Saturday, January 27, 2018

Justice Jennings Strikes Again

Justice Terry Jennings of the Houston (first) Court of Appeals writes his mind. More than most intermediate court of appeals justices, he is unafraid of calling out the two courts of last resort in Texas, the Texas Supreme Court (civil) and Texas Court of Criminal Appeals (CCA) for their intellectual dishonesty. 

An example of this occurred Thursday, January 25 2018 in his concurrence in denial of a motion for rehearing en banc in Esquivel v. State, ___ S.W.3d ___, No. 01-16-00301(Tex. App. - Houston [1st Dist.] 2018) (Jennings, J. concurring in denial of Motion for Rehearing en banc) (no Westlaw cite as of this morning). Esquivel involves a shooting by Esquivel of her live in boyfriend. Esquivel grabbed a pistol during a fight between the two of them. What happened next is disputed, except that the boyfriend ended up dead. You should read the opinion for a more expanded recitation of the facts.

The State charged Esquivel with felony-murder, with the underlying felony being aggravated assault with a deadly weapon committed intentionally or knowingly. Esquivel was convicted by a Galveston County jury and subsequently that same jury sentenced her to 27 years in prison.

Brian Wice and Carmen Roe represent Esquivel on appeal. Among their complaints was charge error. Justice Jennings summarizes the asserted error and the panel reasons (the memorandum panel opinion - decided in September is here) for finding no error in his concurring opinion,
[Esquivel] argues that the trial court, in its charge, erred in submitting to the jury the felony-murder application paragraph because it authorized her conviction for murder based on a spurious allegation of aggravated assault, which, as alleged, constituted a 'cleverly disguised form of manslaughter' and is 'a lesser-included offense of manslaughter by any other name.' The panel reasoned that “[i]ntentional and knowing aggravated assault is not includable in manslaughter and is not a lesser-included offense of manslaughter.' And, relying on the Texas Court of Criminal Appeals’ opinion in Lawson v. State, 64 S.W.3d 396 (Tex. Crim. App. 2001), it concluded that the trial court’s jury charge did not contain an invalid legal theory of felony murder. 
Id. at *2.

Justice Jennings simply eviserates the CCA's reasoning in Lawson, the CCA case cited and relied upon in the panel opinion to overrule the asserted charge error. He begins the gutting by explaining right up front that Lawson overruled to a better reasoned opinion by an earlier iteration of the CCA:
Writing for a unanimous Texas Court of Criminal Appeals, Judge Wendell Odom explained the intrinsic problem with allowing an aggravated assault that is 'inherent in the homicide' to serve as the predicate felony for a felony-murder conviction:
 To allow this would make murder out of every aggravated assault that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault.
Garrett v. State, 573 S.W.2d 543, 545 (Tex. Crim. App. 1978). The instant case proves Judge Odom’s point precisely.
Id. at *1.

After recitation of facts, Justice Jennings dives into the reasoning underlying Garrett:
To allow this would make murder out of every aggravated assault that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault. Such result has been rejected in the vast majority of jurisdictions throughout the United States where it is held that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide. 
Id. at *4 (quoting Garrett, 573 S.W.2d at 545). The reason? Justice Jennings again quotes Garrett:
Any other result in this case would allow circumvention of the statutory limits of the felony murder statute. . . . The legislature has provided that an individual is guilty of murder when death results from an act dangerous to human life committed in the course of a felony other than voluntary or involuntary manslaughter. Most voluntary manslaughter offenses are initiated as aggravated assaults. If a felony murder may be predicated on the underlying aggravated assault, the statutory restriction on the scope of the doctrine that prohibits basing a felony murder prosecution on voluntary manslaughter could be regularly circumvented. The legislative prohibition against resting a Sec. 19.02(a)(3) prosecution on voluntary manslaughter necessarily includes a prohibition against resting such a prosecution on offenses statutorily includable in voluntary manslaughter. To hold to the contrary would render the statute meaningless and its effect nil.
Id. at *5 (quoting Garrett at 545-46) (emphasis as placed in Esquivel).

Justice Jennings then traces what he describes as the CCA's "retreat" from Garrett, culminating in their opinion in Lawson. Justice Jennings may have to follow Lawson, but he does not hesitate in explicitly calling it bad law. He ends his concurring opinion:
In this case, the panel relies on Lawson in holding that the complained-of felony-murder application paragraph did not present the jury with an invalid theory of felony murder based on appellant’s aggravated assault with a deadly weapon that resulted in the complainant’s death. Although Lawson was wrongly decided and the holding of Garrett should be the law in Texas, the panel did not err in deciding this case in accord with Lawson. While I encourage the Texas Court of Criminal Appeals to overrule Lawson, we, until it is overruled, must accept it as binding precedent. 
Id. at *8. (emphasis added).

Holy smokes. I love it.

Just a couple of takeaways: If anyone reading this is handling a case involving a felony-murder case indicted under the same theory as in Esquivel, you should be filing a Motion to Quash and objecting at charge conference to the application paragraph of a charge that allows a jury to convict in this manner. Ineffective Assistance of Counsel was part of a Motion for New Trial filed in the case based on trial counsel failing to do these things. The panel opinion found no IAC because the law as the CCA found it in Lawson allowed the case to be indicted and submitted to the jury in the way it was.

Regardless of what the future holds regarding the upcoming Petition for Discretionary Review filing in Esquivel, we in the criminal defense bar should be calling out this method of charging felony-murder in the trial courts. It may be the law, but it should not be, and you cannot change the law unless the error is preserved.

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