Dang. Been a while. Keep thinking, “I should definitely write about that!” Bit of a data dump here:
Last Thursday I got to argue again in the Court of Criminal Appeals, on Alkaytyali, a Special Projects case:
Special Projects are ideas that I have for making the world a better place for lots of people, rather than just for the client. Lane’s and my siege of the Texas Harassment statute, Texas Penal Code section 42.07(a)(7), is an example: the statute is blatantly unconstitutional, so we took on as many cases as we could find to press through to the Court of Criminal Appeals, and now that the Court of Criminal Appeals has bobbled it, we are taking on as many cases as we can find to take past the Court of Criminal Appeals to the Supreme Court.
The cases in the first round were pretrial habeas cases; the State argued that, even though the CCA’s determination of the issue was final, the ruling was not Supreme-Court final: the defendants could in theory still win their cases. Never mind that the point of an overbreadth challenge is that the speech restriction has a chilling effect on other people, and the point of a pretrial challenge is that someone should not have to stand trial for violating a void statute.
So the next round of 42.07 cases are post-trial appeals, in which the issue was preserved in the trial court and the courts of appeals. Earl v. State is one case; Owens v. State, another. Here’s our Petition for Discretionary Review in Owens:
(By subscribing to Defending People you support the 501(c)(3) First Amendment Funding Organization, FAFOrg, which provides funding for cert petitions on free-speech cases.)
Owens also presents another Special Projects issue: educating Texas courts on the difference between manners and means of committing an offense, and elements of an offense. This is important because a jury has to be unanimous on the elements, but not on the manners and means. So, for example, if it is a offense to do A, B, or C, and each act is an element, a jury has to unanimously agree on at least one of the three in order to convict the accused. If it is an offense to do A, B, or C, and each act is a manner or means, the jury does not have to unanimously agree on any one, as long as each of them believes that one of the acts was committed.
The goal of this Special Project is to get the Court of Criminal Appeals to agree that in the murder statute, section 19.02 of the Texas Penal Code, each of (b)(1)–(4) creates a separate and distinct offense for jury-unanimity purposes:
(b) A person commits an offense if the person: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, the person commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual; or (4) knowingly manufactures or delivers a controlled substance included in Penalty Group 1-B under Section 481.1022, Health and Safety Code, in violation of Section 481.1123, Health and Safety Code, and an individual dies as a result of injecting, ingesting, inhaling, or introducing into the individual's body any amount of the controlled substance manufactured or delivered by the actor, regardless of whether the controlled substance was used by itself or with another substance, including a drug, adulterant, or dilutant.
In almost every murder case in Texas, prosecutors allege both (b)(1) and (b)(2) in the indictment, and courts have for 50 years assumed that (b)(1) and (b)(2) are manners of committing the same offense, rather than distinct offenses (again, for unanimity purposes—double-jeopardy is a separate question). Until 2020, this was Texas’s business, because the U.S. Constitution did not require that state juries be unanimous. Things changed in 2020, though, so that now whether something must be proven to a unanimous jury (in other words, “is an element”) is the Supreme Court’s business. Since Texas juries must be unanimous on the elements of Texas offenses, the legislature can’t cheat and evade unanimity by calling statutory facts that lead to the imposition of punishment “manners or means.”
(What are elements? Apprendi says that a fact is an element if it results in an increase in the punishment range; Justice Thomas notes in his concurrence that, historically, facts that result in the imposition of or increase in a statutory punishment range have been considered elements.)
I saw Alkayyali, and thought it might be a good vehicle for the elements-vs.-manners argument. (Texas courts say “manners or means,” but there is a difference: a manner is how you do the thing; a means is what you do it with.)
I found Alkayyali through another Special Project, which is monitoring petitions for discretionary review, looking for cases in which the court has granted either the State’s or pro se defendants’ petitions, and offering to help lawyers (or pro se defendants) who might welcome it. Alkayyali popped onto my radar after the State’s petition for discretionary review was granted, and it happened that I used to know the defendant’s terrific lawyer, Heather Lytle, before she moved from Houston to Arlington. So I asked Heather if she’d let me include my issue in her brief, and she graciously agreed.
The court hadn’t granted oral argument when it granted discretionary review, but the week before last Heather got a call from the court: they were hearing oral arguments in Dallas, and one of the two slots had opened up; would we like to argue?
Heck yeah.
So we did a quick moot over Zoom with some local legal geniuses, and were off to the races. Heather’s issue is that the jury charge left off the “causes death” element of a section 19.02(b)(2) murder. The unanimity issue hadn’t been raised in the court of appeals, and John Messinger, from the State Prosecuting Attorney’s Office, dismissed it as “not properly before the court,” but to gauge the harm from Heather’s issue the court has to consider the entire jury charge, and the lack of a unanimity requirement contributed to the harm to our client.
The neat thing is that, since the Fort Worth Court of Appeals had reversed the trial court’s judgment, if the Court of Criminal Appeals reverses the intermediate court the case will be remanded, and another of Heather’s issues (which the Fort Worth Court did not address) is a much better fit for the unanimity argument. So we may get another trip through the Court of Criminal Appeals.
Just like another Special Projects case: State v. Jemadari Williams, in which the defendant won his pro se appeal, and I was unable to preserve his win in the Court of Criminal Appeals. There, too, I brought in the unanimity argument. The CCA reversed the San Antonio Court of Appeals, and sent the case back for the intermediate court to address Jemadari’s remaining points of error. The San Antonio court has held elsewhere, however, that when a case is reversed and remanded to it, it has discretion to consider other points of error as well as those previously raised. So we’re still in the hunt.
Find something that’s worth fighting for, and never give up.
Below the payline: speaking of hunts, yet another Special Project. I put the good stuff above the line; things below the line are of no special value, but are things that I don’t want to expose to the casual reader. Maybe a little spicy, maybe a little personal, maybe a little sensitive. Like a box of chocolates.
Even if you don’t like chocolates, every dollar we raise from Defending People goes to the First Amendment Funding Organization, so it’s for a great cause.