03-11-08 wfp instructed verdict w crhis changes

8/8/2019 03-11-08 WFP Instructed VERDICT w crhis changes

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THE VALUE OF A DIRECT VERDICT STRATEGY

Houston Criminal Attorney John Floyd Discusses His Recent Victory by

Instructed Verdict; After State Rests Judge Instructs Jury to Acquit on

Charges of Sexual Assault and Find Not Guilty

The John T. Floyd law firm was recently retained to represent a client in

Houston charged with sexual assault pursuant to Tex. Penal Code 22.011.

The client is a physical therapist who operates a pain relief center in

Houston, Harris County. A patient leveled the accusation that our client

inappropriately fondled and inserted his finger in her vagina during a

physical massage session against her consent. The District Attorneys Office

requested, and received, a grand jury indictment charging our client with

sexual assault which also designated him as a health care servicesprovider. See: 22.011(b)(9). We believed our client was wrongly accused

and set out to exonerate him.

Our firm initiated both an extensive factual and legal investigation of the

allegations contained in the indictment. It is well-established that an attorney

has a fundamental duty under the Sixth Amendment to investigate both the

facts and law of a case. See: Harrison v. Quarterman, 496 F.3d 419 (5th Cir.

2007).

The first area of our legal investigation began with the indictment itself. It is

vitally important that any defense begin with a close examination of the

charging instrument as to understand the exact elements of the governments

case. All the elements of an offense must be alleged in the indictment. An

indictment that tracks the statutory language of the offense is generally

sufficient. See: Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App.

1986). Rarely will an indictment that tracks the language of the penal statute

be declared legally insufficient. See: Bamhart v. State, 648 S.W.2d 696, 699

(Tex.Crim.App. 1983).

The procedural vehicle for challenging the sufficiency of an indictment is a

motion to quash. The Texas Court of Criminal Appeals has held that the

purpose of this motion is to aprise the trial court of any defects in the

charging instrument that are not obvious on its face. See: Green v. State, 533

S.W.2d 769 (Tex.Crim.App. 1976).


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However, a successful motion to quash generally results in the District

Attorney filing an amended information to correct the defect in the charging

instrument. This is not a significant victory for the defense.

The second area of our legal investigation turned to the statute itself.

22.011 offers a fertile field for legal investigation. The statute provides:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:(A) causes the penetration of the anus or sexual organ of another personby any means, without that person's consent;(B) causes the penetration of the mouth of another person by the sexualorgan of the actor, without that person's consent; or(C) causes the sexual organ of another person, without that person's

consent, to contact or penetrate the mouth, anus, or sexual organ ofanother person, including the actor; or

(2) intentionally or knowingly:(A) causes the penetration of the anus or sexual organ of a child by anymeans;(B) causes the penetration of the mouth of a child by the sexual organ ofthe actor;(C) causes the sexual organ of a child to contact or penetrate the mouth,anus, or sexual organ of another person, including the actor;(D) causes the anus of a child to contact the mouth, anus, or sexual organ

of another person, including the actor; or(E) causes the mouth of a child to contact the anus or sexual organ ofanother person, including the actor.

(b) A sexual assault under Subsection (a)(1) is without the consent of theother person if:(1) the actor compels the other person to submit or participate by the useof physical force or violence;(2) the actor compels the other person to submit or participate bythreatening to use force or violence against the other person, and the otherperson believes that the actor has the present ability to execute the threat;

(3) the other person has not consented and the actor knows the otherperson is unconscious or physically unable to resist;(4) the actor knows that as a result of mental disease or defect the otherperson is at the time of the sexual assault incapable either of appraisingthe nature of the act or of resisting it;(5) the other person has not consented and the actor knows the otherperson is unaware that the sexual assault is occurring;


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(6) the actor has intentionally impaired the other person's power toappraise or control the other person's conduct by administering anysubstance without the other person's knowledge;(7) the actor compels the other person to submit or participate bythreatening to use force or violence against any person, and the other

person believes that the actor has the ability to execute the threat;(8) the actor is a public servant who coerces the other person to submit orparticipate;(9) the actor is a mental health services provider or a health care servicesprovider who causes the other person, who is a patient or former patient ofthe actor, to submit or participate by exploiting the other person'semotional dependency on the actor;(10) the actor is a clergyman who causes the other person to submit orparticipate by exploiting the other person's emotional dependency on theclergyman in the clergyman's professional character as spiritual adviser;or

(11) the actor is an employee of a facility where the other person is aresident, unless the employee and resident are formally or informallymarried to each other under Chapter 2,Family Code.

(c) In this section:(1) "Child" means a person younger than 17 years of age who is not thespouse of the actor.(2) "Spouse" means a person who is legally married to another.(3) "Health care services provider" means:(A) a physician licensed under Subtitle B, Title 3, Occupations Code;

(B) a chiropractor licensed under Chapter 201, Occupations Code;(C) a physical therapist licensed under Chapter 453, Occupations Code;(D) a physician assistant licensed under Chapter 204, Occupations Code;or(E) a registered nurse, a vocational nurse, or an advanced practice nurselicensed under Chapter 301, Occupations Code.(4) "Mental health services provider" means an individual, licensed orunlicensed, who performs or purports to perform mental health services,including a:(A) licensed social worker as defined by Section 505.002, OccupationsCode;(B) chemical dependency counselor as defined by Section 504.001,Occupations Code;(C) licensed professional counselor as defined by Section 503.002,Occupations Code;(D) licensed marriage and family therapist as defined by Section 502.002,Occupations Code;(E) member of the clergy;


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(F) psychologist offering psychological services as defined by Section501.003, Occupations Code; or(G) special officer for mental health assignment certified under Section1701.404, Occupations Code.(5) "Employee of a facility" means a person who is an employee of a

facility defined by Section 250.001, Health and Safety Code, or any otherperson who provides services for a facility for compensation, including acontract laborer.

(d) It is a defense to prosecution under Subsection (a)(2) that the conductconsisted of medical care for the child and did not include any contactbetween the anus or sexual organ of the child and the mouth, anus, orsexual organ of the actor or a third party.

(e) It is an affirmative defense to prosecution under Subsection (a)(2) that:(1) the actor was not more than three years older than the victim and at the

time of the offense:(A) was not required under Chapter 62, Code of Criminal Procedure, toregister for life as a sex offender; or(B) was not a person who under Chapter 62, Code of Criminal Procedure,had a reportable conviction or adjudication for an offense under thissection; and(2) the victim:(A) was a child of 14 years of age or older; and(B) was not a person whom the actor was prohibited from marrying orpurporting to marry or with whom the actor was prohibited from livingunder the appearance of being married under Section 25.01.

(f) An offense under this section is a felony of the second degree, exceptthat an offense under this section is a felony of the first degree if the victimwas a person whom the actor was prohibited from marrying or purportingto marry or with whom the actor was prohibited from living under theappearance of being married under Section 25.01.

Our client was charged under Subsection (b)(9) of 22.011 as a health care

services provider; namely, a physical therapist. Subsection (c)(3)(C)

imposed upon the state the essential burden of proving that our client was

licensed under Chapter 453 of the Occupation Code.

Christopher Carlson, my co-counsel, Billy Sinclair, my paralegal, and I

faced a critical preliminary decision. We could have moved to quash the

indictment because the District Attorney had charged in the indictment that

our client was a licensed physical therapist, which he was not. The trial

court would have conducted a hearing, forcing the State to prove the license

issue. If the State could not establish the license issue, the trial court would


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have granted the motion. The District Attorneys Office would then have

amended the indictment removing the health care services provider

element.

We elected instead to remain silent about this issue and instead allow the

State to put on their case and then to pursue a motion for directed verdict. A

motion for an instructed or directed verdict is a challenge to the legal

sufficiency of the evidence and is presented after the state has put on their

case in chief and has rested. See: Madden v. State, 799 S.W.2d 683, 686

(Tex.Crim.App. 1987)[A challenge to the trial judges ruling on a motion

for instructed verdict is in actuality a challenge to the sufficiency of the

evidence to support the conviction.]. This language was adopted as the rule.

See: Cooke v. State, 858 S.W.2d 467, 470 (Tex.Crim.App. 1993). See also:

Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996)[motion for

directed verdict is a challenge to legal sufficiency of evidence].

There are differences between a legal sufficiency and factual sufficiency

challenge. See: Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000).

A legal sufficiency challenge is viewed in a light most favorable to the

prosecution when based on the claim that the State failed to prove all the

essential elements of the crime charged beyond a reasonable doubt. See:

King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).

We researched and prepared a hard copy of a motion for directed verdict that

we submitted after the State presented in its case in chief. As we had

anticipated, the State did not present any evidence that our client was a

licensed physical therapist under Chapter 453 of the Occupation Code. It

was a fatal error by the government. The trial judge asked the District

Attorneys Office if it had any evidence to establish that our client was a

licensed physical therapist, and when the District Attorneys Office was

unable to produce that evidence, the judge granted our motion for directed

verdict and discharged the jury. After a jury has been sworn in on a case,

and the defendant has been arraigned, jeapardy attaches and therefore our

client could not be recharged with this offense.

Though our directed verdict strategy saved the day, we had not hinged our

case solely on the motion for directed verdict. We conducted an extensive

factual investigation using our team of former homicide detective

investigators. They beat the pavement and knocked on doors conducting

interview after interview of witnesses that knew either the Defendant or the


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complaining witness. We had several witnesses ready to give testimony that

would have contradicted significant portions of the complaining witnesses

testimony. We also conducted an aggressive cross-examination of the States

two witnesses: the victim and investigating officer. A post-verdict poll of

the jurors revealed that our cross-examination had already created significant

reasonable doubt in the minds of all the jurors. Essentially, we were going

to win this case one way or another.

But, in the end, it was our time-honored rule to go to the indictment and

statute as the starting points of our legal investigation that carried the day.

Regardless of how effective an attorney may be at cross-examination and

other defensive procedures during the trial itself, it is always the legal and

factual investigation before trial that prepares a defense attorney for any

eventuality. In this instance, our pretrial investigation precluded us from

having to subject our witnesses to cross-examination from the State andfrom having to make the critical decision of whether to have our client

testify or not.

The lesson we offer here is patience. Force the State to prove what it charges

in its indictment. A motion to quash has its procedural value, but it should

never be used to give the State an opportunity to amend the indictment when

there is a reasonable assumption that the State cannot prove all the elements

charged in that indictment.

03-11-08 wfp instructed verdict w crhis changes

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