CRIMINAL JURISDICTION

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

December 19, 2009

THE REAL DANGER OF EXTRANEOUS OFFENSE EVIDENCE

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 9:09 am

Man Convicted on 2 Counts Indecency with a Child Found Actually Innocent After Nearly Two Decades in Prison: Extraneous Evidence False, Expert Testimony Wrong.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written on numerous occasions about the dangers of “extraneous offense evidence” when allowed into evidence in a criminal trial. What is extraneous offense evidence?

Extraneous evidence is evidence of another crime, wrong or bad act that is not relevant to proving the specific allegation made in the charging instrument, information or indictment.  For example, a prior unrelated DWI conviction would be an extraneous crime in an arson case.  It would generally be inadmissible in the guilt/innocence stage of a criminal case because it is irrelevant to the arson charge and has no bearing on any fact that is of consequence in that case.

Evidence of other crimes, wrongs or acts that are extraneous to the underlying charge are specifically inadmissible to prove the character of a person to show that person acted in conformity therewith.  There are exceptions however when it can be shown that the evidence is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Texas Rules of Evidence 404(b).

If a court finds this evidence is admissible for one of the listed exceptions, and after proper defense objection, the judge must conduct a balancing test under which the court weighs the probative value (its relevance to some issue such as motive, intent, opportunity, plan etc.) against the risk of unfair prejudice, confusion of the issues or misleading the jury caused by the evidence.  Texas Rules of Evidence 403. (more…)

October 7, 2009

ROGUE JUROR DID NOT PREVENT ACQUITTAL

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:32 pm

Another Not Guilty: Client Falsely Accused of Indecency with Child Acquitted After Trial by Jury

By: Houston Criminal Defense Lawyer John Floyd

Every prospective juror summoned to court for jury duty in a criminal case is questioned by counsel for the State and defendant as to his/her willingness to follow the law as given by the judge at the conclusion of the trial. A prospective juror who cannot, for whatever reason, state unequivocally that he/she will follow the law is excused for cause. Thus, a juror accepted by both the defense and the State for jury service has a solemn duty bound by a sworn oath to follow the law.

Myself, and Co-counsel Christopher Carlson, recently faced the dilemma of a recalcitrant juror who decided several hours into jury deliberations that she no longer wanted to participate in the proceedings. We were trying a particularly difficult indecency with a child case based on the allegation by a thirteen year old girl who charged that our client had inappropriately touched her during a recreational outing. The teenager had been sent to stay at our client’s residence while her mother recuperated from a serious illness. After her father picked her up at the residence, and as they drove home, the teenager reportedly told her father that our client had touched her inappropriately during her weekend stay at his residence. The father conveyed this information to his wife and together they contacted the police.

This case from the very beginning was a classic “he said, she said” case. It did not matter to law enforcement that our client was a law-abiding citizen with impeccable community credentials, who was known to be a decent, caring family man.

Unfortunately, Texas law is quite clear that the testimony of a child alone in a sex case is sufficient to support a criminal conviction. 1/ In fact, the statement the 13-year-old made to law enforcement, standing alone, was sufficient legal evidence to support a criminal conviction against our client. 2/ The State need not proffer medical evidence, forensic evidence, or corroborating testimony to support the victim’s testimony. “She said” evidence is all that is needed to not only bring about a criminal indictment but a conviction as well. (more…)

July 29, 2009

A GOOD FAMILY DOCTOR OR A SECRET PEDOPHILE?

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 12:09 pm

Child Pornography and Exploitation

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Neighbors say the couple that lived in the $1 million home in the 11100 block of South Country Squire Road were “the sweetest on the block” who brought cakes to the new home owners that moved into the exclusive neighborhood. The 69-year-old orthopedic surgeon who lived at the residence was considered the “ideal grandfather figure.” He reportedly bought expensive gifts, including rent-free houses, for the economically deprived parents of several of his youngest child patients. Over a two-decade period he spent as much as $250,000 on these gifts.

But, according to police and Harris County Assistant District Attorney Eric Devlin, the doctor was a secret pedophile who began molesting some of his male child patients as young as four years of age and continued the molestation into the patients’ teen years. Following a two-year investigation by the Houston Metro Internet Task Force that began when a former abused patient, now an adult, came forward and reported the abuse to the police, the doctor was arrested on July 21, 2009 for sexually abusing four former patients when they were young boys.

The arresting authorities told the local media that The doctor was the “smartest, most obsessed” pedophile they had ever encountered. They pointed to two police vans of evidence, including videotapes of the sexual abuse, seized from his office and residence to support this claim. The Houston Chronicle reported that some of the evidence seized included “dozens of binders” of photos of children and news stories about “kidnapping and child brutality.”

“All the time he spent cutting out pictures of little kids, articles about rapes, murders, and brutal deaths and information that would help him ingratiate himself with his victims and any future victims,” Houston juvenile investigator J.R. Roscoe told the Chronicle, “that’s a lot of research. He was very friendly, very kind, a sweet old man. He would be the ideal grandfather, for the role he played.” (more…)

May 12, 2009

JUDGE SAMUEL KENT: SHOULD HE BE IMPEACHED?

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 1:47 pm

SHOULD HE CONTINUE TO RECEIVE HIS PENSION?

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

These two questions have stirred considerable debate in both the legal community and general public in south Texas. Normally it is not a subject that would provoke a response by us. But the tenor of those demanding the impeachment of Judge Kent and those who have said he should not receive his pension have caused us some concern. Now that the federal judge has sentenced to 33 months in prison, we decided to weigh in on these two important questions.

The impeachment question is the most difficult one to address. Normally we would say that Judge Kent should be impeached because he was convicted of a serious felony. But the current congressional view of when a federal judge should be impeached gives us pause for concern.

Ninth Circuit Court of Appeals Judge Jay Bybee was head of the U.S. Justice Department’s Office of Legal Counsel under the George W. Bush administration before the former president rewarded Bybee with a life time federal judgeship appointment. Judge Bybee was the top Justice Department official who signed the legal memorandums authorizing the CIA to use torture techniques such as water boarding, wall-slamming and sleep deprivation during the interrogation of “terror suspects” in the wake of 9/11. Judge Bybee’s conduct at the time violated clearly established international law, existing federal law, and America’s longstanding policies for the treatment of captured “enemies of war.”

A significant number of organizations and media outlets have begun pushing for either the resignation or impeachment of Judge Bybee. For example, The New York Times in a recent editorial said that Judge Bybee’s role in the torture approval process “made it clear that [he] was not fit to make judgments about the law and the Constitution.” (more…)

April 11, 2009

CHILD PORN: AN INCREASING PROBLEM IN ALL SEGMENTS OF SOCIETY

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 12:00 pm

Federally Funded Task Forces Make Online Crimes Against Children Top Priority

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

There has been a recent rash of media reports about local residents getting arrested or sentenced for possession of child pornography. For example, on March 13, 2009, the Houston Chronicle carried a report about a Houston attorney being given a six and one-half year sentence by U.S. District Court Judge Sim Lake. Williamson possessed 84 child pornography images on his computer. After he completes his prison sentence, the suspended attorney will be under “supervised release” for the rest of his life, must register as a sex offender, and attend a sex offender treatment program.

The following day the Chronicle carried a story about a 24-year-old Somerset, Kentucky man being charged with promotion of child pornography, online solicitation of a minor and sexual performance of a child. He was indicted for persuading an 11-year-old Humble girl to send him nude photographs of herself while the two played video games online with their PlayStation 3 consoles last December.

“This is another venue these guys are getting to use now that hasn’t been seen before,” Sgt. Gary Spurger, a Harris County Precinct 4 deputy constable, told the Chronicle. “They’re on PlayStation or Xbox playing online games.”

A March 19, 2009 Chronicle article featured the arrest of a former member of Bikers Against Child Abuse, a child abuse prevention organization. He was also arrested for possession of child pornography. And that same day the Chronicle carried yet another story about the federal child pornography indictment of a convicted sex offender already serving time in a state prison for a 1996 possession of child pornography conviction. This man had been given a state probation but had it revoked after he failed to register as a sex offender. The current federal indictment charged Hale with possessing child pornography while he was on state probation. (more…)

March 31, 2009

A TEXAS BIGAMY DEFENSE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:48 am

The Constitutional Implications of Lawrence v. Texas on the Texas Bigamy Statute

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

The State of Texas will probably experience of series of bigamy trials stemming from the mass arrests made in the “infamous FLDS case” last year. The John T. Floyd Law Firm has been asked on a number of cases if there is a legitimate constitutional challenge to the Texas bigamy statute. See: Tex. Penal Code, § 25.01.

This answer to this question must necessarily begin with an analysis of a 2006 decision by the Utah Supreme Court, which rejected a litany of constitutional challenges to that state’s bigamy statute, and compared to the Texas statute. See: Utah v. Holm, 137 P.3d 726 (UT 2006), cert. denied, 127 S.Ct. 1371, 167 L.Ed.2d 159 (2007).

Rodney Hans Holm was convicted in Utah for bigamy and unlawful sexual conduct of a minor. He was legally married to Suzie Stubbs in 1986. As a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), he participated in a “religious marriage ceremony” with Wendy Holm. At age thirty-two, Holm participated in yet another “religious marriage ceremony” with the sister of Suzie Stubbs, sixteen-year-old Ruth Stubbs. Ruth moved into Holm’s house where Suzie, Wendy, and their children already resided. By the time Ruth turned eighteen, she had conceived two children with Holm. Id., at 730.

Holm was arrested, charged with three counts of unlawful sexual conduct with a minor, and charged with one count of bigamy. The jury returned a guilty verdict on each of the charges, and Holm was sentenced to five years on each conviction, with the sentences to be served concurrently, and fined $3,000.00. The sentences and fine were suspended conditioned on three years probation, one year in the county jail with work release, and two hundred hours of community service. Id., at 731-32. (more…)

February 26, 2009

BAD DAY AT BLACK ROCK FOR JUDGES IN SOUTH TEXAS

Filed under: Federal Defense Attorney — Tags: , , , , , , , , — johntfloyd @ 3:06 am

Judges Reap What They Sowed

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

There may be no Hero to the rescue in this dark drama hanging over the state and federal judiciaries in South Texas. The clouds in the horizon are as ominous as those that preceded Hurricane Ike last September. A sitting federal judge, the Honorable Samuel Kent who formerly oversaw maritime law cases for the past seventeen years in Galveston, was facing trial in a Houston federal district court on federal sex crime charges. The local media was reporting that attorneys who regularly practiced before Judge Kent were following the case with utter amazement and, we suspect, a near morbid fascination.

According to media reports, Judge Kent dominated proceedings before him with a harsh gavel and was known for what the Houston Chronicle called “biting written opinions.” Life indeed has a peculiar knack for turning things topsy-turvy. So it was with Judge Kent who found himself facing trial on five sexual abuse charges involving two former employees and one charge of lying to a Fifth Circuit Court of Appeals judicial commission assigned to investigate the sexual abuse allegations.

Represented by the preeminent Houston criminal defense attorney Dick DeGuerin, Judge Kent had been vociferous in his protestations of innocence during pre-trial court proceedings. Through a number of pre-trial pleadings, DeGuerin indicated a series of seemingly conflicting defenses: 1) the employees consented, 2) the judge suffers from erectile dysfunction, and 3) the judge is so consumed by such a powerful ego that he may not have been able to discern if the employees actually consented to alleged sexual advances he made towards them.

A recent Chronicle article about the Kent case quoted Arthur Hellman, a University of Pittsburgh expert on federal judicial discipline: “This is unprecedented,” Hellman said, pointing out that a few other federal judges have faced criminal trials involving “money and corruption” issues but none for sex offenses. (more…)

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…)

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