CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

February 14, 2009

OBJECTIONS, BOLSTERING, AND APPELLATE REVIEW

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 6:33 pm

Objections to Bolstering Testimony Should Communicate Evidentiary Basis

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

The Texas Rules of Evidence, Article 103, requires that a timely objection be based on a specific ground in order to preserve for appellate review an alleged trial error concerning the admissibility of evidence.

An en banc Texas Court of Criminal Appeals seventeen years ago held that “… all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.” See: Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim. App. 1992).

The Court of Criminal Appeals recently reaffirmed the Lankston principle that objections to the admissibility of evidence must be both timely and specific to preserve an issue for appellate review. See: Rivas v. State, 2009 Tex. Crim. App. LEXIS 98 (Jan. 28, 2009). The Rivas court rejuvenated the language of Lankston to set the stage for its ultimate ruling, saying:

“Our system of justice is characteristically adversarial. One consequence is that many substantive and procedural features, especially most evidentiary rules, are really optional with the parties. Although we may speak of evidence as inadmissible, it is more precise, if not more correct, to say that the rules make such evidence objectionable. Indeed, this is just another way of calling attention to the fact that no issue concerning the admissibility of evidence ever arises unless one of the parties objects to it.

”It follows that the trial judge’s role in the admission and exclusion of evidence is generally not called into play unless a dispute develops between the parties concerning the proper application of an evidentiary rule. And because, absent any such dispute, our system generally expects him not to interfere with the presentation of evidence, it likewise does not fault him for refusing to interfere when a party fails to make the basis for his objection known. Beyond this, there are no technical considerations or form of words to be used. Straightforward communication in plain English will always suffice.” Id., at LEXIS 1-2. (more…)

February 7, 2009

OBSCENE EMAILS AND CARTOONS NOT PROTECTED BY FIRST AMENDMENT

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 3:25 pm

Obscene Drawings, Cartoons, Sculpture, Paintings that Depict Minors Engaged in Sexually Explicit Conduct Not Protected Free Speech

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

On March 30, 2004, Dwight Whorley visited a public resource room maintained by the Virginia Employment Commission in Richmond. The room is equipped with Commission computers, printers and copiers which may be used by job seekers. A woman in the room noticed that Whorley was receiving what appeared to her as child pornography on a Commission computer. She promptly alerted Commission staff about suspicions. An officer manager and two supervisors went to the resource room where they found Whorley standing in front of a printer with some papers in his hand. One of the supervisors requested that Whorley show him the documents. Whorley complied. The documents depicted Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.

The office manager made a determination that Whorley had inappropriately used the Commission’s computer, restricted him from further use of the computer, and escorted him from the premises. The manager then returned to the computer Whorley had been using and found his Yahoo e-mail account was still open. Commission employees discovered several more copies of the sexually explicit anime-style cartoons by the computer. After printing off several of Whorley’s e-mails and removing the computer from service, the Commission office manager notified his supervisor and state police about the incident.

A subsequent law enforcement investigation determined that Whorley was already on a federal probation for a 1999 conviction for downloading child pornography on a Virginia Commonwealth University computer at the time of the Commission incident. The local U.S. Attorney’s Office presented to a grand jury the cartoons copied by Whorley at the Commission room, the data in the computer he used in the room, and information received from Yahoo about his e-mail account. Based on this evidence, the grand jury returned a 75-count indictment against Whorley alleging:

Counts 1-20 charged that on March 30, 2004 Whorley knowingly received obscene cartoons in interstate and foreign commerce in violation of 18 U.S.C. § 1462. These counts were based on 20 cartoons depicting prepubescent children engaged in sexually explicit acts (including masturbation, intercourse, and oral sex) with adults, some of which were coerced. (more…)

January 2, 2009

ONLINE SOLICITATION OF A MINOR

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 5:35 pm

Online Solicitation of a Minor Statutes and Free Speech

By:  Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In 2005 the Texas Legislature enacted Article 33.021, Texas Penal Code, which prohibits “sexually explicit” communications between someone who is 17 years or older and someone who “represents himself or herself to be younger than 17 years of age.” Some respected legal bloggers have opined that such online sexually explicit “communications” may violate the First Amendment’s guarantee of free speech.

Existing case law, however, indicates this will be a difficult constitutional violation to establish. A First Amendment challenge to a criminal statute must be based on two established constitutional doctrines: overbreath and vagueness. First, “the overbreath doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).

Although similar, the vagueness doctrine is not identical to the overbreath doctrine. A criminal statute runs afoul of the First Amendment for vagueness if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.” See: Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)

The issue of whether § 33.021 violates either doctrine has not been addressed by either the Texas Court of Criminal Appeals or the federal courts. But it should be pointed out that § 33.021 is similar to 18 U.S.C. § 2422(b) which prohibits: (more…)

October 18, 2008

THE PITFALLS OF DELAYED OUTCRY TESTIMONY

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 4:05 pm

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…)

October 16, 2008

FABRICATION:

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 3:11 am

The Only Defense In Sexual Assault Cases Not Subject To Rebuttal Evidence, Keeping Extraneous Crimes, Wrongs, and Acts Out

By Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Writing in her book “The Cross-Examination of a Young Child in a Sexual Assault Case: Voice for the Defense” (Oct. 1999), Annabelle Hall said that jurors following a sexual assault trial involving a child raise the following questions:

  • Why would a child lie about sexual abuse?
  • How can a child know so much about sex if she has not been abused?
  • Would a child lie about sexual abuse?
  • Why would a child make the story up?

These questions clearly demonstrate why a defense attorney in a sexual assault case faces such a difficult task establishing a “fabrication” defense. A “fabrication” defense in a sexual assault case is premised on the theory that the victim has “made up” or deliberately lied about the sexual assault. As difficult as it may be to logically wrap the mind around this concept, reliable studies (including the U.S. Justice Department) have revealed that anywhere between 25 to 60 percent of all sexual assault allegations are false. Put simply, somewhere between one-quarter to one-half of the rape allegations leveled in this country are fabricated for one reason or another. Many involve child victims.

Why would a child lie about such a thing?

In Cross-Examination of Child Witnesses, presented at the 19th Annual Rusty Duncan Advanced Criminal Law Short Course in San Antonio, Texas (June 15-17, 2006), Houston criminal defense attorney Stanley G. Schneider and Dallas doctor Mark Blotcky partially answered this question:

“False allegations of sexual abuse are usually simply incorrect. They are initiated by parents or a third party, e.g., this occurs due to the hyper-vigilence [sic] of parents of young children after their parents have been sensitized by sensational news media coverage of sexual abuse scandals. Pediatricians and child mental health professionals by law also make reports to Child Protective Services of any ‘suspected’ child abuse without having to confirm its veracity. They may be acting perfunctorily and simply reporting abuse based upon a small amount of information provided by the mother, the child, or exhibited by the child’s physical or behavioral symptoms. I know clinicians who feel compelled to report even when they believe it’s highly improbable that abuse has occurred. They are practicing defensive medicine. The report itself may then become overly weighted “evidence,” as though there had been some real investigatory work done or an expert professional opinion rendered about the abuse, though the report is simply conforming to the law to report any suspected child abuse. Remember, very disturbed children, previously sexually abused children, bipolar children and others may exhibit eroticized behavior without being sexually abused. It is then easy to understand why a ‘third party’ makes a report.” (more…)

October 9, 2008

THE ACQUITTAL

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:23 pm

THE ACQUITTAL

John Floyd Secures Not Guilty After Jury Trial, Aggravated Sexual Assault of a Child younger than 14, 263rd District Court, Harris County, Case No. 1156699

A former Precinct 4 deputy accused of aggravated sexual assault of a child was found “not guilty” after three days of trial and six hours of jury deliberation. The State argued the defendant, in 2000, sexually assaulted an 11-year-old girl when he was a detention officer at the Harris County Juvenile Detention Center where the girl was detained.

After announcing their verdict, the jurors stated that they simply did not find the complaining witness’ testimony credible and accurate enough to convict the defendant for such a serious crime. The defense – led by John Floyd with the able assistance of co-counsel Chris Carlson and paralegal Billy Sinclair – presented the defense that the complaining witness’ sexual assault allegation was fabricated. This defense was supported by inconsistencies with other witness testimony and discrepancies in the prosecution’s evidence.

The prosecution supported its case with the 7-year delayed outcry testimony of the complaining witness and the testimony of a twice-convicted and currently jailed felon.

Bound by their oath to follow the law on the issue of “reasonable doubt,” jurors stated they simply could not attach any meaningful credibility to the prosecution’s case. In fact, one juror was so frustrated by the prosecution’s inept handling of the case that the juror posted a comment on the Houston Chronicle website that the prosecutor should have been jailed.

The not guilty verdict in this case follows a year of success for the John T. Floyd Law Firm in defending individuals falsely accused of sex offenses. Earlier this year, Mr. Floyd secured another not guilty, an acquittal by directed verdict, after a jury trial on charges of sexual assault in the 176th District Court of Harris County. Mr. Floyd also obtained a no-bill from a Harris County grand jury for an individual charged with sexual assault of a child in case number 111785 before the 184th District Court of Harris County, Texas. This was also a delayed outcry case. In August, Mr. Floyd obtained dismissals on two cases alleging indecency with a child, in cases 46527 and 46528, days before jury trial in the 400th District Court of Ft. Bend County, Texas. (more…)

October 6, 2008

A DISTRICT ATTORNEY’S PROFESSIONAL INDISCRETION

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:27 pm

Prosecutor Hands Jury Sour Grapes After Not Guilty Verdict

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The John T. Floyd Law Firm faced a recent difficult three-day trial in a Harris County courtroom. The District Attorney’s office had charged a defendant with aggravated sexual assault of a child. It was a classic delayed “outcry” case. The case was assigned to one of the very best prosecutors in sexual assault cases. She signaled early in the motion practice stage of the case that she would be a determined adversary willing to go to extraordinary lengths to secure a conviction against our client.

Faced with the natural bias against criminal defendants charged with such sexual offenses, the John T. Floyd Law Firm met the prosecutor’s frontal assault in the pre-trial process with fierce counter attacks. While our investigators located key witnesses and produced valuable documents and our paralegal pursued relentless legal research, the trial attorneys pursued discovery and formulated an aggressive “take no prisoners” fabrication defense. At trial, the defense attorneys focused on the primary objective: convince the jury that the prosecution’s case, from top to bottom, was not credible without opening the door to any damaging rebuttal evidence on the fabrication defense.

The jury got the case on a Wednesday morning at 10:30 a.m. By 11:30 a.m., and after the jury had requested to review a piece of evidence, it was evident that the prosecution had not secured its normal “quick” guilty verdict. The jury had questions. Questions meant doubt. Doubt meant the prosecution had not immediately closed the deal on guilt beyond a reasonable doubt. Twice more by 2:30 p.m. the jury asked to review portions of certain testimony. The prosecution team grew nervous. They fidgeted and engaged in “pass the time” conversations in the courtroom. Uncertain, hollow laughter emanated from their group discussions. Unconsciously, they got up and moved about the courtroom which had long emptied of the hustle and bustle of the routine guilty pleas entered earlier in the day. The “expert” child sexual assault prosecutor betrayed her obvious concern with defensive body language and constant need to get up and move about.

Then at 4:30 came the two rings of the bell signaling that the jury had reached a unanimous verdict. The defense team quickly assembled and moved back to the defense table with their client. They were cautiously optimistic. The trail signs indicated at a minimum a “hung jury” decision but now there was a real possibility of a “not guilty” verdict. They dared not speak the latter hope. Never tempt the hand of fate. Let fate chart its own course. Hope leads to raised expectations, and raised expectations can so easily crash against the sea wall like a violent incoming wave. (more…)

October 4, 2008

DOES CHILD SEXUAL ABUSE LEAD TO FUTURE MENTAL ANQUISH?

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 4:19 pm

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

If you were raped at age nine by your local YMCA counselor, do you think you would endure what is known in legal parlance as “future mental anguish?”

At least one Texas court of appeals did not think so: the Court of Appeals for the Fourth District of Texas.

The case originated in San Antonio. The local YMCA owns and operates a summer camp called Camp Flaming Arrow (CPA). The parents of a nine-year-old boy enrolled their son into CPA’s summer program. Beginning in 1998, CPA employed a counselor named Kenneth Trimble. In the Spring of 2000 YMCA learned that Trimble had been arrested for sexually molesting 20 children at CPA during his two-year employment. One of those was nine-year-old “Adam Adams” (a court-designated name). Trimble confessed that he had “sexually inappropriate contact” with young Adam. See: YMCA v. Adams, 220 S.W.3d 1, 2-3 (Tex.App.-San Antonio 2007). The court of appeals described that “sexually inappropriate contact” as follows:

“A. A. testified that one night he awoke screaming and Trimble went over to check on him but got into his bed and was bumping him. Both A. A. and Trimble were fully clothed. Apparently, this was the only incident occurring between A. A. and Trimble.” Id., at 3.

Adam’s parents sued the YMCA under the theory that its negligence in hiring, retaining, and supervising Trimble caused Adam’s injury. A civil jury returned a verdict with the following findings:

Trimble intentionally and knowingly caused serious mental impairment or injury to Adam;

YMCA’s negligence caused the injury;

Responsibility for the injury should be apportioned 95% to Trimble and 5% to YMCA; and

While Adam sustained no past mental anguish, he would probably sustain $500,000 in future mental anguish damages.

(more…)

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