on a felony most statute limitations are 3 years. so, you really want to think about whether you want to go ‘poke the bear with a stick’ and say, ” hey you haven’t indicted this case yet, give me my expunction” or “you haven’t filed this yet, we need an expunction.” so, the only time I would ever advise doing this is; if you get the 4th part of this which is,” a person can apply for an expunction at any time if the prosecutor for the state certifies that the records are not needed for any kind of prosecution. Now without that certification, you’re not getting a complete expunction. because the law allows that,” if the prosecutor does not certify it, then the prosecutor can keep…” expunction will still go through and will go through all the other agencies, but the state and the other applicable law enforcement agency which; when I do an expunction most of the agencies that I cite could be called ‘law enforcement agencies’ they get to keep their records if there’s no certification from the prosecutor. So, basically what that would do was; you would go and get your expunction, the prosecutor and the applicable law enforcement agency still had their records. So you’re going to need to go back and do another expunction afterwards. So it’s a kind of thing where I just don’t see a whole lot of value in doing an expunction under those timelines unless you get that certification. And so, or better yet a recommendation under 55.01(B), yeah, 55.01(B) and we’ll talk about that here in a bit.

Pre-trial intervention program. Like we said, a pre-trial intervention program allows somebody to get an expunction as soon as they complete the program. Now these are going to be your programs, it says ‘ authorized by government code 76.001’ these are programs that are done by, a joint program between the probation department and the prosecutor’s office. So, it’s not probation, it’s not a deferred prosecution, it’s just from the prosecutor. But in many counties you have these pre-trial intervention programs and you can do those immediately upon completion. But beware of waiver clauses. Nowadays, more and more of these intervention programs have waivers in them that say; that the person agrees that they will not seek expunction of the records or at least the pretrial intervention program can keep some information on them. So, just beware of what you’re telling your clients, can be done if they have a pretrial intervention. Another, if the case has been filed, if the presentment was made because of mistake, false information or other similar reason indicating lack of probable cause. This is very different from, just not having insufficient evidence. If you’re going to apply for an expunction based on, that was based on a mistake and false information you have to prove two things; you have to prove that the false information actually led to the person being indicted and that was also the reason that the case was dismissed. So that’s a, it sounds great, I mean my clients will tell me, “yeah the whole thing’s been a mistake” you know, well that’s not going to be enough to get you to do an expunction without wavering the statute limitations. Unless you can prove that it was false information and that was also the reason that it would. That’s why it was indicted and also the reason why it was dismissed.

Now if the charge is filed and dismissed, you have to wait until the statute limitations runs. so, we’re talking about you know, no statute limitations on murder, aggravated sexual assault, indecency, 10 years on your more serious misdemeanors, 7 years on fiduciary crimes; very these are kind of cursery run down of what the statute limitations are. 3 years on most felonies and then all misdemeanors it’s going to be a statute limitations of 2 years. So, when you’ve got somebody arrested and the case is later on dismissed, you can get that expunged but you do have to wait for the statute limitations to expire. Now, you need to consider the tolling provisions the things that stop the statute of limitations from running. One thing is the time absent from the state. I’ve never really gotten any blowback on this. If you’re client is from outer state they’re probably not going to considered the statute tolled just because he lived out of state. But the time during pendency of the indictment does not count towards the statute of limitations. So, in pendency the indictment starts when it’s filed, and it ends when it’s dismissed.

So all the time that you’re going to court for these people up until you get it dismissed that time’s not counting towards the statute of limitations. So the way you calculate that; just to be super safe now some of your jurisdictions are not going to care about tolling. In Travis County you’re never going to get something past our gate keepers of expunctions without calculating also the tolling provisions. So the way you calculate that, is you take the time from the date of the offense up until the date it was filed. So, on the misdemeanors it does probably going to be about a month, few months for a felony. Plus the time from when it was dismissed up until the present. And then you take out your, the time absent from the state if that’s an issue or and if you want to be real to particulate about it take out the date of the offense and the date of the indictment; those technically don’t count anyway. So once, the time before they were charged and the time from the dismissal to the present, once that is greater than the statute of limitations, that’s when you can apply for an expunction.

And you can also apply for this recommendation expunction. A recommendation expunction is where you get the, it’s kind of like that certification but, it’s a little stronger language than that. And if you get it past the prosecutor, I think a recommendation is a great thing to have in an expunction. Anyway, just in case the person ever has to show somebody the expunction, they can show them not only was it dismissed, not only did the court say that it should be expunged but the prosecutor recommended it for expunction. So, if you can get a recommendation on an expunction, then it has to be done by a prosecutor with jurisdiction to recommend it. And it has to be recommended before the person is tried for the offense. now, you don’t, it doesn’t, all that stuff we said earlier about the cases, it’s no longer pending, there was no court order supervision; all that doesn’t apply to this. The case does have to be recommended before they’re tried for it though so somebody who’s placed on deferred adjudication, when they plead, that’s the trial! so, you’re not going to be able to get deferred adjudication expunged and I’ve had that question but it does have to be done before the person’s tried for it and so it does run well for your dismissals that are inside the ‘Statute Of Limitations’. So, if you need an early expunction that’s the best way to go if you can get it.

The things you’re going to have to have in your petition: name, sex, race these are all in the statute and you can look in up later. Just all the person’s vital information case number in court, and then you need to have the DPS tracking number. Now, tell the truth; who knows what a DPS tracking number is?

ok. Right on. Let’s talk about what the DPS tracking number is. A tracking number is assigned by DPS to every custodial arrest. So, whenever somebody gets arrested and taken down there is a tracking number assigned to that. And the statute requires that you have that tracking number in your expunction petition in order. The places that these tracking numbers exist are; you can get it, sometimes it’s on the warrant so you can get it from the clerk’s office, sometimes at the jail who always keeps a record of it, so you can get through an open records request from the jail. The only other place it exist is on your clients criminal history information so they can go down give their fingerprints and get their criminal history information and that’s going to have that tracking number on there. It is imperative that you put these tracking numbers on these guys. And the reason for that is; if you don’t include it, then it gives DPS an excuse to trigger cases and ‘no records’ filed. ‘no records’ means that you do your expunction the court grants it, the clerk sends it off to DPS and they look at it and they say,” we don’t have any records on this person. and one of the reasons they do that, and this is straight from the horse’s mouth at DPS, their policy is that if you don’t have the tracking number on there and your arrest date is more than 24 hours; they’re going to consider that a no records case. And what that means is, is that your expunction is not going to go through and here in a minute we’re going to see why, your, why that’s much worse than even it sounds. ok so, you want to have in your petition the reason why the person’s entitled so, just say the indictment information was presented and dismissed, there was no final conviction, no probation, limitations period has expired or whatever other the reason, the other reasons are. And of course, you need to have the list of entities. All of the law enforcement, the arresting agency, the clerk’s office, anybody you can think of and you really need to think outside the box on this; for what agencies may have this information.

some of your bigger counties are going to have like a separate IT department which backs up all the files from the actual law enforcement systems so those are just an example of places that are going to have these records that just may not be intuitive so the best practice to figure out what kind of entities you have in a given jurisdiction are… what I do is I go to the clerks website and find out what all the departments in the County are and then if you really want to get hardcore about it is to do an open records request and who they sell to. See who these state agencies, who they sell information to or who they transfer information to and that’s going to give you an idea of how their paper trial goes. Now, it also says to list the federal depositories of criminal records. The town is on DPS to notify the feds after the case’s been expunged. so you don’t, it says to list it in there and you can do that, but really the effect of the order is the DPS has to notify the federal government and then the dreaded private entities; the background check companies that just flourish like fungus. And there’s no way you can cover every single background check company you know. I mean all it takes to start a background check company is to buy a database from somebody else and put up a website. So, what I’ve done on this is the private entities that I include in mine are a list; I just attach a list as an exhibit. It’s about a first 10 pages of Google or so of popular background check companies and then also the background check companies the DPS sell to. So you want to have all those in there. And the last thing you need to have is a verifying affidavit from your client; just saying everything in that perdition is true and correct.

I also think it is best practice just for you to put a clause in there for reasonable efforts to be made. And this is the thing that’s going to cut down on that; no records policy. What I always have the judge ordered is; that any entity who’s getting this expunction within 60 days they have to notify the court if they determine they’re not going to comply with it. And this is not an expansion of the statute; this is just the old rule that, a court can enforce its own orders. so, by putting that clause in there I’ve some judges raise eyebrows and cross it out and everything but if you’re not doing something to show the agencies that you’re going to stay on them and make sure that they actually do this and have some kind of enforcement mechanism on that, then it’s going to be a lot easier to ignore you. And then I also put a catch on privet entity. so, what I put in there is; any entity that purchases information from DPS, anybody who’s ever applies to purchase information from DPS, the private entities that have notified DPS that they have sold the information to anyone else and then entities who DPS has noticed that it was sold to. So that’s pretty comprehensive to make sure that everybody, the DPS can notify gets notified of the expunction. And then, as far as the list of private entities, you do have to have the facts and email addresses of these places. And a lot of them intentionally make it difficult to do that. So, it does takes a little bit of leg work to get all that information. But DPS will notify everybody on that list. But if you don’t have a list attached, then DPS is only going to notify the people they’ve sold to.

Another pro tip; use the initials of your client in the style. don’t use their full name and the reason for that is; if your expunction is denied there’s going to be a record of their full name on there. So if you ever looked at like a expunction case law… who knows who Judi Beem is? Judi Beem was the lady who… expunction cases go up to the court, to the Supreme Court, not the court of criminal appeals coz it’s a civil case. Well, Judi Beem case was one of the ones that were heard by the Supreme Court and basically in that case they said that Mrs. Beem has to wait until the statute of limitations ran, even on a Class C misdemeanor. Well, my point on this is; Judi Beem didn’t expect that people were going to know her name. Ok? When she went in for her expunction. And so what you should do is, but I mean she’s famous now! and all she wanted do was get her case dismissed so, when you’re doing an expunction you put the person’s initials in style so that if it gets appealed, they’re not going to live on forever in the South Western reporter. And make sure you have the current statutory language. a lot of, too many of us are using forms that we got from the other lawyers or from the law library, and you know expunction law, it changes with the legislature but it also changes you know just with, at the whims of the courts of appeals. So just make sure that you don’t have any kind of outdated or extraneous language in there or the court could very well deny you. You want your petition to be as bullet proof as possible. So just track the statute if at all possible.

Ok, so the filing procedure’s pretty straight forward. You just file it at the district clerk. Some courts are going to require you to have a copy for each agency, some courts are going to require you to notify each of the agencies themselves. So that’s going to vary on your jurisdiction. and at the hearing your client may or may not need to appear at the hearing, but if there’s any question that you’re going to have to prove up to your pleadings, make sure your client is there. Because the verification that your client signs that is not enough to prove it, if they, at the hearing. So, what you want to do is make sure that your, you’re not going to get any opposition, so you just kind of gauge opposition from the date before the hearing. Talk to the state. now the Texas rules of procedure to apply to expunction and so, we don’t get, they’re don’t give you whole lot of solace, you know you can talk to the counsel for the state to see if they’re going to come in and answer at the time. They’re supposed to file an answer within 20 days plus Monday but… does anybody know a judge that does going to file a default expunction order? Against the state? Now, I don’t either so, so they’re supposed to follow those rules but the state can just show up and oppose you at the hearing. And you want to make sure that’s not happening, if you can cut it off.

And then just, like I said; have your client there and be prepared to prove up those pleadings. And make sure you get 2 certified copies of those. One for you to keep when your clients copy dies in the fire. I’ve even have that happened already! So make sure, and important thing about this is; you got to have a copy of that because an expunction gets, an expunction is destroyed on the year anniversary of the hearings. So, if you don’t keep a certified copy of it, you’re not necessary, you’re. If your client needs to prove later on that they have an expunction done, they’re not going to be able to do that by getting a copy from the clerk. So, make sure you keep that. The fact of the order is that the use the records for any purpose prohibited, the petitioner may deny the arrest, the occurrence of the arrest and the occurrence to the expunction in every case except from one. And the only time they can’t deny it is if; they’re under oath in a criminal proceeding, they can say or anybody else on their behalf’s can say the only that the matter was expunged. Now this they may say that it was expunged. That doesn’t includes somebody who remembers what happens from testifying from about it. But if the person wants to all they have to say is; that matter was expunged after it’s been completed.

Now, as far as allowing the person to deny the existence or occurrence of the arrest. May deny does not mean that you should deny and there are some important instances in which it’s not a good idea to deny it even though the expunction has been gone through. The big one is; immigration. The immigration the USCIS does not recognize state expunction. So if you have a client who’s applying for naturalization and they don’t admit that they were arrested for something that has been expunged, the feds are not going to recognize that and that could cause them a legal status. They may not get their green card or naturalization. So, beware of the limitations of that and it does take some time for these records to be expunged as well. The state and the agencies they get the expunction, it takes them sometime 2 or 3 months before they start sending the files back or sending the certification back. So, until that has actually been done that information could very well show up on background checks until it’s physically been expunged. So, until that time, you might want to consider other approaches to just straight up denying it. It may be the kind of thing where if your client has got a recent expunction and they really want this job it may be better for them to go in and say, like I was saying earlier; it was dismissed, its expunged, the prosecutor recommended it and I’m telling you coz I’m a stand-up guy, you know I don’t have to. The law allows me to deny it, but I’m going to let you know about it as well.

Last thing, compliance by DPS and by the other agencies; compliance is extremely important to make sure that you’re actually getting something for your expunction. You want to check the clerk’s file to make sure these files and these certifications are coming back because otherwise, you’re not going to know whether anything has actually happened on them. If the agency has the records, and they send back a certification that; they haven’t complied with the expunction because they don’t have any records and you know they have records, well that should tip you something off that there’s something wrong with your expunction. They’re claiming they don’t have these records, you know that they do, and that gives you a chance to fix that and say; why aren’t you claiming that you don’t comply with this, we know that you have the records, what’s the problem? And it’s a good idea to invest with the membership, at least with one of these background check companies. pulicdata.com; they had their problems in the beginning but it’s a lot more accurate now. So, that’s the kind of place where you can go check and see if your expunction has been really complied with by the private agencies. And then also get your client to get a copy of their criminal history from the DPS or the FBI. And one last thing on the DPS; in every case the DPS is going to send back an affidavit that they have complied with. So, we talked about earlier about the ‘no records trap’ where they’re going to, they’re going to say; we don’t have any records we’re not going to comply with the expunctions. Well, they’re going to send you back an affidavit that says they’ve complied with it. It doesn’t mean that they have done that! Ok? All that means is that; they have looked at it, and in so far as they’re aware based on the information they have, as far as they’re concerned, they’ve complied with it. Ok? But, what you’re getting is the exact same certification that you would get if they actually had complied with it.

So, you have no assurance that DPS has done anything at all. so if it’s a ‘no records file’ they’re going to send back the same certification that they would so, it’s very important that you have your clients go back to DPS get their secure criminal history information to see if DPS has actually done it and that’s really the only way to do it. because, like I said; the file gets destroyed on the first anniversary and the best practice though is to order the file to be returned to you instead of destroyed at the end of that year and that way you know you’re actually getting something for your expunction, you know that you actually have physically in hand the certifications and the file that has been expunged and so you know you’ve done something for your client. So, I’m afraid that’s all of time but,

Now, the statutes that you need to consider are in the court of criminal procedure articles 36.13 to 36.19. If you haven’t pulled out the court of criminal procedures and looked at those statutes, I suggest that you do! Often tell my students this at Saint Mary’s. Just get out your code and read the definitions. Read that part of the statutes. I’ve heard several speakers mention that today and that is; pull the statutes out and look at it. You might refresh your memory, you might learn you’d forgotten or you never knew in the first place. But never fear going back and looking at the statutes. The general framework of the charge! Ok. we appellate geeks you know use different tags for things as to appellate judges and I’ve found that young trial attorneys often get intimidated by those tags, it’s really very simple. Its sorta like computer language, it intimidates people like me.

Ok! The first part of the jury charge is the definitional portion. We call that the abstract portion of the charge. That’s where it’s basically definitions that are found in the code. If there’s not a definition in the code, then you should not have a definition, given to the jury. And a point on that I want to point out; have any of ya’ll had cases with a prosecutor tries to tell the jury what the law is? I mean I’m just guessing you know, just saying. Ok! Well, don’t let them do that. There’s only one person who gets to tell them what the law is and that’s the trial court through the jury charge. Don’t let the prosecutor pontificate, read from books what the law is unless it is in the jury charge and only then can they read from the jury charge. Also, you need to look at your indictment. I know! What a concept, but pull out your indictment and go back and look at it. Because sometimes we get so caught up in the details we forget to back, pull out the statute of the offense, look at your indictment and see; what the elements of the offense are! The jury charge should be restricted to; the indictment and the evidence put on it [30.46]. Non indictment theories should not be in your jury charge. Now let me ask some of you folks here; who prepares the jury charge in criminal cases? Who do ya’ll think?

the court reporter or the clerk of a court. That’s right! The parties really don’t create the charge like in civil cases. But I highly recommend to you, when you have the opportunity which you may not, but definitely try; get the charge the night before you charge conference. Usually the clerks that work for the trial court or the court reporters in some cases or perhaps the DA’s offices pre-prepared the charge, and created a charge bank for the court. Get that ahead of time, look at it, read it, compare it to your statutes. Because many times the people preparing that charge either aren’t attorneys’ or they’re very very young new briefing clerks who are working for court administration. I’m not saying that they’re not intelligent people, they are! But, they’re not attorneys’ who’ve taken the Rusty Duncan courses like you all. So, you know to go back and look.

Now defensive theories! This is where I think some prosecutors get tripped up sort of like Brady, ok! Trial court who are former prosecutors and never done anything else like some of them in Bare County. They tend to think that if the evidence is unbelievable or they think it’s stupid or they don’t like it, that you’re not entitled to a jury charge on your issue, on your defense issue. That’s not true! That is not up to the trial court, of course I’m talking about; jury trials coz theses are jury charges but that is not up to your trial judge and it’s not up to the prosecutor. Any evidence from anywhere whether it’s believable or not, raises your issue! Hammer it, make sure you get a charge on it, don’t accept no for an answer. What you need to remember also is that any jury charges you want, you must submit in writing to the trial court, that’s a new answer I’ve really started noticing from the Court Of Criminal Appeals and a variety of Courts of Appeals, if you have not submitted you jury charge in writing, it’s going to be over ruled on appeal though say it’s not properly preserved. And if the court does give a charge on something however, it has to be correct and we’re going to talk about problems with the jury charge. Now when I’m on most hated cases in my entire life and the 25 years I’ve been practicing law is malic! How many people are familiar with malic? I call it malic the horrible, it’s the dumbest case ever read, ok! Does anybody agree with me? Yea! May be, it is stupid! Ok, it is stupid.

Let me explain why I think that. Ok Malic says that “If there’s problems in your jury charge, the appliqué court is going to way the sufficiency by a hypothetically correct jury charge” ok! Not based on the indictment what Benson and Busser used to tell us, it’s going to be based on the hypothetically correct jury charge. What the hell is that! Ok why am I giving you their definition. Ok! A hypothetically correct jury charge, such charge would be one that accurately fits out the law is authorized by the indictment does not unnecessarily increase the state’s burden of proof unnecessarily restrict the state’s theories of liability and adequately describes the particular offense for which the defendant was tried. Ok, anything about defense rights in there? May be? No! How do you know what the jury relied on, if your jury charge’s messed up, that’s why Malic makes no sense to me. When I was the chief public defender here and I’m not currently but when I was we spent 6 years fighting this battle, trying and trying through Brooks and Fuller and many other cases, trying to get the court to undue Malic! Well until the presiding judge dies or retires, it does not going to happen! Ok, so I urge you to be careful with your jury charges and keep a solid eye on it because sufficiency will be measured as if the jury charge as correct!

So will be very hard upturning, overturning a case on sufficiency of the evidence based on jury charge error, Ok! Let me talk about talk about this for a moment, we had a case of my firm I think Mick Geris here I saw on earlier from Jim Well’s county which is out less. We had a cold case murder, we were handling on appeal. Horrible case, horrible case, dead girl been missing for 20 years, all they find is her bones and there’s really no clues hardly at all about what happened to this girl except one near do well who I think is the actual killer but when near do well who happened to be just be the State’s star witness ok. He’s the one who come forward with all the information and he knows everything and he was there and everything else to convict our client. Now incredibly at trial for the first time, this witness decided to testify the instead of the young girl being stabbed [as ledged] in the indictment that the killer “our client” held on to the knife blade and bludgeoned her with the handle part! Ok! What do you do with that? Well we tried every which way to get that undone and we haven’t but maybe doing Habeas here shortly. But the Court Of Criminal Appeals explain that, that there’s no variance there. That there’s simply manner and means, the gravamen of the offense is still the conduct and the result of the offense, murder is a result oriented offense which means you have to intent to kill! Alright, so the only issue left when we’re looking at manner and means, the only issue left is “Was there notice to the accused?” was his defense harmed in any way? Now if you’re [curt off] guard in trial where the big fat lair star witness changes a story, how are you supposed to defend against that and think 10 steps ahead? I don’t know! I don’t know!

But I found this case very very disturbing because the star witness was so unbelievable and completely flipped his story on its head but the Forth Court Of Appeals and Court Of Criminal Appeals said “That’s ok!” pops sorry! I keep forgetting to change my little slides here.

Ok I think, I think they faded amount because I forgot to keep changing them, sorry about that I got so excited here. Hypothetically correct recharges we’ve talked about that, ok on grounds of we’re not submitted to the jury. Ok! Let’s talk about “Byrd”, alright when we’re talking about theories that cannot be a harmless evidence that are a fatal variance, let me explain, this is one of the few cases I’ve seen in the last 15 years this harmful and Mike Robbins from the public defender’s office here handled this case when I was chief there. And this is kind of a funny case because it’s not something real real serious but [inaudible] Byrd was a shoplifter at Wal-Mart. Now! So this is a Mr. meaner courts from us than you prosecutors are and what the young prosecutors proved was that Wal-Mart was the victim of the theft. Ok, alright Wal-Mart usually kind like [K-Mart] used to be, you know that’s foremost shop lifting cases come from.

But the charging instruments said “Mike Morales”, but the prosecutor never linked up who Mike Morales was? What did Mike Morales have to do with Wal-Mart? Never linked it up and I have to tell you that the prosecutor on appeal fought this case tooth and nail, fought it fought it fought it but Halleluiah! We had Cathy Cochran write the opinion, again a very thoughtful considerate well informed opinion and she said that “A rose is not… may be a rose but it’s not a pickle” that’s what she read in the opinion, Byrd versus State “BYRD” and what she meant with you still have to get the person right. You have to get the correct victim. Ok! We had another case one time and I’m not going to say names on this one because all three of them are sitting district judges in the state. So, but they forgot to [inaudible], this is back in the day when we would cut the steps out and tape them on the [plead forms] do I remember that. Ok! May be some of the great [haired] people like me in here remember that cause we didn’t have computers. Most of us fall in that category, pre-computers or after computers ok?

Now! I was a pre-computer since I’m 50. So what happened was when they cut out that portion, put it on the steps, they cut out the language and forgot to include that said caused the death! Ok trial judge missed it, prosecutor missed it, defense attorney missed it, and so the client plea to a perfectly good aggravated assault not murder! Ok? It kind of a big problem there! In the state’s argument that well he knows who he is and he knows what he did and we shouldn’t have to put it in there, did not fly ok? You have to have that particular language in there. Ok murder is result of conduct crime ok we talked about that, I hear crickets from somebody’s phone, was that a hint? I got it! Ok, they application paragraph, let me go back, the application paragraph, that is the portion of the charge we’ve talked about the definitions. Ok the application paragraph is that part of the charge that says “Now if you so find that Betty Blackwell did strike Angela Moore with an object unknown to the grand Jury causing her death! You will Betty Blackwell guilty of murder” ok that’s the application paragraph, that’s where they take the allegations and the indictment and they apply to the facts of the case. It’s very very simple.

Now the application paragraph cannot include allegations that were not proven at trial and they were not in the indictment but what the appliqué court do is if it is given in the definitional portion correctly for example law parties and it’s not given in the application paragraph correctly, they will find [inaudible] so you need to make sure that its properly given to your jury.

Culpable mental states, I want a harp on this too long because this is kind of go back to law school days, but recklessness if you prove a higher degree of culpability, you have proven the lower levels. So then you have a lesser included offense, not a variance! And the trial judge may instruct the jury on any lesser included offense for which there’s some evidence presented to rationally convict the defendant of the lesser offense. So you want to make sure that if you ask for a lesser included offense that, that is a lesser included offense of the greater charge. Let’s see, ok we talked about… ok defensive issues, you are [] to defensive issue based again as I said a moment ago on evidence no matter how incredible it is, no matter how unbelievable it is, whether the trial court believes it or not.

Now how will they measure sufficiency of the evidence on appeal when the jury’s reject it that affirmative defense. Well there’s a case that came out this year called Matlock, it’s a 2013 CCA case in [] paper and Matlock talks about that it will be measured by the CIVIL standard, the rejection of the affirmative defense is measured by the CIVIL standard of sufficiency of the evidence. So basically if no rational juror could have rejected that affirmative defense for much like our legal sufficient [inaudible] in criminal cases then the appliqué court can say that the leme see the language, then the appliqué court can say that the affirmative defense was proven and that the jury was irrational in rejecting it.

Ok Almanza is normally the standard of review; I can tell you just based on my experience that the Court Of Criminal Appeals does not like Almanza. They call it “Almanza- The horrible” much like I hate Malic and there are steps being taken in their opinions where I see where they’re trying to get rid of Almanza, don’t let em’ do that. What Almanza says is that “If you objected trial, then you only have to show some harm but if you do not object trial, you have to show egregious harm. Ok while showing egregious harm with this court is pretty near impossible, it’s very very very difficult! Except with our Wal-Mart and Mike Morales case but showing some harm is even more difficult because it’s a lesser standard. But the Court Of Criminal Appeals is positioning itself where I see they want to do away with almanza and that if you don’t object then they’re not going to look at it! Just like other types of issues.

Commenting of testimony, now you have to be careful when prosecutors come up with their own charges or even if you come up with your own charge. The case is never rarely, reversed just based on the defense asking for jury charge. And sometimes as a matter of strategy you may [inaudible] you know what? The state didn’t prove their case, I’m not going to ask for lesser includes because I don’t want the jury to have something to hang its head on. Now that’s a tough call for you and your client, that’s a tough call! You’re the one who’s sitting through trial, you’re the one who’s going to have to decide on that with your particular jury but the trial court cannot make a comment on the way of the evidence. Like the case Mark Stevens was talking about earlier today where the trial court took it upon himself to says “Well if it were me, I would go ahead and tell my side of the story but that’s just me” ok well that was a comment! Clearly comment, now they found that it wasn’t harmful because it wasn’t an objection. Ok so object everything, put it in writing and make sure that you have it on the record that you disagreed with any comments or any jury charges given that you consider a comment on the wait.

Another thing to look at for is burden shifting, I’ve talked about moment ago, I had a conversation with [Clears throat] John Bradley, if you can call it a conversation and he was teaching at this one seminar couple of years ago and he was teaching this mixed group of different disciplines on DNA evidence, he was telling the prosecution that they should point out the defense could’ve brought their own DNA evidence and they chose not to. Ok I think that’s burden shifting you know I got a decision about that in front of the whole group and we have a difference of opinions on that. Do not let the Government or the state lessen their burden of proof, fight them on that every step of the way if he know a particular prosecutor is inclined to do certain things, follow pre-trial motions! Object on the record, ask for an instruction to just regard and then ask for mistrial. That’s the only way you’re going to preserve that kind of evidence, that’s the only way you’re going to preserve that kind of error!

Excuse me! Conjunctive allegations and disjunctive submission, that sort of sounds like a [I am faction] I know but that’s not! What we’re talking about their conjunctive means and disjunctive means or? Ok that’s really all it means. Some of my students get really confused about that, they think it’s something really really profound and horrible but it’s not. But basically the Penal statutes list the various ways of committing a crime in the disjunctive. The state’s pleadings should allege methods of crimes in the conjunctive that mean ain’t. Ok the court should instruct the jury and the disjunctive if evidence supports all the allegations so what we’re talking about there’s manner and means. Did he do it by strangling her with the ligature? Did he do it by stabbing her with a knife? Did he do it by shooting her with a gun? That should be or otherwise you’re not going to have jury unanimity which is also very very important.

Be careful of allowing a conviction on less than a unanimous verdict. Submitting two separate offenses to the jury in the disjunctive can cause a conviction on less than a unanimous verdict. So you still want to be careful with that.

Lesser included, we’ve talked about that, a jury cannot convict the defendant of lesser included offense of… of lesser included offense, it’s not submitted in the jury instructions, that means a jury can’t take it upon themselves to go back in the jury room and come up with their own offense or nor can the state argue that to them and urge them to find something that’s not in the jury charge. Ok, we’ve talked about result and conduct oriented offenses. Ok, supplemental jury instructions on the law of accomplice witness testimony given to the jury after jury argument began was not harmful because the instruction benefited the accused. Now this same case [inaudible] I was talking a moment ago, out of Alis at a Jim Wallace county I had a big problem with an accomplice witness charge not being given. And it was objected too all over the place, properly requested! And the star witness, basically the only proof the state had, was this cohort who was supposedly with my client when the killing happened and they said he was not an accomplice of course as a matter of law because he wasn’t charged but they wouldn’t even submit accomplice as a matter of fact for the jury’s determination. I urge all of you, when you have this type of scenarios; ask for that! Ask for an accomplice as a matter of fact. Why? Because they have to prove collaboration. Ok? They have to prove collaboration; someone can’t be convicted just based on a testimony of an accomplice. And that’s a big issue, so hang on to that.

Note taking! How many people… does your jurisdiction allow jurors to take notes? Anybody? Yeah? Ok. Well, some people think it’s good some people think it’s bad. I’m a note taker, notes would help me if I were sitting through you know the judio-arias trial. I think note taking might help me keep up with things. But again, I’m 50, so I have to take notes or I won’t remember. So, it just depends on your jurisdiction, it depends on your jury. [] depends on your facts whether or not you think note taking is helpful. But I’ve included in my papers ‘sample instructions’ to allow note taking or not to allow note taking because generally, if you are allowed to take notes, as a juror you’re not allowed to share those notes with the other jurors. You cannot become a fact witness in this case. Ok, those are 2 sample instructions. Ok! Again if during jury deliberations, a dispute arises as the testimony presented they have to note the dispute and then they can ask for the record to be read back.

Ok, disallow note taking, talked about that. Fifth Amendment concerns! I’ve never seen a situation where I would not want the jury charge about the defendant not testified if my client didn’t testify. In other words, the jury is instructed that they cannot use that as evidence against the client if he or she chooses not to testify. Now there is case law that says; if you don’t want that in there, from the defense perspective, you don’t have to have it in there. I can’t imagine why you wouldn’t because I think it’s very important to remind the jury that that is not evidence of the accused guilt. How many of you people have actually sat on a criminal jury? Anybody? A few? I know they left me on the jury in my hometown of Burney right now. And I was certain I would get strutted but I wasn’t! And I’ve to tell you it’s one of the best experiences I’ve had in a long time, and it was a misdemeanor; possession of marijuana. And we found him not guilty.

they won’t make that mistake again, right? Yes, ok. But I was really impressed with the thoughtfulness of the jury, they did read the instructions, they did follow them and they did consider all the evidence. So some of my Sinicism from reading so many cases and seeing so many cases, it was lightened a little bit. My Sinicism was lightened because these jurors really did take it seriously. So, you need to just weigh your experiences by your different jurors in your jurisdiction, it’s just going to depend. But again the law does presume that they are going to follow the instructions. Ok. The same is during the punishment phase of trial that if you request it, you are entitled to a charge on the defendants not testifying on his own behalf. If the prosecutor comments on that, that’s a ‘Doyle error’, it is reversible. Ok [inaudible] commenting on the accused there to testify has always constituted an improper prosecutorial trial tactic. Things such as: well the only person who knows didn’t testify today. Or, the dead person is the only person, he knows what really happened. Ok? Or you never heard Mr. Client say ‘he sorry’ that’s what’s all ‘Doyle error’ ok? Don’t allow it, object to it, file a pretrial motion or a motion alimony urging that the prosecution not engage in that. And again the defendant can reject that instruction on [inaudible] testify but I’m not sure why they would want to.

Ok, jury unanimity! That’s very important when you have different manner and means. But the court of criminal appeals has been very consistent in holding that the jury does not have to agree on the manner and means. They only have to agree on the gravamens of the offense which really kind of flies in the face of common sense but, that is the law. Ok. Ok. Different offenses have to allege in different paragraphs. Excuse me, different counts! Ok? I know we’re all a little tired right now. But I’ve seen courts of appeals very confused on counts versus manner and means. A count is like count one, murder, count, two, might be robbery. Two different people, ok? Those are 2 separate offenses. But when you’re talking about manner and means strangling with the ligature, stabbing with a knife, or shooting with a gun; you’re talking about manner and means. So you would have: offense, ok count 1, and then you would have paragraph A, B and C, different ways. So paragraphs are your manner and means, counts are the different offenses. We talked about focus of the offending gravamen. The appellate courts are only concerned with the gravamen of the offense. Ok? That is result oriented crime fight murder. That means you have to intend the result, not just the conduct. Now the court of criminal appeals, some of us are old enough to remember ‘Geesa’ I think Charlie Bare wood Geesa, a wonderful case that told the jury that if you have a doubt that we caused you to hesitate in the mis seriousness of affairs, something like that, then that’s the reasonable doubt! Well, the court of criminal appeals Paulson versus state in the year 2000 reversed Geesa. The jury is never charged on what the reasonable doubt means, it’s whatever they wanted to mean. So what do we do with that? I think that Mark’s suggestion of using that stair step and comparisons beyond a reasonable doubt with clearing convincing etc. I think that’s a really good way to explain it to the jury since you will not get a jury charge on that. Now, if the state and defense agreed to submit the Geesa instruction you can!

Now, I don’t know any prosecutors in the 4 or 5 county area I practice in that would agree to that. But maybe you’re fortunate and you can get someone to agree with you. I’ve never seen it. Conclusive irrefutable… I can’t talk I’m so tired I haven’t had a beer, conclusive irrefutable presumptions are unconstitutional. For example in 2202 ©. That is a rebuttable presumption but what that is, that has to do with killing of police officer and you know what’s a police officer, because he was in his distinctive uniform; that’s what 2202C talks about. Ok you can’t, the state cannot give jury charges based on the natural or probable results of their conduct. No! Those are not allowed. It’s unconstitutional to instruct a jury that the law presumes to intent the kill where deadly weapon was used or that the law presumes that a person intents the natural improbable consequences of his conduct. That’s a burden shifting. Ok, so read your jury charges. Make sure language like that is not in there. Also, instructing the jury that it can make inferences from various pieces of evidence can constitute a comment on the weight of evidence. So, the jury can make just reasonable deductions from the evidence, but they cannot decide issues based on speculation. That’s basically what that [inaudible] means.

Mandatory rebuttable presumptions! I know it sounds like Rebacken law school, doesn’t it? Jury instruction that shift the burden of proof as to any element of an offense to the defendant is constitutionally infirm instructions shifting the burden of persuasion on the element of intent after State proves the predicate acts violates of 14th amendment and creates a mandatory rebuttable presumption. The following instruction was ruled unconstitutional in Francis versus Franklin: the acts of a person of sound mind and discretion are presumed to be the product of a person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted. Ok, that was found unconstitutional. That was burden shifting. Ok, Section 2.05 of the Texas Penal Code provides that when the Penal Code or another penal law establishes a presumption with respect to any fact, it has the following consequences: if there’s sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact. What does that mean? I’m not sure. Honestly, I’m really not sure what that means.

Francisco Hernandez

Author Francisco Hernandez

More posts by Francisco Hernandez