"[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent...

8. Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'") (quoting Hayes, 434 U.S. at 363).

The housing authority contends that Texas has only one judicial eviction procedure, and, therefore, its generic notice was sufficient. We disagree.

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NUMBER 13-07-00277-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG CORPUS CHRISTI HOUSING AUTHORITY , Appellant, v. MARIA LARA, Appellee. On appeal from the County Court at Law No. 5 of Nueces County, Texas. O P I N I O N Before Chief Justice Valdez and Justices Garza and Benavides Opinion by Chief Justice Valdez Appellant, Corpus Christi Housing Authority, appeals from an order dismissing its forcible detainer action against appellee, Maria Lara, a housing authority tenant. (1) See Tex. Prop. Code Ann. § 24.002 (Vernon 2000). The housing authority terminated Lara's residential lease because she allegedly violated lease provisions, provided Lara with formal notice of the lease termination, and subsequently obtained an eviction judgment from a justice court. See id. § 24.004 (Vernon 2000). Lara appealed to a county court at law and moved to dismiss the housing authority's action because its notice was defective under controlling federal rules. The trial court granted Lara's dismissal motion. By two issues, the housing authority contends that the trial court erred by dismissing its suit because: (1) its notice was adequate; and (2) even if the notice was inadequate, Lara had actual notice of the lease termination. We reverse and remand. I. Background (2) Lara leased an apartment from the housing authority on November 27, 1995, and she has lived in a housing authority apartment ever since. The housing authority terminated Lara's lease on October 10, 2006 because Lara, her minor son, and her daughter allegedly engaged in criminal activity, which was a violation of the lease provisions and federal law. A. Alleged Criminal Activity The events underlying the lease termination occurred on the evenings of September 19 and October 2, 2006. On September 19, Officer J. Cantu received a call regarding a speeding motorcycle on the street in front of Lara's apartment. According to Officer Cantu's report, he witnessed a motorcycle traveling at a high rate of speed on a street where children were playing. Upon stopping the motorcycle, Officer Cantu questioned the driver, who identified himself as P.L., Lara's minor son. P.L. was not licensed to operate a motorcycle, and the motorcycle was not registered. Officer Cantu then made contact with Lara and her daughter, who "were in aggressive postures and were vulgar and vocal" to him according to his report. Officer Cantu's report noted that P.L. was "cited," but it did not specify what, if any infractions were included in the citation. Officer Cantu did not arrest anyone during his investigation. On October 2, Officer Casares was dispatched to investigate a reported disturbance at Lara's neighbor's apartment. Upon arriving, Officer Casares met with Rosario Navarro, Lara's neighbor. Navarro told Officer Casares that Lara threatened her because she would not provide false testimony about the incident that occurred on September 19. Navarro recounted to Officer Casares that one of Lara's male relatives approached her in an aggressive manner and pushed her away with his stomach. Navarro also advised Officer Casares that she had heard that Lara was making death threats against her. Navarro expressed to Officer Casares that she feared for her safety because of previous incidents and threats. B. Lease Termination and Eviction Proceedings The housing authority terminated Lara's lease when it received the reports from Officers Cantu and Casares. On October 10, 2006, the housing authority provided Lara with a "72-[H]our Notice to Terminate the Lease and Notice to Vacate," which claimed that Lara had violated lease provisions by engaging in prohibited conduct. The notice stated that Lara's lease would be terminated on October 13, 2006. It contained copies of the reports of Officers Cantu and Casares. The notice alleged that the following lease provisions were violated: To act and cause other person(s) who are on premises with Resident's consent to act in a manner which will not disturb residents' or neighbors' peaceful enjoyment of their accommodations and will be conducive to maintaining premises and the development in a decent, safe and sanitary condition. To refrain from illegal or other activity that impairs the physical or social environment of the development. To act in an orderly manner in dealings with [m]anagement and/or other residents and not to harass or retaliate against management and/or other residents in any way so long as management and/or other residents reasonably and peacefully exercise any right granted under the lease. To refrain from committing any act of physical violence to persons or property on or off premises. The notice warned Lara that she was not entitled to a grievance hearing, but it stated that: [T]his eviction procedure provides the opportunity for a hearing in [a] court that contains the basic elements of due process as defined by HUD [the United States Department of Housing and Urban Development] regulations. If you do not vacate on or before the expiration of 72 Hours from the date of this notice, October 13, 2006, legal action regarding eviction will be instituted for possession thereof. (emphasis in original). Lara refused to vacate the premises, and the housing authority filed suit for forcible detainer in a justice court. See Tex. Prop. Code Ann. §§ 24.002, 24.004. The justice court entered a judgment of eviction in favor of the housing authority. Lara appealed to a county court at law. The housing authority's petition in county court repeated the facts contained in the police reports. The housing authority alleged that Lara violated lease provisions because she: (1) did not abide by the admission and continued occupancy policy; (2) disturbed other residents' peaceful enjoyment of the premises; and (3) engaged in criminal activity that impaired the physical or social environment of the development. The housing authority prayed for possession of Lara's apartment, actual and exemplary damages, court costs, and reasonable attorney's fees. Lara answered the housing authority's petition with a general denial. She also filed special exceptions, a plea in abatement, and a motion to dismiss. In her dismissal motion, Lara posited that federal regulations mandated that the housing authority's lease termination notice "[s]pecify the judicial eviction procedure to be used," see 24 C.F.R. § 966.4(l)(3)(v)(B) (2008), and "[s]tate whether the eviction is for a criminal activity as described in § 966.51(a)(2)(i)(A) or for a drug-related criminal activity . . . ," see 24 C.F.R. § 966.4(l)(3)(v)(C) (West 2008). Lara argued that the notice she received did not contain either of the federally mandated statements. Lara asserted that the notice did not effectively terminate her right of possession because of its defects and that the eviction proceeding that the housing authority instituted in the justice court violated state law because it was instituted before an effective lease termination. See Tex. Prop. Code Ann. § 24.005(a)(1) (Vernon 2000) (providing that the landlord must give a tenant who defaults at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit). The housing authority responded to Lara's dismissal motion by arguing that the notice sufficiently informed Lara of the alleged criminal activity and the judicial process. The housing authority further argued that even if the notice were defective, it did not deprive the trial court of subject-matter jurisdiction because the statute's purpose was informational rather than jurisdictional. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000); Helena Chem. Co. v. Wilkins, 47 S.W.3d 351, 358 (Tex. 2001). On February 22, 2007, the county court granted Lara's dismissal motion and issued findings of fact and conclusions of law. In its legal conclusions, the trial court found that the federal regulations at issue are subject to review for strict compliance and that failure to satisfy the notice requirements deprives the trial court of subject-matter jurisdiction. The housing authority filed a motion for new trial, which the trial court denied. This appeal ensued. II. Discussion By two issues, the housing authority complains that the trial court erred in dismissing its forcible detainer action. First, the housing authority claims that its notice complied with section 966.4(l)(3)(v)(B) of title 24 of the Code of Federal Regulations. See 24 C.F.R. § 966.4(l)(3)(v)(B). Second, the housing authority contends that even if the notice failed to comply with the applicable federal regulations, the trial court retained subject-matter jurisdiction because Lara had actual knowledge of the eviction proceeding; therefore, she was not harmed by any deficiency in the notice. A. Standard of Review In this case, the trial court concluded that it lacked subject-matter jurisdiction over the housing authority's eviction action. We review a trial court's ruling on subject-matter jurisdiction de novo. Tex. Natural Res. Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). We are also called upon to review how federal regulations affect this state's lease termination and eviction procedures. We construe the text of an administrative rule under the same principles we construe a statute. See, e.g., Phillips Petroleum Co. v. Texas Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex. App.-Austin 2003, no pet.) (citing Tex. Gen. Indem. Co. v. Tex. Workers' Comp. Comm'n, 36 S.W.3d 635, 641 (Tex. App.-Austin 2000, no pet.)) (providing that state administrative rules and statutes are reviewed for intent). We will, therefore, ascertain and give effect to the rule drafter's intent for the provisions we are construing. See Tex. Gov't Code Ann. § 312.005 (Vernon 2005) (providing how a court should determine legislative intent). When a trial court issues findings of fact and conclusions of law, as the trial court did in this case, we may review the findings of fact for legal and factual sufficiency and review the conclusions of law de novo. Silbaugh v. Ramirez, 126 S.W.3d 88, 94 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). B. Notice By its first issue, the housing authority asserts that the trial court erred in concluding that the notice was insufficient. Lara moved for dismissal on the ground that the termination notice did not specify the judicial procedure to be used or specify the kind of criminal activity that Lara was alleged to have engaged in. The relevant federal regulation provides that when the public housing authority: is not required to afford the tenant the opportunity for a hearing under the PHA administrative grievance procedure for a grievance concerning the lease termination (see § 966.51(a)(2)), and the PHA has decided to exclude such grievance from the PHA grievance procedure, the notice of lease termination under paragraph (l)(3)(i) of this section shall: specify the judicial eviction procedure to be used by the PHA for eviction of the tenant, and state that HUD has determined that this eviction procedure provides the opportunity for a hearing in court that contains the basic elements of due process as defined in HUD regulations. 24 C.F.R. § 966.4(l)(3)(v)(B) (emphasis added). The housing authority contends that Texas has only one judicial eviction procedure, and, therefore, its generic notice was sufficient. We disagree. Under our rules of statutory construction, "shall" is generally construed to be mandatory, but may be directory when this interpretation is most consistent with the Legislature's intent. See Tex. Gov't Code Ann. § 311.016 (Vernon 1998); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996). To determine whether the Legislature intended a provision to be mandatory or directory, we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from each construction. Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999); Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (Tex. 1956). Even if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional. Sinclair, 984 S.W.2d at 961; Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983). When a statute is silent about the consequences of noncompliance, we look to the statute's purpose to determine the proper consequences. Sinclair, 984 S.W.2d at 961; Schepps, 652 S.W.2d at 937-38; Chisholm, 287 S.W.2d at 945. Title 24 of the Code of Federal Regulations regulates public housing authorities. The applicable section states that a notice of lease termination "shall specify the judicial eviction procedure to be used." See 24 C.F.R. § 966.4(l)(3)(v)(B) (emphasis added). We conclude that the plain meaning, nature, and object of this phrase is to mandate that a housing authority notify a tenant of the judicial eviction procedure to be used. Part of the purpose of Title 24 is to afford adequate due process to tenants. For example, tenants are entitled to a grievance hearing before judicial eviction unless certain exceptions apply. See 24 C.F.R. § 966.51(a)(1) (2008). (3) Even when an exception applies and a grievance hearing is not required, the regulations mandate that the judicial procedure used to evict a tenant must possess the basic elements of due process. 24 C.F.R. § 966.4(1)(3)(v)(B). In this case, reading "shall" as directory instead of mandatory would dilute the procedural safeguards promulgated by the Department of Housing and Urban Development. The notice in the instant case did not specify which court would hear the eviction action. In fact, it was so deficient that it did not even attempt to parrot the text of the regulation. See, e.g., Edgecomb v. Hous. Auth. of Vernon, 824 F.Supp. 312, 314 (D. Conn. 1993) (providing that a notice which merely parrots the broad language of the regulations is insufficient). Therefore, the housing authority's first issue is overruled. C. Subject-Matter Jurisdiction By its second issue, the housing authority argues that the trial court erred in dismissing its detainer action because Lara was not harmed by any alleged insufficiency in the notice. The housing authority argues that we should follow the First Court of Appeals, which has held that notice defects in housing authority cases are subject to a harm analysis because protections in the federal regulations exist "to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence" rather than to create jurisdiction. See Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 392 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Escalera v. N.Y. City Hous. Auth., 425 F.2d 853, 862 (2d Cir. 1970)). Lara counters by arguing that the notice requirements vest her with a fundamental due process right that is jurisdictional. She contends that this "jurisdictional right" is not subject to a harm analysis. In essence, Lara asks us to create a different rule than the one crafted by in Nealy, but her only rationale is that she does not agree with the rule that is already on the books. We are persuaded by neither the housing authority's nor Lara's arguments. Instead, we look to our own cases for guidance. In Hinojosa, this Court was confronted with a similar notice argument. See Hinojosa v. Hous. Auth. of Corpus Christi, 896 S.W.2d 833 (Tex. App.-Corpus Christi 1995, writ dism'd w.o.j.). The housing authority in Hinojosa issued a defective notice, which the tenant asserted in county court warranted a dismissal. Id. at 385. The housing authority, however, moved to abate its detainer action so that it could cure the defects. Id. The county court abated the proceeding, and the case was eventually reinstated and tried to a jury on the merits. Id. On appeal, the tenant argued that the trial court erred by not dismissing the action. Id. at 836. We found that the "[i]n many areas of the law, abatement is appropriate when prerequisites are missing," and we held that the trial court did not err in abating rather than dismissing the case. Id. at 836-37. Implicit in the Hinojosa case is the notion that the notice requirements contained in the applicable federal regulations are not jurisdictional. See id.; see also Torres v. Corpus Christi Hous. Auth., No. 13-04-591-CV, 2006 Tex. App. LEXIS 6872, *4-5 (Tex. App.-Corpus Christi 2006, no pet.) (mem. op.) (concluding that alleged deficiencies in a housing authority's notice to terminate lease must be raised before the trial court or the complaint is waived). The trial court in this case, therefore, erred in dismissing the housing authority's detainer action. Instead, the trial court should have abated the housing authority's action so that it could provide Lara with the federally mandated notice. See Hinojosa, 896 S.W.2d at 836. Therefore, the housing authority's second issue is sustained in part. III. Conclusion The trial court's dismissal order is reversed, and the case remanded back to the trial court with instructions to abate the underlying action until sufficient notice is provided. ________________________ ROGELIO VALDEZ Chief Justice Opinion delivered and filed this the 17th day of July, 2008. 1. The Corpus Christi Housing Authority is a federally subsidized agency, and it is regulated by title 42, Chapter 8 of the United States Code and title 24 of the Code of Federal Regulations. See 42 U.S.C. §§ 1401-1440; 24 C.F.R. §§ 0-4199. 2. The trial court granted Lara's dismissal motion on the pleadings. It, therefore, did not hear live testimony, and consequently, this case is submitted without a reporter's record. See Tex. R. App. P. 34.1 (providing that the appellate record consists of the clerk's record, and if necessary to the appeal, the reporter's record). We take note of the allegations of criminal activity from police reports that the housing authority subjoined to the termination notice. 3. Those exceptions include: (A) any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the PHA; (B) any violent or drug-related criminal activity on or off such premises; or (c) any criminal activity that resulted in felony conviction of a household member. 24 C.F.R. § 966.51(a)(2)(i)(A)-(B) (2008).

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FindLaw> State Resources> Texas> Primary Materials> Texas Court Opinions
File: 001256 - From documents transmitted: 05/30/2002

IN THE SUPREME COURT OF TEXAS

............
No. 00-1256
............


In the Matter of R. J. H., Petitioner


....................................................
On Petition for Review from the
Court of Appeals for the Third District of Texas
....................................................

Argued on October 17, 2001


Justice Hecht delivered the opinion of the Court, in which Chief Justice Phillips, Justice Enoch, Justice Owen, Justice Jefferson, and Justice Rodriguez join.

Justice Baker, Justice Hankinson, and Justice O'Neill concur in the judgment only.


Whether a juvenile's noncustodial, inculpatory statements, made after the juvenile has already given police a confession inadmissible under state law because a magistrate was not present, are nevertheless voluntary and therefore admissible without offense to the Fourteenth Amendment to the United States Constitution must be determined from the totality of the circumstances. See Footnote 1 Our main inquiry here is whether the court of appeals correctly applied this test in holding that the admission of a juvenile's statements was error. See Footnote 2 We hold that it did not and therefore reverse the judgment of the court of appeals and reinstate the trial court's adjudication of delinquency.
I
A
The record before us consists of the testimony of three Department of Public Service officers, Michael Scheffler, D. G. Elder, and Michael Telles, at a hearing on a motion to suppress evidence. We summarize their testimony as follows.
R.J.H., a sixteen-year-old boy, was a passenger in a car driven by his adult cousin, Pedro Ybarra, when they were stopped mid-afternoon by Officer Scheffler because neither was wearing a seat belt. When Ybarra could not produce a driver's license, Scheffler arrested him, and had the car inventoried and impounded. Scheffler noticed that there were no keys in the ignition and that the steering column had been “popped”, indicating that the car may have been stolen. He also detected the odor of marijuana in the car and saw a marijuana cigarette in the ashtray. Scheffler asked R.J.H. whether the cigarette was his, and he admitted it was. In searching the car, Scheffler found an expensive set of golf clubs, some telephone equipment, and numerous compact disks and videotapes that had all been reported stolen from a residence the previous day.
Scheffler handcuffed R.J.H. and took him to Detective Elder's office at a local DPS station. Elder had R.J.H.'s handcuffs removed, determined that he should be released, and telephoned his father to come to the station and pick him up. While R.J.H. waited for his father to arrive, he was free to walk around the office, go to the rest room, and get something to drink. He also talked with Elder for a little while, explaining that he had dropped out of school in the eighth grade, had fathered a child, and was on probation. Elder testified that he did not suspect R.J.H. of theft of the property that had been found in the car but wanted to ask him about Ybarra's involvement with his father present.
After about an hour R.J.H.'s father arrived, and Elder asked if he could question R.J.H. further. R.J.H. and his father agreed. Elder gave R.J.H. his Miranda See Footnote 3 warnings and then questioned him about the theft. R.J.H. said he had broken into a house and opened the door for Ybarra, and the two of them had carried off the property found in their car. R.J.H. stated that because he was a juvenile, he believed nothing serious would happen to him as a result of the crime. Elder did not take R.J.H. before a magistrate when R.J.H. began to implicate himself in the burglary because Elder did not consider R.J.H. to be in custody. Elder had R.J.H.'s statement reduced to writing, and R.J.H. and his father signed it. The two then left Elder's office.
Several days later, R.J.H. telephoned Elder and asked to change his written statement. He told Elder that he had committed the burglary by himself, that Ybarra had not been involved at all. After that conversation, Elder and R.J.H. spoke together several other times. R.J.H. repeatedly told Elder that he wanted to revise his written statement to take sole responsibility for the burglary, exonerating Ybarra. Based on what R.J.H. had told him before, Elder thought that R.J.H. believed the consequences would be less severe for himself than they would be for Ybarra if Ybarra, an adult, were charged with the crime. In the course of their conversations, Elder told R.J.H. that the burglary victims were anxious to recover all of the property taken, including an old Masonic ring that had been in the family for many years. Elder hoped to “guilt trip” R.J.H. into helping him locate the ring and other property, and R.J.H. did appear to cooperate, although no other property was found.
B
The State petitioned for an adjudication that R.J.H. had engaged in delinquent conduct, namely burglary, a felony. See Footnote 4 R.J.H. moved to suppress the written statement he gave to Elder on the ground that he had not been admonished of his rights by a magistrate as required by section 51.095(a)(1) of the Texas Family Code. Under the United States Constitution, a juvenile charged with delinquency is protected from self-incrimination and entitled to counsel and must be advised of these rights before being asked to make a statement while in police custody. See Footnote 5 The Texas Family Code provides that a juvenile can waive his rights once he is in custody only if joined by his attorney See Footnote 6 or if done in the presence of a magistrate. See Footnote 7 R.J.H. also moved to suppress his later oral statements to Elder because they were tainted by the inadmissibility of the earlier written statement. The State countered that R.J.H. was not in custody when he gave his written statement and therefore section 51.095(a)(1) was inapplicable.
The State called Officer Scheffler and Detective Elder to testify on the motion. R.J.H. did not testify and called only one witness, Officer Telles, who testified only about the inventory he conducted of the car. At the conclusion of the hearing the court stated on the record that it found that R.J.H. had been in custody when he gave his written statement but not afterward. The court ordered that R.J.H.'s written statement be suppressed but not his subsequent oral statements. Subject to this ruling, R.J.H. then pleaded “true” to the petition and was sentenced to intensive-supervision probation for one year. (The State did not argue in the court of appeals that R.J.H.'s plea of “true” forecloses appeal from the ruling on the motion to suppress, and thus has failed to preserve that argument. We therefore express no opinion on that issue.)
A divided court of appeals reversed. See Footnote 8 The court agreed that R.J.H.'s written statement was inadmissible under section 51.095(a)(1) of the Family Code, but held that as a result his later oral statements were involuntary and therefore inadmissible under the Fourteenth Amendment. See Footnote 9 The court also held that R.J.H.'s oral statements were inadmissible under section 54.03(e) of the Family Code, which provides in pertinent part: “An extrajudicial statement which was obtained without fulfilling the requirements of this title or of the constitution of this state or the United States, may not be used in an adjudication hearing.” See Footnote 10
The State's petition for review challenges these holdings, and R.J.H. does not argue here that his later statements were inadmissible for any other reason. Thus, the only issues before us are whether R.J.H.'s later oral statements to Detective Elder were admitted either in violation of constitutional due process because they were not voluntary, or in violation of section 54.03(e) of the Family Code. We consider each issue in turn.
II
The test for determining whether a confession was made voluntarily is well established: the totality of the circumstances surrounding the making of the confession must be examined to determine whether the confession was “'the product of an essentially free and unconstrained choice by its maker'”. See Footnote 11 Conversely, a statement is involuntary “only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.” See Footnote 12
Under federal law, whether a confession is voluntary is a mixed question of fact and law. See Footnote 13 Appellate review of the trial court's findings of historical fact is deferential because the trial court is in a better position to weigh credibility and make such determinations, but review of the applica tion of the law to the facts is de novo because the trial court is in no better position to decide legal issues than the appellate court. See Footnote 14 The Texas Court of Criminal Appeals has stated that a trial court's ruling on a motion to suppress in a criminal case is reviewed by an abuse-of-discretion standard See Footnote 15 and has not said whether that standard of review is different from the standard under federal law. See Footnote 16 The Family Code, which governs juvenile delinquency proceedings in Texas, requires that they be conducted under the Texas Rules of Civil Procedure, except as to discovery, and under the Texas Rules of Evidence applicable to criminal proceedings. See Footnote 17 These rules do not set a standard for appellate review of a ruling on a motion to suppress. Finding no rule, statute, or court decision that prescribes a standard of review of such a ruling in a juvenile case, we choose to use an abuse-of- discretion standard, which for purposes of this case at least we take to be essentially identical to the federal standard, because it seems to us to make the most sense and is most consistent with appellate procedure in civil cases generally. Thus, we defer to the trial court's findings of historical fact but determine de novo whether those facts show that a juvenile's statements were made voluntarily for purposes of constitutional due process.
The Texas Code of Criminal Procedure requires trial judges to make written findings of fact in connection with rulings on motions to suppress, See Footnote 18 and this requirement cannot be waived. See Footnote 19 This rule does not apply in juvenile cases, See Footnote 20 and there is no other requirement that findings be made in such cases. Neither the State nor R.J.H. requested written findings of fact in connection with the trial court's ruling on the motion to suppress, and the court made none, although it orally stated “findings” on the record as part of its explanation for its ruling. Absent findings of fact, we will “view the record in the light most favorable to the trial court's ruling,” as we would for other rulings in civil cases. See Footnote 21
With respect to R.J.H.'s oral statements, the court of appeals concluded:

Given (1) the undeniable connection between the earlier inadmissible statement and the later statements, indicating that [R.J.H.] would not have made the latter but for the former; (2) [R.J.H.'s] juvenile status; (3) [R.J.H.'s] belief that the written statement would be used against him; and (4) the paucity of evidence by the State to meet its burden to prove voluntariness, we conclude that, under the totality of the circumstances, [R.J.H.'s] statements to Elder requesting a revision of his written statement were not voluntary under the federal Due Process Clause. See Footnote 22

The first factor cited by the court references the “cat out of the bag theory”, which, as described by the court of appeals,

is based on the notion that once a defendant has confessed, but is not aware the confession cannot be used against him, he may feel he has nothing to lose by making additional incriminating statements; so burdened by the psychological pressure of the first confession, his resolve to remain silent may be broken, rendering any subsequent statements involuntary under the federal due process clause. See Footnote 23

This theory was discussed, and for the most part rejected, by the United States Supreme Court in United States v. Bayer. See Footnote 24 There the Supreme Court explained:

Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed. See Footnote 25

A defendant's voluntary statement was not inadmissible, the Supreme Court concluded, merely because his prior statement was inadmissible. More recently in Oregon v. Elstad, the Supreme Court held that a statement is not made inadmissible by a prior inadmissible statement unless the impropriety in obtaining the first statement actually extended to the later one. See Footnote 26 In the Supreme Court's words, “moral and psychological pressures to confess emanating from sources other than official coercion” are no concern of the due process guarantee. See Footnote 27
The “cat out of the bag” theory has been similarly limited by the Court of Criminal Appeals. In Griffin v. State, the court held that a juvenile's confession was not involuntary and inadmissible merely because she had made an earlier statement at a time when she had been warned of her rights only by a police officer rather than by a magistrate, as required by the Family Code. See Footnote 28 To determine the admissibility of the later statement, courts must look to the totality of the circumstances to determine whether that statement was the product of official coercion. See Footnote 29 Thus, under both federal and state jurisprudence, R.J.H.'s later statements to Elder were not involuntary merely because he made his prior statement to Elder rather than to a magistrate as required by section 51.095(a)(1) of the Family Code. We assume, consistent with the trial court's exclusion of R.J.H.'s written statement, that R.J.H. was in custody when he gave Elder that statement, and therefore section 51.095(a)(1) was applicable. The statute prescribes requirements for the admissibility of a juvenile's statement, but it does not determine whether a statement is voluntary for purposes of due process. R.J.H.'s written statement to Elder acknowledged that Elder had advised him of his constitutional rights and that he chose to make a statement “freely and voluntarily, without being induced by any compulsion, threats, promises, or persuasion”. R.J.H. signed the statement, as did his father who was present throughout Elder's questioning. Elder's admonishments to R.J.H. satisfied the requirements of federal constitutional due process even though R.J.H. was not given the additional protections afforded juveniles by section 51.095 of the Family Code. See Footnote 30 R.J.H.'s later statements were therefore not “fruit of the poisonous tree” _ a prior coerced statement _ because for purposes of due process under the federal constitution, there was no poisonous tree.
Nor were R.J.H.'s later statements themselves the product of coercion. R.J.H. initiated contact with Elder on more than one occasion. The two spoke together several times. R.J.H. even offered to lead Elder to unrecovered stolen property. The evidence certainly supports the trial court's determination that R.J.H. was not in custody when he made the oral statements to Elder. Furthermore, there is no indication that R.J.H. felt any pressure to talk to Elder because he had already given Elder a statement that inculpated him in the burglary. For one thing, he and his cousin, Ybarra, had been caught with stolen property in their possession, so that their complicity in the burglary was not wholly dependent on R.J.H.'s confession. And for another, R.J.H.'s efforts to take sole responsibility for the crime appear to have been consistently motivated by his belief that any punishment imposed on him in the juvenile system would be less than the punishment his cousin, Ybarra, faced as an adult for the same crime. Elder did nothing to create or foster this belief in R.J.H. If R.J.H. thought he had nothing to lose by making the oral statements to Elder, it was not likely because he had already confessed, but because he had been caught and his previous experience with the juvenile justice system persuaded him that he would suffer no serious consequences.
The other three factors cited by the court of appeals in support of its conclusion add little. There is no indication that R.J.H.'s statements were coerced due to his age. R.J.H., 16, was already on probation, and he initiated some of the calls to Elder and met with him freely. Nor does R.J.H.'s belief that his written statement would be used against him _ which is nothing more than the “cat out of the bag” theory restated _ show coercion. The evidence is that R.J.H. made oral statements to Elder not because he thought he had nothing to lose after his written statement, but because he was afraid his cousin had much to lose if the written statement were not changed to shift all blame to R.J.H. Finally, while the evidence adduced by the State on the motion to suppress is by no means lengthy, the court of appeals did not suggest, and we cannot see, that the State ignored important evidence. In the final analysis, the court of appeals made the inadmissibility of R.J.H.'s written statement virtually determinative of the inadmissibility of the later statements. In so doing, the court erred. The admission of the oral statements did not violate due process.
III
The court of appeals suggested, and R.J.H. argues here, that his oral statements were inadmissible under section 54.03(e) of the Family Code, See Footnote 31 which, as we have noted, excludes a juvenile's extrajudicial statements “obtained without fulfilling the requirements of this title or of the constitution of this state or the United States”. See Footnote 32 We have already concluded that R.J.H.'s oral statements were not obtained in violation of federal constitutional due process, and R.J.H. does not argue that the state constitution afforded him any greater due process protections. R.J.H.'s argument is only that the oral statements were obtained without fulfilling the requirements of the Family Code. Because we agree with the trial court that R.J.H. was not in custody when he made those statements, section 51.095(a)(1) is inapplicable. R.J.H. does not identify any other requirement of the Family Code that was not met.
R.J.H.'s argument is really that because Elder did not meet the requirements of section 51.095(a)(1) in obtaining his written statement, his later oral statements were thereby tainted. This, again, is simply the “cat out of the bag” theory that we have already rejected. The admission of R.J.H.'s oral statements was thus not precluded by section 54.03(e).
* * * * *
For the reasons we have explained, we reverse the judgment of the court of appeals and reinstate the trial court's adjudication of delinquency.



Nathan L. Hecht
Justice
Opinion delivered: May 30, 2002

Footnote 1
Griffin v. State, 765 S.W.2d 422, 429-430 (Tex. Crim. App. 1989); see Colorado v. Connelly, 479 U.S. 157, 169-170 (1986).Footnote 2
28 S.W.3d 250 (Tex. App._Austin 2000).Footnote 3
Miranda v. Arizona, 384 U.S. 436 (1966).Footnote 4
See Tex. Penal Code § 30.02.Footnote 5
In re Gault, 387 U.S. 1 (1967).Footnote 6
Tex. Fam. Code § 51.09:

§ 51.09. Waiver of Rights.

Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:

(1) the waiver is made by the child and the attorney for the child;

(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and

(4) the waiver is made in writing or in court proceedings that are recorded.Footnote 7
Id. § 51.095:

§ 51.095. Admissibility of a Statement of a Child.

(a) Notwithstanding Section 51.09, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:

(1) the statement is made in writing under a circumstance described by Subsection (d) and:


(A) the statement shows that the child has at some time before the making of the statement received from a magistrate a warning that:


(i) the child may remain silent and not make any statement at all and that any statement that the child makes may be used in evidence against the child;


(ii) the child has the right to have an attorney present to advise the child either prior to any questioning or during the questioning;


(iii) if the child is unable to employ an attorney, the child has the right to have an attorney appointed to counsel with the child before or during any interviews with peace officers or attorneys representing the state; and


(iv) the child has the right to terminate the interview at any time;


(B) and:


(i) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present, except that a magistrate may require a bailiff or a law enforcement officer if a bailiff is not available to be present if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer may not carry a weapon in the presence of the child; and


(ii) the magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily, and if a statement is taken, the magistrate must sign a written statement verifying the foregoing requisites have been met;


(C) the child knowingly, intelligently, and voluntarily waives these rights before and during the making of the statement and signs the statement in the presence of a magistrate; and

(D) the magistrate certifies that the magistrate has examined the child independent of any law enforcement officer or prosecuting attorney, except as required to ensure the personal safety of the magistrate or other court personnel, and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights;


* * *

(b) This section and Section 51.09 do not preclude the admission of a statement made by the child if:

(1) the statement does not stem from interrogation of the child under a circumstance described by Subsection (d); or


(2) without regard to whether the statement stems from interrogation of the child under a circumstance described by Subsection (d), the statement is voluntary and has a bearing on the credibility of the child as a witness.


* * *

(d) Subsections (a)(1) and (a)(5) apply to the statement of a child made:

(1) while the child is in a detention facility or other place of confinement;


(2) while the child is in the custody of an officer; or


(3) during or after the interrogation of the child by an officer if the child is in the possession of the Department of Protective and Regulatory Services and is suspected to have engaged in conduct that violates a penal law of this state.


* * *Footnote 8
28 S.W.3d 250 (Tex. App._Austin 2000).Footnote 9
Id. at 254.Footnote 10
Id.; see Tex. Fam. Code § 54.03(e).Footnote 11
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)); accord, Haynes v. Washington, 373 U.S. 503, 513-14 (1963); State v. Tarrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999); Griffin v. State, 765 S.W.2d 422, 428 (Tex. Crim. App. 1989); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).Footnote 12
Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); accord, Colorado v. Connelly, 479 U.S. 157, 164 (1986) (“Absent [coercive] police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.”).Footnote 13
Miller v. Fenton, 474 U.S. 104 (1985).Footnote 14
Id.Footnote 15
Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).Footnote 16
Henderson v. State, 962 S.W.2d 544, 564 (1998).Footnote 17
Tex. Fam. Code § 51.17.Footnote 18
Tex. Code Crim. Proc. art. 38.22, § 6.Footnote 19
Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995) (citing Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983).Footnote 20
See Tex. Fam. Code § 51.17.Footnote 21
Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).Footnote 22
28 S.W.3d at 254.Footnote 23
Id. at 252.Footnote 24
331 U.S. 532 (1947).Footnote 25
Id. at 540-541.Footnote 26
470 U.S. 298, 311, 314 (1985).Footnote 27
Id. at 304.Footnote 28
Griffin, 765 S.W.2d at 431.Footnote 29
Id. at 430.Footnote 30
See id.Footnote 31
28 S.W.3d at 254.Footnote 32
Tex. Fam. Code § 54.03(e).
File Date[05/30/2002]
File Name[001256]
File Locator[05/30/2002-001256]
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appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense

NUMBER 13-02-218-CR

COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG



ALEJANDRO RODRIGUEZ MATA, Appellant,

v.

THE STATE OF TEXAS, Appellee.



On appeal from the 257th District Court of Hidalgo County, Texas.



O P I N I O N

Before Justices Yañez, Rodriguez and Baird Footnote

Opinion by Justice Baird

Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote

I. Self Defense and Defense of Third Person.

Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.

A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.

The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.

According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.

For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).

Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.

II. Ineffective Assistance of Counsel.

Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.

1.

The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”

We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.





2.

The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).

The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.

3.

The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.

4.

The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.

Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.

In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.



B. The Punishment Phase.

The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.

1. The Erroneous Instruction.

Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

See id. (emphasis added).

However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.

2. The Improper Argument.

After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:

The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.



For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.

So you know parole does exist in reality.

And so that will help you understand those issues.

(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.

The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).

Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.

Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).

Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).

Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.

In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.

Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.

Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.

In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.

The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).



_________________________

CHARLES BAIRD,

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12th day of August, 2004.

Oh, my bad, I wore blue jeans, tough on teens and jeans, youths are stripped and violated of any right to an attorney.....

What to expect when being defended in State Court What should I expect when being defended in State court? Being a criminal defendant can be an unnerving experience for anyone. It is even more so when you don’t know what to expect around the next corner in a process you’ve probably only read about or seen depicted on T.V. The point is if you are aware of what to expect, you are better equipped to deal with what might be expected of you during the process.

Criminal defense in State court is markedly different than criminal defense in Federal court. If you have a case in Federal court and want to know what to expect, click here. In State court in Tarrant County, a defendant can be exposed to a vast array of expectations, timeframes, and results. These differences will depend primarily on the type of case you have as well as the court to which your case is assigned. shapeimage_8_link_0
There are two types of criminal cases; misdemeanors and felonies. Misdemeanors can result in punishment including incarceration in the Tarrant County Jail, whereas felonies can result in imprisonment in the Texas Department of Corrections prison system. Generally speaking, a criminal case in State court in Tarrant County can take several months to resolve. Most defendants believe there case will be resolved on their first court appearance. In reality, it may be over a year before their case is finally disposed. This has nothing to do with the defendant themselves or their attorney. Rather this is a byproduct of the criminal justice system. Most courts require defendants to attend a number of “Docket Settings”. Each court is different in how they set their appearances and how they refer to them. Additionally, the settings are different depending on whether the case is a felony or misdemeanor. In misdemeanor court, most defendants will attend a first appearance docket, a consultation docket, a pre-trial docket, and possibly a trial docket. Each setting is designed to meet a different purpose. For example, the first appearance docket is typically designed to ensure a defendant has an attorney. There is no expectation the case would be disposed of on that setting. Contrast that with the trial docket setting where the expectation is the defendant and his attorney would be prepared to go to trial. In felony cases, most courts follow the Differentiated Case Management System. This system is designed to provide a systematic timeframe for resolution of felony cases. Again, each docket setting is designed for a different purpose depending on the relative age of the case. A good criminal defense attorney can explain the different settings to you and provide you a roadmap for what to expect with each and every court appearance. Additionally, it’s important to remember that virtually all courts in Tarrant County require the defendant to be present at all court settings. While there might be a exception made on a case-by-case basis, the general rule is that appearance is mandatory. Failure to attend a court appearance can result in forfeiture of your bond and a warrant issued for your arrest. It is also extremely important to remember that going to court is not the equivalent to going to the mall. Any time you must appear in court, you should always remember to afford the court with the respect it deserves. This means being on time and being dressed appropriately. Parking in downtown Fort Worth can be difficult at times. You should always give yourself enough time to find a parking space, get through security and find your courtroom before your scheduled court appearance. If you are late to court, you can be arrested and your bond held insufficient. Likewise, if you arrive to court wearing inappropriate clothing, you may go to jail. Remember, this is not a social event. Don’t wear t-shirts, jeans, hats, shorts, or anything other than respectful attire. Also, don’t bring your friends with you. Matlock The Name in Criminal Defense

Tamper with evidence is exactly what prosectors do when they refuse to present original docs.

07-0255 STEWART, CLINTON SHANE 06/06/07

APPELLANT’S GILLESPIE TAMPERING WITH

PHYSICAL EVIDENCE



1. THE COURT OF APPEALS' DECISION CONFLICTS WITH ANOTHER COURT OF APPEALS' DECISION THAT HELD THE ONLY WAY EVIDENCE CAN BE DESTROYED FOR PURPOSES OF PENAL CODE § 37.09 IS WHEN THE PART RECOVERED HAS LESS EVIDENTIARY VALUE THAN THE WHOLE, INSUFFICIENT TO OBTAIN A CONVICTION FOR POSSESSION OF THE WHOLE.

2. THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL APPEALS BECAUSE THE UNIQUE CULPABILITY REQUIREMENT TO SUSTAIN A CONVICTION FOR A VIOLATION OF PENAL CODE § 37.09 HAS YET TO BE AUTHORITATIVELY ADDRESSED.

The Justices in this case will pronounce a verdict on themselves.

- Original Message -----
From: Ron Jagannathan
To: VictoryUSA@Jail4Judges.org
Sent: Tuesday, January 25, 2005 4:35 AM
Subject: Articles for your website.

Whistleblower Puts Virginia Supreme Court on Trial

By Ed Truncellito, JD

June 5, 2003

Yesterday seven Justices of the Virginia Supreme Court were put on
trial in their own court by attorney Linda Kennedy who was disbarred
last year.

The Justices had the spotlight turned around on them when Kennedy
addressed them from the podium. Kennedy was there to appeal her
disbarment for violating the First Unwritten Rule of Virginia Legal
Ethics: do not embarrass the Virginia Bar by blowing the whistle on
white-collar crimes they commit against an unwitting Virginia public.

Kennedy began by throwing Chief Justice Leroy Rountree Hassell, Sr. off
guard. She complimented him saying she heard him preach the Gospel of
Jesus Christ at Regent University. Maybe he momentarily forgot that a
similar tactic was used by the Apostle Paul to subdue King Agrippa. The
Justice straightened up and beamed with pride as he was reminded of the
distinction that Regent bestowed upon him in the eyes of his black
community by honoring him as a professor of law and theology.

Next Kennedy quoted a second one of the Justices, a woman, who was
published as stating that legal process must always be above suspicion.
Kennedy thanked her for the statement but added that the message
apparently has not yet reached the Virginia Bar.

Kennedy silenced a third Justice by interrupting his question and
asking that the Justices not ask her any more questions. She said they
had a copy of her written brief, and she wanted to use her entire 15
minutes to explain to them in person how their legal system has become
disgracefully corrupt. And if that did not convince them, then nothing
ever would.

Nonetheless a moment later a fourth Justice, another woman, interrupted
to ask if she understood correctly that Kennedy did not want to answer
their questions, perhaps implying that Kennedy had something to hide.
But Kennedy rebuked her. Kennedy said it could not have been made any
plainer: "no questions." The Justice pushed herself back in her chair
showing consternation, but she had nothing more to say.

Having silenced the Justices, Kennedy then proceeded --- shall we say
"earnestly" --- to "chew their butts" as plain folk in Virginia would
call it.

Good for you, Kennedy, because the buck stops here. These Justices are
the senior officers of the Virginia Bar whose lawyers are trying to
cover up the fact that Kennedy caught them red-handed falsifying the
very court record that these Justices had sitting right there under
their noses on the bench. The legal process that brought them the case
record was not merely suspicious. It was blatantly fraudulent.

Kennedy had fished through the trial court's trash cans and found the
trial court's handwritten notes that the trial judge had approved
falsifications of the trial record to cover up perjury by the lawyer
who heads the Virginia Bar's Ethics Committee.

Kennedy has audiotapes that prove what the Ethics leader really said,
in his own recorded voice. But the trial court cut out the part of the
record where the trial judge refused to allow those audiotapes to be
played. Ironically, the trial judge's comments were falsified in the
record claiming he said he would have exonerated Kennedy if only she
could have proved what the audiotapes in fact do prove.

Talk about smoking guns. But this is just one of the more glaring
cases. It is an open secret that records are being falsified routinely
in cases all over the state and all over the country while the high
courts hear it with a deaf ear. Zed McLarnon, a forensic audio-visual
expert, has documented that transcripts in Massachusetts courts are
altered with the knowledge of court personnel. In Indiana, Rebecca
Rohrs has conclusively documented literally thousands of alterations in
hearing transcripts in a child custody case. "This is criminal
misconduct," attorney Eugene Wrona says of similar practices in
Pennsylvania, "and these people belong in jail."

Further, it is notorious that lawyer whistleblowers can all expect to
share Kennedy's fate. Law students are misled like the public, being
told in law school that law is an honorable profession. Not until they
begin practicing do they discover how money really changes hands. Only
after they have invested years in their law school education are they
taught that they must maintain an unwritten code of secrecy. Then they
shut up --- or they are disbarred.

After Kennedy's 15 minutes, Chief Justice Leroy Rountree Hassell, Sr.
told her the time was up. Kennedy announced that there was no need for
her to listen to her opponent's excuses or comment on them. Then she
walked out with some of the 30 supporters who accompanied her including
pastors and lawyers.

The Justices in this case will pronounce a verdict on themselves.

If they order a full investigation and a new trial of Kennedy's
disbarment, then the Justices will have pronounced their innocence.
Otherwise, Regent ought to reconsider whom they allow to preach to our
youth.

Ed Truncellito, JD
Director of Development
Defending Holy Matrimony
http://www.DefendingHolyMatrimony.org
pursuejustice@CatholicExchange.com



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