Ok, let’s talk about sex cases. Fleming is the most intriguing case I think out there. Its pending right now in the court of criminal appeals and in Fleming, the question now is; does the Texas constitution actually that’s not the question. In 2011, the case went up from the Fort Worth court of appeals and it went up with this question “Does the Texas constitution require a culpable mental state to prove ‘Statutory rape’?” and right now of course we all know that it doesn’t!
So it doesn’t matter how reasonable you’re client’s believe is if he has sex with somebody who’s under age, he’s guilty, consent doesn’t matter, the reasonableness of his believe doesn’t matter, it is a true strict liability crime. Well, Fleming complaint in a motion to set aside or to request an indictment that’s not constitutional. If the court of appeals in Fort Worth first held that, “Well, he didn’t preserve his error because he didn’t make the proper objection, he didn’t preserve his issue that the state constitution provides more protection than the federal constitution”. So they threw him out.
It went PDR to the court of criminal appeals and the court of criminal appeals said,” No!” much to my surprise cause the courts wash cases out many times holding that the error wasn’t properly briefed, it wasn’t properly preserved and in this case the court of criminal appeals said, “The error was properly preserved!” and they send it back down to the court of criminal appeals to decide the issue on the merits mainly; does the Texas constitution provide greater protection and require a couple of mental state in the sex case, even if the federal constitution does not? Well, the Fleming court, the Fort Worth court says that,” the federal constitutional due process and state constitutional do course of law provide, identical protection because you’re not entitled relief under federal constitution neither are you entitled to relief under state constitution” so Fleming loses! The court of criminal appeals granted PDR again and they’re going to decide this question; does either the federal or the state constitution require culpable mental state or does either the federal or the state constitution entitle us to an affirmative defense that we had a reasonable belief that the victim was 17 or older? That could be a very important case, it seems far-fetched that we’ll win that issue but I got some comfort from this the ‘Celis’ case out of court of criminal appeals a couple of weeks ago. Totally different case, they were deciding; this guy had a law license at Mexico or he said he said he thought he did and that entitled him to practice in Texas.
And he lost in the court of criminal appeals but one of the statements made by the majority in that was; perhaps there may be an instance in which stature is un-constitutional has applied to the defendant because the jury is not permitted to consider his mistaken reasonable belief about a matter that a situation is before not before as here. I don’t know, it’s an issue we’re going to have to preserve I’ll tell you that and so I filed a motion and its part of my materials and it’s just a motion to set aside. In these cases I filed this and I complain that this is unconstitutional that it’s not giving us a culpable mental state or an affirmative defense’s unconstitutional under both the federal and the state constitutions.
Crabtree is an interesting case out of the court of criminal appeals, article 62.03 clearly requires as an element of the offense. And this is a sex registration case; a failure to register as a sex offender, that among other things that is the state has to prove that he was a sex offender and he failed to register but also when his failure, to offense that he should’ve ragged it for is from a foreign jurisdictions like a different state or different country that DPS has to make the determination whether that foreign conviction for sex offense is “substantially similar” to one that’s listed under the Texas statute and if not he doesn’t have to register.
Well! It’s kind of bizarre to require that determination to be made by DPS and Crabtree argued that; it wasn’t made here and because it wasn’t made here and because that’s an element of the offense, the state’s evidence was insufficient to convicting. The court of criminal appeals denied relief on that but the court of criminal appeals granted relied and says, “Look! The statute is very plain, if the legislature wants to change it, it can but that’s not our job to change it” and so Crabtree walked. If you’ve got a case in which your client is accused of failing to register in Texas, because of a conviction from another state, you got to take a look at Crabtree. I thought surely the legislature would fix this problem but I’ve been told I don’t know this for a fact but I’ve been told that did not! So that’s still a live issue if you’ve got a failure to register case, you got to take a look at Crabtree!
This is another, this is a sentencing enhancement, the two strikes you’re out you know, if you continuously abuse a child or may be if you’ve been convicted whatever it is, if you’ve been convicted I think of a prior violent sexual offense, they can enhance your punishment to life imprisonment; well the court said; there’s also a test for substantial similarity there for out of state or foreign convictions. That does not have to be determined by DPS but the court went on to consider a ‘Three pronged test’ and in Anderson it held that the state did not meet its burden, the North Carolina statute was not substantially similar to Texas statute, and therefore it could not cause an enhancement in Texas so if you’ve got one of those cases and they’re relying on a foreign conviction, take a look at Anderson. And the court said, “Look! Because of this two strike policies is very harsh and therefore court must be careful to ensure similarity and the determination must be made with some sensitivity’’ the court says.
Rosseau is a case in San Antonio. This statute was passed by the polygamist in mind. There’s no question about it, so they’ve enhanced ordinary sexual assault to second degree felony; to a first degree felony if you show that the defendant is prohibited from marrying his victim i.e. if he’s a polygamist, if he’s a polygamist, he can’t marry his victim and therefore a second degree felony becomes a first degree felony. Well what some creative prosecutors are doing is now applying across the board. So if you’re married to A and you allegedly sexually assault B, they charge you with the first degree felony. And Rosseau said, “It doesn’t seemed right to punish me for being married” And judge Herr locally agreed quashed the indictment, but the court of criminal appeals rejected that challenge and said, “We can’t say it’s a facial defect, we can’t say you’ve got a facial challenge to the statute” the court did say and so if you’ve got one of those cases think about trying to make that challenge and as applied statute as excuse me as applied challenge to the statute. Coz the court specifically left that argument opened for another day. It seemed like something’s wrong with that statute.
Bays v. State! Outcry testimony has to come in through a live witness and not a video tape. In Bays, the outcry statute replied but rather than called the outcry witness and put her on in subject her to cross examination; the state put on a video tape between the child and the outcry witness and the court said, “the statute doesn’t support that sort of procedure”. If you search and seize your cases, Judge Cochran is one of the judges we’re losing and she’s a very good thoughtful smart judge and whenever she suggests that we do something I pay attention to it and in Aguiree she did make that suggestion, she said that; the facts in that case, the court in Aguiree went on to up hold the, the search there and deny relief to the defendant but Cochran said,” The facts presented barely passed the red faced test that is she said they so ridiculous however nobody requested findings of facts the judge didn’t make them and in that situation review is highly differential and basically anything factually speaking that the trial court does is going to be up held” So Cochran suggested this, “The losing party in a motion to suppress should always request findings of fact. The failure to do so here ‘Sealed appellant’s fate on appeal’. Absent specific findings, the appellate court’s hands are tired, ‘Factual findings can only help the losing party on appeal’.” I’m not sure I agree with that but she’s pretty strongly stating it so I’m going to give it serious consideration and I think when we lose motion, do you ever lose a motion as suppress? I lost a few! I think I’m going to start with requesting finding of facts with team leads.