CRIMINAL JURISDICTION

Supreme Court Discusses “Pre-Existing Right” to Keep and Bear Arms

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been several recent national news reports concerning the dramatic increase in the sale of firearms, particularly in Texas, since the election of Barack Obama as the next president of the United States. The day after Obama was elected, the Cheaper than Dirt gun store in Fort Worth, Texas sold $101,000 worth of merchandise. Guns stores throughout Virginia have reported that sales have increased by 50 percent since Election Day. The FBI reported that by October 26, 2008 there were 62,000 more background checks for gun purchases than in October 2007 – a 25% increase.

There is an unbridled fear among gun advocates that President-elect Obama has some “secret” plan to disarm America. This fear exists despite a ruling by the United States Supreme Court on June 26, 2008 upholding a decision by the United States Court of Appeals for the District of Columbia, Parker v. District of Columbia, 478 F.3d 103 (D.C. Cir. 2007), that struck down a longstanding ban on the possession of handguns in the District of Columbia. See: District of Columbia b. Heller, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

The Second Amendment to the United States Constitution provides: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The language of this amendment has been the subject of constitutional interpretation since its adoption on September 17, 1787. Over the last three decades the meaning of the Amendment has been one of the most hotly debated social and political issue in America. Two basic interpretations have evolved from this debate – both of which were put squarely before the Supreme Court in Heller.

Gun control proponents argue that the Second Amendment protects only the right to possess and carry a firearm in connection of with militia service. (more…)

Now what do WE Do with It

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The “election” is over. Former Illinois Senator Barack Obama is now President-elect Obama. While it was a tremendous victory for the “Audacity of Hope” movement, it was an even greater victory for those who believe that social justice, racial tolerance, political unity, and strong presidential leadership are needed for this nation to heal its daunting economic woes and restore its proper role as moral leader in the world community.

While 48 percent (and 57% of the white voters) of the 131 million people who cast votes in the presidential election did not vote for President-elect Obama, the Illinois Senator told them in his victory acceptance speech that he heard their concerns and would be their president as much as he would be the president of those who voted for him. The nation desperately needs that kind of inclusive leadership.

Yes we can. This nation must find the political will and moral courage to thoroughly reject political partisanship, to find ways to protect the retirement savings of the elderly, to stymie the ruthless pace of home foreclosures, to make the power brokers on Wall Street as accountable as the small business owners on Main Street, and to make sure that every citizen in this country has a reasonable opportunity to secure health care coverage.

Yes we can. The American people have spoken, both loudly and clearly. They believe that Barack Obama is the person who can achieve these lofty but attainable goals. All Americans now have a fundamental civic responsibility to support the President-elect as he undertakes the awesome task of making our individual lives better, safer and more productive. Indeed Barack Obama now has the opportunity to be the Roosevelt of the 21st century just as Roosevelt was the Lincoln of the 20th century and Lincoln the Washington of the 19th century – and we believe he has the incredible gift of intelligence, courage and fortitude to not only seize but fulfill this opportunity. (more…)

The Spousal Privilege in Criminal Cases

By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair

A potential client of the John T. Floyd Law Firm recently asked if his wife could be compelled to give testimony against him concerning possible criminal conduct. Like any answer to most legal questions, our answer to the potential client was “depends upon the circumstances.”

The United States Supreme Court in 1934 held that “The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” Wolfe v. United States, 291 U.S. 7, 14 (1934).

Five years ago prosecutors in Pacific County, Washington found themselves confronted with a “classic” husband and wife privilege situation. Tracy Johnson, a reporter with the Seattle Post-Intelligencer, wrote in a January 2005 story that David and Michelle Knotek lived in a “little red farmhouse” in rural Raymond, Washington. The couple had a 19-year-old nephew and two “boarders” living with them. All three eventually turned up missing. The Knotek’s daughters, reported Johnson, had “disjointed memories” of their parents beating the nephew and the boarders about the head, forcing them to take medication, and making them do outdoor chores in the extreme cold without any clothes on.

Prosecutors began talking to the daughters after the body of one of the boarders turned up in the Knoteks’ back yard. Forensic experts could not determine a cause of death and blood found in the Knoteks’ farmhouse could not be identified. The bodies of the nephew and other boarder were never found.

Prosecutors knew they had a triple homicide on their hands. But they also feared that they could not prove first degree murder in a courtroom because neither David nor Michelle Knotek could be compelled to testify against the other.
“[This] was a classic case where the husband saw the acts of the wife, the wife saw the acts of the husband, and everyone knew we couldn’t use the testimony of either one of them,” Assistant Attorney General Brian Moran told the Post-Intelligencer. (more…)

Multiple Counts, Lesser-Included Offenses and Double Jeopardy

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

One of the quiet abuses in the nation’s criminal justice system is prosecutors overcharging criminal defendants. In their zeal to prosecute and convict, prosecutors file multiple counts against a defendant in a single indictment involving the same criminal conduct knowing – or least possessing the duty to know – that two convictions based on the same conduct will almost always be reversed on appeal.  Criminal defense lawyers argue that many prosecutors charge multiple counts against a defendant in an attempt to prejudice a defendant, insinuating that the defendant must have done something to justify the multiple counts.  There were two recent examples of this prosecutorial abuse – one involving a Texas case and the other involving a federal case in California.

Jared Daniel Littrell was charged in a multi-count indictment in Potter County, Texas, with felony murder and aggravated robbery. The charges stemmed from a criminal scheme by Littrell and a prostitute to rob a former client of the prostitute. Littrell and the prostitute entered the client’s hotel room where a struggle ensued during which the client was shot and killed. See: Littrell v. State, 2008 Tex. Crim. App. LEXIS 1306 (Tex. Crim. App. Oct. 15, 2008).

The trial judge charged the jury with an instruction that it could convict the Littrell on both counts. The jury did just that, and assessed Littrell’s punishment at 30 years on the felony murder and 25 years on the aggravated robbery conviction. Littrell appealed his convictions contending that the Fifth Amendment’s prohibition against double jeopardy had been violated by his punishment for offenses based on the same conduct. The Amarillo Court of Appeals disagreed, holding that because the murder and aggravated robbery each contained an element the other does not, double jeopardy did not attach. See: Littrell v. State, 2007 Tex.App. 5988 (Tex.App.-Amarillo July 25, 2007). The Court said:

”To prove aggravated robbery as alleged in the indictment, the State had to prove, among other things, the commission of theft coupled with aggravating circumstances; such was not required to prove . . . murder . . . . To prove murder, the State had to establish that an act of appellant caused [the complainant]’s death; that element is missing in . . . aggravated assault [sic] . . . . So, the test espoused in Cervantes [v. State, 815 S.W.2d 569, 571-75 (Tex.Crim.App. 1991)] was met and no problems with double jeopardy arose.” Id. LEXIS at 6. (more…)

Flawed, Suggestive Photo Lineups Resulting in Eyewitness Misidentification and Wrongly Convicted

By: Houston Criminal Defense Attorney John T. Floyd and Paralegal Billy Sinclair

The Dallas Morning News (October 2008) ran two articles written by Steve McGonigle and Jennifer Emily that linked 19 DNA exonerations to faulty eyewitness testimony. These two investigative reporters opened their series with the tragic story of Wiley Fountain who spent 15 years in the Texas prison system wrongfully convicted of rape:

“Wiley Fountain was the obvious choice among the six Polaroids police assembled for the rape victim to review.

“He was the only man wearing a dark baseball cap and light-colored warm-up suit, similar to what the attacker had on. He fit the rapist’s description ‘to a T,’ a Dallas police officer later testified. The victim was sure. Prosecutors believed her. So did the jury. But all of them were wrong.

“In September 2002, after Mr. Fountain had spent 15 years in prison, DNA testing proved his innocence. Today, he is free but homeless, scrounging for aluminum cans on the rugged streets of South Dallas.

“The story of his wrongful conviction and that of 18 others is lifting the curtain on criminal justice in Dallas County, which has led the nation in DNA exonerations since 2001. In every instance but one, a Dallas Morning News investigation found, police and prosecutors built their cases on eyewitness accounts, even though they knew such testimony can be fatally flawed.” (more…)

The Critical Need For Timely And Specific Objections During A Criminal Trial

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There is rarely a time when a defense attorney does not find the need to object during a criminal trial because the prosecution either attempts to introduce inadmissible evidence or engages in some questionable conduct concerning the proffer of evidence.

Tex. R. Evid. 103(a) (1) requires a timely objection to the admission or exclusion of questionable or irrelevant evidence. The objection must be accompanied by a specific reason for the objection. Id. See also: Tex. R. App. P. 33.1(a) [defendant must make a timely and specific objection each time inadmissible evidence is offered at trial and secure an adverse ruling from the trial court on the objection]; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003).

Tex. R. Evid. 103(a)(1), however, relieves a defense attorney of the need to object each time the inadmissible evidence is offered if he either (1) requests a running objection or (2) objects to the evidence outside the presence of the jury. See, Geuder, 115 S.W.3d at 13.

These rules governing objections apply especially to hearsay evidence. See: Poindexter v. State, 153 S.W.3d 402, 409 (Tex. Crim. App. 2005). Tex. R. Evid. 802 provides that inadmissible hearsay admitted at a criminal trial without objection by defense counsel does not lose its probative value because it is hearsay. Id.

This brings us to the tale of two cases involving hearsay evidence. Objection to this evidence was properly handled by one defense attorney but horribly mangled by another. We’ll examine the latter case first.

Francisco Vasquez was tried and convicted in June 2005 for the murder of Eduardo Cantu in 2004. The jury assessed punishment at 99 years in the Texas Department of Criminal Justice. See: Vasquez v. State, ___ S.W.3d ____, 2008 Tex.App. LEXIS 2952 (Tex.App.-Corpus Christi April 24, 2008). (more…)

Supreme Court: Federal Judges Have Discretion at Sentencing

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Under the Sentencing Reform Act of 1984, a federal district court judge must consider each of the factors prescribed in 18 U.S.C. § 3553(a) when imposing an appropriate criminal sentence. The § 3553 factors are:

• “Nature and circumstances of the offense” and defendant’s “history and characteristics.” Id., at (a)(1). Under U.S. Supreme Court jurisprudence the sentencing judge is limited to those facts (1) “reflected in the jury verdict,” (2) admitted by the defendant, (3) contained in defendant’s guilty plea, or (4) reflect prior convictions. See: Blakely v. Washington, 542 U.S. 296, 303 (2004) [facts affecting sentence must be found by a jury].
• The general purpose of the Sentencing Reform Act. Id., at (a)(2). The purposes of this Act are to have a sentence “(A) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner …”
• The types of sentences available. Id., at (a)(3).
• The policy statements of the U.S. Sentencing Commission. Id., at (a)(5).
• The need to avoid sentencing disparities between defendants convicted of similar conduct. Id., at (a)(6).
• The need to provide restitution to victims. Id., at (a)(7).
• The applicable sentence range recommended by the U.S. Sentencing Guidelines. Id., at (a)(4).

Three years ago the United States Supreme Court held that the Guidelines are advisory and federal district courts were not required to impose the precise sentence recommended by the Guidelines. See: United States v. Booker, 549 U.S. 220, 245-46 (2005). Two years later the Supreme Court overruled the longstanding legal premise that district courts had to apply a provision of the Guidelines that made one gram of crack cocaine the equivalent of 100 grams of powder cocaine for sentencing purposes. See: Kimbrough v. United States, 128 S.Ct. 558, 575 (2007).

In the wake of Booker, the Honorable Linda R. Reade of the United States District Court for the Northern District of Iowa on November 21, 2005 sentenced James Eric Moore to a term of 188 months in confinement and six years of supervised release following a conviction for possession with intent to distribute crack cocaine. Moore had asked Judge Reade to impose a below-Guidelines sentence in light of the recent Booker decision. The judge replied: (more…)

Hearsay Statements of Child Abuse Victims and Delayed Outcry

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

“Hearsay” is a statement, other than one made by the declarant while testifying at a trial or hearing, offered into evidence to prove the truth of some matter being asserted. See: Tex. R. of Evid. 801. In English, hearsay is testimony about what somebody heard from somebody else. Hearsay testimony is generally inadmissible in a criminal trial. See: Tex. R. of Evid. 802. However, Article 38.072 of the Texas Code of Criminal Procedure provides an exception to the hearsay rule by allowing hearsay testimony in the prosecution of an offense committed against children twelve years of age and younger.

§ 38.072 is known as the “child outcry statute.” The statute applies only to statements made (1) by the child against whom the offense was allegedly committed and (2) to the first person to whom the child makes a statement about the offense providing that person is eighteen years of age or older. See: Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref’d).

The appeals court in Brown v. State, 189 S.W.3d 382 (Tex.App.-Texarkana 2006) addressed the “outcry” issue at some length. The case involved a 10-year-old child victim who was sexually assaulted by a friend of her father. The child reported the sexual abuse to her father. The victim was subsequently interviewed, at the behest of investigating officers, by a counselor with the Child Advocacy Center. The victim told the counselor that the first two people she told about the sexual assaults were her father and the girlfriend of the defendant. She also said that she later told her brother, aunt, and uncle. Id., at 384. At trial she prosecution called the counselor as an “outcry” witness to testify and introduced a videotape of the counselor interview with the child victim during the counselor testimony. Id., at 385.

On appeal defendant argued that by allowing the counselor to testify and permitting the introduction of the videotape, the trial court had violated the “outcry” provisions of § 37.072. The appeals court agreed. It pointed out that the victim had made outcries to her father and the defendant’s girlfriend before speaking to the counselor. The State argued that the counselor was the proper outcry witness because the victim gave her a more detailed statement about the sexual abuse than she had the other two persons. The court rejected that argument, saying: (more…)