I. Background

A. Facts

According to appellant, he received $60,000 dollars in the mail from a man in Nigeria whom he had never met, who told appellant that he needed assistance in making purchases in the United States. Appellant claimed that he believed the money was authentic currency. He took the money to three different locations with the intent of obtaining money orders. After he successfully obtained two money orders, he was arrested when a clerk who was suspicious about the authenticity of the money called the police. The police confirmed that the money had been forged. At trial, the sole issue was whether appellant knew that the money was forged.

The jury instructions required the State to prove that appellant, “with the intent to defraud and harm another, possess[ed] a forged writing, namely money, and . . . possessed the writing with the intent to pass the writing and with knowledge that the writing was forged . . . .” Focusing on the instruction’s requirement that a defendant act with the intent to defraud or harm another, appellant’s counsel argued in his closing statements that the State had failed to prove forgery because a person cannot “intentionally or intend to act to defraud or harm another with currency that you don’t know is counterfeit.” Rejecting this argument, the jury found appellant guilty.

Appellant filed a motion for new trial claiming that he had received ineffective assistance of counsel based on counsel’s failure to request the inclusion of a mistake-of-fact instruction. The only evidence introduced was counsel’s affidavit, in which he stated that his failure to make the request was inadvertent and not the result of trial strategy. The trial court denied the motion for new trial without rendering findings of fact or conclusions of law.

B. Direct Appeal and State’s Petition for Discretionary Review

The court of appeals reversed appellant’s conviction. Okonkwo, 357 S.W.3d at 819-21. It determined that counsel was ineffective for failing to request the instruction on mistake of fact and concluded that this error harmed appellant because the jury was precluded from considering his sole defense. Id. The State challenges this analysis in two grounds in its petition for discretionary review.

First, as on direct appeal, the parties dispute whether a subjective or objective standard should be used to assess the effectiveness of counsel. Appellant prefers the former and the State the latter. Focusing on this dispute, the State asks, “Must a reviewing court look beyond the testimony of trial counsel to determine whether not requesting a mistake-of-fact instruction was objectively reasonable?”

Second, also as on direct appeal, the parties dispute whether counsel was ineffective by failing to request an instruction on mistake of fact. The State argues that counsel was not ineffective because the substance of the mistake-of-fact instruction was subsumed by the charge describing the elements of the offense and that the instruction, which lessened the State’s burden of proof, would not have benefitted appellant. Appellant responds that, even if that is true, he was nonetheless statutorily entitled to that defense, which was his only defense, and that counsel, therefore, was ineffective in failing to request it. Addressing this dispute, the State’s second ground for review asks, “Can it ever be deficient performance not to request a mistake-of-fact instruction when the offense requires the State to prove knowledge of that fact beyond a reasonable doubt?”

As to these two grounds, we conclude that, under an objective standard, appellant’s counsel was not unreasonable in failing to request the instruction. Counsel, therefore, did not render deficient performance. II. Strickland (3) Error Standard Is Objective

In its first ground for review, the State argues that the court of appeals improperly focused on counsel’s subjective self-assessment rather than reviewing his conduct objectively. Appellant responds that the court of appeals properly considered counsel’s admission that his failure to request the instruction was not tactical. In deciding an ineffective-assistance claim, a reviewing court must analyze the reasonableness of counsel’s conduct on the facts of the particular case, viewed at the time of the conduct. Strickland v. Washington, 466 U.S. 668, 690 (1984). An appellant must identify counsel’s acts or omissions that he alleges are not the result of reasonable professional judgment. Id. The court must then determine whether, in light of all the circumstances, the acts or omissions were outside the wide range of professionally competent assistance. Id. “[A]n act or omission that is unprofessional in one case may be sound or even brilliant in another.” Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005) (internal quotations omitted).

Courts “commonly assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); see also Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002). However, when no reasonable trial strategy could justify his conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of counsel’s subjective reasons for his conduct. Andrews, 159 S.W.3d at 102; see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Therefore, the focus of appellate review is the objective reasonableness of counsel’s actual conduct in light of the entire record.

Appellant cites Hardwick v. Crosby for the proposition that “[t]he mere incantation of ‘strategy’ does not insulate attorney behavior from review.” 320 F.3d 1127, 1186 (11th Cir. 2003). Neither, however, does the mere incantation of “no strategy.” As Hardwick states, the appellate court reviews “attorney behavior.” Id.

Contrary to the State’s suggestion that the court of appeals used a subjective standard to find ineffective assistance based solely on counsel’s testimony, the court of appeals articulated and applied an objective standard. It based its decision not only on counsel’s affidavit (4) but also on the facts that (1) mistake of fact was appellant’s only defense and (2) he would have been entitled to an instruction had he requested it. See Okonkwo, 357 S.W.3d at 819-20. Although we ultimately disagree with its application of the objective standard, which we address in the State’s second ground for review, we hold that the court of appeals did properly employ an objective standard to evaluate counsel’s performance. We, therefore, overrule the State’s first ground for review.

III. Counsel’s Failure to Request Mistake-of-Fact Instruction

Was Not Objectively Unreasonable

In its second ground for review, the State asks, “Can it ever be deficient performance not to request a mistake-of-fact instruction when the offense requires the State to prove knowledge of that fact beyond a reasonable doubt?” Appellate courts, however, should decide cases on the narrowest available ground, and resolution of this case does not require resolution of this question as it might to pertain to all other cases. See Randolph v. State, 353 S.W.3d 887, 895 n.32 (Tex. Crim. App. 2011) (“The prudent jurist will typically decide cases on the narrowest, surest ground available, leaving tougher calls, with broader implications, for future cases that squarely present them.”) (internal quotations omitted). Instead, we need only decide whether the court of appeals erred in reversing the trial court’s denial of appellant’s motion for new trial claiming ineffective assistance of counsel. We conclude that it did.

A. Deferential Standard of Review

As noted above, the trial court denied appellant’s motion for new trial. An appellate court reviews a trial court’s denial of a motion for new trial for an abuse of discretion, reversing only if the trial court’s ruling was clearly erroneous and arbitrary. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). A trial court abuses its discretion if no reasonable view of the record could support its ruling. Id. This requires the appellate court to view the evidence in the light most favorable to the trial court’s ruling. Id. In the absence of express findings, as here, we presume that the trial court made all findings, express and implied, in favor of the prevailing party. Id. at 459.

The trial court, as factfinder, is the sole judge of witness credibility at a hearing on a motion for new trial with respect to both live testimony and affidavits. Id. Accordingly, the appellate court must afford almost total deference to a trial court’s findings of historical facts as well as mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Id. at 458. This same deferential review must be given to a trial court’s determination of historical facts based solely on affidavits, regardless of whether the affidavits are controverted. Id. at 457. Here, in viewing the evidence in a light most favorable to the trial court’s ruling, the court of appeals should have deferred to the trial court’s implied finding that counsel’s affidavit lacked credibility. In the absence of that affidavit, the court of appeals should have examined the totality of the record in a light most favorable to the trial court’s ruling to assess whether counsel, under an objective standard, rendered ineffective assistance.

B. Counsel Did Not Render Ineffective Assistance

Appellant was charged with forgery of a writing, which required the State to prove that he acted “with intent to defraud or harm another.” Tex. Penal Code § 32.21(b). When intent to defraud is the mens rea of the offense, the State must prove facts from which that intent is deducible beyond a reasonable doubt and, in the absence of that proof, a conviction will not be justified. Stuebgen v. State, 547 S.W.2d 29, 32 (Tex. Crim. App. 1977). Because an element of the State’s case required proof that appellant acted with the intent to defraud or harm another, the State necessarily had to prove that he knew that the bills were forged, which was the same fact about which appellant claimed to have been mistaken. As this Court has explained, “While the requisite culpable mental state [for the offense of forgery of a writing] is ‘intent to defraud or harm,’ we fail to perceive how such culpable mental state can be shown absent proof of knowledge that the instrument is forged.” Id. The State, therefore, correctly observes that proof of the culpable mental state necessarily proves lack of mistake regarding the authenticity of the bills.

Relying on this observation, the State contends that appellant would not have been entitled to an instruction on mistake of fact because the instruction was unnecessary. It argues that when an offense “requires proof of knowledge beyond a reasonable doubt, there is no reason to also instruct the jury that a reasonable doubt on the issue [of knowledge] requires that the defendant be acquitted.” In other words, the State suggests that, because the substance of the mistake-of-fact defense was subsumed by the charge and merely negated an element the State was required to prove, a mistake-of-fact instruction would not have been required and served no purpose. See Bruno v. State, 845 S.W.2d 910 (Tex. Crim. App. 1993). (5) By contrast, appellant contends that, because the mistake-of-fact instruction is codified, it must be given if it negates a defendant’s culpable mental state, is raised by the evidence, and is requested by a party. See, e.g., Willis v. State, 790 S.W.2d 307, 314-15 (Tex. Crim. App. 1990); Giesberg v. State, 984 S.W.2d 245, 249-50 (Tex. Crim. App. 1998). (6) This Court has not yet resolved this dispute, and we need not do so here in the context of a complaint of ineffective assistance of counsel because, under either of the scenarios promoted by the State and appellant, appellant has not shown that counsel was objectively unreasonable in failing to request an instruction on mistake of fact.

The evidence introduced by appellant’s trial counsel suggested defensive theories that inconsistently asserted either (1) that appellant lacked criminal intent because he honestly believed that the bills were genuine, even if he was unreasonable in that belief, (7) or, alternatively, (2) that he was reasonably mistaken about the authenticity of the bills. (8) The first alternative theory promoted by appellant’s trial counsel was addressed by the jury instruction that expressly preconditioned a conviction upon a jury finding that appellant knew the currency was not authentic. In other words, the instructions on the forgery elements required the State to prove beyond a reasonable doubt that appellant actually knew the bills were forged. By comparison, had counsel pursued an instruction on mistake of fact to address his second alternative theory, the jury would have also had to decide whether that belief was reasonable. See Tex. Penal Code § 8.02(a). This would have been problematic for appellant because the instruction would have decreased the State’s burden of proof by permitting the jury to convict him if it concluded that his mistake was unreasonable, even if it found that the belief was honest. Therefore, counsel was not objectively unreasonable in failing to request an instruction that may have caused the jury to convict him based on a lessened burden of proof.

Even if the law permitted counsel to obtain an instruction on mistake of fact under these circumstances, the failure to request the instruction was not objectively unreasonable because defensive issues “frequently depend upon trial strategy and tactics.” See Tolbert v. State, 306 S.W.3d 776, 779-82 (Tex. Crim. App. 2010); see also Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App. 1992) (“[J]ust because a competent defense attorney recognizes that a particular defense might be available to a particular offense, he or she could also decide it would be inappropriate to propound such a defense in a given case.”). Under the record in this case, we conclude that counsel was not objectively unreasonable by failing to request an instruction on mistake of fact because that theory was inconsistent with a theory that counsel advanced at trial, and it would have misled the jury as to the State’s burden of proof. (9) We, therefore, cannot conclude that the trial court’s ruling was clearly erroneous and arbitrary and that no reasonable view of the record could support it. See Riley, 378 S.W.3d at 457. In light of the entire record, we hold that the court of appeals erred in determining that the trial court abused its discretion. We sustain the State’s second issue as we have narrowly construed it.

IV. Conclusion

We reverse the judgment of the court of appeals and render a judgment affirming the judgment of the trial court.

Delivered: May 15, 2013

Publish

1. The mistake-of-fact defense is codified at Texas Penal Code Section 8.02, which provides, “It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Tex. Penal Code § 8.02(a).

2. Appellant was charged with forgery of money, a third-degree felony. Tex. Penal Code § 32.21(b) (person commits offense if he “forges a writing with intent to defraud or harm another”) & (e)(1) (when writing is part of an issue of money, forgery is third-degree felony).

3. Strickland v. Washington, 466 U.S. 668, 688 (1984) (to prevail on ineffective-assistance claim, defendant must prove (1) that counsel’s performance fell below objective standard of reasonableness and (2) that deficient performance actually prejudiced defendant). We do not reach the prejudice inquiry because we determine that counsel did not perform unreasonably.

4. As we note below, the court of appeals should have examined the record in a light most favorable to the trial court’s ruling and, therefore, should have entirely disregarded counsel’s affidavit.

5. In Bruno, an unauthorized-use-of-a-motor-vehicle case, Bruno testified that the owner of the vehicle had given him permission to use her car, but the owner testified that Bruno had fled with her car without her permission. Bruno v. State, 845 S.W.2d 910, 911 (Tex. Crim. App. 1993). A plurality of this Court determined that a mistake-of-fact instruction was “unnecessary” because the jury could believe either Bruno or the owner, but not both. Id. at 913. This Court distinguished Bruno’s case from those in which an instruction was required by noting that those cases involved third parties. Id. This Court explained that, in third-party situations, an instruction on mistake of fact must be given so that a jury has the opportunity to acquit a defendant if it determines that he reasonably believed he had the consent of the owner based on a representation made to him by a third party. Id. Although the Fourteenth Court of appeals did not follow Bruno in this case, it did at one time. See Hopson v. State, No. 14-08-00735-CR, 2009 Tex. App. LEXIS 2903, at *6-10 (Tex. App.—Houston [14th Dist.] Apr. 28, 2009, no pet.) (not designated for publication). Aside from the Fourteenth Court of Appeals, only one other Texas intermediate court has followed Bruno. In Traylor v. State, the Beaumont court of appeals held that the trial court properly refused to give a mistake-of-fact instruction because it “was not necessary.” 43 S.W.3d 725, 730-31 (Tex. App.—Beaumont 2001, no pet.) (holding defensive instruction that Traylor was mistaken about whether victim was police officer was unnecessary because, to convict Traylor, jury had to find that he knew the victim was police officer). Only one other court of appeals has applied Bruno, but it did so in an unpublished decision and in the context of a harm analysis rather than an error analysis. Turner v. State, No. 04-03-00436-CR, 2004 Tex. App. LEXIS 7587, at *18 (Tex. App.—San Antonio Aug. 25, 2004, no pet.) (not designated for publication) (citing Bruno, 845 S.W.2d at 913).

6. See also Louis v. State, 393 S.W.3d 246, 253 (Tex. Crim. App.2012) (defendant entitled to mistake-of-fact instruction when raised to negate transferred intent); Thompson v. State, 236 S.W.3d 787, 799-800 (Tex. Crim. App. 2007) (same); Granger v. State, 3 S.W.3d 36, 41 (Tex. Crim. App. 1999) (“When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction of ‘mistake of fact.’”) (quoting Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991)); Hill v. State, 765 S.W.2d 794, 795 n.2 (Tex. Crim. App. 1989) (“Where a defense, such as mistake of fact, is enacted by the Legislature, the rule that it is not error to deny a requested instruction where it is an affirmative submission of a defensive issue which merely denies the existence of an essential element of the State’s case becomes inapplicable.”); Knowles v. State, 672 S.W.2d 478, 480 (Tex. Crim. App. 1984) (because evidence raised the defensive issue of mistake of fact, “it was reversible error to deny appellant’s timely request for a charge on” that defense); Sands v. State, 64 S.W.3d 488, 495-96 (Tex. App.–Texarkana 2001, no pet.) (“Even if this [mistake-of-fact] instruction is repetitive to the required proof that the jury find beyond a reasonable doubt that Sands intentionally and knowingly committed this required element of the crime, this statute as interpreted by the Court of Criminal Appeals requires that such an instruction be given to the jury.”).

7. For example, in his closing argument, defense counsel stated,

One thing that has been proven in this case beyond a reasonable doubt is that [appellant] handled this money and acted in the circumstances in a totally unreasonable way that lacks common sense even at a basic level. That’s clear. . . . You can’t intentionally or intend to act to defraud or harm another with currency that you don’t know is counterfeit.

8. Some evidence tended to show that appellant reasonably believed the bills were genuine. Testimony showed that these types of cash transactions were typical in Nigeria and that some of the currency had been determined to be genuine when it was tested with a forgery-detection pen by a store clerk.

9. We do not foreclose the possibility that an attorney could be ineffective by failing to request the instruction under different circumstances or by failing to request an instruction to negate a transferred-intent element. See Thompson, 236 S.W.3d at 799-800.

I. Background

A. Trial

Gelinas was charged with the offense of driving while intoxicated following a roadside stop conducted by Department of Public Safety Trooper Diego Marquez. At trial, Trooper Marquez testified that he stopped Gelinas because he believed Gelinas failed to signal out of a private parking lot and that the light illuminating Gelinas’s license plate was not white, as required by law. Marquez conceded, however, that the former ground for the stop proved insupportable because the Transportation Code does not require drivers to signal when turning out of private lots. As a result, the sole ground for the stop became Gelinas’s alleged non-compliance with Transportation Code section 547.322(f), mandating that lights illuminating license plates be white. (2) Trooper Marquez testified that the light illuminating the license plate was not white, though he had difficulty recalling the actual color of the light. The State also offered video from Trooper Marquez’s in-car police camera, though the testimony at trial suggests that the video fails to conclusively establish the color of the license plate light. According to Marquez, Gelinas exhibited a number of signs of intoxication after being pulled over and performed poorly on the standardized field sobriety tests. Based on his observations, Trooper Marquez concluded that Gelinas was intoxicated.

In addition to arguing that he was not intoxicated, Gelinas argued at trial that the light illuminating his license plate was, in fact, white. In support of his position, Gelinas referred to Trooper Marquez’s in-car camera video as proof that the light was white. Additionally, Gelinas offered the testimony of his wife, who stated that the light was white and that the car had passed numerous state inspections. A photograph of the license plate taken by Gelinas’s wife sometime after the incident was also offered at trial, though, like as with the video, it appears from the testimony at trial that the photograph was somewhat inconclusive as to the color of the license plate light.

Because the issue regarding the color of the light was contested, the trial judge included an instruction pursuant to Texas Code of Criminal Procedure article 38.23(a) (3) in the jury charge, which stated:

You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted to make a temporary investigative detention of a motorist if the officer has specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude that a person detained actually is, has been, or soon will be engaged in criminal activity. Now, bearing in mind this instruction, if you find from the evidence that on the occasion in question the Defendant, James Henry Gelinas, was driving his vehicle on a public road immediately preceding his stop and detention by the officer and you find from the evidence that his vehicle failed to comply with the Texas Transportation Code Provision, which requires a white light to illuminate the vehicle’s license plate or you have a reasonable doubt thereof, then such stopping of the accused would be illegal and, if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard this testimony of Trooper Marquez relative to his stopping the defendant and his conclusions drawn as a result thereof, and you will not consider such evidence for any purpose whatsoever.

The instruction was clearly erroneous in that it stated the exact opposite of what the law provides. In truth, if the jury found that Gelinas was driving on a public road and failed to comply with the law requiring a white light, the stop would have been legal, not illegal, and thus the jury could have properly considered the testimony and conclusions of Trooper Marquez.

Gelinas was found guilty of driving while intoxicated and was sentenced to 180 days confinement probated for fifteen months and fined $1000.

B. Appeal On appeal, Gelinas asserted, among other things, that he suffered egregious harm as a result of the charge error. (4) Because Gelinas did not object to the erroneous jury instructions at trial, the court of appeals conducted an Almanza (5) harm analysis to determine whether the error resulted in egregious harm. (6) Under Almanza, courts evaluate harm by taking into account (1) the entire jury charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information contained in the record as a whole. (7) In its analysis, the court of appeals noted the similarities between the facts of the instant case and those in our Hutch v. State plurality opinion, which essentially stands for the proposition that when a defendant fails to object to a misstatement of the law relevant to a contested issue in a jury charge’s application paragraph, the fact that jury arguments properly explained the law cannot render the resulting error harmless. The court of appeals opted to follow our reasoning in Hutch, offering little more than an account of our analysis in Hutch and a blanket conclusion of egregious harm. (8) That court reversed and remanded the case accordingly. (9) Upon review, we conclude that Hutch lacks the persuasive value to which the court of appeals attributed it.

II. Analysis

A. Hutch

In Hutch, there was a similarly erroneous article 38.23(a) jury instruction containing a misstatement of the law. (10) Hutch’s arrest was based on the discovery of drugs in a car which that was allegedly pulled over because the driver and the passenger, Hutch, were not wearing seatbelts. (11) Hutch claimed that he and the driver had been wearing their seatbelts and thus the stop was illegal and all subsequently obtained evidence inadmissible. (12) Because the issue was contested, the trial judge included an article 38.23 instruction. (13) The instruction, however, erroneously stated the exact opposite of what the law provided. It instructed the jury that if they found that the driver of the car and Hutch had not been wearing their seatbelts, the stop was illegal, and they should disregard the officer’s testimony and conclusions. (14) In fact, in this scenario, the stop would have been legal and the jury could have considered the testimony and conclusions of the officer. (15)

In Hutch, we concluded that, with regard to the first Almanza factor addressing the entire charge, the error was “unquestionably wrong” and “was 180 degrees opposite of what it should have been.” (16) We held this factor weighed in favor of finding egregious harm because the error occurred in the application paragraph of the jury charge–the portion which authorizes the jury to act–and also on the appellate presumption that the jury understood and followed the jury charge absent evidence to the contrary. (17)

Hutch continued its analysis by addressing the second Almanza factor, calling for consideration of the state of the evidence. We held that the issue was a contested one, and noted that no instruction would have been required otherwise. (18)

As for the third Almanza factor–arguments of counsel–we originally concluded that the arguments of counsel, though correct, were insufficient to cure the resulting error. (19) We based this conclusion, in part, on the fact that it has long been said that “jury arguments are not evidence and the jury may not consider them as such” and on the Supreme Court’s holding that “arguments of counsel cannot substitute for instructions by the court” in addition to language from one of our own prior opinions stating that “jury argument is not a substitute for a proper jury charge.” (20) In addition, we cited case law suggesting that a jury argument alone is never controlling in an analysis under Almanza. (21)

Finally, our Hutch opinion made no mention of any other relevant considerations that might fit within the broad “catch-all” category that constitutes the fourth Almanza factor. Because it is flawed and produces unjust results, we decline to apply Hutch‘s reasoning to a jury charge error like that presented in this case. First, Hutch‘s Almanza analysis did not attribute the appropriate weight to the various factors in light of the facts.

As for its analysis of the first Almanza factor–the jury charge in general–we do not agree with the great weight the Hutch plurality placed on this factor, weighing in favor of finding egregious harm, simply because of the error’s location in the application paragraph. Just as Presiding Judge Onion stated in his concurring and dissenting opinion in Almanza, we, too, question the wisdom of reversing upon “finding a single defect in the exalted ‘application paragraph’ . . . without consideration of the charge as a whole, or considering whether the jury was in any way misled.” (22)

Further, the plurality overlooked the possibility that it is the very clarity of the error that may have mitigated any resulting harm. The erroneous instruction in the application paragraph in Hutch immediately followed a correct statement of the law in the abstract portion of the charge. The juxtaposition of the two almost certainly alerted the jury to the fact that the inconsistency was the result of a typographical error. Though we discuss this in greater detail in our analysis of Hutch‘s conclusion regarding the third Almanza factor, it is relevant here that the jury arguments in Hutch involved correct recitations of the law, which informed jurors of the correct law and thus likely indicated to the jury that the charge contained a simple mistake. Common sense would also indicate to most jurors that a police officer cannot legally stop and investigate a law-abiding citizen without cause.

Similarly, while we agree that the issue in question was a contested one, we believe our original conclusion that the second Almanza factor weighed in favor of egregious harm on this basis alone was overly simplistic. Resolving this factor in such a manner essentially means that if a trial judge grants a request for an article 38.23 instruction that happens to contain even the slightest error, an appellant is already one quarter of the way to establishing egregious harm. In erroneous article 38.23 instruction cases, this factor should be afforded less weight because it undermines the flexibility required of a factor test applied on a case-by-case basis and elevates an article 38.23 instruction to a special status subject to a modified factor test. Thus, we are inclined to limit the weight of this factor in the egregious-harm evaluation.

As for the third Almanza factor, the Hutch opinion’s conclusion that the arguments of counsel, though correct, were insufficient to cure the resulting error relied upon factually distinguishable case law, Taylor v. Kentucky and Arline v. State, in support of its conclusion. (23) In both Taylor and Arline, the facts were significantly different than those in Hutch. There, the trial courts refused to give any version of the requested instructions. (24) As a result, the relevant law was entirely absent from the jury charges. For this reason, we do not believe that the holdings in Taylor and Arline deeming jury arguments insufficient substitutes for jury instructions apply in cases like Hutch or the present case, where arguments are not acting as substitutes for the instructions, but merely constitute a correct version of the law incorrectly reflected in the jury charge. In such cases, the jury is not deprived of all relevant law, but is simply faced with an obviously erroneous recitation of that law, and correct arguments may well serve to alert jurors to the presence and correctness of such errors. Our belief that the arguments of counsel can be relevant to harm is supported by the fact that the entirety of the third factor of Almanza focuses on arguments of counsel. If such arguments were not relevant to harm, why would this be the case?

Second, and perhaps more importantly, the Hutch opinion resulted in a windfall for Hutch and creates similar potential windfalls for other defendants in factually similar circumstances. A defendant may now remain silent where a jury charge is incorrect, hoping for an acquittal, and then, if a jury finds him guilty, raise the issue on appeal with the hope of obtaining a new trial. The State, however, has no such opportunity given its limited right of appeal. (25) Not only is the result unfair, but it also encourages defendants to remain silent with regard to errors in jury instructions and rewards the failure to correct charge errors. Both fairness and judicial economy favor doing away with such a holding.

Choosing to decline to apply Hutch does not mean that egregious harm did not occur in Gelinas’s case, however. The appropriate inquiry is a fact specific one which must be performed on a case-by-case basis.

B. Gelinas’s Case

With regard to Almanza‘s first factor, addressing the charge in its entirety, clear error exists in the application paragraph of the charge to the jury because the instruction misstated the law. The location of the error in the application paragraph is not as significant as we once believed. The proper recitations of the law in the abstract paragraph and the arguments of counsel, discussed in greater detail below, along with the common sense of the jurors, likely minimized the impact of this error. In fact, the language preceding the incorrectly worded portion of the jury charge clearly states that it should be read “bearing in mind [the foregoing] instruction,” referring to the abstract portion. This informed the jury that they were to apply the law given in the abstract, which constituted a correct statement of the law. Ultimately, although this factor weighs in favor of a finding of egregious harm, we do not place such great weight on it as the court of appeals was inclined to do.

With regard to the second factor, it is obvious that the issue here was a contested one. The State does not contest this. As a result, this, too, weighs in favor of a finding of egregious harm. However, as discussed above, in the context of an article 38.23 instruction, this factor should be assigned less weight given that the presence of an instruction in the first instance means that the issue was a contested one.

Regarding the arguments of counsel–Almanza‘s third factor–both parties mentioned the law regarding the legality of the stop in their arguments to the jury. In the first portion of the State’s closing argument, the prosecutor referred the jury to the incorrect portion of the jury charge and went so far as to read part of it, though not enough of it to constitute an incorrect statement of the law as he did not reach the portion regarding whether the stop was legal or illegal. Nevertheless, the State went on to correctly address the issue, explaining that the stop was legal so long as the light on Gelinas’s license plate was not white. In the final portion of the State’s closing argument, the prosecutor again correctly stated the law with regard to the stop’s legality, explaining that if the light was red, that would constitute a violation of the Transportation Code, and Trooper Marquez could have validly stopped Gelinas.

Defense counsel also addressed the issue of the legality of the stop. In his closing argument, counsel referred to the incorrect jury charge and read the incorrect portion in its entirety. Like the State, however, he proceeded to correctly set out the law regarding the legality of the stop and even went so far as to tell the jury that if they found that the light was white, they could not consider anything else that occurred after the stop.

Thus, though there were some misstatements of the law during jury arguments, both parties also argued the correct law very clearly to the jury. Given that we have determined that jury arguments bear significantly on an Almanza analysis, we believe the third factor weighs significantly in favor of a finding of no egregious harm.

As for the fourth Almanza factor, which accounts for any other relevant information contained in the record, we note the absence in the record of a note from the jury during deliberations expressing confusion as to the contradictory language regarding the 38.23 instruction. This suggests that the jury was not confused by the typographical error in the jury charge or the misstatements during the arguments of counsel. In light of the obviousness of those errors, the common sense of the jurors, the correct portion of the jury charge, and the correct statements of law in both parties’ closing arguments, we believe it probable that the jury resolved the issue in accordance with the law. This factor, too, weighs in favor of finding no egregious harm.

Ultimately, we believe that the third and fourth factors weighing in favor of finding no egregious harm outweigh the first and second factors weighing in favor of finding egregious harm. Our conclusion is supported by the fact that the Gelinas jury was unlikely to have been misled given the fact that common sense, the correct abstract paragraph, and correct jury arguments most likely alerted the jury to the error and allowed them to recognize the mistake and properly apply the law as correctly stated in the preceding sentence. We conclude that no egregious harm resulted from the erroneous instruction in the jury charge. We limit our holding today to the facts of this case and reiterate our assertion that the Almanza analysis is a fact specific one which should be done on a case-by-case basis.

III. Conclusion

We find our opinion in Hutch was flawed and produces unjust results, and we hereby disavow it. After conducting an Almanza analysis in the instant case, we find the erroneous article 38.23 instruction did not egregiously harm Gelinas. Accordingly, we reverse the court of appeals’ judgment and remand the case to the court of appeals to address Gelinas’s remaining points of error.

DATE DELIVERED: May 15, 2013

PUBLISH

1. Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) (plurality opinion).

2. Tex. Transp. Code § 547.322(f) (“A taillamp or a separate lamp shall be constructed and mounted to emit a white light that: (1) illuminates the rear license plate; and (2) makes the plate clearly legible at a distance of 50 feet from the rear.”)

3. Tex. Code Crim. Proc. art. 38.23(a) (“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the state of Texas, or of the Constitution or law of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.”)

4. Gelinas v. State, 2011 Tex. App. LEXIS 4524, *7 (Tex. App.–El Paso June 15, 2011).

5. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g)

6. Gelinas, 2011 Tex. App. LEXIS 4524 at *9-10.

7. Almanza, 686 S.W.2d at 171.

8. Gelinas, 2011 Tex. App. LEXIS 4524 at *10 (citing Hutch, 922 S.W.2d at 170).

9. Id. at *13-14.

10. Hutch, 922 S.W.2d at 169-70.

11. Id. at 169.

12. Id.

13. Id.

14. Id.

15. Id. at 170.

16. Id. at 172 (citing Hutch v. State, 881 S.W.2d 92, 94 & 96 (Tex. App.–Houston [1st Dist.] 1994).

17. Hutch, 922 S.W.2d at 172-73 (citing Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1987) (op. on reh’g); Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex. Crim. App. 1983); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)).

18. Hutch, 922 S.W.2d at 173.

19. Id. at 174.

20. Id. (citing Taylor v. Kentucky, 436 U.S. 478, 488-89 (1978); Arline v. State, 721 S.W.2d 348, 353 n.8 (Tex. Crim. App. 1986)).

21. Id. (citing Ruiz v. State, 753 S.W.2d 681, 686 (Tex. Crim. App. 1988)).

22. Almanza, 686 S.W.2d at 177 (Onion, J., concurring and dissenting).

23. Hutch, 922 S.W.2d at 174 (citing Taylor v. Kentucky, 436 U.S. 478, 488-89 (1978); Arline v. State, 721 S.W.2d 348, 353 n.8 (Tex. Crim. App. 1986)).

24. Taylor, 436 U.S. at 480-81; Arline, 721 S.W.2d at 353 n.8.

25. See Tex. Code Crim. Proc. art. 44.01.

I. Background

It is undisputed that, although appellant was never licensed to practice law in Texas or any other jurisdiction, he continuously held himself out as a lawyer in Texas over a period of several years in a lucrative business. (1) Appellant acknowledged that he did not have a “cedula,” or Mexican law license, nor a certificate from Mexico’s Ministry of Education, which documents that a person currently meets the requirements to practice law in Mexico. Rather, he testified that he has a diploma in judicial sciences and that he, therefore, believed that he was “considered a lawyer in Mexico.” He called two witnesses who testified that every Mexican citizen who was of legal age and sound mind is a “licenciado,” meaning a person authorized to practice certain types of law in Mexico.

Appellant was charged with 23 counts of falsely holding himself out as a lawyer in violation of Texas Penal Code Section 38.122, which, hereafter, we refer to as the “false-lawyer statute.” Tex. Penal Code § 38.122. With respect to a culpable mental state, the trial court’s instructions required the jury to determine only whether appellant intended to obtain an economic benefit for himself in holding himself out as a lawyer. The instructions did not include a culpable mental state with respect to the remaining elements that alleged that appellant had held himself out as an attorney, was not currently licensed to practice law, and was not in good standing with the State Bar of Texas and other applicable authorities. Tracking the language of the false-lawyer statute, the charge instructed, in relevant part,

Now, if you find from the evidence beyond a reasonable doubt that on or about [date], in Nueces County, Texas, the Defendant, Mauricio Celis, did then and there, with intent to obtain an economic benefit for himself, hold himself out as a lawyer, to wit: [by manner and means], and the defendant was not then and there licensed to practice law in this state, another state, or a foreign country and was not then and there in good standing with the State Bar of Texas and the state bar or licensing authority of any state or foreign country where the defendant was licensed to practice law, then you will find the defendant guilty of the offense of falsely holding himself out as a lawyer as charged in the indictment.

See Tex. Penal Code § 38.122. In declining to instruct the jury on an additional culpable mental state, the court overruled appellant’s request to add the word “intentionally” before the phrase “did then and there” so as to require the jury to find that he intended every element of the offense. The trial court also overruled appellant’s request for a mistake-of-fact instruction on his alleged mistaken belief that he was licensed to practice law by, and in good standing with, the licensing authority of Mexico. The charge defined “good standing,” stating,

“Good standing with the State Bar of Texas” means:

(1) Being a “Member in Good Standing” of the State Bar of Texas; or

(2) Being certified to practice in Texas as a Foreign Legal Consultant by the Texas Board of Law Examiners.

A “Member in Good Standing” of the State Bar of Texas is someone who meets and complies with all applicable requirements of the Rules of the Supreme Court of Texas governing admission to the bar of Texas, and who is not in default of payment of dues and who is not under suspension from practice.

A “Foreign Legal Consultant” is someone certified under the Rules of the Supreme Court of Texas governing admission to the Bar of Texas, and who is considered a lawyer affiliated with the Bar of Texas.

Appellant objected to the instruction defining the term “foreign legal consultant” as an improper comment on the weight of the evidence, which the trial court overruled. The jury found appellant guilty on 14 counts and assessed a 10-year sentence for each offense, probated for 10 years.

On appeal, appellant challenged the trial court’s overruling of his three jury-charge complaints. The court of appeals upheld the trial court’s rulings, determining that the statute’s culpable mental state was limited to the intent to obtain an economic benefit; that no mistake-of-fact instruction was required; and that the trial court properly defined the term “foreign legal consultant.” We granted review of appellant’s three jury-charge issues. (2)

II. Culpable-Mental-State Analysis

In his first issue for discretionary review, appellant contends that the court of appeals erred by overruling his challenge to the trial court’s denial of an instruction on a culpable mental state beyond the one prescribed in the statute. As on direct appeal, he contends that the statute defining the offense of falsely holding oneself out as a lawyer is silent on the requirement of a culpable mental state and does not plainly dispense with one, and that the trial court, therefore, was required to instruct as to one. Celis v. State, 354 S.W.3d 7, 27 (Tex. App.—Corpus Christi 2011) (citing Tex. Penal Code §§ 6.02, 38.122). The court of appeals was “not persuaded that the [statute] is silent on the requirement of a culpable mental state.” Id. It held that the statute prescribed a mental state through the requirement that the defendant act with the “intent to obtain an economic benefit for himself,” which satisfied “the traditional mens rea requirement of the criminal law.” Id. We agree.

A. Standard of Review

The trial court must give the jury a written charge that sets forth the law applicable to the case. Tex. Code Crim. Proc. art. 36.14. A charge that does not set out all of the essential elements of the offense is fundamentally defective. Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App. 2006); Zuckerman v. State, 591 S.W.2d 495, 496 (Tex. Crim. App. 1979). Appellate review of claims of jury-charge error involves a determination of whether the charge is erroneous and, if it is, a harm analysis. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Because there is no charge error in this case, we need not conduct a harm analysis. (3)

B. Presumption of Culpable Mental State and Statutory Interpretation

“If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.” Tex. Penal Code § 6.02(b); see also Aguirre v. State, 22 S.W.3d 463, 472 (Tex. Crim. App. 1999). Therefore, the two pertinent questions are whether the statute defining the offense of holding oneself out as a lawyer prescribes a culpable mental state and, if not, whether a mental state is nevertheless required. This Court has enumerated several factors that courts may consider “in deciding whether the legislature meant to impose liability without fault or, on the other hand, really meant to require fault though it failed to spell it out clearly.” Aguirre, 22 S.W.3d at 475. Factors relevant to this case include (1) the language of the statute and (2) the nature of the conduct regulated, the risk of harm to the public, and the defendant’s ability to ascertain facts. Id. at 475-76.

1. Plain Language Suggests That No Additional Culpable Mental

State Is Required

Statutory “words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex. Gov’t Code § 311.011(a); Tovar v. State, 978 S.W.2d 584, 586 (Tex. Crim. App. 1998). It is well settled that the complete omission from a statute of any mention of intent will not necessarily be construed as eliminating that element from an offense. Aguirre, 22 S.W.3d at 471. However, the prescription of a mental state as to certain portions of a statute, but not as to others, is compelling evidence that the Legislature intended to dispense with a mental state as to the latter. Id. at 473 (observing that “omission of a culpable mental state from only one of the four sections was a clear implication of the legislature’s intent to dispense with a mental element in that section”).

The statute describing the offense of holding oneself out as a lawyer states,

A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.

Tex. Penal Code § 38.122(a). It is plain from the structure of the text in Subsection (a) that the only mental state prescribed–”with intent”–modifies and applies only to the element “to obtain an economic benefit for himself or herself.” Id. The most natural grammatical reading of the statute suggests that that mental state does not extend to either (1) the element set forth after that phrase, i.e., “the person holds himself . . . out as a lawyer,” or (2) the elements expressed in the subsequent dependent clause beginning with “unless,” i.e., the licensing and good-standing requirements. See id. In other words, the statute does not expressly prescribe a mental state as to anything other than acting to obtain an economic benefit. This prescription of a mental state as to one element and not as to others sufficiently demonstrates the Legislature’s intent to dispense with a mental state as to those other elements. See Aguirre, 22 S.W.3d at 473; see also Ex parte Smith 645 S.W.2d 310, 311-12 (Tex. Crim. App. 1983) (holding that theft statute requires only statutorily prescribed intent “to deprive the owner of property” and not “an independent culpable mental state” with respect to appropriating property without owner’s consent). We are unpersuaded by appellant’s argument that the Legislature must more expressly indicate its intent to dispense with a culpable mental state than by its specific inclusion of a culpable mental state as to some elements and its exclusion of that requirement as to others.

In other cases involving grammatically similar statutes, we have construed prescription of a mental state only as to some elements as evincing legislative intent to dispense with a mental state as to other elements. In Long v. State, in which we interpreted the “stalking statute,” (4) we concluded that, by prescribing a mental state in one section of the statute but omitting a mental state in a subsequent subsection, “the legislature plainly dispensed with any additional mental state in [that subsection] that might otherwise be required.” 931 S.W.2d 285, 291 (Tex. Crim. App. 1996). Similarly, in Johnson v. State, we interpreted the indecency-with-a-child statute (5) as dispensing with a mental state as to the child’s age in keeping with “the clear legislative intent.” 967 S.W.2d 848, 849 (Tex. Crim. App. 1998). And in Lomax v. State, in which we held that the felony-murder statute (6) did not require a culpable mental state, we stated that “[i]t is significant and largely dispositive that [the felony-murder subsection] omits a culpable mental state while the other two subsections in [that section] expressly require a culpable mental state.” 233 S.W.3d 302, 304 (Tex. Crim. App. 2007). We concluded that this was “a clear implication of the legislature’s intent to dispense with a mental element in that [sub]section.” Id. (7) The plain language used to describe the offense of holding oneself out as a lawyer, therefore, suggests that a person can be held criminally responsible for holding himself out as a lawyer if he does not satisfy the licensing and good-standing requirements, so long as he does so intending to obtain an economic benefit.

Furthermore, we note that the statute first defines holding oneself out as a lawyer for profit as criminal, followed by the subordinate conjunction “unless.” Tex. Penal Code § 38.122. This indicates that the Legislature intended to criminalize the conduct “unless” certain criteria are met. See id. In short, the statute defines conduct as unlawful unless other circumstances exist. This further indicates that the Legislature did not intend for a mental state to apply to the circumstances set forth in the statute that render the otherwise unlawful conduct lawful.

2. Nature of Conduct Suggests That No Additional Culpable

Mental State Is Required

a. Acting as a lawyer is highly regulated conduct

The statute at issue in this case is substantially analogous to the ordinance construed in Tovar v. State, in which this Court held that criminal liability may be imposed without proof of a culpable mental state for certain types of conduct that place upon a person a duty to understand and comply with applicable legal requirements. 978 S.W.2d at 587. Interpreting the Closed Meeting Act, (8) we held that it did not require proof of a mental state with respect to whether a closed meeting was statutorily prohibited, although it did expressly prescribe a mental state as to other elements. Id. at 587-88. Examining its language “and the rules of grammar and common usage,” we determined that it plainly dispensed with a culpable mental state as to whether the meeting was not permitted to be closed. Id. at 587. We also observed that the plain-language reading was consistent with the Act’s “purpose of safeguarding the public’s interest in knowing the workings of its governmental bodies” and noted that it “places a duty upon members of governmental bodies to hold open meetings and a concomitant duty to find an exception to the general rule if they desire to have a closed meeting.” Id. It criminally sanctioned “neglect where the law requires care, or inaction where it imposes a duty.” Id. (9)

Like the ordinance in Tovar, the false-lawyer statute delineates a mental state, though not a traditional mens rea, or “criminal intent.” See Tovar, 978 S.W.2d at 590. This statute, which applies to those who hold themselves out as lawyers for economic gain, evinces a legislative intent to impose a duty of care upon those who engage in that conduct. See Tex. Penal Code § 38.122. The statute, therefore, regulates conduct for which “special skill and attention may reasonably be demanded.” See Aguirre, 22 S.W.3d at 475 n.44. The special skill of practicing law (and representing oneself as a lawyer) has long been subject to the attention of, and strict regulation by, the States. (10) This regulation is intended to protect the public from untrained individuals, who endanger the public’s personal and property rights, as well as the orderly administration of the judicial system. See Brown v. Unauthorized Practice of Law Committee, 742 S.W.2d 34, 41-42 (Tex. App.–Dallas 1987, writ denied) (“The objective is to protect the public against injury from acts or services, professional in nature, deemed by both the legislature and the courts to be the practice of law, done or performed by those not deemed by law to be qualified to perform them.”).

The plain language reveals the Legislature’s intent to impose upon those who hold themselves out as lawyers for an economic benefit a duty to know and comply with applicable regulations, enforceable by criminal penalties. (11) Balancing relative hardships, the Legislature has placed the burden of complying with conditions imposed for the protection of the public upon those who hold themselves out as lawyers for profit, rather than placing upon the public the burden of determining whether an individual is qualified and eligible to provide legal services. See United States v. Dotterweich, 320 U.S. 277, 280-81 (1943). Given the nature of the conduct regulated and the public expectation that such conduct is subject to stringent regulation, this is further indication that the Legislature intended to dispense with any culpable mental state beyond that which it prescribed.

We conclude that the plain language of the false-lawyer statute requires proof of a mental state only as to the economic-benefit element and plainly dispenses with any additional culpable-mental-state requirement. Tex. Penal Code § 38.122. It imposes upon those who hold themselves out as lawyers a duty to be aware of, and comply with, statutory requirements. This interpretation is supported by the statutory language and policy considerations and does not yield an absurd result. The trial court, therefore, did not err in instructing as to only the mental state expressly prescribed in the statute.

b. Unlawfully acting as a lawyer is not a

“circumstances” type offense

Appellant argues that the false-lawyer statute is analogous to statutes that we have interpreted as requiring a culpable mental state as to the nature of the conduct, the result of the conduct, or the circumstances surrounding the conduct, citing in support McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989). In McQueen, we construed the statute defining unauthorized use of a motor vehicle, which provides, “A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.” Id. at 603 (citing Tex. Penal Code § 31.07(a)). We held that “a culpable mental state applies to whether the defendant knew his use of the motor vehicle was without the effective consent of the owner.” Id. McQueen, however, is distinguishable in two ways. First, the language of that statute was ambiguous as to whether the prescribed mental state modified only the conduct element “operates” or also modified the circumstance element, without the owner’s consent. (12) Here, the statutory language plainly indicates that “intent” modifies only the economic-benefit element and not the non-lawyer-status elements.

Second, critical to the McQueen analysis was that the conduct regulated by the statute–operating another’s motor-propelled vehicle–is an “otherwise lawful act” that becomes criminal only under certain circumstances, namely, when done without the owner’s consent. Id. at 604. Declining to construe the statute as dispensing with a mental state as to that element, we observed that “[t]o require culpability only as to the otherwise lawful act of operating a vehicle wholly fails to safeguard conduct that is without guilt from condemnation as criminal.” Id. We, therefore, concluded that this was a “circumstances” type offense, which requires application of a culpable mental state to the criminalizing circumstances. Id. at 603. By contrast, holding oneself out as a lawyer for economic gain is not an “otherwise lawful act”; rather, as previously discussed, it is conduct that has long been subject to a host of strict regulations that is prohibited “unless” a person complies with those numerous regulations. See Tex. Penal Code § 38.122. Unlike McQueen, the “circumstances” in this case—licensing and good standing with the proper authorities—render an otherwise unlawful act—holding oneself out as a lawyer for profit—lawful.14 We conclude that, in this case, the Legislature intended to limit the mental-state requirement to the economic-benefit element and to dispense with it as to the other statutory elements. (13)

C. Satterwhite Is Inapposite

Appellant contends that, in Satterwhite v. State, this Court held that the offense of holding oneself out as a lawyer required proof of a culpable mental state beyond intent to obtain an economic benefit. 979 S.W.2d 626 (Tex. Crim. App. 1998). In Satterwhite, this Court stated, “The record before us reflects that appellant intentionally and knowingly violated [the false-lawyer statute].” Id. at 628. However, this passing reference to criminal intent lacked any analysis as to whether the statute required proof that a defendant acted intentionally or knowingly. Furthermore, this was non-binding dictum because the issue on appeal was whether “a retroactive return to pre-suspension status via the payment of past-due State Bar dues excuses an attorney from prosecution for illegal conduct committed by an attorney during that attorney’s period of suspension.” Id. at 627; see also Woolridge v. State, 827 S.W.2d 900, 905 (Tex. Crim. App. 1992) (dicta not binding). We disapprove of any suggestion in Satterwhite that the State must prove any additional mental states beyond that expressly prescribed in the statute.

D. Plain-language reading does not yield an absurd result

Appellant next contends that construing the false-lawyer statute as dispensing with a mental state as to the licensing and good-standing elements would violate a defendant’s due-process rights and, therefore, could not have been the Legislature’s intent. However, appellant’s cited cases focus not on due process, but on determining congressional intent in construing federal statutes. See Morissette v. United States, 342 U.S. 246, 248 (1952) (construing congressional intent as requiring proof of intent in conversion statute); United States v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994) (child-pornography statute requires knowledge of victim’s age); Staples v. United States, 511 U.S. 600, 618 (1994) (gun-registration statute requires knowledge of type of gun possessed). Here, in examining the false-lawyer statute, we have determined that the Legislature intended to dispense with a culpable mental state as to the licensing and good-standing requirements. (14)

The court of appeals, therefore, did not err in upholding the jury charge, which instructed only as to the statutorily prescribed mental state of intent to obtain an economic benefit. See Celis, 354 S.W.3d at 28. We overrule appellant’s first issue.

III. Jury Instruction on Mistake of Fact

In his second issue, appellant contends that the court of appeals erred by overruling his challenge to the trial court’s denial of a mistake-of-fact instruction. Id. The court of appeals held that appellant’s alleged mistake did not negate the kind of culpability required for commission of the offense as statutorily required. Id. at 29 (citing Tex. Penal Code § 8.02(a)). That mistake, according to the court of appeals, may have been a mistake of law, but appellant did not request that type of instruction. Id.

A. Current Law Applicable to Mistake-of-Fact Defense

A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the trial court views the credibility of the defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008). The statute governing the mistake-of-fact defense provides that it is “a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Tex. Penal Code § 8.02(a). When he raises evidence of a mistaken belief as to the culpable mental state of the offense, a defendant is entitled to an instruction on mistake of fact upon request. Beggs v. State, 597 S.W.2d 375, 378 (Tex. Crim. App. 1980); Granger v. State, 3 S.W.3d 36, 41 (Tex. Crim. App. 1999); Giesberg v. State, 984 S.W.2d 245, 246 (Tex. Crim. App. 1998).

“By ‘kind of culpability’ is meant ‘culpable mental state.’” Beggs, 597 S.W.2d at 378. In Beggs, this Court determined that Beggs was entitled to an instruction on the defense of mistake of fact if there was evidence that, through a mistake, she formed a reasonable belief about a matter of fact and her mistaken belief would negate her intent or knowledge. Id. The instruction on mistake of fact, therefore, applies only with respect to elements that require proof of a culpable mental state. Id.

Since Beggs was decided over 30 years ago, this Court has always applied mistake of fact to only culpable mental states. See McQueen, 781 S.W.2d 600; Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990); Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991); Granger, 3 S.W.3d at 41. We respectfully disagree with the suggestion in the concurring opinion by the Honorable Judge Cochran that suggests that, in Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007), the Court expanded the Beggs definition for “kind of culpability” so that it would apply to elements that do not require proof of a culpable mental state. See Beggs, 597 S.W.2d at 378. In Thompson, the Court discussed the history of the mistake-of-fact instruction by examining the Model Penal Code and the proposed revised Texas Penal Code, concluding that, although these codes differ in many respects, certain elements from both codes were incorporated into our current law. Thompson, 236 S.W.3d at 799. Mistake of fact as defined in the Model Penal Code was applied to transferred-intent situations but rejected in other respects. (15) Thompson explained that the portion of the Model Penal Code that broadly permitted a mistake of fact to negate “the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense” and that did not require a mistake be reasonable was rejected by the drafters of the revised Texas Penal Code. Id. at 796. Instead, the drafters suggested a “proposed code [that] limited the mistake of fact defense to situations that negated the culpable mental state required for the offense.” Id. at 798. Furthermore, “the drafters of the proposed penal code viewed the mistake-of-fact defense as essentially redundant of the requirement that the State prove the mental element of an offense, but they included the defense as a method of placing upon the defendant ‘the burden of producing evidence’ so that a mistake of fact is something ‘the prosecution does not have to negate unless raised.’” Id. at 799. Today, we reaffirm our conclusion in Thompson that, in accordance with the intent of the drafters of the Texas Penal Code, an instruction on mistake of fact is limited to any culpable mental state required for the offense. Id. at 798.

B. Abandoned Law Should Remain in the Distant Past

Judge Cochran primarily relies on law that is over a century old to suggest that we should abandon our precedent of the last 30 years in favor of the law as it existed in the distant past. Her suggestion that mistake of fact should apply to additional elements beyond the defendant’s culpable mental state would alter practically every offense in the Texas Penal Code in a way that has not been recognized in Texas for over 30 years. She describes her “practical test for whether a defendant is entitled to a mistake-of-fact defense” by asking, “If the facts were as the defendant mistakenly believed them, would he be innocent of the charged offense?” Under this interpretation, a jury would be instructed to acquit a defendant who had a reasonable but mistaken belief about any element in an offense, even those elements that do not require proof of a culpable mental state. Under this approach, if a defendant charged with aggravated robbery of a person 65 years of age or older produced evidence that he believed the person was 64 years of age, then the jurors would be instructed to acquit him of aggravated robbery if they believed he was reasonably mistaken as to that fact. See id. § 29.03. Similarly, with respect to the statute defining the offense of felony murder, which dispenses with a culpable mental state, Judge Cochran’s approach would have required acquittal if a defendant had a mistaken and reasonable belief that he was not committing an act clearly dangerous to human life. See Lomax, 233 S.W.3d at 304 (construing Tex. Penal Code § 19.02(b)(3)). Furthermore, with respect to the offense of child abandonment, the Court has held that there is no culpable mental state as to the surrounding-circumstances element, but Judge Cochran’s approach would require acquittal if a defendant had a mistaken and reasonable belief about the surrounding circumstances. See Schultz v. State, 923 S.W.2d 1, 4 (Tex. Crim. App. 1996) (construing Tex. Penal Code § 22.041(b)). The examples are endless.

Perhaps there may be an instance in which a statute is unconstitutional as applied to a defendant because a jury is not permitted to consider his mistaken, reasonable belief about a matter, but that situation is not before us here: appellant has not challenged the constitutionality of this statute, and, as Judge Cochran agrees, these facts do not support his appellate claim pertaining to mistake of fact. See Lambert v. California, 355 U.S. 225, 229 (1957) (striking down registration ordinance that did not require proof of mental state of duty-to-register element as due-process violation). It would seem improvident to abandon this Court’s decades-old precedent in the present case, in which no constitutional violation has been alleged and which presents no error in the trial court’s failure to include an instruction on mistake of fact. We should not abandon precedent based on non-binding dicta. See Woolridge, 827 S.W.2d at 905. Nothing in this case compels us to abandon the precedent of the past 30 years. C. Appellant Not Entitled to Mistake-of-Fact Instruction

Appellant’s alleged mistaken belief was that he was licensed and in good standing to practice law in Mexico. We have determined, however, that the only culpable mental state set forth in the false-lawyer statute is intent to obtain an economic benefit. See Tex. Penal Code § 38.122(a). Because that statute does not require proof of a culpable mental state as to the licensing or good-standing elements, the mistake-of-fact instruction appellant sought did not negate the kind of culpability required for the offense. See Tex. Penal Code § 8.02(a); Granger, 3 S.W.3d at 41; see also Murchison v. State, 93 S.W.3d 239, 252 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (appellant not entitled to mistake-of-fact instruction because his alleged mistake did not negate culpability required by statute); Gant v. State, 814 S.W.2d 444, 453 (Tex. App.—Austin 1991, no pet.) (same). The court of appeals did not err, therefore, in upholding the trial court’s denial of appellant’s requested charge. Celis, 354 S.W.3d at 29. We overrule appellant’s second issue.

IV. Jury Instruction On “Foreign Legal Consultant”

In his third issue, appellant argues that the court of appeals erred in upholding the jury instruction that included “foreign legal consultant” as a definition of “good standing with the State Bar of Texas” under the false-lawyer statute. Id. at 31. He contends that this instruction constituted an improper comment on the weight of the evidence in violation of Texas Code of Criminal Procedure Article 36.14. See Tex. Code Crim. Proc. art. 36.14 (prohibiting judicial comments on weight of evidence). He contended that the definition should be limited to the definition of “member in good standing with the State Bar of Texas” provided in the State Bar Rules. See Tex. State Bar Rules art. 1, § 6. Disagreeing, the court of appeals observed that the definition of “foreign legal consultant” is set forth in the Rules Governing Admission to the Bar of Texas, which the court held is the definition in the State Bar Rules for “good standing” as it applied to this case. Celis, 354 S.W.3d at 30-31 (citing Rules Governing Admission to the Bar of Tex. Rule XIV). We agree.

A. Law Applicable to Jury Instructions

The trial court must give the jury a written charge “setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.” Tex. Code Crim. Proc. art. 36.14. We have held that, if a jury instruction is derived from the penal code, it is generally permitted because it is the applicable statute and, therefore, the “applicable law,” as required by Article 36.14. Kirsch, 357 S.W.3d at 651.

Unless statutorily permitted, a trial court may not comment on the weight of the evidence. Id. at 651-52. Non-statutory instructions, even when they are neutral and relate to statutory offenses or defenses, generally have no place in the charge. Id. at 652.

More specifically, the trial court may instruct on the definition of certain terms but not others. It must instruct on statutorily defined terms as the law applicable to the case. See Tex. Code Crim. Proc. art. 36.14. By contrast, it is generally impermissible to instruct on terms not statutorily defined, and the trial court instead must permit the jury to construe them according to the rules of grammar and common usage. See Tex. Gov’t Code § 311.011; Kirsch, 357 S.W.3d at 650. However, a trial court may define a statutorily undefined term that has an established legal definition or that has acquired a technical meaning that deviates from its meaning in common parlance. See Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000) (proper to instruct jury on definition of “arrest” because it is “a technical term possessing a long, established history in the common law, and it would be inappropriate if jurors arbitrarily applied their personal definitions of arrest”); see also Tex. Gov’t Code § 311.011(b) (“Words and phrases that have acquired a technical or particular meaning . . . shall be construed accordingly.”).

Appellant correctly observes that the term “in good standing” is not defined in the false-lawyer statute. See Tex. Penal Code § 38.122. The trial court, therefore, should not have defined it in the jury charge unless it has an established legal definition or has acquired a technical meaning. See Kirsch, 357 S.W.3d at 650; Medford, 13 S.W.3d at 771-72. It has. The term “in good standing” is a technical term because it has “acquired a peculiar and appropriate meaning in the law” and may not be construed according to the traditional rules of grammar and common usage. Medford, 13 S.W.3d at 772. The instruction on the definition of that term, therefore, was not a comment on the weight of the evidence. See Tex. Code Crim. Proc. art. 36.14.

Appellant, however, also challenges the accuracy of the definition provided by the jury instructions. Because the false-lawyer statute does not provide a definition of that term, we must look beyond that statute to determine whether the definition included in the charge was erroneous.

B. Instructions Properly Defined Term

The trial court’s charge instructed the jurors that they could find that appellant was in good standing under the statute if they found that he was “certified to practice in Texas as a Foreign Legal Consultant by the Texas Board of Law Examiners,” which it defined as “someone certified under the Rules of the Supreme Court of Texas governing admission to the Bar of Texas, and who is considered a lawyer affiliated with the Bar of Texas.” Appellant contends that this was error because it exceeded the definition of “a member in good standing” set forth in the State Bar Rules and, therefore, constituted a comment on the weight of the evidence. See Tex. State Bar Rules art. 1, § 6.

The definition in the State Bar Rules defines “member in good standing” as that term applies to people who are members of the State Bar of Texas, but this definition was inapplicable because appellant never claimed to be a member of the Texas Bar. The State Bar Rules define a “member in good standing” as “someone who meets and complies with all applicable requirements of the Rules of the Supreme Court of Texas governing admission to the bar of Texas, and who is not in default of payment of dues and who is not under suspension from practice.” Id. Because appellant does not contend that he is a member of the State Bar, the trial court correctly declined to limit its instruction to the definition of “a member in good standing.”

Although appellant was not a member of the Texas Bar, he could practice law in Texas if, among other requirements, he was “in good standing with the State Bar of Texas.” Tex. Penal Code § 38.122. In the Rules Governing Admission to the Bar of Texas, Rule XIV sets forth requirements for the practice of law in Texas by a person licensed in a foreign jurisdiction. See Rules Governing Admission to the Bar of Tex. Rule XIV. That Rule indicates that the “Court may certify to practice in Texas as a legal consultant . . . a member in good standing of a recognized legal profession in a foreign country” and that such a person (1) “may render legal services in Texas in the manner and to the extent permitted by the jurisdiction in which such person is admitted to practice,” and (2) is “considered a lawyer affiliated with the Bar of Texas . . . .” Id. at §§ 1(a), 3, 4. The Director of Eligibility and Examination for the Texas Board of Law Examiners testified that a person meeting this criteria was considered to be in good standing with the State Bar. Therefore, the instruction provided a legally correct definition of “good standing” under the Rules and, because raised by the evidence, was the law applicable to the case. See id.; Tex. Code Crim. Proc. art. 36.14.

We hold that the charge properly instructed the jury as to the “foreign legal consultant” criteria within the definition of “in good standing.” In fact, because appellant claimed at trial that he believed he was licensed in Mexico and not that he believed he was licensed in Texas, this was the only way in which the jury could have found that he was “in good standing” under the statute. See Tex. Penal Code § 38.122. The court of appeals did not err, therefore, in upholding this instruction. Celis, 354 S.W.3d at 30-31. We overrule appellant’s third issue.

V. Conclusion

We conclude that appellant has failed to show error in the jury charge. We affirm the judgment of the court of appeals.

Delivered: May 15, 2013

Publish

1. This conduct included stating on a business card and a web page that he was an attorney and licensed to practice law in Mexico; signing a legal document in a place designated for an attorney’s signature; stating, in a professional-liability insurance application, that he was admitted to the bar in 2000, had been a full-time attorney for seven years, and was a member in good standing of the state bar of Mexico; and accepting checks for attorney’s fees amounting to more than $1.3 million.

2. Appellant’s three jury-charge issues state:

(1) The court of appeals erred by holding that a culpable mental state was not required under [the false-lawyer statute].

(2) The court of appeals erred by holding that appellant was not entitled to a charge on mistake of fact.

(3) The court of appeals erred by holding that inclusion of a definition of the term “foreign legal consultant” in the jury charge was not error.

3. When a defendant properly preserved a complaint as to the charge, the standard of harm is whether “the error appearing from the record was calculated to injure the rights of defendant,” which we have construed as “some harm.” Tex. Code Crim. Proc. art. 36.19; Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003). Conversely, unpreserved charge error warrants reversal only when the error resulted in egregious harm. Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005).

4 The former stalking statute provided, “(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he . . . (7)(A) on more than one occasion engages in conduct directed specifically toward the [victim] . . . and (C) on at least one of those occasions engages in the conduct after the [victim] has reported to a law enforcement agency the conduct . . . .” Former Tex. Penal Code § 42.07(a) (West 1993). The Long Court concluded that, given the mental state prescribed in Section (a), the Legislature plainly dispensed with a mental state in Subsection (7)(C). Long v. State, 931 S.W.2d 285, 291 (Tex. Crim. App. 1996).

5. 5 The former indecency-with-a-child statute states, in relevant part, “(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child; or (2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.” Former Tex. Penal Code § 21.11 (West 1998). Judge Price, concurring, noted that, because subsection (a)(2) “contains the mental elements ‘knowing’ and ‘intent,’ and [because] those same mental elements are apart from [subsection (a)], which specifies the age of the victim, the intent of the legislature was to dispense with a culpable mental state as to the victim’s age.” Johnson v. State, 967 S.W.2d 848, 852 (Tex. Crim. App. 1998) (Price, J., concurring). Citing Long, Judge Price reasoned that, although there was no statutory language expressly dispensing with the mental-state requirement, “it is precisely the absence of a culpable mental state as to the victim’s age, when the legislature has prescribed mental elements as to other portions of the offense, that makes the legislative intent clear.” Id. (citing Long, 931 S.W.2d at 291).

6 The felony-murder statute provides that a person commits the offense of murder if he “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, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” Tex. Penal Code § 19.02(b)(3).

7. 7 See also Schultz v. State, 923 S.W.2d 1, 2 (Tex. Crim. App. 1996) (construing the child-abandonment statute at Texas Penal Code Section 22.041(b), holding that “the fact that ‘intentionally’ immediately precedes ‘abandons’ means that the prescribed mental state is connected with the act of abandonment itself” rather than element of surrounding circumstances); Neill v. State, 229 S.W.2d 361, 363 (Tex. Crim. App. 1950) (construing meat-inspection statute, which prescribed mental states as to some elements and not as to others, as not requiring proof of a mental state as to latter elements).

8. 8 The Closed Meeting Act provides, “A member of a governmental body commits an offense if a closed meeting is not permitted under this chapter and the member knowingly: (1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting; (2) closes or aids in closing the meeting to the public, if it is a regular meeting; or (3) participates in the closed meeting, whether it is a regular, special, or called meeting.” Tex. Gov’t Code § 551.144(a); Tovar v. State, 978 S.W.2d 584, 586 (Tex. Crim. App. 1998).

9. By comparison, in Aguirre v. State, we construed a municipal ordinance that provided that “[n]o person shall own, operate or conduct any business in an adult bookstore, adult motion picture theater or nude live entertainment club within one thousand feet of” certain types of property. 22 S.W.3d 463, 464 n.1 (Tex. Crim. App. 1999). Although the ordinance did not expressly prescribe any mental state, the Court held that proof of a culpable mental state was required. Id. at 476. Among other extratextual factors, the Court considered whether the statute defined a strict-liability offense. Id. at 472. The Court explained that, although “[s]ome features of the ordinance are consistent with imposing strict liability . . . it is hardly in the class of public-safety statutes that we have found to impose strict liability.” Id. at 476. We noted that the ordinance was unlike many public-welfare statutes that “presuppose a continuous activity, such as carrying on a business.” Id. at 475. We observed that, with respect to such activity, “(a) special skill and attention may reasonably be demanded, and (b) if the law is broken there will be a suspicion that it was a deliberate breach due to self-interest.” Id. at 475 n.44 (internal quotations and citations omitted).

10. See Cummings v. Missouri, 71 U.S. 277, 319 (1866) (states may impose reasonable regulations on practice of law); NAACP v. Button, 371 U.S. 415, 456 (1963) (“[T]he regulation of professional standards for members of the bar comes to us with even deeper roots in history and policy, since courts for centuries have possessed disciplinary powers incident to the administration of justice.”); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1066 (1991) (“In the United States, the courts have historically regulated admission to the practice of law before them.”).

11. Our interpretation is further supported by the fact that the Legislature limited the statute to penalize only those who engage in the proscribed conduct with intent to gain an economic benefit. This significantly narrows the scope of the statute so as to avoid ensnaring those who offer free advice that happens to be legal in nature, such as the “jailhouse lawyer” or individuals working pro bono, or those who represent themselves as lawyers for other reasons, such as currying social favor. See Ex parte Manrique, 40 S.W.3d 552, 554 (Tex. App.—San Antonio 2001, no pet.) (noting that “[p]urely gratuitous comments do not fall within the penal statute” given statute’s requirement that intent to obtain an economic benefit be proven).

12. 12 McQueen v. State, 781 S.W.2d 600, 603-04 (Tex. Crim. App. 1989) (“The confusion concerning culpability in an unauthorized use of a motor vehicle case stems in part from the fact that the culpable mental state of ‘intentionally or knowingly’ prescribed by the statutory language does not syntactically modify the circumstances surrounding the conduct but instead precedes the act of operating a vehicle.”); see also Liparota v. United States, 471 U.S. 419, 424 n.7 (1985) (interpreting statute that provided that “whoever knowingly uses, transfers, acquires, alters, or possesses coupons or other authorization cards in any manner not authorized by [the statute]” is subject to a fine and imprisonment, Supreme Court held that, “[a]s a matter of grammar the statute is ambiguous; it is not at all clear how far down the sentence the word ‘knowingly’ is intended to travel”).

13 In general, courts have required proof of a culpable mental state as to conduct that would otherwise be innocent. See Lugo-Lugo v. State, 650 S.W.2d 72, 88 (Tex. Crim. App. 1983) (explaining that, when “circumstances surrounding conduct could make an otherwise benign act dangerous . . . an additional culpable mental state as to that ‘conduct element’ would be required”); Liparota, 471 U.S. at 426 (avoiding construing statute to dispense with mens rea where doing so would “criminalize a broad range of apparently innocent conduct”); Morissette v. United States, 342 U.S. 246, 275-76 (1952) (although appellant had admitted the conduct, “that isolated fact is not an adequate basis on which the jury should find the criminal intent to steal or knowingly convert, that is, wrongfully to deprive another of possession of property”). By contrast, courts generally have not required proof of an additional culpable mental state when a statute has already prescribed a culpable mental state as to at least one element of the offense. See Schultz, 923 S.W.2d at 4 (explaining that offense of abandoning or endangering a child can dispense with requirement of awareness of danger because person subject to that offense has already assumed a duty to act reasonably, and it is the neglect of this duty that is criminalized); Lomax v. State, 233 S.W.3d 302, 305 n.7 (Tex. Crim. App. 2007) (felony-murder statute may dispense with mental-state requirement because statute “still requires a defendant to commit a felony involving a clearly dangerous act”).

14. We express no opinion as to whether there might be other due-process concerns that could become pertinent under different circumstances, such as an attorney licensed in Texas who had been in good standing with the State Bar and continued to practice law because he had not received notification by the State Bar regarding his change in status. The present case does not contain facts that show that appellant had ever been in compliance with the State Bar rules or that he was deprived of notice of a change in his status with the State Bar. Furthermore, appellant does not challenge the constitutionality of the false-lawyer statute. We do not reach the question of whether it may be unconstitutional as applied to another defendant under different circumstances. Furthermore, in United States of America v. Ransom, the Tenth Circuit observed that the Supreme Court has held that, “[i]n order to show that the exercise of [the Legislature's] power is inconsistent with due process, [an] appellant must demonstrate that the practice adopted by the legislature ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” 942 F.2d 775, 777 (10th Cir. 1991) (citing Snyder v. Massachusetts, 291 U.S. 97 (1934)).

15. The law on mistake of fact as it applies in the context of transferred intent is unaffected by this decision because of its different historical origins. In Thompson, the Court held that an instruction on mistake of fact is warranted when a jury may convict under a statutory provision that permits the transfer of a culpable mental state by providing that a person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different offense was committed. Thompson v. State, 236 S.W.3d 787, 800 (Tex. Crim. App. 2007); see also Louis v. State, 393 S.W.3d 246 (Tex. Crim. App. 2012). The mistake must be reasonable for it to constitute a circumstance that exculpates the defendant of the offense charged and the defendant would be guilty of any lesser-included offense that would be applicable if the facts were as the defendant believed. Thompson, 236 S.W.3d at 800. The Court determined that this portion of the current penal code stems from the Model Penal Code, which had stated, “‘Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the defendant’s ignorance or mistake shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.’” Id. at 796 (quoting Model Penal Code and Commentaries, § 2.04(1)(a) & (2), p. 267) (emphasis deleted). We have also determined that the failure to give a mistake-of-fact instruction can be harmful error in the context of a transferred-intent situation. See Louis, 393 S.W.3d at 254. In Louis v. State, we rejected the State’s argument that the failure to submit a mistake-of-fact instruction “‘that merely denied the charged offense’ is never harmful.” Id. We applied the “some harm” standard and explained that the “failure to instruct the jury on the defense of mistake of fact was an impediment to [Louis's] ability to present his defense that he did not have the requisite mens rea to be found guilty and to argue that defense to the jury.” Id. We also noted that the “[l]ack of the requested instruction effectively prevented [Louis] from presenting his defense. . . .” Id.

OF TEXAS

NO. PD-0039-12

MICHAEL RAY BONDS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S MOTION FOR REHEARING

DISSENTING STATEMENT

The court of appeals got it right in this case. The warrant was not supported by probable cause that the items identified would be found at the residence listed in the warrant. Additionally, the warrant did not describe the location to be searched with sufficient particularity to ensure that the officer searched the correct location or that the scope of the officer’s search was narrowed to the specific location listed in the warrant.

The majority discusses the officer’s familiarity with the residence, but I would think that an officer who was so familiar with the residence would at least get the address correct, even if he was unsure of the roof color. The majority also notes the significance of the officer’s testimony from the hearing on the motion to suppress that the location intended to be searched was the actual location searched. I’m sure the fact that methamphetamine and drug paraphernalia were found at the actual location searched factored into that conclusion. I would grant Appellant’s motion for rehearing and reconsider our decision to reverse the court of appeals.

Filed: May 15, 2013

Publish

I. Background

Deputy Jesse Garza of the Victoria County Sheriff’s Office was observing a house known for illegal-narcotics activity. He saw a sports-utility vehicle (“SUV”) approach the house and observed a passenger, Shirley Copeland, appellee, get out of the SUV, leave the deputy’s sight, and quickly return to the SUV. After the SUV left the house, the deputy stopped the driver of the SUV for a traffic violation.

Suspecting possible narcotics activity, the deputy asked the driver, Wayne Danish, for consent to search the SUV. Danish agreed, but appellee refused. She claimed to be the owner of the SUV even though she was not listed as the owner on the vehicle registration. Appellee and Danish also informed the deputy that they were married under common law. Although appellee continued to refuse consent, Danish again consented, and the deputy searched the SUV.

During his search, the deputy found two white pills, later identified as Tramadol, in the middle console. Appellee claimed that she was holding the pills for a friend. Appellee was arrested and charged with possession of a dangerous drug, a Class A Misdemeanor. Tex. Health & Safety Code § 483.041.

Appellee filed a motion to suppress on two grounds. First, she argued that the deputy’s extended detention of her was not permissible under Terry v. Ohio, 392 U.S. 1 (1968) because it was not reasonably related in scope to the circumstances that justified the stop or necessary to dispelling any reasonable suspicion that developed during the stop. Second, she argued that Randolph applies to the search of vehicles just as it does to the search of residences. (1) See Randolph, 547 U.S. at 121-23. The trial court’s order generally granted the motion, but its findings of fact and conclusions of law addressed only the second ground. The trial court’s findings of fact determined that the deputy had observed the vehicle stay at a house for a few minutes; the vehicle committed a traffic violation; the driver consented to the search; the passenger refused consent; the vehicle was registered to the driver; the two occupants asserted they were common-law married; and the deputy recovered the two pills. The trial court’s conclusions of law stated that appellee had standing to challenge the search; the deputy had probable cause to stop the vehicle due to the traffic offense; there was no probable cause for the search; and the deputy did not have consent to search the vehicle under Randolph because appellee, who had equal authority to grant or refuse consent, denied consent to search the vehicle. The trial court concluded that “[w]hen two people have authority to consent or refuse a search and both are present, the refusal by one such person negates the consent of the other.” The trial court’s findings of fact and conclusions of law were silent as to whether the detention was extended or exceeded the scope of the stop, which was the basis of appellee’s first ground in her motion to suppress. The State appealed. In its three issues, it complained (1) that the trial court erred by finding that appellee and the driver were married under common law, (2) that appellee had standing to challenge the search, and (3) that the police officer did have valid consent through the driver. Ruling in favor of appellee on all three issues, the court of appeals affirmed. Copeland, 380 S.W.3d at 216. (2) Because it held in appellee’s favor, the court of appeals did not reach the first alternative ground in appellee’s motion to suppress with respect to the length or scope of the detention. The sole ground on which we granted review in the State’s petition for discretionary review challenges the court of appeals’s application of Randolph to consensual searches of vehicles stopped on a public roadway. (3) See id. We declined to review the State’s ground challenging whether an assertion of common-law marriage suffices to establish standing. We agree with the State that Randolph does not apply to vehicular searches and, therefore, reverse the judgment of the court of appeals. We remand the case to that court so that it may determine whether the trial court’s ruling on the motion to suppress must be upheld on the alternative ground asserted in appellee’s motion. (4)

II. Validity of Third-Party Consent to Search of Vehicle in Presence of Objector

We address the principles that underlie third-party consent before addressing the reasons that Randolph is inapplicable to searches of vehicles.

A. Background Principles That Underlie Third-Party Consent

The Supreme Court first recognized the “co-occupant consent rule” in United States v. Matlock. 415 U.S. 164, 171 (1974). It held that “when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Id. The rationale for permitting third-party consent rests on “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Id. at 171 n.7. Matlock explained that a third party’s “common authority” would not be “limited by the law of property” and may be “broader than the rights accorded by property law.” See Randolph, 547 U.S. at 110.

Matlock‘s holding addresses third-party consent by a co-tenant whose fellow tenant is absent when the consent is given. Matlock, 415 U.S. at 170. “[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Id.

In contrast to Matlock, which held that a co-tenant’s consent is “good against ‘the absent, nonconsenting’” tenant, Randolph addresses a co-tenant’s consent in the presence of a nonconsenting fellow tenant. Randolph, 547 U.S. at 121 (citing Matlock, 415 U.S. at 170). In Randolph, the Supreme Court held that a warrantless search of a shared dwelling over the express refusal of consent by a physically present resident cannot be justified as reasonable as to that resident on the basis of consent given by another resident. Id. at 122-23.

The reason for the opposing conclusions in Matlock and Randolph stems from an examination of the “social expectations” that arise under those two scenarios. Id. at 111. In Randolph, the Supreme Court explained, “The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules.” Id. In the case of a co-tenant who is alone, these shared social expectations include the understanding that any of the co-tenants “may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another.” Id.

By contrast, in the case of a co-tenant whose fellow tenant is present and objecting to a visitor’s entry into the home, these shared social expectations would require exclusion of the visitor. Id. at 114. The Court explained that it would not be sensible for a caller at the door of the shared premises to go inside a house when a fellow tenant stood there saying “stay out.” Id. at 113. Under these circumstances, the consent of one co-tenant would not permit entry in the face of the express objection of another tenant. Id. at 113-14. The Court summarized that “there is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders.” Id. at 114. “Since the co-tenant wishing to open the door to a third party has no recognized authority in law or societal practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” Id.

The generally recognized different social expectations for the two scenarios explains the contrasting outcomes where one third-party search is permitted in the case of the absent co-tenant, and another third-party search is disallowed in the case of the present, objecting co-tenant. Compare id. with Matlock, 415 U.S. at 170-71. But the general expectations may be different in the case of a recognized hierarchy. The Court explained that, “[u]nless the people living together fall within some recognized hierarchy, like a household of parent and child . . . , there is no societal understanding of superior and inferior.” Randolph, 547 U.S. at 114. The Court, therefore, recognized that different societal expectations may arise when co-tenants belong to a recognized hierarchy. Id.

B. Randolph is Inapplicable to Vehicles

1. Social Expectations For Vehicle Occupants Unlike Tenants

We conclude that the principle that underlies Randolph weighs against the treatment of vehicles as mobile “castles.” Unlike homes occupied by general co-tenants, society does generally recognize a hierarchy with respect to the occupants of a vehicle. The driver is the person who has the superior right. For example, a police officer arresting a driver usually asks him, alone, whether he wants his vehicle towed or released to another person. And it is the driver who receives a traffic citation. A bus driver has a responsibility to maintain the safety of his passengers. A sensible would-be passenger wanting a ride would likely accept an offer from a driver even in the presence of an objecting passenger because a driver exclusively controls the destination. As the person with the exclusive control over the operation of the vehicle, a driver necessarily is placed in a superior role with respect to the society within the vehicle. (5) The passengers of the vehicle become subservient to his control. Like the hierarchy of parent and child, to which Randolph would not apply, Randolph would not apply to the hierarchy that generally applies to a driver and passenger of a vehicle during the ordinary course of travels.

At first blush, this would seem to suggest that, as long as a law-enforcement officer has the consent of a driver, no other consent is necessary or pertinent. But that is not necessarily so in all cases. After a vehicle is stopped on a public roadway, events may transpire that change the positions of the occupants in the hierarchy of the vehicle and that would likely change society’s expectations with respect to which occupant controls the vehicle. For example, the driver may be arrested and he may thereafter permit a passenger to take control of his vehicle. See, e.g., Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002). The officer may learn that the driver is operating the car with the permission of the passenger, whose family owns the car. See, e.g., Houston v. State, 286 S.W.3d 604, 611 (Tex. App.–Beaumont 2009, pet. ref’d). Or a police officer’s further investigation at the scene may reveal that a passenger is the owner of the vehicle and all its contents, and that the driver is merely a chauffeur. (6) Events like these would likely change society’s expectations to include consideration of a passenger’s control over the vehicle as equal, and possibly superior, to that of the driver. These types of fluid events that may occur during a traffic stop make a decision about who, other than the driver, might control a vehicle unlike the more stagnant inquiry of a tenant who answers the door at a residence. In Randolph, the Supreme Court considered the clarity of the determination to be made by an officer in light of an easily identifiable tenant at a residence. Id. at 111. It observed that if Mrs. Graff answered “the door of a domestic dwelling with a baby at her hip,” that alone was enough “to tell a law enforcement officer or any other visitor that if she occupies the place along with others, she probably lives there subject to the assumption tenants usually make about their common authority when they share quarters.” Id. But telltale signs like a baby at a mother’s hip will be absent in light of seatbelt laws for vehicles. Because of these differences between homes and vehicles, social expectations about vehicles include the recognition that a driver’s control may quickly and unexpectedly be relegated to another as circumstances change. The mobility of the vehicle, fluidity of circumstances, and rapidity with which decisions must be made make it unreasonable to expect a police officer to assess the social expectations for each of the case-by-case determinations about who may override a driver’s control.

Perhaps more importantly, Matlock and Randolph did not intend to formulate a case-by-case rule that depended on fact-specific inquiries. See Randolph, 547 U.S. at 112. “Matlock relied on what was usual and placed no burden on the police to eliminate the possibility of atypical arrangements, in the absence of reason to doubt that the regular scheme was in place.” Id. As discussed in more detail above, other than the general observation that a driver is the hierarch of a vehicle as it ordinarily travels along a road, a “regular scheme” with respect to vehicles is difficult to ascertain after the stage of tendering of driver’s licence and insurance. The fluid nature of traffic stops and the lack of clarity about the relationship of the passengers to the driver make the social expectations described in Randolph inapplicable to vehicles.

We also note that, although a search of a vehicle “is a substantial invasion of privacy,” it is “significantly less than that relating to one’s home or office.” See United State v. Ortiz, 422 U.S. 891, 896 (1975); South Dakota v. Opperman, 428 U.S. 364, 367 (1976). Vehicles are “not to be treated identically with houses” for Fourth Amendment purposes. Rakas v. Illinois, 439 U.S. 128, 148 (1978). In Randolph, the Supreme Court seemed to be particularly concerned with the elevated privacy interest in residences in observing that “the home is entitled to special protection as the center of the private lives of our people.” See Randolph, 547 U.S. at 115 (internal citations and quotations omitted). Society’s lessened expectation of privacy in vehicles as compared to homes further supports the conclusion that Randolph‘s holding should not be extended to vehicular searches.

Furthermore, Randolph‘s holding expressly drew a “fine line” and was intended to affect only those co-tenants who were physically present at the threshold and expressly refused consent. Id. at 121-22. Randolph‘s narrow holding would not have applied to Matlock, who was not present to object but was in a squad car not far away, or to Rodriguez, who was asleep in the apartment when his co-tenant consented. Id. (citing Matlock, 415 U.S. at 179, and Illinois v. Rodriguez, 497 U.S. 177, 179 (1990)). Extending Randolph to vehicles would be contrary to the Supreme Court’s intent in construing this narrow holding aimed at protecting those individuals who stand at the threshold of their homes objecting to a governmental intrusion. Randolph, 547 U.S. at 121-22. Because the Supreme Court did not extend the holding in Randolph to those people who were nearby or inside the home but not at the threshold, it appears that the Court intended to limit its holding to the narrowly drawn parameters of a residential search. See id. at 121.

2. Court of Appeals’s Analysis Unpersuasive

The court of appeals concluded that, because this Court applied the third-party-consent principles from Matlock to a case involving vehicular searches in Welch v. State, the residential-consent requirements in Randolph must necessarily apply to vehicles. See Copeland, 380 S.W.3d at 220 (citing Welch, 93 S.W.3d at 53). (7) In making this broad generalization, the court failed to consider the underlying rationales for those decisions. As discussed in more detail above, it does not appear that the Supreme Court intended for Randolph to apply to vehicles because the social expectations for occupants of vehicles are unlike co-tenants in residences; people have a lessened expectation of privacy in vehicles as compared to residences; and Randolph was intended to narrowly apply only to the present, objecting co-tenant in a residence.

As further support for its holding, the court of appeals cited Houston v. State. Id. (citing Houston, 286 S.W.3d at 609-11). Without any analysis or explanation about why Randolph should apply to vehicular searches, the Houston court of appeals simply cited to Randolph and stated, “Voluntary consent given by a third party is not valid as to the defendant if the defendant is also present and expressly refuses consent.” Houston, 286 S.W.3d at 609. Perhaps it found that a more detailed analysis was unnecessary in light of its holding that, “[b]ecause the consent was not disputed by Houston when the search occurred, the search did not violate the Fourth Amendment.” Id. at 611-12. Even if Randolph applied to vehicles, it did not apply in that case under the facts, which showed that Houston had not expressly refused his consent to the search to which the driver had agreed. See id. Because the Houston court’s reliance on Randolph failed to include any analysis regarding Randolph‘s applicability to vehicles, and because its reference to Randolph was non-binding dicta that did not affect the disposition of the case, the court of appeals in this case erred by relying on it as its authority for finding that Randolph applied to this case. See Copeland, 380 S.W.3d at 220 (citing Houston, 286 S.W.3d at 609-11).

III. Conclusion

We conclude that the holding in Randolph does not apply to vehicular searches and that those searches are controlled by pre-existing law. We reverse the judgment of the court of appeals and remand the case to that court for proceedings consistent with this opinion.

Delivered: May 8, 2013

Publish

1. The second ground in appellee’s motion to suppress stated,

Further, if the extended detention was justified there still was not probable cause to conduct a search. When there is not probable cause an officer may search if there is a voluntary consent to search. Consent is not valid even when consent is given by a person with authority to consent when there is a contemporaneous refusal by a person who is physically present for the search and who shares equal authority with the person who authorized the search. Georgia v. Randolph, 547 U.S. 103, 123 (2006); State v. Bassano, 827 S.W.2d 557, 560 (Tex. App.–Corpus Christi, 1992, pet. ref.) (husband had reasonable expectation of privacy in search or car registered to his wife).

In the present case evidence will show that husband and wife were traveling in the vehicle that was stopped by the Victoria County Sheriff’s Department. No probable cause existed to search the vehicle and thus law enforcement sought consent to search from the husband. Husband granted consent. Law enforcement attempted to get consent from Defendant, the wife, and Defendant refused consent when she shared equal authority to consent to search their vehicle.

Therefore, any tangible evidence seized in connection with this search and seizure, including but not limited to the item listed above, was seized unlawfully and should be suppressed.

We note that the only basis of her second ground, therefore, is the application of Randolph to vehicular searches. See Randolph, 547 U.S. at 123. Bassano concerned an appellant’s standing to challenge a search rather than an appellant’s authority to refuse consent to search. State v. Bassano, 827 S.W.2d 557, 560 (Tex. App.–Corpus Christi 1992, pet. ref’d). Although the State challenged appellee’s standing in its petition for discretionary review, we did not grant review on that ground.

2. This is a case of first impression for this Court. The federal courts and other state appellate courts have not squarely addressed whether Randolph‘s rule for residential searches extends to vehicular searches. See, e.g., United States v. Lumpkins, 687 F.3d 1011, 1014 (8th Cir. 2012) (“It is not clear that Randolph, which involved a search of a residence, applies in the context of a vehicle search.”); United States v. Chavez-Loya, 528 F.3d 546, 555 (8th Cir. 2008) (assuming without deciding that Randolph applies to vehicle searches, but noting that court had “on numerous occasions pointed out that cars are not to be treated identically with houses . . . for Fourth Amendment purposes”) (quoting Rakas v. Illinois, 439 U.S. 128, 148 (1978)); United States v. Murphy, 516 F.3d 1117, 1124 (9th Cir. 2008) (upholding applicability of Randolph to shared storage unit and noting that “there is no reason that the rule in Randolph should be limited to residences” because Randolph is rooted in “idea of common authority”); United States v. Henderson, 536 F.3d 776, 785 (7th Cir. 2008) (noting that Randolph narrowly limited to “circumstances of the case”). Resolution of these disputed-consent cases has turned on factors other than the applicability of Randolph to vehicular searches. See, e.g., United States v. Delancy, 502 F.3d 1297, 1307-1308 (11th Cir. 2007) (not reaching Randolph disputed-consent question because undisputed that consenting party, as owner, had greater authority to consent than defendant); United States v. Harris, 526 F.3d 1334, 1338-39 (11th Cir. 2008) (avoiding Randolph disputed-consent question by determining that no passenger expressly objected to the search); United States v. Botchway, 433 F. Supp. 2d 163, 169 (D. Mass. 2006) (same); United States v. Sandoval-Espana, 459 F. Supp. 2d 121, 135-36 (D.R.I. 2006) (“Mendez’s position [as non-owner of the vehicle] is thus not congruent with the co-occupant in Randolph, who consistently retained and asserted his authority over the premises; therefore, Mendez is unable to gain the benefit of the Court’s ‘disputed consent’ rule.”); Pitchford v. State, 45 So. 3d 216, 241 (Miss. 2010) (finding defendant did not withdraw consent); State v. Kurokawa-Lasciak, 278 P.3d 38, 41 (Or. Ct. App. 2012), review denied, 290 P.3d 814 (Or. 2012) (avoiding federal question by resolving issue on state grounds); but see State v. Lowe, 812 N.W.2d 554, 576-77 (Iowa 2012) (applying Randolph to mobile-home search).

3. The State’s sole ground on which we granted review asks, “If a trial court can assume standing after a mere claim of common-law marriage, then is the consent to conduct a warrantless search of a vehicle pulled over on the side of the road given by the physically present driver and registered owner valid in the face of refusal by the passenger?”

4. Appellee’s motion to suppress asserted two grounds: (1) the stop constituted a Terry violation, and (2) her refusal to consent prohibited the search under Randolph. See Terry v. Ohio, 392 U.S. at 30; Randolph, 547 U.S. at 121. We do not address the first ground because (1) it is not a ground in the petition before us, (2) the court of appeals did not address it, and (3) resolution of the matter requires further analysis with respect to whether the State has forfeited any challenge to this alternative ground by failing to challenge it on appeal; whether the trial court intended for its general order to be limited to only the ground covered by the findings of fact and conclusions rendered, which pertained to only the Randolph ground; or whether some other disposition, such as abatement, is necessary to determine the trial court’s intent with respect to its ruling. See, e.g., State v. Mendoza, 365 S.W.3d 666, 670 (Tex. Crim. App. 2012) (when trial court renders findings of fact that are insufficient to resolve legal issue, appellate court may either presume that trial court made all implied findings that are supported by the record and consistent with its legal ruling or may remand to trial court to make additional or more specific findings).

5. Society also seems to generally recognize a preference for the front seat over the back seat. Teenagers shout “shotgun” for the right to “call it.” Perhaps it is the proximity to the controls on the stereo or air conditioning, although newer model vehicles also usually have these in the back compartment, too. In any event, the placement of occupants in a vehicle generally tends to signify a social order and hierarchy.

6. This situation arose in Maxwell v. State, 73 S.W.3d 278, 280 (Tex. Crim. App. 2002). A Beaumont police officer stopped a tractor-trailer rig driven by Claude Dawkins for a traffic violation. Maxwell, 73 S.W.3d at 280. Maxwell, his passenger, owned the vehicle, rented the rig, and employed Dawkins as the driver. Id. Dawkins consented to the search. Id. After obtaining consent, the officer seized almost 500 pounds of marijuana from within the rig. Id. Maxwell filed a motion to suppress alleging that Dawkins lacked authority to consent to the search because Maxwell had greater authority than him. Id. Maxwell argued that because Dawkins was his employee and because Maxwell was present at the scene, Dawkins lacked authority to consent to the search. Id. This Court determined that Dawkins had the right to consent to the search because his employment as the driver gave him mutual use and control of the rig while he was driving it. Id. at 281. This Court stated, “Appellant’s ownership and presence, without some affirmative act on his part to show a refusal to consent to the search or to withdraw Dawkins’ authority, did not serve to diminish this control.” Id. at 282. This Court’s decision in Maxwell preceded Randolph. Furthermore, this Court did not reach the question presented in Randolph because the owner of the vehicle failed to do any affirmative act constituting an objection to the consent that was granted by the driver. See id.

7. In Welch, the driver, Welch, was stopped for speeding and refused consent to the search of her truck. Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002). After she was arrested on an outstanding warrant, she asked the police officer to release her truck to her passenger. Id. Her passenger then consented to the search. Id. The officer found methamphetamine in the truck and charged Welch with possessing with intent to deliver it. Id. This Court explained that, when Welch and her passenger were driving down the road, the two friends had joint access to the truck but not joint control. Id. Welch, as both owner and driver, had control over the vehicle at that time. Id. While the passenger may have had control over certain portions of the truck, such as her window or her seat, she did not have equal control over the vehicle for most purposes. Id. After the officer arrested Welch, however, the dynamic changed when Welch asked the officer to give the truck to her passenger, whose status rose to that of one having joint access and control over the truck for most purposes. Id. “She was able to drive the truck, to freely examine its contents, and to allow someone else to do so, including a police officer.” Id. This Court determined that the passenger had joint access and control over the truck for most purposes at the time she granted consent and that Welch assumed the risk that the passenger would consent to a search when she gave the truck to the passenger. Id. We explained,

In line with Matlock, we have stated that, in order for a third person to validly consent to a search, that person must have equal control and equal use of the property searched. And we have recently emphasized that the third party’s legal property interest is not dispositive in determining whether he has the authority to consent to a search, saying that “common authority derives from the mutual use of the property, not the ownership or lack thereof.”

Id. at 52-53 (quoting Maxwell, 73 S.W.3d at 281). The Court rejected the contention that Welch’s ownership in the truck gave her a superior privacy interest in the truck that rendered the passenger’s consent invalid in the face of Welch’s refusal. Id. at 53-54. Because Randolph does not apply to vehicular searches, Welch‘s discussion and application of Maxwell to vehicular searches remains the prevailing law for determining whether a third-party consent to a vehicular search is valid. See id.

OF TEXAS

NO. PD-0819-12

ROBERT RANDALL KRAUSE, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

After appellant was arrested for driving while intoxicated, his blood was drawn at a hospital by Rachel Lopez. Although Lopez’s job title was “emergency medical technician” and she was licensed as an EMT-I, her primary duty at the hospital was to draw blood in non-emergency situations. The questions in this case are whether, under § 724.017 of the Transportation Code, Lopez was “emergency medical services personnel” and, if so, whether that fact renders her unable to be a “qualified technician” authorized to take blood specimens in driving-while-intoxicated cases. After reviewing Lopez’s job duties, we hold that she was not “emergency medical services personnel” and that she was a “qualified technician” within the meaning of the statute. We reverse the judgment of the court of appeals.

I. BACKGROUND

A. The Arrest and Trial Court Ruling

The basic facts of this case are undisputed. On January 26, 2011, appellant was involved in a vehicle accident and was arrested for driving while intoxicated. One of the other people involved in the accident was taken to the hospital. Because of this, (1) without the police obtaining a warrant, appellant was taken to a hospital so that a mandatory, involuntary blood specimen could be taken. There, appellant’s blood was drawn by Rachel Lopez, an employee of the hospital and an Emergency Medical Technician-Intermediate (“EMT-I”). Appellant’s blood-alcohol content was 0.23.

Appellant moved to suppress the results of the blood test, arguing that Lopez was not a person authorized by § 724.017 of the Transportation Code to take a blood specimen. Specifically, appellant contended that Lopez was not a “qualified technician” within the meaning of the statute because she was part of the hospital’s “emergency medical services personnel.” Section 724.017(a) provides:

Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter.

Section 724.017(c) says:

In this section, “qualified technician” does not include emergency medical services personnel.

A hearing was held on the motion, and Lopez testified.

Following the hearing, the trial court issued findings of fact and conclusions of law, which included the following: 1) Lopez’s testimony was truthful; 2) she was a licensed EMT-I; 3) she was employed by the hospital for approximately six years; 4) as an EMT-I, she was trained to draw blood, start IV’s, do tracheotomies, and start intubation; 5) her duties in the hospital’s emergency room were limited to drawing blood, but she was occasionally called to other parts of the hospital to start IV’s; 6) she was also trained as an EMT-Basic, a lower paraprofessional license; 7) when taking blood for a law-enforcement officer she used a kit provided by the officer; and 8) appellant’s blood was taken in a sanitary place, by one trained to do so, and in a reasonable manner.

The transcript of the proceedings established that Lopez’s primary duty at the hospital was drawing blood. Lopez conducted anywhere from fifty to one-hundred blood draws per day, and she had drawn blood during the entire time she was employed at the hospital. She maintained her own office at the hospital where she conducted the blood draws. Lopez was familiar with and explained the process by which a blood specimen is taken in driving-while-intoxicated cases when requested by a law-enforcement officer. Moreover, after the time Lopez drew appellant’s blood but before the suppression hearing, the hospital instituted new policies that changed the job titles of some of its staff, including Lopez, whose job title changed from EMT-I to Patient Care Technician, Level 1. This change in job title required no additional training or duties.

The trial court never explicitly concluded that Lopez was a “qualified technician” under the statute, nor was there any express testimony from Lopez to that effect. The trial court denied appellant’s motion to suppress. Following that denial, appellant pled guilty to driving while intoxicated and was sentenced to the Harris County Jail for one-hundred eighty days, probated for eighteen months.

B. Court of Appeals’s Opinion

The court of appeals reversed the trial court’s judgment and remanded the case for a new trial. (2) It held that the language of § 724.017 was plain, and it clearly excluded Lopez, an EMT-I, from being a qualified technician able to take a blood specimen from appellant.

The court stated that it was troubled by the fact that the statute excluded emergency medical services personnel such as Lopez, considering that she was “more qualified to take a blood specimen than some other non-emergency medical services personnel who have been deemed to be ‘qualified technicians’ under Section 724.017(a).” (3) The court nevertheless concluded that, notwithstanding its undesirable consequences in particular cases, because the statute laid out a bright-line rule, it did not produce an absurd result that the legislature could not possibly have intended. (4) Ultimately, the court reasoned that anyone licensed and titled as an EMT-I, who works in an emergency room, and is trained in providing emergency services, is unambiguously excluded by the statute, no matter his qualifications to take blood specimens. (5)

Concluding that the statute was plain in its meaning, the court of appeals stated that resort to legislative history was unwarranted. (6) It nevertheless went on to discuss the legislative history of the statute to show that reliance on it by the State was not helpful in any event. (7) The State had argued that a statement in the bill analysis indicated that emergency medical services personnel were excluded so that blood draws taken in ambulances would not be considered to have been taken in a sanitary place. Rejecting the State’s reliance on this part of the legislative history, however, the court of appeals reasoned that if the legislature had “wanted to prevent blood draws from being conducted in certain locations, it could have expressed that intent clearly in the statute without categorically excluding an entire class of medical services personnel.” (8)

II. ANALYSIS

A. Standard of Review and Principles of Statutory Construction

Because the historical facts are not disputed, and because statutory construction is a question of law, we review the trial court’s ruling on the motion to suppress de novo. (9) When interpreting the meaning of a statute, we seek to effectuate the collective intent of the legislators who enacted the statute. (10) However, if the text of the statute is ambiguous or would lead to absurd consequences that the legislature could not possibly have intended, we may consider extra-textual sources, such as the legislative history and the consequences of a particular construction. (11) B. Deciphering the Text of the Statute

Lopez’s job title was “EMT-I” but her job did not involve emergencies. Her job was that of a phlebotomist, which is a technician who draws blood. Moreover, while an EMT-I is defined as emergency services personnel for purposes such as travel reimbursement, that definition is not applicable to § 724.017. (12)

Two courts of appeals have held that phlebotomists are “qualified technicians” within the meaning of § 724.017, provided that their qualifications are established on the record. (13) In Torres v. State, (14) the defendant was charged with driving while intoxicated and his blood was drawn by a phlebotomist on staff. Implicit in the court of appeals’s decision is a conclusion that a phlebotomist is a technician within the meaning of the statute. (15)

And in State v. Bingham, (16) the defendant was arrested for driving while intoxicated and taken to a hospital where a phlebotomist drew his blood. A blood test showed he was over the legal blood-alcohol limit. The court of appeals concluded that the phlebotomist was a qualified technician within the meaning of the statute and stated, “The common-sense interpretation of the term ‘qualified technician,’ . . . must include a phlebotomist who a hospital or other medical facility has determined to be qualified in the technical job of . . . phlebotomy, i.e., the drawing of blood.” (17)

The record in this case shows that Lopez’s primary duties were that of a phlebotomist and that she was qualified to be so. Lopez was trained to draw blood, and her primary duty at the hospital for the six years she was employed there was to draw blood. Lopez took anywhere between fifty to one-hundred blood draws per day, and she maintained her own office at the hospital to do exactly that. When asked if drawing blood was part of her “daily chore[s]” at the hospital, Lopez replied, “Yes, ma’am. It’s all I do.” (18) Lopez also explained the procedure used to take blood specimens when directed to do so by police officers in driving-while-intoxicated cases, and she affirmed that she knew how to use the kit and equipment provided by the police officers to take such specimens. Lopez was qualified within the meaning of the statute.

The record also confirms that, functionally, Lopez was not emergency medical services personnel. It is true that Lopez had training in general emergency procedures. She also was licensed as an EMT-I and had that title at the hospital. But that training and her license and title had little to do with what she actually did at the hospital, which was almost exclusively drawing blood. Her new title of Patient Care Technician, Level 1, required no additional training or duties and is substantively indistinguishable from her previous position. From the perspective of the hospital, Lopez was not treated as an EMT-I or part of its emergency medical services personnel, but instead as a de facto phlebotomist. Because Lopez did not function as emergency services personnel, § 724.017(c) and its restrictions on emergency services personnel are not applicable in this case.

C. State v. Laird is Inapplicable

The court of appeals relied heavily on State v. Laird (19) for its holding. We are not bound by Laird, a court of appeals opinion, but because of its influence on the court below we address its applicability to this case.

In Laird, the defendant was charged with intoxication manslaughter and failure to stop and render aid after he struck and killed a pedestrian with his truck. (20) A responding police officer took Laird to an emergency room to have his blood drawn. (21) Laird refused to consent to the blood draw, and, as a result, the emergency-room physicians refused to take a specimen. (22) The officer was then instructed by his superior to take Laird to the central fire station where a paramedic would take a blood sample. (23) The officer did so and Laird again refused to comply. (24) This time, however, another officer swept Laird’s feet from under him, he fell to the ground, and he was pinned down by the officers on the floor of the fire station while the paramedic took the blood sample. (25) The trial court granted Laird’s motion to suppress, and the court of appeals affirmed. (26)

In spite of superficial similarities, Laird is inapplicable to the instant case. It is true that the court in Laird rejected the idea that a paramedic in a hospital could be considered a qualified technician. But that observation had nothing to do with the facts in Laird, so it was merely dicta.

Furthermore, even if the paramedic in Laird could be said to have been qualified under § 724.017, the blood draw still would have been inadmissible under the statute because of where it was taken. The statute requires that the blood specimen be taken in a “sanitary place.” The specimen in Laird was taken on the floor of a fire station, a place so obviously not sanitary within the meaning of the statute that it would need little discussion to conclude that the statute was not complied with.

III. Conclusion

The court of appeals was mistaken to conclude, in spite of its misgivings, that Lopez was excluded from taking a blood specimen in this case. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Delivered: May 8, 2013

Publish

1. See Tex. Transp. Code Ann. § 724.012(b)(1)(C).

2. Krause v. State, 368 S.W.3d 863, 864 (Tex. App.–Houston [14th Dist.] 2012, pet. granted).

3. Id. 867 (citing cases).

5. Id. at 867.

6. Id. at 869.

7. Id. at 869-70.

8. Id. at 869.

9. Mahaffey v. State, 364 S.W.3d 908, 912-13 (Tex. Crim. App. 2012).

10. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

11. Id.; see also Tex. Gov’t Code Ann. § 311.023(3), (5).

12. See, e.g., Gov’t Code § 660.209; see also Ex parte Ruthart, 980 S.W.2d 469, 472 (Tex. Crim. App. 1998) (“We will not extend a definition beyond the chapter or article to which it is expressly limited.”).

13. See Cavazos v. State, 969 S.W.2d 454, 456 (Tex. App.–Corpus Christi 1998, pet. ref’d) (holding that the State failed to meet its burden of establishing that the phlebotomist that took the defendant’s blood was a qualified technician because no one testified regarding the phlebotomist’s qualifications, and no other evidence was offered to establish that the blood was drawn by someone the hospital considered qualified to perform that task).

14. 109 S.W.3d 602 (Tex. App.–Fort Worth 2003, no pet.).

16. 921 S.W.2d 494 (Tex. App.–Waco 1996, pet. ref’d).

17. Id. at 496.

18. At another point in her testimony, Lopez also stated that she takes urine samples and starts IV’s. But throughout her testimony, Lopez said that her primary duty at the hospital is taking blood samples.

19. 38 S.W.3d 707 (Tex. App.–Austin 2000, pet. ref’d).

20. Id. at 710.

26. Id. at 711, 715.

FACTS AND PROCEDURAL HISTORY

Although originally charged with aggravated sexual assault, on July 9, 2008, the appellant pled guilty to the lesser offense of indecency with a child for molesting his granddaughter. The trial court placed him on five years’ deferred adjudication community supervision and ordered him to begin a sex offender treatment program and to submit to polygraph examinations at the discretion of his community supervision officer. The appellant agreed to these conditions and, over the course of the next year, faithfully attended approximately fifty group therapy sessions and passed two “maintenance” polygraph examinations designed to make sure that he was complying with the requirements of his community supervision. He was also eventually required to submit to a sexual history polygraph, and so, on April 6, 2009, he appeared at polygrapher Andy Sheppard’s office. When it became clear during the preliminary conference with Sheppard that he would be asked questions about extraneous prior sexual offenses he may have committed, however, the appellant advised Sheppard that “his attorney told him not to say anything that might result in a prosecution.” Sheppard believed he “was left no other option than to terminate the interview.”

On August 18, 2009, the appellant was discharged from the sex offender treatment program. The State subsequently filed a motion to proceed to adjudication, alleging two grounds for revocation of his community supervision. First, the motion alleged that the appellant “violate[d] condition (30) in that he refused to obtain a sexual history polygraph as [r]equested by the Community Supervision Officer & Counselor.” Second, the motion alleged that he “violate[d] condition (36) in that [he] failed to attend and successfully complete the Sex Offender Treatment Program.” (2) The trial court convened a hearing on the State’s motion to proceed to adjudication on March 30, 2010.

Three witnesses testified at the hearing. The State’s first witness was Sheppard, the polygrapher. He testified that, mindful of a probationer’s Fifth Amendment privilege against self-incrimination during a sexual history polygraph,

I avoid asking about any names, any specific identifiers of another victim, an address where it may have occurred. Anything that would basically put me in a position where I would have to contact a law enforcement agency or child protective services to make a report. So, the effective way I do that is to ask for the victim’s age, and the offender’s age at the time that the offense occurred. Was the victim a male or a female? Was it a stranger or an acquaintance? And, no more specific than that. And, then what did the offender do to the victim and how many times. And, that gives us strictly a chronological and a behavioral look at what the offender had done without causing the offender to have to incriminate himself.

When Sheppard explained this to the appellant at the start of the polygraph examination on April 6, 2009, the appellant “responded by telling [Sheppard that] his attorney told him not to say anything that might result in a prosecution.” On cross-examination, Sheppard confirmed that the purpose of the sexual history polygraph was to determine the “truth and veracity” of the appellant’s statements about “[d]eviant sexual behavior, and sexual crimes” against victims of offenses other than that for which he was placed on community supervision. He also acknowledged that the appellant had answered all questions straightforwardly and truthfully during the two maintenance polygraph examinations that Sheppard administered to him.

The State next called Linda Young, the appellant’s sex offender therapist who discharged him from the program. Young testified that certain psychological testing she conducted on the appellant suggested to her that “truthfulness might [be] an issue” for him and that he was mistrustful of other people, making it difficult for him “to be open and honest in treatment.” He also displayed certain personality disorder traits that led her to suspect that he might prove deceitful and attempt to deflect blame. The primary goal of sex offender treatment, she maintained, is “not to have anymore [sic] victims.” To this end, she insisted, the sexual history polygraph is necessary because

it’s critical to have that information because we can’t – unless we know this person, and unless we know how they – unless we really know how they respond, how they responded in the past because that’s our best producer, a future behavior is past behavior at this point. So, we have to know these things.

Although the appellant attended therapy sessions regularly and superficially acknowledged responsibility for his offense, Young maintained that he never took “ownership” of it:

A No, that was a boundary for [the appellant]. He acknowledged the offense and would [give] us some [underlying] beliefs that he said he had, and that was about as far as we could go because, we didn’t have any history of prior negligent behavior.

Q How many times did he actually say, I did this, in group?

A I don’t know. I can’t tell you, but he did.

Q Was it fifty times in group that he showed up every time and said, I did this, it’s my fault?

A I doubt that, no. But, I mean, toward the end after – after, you know, a certain amount of time he did acknowledge – he did verbally take responsibility.

Q Now, did you ever get, at all, the next step of identifying his [underlying] beliefs?

A Not totally. Like I said, before we can really do that we have to know the person well. And, that never happened because, he didn’t allow himself to be vulnerable enough to give us that kind of information.

Although Young would expect an offender of the appellant’s type to have “impure thoughts” from time to time, the appellant never admitted to fantasizing or indulging in pornography during group sessions. He was “guarded” in therapy and “had a hard time participating in terms of his own deviance.” The appellant had himself been victimized as a child, and

early on that was an issue, and he felt like because of his own history that was a big reason he offended, yes. Being – feeling victimized, feeling special, feeling unique, all of those are thinking areas that they engage in. [The appellant] engaged in quite regularly.

Q Does [the appellant] even understand that he is a risk?

A No, I don’t think so.

Q Does that concern you?

A Well, yes. It’s almost like a line they have to cross. They have to fully understand that this is something – the sexual – deviance or sexual desire is something that they’re probably not going to get better, it’s not going to go away. And, so they have to learn to control it. And, that’s really hard for them to acknowledge. They feel like they are cured, it’s never going to happen again, that kind of thing.

Q Now, what kind of reaction – what is the reaction of other offenders in group to [the appellant]?

A They worked really hard at helping [the appellant] trying to help him understand about the sexual history polygraph, the sexual history itself, they gave him information from their own experiences and they are – they were quite irritated with him at the end.

* * *

Q So, why are they irritated with [the appellant]?

A Well, they took the sexual history polygraph, they [have] done sexual history, they have to talk about their horrible behavior, and they kind of figure if they have to they want him to as well.

Asked why she believed the appellant remained a risk to re-offend, Young replied,

A Because, he hasn’t been in treatment very long and when he was in treatment he didn’t comply with the requirement. So, he really didn’t get a lot during that process.

Q So, did he successfully complete treatment as ordered by the court?

A No.

Q Was the not taking the polygraph [ . . . ] the only reason that he got thrown out of sex offender treatment?

A No, it’s not at all. He couldn’t participate because he would of had to disclose information, and he was unwilling to do that. So, he was guarded and his participation was not on target in terms of his own issues, his attitude stunk there at the end, and he just wasn’t getting anywhere.

Q Can you give the Judge an example of his bad attitude?

A He just would refuse to talk. We would ask him a question and he would just sit there.

Young believed that the appellant’s reticence was disruptive of the group because “we certainly spent a lot of time with him, that might have been spent elsewhere.”

On cross-examination, Young admitted that, in the last paragraph of a letter she had written, on August 21, 2009, to inform the appellant’s community supervision officer, Kirk Mann, that the appellant had been discharged from the sex offender treatment program, she had indicated that the sexual history polygraph “is a necessary part of the treatment process.” She acknowledged that her “particular brand” of sex offender therapy “cannot be successfully implemented” if the appellant “will not disclose or discuss his alleged prior acts of sexual conduct.” Nevertheless, she continued to deny that his refusal to submit to the polygraph was the only reason he was discharged from the treatment program. Still, she opined that she did not believe any treatment program could work that did not take past sexual misconduct into account, “[b]ased on what I have seen over the last twenty years, as far as, offenders and until they acknowledge who they are, and what they’ve done, and the problems that they have, as far as being successful it’s pretty trivial.” On re-direct examination, Young read aloud the balance of her letter to Mann, in which she identified other factors in her decision to discharge the appellant:

[The appellant] spent much of his time in group “lying and conning.” When confronted, he was highly insulted to think that anyone would believe he could have done, what in fact, he did do. [His] group participation was minimal. Occasionally, he will confront others, but provides very little information regarding his own deviance. He is very guarded and most of his replies are brief or he does not answer at all.

Such an offender, she confirmed, will not ordinarily “last very long in treatment.”

The trial court then questioned Young specifically about a progress report she had prepared regarding the appellant’s treatment for the reporting period between March 30, 2009, and May 15, 2009, which included the date (April 6th) the appellant had refused to answer questions during the sexual history polygraph examination:

THE COURT: I am looking at your comments and the attorneys well know what is written there[,] they’ve reviewed all this. It appears to me that you had a glimmer of hope. [The appellant] seems to understand that he is not the victim, his journaling has improved dramatically and he is presenting the correct – I think you meant thought process. You say he’s still manipulative regarding his sexual history polygraph that – you left it at that. Just from the tone, the tenor of that entry it seems you were hopeful?

THE WITNESS: There was a time, a brief time where it looked like he was going to be okay. It looked like he was going to make it.

THE COURT: Tell me in your words, what happened from that entry until the next one?

THE WITNESS: Well, I think that we kept pressing him for the polygraph, he became more and more guarded, and participation just dropped from there.

In her last progress report regarding the appellant’s treatment, for the reporting period that spanned June 30, 2009, to August 4, 2009, Young’s comments read as follows:

[The appellant] continues to resist complying with treatment- participation is almost non-existent-he seems afraid he will be asked to disclose information-he cannot continue to remain in group with this lack of compliance-If he has not completed his polygraph confirming his sexual autobiography as being accurate by August 15, 2009, he will be discharged from this group. It is my concern that [the appellant] may be at risk to offend.

The appellant persisted in his refusal to submit to the sexual history polygraph examination by the appointed date of August 15th, and three days later he was discharged.

After Young testified, the State rested, and the appellant called as his only witness his community supervision officer, Mann. Mann initially agreed that the appellant was discharged from the sex offender treatment program “because he failed to complete a sexual history polygraph[,]” but he immediately denied, without elaboration, that this was “the only reason[.]” He admitted that “several times” an offer was made to the appellant to withdraw the motion to revoke his community supervision if the appellant would agree in exchange to “get back into counseling, take a sexual history polygraph and make progress[,]” but the appellant refused. Asked whether that offer would have stood without the necessity of the polygraph, Mann replied, “No, sir, because the State requires it in all of the programs.”

In final arguments to the trial court, counsel for the appellant asserted that the State’s entire case for proceeding to adjudication was “all about the polygraph exam,” and that to revoke the appellant’s community supervision would amount to an unconstitutional penalty on his invocation of the Fifth Amendment privilege to refrain from incriminating himself. In response, the prosecutor argued:

And, as far as, the polygraph examination, I will concede to the defense that if that is the only reason why we were here, that he was the stereotypical probationer and he just got where he wouldn’t take those polygraphs, and we wouldn’t even be here, if he was just saying, Fifth Amendment, I invoke it, but beyond that he’s being great in participating in group and he’s identifying being sexually attracted to little girls and being an excellent participant, we wouldn’t be here. The bottom line is, that is one way he has failed of many. It’s clear from Ms. Young that when we started back here in July, of 2008, we had a sixty-two year old man with a persistent deviant interest in young female children at adolescent and grade school age. With a desire to be well viewed, and a propensity to lie. With antisocial and personality disorderations [sic]. Someone prong [sic] to playing the con man and the victim. Who distrusted people and was unwilling to make disclosures. And, by August of 2009, what do we have? A sixty-three year old man who has persistent deviance interest in young children and fill in the rest. And, Ms. Young testified to you that the effect of difference between the sixty-two year old Mike Dansby and the sixty-three year old Mike Dansby is effectively zero. That all of those fifty sessions of counseling yielded zip. That they barely progressed into the very first state of acknowledging his offense and that he stands before you a troubling risk to reoffend.

Without elaboration, the trial court then found that the appellant had violated both conditions thirty and thirty-six of his deferred adjudication community supervision and entered a finding of guilt on the indecency-with-a-child offense. A week later, after a punishment hearing, the trial court refused to place the appellant on regular community supervision, sentencing him instead to serve an eighteen-year sentence in the penitentiary.

In two points of error on appeal, the appellant argued that to revoke his deferred adjudication community supervision and proceed to adjudicate his guilt for failing to answer incriminating questions during the sexual history polygraph examination was tantamount to penalizing him for asserting a valid Fifth Amendment privilege. The court of appeals held, however, that adjudicating the appellant guilty based upon his violation of condition thirty-six, the failure to successfully complete the sex offender treatment program, did not implicate his Fifth Amendment privilege. (3) Because it was able to identify a basis for revocation that was supported by the record without implicating the appellant’s Fifth Amendment privilege, the court of appeals declined to reach the question whether the trial court had validly proceeded to adjudication based upon the appellant’s violation of condition thirty, the failure to submit to the sexual history polygraph. (4) We granted the appellant’s petition for discretionary review in order to evaluate his contention that the court of appeals erred in concluding that the evidence supporting a violation of condition thirty-six constitutes a basis for adjudication that is genuinely independent of any unconstitutional infringement upon his Fifth Amendment privilege. We conclude that the court of appeals did err and will remand the cause for that court to address the merits of the appellant’s Fifth Amendment arguments.

THE FIFTH AMENDMENT PRIVILEGE

Under the Fifth Amendment to the United States Constitution, no person “shall be compelled in any criminal case to be a witness against himself[.]“ (5) It is well settled that the Fifth Amendment insulates probationers from compelled self-incrimination. (6) Supreme Court decisions have “made clear” that a state may “not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” (7) Thus, while a probationer may be compelled “to appear and give testimony about matters relevant to his probationary status[,]” he cannot be “required . . . to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent.” (8) It bears emphasis “that a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminate the threat of incrimination.” (9) But the appellant in this case was offered no such use immunity. The State cannot reasonably have believed that it could penalize him for invoking his Fifth Amendment privilege by revoking his conditional liberty solely on the basis of his refusal to answer questions that would tend to incriminate him during the course of the sexual history polygraph process–or, for that matter, during required sex offender group therapy sessions. (10)

The court of appeals avoided the constitutional issue, however, relying on this Court’s many holdings that “[t]he State is obligated to prove only one of the violations alleged in the motion to revoke or proceed to judgment in order to authorize the trial court to revoke community supervision or to proceed to judgment.” (11) But this principle cannot operate to excuse the court of appeals from addressing the appellant’s asserted Fifth Amendment issue if the one ground for revocation that it found to be supported by the evidence is equally infected with constitutional infirmity as the ground for revocation for which it abjured reliance. The question presently before us boils down to simply this: Was the appellant’s discharge from the sex offender treatment program a product of his invocation of a Fifth Amendment privilege? (12) We hold that the court of appeals erred to conclude that it was not.

ANALYSIS

As he does here, the appellant contended on direct appeal that, “had he taken the sexual history polygraph, he would still be in the treatment program[,]” and that “his ultimate violation of condition thirty-six was derived from his not wanting to incriminate himself.” (13) The court of appeal rejected this contention, not only because of Young’s and Mann’s specific testimony that the appellant’s failure to submit to the sexual history polygraph was “not the only reason” for his discharge, but also because “the information sought in counseling addressed more than just subjects that might have caused appellant to incriminate himself for other crimes.” (14) But, in our view, neither the fact that there were other relevant factors contributing to Young’s ultimate decision to discharge the appellant, nor the fact that appellant’s reticence in group therapy sessions may not have been wholly attributable to a reasonable fear of incriminating himself, necessarily establishes that his discharge from the sex offender treatment program occurred independently of his invocation of the Fifth Amendment privilege. When an appellate record admits of so strong an inference as this one does that the probationer’s unwillingness to incriminate himself was the deciding factor in discharging him from the sex offender treatment program, we cannot permit the court of appeals to avoid addressing the constitutional issue.

The trial court found that the appellant violated both conditions thirty and thirty-six of the appellant’s conditions of community supervision. Because a trial court is authorized to revoke community supervision and proceed to adjudication so long as the State has established at least one of the violations it has alleged, (15) the court of appeals limited its review to condition thirty-six, that the appellant must successfully complete the sex offender treatment program, and it thereby avoided the Fifth Amendment issue. But this approach can work only if the violation upon which the reviewing court relies to uphold the trial court’s ruling is itself unquestionably free of constitutional taint. Before the State may take advantage of the rule that a revocation may stand on appeal so long as the evidence supports a finding that at least one of the conditions of community supervision was violated, it must demonstrate from the record that the one violation upon which it relies on appeal is supportable independent of whatever constitutional taint arguably inheres in the other. If, but for the appellant’s invocation of his Fifth Amendment privilege, he would not have been discharged from the sex offender treatment program (condition thirty-six), then his discharge from the program cannot constitute an independent basis for revocation that serves to obviate the reviewing court’s obligation to address the constitutionality of revoking him for refusing to submit to incriminating questioning during the sexual history polygraph (condition thirty). The record must show that, even without refusing to answer what he took to be incriminating questions, the appellant actually would have been discharged from the sex offender treatment program. Here, the record does not.

Both Young and Mann insisted that there were “other reasons” for discharging the appellant. But the existence of other factors that were relevant to inform Young’s decision is not determinative if the appellant’s failure to answer incriminating questions during the polygraph process (or, for that matter, group therapy sessions) was her motivating reason for discharging him. If the other reasons did not, by themselves, cause Young to discharge the appellant from the treatment program, then the fact of his discharge cannot insulate the appellant’s revocation from Fifth Amendment scrutiny. Neither Young nor Mann indicated that the “other reasons” supporting Young’s decision to discharge the appellant would have actually caused her to discharge him regardless of whether he also refused to implicate himself in prior offenses, either during the polygraph or in therapy; indeed, the record strongly suggests otherwise. Mann acknowledged that, had the appellant only agreed to return to treatment and take the sexual history polygraph, the motion to revoke would have been dismissed. And the ultimatum that is clearly reflected in Young’s progress report of June 30th to August 4th of 2009–that the appellant submit to the sexual history polygraph or else be summarily discharged–indicates that the appellant’s steadfast refusal to confess to the commission of earlier sex offenses was by far the single most important instance of non-compliance, the sine qua non, that informed her decision to expel him from the treatment program.

That the appellant was as reticent to incriminate himself during group therapy meetings (notwithstanding the peer pressure) as he was during the sexual history polygraph process cannot justify his expulsion from the treatment program apart from his claim of Fifth Amendment privilege. Without immunity, he simply may not be forced to confess to criminal behavior in any context, whether during a polygraph examination or during group therapy. It is true, as the court of appeals pointed out, that there were other, non-incriminating disclosures that the appellant refused to make during the group therapy sessions–for example, he refused to admit to fantasizing and indulging in pornography. (16) But Young never suggested that these particular non-disclosures were essential to her decision to discharge him, and they do not rebut the strong inference from the record that it was specifically the appellant’s intransigence with respect to admitting to prior criminal offenses that actually provoked her action. In the absence of testimony that Young would have discharged the appellant for these deficiencies alone, quite apart from his failure also to incriminate himself, the State has not established that his discharge presented a sufficient basis to proceed to adjudication that was wholly independent of his claim of Fifth Amendment privilege. (17) Under these circumstances, the court of appeals erred to believe it could eschew the constitutional issue on direct appeal.

CONCLUSION

Accordingly, we reverse the judgment of the court of appeals and remand the cause for further appellate consideration consistent with this opinion. (18)

DELIVERED: May 8, 2013

PUBLISH

1. Dansby v. State, No. 05-10-00866-CR, 2012 WL 1150530 (Tex. App.–Dallas, delivered Apr. 9, 2012) (not designated for publication).

2. Condition thirty-six required the appellant to begin an approved sex offender treatment program within ten days of being placed on deferred adjudication probation, to pay the costs of the program, abide by its rules, and “not leave the program [until] successful completion or unless you have the permission of the court or your supervising officer.” Strictly speaking, the appellant did not fail to attend the program as alleged in the motion to revoke. The evidence at the hearing on the motion to revoke conclusively establishes that he attended every group and individual therapy session without fail–at least until he was involuntarily discharged from it. Nor did he “leave the program” of his own volition, as literally prohibited by the actual condition of community supervision.

3. Dansby, supra, at *5 (“Viewed in the light most favorable to the trial court’s ruling, we conclude the trial court could have held a reasonable belief that appellant violated condition thirty-six for reasons other than invoking his Fifth Amendment privilege.”).

4. Id.

5. U.S. Const. amend. V.

6. Minnesota v. Murphy, 465 U.S. 420, 426 (1984); Chapman v. State, 115 S.W.3d 1, 5-6 (Tex. Crim. App. 2003).

7. Murphy, supra, at 438.

8. Id. at 436.

9. Id. at 436 n.7; Chapman, supra, at 7 n.28.

10. Murphy, supra, at 438-39; Hoffman v. United States, 341 U.S. 479, 486 (1951) (the Fifth Amendment privilege is to be “accorded liberal construction in favor of the right it was intended to secure[,]” and “not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute”). The privilege applies unless “it is perfectly clear . . . that the answer cannot possibly tend to incriminate the witness.” Grayson v. State, 684 S.W.2d 691, 696 (Tex. Crim. App. 1984). As Judge Cochran has recently observed, “[t]hat is a high hurdle to jump.” Ex parte Dangelo, 376 S.W.3d 776, 782 (Tex. Crim. App. 2012) (Cochran, J., concurring).

11. George E. Dix & John M. Schmolesky, 43A Texas Practice: Criminal Practice and Procedure § 48:57, at 436 & n.1 (3rd ed. 2011) (citing, “e.g.,” Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. 1978); Gobell v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975); Ross v. State, 523 S.W.2d 402, 404 (Tex. Crim. App. 1975)).

12. The question of whether that invocation is legitimate is not before us at this juncture.

13. Dansby, supra, at *5.

14. Id.

15. See note 11, ante.

16. Dansby, supra, at *5.

17. The dissent opens with the assertion that we are simply acting on our “belief” that Young discharged the appellant “solely because” of his invocation of his Fifth Amendment privilege. Dissenting Opinion at 1. The balance of the dissent accuses us of indulging in inappropriate fact-finding, encroaching upon the trial judge’s prerogative to resolve issues of historical fact and credibility as he sees fit based upon the evidence. We reject these assertions. We do not doubt the credibility of Young and Mann, nor do we ignore their testimony that, as a matter of historical fact, “other reasons” contributed to the decision to discharge the appellant from the treatment program, causing him to violate condition thirty-six of deferred adjudication community supervision. We hold, instead, that those facts alone are not definitive. Neither Young nor Mann was asked, and the record does not otherwise establish, whether–as a matter of historical fact –those other reasons would have caused Young to discharge the appellant from the program even had he submitted to the sexual history polygraph. It is this question of historical fact that determines whether revoking the appellant’s community supervision was accomplished independently of his invocation of the Fifth Amendment privilege. In the absence of an answer to this definitive question on the record, the trial court may not, in the name of “discretion,” speculate that Young would have discharged the appellant from the treatment program for the “other reasons” she mentioned, even if he had taken the polygraph. What we hold today is that, as beneficiary of the appellate rule that, upon proof of the violation of any one condition of probation, an appellate court may affirm a revocation order, the State bears the burden of producing a record that demonstrates an absence of constitutional infirmity in the one condition upon which it would rely. We do not purport to find as a matter of historical fact that, but for the appellant’s failure to take the sexual history polygraph, Young would not have discharged him from the sex offender treatment program. Rather, we hold as a matter of law that the State has failed to satisfy its burden to show otherwise.

18. The State has devoted a substantial portion of its brief in reply to the appellant’s petition for discretionary review to the argument that, by failing to object to any of the conditions of deferred adjudication community supervision at the time they were imposed, or at any reasonable time thereafter, the appellant has forfeited, or should be estopped from asserting, his Fifth Amendment privilege on appeal. The court of appeals did not have to address this argument on original submission, however, and neither shall we reach it for the first time on discretionary review, leaving it to the court of appeals to resolve, if necessary, on remand.

FACTS AND PROCEDURAL HISTORY

In the Trial Court

The appellant was indicted for thirteen counts of child pornography. (3) Prior to trial, the appellant filed a motion to suppress the files seized from his computer, claiming that they should be excluded under Article 38.23(a) of the Code of Criminal Procedure. Specifically, the appellant alleged that Dawn Killian recovered the computer files while violating the Texas Penal Code provisions that prohibit criminal trespass and breach of computer security. (4) At the suppression hearing, Killian testified to the events that led up to her finding child pornography on the appellant’s computer.

Killian came to know the appellant through a mutual friend, and the appellant arranged for her to pet sit for his dog while he was out of town. In preparation for the job, Killian visited the appellant’s home twice, once to meet the dog and a second time on the day that the appellant planned to leave so he could show her around the home. This tour of the appellant’s home, Killian maintained, included a walk through the master bedroom and bathroom as well as the guest bedroom and bathroom, where she was to stay. The appellant also pointed out his roommate’s bedroom and office and “kind of indicat[ed] that those were probably places that neither I [n]or the dog would be going.” In the kitchen, the appellant “open[ed] cabinets and cupboards” specifically to show Killian where the dog’s leash could be found and to “kind of show[] [her] where things were at.” While they were in the kitchen, the appellant told Killian, “Help yourself to anything.” According to Killian, this statement was repeated at least once during the tour of the home. At one point, Killian quotes the appellant as going so far as to tell her that she could “[h]elp [her]self to everything.” As part of the tour, the appellant demonstrated how to use the various remote controls to his “very large TV” and DVD player. The appellant instructed Killian to keep the master bedroom door closed “because he didn’t want the dog sleeping in his bed[.]” However, the appellant never specifically instructed Killian that she was not permitted to enter the master bedroom or that she was not allowed to access his computer in the master bedroom.

Killian then explained how she came to use the appellant’s computer. In an attempt to copy songs from one of the appellant’s compact disks onto her phone, Killian entered the master bedroom and activated the computer from its sleep mode by simply moving the mouse. The computer was powered on and was not password protected. She inserted a compact disk into the computer to begin the copying process. After realizing that the process would be more complicated than she originally believed, Killian decided to abandon her idea to transfer the songs. However, by this time she had already loaded the music onto the computer. In an attempt to “clean up what [she] had done,” she went into the “recent documents” folder. There she saw titles that suggested the appellant had child pornography on his computer. (5) Killian also opened the “recycle bin . . . [t]o take the second step of deleting the music.” There she discovered thumbnail images of what she thought was child pornography. When playing a video ultimately confirmed her suspicion, Killian contacted the College Station Police Department.

To corroborate Killian’s testimony, the State called William Odom, a forensic computer expert, who studied a “forensic copy” of Killian’s activity on the appellant’s computer. (6) Odom’s testimony largely substantiated Killian’s story, except that he did not find any evidence that songs were transferred onto or deleted from the computer.

The appellant testified, contesting Killian’s testimony in a few key aspects. He denied having taken Killian into the master bedroom or bathroom. He confirmed that he told Killian to keep the door to the master bedroom closed. His intention was not only to keep his dog out, but to keep Killian out as well. However, it is unclear from his testimony whether he ever communicated either of these specific intentions to Killian. (7) He did acknowledge that he never expressly told Killian not to enter his master bedroom. With respect to his statement to Killian that she should “[h]elp [her]self to anything,” the appellant claimed that he made this offer in the kitchen and that it pertained specifically and exclusively to food. He explained that he actually told Killian, “You can help yourself to any food you find,” while gesturing to the refrigerator. As evidence of this limited intention, he told the trial court that he had stocked his kitchen with Killian’s preferred beer and food. He admitted that he showed Killian how to use both his television and his stereo. Finally, while he maintained that Killian did not have his consent to access his computer, the appellant acknowledged that he allowed his roommate to use it.

The defense next called Rose Hubbard, a computer forensic examiner. She agreed with Odom that there was no indication that music had been loaded onto or deleted from the computer. Unlike Odom, Hubbard testified that she did not find evidence consistent with Killian inserting a compact disk into the computer. Instead, Hubbard explained, the evidence simply showed that “a file was accessed.” (8)

The trial court denied the appellant’s motion to suppress the images taken from his computer, crediting Killian’s testimony over the appellant’s. (9) Specifically, the trial court found that the appellant did not explicitly exclude Killian from his bedroom or from his computer; that he walked her through the master bedroom and bathroom; and that he told her to “[h]elp [her]self to anything.” Based on these fact findings, the trial court determined that Killian did not violate the Penal Code because she had the appellant’s effective consent to enter the bedroom and use the computer, and it held that, without establishing that Killian violated the law, the appellant could not invoke Article 38.23 to exclude the material. (10)

After the trial court denied his motion to suppress, (11) the appellant pled guilty to ten counts of child pornography, and the trial court sentenced him to ten years’ incarceration on nine of the counts and five years’ incarceration on the remaining count. The judge ordered the five year sentence and one of the ten year sentences to run consecutively to the eight other ten year sentences. On appeal, the appellant challenged the pre-trial suppression ruling.

In the Court of Appeals

The court of appeals affirmed the trial court’s ruling. (12) The court of appeals concluded that the trial court’s resolution of the factual dispute was supported by the evidence elicited at the suppression hearing and that the trial court correctly denied the motion to suppress under Article 38.23 based upon the facts as thus resolved. (13) According to the court of appeals, Killian did not violate either section of the Penal Code because she had the appellant’s apparent consent to access his master bedroom and use his computer. That is to say that, while she did not have the appellant’s express assent in fact, she did have his apparent assent in fact. (14) We granted review of the appellant’s petition for discretionary review to scrutinize this holding. (15)APPELLATE STANDARD

An appellate court reviews a trial court’s pre-trial suppression ruling under a bifurcated standard. (16) Almost total deference is afforded to the trial court’s determination of fact. (17) Determinations of fact include “who did what, when, where, how, or why” and “credibility determinations.” (18) Because “[t]rial judges . . . are uniquely situated to ‘observe[] first hand the demeanor and appearance of a witness[,]‘” this Court has long recognized that they are the sole arbiter of questions of fact and of the weight and credibility to give testimony. (19) In that capacity, a trial judge is free to believe or disbelieve any part of the testimony as he sees fit. (20) When a trial judge makes written findings of fact, as he did in the instant case, a reviewing court must examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. (21) The reviewing court then proceeds to a de novo determination of the legal significance of the facts as found by the trial court. (22) That de novo determination sometimes involves construction of statutory language. (23) ANALYSIS

The Trial Court’s Resolution of Factual Discrepancies

The appellant objects to the trial court’s findings that he placed no limits on Killian’s access to either his bedroom or his computer. (24) We do not disagree that the appellant’s own testimony would support his contention that he never assented in fact to her entering his bedroom and accessing his computer. But we review the record in the light most favorable to the trial court’s resolution of disputed facts and conclude that the evidence– specifically Killian’s testimony–adequately supports the trial court’s contrary fact findings. Killian testified, and the appellant confirmed, that he never explicitly excluded her from his master bedroom or from his computer. She also testified that he told her to “[h]elp [her]self to anything” and “everything”; he walked her through the master bedroom, where the computer was kept; and he told her to keep the bedroom door closed only for the express purpose of keeping the dog out. With regard to the specific finding that appellant placed no limits on Killian’s access to his computer, the appellant acknowledged that he regularly allowed his roommate to use it. He also conceded that he had showed Killian how to use other electronic devices such as his television and stereo. Killian’s testimony that the appellant had left the computer powered on and did not put a password on it also supports this finding.

The appellant particularly contests the trial court’s implicit finding that the appellant told Killian to “[h]elp [her]self to anything” in the house. (25) Again, he points to his own testimony that this comment was only made in the kitchen, and specifically in reference to food. However, the appellant does not acknowledge that Killian testified that the appellant repeated this statement at least once during the tour of the home and told her also to “[h]elp herself to everything.” (26) We conclude that the trial court’s resolution of this factual/credibility dispute between the parties–that the appellant’s invitation was not limited to food–is supported by the record.

Apparent Consent

The appellant also challenges the court of appeals’s ruling with respect to the legal significance of the facts even as the trial court found them. (27) The court of appeals held that Killian had the effective consent to enter the appellant’s bedroom and use his computer because he gave her his “apparent” assent in fact to do so. (28) The court of appeals did not elaborate on what it meant by “apparent,” and the Penal Code does not define it.

Whether Killian committed either trespass or breach of computer security depends upon whether she had the appellant’s “effective consent.” (29) The issue is not whether any consent that the appellant may have given was “effective” as that term is defined in the Penal Code, (30) but whether he gave any consent at all. “Consent” is statutorily defined as “assent in fact, whether express or apparent.” (31) There is no contention here that the appellant expressly assented in fact to Killian entering his bedroom and accessing his computer. The issue therefore boils down to whether, as the court of appeals held, the appellant gave his “apparent” assent in fact to her doing so. Whether Killian’s description of her encounter with the appellant fits the statutory criteria for apparent assent in fact turns on what we construe “apparent” to mean in the context of the statutory language in which it appears.

So what does Section 1.07(11) of the Penal Code mean by “assent in fact” that is “apparent” as opposed to “express”? The cardinal principle of statutory construction is to implement the will of the Legislature. (32) In construing statutory language, we always begin with the literal text, reading it in context and construing it according to the rules of grammar and common usage. (33) We assume that every word was meant to serve a discrete purpose that should be given effect. (34) And we may also consult standard dictionaries to determine the common usage of a word where that word does not have a technical meaning or is not particularly defined by the Legislature in the statute itself. (35) If, having implemented these basic canons of statutory construction, we find that the statutory language is plain on its face, we are ordinarily constrained to adhere to the plain import of that statutory language, regarding it as the definitive indicium of the legislative intent. (36) We may not resort to extra-textual factors to construe statutory language otherwise than by its plain import–unless implementation of the plain language would lead to absurd consequences that the Legislature could not possibly have intended.

The word “apparent” has two dictionary definitions that could plausibly apply in the context of Section 1.07(11) of the Penal Code. The oldest sense of the word is “clear or manifest to the understanding.” (37) But the word may also mean, in some contexts, “manifest to the sense or mind as real or true on the basis of evidence that may or may not be factually valid.” (38) A statute is ambiguous when the language it employs is reasonably susceptible to more than one understanding. (39) But before we declare a word that has more than one plausibly applicable definition sufficient to render a statute ambiguous, and therefore subject to interpretation by extra-textual factors, we must broaden our examination to the setting in which the word appears, in order to determine whether context makes clear which definition the Legislature intended. (40) Reading “apparent” in context, and invoking the canon that every word is presumed to have a discretely effective purpose, we think it plain which of the common-usage definitions the Legislature intended. (41)

Only the first definition of “apparent” set out above gives the “assent in fact” clause in Section 1.07(11) its full meaning and purpose. To assent, is “to agree to something esp[ecially] after thoughtful consideration.” (42) “In fact” has been defined as “actual or real.” (43) For “assent” “in fact” to occur, therefore, there must be an actual or real agreement after thoughtful consideration. In the context of Section 1.07(11)’s definition of consent, to give the word “apparent” the second definition above–something that seems real enough but which is not necessarily so–would strip the “assent in fact” clause of its plain and literal significance. After all, consent cannot be both an “actual or real” agreement “after thoughtful consideration” and at the same time only a seeming agreement that “may or may not be factually valid.” We therefore conclude that, read in context, the word “apparent” as it appears in Section 1.07(11) embraces the first dictionary definition of “apparent”–assent in fact that, while not communicated expressly, is no less “clear and manifest to the understanding” for not having been explicitly verbalized. (44) Because we deem the statutory language to be plain, we have no occasion to resort to extratextual factors to determine the meaning of “apparent” consent. (45)

Apparent Consent

Under this construction of the term, the evidence supports a finding that the appellant gave Killian his apparent consent. The appellant invited Killian to help herself to “anything” and “everything,” and this invitation was not limited to the refrigerator and pantry, but was repeated during the course of the tour of the house, which included his master bedroom. Whatever he may have intended, the appellant told Killian only that he required her to keep the bedroom door closed in order to keep the dog out. He did not expressly banish her from the bedroom, nor did he forbid her to use his computer. He showed her how to operate the television and stereo. He did not power the computer down or password-protect it, and he admitted that he allowed his roommate to use it regularly. Given this convergence of facts, the trial court was justified in concluding that Killian had the appellant’s apparent consent–that is to say, it is clear and manifest to the understanding that she had his assent in fact–to enter his bedroom and use his computer.

CONCLUSION

Accordingly, we affirm the judgment of the court of appeals.

DELIVERED: May 8, 2013

PUBLISH

See Tex. Code Crim. Proc. art. 38.23(a) (evidence obtained in violation of the laws or constitutions of Texas or the United States may not be used as evidence in a criminal case).

Baird v. State, 379 S.W.3d 353, 358 (Tex. App.–Waco 2012).

Tex. Penal Code § 43.26(a).

See Tex Penal Code § 30.05(a)(1) and § 33.02(a). At the suppression hearing, the appellant also alleged that Killian violated other penal provisions, but he did not press those claims on appeal or in his petition for discretionary review, and so we have no occasion to address them.

While Killian could not remember the title of the files at the hearing, she agreed that it was something to the effect of “younger boy sucks older man.”

The record does not clearly reveal exactly what a “forensic copy” is. Whatever it is, it seems to have provided Odom with specific information about Killian’s access to the computer.

On cross-examination, the prosecutor asked the appellant about his instruction to keep the door closed and his motivation behind that instruction:

Q Now, you indicated you told her the bedroom door should remain shut. You never told her she could not go into the bedroom. Is that correct?

A Correct.

Q The idea of keeping the bedroom door shut really had to do about keeping the dog out while she was not there; is that right?

A True.

***

Q So no question you never told Dawn, “Do not go into my bedroom?”

A I never stated – - – I told Dawn to keep the bedroom door shut.

Q And that was in connection with keeping the dog out of there when she wasn’t in there? Yes or no?

A Correct.

***

Q But your recollection now is that you specifically told her, “I don’t want [the dog] in my bedroom?”

A Correct.

***

A The only statement I recall telling her was to please keep my bedroom door shut.

Q In connection with [the dog], right?

A I don’t know if those two statements were made concurrently at the same time.

In response to a question on redirect examination, the appellant indicated that the reason he wanted the door closed was to keep both the dog and Killian out of the bedroom. He was never asked, however, and never offered whether he expressed this motivation to Killian during the tour.

It is unclear from Hubbard’s testimony exactly what kind of file she believed was accessed. Hubbard refers to the file in question as an “AOL CAT file,” a “CAB file,” a “M.C.S.C. CAT” file, or a file consistent with “the computer being asleep and updating itself.” It is also unclear from her testimony whether she believed that the computer was still in sleep mode during this time. The defense attorney inquired about the state of the computer during the time Killian claims she input a compact disk:

Q So your testimony is that this just happened while the computer was asleep?

A Possibly.

Q Possibly?

A Yes.

The suppression hearing concluded on February 26, 2010. The State filed proposed findings of fact and conclusion of law on May 27, 2010. On August 3, 2010, the appellant requested findings. See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). The trial court subsequently adopted the State’s proposed findings and conclusions, which included the following:

3. Dawn Killian provided credible testimony regarding the circumstances of her access to [the appellant's] home, bedroom, computer, and information on that computer.

* * *

8. [The appellant] placed no limits or restrictions on Dawn Killian’s access to his home.

9. Specifically, [the appellant] placed no limitations or restrictions on Dawn Killian’s access to his bedroom.

10. [The appellant] placed no limitations or restrictions on Dawn Killian’s access to his computer.

11. [The appellant] . . . took no steps to protect the information on his computer[.]

12. Prior to leaving his home, [the appellant] showed Dawn Killian around his home, including his bedroom and bathroom.

13. [The appellant] told Dawn Killian to “help yourself to anything” or words of that effect.

Under either provision, Killian violated the Penal Code only if she did not have effective consent. See Tex. Penal Code § 30.05(a) (“A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle without effective consent and the person: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.”); Tex. Penal Code § 33.02(a) (“A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without effective consent of the owner.”).

11. At the conclusion of presentation of evidence at the suppression hearing, counsel for the appellant made his closing argument first, followed by the prosecutor. Without awaiting rebuttal argument from the appellant, the trial court orally denied the motion to suppress. Counsel for the appellant complained that he had not been permitted to rebut, but ultimately yielded with the observation that, “I’m not going to do a useless thing.” The trial court apologized for encroaching, observing that “I thought you were through.” Trial counsel concluded, “That’s fine, Judge.”

Baird, supra, at 358.

Id. at 357-58.

Id.

Tex. R. App. P. 66.3(b). One consideration informing this Court’s decision on whether to grant a petition for discretionary review is “whether a court of appeals has decided an important question of state or federal law that has not been, but should be, settled by the Court of Criminal Appeals.”

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

Id.

State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008).

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007) (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)).

Ross, supra, at 855.

Valtierra, supra, at 447.

Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011).

Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008).

See note 9 ante, Finding of Fact #8.

See note 9, ante, Finding of Fact #13. While this finding of fact, when viewed alone, is somewhat ambiguous as to whether the statement applied to a particular area of the house or the home as a whole, when viewed in the context of the trial court’s other findings, it is reasonable to conclude that the trial court found that the statement applied to the entire house. The trial court deemed Killian’s testimony to be credible. Killian testified that the statement applied to the entire house. She even quotes the appellant at one time saying she could “[h]elp [her]self to everything.” Killian’s testimony, combined with the trial court’s finding that the appellant placed no limits on Killian’s access to his home, support the inference that the trial court implicitly found that the statement applied to the entire home.

26. The record presents ample reason for the trial court to find Killian’s account more credible, including her testimony that the appellant’s invitation to “help herself” was extended more than once and was not limited to the contents of the kitchen. Immediately after accessing the appellant’s computer and finding what looked to her like child pornography, Killian took part in a lengthy Internet “chat room” conversation, which was accessed by the State’s computer expert, downloaded, printed out, and admitted into evidence at the suppression hearing. In it, Killian described the tour that the appellant had given her of the house, which “included directions to the 5 remotes to the tv, the stereo, the security, etc[.] and a general ‘help yourself to anything’ statement.”

Killian then described how she

decided to copy 2 songs from a cd to my phone and ‘woke’ the computer from sleep mode, installed the music disc, completed the transfer, then opened the start menu/my recent documents to right click and remove the 2 songs from the list then delete them from the trash. Both the trash and the my recent documents list are full of video download titles such as ‘emo boyslave,’ ’3 boys of fun, ‘my 10 yr old boyfriend’ (this would be when I throw up).

Killian admitted to a certain paranoia, such as whether she might be accused of downloading the pornography, and wondered whether she should tell her boss, who is a friend of appellant, what she had seen. Then she worried that her boss, who also had a key to appellant’s house, might be accused of downloading the videos. She explained that the situation was

horribly serious. On one hand I have no desire to falsely accuse anyone of downloading childporn (I have seen what being labeled a sex offender can do to persons that you and I wouldn’t consider dangerous) . . . nor deal with all the drama this revelation could initiate (its possible my boss could dislike me for “telling” on his friend). On the other hand, my boss has a boy child, this neighborhood is full of children and this man has had years of access as Big Brother/Eagle/adventure Scout[.]

Numerous “chat room” people respond with advice, virtually all of it recommending that she notify the authorities. Killian bemoaned the situation in which she found herself:

Why did I want to dog sit for money . . . (is fling money for my san diego trip worth this??) I wish I had never wanted to put that music on my phone.

Killian and the chat room participants decided that she must report what she had seen. Killian signed off, saying, “meanwhile I am taking the dog and going to my house[.] [T]his fancy place is creeping me out now. [T]omorrow is going to be a busy tough day.” This chat room conversation is entirely consistent with Killian’s testimony at the suppression hearing.

Appellant’s Brief at 17.

28. Baird, supra, at 357-58.

29. See note 10, ante.

30. Tex. Penal Code § 1.07(19).

31. Tex. Penal Code § 1.07(11).

Ivey v. State, 277 S.W.3d 43, 52 n.51 (Tex. Crim. App. 2009).

33. Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009).

34. Id.

35. Cornet v. State, 359 S.W.3d 217, 222 (Tex. Crim. App. 2012) (plurality opinion); Ex parte Rieck, 144 S.W.3d 510, 512 (Tex. Crim. App. 2004).

36. Tapps, supra.

37. Merriam Webster’s Collegiate Dictionary 56 (10th ed. 1996).

Id. Other dictionaries we have consulted manifest a similar duality of meaning for the word “apparent.” See Black’s Law Dictionary 112 (9th ed. 2009) (“1. Visible; manifest; obvious. 2. Ostensibly; seeming.”); Webster’s Third New International Dictionary Unabridged 102 (2002) (“1: capable of easy perception: as a: readily perceptible to the senses, esp. sight : open to ready observation or full view : unobstructed and unconcealed . . . b: capable of being readily perceived by the sensibilities or understanding as certainly existent or present . . . 2: readily manifest to senses or mind as real or true and supported by credible evidence of genuine existence but possibly distinct from or contrary to reality or truth”).

39. E.g., Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012).

Cornet, supra at 222.

Id.

42. Webster’s, supra, at 69.

Black’s, supra, at 846.

Our construction of “apparent” for purposes of determining the meaning of consent as defined by Section 1.07(11) obviously differs from the meaning of “apparent”in the context of third-party authority to consent to a search for Fourth Amendment purposes. When a police officer obtains consent to conduct a warrantless search from a third party, we refer to that third-party’s seeming authority to consent, though ultimately found invalid, as “apparent” authority to consent. Limon v. State, 340 S.W.3d 753, 756-57 (Tex. Crim. App. 2011); Hubert v. State, 312 S.W.3d 554, 560-62 (Tex. Crim. App. 2010). If the officer reasonably, though mistakenly, believes that the third party was authorized to give consent, then that “apparent” (that is to say, seeming) authority renders the search reasonable for Fourth Amendment purposes. Id. The Fourth Amendment does not demand that police assessment of the situation be invariably accurate–only that it be reasonable. Illinois v Rodriguez, 497 U.S. 177, 184 (1990). For Fourth Amendment purposes, then, it is enough that authority to give consent is reasonably “apparent” under the circumstances, in the sense that there is every indication that such authority exists even if, in reality, it does not. But, for reasons we explain in the text, we do not think the Legislature meant for the word “apparent” in Section 1.07(11) to denote “seeming” for purposes of defining criminal offenses in the Penal Code.

By letter brief following submission of the case, the appellant has called our attention to language from the very recent opinion in Florida v. Jardines, 133 S.Ct. 1409 (2013). There, the United States Supreme Court remarked that “[t]he scope of a license–express or implied–is limited not only to a particular area but also to a specific purpose.” Id. at *5. Nothing that we say today conflicts with this proposition. The Supreme Court’s remark in Jardines came in the context of resolving a question, not of the proper scope of an express or implied consent to search for Fourth Amendment purposes, but of what kind of official conduct constitutes a “search” to begin with. Specifically, the Court was called upon to determine the point at which police deviation from “customary” or “traditional” recognition of public access to the curtilage of a home is sufficient to trigger the reasonableness requirement of the Fourth Amendment. Here, we are not concerned with the scope of “customary” or “traditional” consent to enter a premises, but with the scope of the permission that was conveyed, expressly or impliedly, by the appellant’s particular language and conduct under the circumstances of this particular case. What is the scope of the “particular areas” of his home, and of the “specific purpose” for which she could access those areas, that the appellant communicated, if only implicitly, during his interactions with Killian? Jardines does not speak to this question. In any event, as we have observed in the immediately preceding paragraph, we are here concerned with the extent to which the appellant’s language and conduct communicated consent, not as it has been understood for Fourth Amendment purposes, but as it is properly to be understood as a function of Section 1.07(11) of the Penal Code.

Ivey, supra, at 52 n.51.

I. Background and Procedural History

Applicant was found guilty of murder, and his conviction was affirmed by the court of appeals in 1992. Perez v. State, No. 07-91-00225-CR (Tex. App.–Amarillo Oct. 9, 1992, no pet.). In 2011, almost twenty years later, applicant filed this application for post-conviction relief pursuant to Texas Code of Criminal Procedure Article 11.07. See Tex. Code Crim. Proc. art. 11.07. Applicant contends that he was denied the opportunity to pursue discretionary review in this Court because his appellate counsel failed to notify him of his conviction’s affirmance in the court of appeals until June 1993, by which time the deadline for filing a petition for discretionary review (PDR) had passed. (1) Applicant further contends that appellate counsel’s failure to timely notify him of his conviction’s affirmance constituted ineffective assistance of counsel and that he should now be afforded the opportunity to file an out-of-time PDR. In response, the State invokes the equitable doctrine of laches and urges that applicant be barred from proceeding with his application for post-conviction relief.

The trial court’s findings, which are supported by the record, show that appellate counsel did not provide applicant with notice of the court of appeals’s opinion until after the deadline for filing a PDR, and that applicant had the information necessary to seek an out-of-time PDR as early as 1993 but failed to do so until almost two decades later. The trial court concluded that applicant failed to show that, absent counsel’s conduct, he would have timely filed a PDR.

On the issue of laches, the trial court found that the State would be prejudiced in its ability to retry applicant if he were awarded a new trial through habeas corpus relief. This finding addressed the State’s contention that it has been prejudiced as a result of applicant’s filing delay “because of the passage of time as well as its inability to locate the murder weapon, key eyewitnesses to the shooting and its reasonable expectation that the faded memories of the witnesses will hamper the State’s ability to present a case.” The State further noted that the lead investigator in the case was retired and elderly.

The trial court also found that the State is prejudiced in its ability to respond to the application based on appellate counsel’s “hazy memory of the events” related to the PDR. The trial court’s finding was based on an affidavit from appellate counsel, in which he stated that, aside from his failure to timely communicate the conviction’s affirmance, he had “little independent memory of the events described in applicant’s writ” and had retained no records pertaining to his representation of applicant. Based on his “custom and practice,” counsel stated that he would have informed applicant that he was entitled to “a first appeal as a matter of right, that a second appeal was not a matter of right and that [counsel] would not file a meritless PDR, though [applicant] could.” Counsel further stated that it was his “usual practice and routine” to timely forward a copy of the court of appeals’s opinion to defendants, and that he did “not remember” why applicant did not receive a copy of the opinion or timely notice of the conviction’s affirmance.

This Court ordered briefing on the issue of whether laches could be the basis to deny applicant the opportunity to file an out-of-time PDR based on the State’s claim of prejudice to its ability to retry him. (2) See Ex parte Perez, No. AP-76,800, 2012 WL 1882234, at *1 (Tex. Crim. App. 2012) (not designated for publication). Applicant argues that this Court, in keeping with its current approach, should find a habeas application barred by laches only if the State demonstrates, among other things, precisely how an applicant’s delayed filing has caused the State to be unable to respond to the allegations raised in the application. Applicant urges that the State’s assertion of prejudice to its ability to re-try applicant is irrelevant to the laches inquiry and should be disregarded. The State responds by arguing that this Court should revise its current approach to laches to permit consideration of prejudice to the State’s ability to retry an applicant, and further urges this Court to apply a rebuttable presumption of prejudice when an applicant’s conviction is more than five years old. Although we decline to adopt a rebuttable presumption of prejudice to the State after a specified period of time, we agree with the State that the current approach to laches should be revised to afford courts greater latitude to weigh all equitable considerations in a particular case.

II. Application of Laches in the Post-Conviction Context

A. This Court Has Previously Applied Federal Standard In Analyzing Laches

In Ex parte Carrio, this Court determined that the doctrine of laches was appropriate for application in the habeas corpus context. 992 S.W.2d 486, 487-88 (Tex. Crim. App. 1999) (“[T]he doctrine of laches is a theory which we may, and should, employ in our determination of whether to grant relief in any given 11.07 case.”). The common-law doctrine of laches is defined as

neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. Also, it is the neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done.

Id. at 487 n.2 (citing BLACK’S LAW DICTIONARY 875 (6th ed. 1990)). (3)

In Carrio, we reasoned that laches could be the basis for denial of habeas relief even in the absence of an applicable statute or rule because “laches is an equitable common-law doctrine,” and habeas corpus is an equitable remedy. See id. at 488; Ex parte Gaither, 387 S.W.3d 643, 648 (Tex. Crim. App. 2012); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998) (when claim “is equitable in nature, laches may be raised as a defense to its prosecution”). We found it appropriate to apply laches in the post-conviction context because “equity aids the vigilant and not those who slumber on their rights.” See Carrio, 992 S.W.2d at 487 n.2 (internal quotations omitted). We noted that, “when [] claims are asserted after the passage of many years, attorneys for the defendant and the state have difficulty ascertaining the facts.” Id. at 487 (citing Advisory Committee Notes, former Rule 9(a) of the Rules Governing 28 U.S.C. § 2254 Cases). We further reasoned that it would be inequitable to permit long-delayed claims to proceed because “often the defense attorney has little or no recollection as to what took place and many of the participants in the trial are dead or their whereabouts unknown. Further, the court reporter’s notes may have been lost or destroyed, thus eliminating any exact record of what transpired.” Id. at 487-88.

In holding that we would employ laches to evaluate post-conviction writs of habeas corpus, we cited favorably to the federal courts’ application of laches to federal petitions for habeas corpus. See id. at 487-88. We explained that federal courts “have long recognized” laches in “evaluating post-conviction writs” and have “codified that doctrine in Rule 9(a) of the Rules Governing 28 U.S.C. § 2254 Cases.” See id.; former Rule 9(a) foll. 28 U.S.C. § 2254 (West 1994); Walters v. Scott, 21 F.3d 683, 686 (5th Cir. 1994) (interpreting federal Rule 9(a)); Strahan v. Blackburn, 750 F.2d 438, 441 (5th Cir. 1985) (same). Rule 9(a) was a statutory rule of laches that provided for dismissal of a federal petition for a writ of habeas corpus “if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition . . . .” (4)

The federal laches standard was rooted in the common-law doctrine of laches, but contained several important differences. Under the Fifth Circuit interpretation of Federal Rule 9(a), to invoke laches in response to a habeas petition, a state was required to “(1) make a particularized showing of prejudice, (2) show that the prejudice was caused by the petitioner having filed a late petition, and (3) show that the petitioner has not acted with reasonable diligence as a matter of law.” Carrio, 992 S.W.2d at 488 (citing Walters, 21 F.3d at 686-87). (5) Importantly, the federal laches standard limited the type of prejudice the State could show to “prejudice in its ability to respond to the allegations in the petition.” Id.; Walters, 21 F.3d at 687; Strahan, 750 F.2d at 441. (6) These specific requirements, imposed by the federal courts after implementation of Rule 9(a), stood in stark contrast to the requirements under Texas common law, which permitted a party to make a showing of prejudice based on a “good faith change of position . . . to [its] detriment because of the delay.” Caldwell, 975 S.W.2d at 538 (internal citations and quotations omitted).

Although this Court, in Carrio, did not expressly state that it was adopting the Fifth Circuit laches standard, that standard has, in practice, governed our approach to laches in subsequent post-conviction cases. See Carrio, 992 S.W.2d at 488; In re Steptoe, 132 S.W.3d 434, 435 (Tex. Crim. App. 2004) (Price, J., concurring) (noting that, although it did not expressly adopt federal laches standard, this Court in Carrio “relie[d] almost exclusively on Rule 9(a) and cases interpreting it”). By implicitly adopting the federal laches standard in Carrio, this Court has required the State to go beyond what would have been required to raise laches at common law by (1) requiring the State to make a particularized showing of prejudice (7) and (2) limiting the type of prejudice the State may show to prejudice to its ability to respond to the claims raised in an application. See Carrio, 992 S.W.2d at 487-88.

B. Federal Laches Standard No Longer Appropriate for Texas

This Court’s adoption of the federal laches standard in Carrio was logically sound at the time, but the events of the decade since Carrio demand that we abandon that standard in favor of a more equitable approach. As we explain in three points below, those events show that federal courts no longer employ the federal laches standard we adopted; a significant number of other jurisdictions have rejected that standard; and that standard, as applied in Texas, has proven too rigid to effectively serve as an equitable standard.

First, the federal laches standard is no longer good law. Several years prior to this Court’s adoption of the federal standard, Congress enacted a strict one-year limitations period for federal habeas corpus that has now obviated the need for the laches doctrine in that context. See 28 U.S.C. § 2244(d); Pub. L. 104-132, 110 Stat. 1217, 1220 (Apr. 24, 1996). The enactment of a one-year limitations period was, in part, a congressional reaction to the failure of the federal courts to effectively employ equitable doctrines, such as laches, to bar applicants from seeking habeas corpus relief after lengthy delays. See Steptoe, 132 S.W.3d at 440-44 (Cochran, J., dissenting) (stating it was possible that “federal courts’ failure to apply Rule 9(a) with greater appreciation for the jurisprudential concerns over a flood of stale, meritless writs in the federal courts was partially responsible for what many think was the draconian solution of an absolute statute-of-limitations bar”). The legislative history surrounding the one-year federal limitations period reveals that the statute was enacted to address “the abuse of habeas corpus that results from delayed and repetitive filings” and to “curb the lengthy delays in filing that now often occur . . . while preserving the availability of review when a prisoner diligently pursues state remedies and applies for federal habeas review in a timely manner.” See H.R. Rpt. No. 104-23, at 9 (1995). Although the federal courts no longer employ the Rule 9(a) laches standard in light of Congress’s enactment of a more restrictive one-year limitations period, this Court has continued to apply the federal standard whenever the State raises laches in a post-conviction case.

Second, other states have rejected the federal standard as not current, too narrow, and overly rigid. For example, California rejected the federal standard because it found that standard was “neither current nor controlling.” See In re Douglas, 132 Cal. Rptr. 3d 582, 588 (Cal. App. 4th Dist. 2011) (holding that federal standard “is neither current nor controlling” and that court would instead apply “a broader conception of laches used in California”) (citing In re Clark, 855 P.2d 729, 765 (Cal. 1993)). Similarly, Oklahoma has expressly disavowed reliance on the federal standard. See Thomas v. State, 903 P.2d 328, 332 (Okla. Crim. App. 1995) (federal actual prejudice standard “not the law in Oklahoma”; applicability of laches “necessarily turns on the facts of each particular case”); Paxton v. State, 903 P.2d 325, 327 (Okla. Crim. App. 1995) (noting that federal requirement that state “demonstrate actual prejudice . . . before the doctrine of laches may be triggered is not the law in Oklahoma and we decline to adopt any such requirement”). And Georgia and Kansas have, too. See Flint v. State, 701 S.E.2d 174, 176 (Ga. 2010) (Federal rule “no longer extant” in light of federal limitations period; federal cases interpreting Rule 9(a) not controlling in Georgia); Roach v. State, 7 P.3d 319, 323 (Kan. App. 2000) (Rule 9(a) “held not to be applicable to state habeas proceedings” in Kansas). Although many states have rejected the federal laches standard in favor of other approaches, including restrictive statutes of limitation, this Court has continued to apply that standard. (8)

Third, the federal standard has proven too rigid to serve effectively as an equitable standard. Federal courts found that, under their restrictive interpretation of Rule 9(a), the State faced an almost impossible burden to establish laches, even when an applicant’s delay was “extreme.” See, e.g., Smith v. Jones, 256 F.3d 1135, 1143 n.8 (11th Cir. 2001) (“Our decisions indicate that laches rarely applies even where the delay in filing a petition has been extreme”); Rideau v. Whitley, 237 F.3d 472, 478 (5th Cir. 2000) (“[L]apses of time that affect the state’s ability [to respond], but that do not make it ‘virtually impossible’ for the state to respond, [do not] require dismissal” for laches) (internal quotation omitted); Walters, 21 F.3d at 686 (state seeking dismissal of habeas petition under Rule 9(a) faces “heavy burden”). (9) Under the federal standard, the State’s burden has been impossibly high primarily due to the requirement that the State make a particularized showing of prejudice to its ability to respond to the application. See Ex parte Wolf, 296 S.W.3d 160, 167 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d) (State bears burden of proving “particularized prejudice” to its ability to respond to allegations in habeas application). The particularized prejudice standard has been interpreted to require the State to demonstrate a complete inability to respond to the application. Steptoe, 132 S.W.3d at 435 (Price, J., concurring) (for laches to apply, State must show that it is “unable to respond to the merits of the claim”). Because the federal laches standard has imposed an almost impossible burden of proof on the State, even in cases of excessive delay by applicants, that standard has been ineffective at weeding out stale claims in Texas post-conviction cases (10) and has prevented courts from taking into account the full range of relevant equitable considerations.

As shown by the events of the decade since this Court decided Carrio, the federal standard that we adopted has been abandoned by the federal courts and a significant number of state courts, and has strayed far from the common-law understanding of laches by establishing a burden of proof that has been nearly impossible for the State to satisfy. We, therefore, abandon that formulaic standard in favor of the more flexible common-law approach to laches in the post-conviction context.

III. Common-Law Standard Better Comports With Equitable Considerations

As we have described above, the events of the last decade require that we abandon the aspect of Carrio that approved of Texas’s application of the federal laches standard. SeeCarrio, 992 S.W.2d at 488. We, however, reaffirm Carrio‘s holding that Texas courts may apply the common-law doctrine of laches in determining whether to grant habeas relief. See id. We, therefore, alter the holding of Carrio only to the extent that we now apply Texas common law, rather than the federal standard, to define the parameters of the doctrine of laches in Texas habeas corpus cases. See id.

Consistent with the common-law doctrine of laches, going forward, we will (1) no longer require the State to make a “particularized showing of prejudice” so that courts may more broadly consider material prejudice resulting from delay, and (2) expand the definition of prejudice under the existing laches doctrine to permit consideration of anything that places the State in a less favorable position, including prejudice to the State’s ability to retry a defendant, so that a court may consider the totality of the circumstances in deciding whether to grant equitable relief. See Caldwell, 975 S.W.2d at 538 (common-law definition of prejudice in laches context is “good faith change of position by another to his detriment because of the delay”). (11)

Our revised approach will permit courts to more broadly consider the diminished memories of trial participants and the diminished availability of the State’s evidence, both of which may often be said to occur beyond five years after a conviction becomes final. See, e.g., Steptoe, 132 S.W.3d at 437-39 (Cochran, J., dissenting) (advocating adoption of rebuttable presumption of prejudice to State five years after conviction in light of social and administrative costs associated with retrial); McCray v. Florida, 699 So. 2d 1366,1368 (Fla. 1997) (applying presumption of prejudice in Florida post-conviction cases after five years, explaining that it was “obvious that the state has been manifestly prejudiced and no reason for an extraordinary delay has been provided”). (13)

Our revised approach under the broadened prejudice standard is consistent with the principle that the writ of habeas corpus is an extraordinary remedy, any grant of which must be underscored by elements of fairness and equity. See, e.g., Ex parte Emmons, 660 S.W.2d 106, 110 (Tex. Crim. App. 1983); Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994). (14) This revised standard will permit courts to engage in a case-by-case inquiry to determine whether equitable relief is warranted in light of the particular circumstances surrounding each case. See, e.g., Holland v. Florida, 130 S.Ct. 2549, 2563 (2010) (courts of equity must take account of “specific circumstances, often hard to predict in advance, [that] could warrant special treatment in an appropriate case”); Baggett v. Bullitt, 377 U.S. 360, 375 (1964) (“exercise of a court’s equity powers . . . must be made on a case-by-case basis”); Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) (“Equity eschews mechanical rules; it depends on flexibility.”). It will also provide the flexibility necessary for balancing equities to determine whether laches should apply. See, e.g., Baxter v. Estelle, 614 F.2d 1030, 1033-34 (5th Cir. 1980) (“Laches is an equitable doctrine. Its application must be considered on the facts of each case, based on the reasonableness of the party’s behavior under the circumstances.”); Esso Int’l, Inc. v. SS Captain John, 443 F.2d 1144, 1150 (5th Cir. 1971) (applicability of laches to be determined “after weighing the equities as they appear from the facts of each case”). (15)

Similar to a court’s review of a claim that a defendant’s right to a speedy trial has been violated, it may be proper to consider, among all relevant circumstances, factors such as the length of the applicant’s delay in filing the application, the reasons for the delay, and the degree and type of prejudice resulting from the delay. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). As we have observed with respect to speedy-trial complaints, “[n]o single factor is necessary or sufficient.” Id. Instead, courts must “engage in a difficult and sensitive balancing process” that takes into account the parties’ overall conduct. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). In considering whether prejudice has been shown, a court may draw reasonable inferences from the circumstantial evidence to determine whether excessive delay has likely compromised the reliability of a retrial. Id. (in speedy-trial context, “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove, or, for that matter, identify”) (citing Doggett v. United States, 505 U.S. 647, 655 (1992)). If prejudice to the State is shown, a court must then weigh that prejudice against any equitable considerations that militate in favor of granting habeas relief.

With respect to the degree of proof required, the extent of the prejudice the State must show bears an inverse relationship to the length of the applicant’s delay. This “sliding scale” approach is analogous to the flexible burden of proof applicable to speedy-trial claims. In that context, this Court has observed that the defendant’s burden of proving a speedy-trial violation varies inversely with the State’s degree of culpability and the length of the delay. See Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (“[T]he greater the State’s bad faith or official negligence and the longer its actions delay a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial.”). Here, similarly, the longer an applicant delays filing his application, and particularly when an applicant delays filing for much more than five years after conclusion of direct appeals, the less evidence the State must put forth in order to demonstrate prejudice. The rationale for this sliding-scale approach is based on the common-sense understanding that the longer a case has been delayed, the more likely it is that the reliability of a retrial has been compromised. See Dragoo, 96 S.W.3d at 314; Doggett, 505 U.S. at 655.

Furthermore, our revised approach comports with this Court’s prior statements that, in determining whether habeas relief is warranted, we must afford adequate weight to the State’s broad interest in the finality of a long-standing conviction. See Ex parte Moreno, 245 S.W.3d 419, 429 (Tex. Crim. App. 2008) (State possesses legitimate interest in “the repose and finality of its convictions”); Ex parte Woods, 296 S.W.3d 587, 613 n.41 (Tex. Crim. App. 2009) (noting that courts must “seek through the writ of habeas corpus to balance fundamental fairness to criminal defendants and the State’s legitimate interest in the finality of litigation”). By expanding the scope of the prejudice inquiry, we further ensure that courts are permitted to consider the State’s and society’s interest in the finality of a conviction in determining whether laches should apply. (16)

Aside from the changes discussed above, we leave intact the equitable principles that permit a court to reject the State’s reliance on laches when the record shows that

See, e.g., Ex parte Scott, 190 S.W.3d 672, 675 (Tex. Crim. App. 2006) (Cochran, J., concurring) (suggesting that equitable relief might be warranted notwithstanding applicant’s delay in seeking habeas relief where applicant shows that conviction was wrongly affirmed by court of appeals); Ex parte Blue, 230 S.W.3d 151, 170 (Tex. Crim. App. 2007) (Keller, P.J., concurring) (habeas courts possess “equitable discretion” to see that “federal constitutional errors do not result in the incarceration of innocent persons”) (quoting Herrera v. Collins, 506 U.S. 390, 404-05 (1990)).

Given the nature of habeas corpus relief, it is reasonable to permit a court to consider whether an applicant has slept on his rights and, if he has, how that has affected the State, and whether, in light of the delay, it is fair and just to grant him relief. In cases in which an applicant’s delay has been excessive, in general, it is more likely that the State will be able to show it has been prejudiced by the delay and that an applicant will face a difficult task to show why his application should not be barred by laches. See Smith v. Caterpillar, Inc., 338 F.3d 730, 733 (7th Cir. 2003) (laches doctrine applied on a “sliding scale”: the longer the delay, the less prejudice must be shown). We, however, also reaffirm that “we have no desire to impose upon defendants the requirement that claims for relief be asserted within a specified period of time,” but will continue to apply laches as a bar to relief when an applicant’s unreasonable delay has prejudiced the State, thereby rendering consideration of his claim inequitable. See Carrio, 992 S.W.2d at 487 (citing Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App. 1989)). Though proof of mere passage of time will continue to be insufficient to raise laches, we will weigh all relevant equitable considerations in determining whether a long-delayed application for post-conviction relief should be barred by laches.

III. Conclusion

In light of our revised approach to the doctrine of laches, and because neither applicant nor the State has had the benefit of this opinion, we remand this case to the trial court so that the parties may be afforded the opportunity to produce additional evidence.

Delivered: May 8, 2013

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1. “[A]ppellate counsel has a duty to notify the appellant of the actions of the appellate court [on direct appeal].” Ex parte Jarrett, 891 S.W.2d 935, 940 (Tex. Crim. App. 1994) (holding that appellate counsel was under obligation, in 1991, to advise applicant regarding right to seek discretionary review and to give notice of appellate court opinion), overruled in part by Ex parte Wilson, 956 S.W.2d 25, 26-27 (Tex. Crim. App. 1997) (reaffirming counsel’s obligation to inform defendant of conviction’s affirmance and right to seek discretionary review, but rejecting aspect of Jarrett that required counsel to express “professional judgment about possible grounds for review” and “advantages and disadvantages of further review”). Because an appellant has a right to prepare and file a pro se petition for discretionary review, denial or abridgement of this right through the “misfeasance or nonfeasance of counsel” constitutes ineffective assistance of counsel. Id. at 939-40. This rule stems from this Court’s 1982 opinion in Ayala v. State, in which we stated that, “[i]f an appointed counsel deprived the client of his right to apply, pro se, for discretionary review . . . there might be a due process violation.” 633 S.W.2d 526, 528 n.4 (Tex. Crim. App. 1982); Ex parte Fontenot, 3 S.W.3d 32, 34 (Tex. Crim. App. 1999) (recognizing Ayala as “seminal decision” establishing that counsel was ineffective if “through either an act of commission or omission, he caused the deprivation of [the] right” to pursue discretionary review). Thus, to the extent that counsel failed to timely inform applicant of the court of appeals’s decision or failed to provide a copy of the opinion, such an omission would have rendered counsel constitutionally ineffective at the time of the conviction’s affirmance in 1992. See Fontenot, 3 S.W.3d at 34 (holding that ineffective assistance claim based on counsel’s failure to timely advise an applicant of his right to seek discretionary review “could have been reasonably formulated” under Ayala as early as 1982).

2. Specifically, we asked “whether the State’s showing that it would be prejudiced in its ability to re-try Applicant if this Court were to grant relief on a petition for discretionary review is sufficient to invoke the doctrine of laches and deny Applicant the opportunity to file an out-of-time petition for discretionary review. If a showing of prejudice in the State’s ability to re-try a case is sufficient, then under what circumstances is it required, and how may such a showing be rebutted by the applicant?” Ex parte Perez, No. AP-76,800, 2012 WL 1882234, at *1 (Tex. Crim. App. 2012) (not designated for publication).

3. In Texas, laches has been described as “an equitable remedy that prevents a plaintiff from asserting a claim due to lapse of time.” Green v. Parrack, 974 S.W.2d 200, 204 (Tex. App.–San Antonio 1998, no pet.); see also Regent Intl. Hotels, Ltd. v. Las Colinas Hotels Corp., 704 S.W.2d 101, 106 (Tex. App.–Dallas 1985, no writ) (“Generally, laches is a creature of equity. It is principally a question of whether it is inequitable to permit a claim to be enforced if the delay in asserting the claim has worked an injury to the opposing party.”). The Texas common-law doctrine of laches typically requires proof by a preponderance of the evidence of two elements: unreasonable delay by the opposing party and prejudice resulting from the delay. See, e.g., Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998) (“Two essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them; and (2) a good faith change of position by another to his detriment because of the delay.”) (internal citations and quotations omitted); Gulf, Colorado, & Santa Fe Railway Co. v. McBride, 322 S.W.2d 492, 500 (Tex. 1959) (describing laches as “unreasonable delay which has worked injury to another person”; laches must be established by preponderance of evidence).

4. Federal Rule 9(a) read in its entirety,

Delayed Petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he or she could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

See Former Rule 9(a) foll. 28 U.S.C. § 2254 (deleted 2004). Rule 9(a) was enacted in 1976 and governed dismissal of delayed applications for federal habeas corpus until 1996, when a strict one-year statute of limitations was enacted. See 28 U.S.C. § 2244(d) (one-year statute of limitations applies to all federal habeas corpus petitions).

5. Procedurally, under the Fifth Circuit laches standard, the State was required to initially make a “particularized showing of prejudice” with respect to the “state’s ability to respond to the petition.” Strahan v. Blackburn, 750 F.2d 438, 441 (5th Cir. 1985) (citing former Rule 9(a) foll. 28 U.S.C.§ 2254). The State was further required to demonstrate that the applicant’s delay was unreasonable as a matter of law and that the resulting “prejudice was caused by the delay.” Id. Causation in this context meant that the State bore the “burden of proving that [petitioner's] delay in filing his habeas petition caused [specific] sources of evidence to be lost.” Walters v. Scott, 21 F.3d 683, 688 (5th Cir. 1994). “At a minimum, this requires the state to establish that if [petitioner] had filed his habeas petition at some earlier time, the evidence the state says it has lost would have been available.” Id. Delay alone was inadequate and any “impact that delay may have had on a possible retrial is not to be considered.” Strahan, 750 F.2d at 441. If the State met these requirements, only then did the burden “shift[] to the petitioner to negate prejudice or show that the delay ‘is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.’” Id.

6. To meet the requirement that it make a particularized showing of prejudice in its ability to respond to the allegations, the State could “not merely allege prejudicial facts,” but was required to “offer concrete proof of the allegations.” Rideau v. Whitley, 237 F.3d 472, 482 (5th Cir. 2000). With respect to missing witnesses or an unavailable trial judge, the State was required to show, “as a factor establishing prejudice,” that “there are no other sources from which the state can obtain the requisite information.” Walters, 21 F.3d at 688 n.18 (citing McDonnell v. Estelle, 666 F.2d 246, 253 (5th Cir. 1982)). And with respect to missing trial records, the State was required to show that the “substance of those records is unavailable from other sources.” Id. at 688. Applying this standard in Walters, the Fifth Circuit held that the State had not met its burden of showing prejudice, notwithstanding the death of the court reporter, unavailable court records, and an affidavit from counsel stating that he had no memory of the circumstances surrounding petitioner’s ineffective-assistance claim. Id. at 687-88 (rejecting application of laches after nine-year delay). Similarly, in Rideau, the Fifth Circuit held that the State had not shown adequate prejudice to its ability to respond to petitioner’s claim of racially discriminatory jury selection, in spite of missing documentary evidence and unavailability of witnesses. 237 F.3d at 483 (rejecting application of laches after 30-year delay; because State failed to make adequate prima facie showing of prejudice, “unnecessary” for court to determine whether petitioner’s delay was unreasonable).

7. In adopting the term from the federal court’s implementation of Rule 9, this Court did not define how the State would make “a particularized showing of prejudice” in Carrio. See Ex parte Carrio, 992 S.W.2d 486, 487-88 (Tex. Crim. App. 1999). The Fourteenth Court of Appeals described the State’s burden of making such a particularized showing of prejudice as a “causal connection.” See Ex parte Wolf, 296 S.W.3d 160, 168 (Tex. App.– Houston [14th Dist.] 2009, pet. ref’d) (“[The] record contains no evidence of a causal connection between [counsel's] alleged memory failures and Wolf’s alleged failure to act with reasonable diligence as a matter of law. The State did not make a particularized showing of prejudice to its ability to respond to the allegations.”). The term “particularized prejudice” as used in the context of speedy-trial complaints means that a party must prove with specificity how the complained-of delay has actually impacted him. See Dokter v. State, 281 S.W.3d 152, 160 (Tex. App.– Texarkana 2009, no pet.). For example, courts assessing speedy-trial complaints have required a defendant to show more than the fact that the State’s delay caused witnesses to be missing; a defendant must additionally show the materiality of the missing testimony and establish how the absence of such testimony would impact his defense. Prihoda v. State, 352 S.W.3d 796, 806 (Tex. App. — San Antonio 2011, pet. ref’d).

8. Over half of all states now employ statutes of limitation for state post-conviction relief, thus making the equitable doctrine of laches largely inapplicable in those states. See, e.g., Ala. Rule Crim. Proc. 32.2(c) (Alabama, one-year statute of limitations); Alaska Stat. § 12.72.020 (Alaska, 18 months); Fl. R. Crim. Proc. 3.850 (Florida, two years); Ga. Code Ann. 9-14-42 (Georgia, four years); Idaho Code § 19-4902(a) (Idaho, one year); Ill. Code Crim. Proc. Art. 122 (Illinois, three years); Kan. Stat. 60-1507 (Kansas, one year); Md. Code Crim. Proc. § 7-103 (Maryland, ten years); Nev. Rev. Stat. § 34.726(1) (Nevada, one year); Tenn. Code Ann. § 40-30-102(b) (Tennessee, one year); Rev. Code Wash. § 10.73.090 (Washington, one year).

9. As a result of the difficulties inherent in meeting the former federal laches standard, applicants were frequently permitted to seek federal habeas relief even after lengthy delays. See, e.g, Bedford v. Attorney General of Alabama, 934 F.2d 295, 299-300 (11th Cir. 1991) (applying federal laches doctrine, finding no laches after 19-year filing delay); Campas v. Zimmerman, 876 F.2d 318, 324 (3d Cir. 1989) (same, regarding 17-year delay); Hannon v. Maschner, 845 F.2d 1553, 1557 (10th Cir. 1988) (same, regarding 25-year delay); Buchanon v. Mintzes, 734 F.2d 274, 281-82 (6th Cir. 1984) (same, regarding 23-year delay); Sutton v. Lash, 576 F.2d 738, 744 (7th Cir. 1978) (same, regarding 21-year delay).

10. We cite the following unpublished cases as examples, recognizing that they are non-binding and non-precedential. See, e.g., Ex parte Waites, No. WR-71,327-01, 2009 WL 252355, at *1 (Tex. Crim. App. 2009) (stating that, in spite of applicant’s 16-year delay in seeking post-conviction relief, no laches; although prosecutors and judge from applicant’s trial were deceased, habeas record “does not contain anything to directly support [the] assertion of prejudice”); Ex parte Like, No. WR-70,021-01, 2008 WL 2677329, at *1 (Tex. Crim. App. 2008) (stating that, in spite of 24-year delay, State’s “conclusory statement” that it was prejudiced in ability to respond insufficient; “[a]bsent a particularized showing of how Applicant’s delay has prejudiced the State’s ability to respond to his claims, the doctrine of laches should not bar review” of applicant’s claim that plea was involuntary); Ex parte Eliff, No. WR-64,223-01, 2006 WL 1545499, at *1 (Tex. Crim. App. 2006) (stating that, in spite of 23-year delay in seeking habeas, no laches; although one member of prosecution team had died, other prosecutor was available to testify regarding applicant’s Brady claim); Ex parte Scott, No. WR-66,090-01, 2006 WL 3308748, at *1 (Tex. Crim. App. 2006) (rejecting laches defense after five-year filing delay; notwithstanding counsel’s death, State failed to show that prejudice to its ability to respond to ineffective assistance claim was caused by delay); see also Wolf, 296 S.W.3d at 168 (rejecting laches defense after five-year filing delay; while applicant’s attorney had destroyed all case files pertaining to representation of applicant and claimed he had no independent memory of relevant events, “the record contains no evidence of a causal connection between [counsel's] memory failures and [applicant's] alleged failure to act with reasonable diligence”).

11. Other states, applying their own common-law doctrine of laches, have permitted a court to consider whether the State will be prejudiced in its ability to retry an applicant. See, e.g., Raso v. Wall, 884 A.2d 391, 396 n.14 (R.I. 2005) (applying common-law doctrine of laches to applications for post-conviction relief and permitting consideration of State’s ability to retry the case); Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) (same, noting that “prejudice exists when the unreasonable delay operates to materially diminish a reasonable likelihood of successful re-prosecution”); (12)

12. See Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) (To raise laches defense state bears burden of proving “that the petitioner unreasonably delayed seeking post-conviction relief and that the State has been prejudiced by the delay.”). [probably delete later] ” ” ” – ” ” ”

13. We do not identify any precise period of time after which laches necessarily applies, although we recognize that delays of more than five years may generally be considered unreasonable in the absence of any justification for the delay. See, e.g., Ex parte Florentino, 206 S.W.3d 124, 126 (Tex. Crim. App. 2006) (Cochran, J., concurring) (“Eight years elapsed between the time applicant’s conviction was affirmed and the time at which he may file a PDR. Normally, laches should bar any relief on this claim.”). We, however, recognize that, as a result of the statutory bar on subsequent habeas applications, applicants are limited to “one bite at the apple,” and, as such, applicants may be motivated to delay filing in order to fully develop all potentially meritorious claims for consideration by the Court. See Carrio, 992 S.W.2d at 491 n.5 (Meyers, J., dissenting) (noting that applicants are “placed in the awkward position of determining when they have waited long enough to ensure that all claims are included, but not so long as to invoke the application of laches”). Because of the tension between laches and the bar on subsequent writs, we do not foresee that the doctrine of laches will ordinarily apply to any application filed within five years after the exhaustion of direct appeals.

14. Because the State raised laches in response to this application, we do not reach the question of whether the State must plead laches for a court to consider it in determining whether to grant equitable relief. We do observe, however, that any pleadings invoking laches in the habeas context need only give notice to the opposing side and need not rise to the level of a prima facie showing of particularized prejudice, as was required under the federal courts’ interpretation of Rule 9(a). See Walters, 21 F.3d at 686; Strahan, 750 F.2d at 441.

15. Our altered approach is consistent with other states that, in applying their own common law, have recognized that the laches inquiry must be flexible and made in light of the particular circumstances of the case. See, e.g., Raso, 884 A.2d at 395-96 (stating that laches inquiry is flexible and any “determination must be made in light of the circumstances of the particular case”).

16. The dissenting opinion suggests that, at this stage, we need not consider the State’s ability to retry a case because that can be done later. But there will never be a later time. If, in granting an application for a writ of habeas corpus, an appellate court returns a case to a trial court for retrial, a trial court has no authority to disregard the directive by determining that the retrial would be barred by laches. Specific to the issue of out-of-time PDRs, the dissenting opinion suggests that we should grant leave to file an out-of-time PDR and decide the laches issue only if we later decide on discretionary review that applicant (now turned appellant) is entitled to relief. Such an approach would not only overlook the State’s properly raised laches argument here, but it would also overlook the fact that this Court’s decision to grant an out-of-time PDR is a procedurally significant one that restores certain rights to an appellant. See Mestas v. State, 214 S.W.3d 1, 4 (Tex. Crim. App. 2007) (effect of granting out-of-time appeal is that it “restores the defendant” to position he was in prior to deprivation of right of appeal).

The Court of Appeals in the instant case did not have the benefit of our opinion in Ex parte De Los Reyes. Therefore, we grant the State’s petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of Ex parte De Los Reyes.

Delivered: April 24, 2013

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1. As an appeal from a ruling on a writ of habeas corpus, the style of the case should be Ex parte Enyong.

I.

Officer Gabriel Candia (4) of the El Paso Police Department was on patrol with his partner one night when he received a domestic-violence dispatch call at 2:35 a.m. Officer Candia responded to that call and sped southbound on Zaragoza Street. Despite his high rate of speed and running of a red light, Officer Candia did not turn on his emergency lights or siren. Meanwhile, Mr. Duran was driving northbound on Zaragoza, and he made a left turn in front of Officer Candia. The officer hit his brakes and, from the far-left lane, made a right turn onto Saul Kleinfeld Drive to follow Mr. Duran. As Officer Candia was completing his turn, Mr. Duran’s tire briefly crossed the center yellow line on Saul Kleinfeld. Two seconds later, Officer Candia turned on his emergency lights and siren to make a traffic stop. After investigating, Officer Candia arrested Mr. Duran for DWI.

At the suppression hearing, Officer Candia testified that he believed Mr. Duran failed to yield the right-of-way when making the left turn. He said, “What I felt he did was to make the turn . . . in such a manner that made me decelerate and, as a matter of fact, I recall hitting the brakes. At that point it caught my attention obviously.” So Officer Candia “proceeded to make a right turn [and] follow the vehicle.” He stated, “What caught my attention then was that I noticed that the vehicle had crossed into-crossed the double yellow line.”

When asked on cross-examination exactly when he decided to stop Mr. Duran, Officer Candia responded, “Once I saw that he failed to yield the right-of-way to me, and again when I saw him going into on-coming traffic, that is when I determined to make the stop[.]” Officer Candia agreed that he made “an important decision” to pull away from the domestic-violence dispatch call to turn right and stop Mr. Duran instead.

After the State rested, Mr. Duran called Roy Davis, a former police commander, who testified that a car turning left generally must yield to an oncoming car, but that is not the case if the oncoming car is exceeding the speed limit. In such cases, the speeding car has lost the right-of-way. Based on a review of the DVD recording of the stop, Mr. Davis determined that Officer Candia was traveling at 60.5 m.p.h. in a 45 m.p.h. zone. (5) Based on his viewing of the DVD, Mr. Davis concluded that “the officer’s action clearly shows that the decision [to stop Mr. Duran] was made when he made the turn behind the defendant.”

After hearing the testimony and reviewing the DVD recording of the traffic stop, the trial judge made the following pertinent findings of fact:

7. After the Defendant made his left turn, his tires briefly drifted over the center stripe. There was no oncoming traffic and no danger associated with that event.

8. The Court finds that Officer Candia most probably did not even see the center stripe violation because he did not mention it in his report.

9. In any event, the center stripe violation played no part in Officer Candia’s decision to stop the Defendant.

10. The Court finds it to be totally beyond all credibility to assume that an officer, while speeding and running red lights to respond to an assault family violence call, would abandon that call, turn right from the far left lane and pull up behind a driver (who at that time committed no infractions) just to see if he might then commit one.

11. The Court finds that Officer Candia made a clear and unconditional decision to stop the Defendant solely on the basis of what Officer Candia erroneously believed to be an unlawful left turn. This is what Officer Candia wrote in his report (which made no mention of any center stripe violation) and is the only scenario which could conceivably justify abandoning an assault family violence call.

12. Officer Candia was wrong in his opinion about the Defendant’s turn. The turn was not unlawful in any respect. Indeed, the State admits that Defendant’s turn was lawful. (6)

Concluding that Officer Candia “made this stop solely on the basis of [Mr. Duran's] left turn,” the trial judge granted the motion to suppress.

The State appealed, arguing that, because the DVD “clearly shows” that Mr. Duran’s tire crossed the double-yellow line while Officer Candia was behind him, the reasonable-suspicion requirement for a traffic stop was met. The court of appeals agreed. It explained that the reasonable-suspicion determination uses an objective standard and the “DVD recording provides an objective justification for the stop.” (7) It reversed the trial judge’s ruling because he had focused on Officer Candia’s “subjective reasons for effectuating the stop.” (8)

II.

A.

An officer must have reasonable suspicion that some crime was, or is about to be, committed before he may make a traffic stop. (9) Critical to that reasonable-suspicion analysis is whether the stop is supported by “specific and articulable facts” at its very inception. (10) The almost exclusive inquiry appropriate to determining the lawfulness of a traffic stop is whether the officer had “a pre-existing sufficient quantum of evidence to justify the stop.” (11)

In determining whether an officer is justified in making a Terry stop, courts use an objective standard: Would a reasonable officer in the same situation believe a crime had been or was being committed? This objective standard requires reviewing courts to place themselves in the shoes of the officer at the time of the inception of the stop–considering only the information actually known by or available to the officer at that time. (12) The court then asks, “[W]ould the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate.” (13)

Normally, this inquiry “presents no significant problem, for most traffic stops are made based upon the direct observations of unambiguous conduct or circumstances by the stopping officer.” (14) But sometimes an issue arises as to what the officer actually saw or knew at the time that he made a traffic stop.

Information that the officer either acquired or noticed after a detention or arrest cannot be considered. (15) A detention is either good or bad at the moment it starts. For example, a police officer who stops a driver for speeding and later discovers that he was wrong about that fact, cannot justify his stop by noting that the driver was also not wearing a seat belt if he had not seen that violation before the stop. And that same officer cannot justify his bad stop for speeding by noting that a DVD of the stop shows that the car had a faulty tail light if the officer had not noticed the broken light before the stop. A post-hoc rationalization for a traffic stop cannot be made on the basis of information learned personally or acquired from other officers after the stop.

On the other hand, if the officer did, in fact, see that the driver was not wearing a seat belt before the stop, then that known fact would support probable cause to stop the driver even though that was not the officer’s subjective rationale for the stop. (16) If the facts that the officer knows “at the inception of the detention” support a finding of reasonable suspicion or probable cause to conduct a traffic stop, then it is irrelevant that the officer subjectively decided to stop the driver for a bad reason. (17) A good reason did exist, and the officer knew of that good reason at the time he made the stop.

B.

Appellate courts afford almost total deference to the trial judge’s determination of facts (if those facts are supported by the record) when they review a suppression ruling. (18) That same deferential standard of review “applies to a trial court’s determination of historical facts [even] when that determination is based on a videotape recording admitted into evidence at a suppression hearing.” (19) Although appellate courts may review de novo “indisputable visual evidence” contained in a videotape, (20) the appellate court must defer to the trial judge’s factual finding on whether a witness actually saw what was depicted on a videotape or heard what was said during a recorded conversation. (21)

Appellate courts view the evidence in the light most favorable to the trial judge’s ruling-whether he grants or denies the motion. (22) The winning side is afforded the “strongest legitimate view of the evidence” as well as all reasonable inferences that can be derived from it. (23) We review a trial judge’s application of search and seizure law to the facts de novo, and will affirm his ruling if the record reasonably supports it and it is correct on any theory of law applicable to the case. (24)

III.

The sole question in this case is a simple factual one: Did Officer Candia actually see Mr. Duran’s “center stripe violation” before he detained him? The trial judge decides that fact. The court of appeals does not. We do not. And appellate courts must view the trial judge’s factual findings in the light most favorable to his ultimate conclusion.

After hearing the witnesses and reviewing the DVD, the trial judge determined that Mr. Duran’s center-stripe violation “played no part” in Officer Candia’s decision to initiate a traffic stop. The trial judge further found that Officer Candia “most probably” did not even see the violation. By mentioning it twice in two separate findings, the trial judge gave particular significance to the fact that Officer Candia never mentioned the “center stripe violation” in his offense report. (25) The totality of the trial judge’s findings support a reasonable conclusion that the trial judge did not believe that Officer Candia saw the center-stripe violation before detaining Mr. Duran. The trial judge reasonably could have concluded that Officer Candia never saw that event until he watched the DVD before testifying.

The court of appeals, however, did not give the trial judge’s factual findings any deference because none of them–considered piecemeal–reflected a specific credibility determination. (26) The court of appeals also reasoned that the trial judge did not need to make a credibility judgment because the DVD showed that Mr. Duran’s tires did cross the yellow line. (27) Considering the finding that Officer Candia “most probably did not even see the center stripe violation because he did not mention it in his report,” the court of appeals stated, “[i]n practical effect, the qualifier ‘most probably’ renders this fact finding meaningless[.]“ (28)

The court of appeals then concluded that the trial judge’s ruling was not based on a credibility determination but was the result of the application of an incorrect, subjective standard. (29) Reviewing the case de novo, the court of appeals reversed the trial judge’s decision to grant the motion to suppress because the DVD showed that Mr. Duran’s car wheels did briefly cross the double yellow line.

But, in this case, the DVD supports the very real possibility that Officer Candia did not actually see Mr. Duran’s “center stripe violation” before he initiated the stop two seconds later, as he had not even completed his own right-hand turn from the left-hand lane when it occurred. The trial judge could reasonably infer that Officer Candia was paying attention to his own safe braking and turning, rather than being attuned to the camera’s view of Mr. Duran’s tire.

The question of whether an officer has reasonable suspicion to detain an individual for further investigation is determined from the facts and circumstances actually known to the officer at the time of the detention-what he saw, heard, smelled, tasted, touched, or felt-not what that officer could have or should have known. (30) The standard is not what an omniscient officer would have seen, but rather what a reasonable officer would have done with what he actually did see. Here, the trial judge was entitled to disbelieve Officer Candia’s testimony that he made the stop after seeing the center stripe violation. (31)

The State points to two cases to support the court of appeals’s de novo review in this case. In both cases, we disregarded fact findings that were contradicted by video recordings. In Carmouche v. State, (32) we held that the record did not support the trial judge’s implicit finding of “clear and convincing” consent to search. (33) The video in Carmouche showed the defendant pulled over on the side of a darkened highway, closely surrounded by four police officers who had him spread-eagled beside his car, with one officer reaching for the crotch area of his pants when he allegedly gave consent. (34) And in Miller v. State, (35) we disregarded some of the trial judge’s findings because they were contradicted by events recorded by police-car cameras and body microphones. (36) But this case is not like Carmouche or Miller. Here, the court of appeals failed to give “almost total deference” to the trial judge’s implied fact finding that Officer Candia did not see the center stripe violation-a finding that is based on an evaluation of credibility, not one that is contradicted by “indisputable visual evidence.”

As we have recently reiterated, “a question ‘turns’ on an evaluation of credibility and demeanor ‘when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue.’” (37)

In this case, the entire issue of reasonable suspicion or probable cause to stop Mr. Duran depends upon the single factual issue of whether Officer Candia did or did not see the “center stripe” violation before he initiated the detention. That factual finding depends entirely upon the trial judge’s credibility assessment of Officer Candia’s testimony concerning that specific fact.

The State is correct that there is “indisputable visual evidence” that the center stripe violation occurred before Officer Candia stopped Mr. Duran. But there is no indisputable visual evidence that Officer Candia saw that violation. And that is what matters. (38) Because the record supports the trial judge’s conclusion-based upon the totality of his factual findings-that Officer Candia did not see the “center stripe violation,” and that he stopped Mr. Duran solely on the basis of his left-hand turn in front of the speeding patrol car, (39) we uphold the trial court’s ruling.

We therefore reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

Delivered: April 17, 2013

Publish

1. State v. Duran, No. 08-10-00365-CR, 2012 WL 983188, *4-5 (Tex. App.–El Paso March 21, 2012) (not designated for publication).

2. We granted the following three grounds for review:

1. Did the court of appeals err as a matter of federal law in ruling that an objective basis for the traffic stop can arise after a traffic stop has been initiated, or must probable cause/reasonable suspicion exist before the traffic stop is initiated?

2. Did the court of appeals err in substituting its findings of fact for those of the trial court, which were based on reasonable inferences from the testimony adduced at the suppression hearing, or was the court of appeals free to ignore these reasonable inferences?

3. Was it proper for the court of appeals to supply material facts to its Opinion in deciding that the trial court had erred in granting suppression relief in Petitioner’s case, or should it have remanded the case so that these material facts could first be decided by the trial court below before deciding the suppression matter presented?

We resolve this case under the second issue, and therefore dismiss the first and third issues.

3. See Bonds v. State, ___ S.W. 3d ___, 2013 WL 1136522, *4 (Tex. Crim. App. March 20, 2013).

4. The court reporter spelled Officer Candia’s name as “Candi,” but, as the State notes, the officer wrote his name as “Candia” on his complaint affidavit, and the trial judge used the name “Candia” as well. We shall adopt the officer’s spelling of his name.

5. The State later stipulated to the legality of Mr. Duran’s left turn.

6. The trial judge drafted his own findings of fact, rather than adopting those proposed by the defense.

7. Duran, 2012 WL 983188, at *5.

8. Id.

9. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing Terry v. Ohio, 392 U.S. 1 (1968)).

10. Terry, 392 U.S. at 21; United States v. Sharpe, 470 U.S. 675, 675-76 (1985) (applying Terry to traffic stop; the reasonableness of an investigative traffic stop turns on “‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’” ); Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011) (“To justify further investigation, the state must show that, at the time of the detention, the officer had specific, articulable facts that established reasonable suspicion.”).

11. 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 472-73 (5th ed. 2012).

12. Martinez, 348 S.W.3d at 925 (officer lacked reasonable suspicion for investigatory detention of pickup truck driven by defendant based on an anonymous caller’s report that a pickup truck of the same make and color had picked up two bicycles; “Before he approached the truck after the stop, Officer Hurley did not see any bicycles in the bed of appellant’s truck, nor did he have any other reason to stop the truck. The specific, articulable, corroborated facts known by the officer at the time of the stop were minimal.”).

An exception to that rule (not applicable here) is the “collective knowledge” doctrine, in which several officers are cooperating and their cumulative information may be considered in assessing reasonable suspicion or probable cause. See Derichsweiler, 348 S.W.3d at 914-15 (“[T]he detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, ‘the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists.’”) (citations omitted).

13. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).

14. LaFave, supra note 11 at 473.

15. Amores v. State, 816 S.W.2d 407, 415 (Tex. Crim. App. 1991) (“In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officers at the time of the arrest; subsequently discovered facts or later-acquired knowledge, like the fruits of a search, cannot retrospectively serve to bolster probable cause at the time of the arrest.”); State v. Wilson, 337 S.W.3d 289, 296 (Tex. App.-Texarkana 2011, no pet.) (“Because Brownlow did not discover the existence of the burger until after initiation of the investigative detention, this information could not be used to corroborate the tip.”); Atkins v. State, 919 S.W.2d 770, 774 (Tex. App.-Houston [14th Dist.] 1996, no pet.) (“Subsequently discovered facts or later-acquired knowledge, like the fruits of a search, cannot retrospectively serve to bolster probable cause at the time of the arrest.”); see also Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (facts to support finding of probable cause “must be known to the officer at the time of the arrest; post-hoc justifications based on facts later learned cannot support an earlier arrest.”); United States v. Reed, 443 F.3d 600, 603 (7th Cir. 2006) (“Probable cause exists if an officer reasonably believes, in light of the facts known to her at the time, that a suspect had committed or was committing an offense. . . . [C]ourts must focus on the real world situation as known to the officer at that time.”).

16. See Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004) (“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest[,]” but that officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, ‘the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’”) (some quotation marks omitted).

17. Id. (the “officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.”).

18. State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011); State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

19. Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006).

20. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (“[T]he nature of the evidence presented in the videotape does not pivot ‘on an evaluation of credibility and demeanor.’ Rather, the videotape presents indisputable visual evidence contradicting essential portions of [the officer's] testimony. In these narrow circumstances, we cannot blind ourselves to the videotape evidence simply because [the officer's] testimony may, by itself, be read to support the Court of Appeals’ holding.”).

21. See State v. Gobert, 275 S.W.3d 888, 891-92 & n. 13 (Tex. Crim. App. 2009) (“[T]he trial judge viewed the DVD with the State’s transcript in hand, and he found that the appellee did in fact actually declare, ‘I don’t want to give up any right though, if I don’t got no lawyer.’ The record supports that conclusion, even as it might also support a different conclusion. Therefore, we will not second-guess the trial court’s determination of the facts. . . . Under these circumstances, it is appropriate that we defer to the trial court’s primary fact-finding function.”).

22. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).

23. Weaver, 349 S.W.3d at 525; Woodard, 341 S.W.3d at 410.

24. Weaver, 349 S.W.3d at 525; Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010); Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

25. The court of appeals stated that the record did not support these specific findings, in part, because “no such report is a part of the record.” Duran, 2012 WL 983188, at *4. But Officer Candia’s complaint affidavit-signed on the day of the offense-is on page 4 of the clerk’s record, and it makes no mention of the center stripe violation. Rather, it states, in relevant part,

On 12-18-2009, on or about 0235 Hrs, at 1700 Saul Kleinfeld in the city and County of El Paso, Texas Affiant and partner R. Wells #2540, working as 3F193 while [in route] to a call. As the affiant and partner approached the intersection of Zaragoza and Saul Kleinfeld, the affiant and partner observed the Defendant operating the listed vehicle make a left turn from Zaragoza and onto Saul Kleinfeld, failing to yield right of way to the marked unit. The affiant and partner made contact with the Defendant and [noticed a] very strong odor of burnt Marijuana emanating from the vehicle.

26. Id. at *5. The court of appeals considered only findings seven through nine as relevant to an objective analysis.

27. Id. (“Because Officer Candi[a]‘s testimony that he observed the violation is supported by the recording of the event, the trial court’s finding does not turn on an evaluation of credibility and demeanor. Rather, it turns on objective evidence, the recording.”). Of course, the trial judge was not required to believe Officer Candia’s testimony.

The court of appeals characterized the trial judge’s ruling as being based on his belief that the officer was unable to point to specific facts justifying the stop, id. at *4, and dismissed as irrelevant many of the trial judge’s findings, noting that they “relate to the subjective intent of the officer in making the stop, which we have already determined not to be the appropriate standard.” Id. at *5.

28. Id. at *4.

29. Duran, 2012 WL 983188, at *5.

30. Kolender v. Lawson, 461 U.S. 352, 368 (1983) (reasonable suspicion “depends solely on the objective facts known to the officers and evaluated in light of their experience”); Terry v. Ohio, 392 U.S. at 30.

31. Supra, at 4.

32. 10 S.W.3d 323 (Tex. Crim. App. 2000).

33. Id. at 332.

34. Id. at 331-32. We explained,

In the unique circumstances of this case . . . we decline to give “almost total deference” to the trial court’s implicit findings under which the Court of Appeals found consent. First, we note that the trial court seems to have predicated its decision to admit the evidence on a finding of probable cause rather than on consent. Second, the nature of the evidence presented in the videotape does not pivot “on an evaluation of credibility and demeanor.” Rather, the videotape presents indisputable visual evidence contradicting essential portions of Williams’ testimony. In these narrow circumstances, we cannot blind ourselves to the videotape evidence simply because Williams’ testimony may, by itself, be read to support the Court of Appeals’ holding.

Id. at 332.

35. ___ S.W.3d ___, 2012 WL 5869416 (Tex. Crim. App. Nov. 21, 2012).

36. Id. at *6. For example, the trial judge had found that “[t]he record is silent as to whether any other persons were known to have been in the other rooms or areas of the apartment at the time of the events described at the hearing; thus the officers were not aware if a third party was present on the scene at the time of their investigation. Two children were finally determined to be asleep in a bedroom.” But the recordings revealed that the officers recognized upon entry that Miller was the only adult present, accepted her assurances that the only other persons in the apartment were her “babies” and made no attempt to search the apartment for her boyfriend or her children. We noted,

When there are factual disputes regarding testimony or the contents of a videotape, the trial court’s findings of historical fact are afforded almost total deference. But when evidence is conclusive, such as a written and signed agreed stipulation of evidence or “indisputable visual evidence,” then any trial-court findings inconsistent with that conclusive evidence may be disregarded as unsupported by the record, even when that record is viewed in a light most favorable to the trial court’s ruling.

Id. (quoting Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., concurring)).

37. Abney v. State, ___ S.W.3d ___ 2013 WL 1222711, *14 (Tex. Crim. App. March 27, 2013) (quoting Loserth v. State, 963 S .W.2d 770, 773 (Tex. Crim. App. 1998)).

38. Tucker, 369 S.W.3d at 185 (“The court of appeals should view the video in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings that support” that ruling); State v. Gobert, 275 S.W.3d 888, 891-92 & n.13 (Tex. Crim. App. 2009).

39. Officer Candia’s mistaken belief that appellant violated the law by turning left in front of him cannot provide any legal basis for detaining him. See Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012) (“An officer’s mistake about the law, or about the legal significance of undisputed facts, even if eminently reasonable, cannot serve to provide probable cause or reasonable suspicion; it cannot, in other words, validate an otherwise invalid seizure.”); see also Abney, 2013 WL 1222711, at *14(“[A]n officer’s mistake about the legal significance of facts, even if made in good faith, cannot provide probable cause or reasonable suspicion” to make a traffic stop).

I. Background

Charged with offenses committed against two complainants, appellee stands indicted for 29 counts of sexual assault of a child and one count of indecency with a child. One of the complainants was appellee’s step-daughter, and the other was her female friend. Each of the 29 sexual-assault counts contained an allegation based on the bigamy provision. See Tex. Penal Code § 22.011(f). (2) If proved, the provision would elevate each sexual-assault count from a second-degree felony to a first-degree felony. Id. Appellee filed a motion to quash the indictment by contending (1) that the bigamy provision was being applied inconsistently with the legislative intent and would thus subject him to greater punishment than the sexual-assault statute contemplates; and (2) that the law violated the Equal Protection and Due Process clauses of both the state and federal constitutions because it “punishes people for being married.”

Appellee’s motion to quash included two exhibits describing the legislative history for the 2005 amendment that rewrote subsection (f) of Texas Penal Code Section 22.011 and added the provision at issue in this appeal. See Tex. Penal Code § 22.011(f); Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 4.02. His exhibits suggest that the Legislature crafted the bigamy provision to particularly target fundamentalist Mormons involved in bigamous relationships with children. His exhibits also describe the percentage of married people in Texas, and on this basis he argues that the bigamy provision would have widespread application if it were applied generally to married people who are not believed to be in bigamous relationships. Aside from the two exhibits attached to the motion to quash, no other evidence was presented. At the hearing on appellee’s motion, the State argued that it would be inappropriate for the trial court to consider the exhibits that address extra-textual matters because the language of the statute is plain and serves the State’s legitimate interest in “protecting the spouses of the individuals who are either the victim or the defendants in a case of sexual assault.” The State further argued that sexual assault may be properly elevated to a first-degree felony “if the victim was a person whom the actor was prohibited from marrying,” and that the provision was applicable here because appellee was “by law prohibited from marrying the victim because [he] was already married” to her mother. Neither party contended that appellee was in a bigamous relationship with the victims.

The trial court granted the motion to quash in part, striking the bigamy provision from each of the 29 sexual-assault counts. The State appealed to the court of appeals, and the proceedings in the trial court were stayed pending resolution of the appeal. In the court of appeals, the parties had three disputes.

First, the parties disputed whether the court of appeals had jurisdiction over the State’s appeal. Rosseau, 2011 WL 6207037, at *3-4. Appellee contended that the statute was a punishment enhancement that was not required to be included in the indictment, and, therefore, that the dismissal of that portion of the indictment could not serve as the basis for the State’s appeal. Id. Disagreeing with appellee, the court of appeals determined that the State had a right to appeal the trial court’s order quashing a portion of the indictment and that, therefore, it had proper jurisdiction to entertain the State’s appeal. Id. at *4-7. This jurisdictional dispute is the focus of the first two grounds in appellee’s petition for discretionary review. (3)

Second, the parties disputed whether appellee’s motion to quash had properly presented a facial challenge to the statute’s constitutionality and, even if it had, they disputed whether appellee had proven a constitutional violation. Id. at *9. The court of appeals agreed with the State that appellee failed to raise a facial challenge, and, alternatively, determined that even if he did, he failed to carry his burden of proof. Id. (holding that appellee “failed to rebut the presumption of constitutionality by proving that the statute operates unconstitutionally in all its applications”). This dispute is the basis of appellee’s final ground in his petition for discretionary review. (4)

Third, the parties disputed whether the statute was unconstitutional “as applied” to appellee. The court of appeals determined that this argument was premature as a pretrial ruling because it was dependent on the facts presented at trial. Id. at *7-9. This dispute has been abandoned by appellee in his petition for discretionary review, and we express no opinion on the merits of this matter.

II. Appellate Court Jurisdiction

Appellee’s first two issues in his petition for discretionary review challenge the appellate court’s jurisdiction to review the trial court’s order granting the motion to quash. Appellee contends that the court of appeals lacked jurisdiction over the State’s appeal because the trial court’s order granting the motion to quash pertained only to an enhancement allegation rather than to the elements of the offense. We disagree. Since the court of appeals’s judgment in this case, this Court has expressly held that a court of appeals has jurisdiction to address the State’s challenge to a trial court’s order dismissing a portion of an indictment, even when that portion is the punishment-enhancement paragraph, as opposed to elements of the offense. State v. Richardson, 383 S.W.3d 544, 548 (Tex. Crim. App. 2012). In Richardson, we explained that the plain language in Texas Code of Criminal Procedure Article 44.01(a)(1) authorizes the State to appeal any trial court order that “dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint[.]” Id. (citing Tex. Code Crim. Proc. art. 44.01(a)(1)). Moreover, we explained that, for purposes of applying the plain language of Article 44.01(a)(1), there is no meaningful distinction between elements of the offense and enhancement allegations contained within an indictment–both constitute “portion[s] of the indictment” under Article 44.01(a)(1). Id. Here, as in Richardson, because the quashed provisions “were alleged in the indictment, and thus are quite literally a ‘portion of an indictment,’ Art. 44.01(a)(1) may be invoked to permit the state’s appeal.” Id. at 547. In light of Richardson, we overrule appellee’s first two issues. (5)

III. Facial Challenge to the Constitutionality of the Bigamy Provision

In his third issue, appellee alleges that the court of appeals erred by concluding that he failed to properly present a facial challenge to the constitutionality of the bigamy provision. See Tex. Penal Code § 22.011(f). He further contends that the provision, if interpreted in accordance with the State’s suggested reading, is facially unconstitutional because it treats all married people more harshly than it treats unmarried people in violation of the Due Process and Equal Protection clauses of the state and federal constitutions.

A. Appellee Did Present Challenge to Facial Constitutionality of Statute

The court of appeals determined that “neither the text of his motion to quash nor his argument in the trial court raised a facial challenge to the constitutionality of [the bigamy provision].” See Rosseau, 2011 WL 6207037, at *8 (citing Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)). (6)

We disagree. Although it could have been more clearly presented, appellee’s motion adequately presented both facial and “as applied” challenges to the constitutionality of the bigamy provision.

Rather than focus on the presence of magic language, a court should examine the record to determine whether the trial court understood the basis of a defendant’s request. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (noting that issue preserved without having been explicitly stated if “there have been statements or actions on the record that clearly indicate what the judge and opposing counsel understood the argument to be”) (citing Resendez v. State, 306 S.W.3d 308, 315-16 (Tex. Crim. App. 2009)); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (in issue-preservation context, there are “no technical considerations or form of words to be used. Straightforward communication in plain English will always suffice.”).

By arguing that the bigamy provision creates a “class of individuals” (e.g., married people) and selects those individuals for enhanced punishment, appellee’s motion to quash presented more than merely a challenge to the constitutionality of the statute as it applied to him. The motion stated,

[T]he application [of Texas Penal Code § 22.011(f)] to the present indictment is inappropriate. It creates a “class of individuals” who would potentially receive a greater punishment than TPC, Sec. 22.011 contemplates. As applied, it violates the equal protection and the due process sections of both the State and Federal Constitutions. It punishes people for being married. Clearly, the legislature did not intend this section to have that effect. To allow this enhancement would lead to absurd and legislatively unintended consequences.

At the hearing on the motion, the parties disputed whether the bigamy provision, if interpreted to apply anytime either a defendant or complainant is married at the time of a sexual assault, could serve any legitimate purpose with respect to married people who were not in bigamist relationships. Defense counsel argued that the statute was facially unconstitutional by referring to “a class of individuals” who are being punished more severely for being married. Counsel stated,

My entire argument is that application of this present indictment to [appellee] would put him in a class of individuals that would potentially receive greater punishment than 22.011 contemplates. As such, it’s violative of his right to equal protection and due process under both state and federal Constitution[s], under the Texas State Constitution. . . . I believe that this statute punishes people for being married, that the application as to [appellee] would, in fact, punish him for being married. I do not believe that that was the intention of the Legislature at all. I believe the legislation was specifically directed towards a specific unique legal moral political circumstance that was happening in our state and nearby states, and that the State should be precluded from the enhancement that they seek in this case.

The State’s prosecutor replied that the statute was “clear on its face,” that the statute plainly is “targeted at the sanctity of marriage” because it protects married victims, and that the indictment properly tracked the language of the statute.

At the conclusion of the hearing, the trial court granted the motion to quash by referring to the intent of the statute generally and by discussing its specific application to appellee. The trial court stated,

I don’t believe that the statute was ever intended to say we’re going to take this bigamy statute, we’re going to enhance it over here, even though the person who is charged, the evidence is not going to show that they were engaging in bigamy or doing any of the things that is listed in this bigamy statute. When it was first presented to me, I thought that the fact scenario was going to show that not only was the person committing the offense of sexual assault but they were also doing something applicable under this bigamy statute, other than just having the status of being a married person. So I don’t see it. I think it raises constitutional issues . . . [and that ] does make it a proper subject for a motion to quash. I’m going to find that it is violative of constitutional rights[.]

Appellee’s written motion, the parties’ arguments before the trial court, and the trial court’s ruling each discussed the statute’s treatment of married people as a class. Although he could have more clearly expressed the basis for his challenge, appellee’s motion adequately apprised the trial court of his argument that the bigamy provision is facially unconstitutional in all its applications. We hold that the court of appeals erred by rejecting appellee’s argument on the ground that it was not raised.

B. Appellee Failed to Prove that Bigamy Provision Is Facially Unconstitutional

The court of appeals determined that “even if” a facial challenge could be discerned, appellee had failed to rebut the presumption of constitutionality because he did not prove that the statute operated unconstitutionally in all its applications and could never be constitutionally applied to any defendant under any set of facts or circumstances. See Rosseau, 2011 WL 6207037, at *9. We agree that he failed to meet his burden.

The court of appeals cited two decisions from this Court to support its position. Id. (citing State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908-09 (Tex. Crim. App. 2011); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). The court of appeals properly observed that, to prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances. See Lykos, 330 S.W.3d at 908-09; United States v. Salerno, 481 U.S. 739, 745 (1987); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (“A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid.”). It also correctly explained that analysis of a statute’s constitutionality must begin with the presumption that the statute is valid and that the Legislature did not act arbitrarily or unreasonably in enacting it. Rodriguez, 93 S.W.3d at 69. Appellee, as the individual challenging the statute, has the burden to establish its unconstitutionality. Lykos, 330 S.W.3d at 911.

The Equal Protection Clause of the Fourteenth Amendment requires that “all persons similarly situated shall be treated alike” under the law. Plyler v. Doe, 457 U.S. 202, 216 (1982); Wood v. State, 18 S.W.3d 642, 651 (Tex. Crim. App. 2000). (7) Appellee contends that the bigamy provision, if construed to enhance the range of punishment for sexual assault anytime either the defendant or complainant is married, impermissibly punishes “married persons” more harshly than it does non-married persons. The State disputes that the statute treats married and unmarried people differently because the statute would apply either to a married defendant who assaults an unmarried individual, to a married defendant who assaults a married individual, or to an unmarried defendant who assaults a married individual. The State contends that married and unmarried defendants are thus treated alike under the statute.

We agree with the State to the extent it argues that the statute is not facially unconstitutional in all its possible applications. The statute operates to elevate the offense of sexual assault from a second-degree felony to a first-degree felony if it is alleged and proven at trial that “the victim [of the sexual assault] was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under [Texas Penal Code] Section 25.01.” See Tex. Penal Code §§ 22.011(f); 25.01. The “under Section 25.01″ portion of the statute suggests that the provision applies when both sexual assault and bigamous conduct are alleged. Therefore, the statute is not facially unconstitutional because it has at least one valid application: the punishment of bigamists who sexually assault their purported spouses. See Lykos, 330 S.W.3d at 909 (to prevail on facial challenge, party must prove there are “no factual circumstances” under which statute would be constitutional). Furthermore, although appellee suggests that the statute is facially invalid because it punishes all married people more severely than it punishes unmarried people, he also appears to concede that the statute would be valid if its application were limited to punishing bigamists who commit sexual assault against their purported spouses. (8) Appellee has failed to argue, let alone show, that the statute would operate unconstitutionally with respect to sexual-assault situations involving bigamy. Because appellee has failed to show that it is unconstitutional in every possible respect, the statute is not facially unconstitutional. See Lykos, 330 S.W.3d at 911. (9)

IV. Conclusion

We affirm the judgment of the court of appeals and remand this case to the trial court for further proceedings.

Delivered: April 17, 2013

Publish

1. Section 22.011(f) of the Texas Penal Code states,

An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Tex. Penal Code § 22.011(f). Section 25.01 of the Texas Penal Code states in relevant part,

(a) An individual commits [the offense of bigamy] if:

(1) he is legally married and he:

(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage;

or

(B) lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or

(B) lives with that person in this state under the appearance of being married.

(b) For purposes of this section, “under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either party.

Tex. Penal Code § 25.01.

2. Each sexual-assault count contained a paragraph alleging that, “at the time that the [sexual assault] was committed, [complainant], was a person whom the defendant was prohibited from marrying or purporting to marry or with whom the defendant was prohibited from living under the appearance of being married under Section 25.01 of the Texas Penal Code, in that, the defendant was legally married to a person other than [complainant].”

3. In his first issue, appellee contends that the court of appeals “erroneously failed to apply the Texas Government Code to its analysis of Tex. Pen. Code § 22.011(f)’s elements; this error informed the Court’s ruling that the State had a right of appeal.” In his second issue, appellee alleges that the court of appeals “improperly employed case law indicating that any portion of a Penal Code statute included in the indictment is an element of the offense . . . this error informed the Court’s ruling that the state had a right of appeal.” In his brief on the merits following this Court’s acceptance of his petition for discretionary review, appellee “excised” the second issue in light of this Court’s decision in State v. Richardson, 383 S.W.3d 544 (Tex. Crim. App. 2012), and “reframed the grounds for review to better reflect the current law.” Appellee has attempted to re-frame his first two issues by stating, “The Fourth Court of Appeals erred by not applying the Code Construction Act to Texas Penal Code § 22.011(f); extra-textual sources reveal that § 22.011 is a first-degree felony only when bigamy is alleged.” Appellee argues that this “Court should determine that [Texas Penal Code Section 22.011(f)] only applies to enhance sexual assault when bigamy is alleged, and further that it may only enhance sexual assault if bigamy is proven at trial.” This proposed ground for review is entirely different from the first two grounds upon which we granted discretionary review. The State’s responsive brief objected to the improper attempt to change the grounds for review and declined to brief the issue as re-framed. We decline to permit appellee to re-frame his first two issues.

4. In his third issue in his petition for discretionary review, appellee alleges that the court of appeals “willfully avoided addressing the constitutionality of Tex. Pen. Code § 22.011(f) despite [appellee's] proper error preservation and argumentation; the constitutionality of § 22.011(f) is fast becoming an important issue in Texas law.”

5. Although ordinarily we might remand this case to the court of appeals to consider this matter in light of the more recent authority, we resolve this pretrial appeal so that the trial court may more quickly conduct a trial on the merits.

6. We review a trial court’s ruling on a motion to quash an indictment de novo because the sufficiency of a charging instrument is a question of law. Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010). Generally, when an indictment tracks the language of a statute, it will satisfy constitutional notice requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

7. Where no suspect classification or violation of a fundamental right is involved, a difference in treatment need be only “rationally related to a valid public purpose” to withstand equal protection scrutiny. Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972). “In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer v. Evans, 517 U.S. 620, 632 (1996).

8. For example, in his brief on the merits, appellee argues that it is the State’s “flawed interpretation” of the bigamy provision, rather than all possible applications of the statute, that would result in an equal protection violation. He further suggests that so long as the provision is applied consistently with the legislative intent “to punish bigamous conduct,” it poses no constitutional violation.

9. Given the procedural posture, we express no opinion regarding the applicability of the bigamy provision to appellee’s case. Because this is a pretrial appeal, the record is undeveloped and thus we do not yet know what evidence the State will present at trial to support its allegations. In a facial challenge to a statute’s constitutionality, we examine the statute as it is written, rather than how it is applied in a particular case. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). Arguments pertaining to an as-applied challenge or the sufficiency of the evidence must be reserved for another day. See, e.g., Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007) (pretrial motion to quash “cannot be used to argue that the prosecution could not prove one of the elements of the crime,” and should not lead to “mini-trial on the sufficiency of the evidence to support an element of the offense”) (internal quotation marks omitted); State v. Rosenbaum, 910 S.W.2d 934, 942-48 (Tex. Crim. App. 1995) (dissenting op. adopted on reh’g) (“An indictment must be facially tested by itself under the law, as a pleading; it can neither be supported nor defeated as such by what evidence is presented at trial. . . . A fortiori, it can not be supported or defeated by evidence presented at pretrial.”).

I. FACTS

Appellee was arrested and indicted for the felony offense of cruelty to animals after law enforcement officers seized approximately thirteen of his dogs that were located on the property of his aunt, Deanna Hall, in Kerens, Texas. See Tex. Penal Code § 42.09. Appellee filed a motion to suppress, complaining of the warrantless search and seizure. He alleged that all evidence seized in connection with his case should be suppressed because the Kerens Police Department violated his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United State Constitution; Article I, Section 9, of the Texas Constitution; and Article 38.23 of the Texas Code of Criminal Procedure.

At the hearing on the suppression motion, County Commissioner Dick Martin testified that, on April 27, 2011, he was delivering food for Meals on Wheels to a private residence when he noticed a number of dogs in the street. He mentioned the dogs to the recipient of the meal, who complained that the dogs came into her yard to relieve themselves. After leaving the residence, Martin reported the dogs to City Hall. On cross-examination, Martin stated that he had made prior reports to the city about dogs tied up in a backyard in the same area.

Animal Control Officer Randy Featherston testified that he received a call concerning animals fighting and responded to 108 NE 4th Street. When he arrived, he heard a puppy yelping. Featherston entered the property to investigate and found the puppy, which was stuck under a fence. He pushed the puppy back under the fence and into the pen where he could not get out and run free. Featherston testified that he could not see the pen that the puppy was in from the residence’s driveway, but it was visible from the street. Featherston also stated that, while in the backyard, he observed that every dog on the property was malnourished. He described that the dogs were chained, there was no visible food, and there was only dirty water to drink. Featherston testified that he thought something needed to be done to take care of the animals, so he called for assistance from the Kerens Police Department.

Kerens Chief of Police Bryan Miers, (1) along with Peace Officers Roy Ivey and Bennito Monteagudo, responded to Featherston’s request for assistance. Miers testified that he could see the dogs from the roadway, before he entered the property. The dogs were located between 60 and 70 yards from where he was standing. He stated that he observed several adult dogs tied to chains and a pen holding puppies. All of the dogs were skinny and appeared to be malnourished and in poor overall health, especially the puppies, which appeared almost lifeless. On cross-examination, Miers explained that he entered the property because he had “reasonable suspicion to believe that the dogs were in immediate danger” based upon his own visual observation and information relayed from Featherston. Thirteen dogs were seized and turned over to the humane society.

Deanna Hall testified that she is the owner of the property where the dogs were seized (108 NE 4th St.). Hall explained that Appellee is her nephew. Appellee had previously lived with her, and after he moved, she continued to give him permission to keep his dogs on her property. Appellee cared for the dogs daily, but if there was a time when he could not make it to the house, Hall would feed them instead. Hall testified that she did not give consent to the officers to enter her property, and she did not know about their presence at her house until she returned home that evening.

Appellee testified that he housed his dogs in his aunt’s backyard with her permission because he resides in a nearby apartment with no yard or holding facility for the dogs. He stated that the dogs were housed approximately 65-70 yards from the street. Like Hall, he testified that he did not provide consent for the officers to enter the property and seize his dogs.

The trial court granted Appellee’s motion to suppress. In response to the State’s motion for findings of fact and conclusions of law, the trial court entered findings of fact and conclusions of law. The trial court found, among other things, that Chief Miers and Officers Featherston and Ivey viewed, from the street, dogs in the backyard that appeared to be malnourished, “[n]o evidence was presented indicating the dogs were in danger of death or inflicting death or serious bodily injury on any human,” and “[t]he dogs were housed approximately 70 yards from the street where they could be viewed without entering on to the property.” The trial court also made the following conclusions:

The Defendant had a reasonable expectation of privacy. The Defendant’s property was searched by agents of the State without a warrant.

Neither the Defendant nor Hall gave consent to the animal control officer or the police officers to come into the backyard of the residence where the dogs were living.

The backyard where the dogs were housed and seized is curtilage of the residence and thus is afforded the same 4th Amendment protections as the residence. There were no exigent circumstances present in this case which would be an exception to the warrant requirement. The Court’s ruling granting the motion to suppress should be affirmed.

II. WACO COURT OF APPEALS

On direct appeal, the State argued that the trial court erred in granting the motion to suppress because Appellee had no standing to complain about the search and seizure and because the dogs were in plain view of the officers. The Waco Court of Appeals disagreed and affirmed the trial court’s order granting the motion to suppress. Betts, 2012 Tex. App. LEXIS 6703.

The court of appeals first determined that Betts had a reasonable expectation of privacy, noting that the animals seized were Betts’ property, Betts had previously lived at the residence and continued to keep his dogs there with his aunt’s permission, and there were structures and a pen to house the dogs. Id. at *3-5. The court then concluded that the criminal activity of animal cruelty was not in the plain view of officers from the street. Id. at *5-7. The court found that Officer Featherston heard a puppy yelping after he was already on the property and observed the condition of the dogs when he walked to the back of the property. And although Chief Miers testified that he could see the dogs from the street, the court discounted this statement because the dogs were housed approximately seventy yards from the street and Chief Miers had also testified that Featherston informed him of the condition of the dogs.

We granted the State’s petition for discretionary review to address the following issues:

1. Does an accused have standing to challenge a search and seizure conducted in a relative’s backyard where he had permission to house dogs when he did not live at the house and the yard was entirely exposed to the public?

2. Did the majority of the court of appeals improperly ignore the trial court’s dispositive factfinding in ruling that the search and seizure was not justified under the plain view doctrine?

3. Did the majority err by failing to follow the mandates of State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011), and remand the case to the trial judge to make fact findings and legal conclusions on the issue of whether entry onto the property was justified under the community caretaking doctrine?

III. STANDING

The State’s first ground for review contests Appellee’s standing to challenge the search and seizure that were the subject of the motion to suppress. The Fourth Amendment of the U.S. Constitution and Article I, Section 9, of the Texas Constitution protect individuals from unreasonable searches and seizures. Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993). The rights secured by the Fourth Amendment and Article I, Section 9, are personal, and accordingly, an accused has standing to challenge the admission of evidence obtained by an “unlawful” search or seizure only if he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois 439 U.S. 128, 139, 143 (1978); Richardson, 865 S.W.2d at 948-49. The defendant who challenges a search has the burden of proving facts demonstrating a legitimate expectation of privacy. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). He must show that he had a subjective expectation of privacy in the place invaded and that society is prepared to recognize that expectation of privacy as objectively reasonable. Id.; see Smith v. Maryland, 442 U.S. 735, 740 (1979).

In considering whether a defendant has demonstrated an objectively reasonable expectation of privacy, we examine the totality of the circumstances surrounding the search, including

(1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy.

Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal, 935 S.W.2d at 138. This is a non-exhaustive list of factors, and no one factor is dispositive. Granados, 85 S.W.3d at 223. “Although we defer to the trial court’s factual findings and view them in the light most favorable to the prevailing party, we review the legal issue of standing de novo.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).

The record supports the trial court’s conclusion that Appellee had a reasonable expectation of privacy. The property where the search and seizure occurred was owned by Deanna Hall. While he no longer lived at the residence, Appellee had permission from his aunt to keep his dogs in the backyard and to enter the premises in order to water and feed his dogs, which he did on a daily basis. (2) The backyard was fenced on three sides with two-wire fencing, and the fourth side was enclosed by the neighbor’s wood privacy fence. The dogs were kept approximately 70 yards from the road, behind the house, in a central part of the back yard. Some of the dogs were chained to the ground near dog-house structures, and others were in pens surrounded by chainlink. Certainly the housing and shelter of animals is a common private use for one’s backyard.

We recognize that Appellant did not have an ownership interest in the property, but that is just one factor to consider and not a requirement for a person to have standing to challenge improper police actions. See, e.g., Brendlin v. California, 551 U.S. 249 (2007) (holding that passengers of a vehicle, which they did not own, had standing to challenge the validity of a traffic stop); Minnesota v. Olsen, 495 U.S. 91 (1990) (holding that an overnight guest has a legitimate expectation of privacy in his host’s home). Consequently, based upon the totality of the circumstances, and viewing the evidence in the appropriate light, the record supports that Appellee had a reasonable expectation of privacy in his aunt’s backyard.

The State relies on several United States Supreme Court cases to argue that there is no reasonable expectation of privacy in the backyard because it was exposed to public view, (3) but those cases are not controlling here. In Katz, the Supreme Court did state that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” but the Court went on to hold that government surveillance of a public phone booth violated the Fourth Amendment, despite the public and transparent nature of the booth. Katz v. United States, 389 U.S. 347, 351 (1967). Although other Supreme Court cases have used language similar to that in Katz, none of those cases specifically addresses standing. And in each case, while the officers did not need a warrant to view areas from the air, the information observed, without more, was not enough to justify a warrantless search or seizure of the property. See, e.g., Florida v. Riley, 488 U.S. 445, 449-52 (1989) (plurality op.) (reversing the trial court’s grant of a motion to suppress contesting the search of a greenhouse in a residential backyard conducted pursuant to a warrant, which was obtained based upon observations gained from helicopter surveillance, because the helicopter surveillance did not constitute a search under the Fourth Amendment); Dow Chemical v. United States, 476 U.S. 227, 239 (1986) (holding only that “the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment”); California v. Ciraola, 476 U.S. 207, 215 (1986) (holding that the Fourth Amendment “does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye”). (4)

The State also argues, relying on Villarreal, 935 S.W.2d at 137, that Appellee did not retain any expectation of privacy in his aunt’s house because of his status as a guest, but this case is different from Villarreal. In Villarreal, the appellant was an invited guest who spent a couple of hours in the residence for a business transaction. We held that the appellant, “who has no possessory or proprietary interest in the premises, but is a guest, has no clothes in the house, or other belongings, has no legitimate privacy interest in the premises searched.” Id. In contrast to that case, the premises at issue here is the backyard, rather than the residence. Moreover, Appellee was given daily access to and from the yard to care for his dogs, the dogs were Appellee’s personal property, the dogs were kept in pens and near dog houses in the yard. This arrangement was made because Appellee had previously lived in the residence but had moved to a nearby apartment with no yard or holding facility for the dogs.

Therefore, the record supports that Appellee has standing to challenge the search and seizure conducted in his aunt’s backyard.

IV. DEFERENCE TO THE TRIAL COURT AND

THE PLAIN VIEW DOCTRINE

The State next argues that the court of appeals improperly ignored the trial court’s dispositive fact finding in ruling that the search and seizure was not justified under the plain view doctrine. Specifically, the State argues that the court of appeals failed to give the requisite deference to the trial judge’s fact finding when it concluded that “it is not clear that Chief Miers could observe the condition of the dogs from the street.” See Betts, 2012 Tex. App. LEXIS 6703, at *6-7. For that reason, the State contends that the court of appeals’s plain view ruling should be reversed.

Appellate courts should afford almost total deference to a trial court’s determination of historical facts supported by the record, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The same amount of deference should be given to “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. Appellate courts may review de novo “mixed questions of law and fact” not falling within that category. Id.

The trial judge found that Miers “witnessed from the street dogs that appeared to be chained and malnourished in the backyard,” and this is supported by the record. Miers testified that he could see the dogs from the roadway, before he entered the property. He testified that he observed that all of the dogs were skinny and appeared to be malnourished and in poor overall health. Because the trial court’s finding is supported by the record, the court of appeals failed to properly defer to that finding when it concluded that “it is not clear that Chief Miers could observe the condition of the dogs from the street.” See Betts, 2012 Tex. App. LEXIS 6703, at *6-7.

However, even giving proper deference, the suggestion that the seizure was justified by the plain-view doctrine is without merit. While searches conducted without a warrant are per se unreasonable, seizing contraband in plain view does not run afoul of the Fourth Amendment. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). “The ‘plain view’ doctrine permits an officer to seize contraband which he sees in plain sight or open view if he is lawfully where he is.” DeLao v. State, 550 S.W.2d 289, 291 (Tex. Crim. App. 1977). Thus, three requirements must be met to justify the seizure of an object in plain view:

First, law enforcement officials must lawfully be where the object can be “plainly viewed.” Second, the “incriminating character” of the object in plain view must be “immediately apparent” to the officials. And third, the officials must have the right to access the object.

Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (citations omitted).

In Keehn, law enforcement officials properly approached a van parked in the appellant’s driveway, and through the window, they could plainly see a propane tank containing anhydrous ammonia, which is used in manufacturing methamphetamine. The officers entered the van and seized the tank without a warrant. In discussing the third requirement of the plain view doctrine, we stated,”Plain view, in the absence of exigent circumstances, can never justify a search and seizure without a warrant when law enforcement officials have no lawful right to access an object.” Id. Thus, the plain-view doctrine alone could not justify entry into the van to seize the tank. That doctrine would justify the seizure only if the search by which the officers entered the van and obtained access to the tank was rendered reasonable by some other rule. Id. We concluded that the vehicle exception to the search warrant requirement supported the entry into the van and access to the tank–after observing the contents of the van through the window, the officers had probable cause to believe that contraband was aboard, and consequently, the automobile exception gave the officers the right to enter the van and seize the tank. Id. at 335-36.

In the instant case, the record supports the fact that the officers could plainly view the dogs from the street. However, the fact that officers could see the dogs from afar does not mean that they were entitled to go onto the property and seize the dogs without a warrant, at least in the absence of some other exigency. See id. at 335. The officers did not have a lawful right to go into the yard and seize the dogs. Appellee’s dogs were kept in the backyard of his aunt’s home, that is, within the residence’s curtilage. The curtilage of a house is protected by the Fourth Amendment. Oliver v. United States, 466 U.S. 170, 180 (1984); see Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. 1979) (describing curtilage as the land immediately surrounding and associated with the house). The officers did not have a warrant to enter the yard, and the State does not argue that an exception to the warrant requirement existed. Therefore, the police were not authorized by the plain view doctrine to make a warrantless entry into the yard to seize the dogs.

V. THE COMMUNITY CARETAKING DOCTRINE

In its final ground for review, the State argues that, if there was no plain view from the street, community caretaking is an issue that should be addressed, and the court of appeals should be ordered on remand to require the trial court to make findings and conclusions on this issue. See Elias, 339 S.W.3d 667 (“[T]he omission of findings and conclusions with respect to this potentially dispositive fact issue constitutes a ‘failure . . . to act’ for purposes of Rule 44.4 of the Rules of Appellate Procedure.”).

Once Appellee established standing in the premises to be searched and that the search was conducted without a warrant, he satisfied his burden of establishing his Fourth Amendment claim, and the burden shifted to the State to establish an exception to the warrant requirement. See Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007); Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). The State did not present the community caretaking argument during the motion to suppress or on appeal. “[I]n cases in which the State is the party appealing, the basic principle of appellate jurisprudence that points not argued at trial are deemed to be waived applies equally to the State and the defense.” State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998); see also State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002). Because the community caretaking function was not a theory argued by the State at trial or to the court of appeals, the State cannot here rely on that theory to prove that the trial court’s ruling should be reversed by this Court. (5) See Steelman, 93 S.W.3d at 107.

VI. CONCLUSION

Appellee had standing to contest the warrantless search and seizure conducted in his aunt’s backyard. The search and seizure were not justified by the plain view doctrine, and the State cannot rely on the community caretaking doctrine, which it did not raise to the trial court or the court of appeals. Accordingly, the judgment of the court of appeals is affirmed.

Hervey, J.

Delivered: April 17, 2013

Publish

1. We note that the name of the Kerens Chief of Police is spelled both Meirs and Miers in the record.

2. In Wilson v. State, we explained that “[i]f the owner of a vehicle has turned it over to another person for some period of time, then surely this latter person has standing vis-a-vis the car during the duration of the bailment.” 692 S.W.2d 661 (Tex. Crim. App. 1985) (quoting 3 W. LaFave, Search and Seizure § 11.3, at 576-77 (1978)). Although referring specifically to vehicles, the underlying concept is equally applicable to the instant case.

3. See, e.g., Florida v. Riley, 488 U.S. 445, 449-52 (1989) (plurality op.); Dow Chemical v. United States, 476 U.S. 227, 239 (1986); California v. Ciraola, 476 U.S. 207, 215 (1986); Katz v. United States, 389 U.S. 347, 351 (1967).

4. The State also cites United States v. Santana, 427 U.S. 38, 42 (1976), but that case is clearly distinguishable. In Santana, a suspect in the front doorway of her home “was not in an area where she had any expectation of privacy.” Id. The Supreme Court explained that, under cases interpreting the Fourth Amendment, a person standing in the threshold of her dwelling is in a “public” place where she does not have any expectation of privacy. Id. In contrast, in this case, the dogs were located in the curtilage of the house, which is protected by the Fourth Amendment. See Oliver v. United States, 466 U.S. 170, 180 (1984); see also Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. 1979) (describing curtilage as the land immediately surrounding and associated with the house).

5. The present case in which the State seeks to reverse the trial court’s ruling is distinguishable from a case such as Mahaffey v. State, 316 S.W.3d 633 (Tex. Crim. App. 2010). There, the State could present a new argument for first time on petition for discretionary review because “an appellate court will uphold the trial court’s ruling if that ruling is ‘reasonably supported by the record and is correct on any theory of law applicable to the case.’” Id. at 637 (emphasis added).

I. Background

Anne (2) was six years old at the time of the incident with appellant, her step-grandfather. Anne and her young relatives, Emily and Charlotte, were watching television with appellant in his living room. (3) While Charlotte and Emily sat across the room from them, appellant touched Anne’s genitals as she sat on his lap. When she pushed his hand away, he restrained Anne so that she could not leave. Charlotte started yelling, “He won’t let her go, he won’t let her go.” The commotion was heard by several adults who were outside of the house, including appellant’s wife, who is also Anne’s grandmother, and Anne’s parents.

After the adults entered the house, Charlotte announced that Anne had something to tell everyone, and immediately offered that appellant had touched Anne “down there.” Anne’s grandmother then privately questioned Anne in another room. Testimony was inconsistent as to what Anne told her grandmother about the incident at that time. (4)

About one year later, Anne and her cousin, Charlotte, each revealed to their mothers that appellant had sexually abused them. Anne, Charlotte and their mothers met to discuss the matter. Anne told the two mothers that appellant had touched her genitals while she was sitting on his lap, and they reported the abuse to the police. During the investigation, police officers asked Kelsey Drennan, an investigator for the Texas Department of Family and Protective Services (TDFPS), to interview Anne, Charlotte and Emily. All three interviews were conducted separately on the same day and were videotaped.

During her interview with Anne, Drennan asked, “Is there anything that we’re supposed to talk about?” Anne responded, “Not that I know of.” Drennan then asked Anne if anyone had ever tried to look at or touch her “hiney” or “tuti-tu,” which was the word used by Anne for her female sexual organ. Anne responded, “just my grandpa, just once, that’s all I can remember,” referring to appellant. Drennan inquired whether he touched her tuti-tu on the outside or inside of her clothes. Anne replied, “He went inside.” She pointed at the waistband of her shorts and made a downward motion to indicate that appellant had reached inside her shorts. To confirm, Drennan asked Anne if appellant touched her on her skin or on top of her clothes, to which Anne replied, “skin.” Anne stated that appellant did not put his hand inside her tuti-tu but did touch the surface. Anne stated that the touching occurred while she was sitting “on his lap” on the couch in her grandmother’s house.

Appellant was charged with indecency with a child by contact and he pleaded not guilty. The case was tried to the bench along with other accusations of sexual abuse committed against Emily and Charlotte. At trial, the State called Drennan as its designated outcry witness and offered the 30-minute videotape of Anne’s interview. Over appellant’s hearsay objection, the trial court admitted the recording in its entirety, and it was played for the court. Drennan did not testify about any of Anne’s outcry statements; the sole evidence of the statements Anne made to Drennan was the videotape of the interview.

After the videotape was played, Anne testified. Her description of the incident was largely consistent with that contained in the videotape except she testified that the touching was over her clothes. Anne acknowledged that the touching could have been accidental, but stated that appellant had lied when he said he did not touch her.

In his defense, appellant testified that he could have accidentally touched Anne’s genital area on the outside of her clothing while he was playing with her, but he denied that he touched her under her clothes. Disbelieving the defense, the trial court found appellant guilty and sentenced him to ten years’ imprisonment. (5)

The court of appeals reversed the conviction. It held that the videotape was inadmissible hearsay that did not fall within the type of hearsay permitted under the outcry statute. Bays, 2011 WL 6091773, at *3. Relying on its prior decision in Dunn v. State, the court of appeals noted that “the outcry statute does not anticipate or provide for the admission of the video statements.” Id. (citing 125 S.W.3d 610, 614 (Tex. App.–Texarkana 2003, no pet.)). The court of appeals concluded that the outcry statute does not “contemplate[] that a videotape of the outcry will be introduced. It clearly contemplates that a person, subject to confrontation and cross-examination, will testify about what was said.” Id. (6) We granted the State’s petition for discretionary review to determine whether the court of appeals erred by holding that the outcry statute does not permit the admission of video statements. (7) The State argues that the videotaped interview should be admissible under the outcry statute because the statute does not expressly require that the child’s statements be related through witness testimony. The State further argues that the statute’s underlying goal of admitting reliable statements is best served by permitting admission of the videotaped interview. In response, appellant argues that the statutory hearsay exception for a child’s outcry statements applies only when those statements are conveyed through the testimony of the proper outcry witness, and that other forms of evidence, such as videotapes, do not fall within the hearsay exception for outcry evidence.

II. Analysis

Both the State and appellant offer conflicting, but plausible, interpretations of the outcry statute. Because we determine that the statute is ambiguous with respect to what form the outcry evidence must take when introduced at trial, we proceed to consider the appropriate extra-textual factors. We conclude that the statutory hearsay exception for outcry evidence applies only when the child’s statements are conveyed through the testimony of the properly designated outcry witness.

A. Law Applicable to Statutory Interpretation

Statutory interpretation is a question of law that we review de novo. Nguyen v. State, 359 S.W.3d 636, 641 (Tex. Crim. App. 2012). In interpreting statutes, we seek to effectuate the Legislature’s collective intent and presume that the Legislature intended for the entire statutory scheme to be effective. See Tex. Gov’t Code § 311.021; Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). To achieve this goal, we necessarily focus our attention on the literal text of the statute and attempt to discern the objective meaning of that text at the time of its enactment. Nguyen, 359 S.W.3d at 642. If the language is unambiguous, our analysis ends because the Legislature must be understood to mean what it has expressed, and it is not for the courts to add to or subtract from such a statute. Boykin, 818 S.W.2d at 785.

If, on the other hand, the meaning of a statute is ambiguous, we may consider limited extra-textual factors to discern the meaning that best honors the will of the Legislature. Cornet v. State, 359 S.W.3d 217, 221 (Tex. Crim. App. 2012). Ambiguity exists when a statute may be understood by reasonably well-informed persons to have two or more different meanings. See Boykin, 818 S.W.2d at 785-86; State v. Neesley, 239 S.W.3d 780, 783 (Tex. Crim. App. 2007). In construing ambiguous statutes, relevant factors that we may consider include legislative history, laws on the same or similar subjects, and consequences of a particular construction. See Tex. Gov’t Code § 311.023; Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012) (in construing statutes, court may look to other provisions within entire statutory scheme rather than merely single, discrete provision at issue).

B. Analysis of Article 38.072 Statutory Language

The outcry statute creates a hearsay exception for a child-complainant’s out-of-court “statements” that “describe the alleged offense,” so long as those statements were made “to the first [adult] person . . . to whom the child . . . made a statement about the offense.” See Tex. Code Crim. Proc. art. 38.072, § 2(a)(1)-(3). Subsection (b) establishes additional procedural requirements, including that the party intending to offer the statement provide the adverse party with a “written summary of the statement” and the “name of the witness through whom it intends to offer the statement.” See id. at § 2(b).

With respect to the question of what forms of evidence are admissible under the statute, the phrase “witness through whom it intends to offer the statement” could reasonably be interpreted as indicating that the child’s outcry statement must be conveyed directly “through” the testimony of the outcry “witness.” See id.; Merriam-Webster’s Collegiate Dictionary 1360 (10th ed., 1996) (defining “witness” as “one who testifies in a cause or before a judicial tribunal”); Prudholm v. State, 333 S.W.3d 590, 594 (Tex. Crim. App. 2011) (court may presume that words not defined in statute are used in their “ordinary and common sense”). Under this interpretation, the outcry statute would permit the “first person” to whom the child made a “statement about the offense” to testify regarding the content of those statements. See Tex. Code Crim. Proc. art. 38.072, § 2(a). The statute would not, however, permit the child’s statements to be conveyed through other mediums, such as video or audio recordings, because such “statements” would not be properly offered “through” a “witness.” See id. at § 2(a)-(b).

In support of this interpretation, we note that, although it has never precisely addressed the present question, this Court has repeatedly described the form of outcry evidence admissible under the statute as testimony from a witness. See, e.g., Sanchez v. State, 354 S.W.3d 476, 479 n.1 (Tex. Crim. App. 2011) (“An outcry witness may testify . . . about the victim’s out-of-court description of the offense.”); Lopez v. State, 343 S.W.3d 137, 140, 144 (Tex. Crim. App. 2011) (describing outcry statute as permitting “hearsay testimony” from an “outcry witness”); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005) (outcry “witness may recite the child’s out-of-court statements concerning the offense”); Rodriguez v. State, 819 S.W.2d 871, 872 (Tex. Crim. App. 1991) (describing outcry statute as permitting “testimony” from “outcry witness”); Shelby v. State, 819 S.W.2d 544, 550-51 (Tex. Crim. App. 1991) (noting that outcry witness “permitted to relate to the jury the statements made by the complainant on the date of the offense”); Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (outcry witness would “testify as to what the child [complainant] told her”); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) (outcry statute “demands that only the ‘first person’ [in whom child confides] is allowed to testify”).

Furthermore, the Texas intermediate courts of appeals that have examined this precise question have uniformly determined that the outcry statute limits the form of evidence to testimony from a witness. See, e.g., Dunn, 125 S.W.3d at 614 (holding that video testimony not properly admitted under outcry statute because the statute “clearly contemplates that a person, subject to confrontation and cross-examination, will testify about what was said”); Divine v. State, 122 S.W.3d 414, 418 (Tex. App.–Texarkana 2003, pet. ref’d) (noting that court has “repeatedly emphasized that a videotape is not a person; therefore, Article 38.072 cannot apply to it”); Scott v. State, 222 S.W.3d 820, 831 (Tex. App.–Houston [14th Dist.] 2007, no pet.) (noting that “Article 38.072 does not apply to admission of a child’s videotaped interview because it applies to the testimony of a live outcry witness”). The statute, however, is subject to an alternative interpretation. Although the statute clearly contemplates that the child’s statements will be offered “through” an outcry “witness,” the State argues that this language does not necessarily compel the conclusion that the witness must relate the child’s statements through testimony. See Tex. Code Crim. Proc. art. 38.072, § 2(b)(1)(B). Rather, under this latter interpretation, any form of evidence, including a video recording of the child’s out-of-court statement, would be admissible, so long as the proper outcry witness was present at trial and could act as a sponsoring witness for that recording. See id. at § 2(a)-(b).

The statute, while strongly suggesting that the child’s statements will be conveyed through the testimony of the outcry witness, does not expressly exclude forms of evidence other than witness testimony. See id. Because the statute may be understood by reasonably well-informed persons to have two meanings, we conclude that the statute is ambiguous. See Boykin, 818 S.W.2d at 785-86; Neesley, 239 S.W.3d at 783. We proceed to consider the appropriate extra-textual factors. See Shipp v. State, 331 S.W.3d 433, 439 (Tex. Crim. App. 2011); Mahaffey, 316 S.W.3d at 637; Tex. Gov’t Code § 311.023.

C. Extra-textual Analysis

As explained in more detail below, an analysis of the extra-textual factors supports the conclusion that the videotaped interview of the child does not fall within the statutory hearsay exception for outcry evidence.

1. Legislative History

The legislative history surrounding the enactment of the outcry statute clearly indicates that lawmakers intended to create a hearsay exception for live, in-court testimony by an outcry witness. When originally enacted in 1985, the statute’s supporters noted that the legislation was necessary because adults in whom child sex-abuse victims had confided were “barred from repeating what they have been told because it is considered hearsay.” See Act of May 27, 1985, 69th Leg., R.S., Ch. 590, § 1, effective Sept. 1, 1985; House Study Group, Bill Analysis, Tex. H.B. 579, 69th Leg., R.S. (May 9, 1985). (8) The outcry statute aimed to alleviate this problem by allowing “the first person the child told of the offense to testify about what the child said.” House Study Group, Bill Analysis, Tex. H.B. 579, 69th Leg., R.S. (May 9, 1985). (9) Never mentioning any type of evidence other than live testimony by a witness, the legislative-committee report makes multiple references to the outcry witness’s ability to “testify as to the child’s statements.” Id. (10)

This legislative history of the outcry statute reflects lawmakers’ understanding that the first adult in whom a child confides about sexual abuse will usually be a close relative, a trusted teacher, a school counselor, or a neighbor. (11) See id. (noting that outcry statute was intended to except from hearsay rule testimony of “people whom these children trust and in whom they have confided”); see also Martinez, 178 S.W.3d at 811 (stating that outcry statute serves society’s interest in “protecting children in court by allowing the admission of their casual ‘street corner’ confidences to an adult”); Ex parte Thompson, 153 S.W.3d 416, 422 (Tex. Crim. App. 2005) (Cochran, J., concurring) (noting that, in aggravated sexual assault of a child prosecutions, there is typically an “outcry witness, normally the mother or other female relative, who testifies that the child told her about the abuse”). In light of the belief that a trusted adult would usually be the outcry witness, it is reasonable to assume that this witness would have neither the opportunity nor the desire to videotape a child’s outcry statement as that child reveals for the first time the intimate details of an abusive sexual encounter. Because it envisioned that the child’s outcry would take the form of a spontaneous verbal communication to a trusted adult, it is reasonable to conclude that the Legislature did not intend to permit admission of a child’s videotaped statements, which suggest a lesser degree of spontaneity (and, perhaps, reliability). We conclude that the legislative report’s sole reference to testimony rather than to other forms of evidence, and the unlikelihood that a person trusted by the child would videotape her outcry together compel a conclusion that the Legislature did not intend for admission of videotapes under the outcry statute.

2. More Specific Law on Same Subject

The admissibility of a child-victim’s pretrial recorded statements is more specifically governed by a related statute set forth at Texas Code of Criminal Procedure Article 38.071, which we refer to as the “video statute.” (12) See Tex. Code Crim. Proc. art. 38.071; Tex. Gov’t Code § 311.026; Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988) (statutes on same or similar subjects may be construed jointly; in case of conflict, specific statute applies over general statute addressing same subject). The video statute creates a hearsay exception for a child’s video- or audio-recorded pre-trial statements, but only if stringent requirements are met, including that the child is unavailable to testify at trial and that the interviewer is a neutral person experienced in child-abuse cases or a child-abuse expert. See Tex. Code Crim. Proc. art. 38.071, §§ 1, 2, 5 (providing for admission of “recording of an oral statement of the child” only if certain requirements are met); Matz v. State, 14 S.W.3d 746, 746 (Tex. Crim. App. 2000) (noting that video statute “provides that under certain circumstances, a recording of an oral statement of a child sexual assault victim is admissible”); Torres v. State, 33 S.W.3d 252, 256 (Tex. Crim. App. 2000) (describing video statute as governing “special out-of-court circumstances . . . regarding the recording of statements by children”); Smith v. State, 88 S.W.3d 643, 647 (Tex. App.–Tyler 2000) (stating that video statute “provides a detailed procedure by which a videotaped interview of a child may be admitted into evidence”), vacated on other grounds by 61 S.W.3d 409 (Tex. Crim. App. 2001). (13)

The legislative history surrounding the video statute reveals that legislators intended that it provide the vehicle driving the admission of videotaped, pretrial statements by child-victims. House Study Group, Bill Analysis, Tex. S.B. 836, 68th Leg., R.S. (May 24, 1983) (noting that the video statute “would permit the pretrial videotaped testimony of children aged 12 and under to be used as evidence in sexual-abuse cases”). Understanding that “videotaped recordings of a child’s testimony are now considered hearsay evidence and they are not admitted in court,” lawmakers enacted the video statute so that “pretrial videotapes would be admissible only if they met several listed requirements.” Id.; see also House Committee on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 836, 68th Leg., R.S. (May 19, 1983) (noting that video statute “provides for the circumstances under which children who are victims of sexual offenses may visually and aurally record testimony which is admissible in Court”). Lawmakers, thus, viewed the video statute, enacted two years prior to the outcry statute, as the vehicle through which a child’s pretrial recorded statements could be offered as substantive evidence at trial.

An irreconcilable conflict would exist if both statutes were interpreted to permit the admission of a child’s videotaped statements because the outcry statute would create a loophole for admitting evidence that does not meet the requirements of the more stringent video statute. For example, the video statute allows for admission of a child’s videotaped statement only when the child is unavailable to testify, but, on the other hand, the outcry statute applies only when the victim is available to testify. Compare Tex. Code Crim. Proc. art. 38.071, § 1 (trial court must “determine[] that a child younger than 13 years of age would be unavailable to testify in the presence of the defendant”), with id. at art. 38.072, § 2(b)(3) (outcry statute hearsay exception applies only if child is younger than 14 years old and child “testifies or is available to testify” at trial). (14) Furthermore, the video statute contains stringent requirements aimed at ensuring the interviewer’s neutrality and professionalism, but, on the other hand, the outcry statute merely requires that the statements be reliable and does not require that the outcry witness be neutral. Compare Tex. Code Crim. Proc. art. 38.071, §§ 2, 5 (under video statute, person taking child’s recorded statement must be “neutral individual experienced in child abuse cases that seeks to find the truth of the matter” or an “expert in the handling, treatment, and investigation of child abuse cases” whose interview tactics did not consist of calculated questioning designed to elicit particular response), with id. at art. 38.072, § 2(b)(2) (under outcry statute, child’s statement need only be “reliable based on the time, content, and circumstances of the statement”), and Sanchez, 354 S.W.3d at 488 (outcry testimony admissible even if outcry witness biased).

Construing the statutes jointly, we conclude that the admissibility of a child’s videotaped statement is governed by the more specific video statute, as opposed to the more general outcry statute. Cheney, 755 S.W.2d at 126; Tex. Code Crim. Proc. arts. 38.071, 38.072. To permit admission of a complainant’s videotaped statement under the more lenient outcry statute would undermine the video statute’s rigid unavailability requirement and its requirements aimed at guaranteeing the expertise and neutrality of the interviewer. See Cheney, 755 S.W.2d at 126 (“If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision.”). Here, the requirements of the video statute were not met because the child was available to testify at trial. (15) See Tex. Code Crim. Proc. art. 38.071, § 1. We decline to adopt an interpretation of the outcry statute that thwarts the Legislature’s clearly stated intent to make a child’s videotaped statement admissible as substantive evidence only under strictly limited circumstances. See id. at §§ 1-5. (16)

3. Consequences of Any Possible Constructions of Statute

The State argues that the videotape should be admissible under the outcry statute because a video-recorded interview is “a far more accurate representation of a child’s statement than a person’s memory of the child’s statement.” But the outcry statute does not provide for admission of the most accurate, or the most detailed, statement from the child. Rather, the Legislature has created a narrow hearsay exception that applies only when the child’s statements describe the alleged offense and were made to the first adult outcry witness. See Tex. Code Crim. Proc. art. 38.072, § 2(a)(1)-(3). Additionally, the hearsay exception for outcry is applicable only if the statute’s stringent procedural requirements are met. See id. at. § 2(b); Long, 800 S.W.2d at 547 (holding that outcry witness “testimony is only admissible as a statutory exception to the hearsay rule if its procedures are followed”). The statute’s explicit content and procedural requirements are mandatory, even though they may at times result in admission of a less detailed statement from the child. (17)

Furthermore, although the legislative history of both the video and outcry statutes indicates lawmakers’ concern about the reliability of a child’s out-of-court statements, the Legislature was also focused on excluding unfairly prejudicial evidence, particularly videotaped victim statements, and preserving a defendant’s right of confrontation. See House Committee on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 66, 70th Leg., 2ndC.S. (July 17, 1987) (indicating legislative intent to tighten restrictions on use of videotaped testimony to avoid potential Confrontation Clause violations and noting that videotape procedure had been, in some cases, abused “to achieve maximum effect on the jury”). By carefully examining the various concerns inherent in the admission of hearsay evidence, it is reasonable to conclude that the Legislature narrowly permitted the introduction of outcry statements through witness testimony, but excluded videotaped statements that did not meet the more particularized admission requirements intended to guarantee the neutrality of the interviewer and to protect a defendant’s rights under the Confrontation Clause. Contrary to the State’s suggestion, the reliability of the child’s statement was not lawmakers’ sole concern when they enacted the outcry statute. See Garcia, 792 S.W.2d at 91 (in creating outcry statute, “[L]egislature was obviously striking a balance between the general prohibition against hearsay and the specific societal desire to curb the sexual abuse of children”).

III. Conclusion

Based on our analysis of the statutory language in conjunction with an examination of the applicable extra-textual factors, we conclude that outcry statute does not permit admission of video-recorded statements of a complainant. We, therefore, affirm the court of appeals’s judgment reversing appellant’s conviction for indecency with a child by contact.

Delivered: April 17, 2013

Publish

1. The outcry statute creates a hearsay exception for a child’s first outcry of sexual abuse to an adult. Tex. Code Crim. Proc. art. 38.072, § 2(a). The statute applies only in prosecutions of specified sexual offenses if committed against a child younger than 14 years of age. Id. at § 1. The statute applies only to out-of-court statements that (1) “describe the alleged offense,” (2) are “made by the child,” and (3) are “made to the first person, 18 years of age or older, other than the defendant, to whom the child . . . made a statement about the offense.” Id. at § 2(a). It further requires that the adverse party be notified of the name of the outcry witness, that the adverse party be provided with a “written summary of the statement,” that the trial court hold a hearing to determine whether the child’s statement is reliable, and that the child testify or be available to testify at trial. See id. at § 2(b). If both Subsections (a) and (b) are satisfied, then the child’s outcry statement “is not inadmissible because of the hearsay rule.” Id. Outcry statements are considered substantive evidence of the crime. Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005). The outcry statute has been amended three times since proceedings commenced against appellant. See Act of May 29, 2009, 81st Leg., R.S., ch. 284, § 1; Act of May 27, 2009, 81st Leg., R.S., ch. 710, §§ 1-2; Act of April 11, 2011, 82nd Leg., ch. 1, § 2.07. None of these recent amendments alter the statute’s application to this case. We shall refer to the current text of the outcry statute.

2. To protect the identities of the children involved in this case, the court of appeals employed the pseudonyms “Anne” to refer to the complainant and “Emily” and “Charlotte” to refer to her minor relatives, who were also complainants in two companion cases against appellant. We continue to employ those pseudonyms in this opinion.

3. Charlotte is appellant’s step-granddaughter and was approximately twelve years old at the time of the incident. Emily is appellant’s daughter and was approximately eight years old at the time of the incident.

4. Anne’s grandmother testified that Anne said appellant did not touch her. Anne’s mother stated that Anne was embarrassed or shocked and refused to say either way at that time whether appellant had touched her. During Anne’s videotaped interview, she stated that she told her grandmother that appellant touched her “tuti-tu” on the day of the incident, but that she didn’t tell anyone else at that time because she was confused and “didn’t know what to do.”

5. Appellant was additionally found guilty of sexual offenses committed against Charlotte, but was acquitted of the indecency charge involving Emily. Appellant’s convictions for continuous sexual assault of a child and sexual assault of a child involving Charlotte were affirmed on appeal, resulting in sentences of twenty-five and ten years’ imprisonment respectively. See Bays v. State, 06-10-00114-CR, 2011 WL 6091757 (Tex. App.–Texarkana Dec. 7, 2011, pet. ref’d).

6. The court of appeals found the error harmful because, aside from the recorded interview, “there was not overwhelming evidence of guilt.” Bays v. State, No. 06-10-00115-CR, 2011 WL 6091773, at *6 (Tex. App.–Texarkana Dec. 7, 2011) (not designated for publication). Specifically, the court of appeals noted that Anne stated in the videotape that appellant touched her genitals under her clothing, but testified at trial that appellant touched her over her clothing. On this basis, the court of appeals concluded that the “erroneous admission of Anne’s video interview had a substantial influence on the outcome of the proceeding.” Id.; see also Tex. R. App. P. 44.2(b). The issue of harm was not raised by the State in its petition, and we do not review the court of appeals’s harm analysis in this opinion. Likewise, appellant does not present a challenge under the Confrontation Clause. We note, however, that because both the interviewer, Drennan, and the interviewee, Anne, testified at trial and were subject to cross-examination, the defendant was afforded his rights under the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (“When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”).

7. The State’s sole ground for review asks, “Does Article 38.72 [sic] of the Texas Code of Criminal Procedure ‘clearly contemplate’ that an outcry statement will be offered only though an outcry witness, or may a videotape of the child’s outcry to that witness be played if both the witness and child are available for cross-examination?”

8. The outcry statute has its historical origins in the law of evidence relating to rape and statutory rape prosecutions. In a rape prosecution, a conviction would not be sustained on the uncorroborated testimony of a complainant who failed to make a prompt outcry. See White v. State, 478 S.W.2d 506, 508 (Tex. Crim. App. 1972) (testimony of prosecuting witness in rape case “need not be corroborated except in instances of a belated outcry”). Outcry evidence, therefore, was historically admissible at trial, but (1) only for the limited purpose of proving that an outcry had occurred, and (2) the content of the outcry was inadmissible. See, e.g., Holland v. State, 802 S.W.2d 696, 699 n.4 (Tex. Crim. App. 1991) (explaining that “outcry or recent complaint evidence is not considered hearsay” because only “bare fact” of outcry, not “content of outcry,” admissible); Sledge v. State, 686 S.W.2d 127, 130 (Tex. Crim. App. 1984) (noting that “State was entitled to show only the fact of ‘outcry,’ but not the details or underlying circumstances”). The outcry statute modifies this common-law rule by permitting the fact finder to consider the outcry as substantive evidence, but only if certain procedural and content requirements are met. See Tex. Code Crim. Proc. art. 38.072, § 2(a) (creating hearsay exception for “statements” of child-complainant that “describe the alleged offense” and are made to “first person” child told about offense); Martinez, 178 S.W.3d at 811 (noting that hearsay exception for outcry “carefully limited” and applicable only when “specified conditions” are met).

9. In 2009, when the Legislature amended the outcry statute to increase the statutory maximum age of a qualifying child-victim from 12 to 14, the Legislature reaffirmed the purpose of the outcry statute, noting that “an outcry witness may be allowed by the judge to give testimony regarding statements from the victim concerning the alleged offense.” See House Research Organization, Bill Analysis, H.B. 2846, 81st Leg., R.S. (May 8, 2009). Lawmakers additionally noted that only outcry “testimony” describing “the alleged offense” would be admissible at trial, while statements describing extraneous offenses would be inadmissible. See Senate Research Center, Bill Analysis, Tex. H.B. 2846, 81st Leg., R.S. (May 19, 2009).

10. We may presume that legislators, in enacting the outcry statute, were aware of our case law dealing with the issue of outcry evidence. See Scott v. State, 55 S.W.3d 593, 596 (Tex. Crim. App. 2001) (we may “presume the Legislature was aware” of relevant case law in drafting provisions). For more than fifty years, this Court has described “outcry” evidence as consisting of testimony by a witness who describes the complainant’s first revelations of abuse. See, e.g., Richardson v. State, 458 S.W.2d 665, 666 (Tex. Crim. App. 1970) (rejecting appellant’s hearsay complaint that “witness testified that [complainant] came to his house immediately after” the assault and reported the rape; testimony relating complainant’s “outcry was clearly an exception to the hearsay rule”); Torbert v. State, 313 S.W.2d 303, 307 (Tex. Crim. App. 1958) (upholding admissibility of complainant’s parents’ “testimony . . . as to the outcry made to them”); Hale v. State, 300 S.W.2d 75, 76 (Tex. Crim App. 1957) (trial court did not err in permitting father to “recount the outcry made by the child” morning after sexual assault). This historical background strongly suggests that lawmakers would have understood that they were creating a means of admitting the live testimony of the first adult in whom the complainant confided, and not a videotaped statement from the complainant herself.

11. The legislative history indicates that lawmakers intended to narrowly limit the scope of the outcry statute to statements made to a trusted confidant of the child. See Tex. Code Crim. Proc. art. 38.072, §2(a)(3) (permitting only first outcry witness to testify). Prior to enacting the “first person” rule, lawmakers rejected a proposal that would have instead permitted the testimony of trained child advocates. See House Study Group, Bill Analysis, Tex. H.B. 579, 69th Leg., R.S. (May 9, 1985) (bill’s opponents stated that “this exception to the hearsay rule should not be so limited,” and that “it would make more sense to allow those specifically trained in child-abuse cases to testify as well about what the victim had previously said to them about the alleged offense”). Instead the Legislature adopted the current provision making admissible only the “testimony” of the “first person a child cries out to.” Id.

12. Pursuant to the Texas Family Code, an interview conducted by TDFPS must be audio- or video-recorded if conducted during an active investigation. See Tex. Fam. Code § 261.302(e). Admissibility of such recorded interviews at trial is governed by the video statute, which specifically applies to pretrial videotaped statements from a victim. See Tex. Code Crim. Proc. art. 38.071. Under the video statute, among additional requirements, a recording of a victim statement is admissible only when the child is unavailable to testify and the trial court finds either (1) that the factual issues were “fully and fairly” inquired into in a “detached manner” by a neutral individual experienced in child-abuse cases who “seeks to find the truth of the matter,” or (2) that “the statement was not made in response to questioning calculated to lead the child to make a particular statement,” that the person conducting the interview is an expert in handling child abuse cases and subject to cross-examination at trial, that law enforcement and attorneys were not present, and that the child was placed under oath prior to making the statement. See id. at §§ 1, 2, 5.

13. This Court recently held certain provisions of the video statute unconstitutional on Confrontation Clause grounds. See Coronado v. State, 351 S.W.3d 315, 317, 329-31 (Tex. Crim. App. 2011) (holding that article 38.071, § 2, provision allowing for use of videotaped ex parte interrogatories submitted by defendant and posed by “neutral” forensic interviewer was not “constitutional substitute for live cross-examination and confrontation” of victim). In Coronado, we reasoned that the video statute provision allowing for ex parte interrogatories violated the Confrontation Clause because there was no “rigorous adversarial testing” of the victim’s statements by the “greatest legal engine for uncovering the truth: contemporaneous cross examination.” See id. at 331; U.S. Const., amend. VI. We further noted that courts have routinely held that videotaped victim interviews are testimonial and thus inadmissible pursuant to the Confrontation Clause unless the child testifies at trial or the defendant had a prior opportunity for cross-examination. Coronado, 351 S.W.3d at 325.

14. The legislative-committee report supporting passage of the outcry statute indicates that legislators were mindful of preserving “the defendant’s right to confront the witness,” and, for this reason, lawmakers included the requirement that the complainant “be available to testify in court.” See House Study Group, Bill Analysis, Tex. H.B. 579, 69th Leg., R.S. (May 9, 1985). For similar reasons, lawmakers stipulated that a child’s videotaped statements would be inadmissible at trial unless the child-complainant had been declared unavailable to testify. See House Committee on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 66, 70th Leg., 2nd C.S. (July 17, 1987) (amending video statute to provide additional protections under the Confrontation Clause, including that finding of unavailability be “individualized”).

15. See, e.g., Edwards v. State, 107 S.W.3d 107, 110-11 (Tex. App.–Texarkana 2003, pet. ref’d) (holding trial court abused its discretion by “admitt[ing] the videotaped interview with the child without any evidence to reflect the child was unavailable to testify,” in violation of video statute); Morales v. State, 222 S.W.3d 134, 142 (Tex. App.–Corpus Christi 2006, no pet.) (“child-complainant must be unavailable to testify before a videotape of the child’s testimony is admissible” under video statute).

16. Relying on this same rationale, we have previously held that we would not allow one hearsay exception to be used as a “back door” for admitting evidence expressly excepted from another hearsay exception, thereby indicating legislative intent to maintain the normal operation of the hearsay rule with respect to that evidence. See Cole v. State, 839 S.W.2d 798, 811 (Tex. Crim. App. 1992) (op. on reh’g) (law enforcement investigative reports do not fall within hearsay exception for business records).

17. Presiding Judge Keller suggests that we should analyze the outcry statute in the same way that we analyze other hearsay exceptions, such as excited utterances, where we determine whether the evidence supports that exception, but then permit that evidence to be introduced through any form, such as testimony or a recording of a 911 call. See Gardner v. State, 306 S.W.3d 274, 288-92 (Tex. Crim. App. 2009). This comparison, however, is inapplicable here for two reasons. First, to constitute as an excited utterance, a statement must relate to a startling event or condition and have been made while the declarant was under the stress of excitement caused by the event or condition. See Tex. R. Evid. 803(2); Zuliani v. State, 97 S.W.3d 589, 595-96 (Tex. Crim. App. 2003). Nothing in the excited utterance hearsay exception limits the form of the evidence in any way. In contrast,the outcry statute clearly contemplates the role of an outcry “witness” through whom the child’s statement will be offered, and is thus not wholly silent with respect to how the outcry evidence will be presented at trial. See Tex. Code Crim. Proc. art. 38.072, § 2. Second, as explained in more detail above, the legislative history of the outcry and video statutes reveals that the Legislature intended to require that videotaped victim statements meet certain requirements aimed at guaranteeing the neutrality of the interviewer and unavailability of the child, whereas the outcry statute was intended to be limited to statements made to the first outcry witness. Because videotapes may be admissible generally for other hearsay exceptions, this does not mean that a statute governing a very specific type of hearsay may not exclude videotapes and instead require that the proper outcry witness actually testify. See Tex. R. Evid. 101(c) (Code of Criminal Procedure provisions take precedence over Texas Rules of Evidence; inconsistencies to be removed “by reasonable construction”). We are unpersuaded by the argument that because videotapes are generally admissible under the rules of evidence they must, therefore, be permitted here.

I. Facts

In November 2007, Jones was stopped for speeding by Addison Police Officer Jeff Sharp. Jones gave Officer Sharp her correct date of birth, but told him her name was Tiffani Collier and gave a fictitious address. Tiffani Collier is one of Jones’s former schoolmates who shares Jones’s date of birth. Officer Sharp ticketed Jones in Collier’s name for speeding in a school zone, failing to display a driver’s license, and failing to maintain financial responsibility.

In June 2008, Jones was again stopped for speeding, this time by Officer Andre Cerminara of the Addison Police Department. Jones told Officer Cerminara her name was Tiffani Collier. Officer Cerminara issued another speeding ticket to Jones in Collier’s name and then arrested her for the outstanding warrant for the previous ticket she received in November 2007 in Collier’s name. Jones posted bond following her arrest and signed her name as Tiffani Collier on the bond.

In January 2009, Tiffani Collier complained to Addison police after receiving letters from the Addison Municipal Court regarding a warrant for her arrest, despite not having been stopped or ticketed in Addison. Officer Cerminara, the policeman who conducted Jones’s June 2008 stop, showed Collier a booking photo of Jones, at which point Collier told him that the two had attended school together.

Jones was subsequently charged in two separate indictments with the offense of fraudulent use or possession of identifying information under Texas Penal Code § 32.51(b). Initially, Jones pleaded not guilty to both indictments and filed a plea to the jurisdiction on the grounds that, under the in pari materia doctrine, she should have been charged with two instances of failing to identify under Texas Penal Code § 38.02(b). Following a hearing on the matter, the trial judge denied her plea to the jurisdiction. After the trial judge informed her that adjudication cannot be deferred on a not-guilty plea, Jones entered pleas of nolo contendere to each indictment, with a caveat that purportedly excluded the element of intent to defraud or harm another. After a bench trial, in which the arresting officer and Tiffani Collier testified, the trial judge placed Jones on deferred adjudication for a term of two years.

Jones raised two issues on appeal. First, she claimed that the trial court erred in denying her plea to the jurisdiction. In support of her claim, Jones reasserted that fraudulent use or possession of identifying information (Texas Penal Code § 32.51(b)), a state jail felony, and failure to identify (Texas Penal Code § 38.02(b)), a class B misdemeanor, were in pari materia and thus she should have been charged under § 38.02(b), the more lenient statute. The court of appeals rejected this argument, holding that these two statutes are not in pari materia because they have different purposes, require different elements of proof, and carry different penalties. (1) Second, Jones claimed the evidence adduced at trial was insufficient to support her convictions under Texas Penal Code § 32.51, particularly with regard to the element requiring intent to defraud or harm another. In its analysis of this issue, the court of appeals applied the sufficiency standard set forth in Ex parte Martin, (2) which applies to sufficiency claims in cases involving pleas of nolo contendere and guilty. (3) The court of appeals rejected Jones’s sufficiency claim after interpreting Martin to require only that “the State introduce[] evidence embracing every essential element of the charged offenses . . . sufficient to establish the defendant’s guilt” and finding that the standard had been met. (4) We granted Jones’s petition for discretionary review to determine whether (1) the statutes in question are in pari materia and (2) the court of appeals applied the proper standard of review to Jones’s sufficiency claim.

II. AnalysisA. In Pari Materia The doctrine of in pari materia is a rule of statutory construction that seeks to carry out the Legislature’s intent. (5) Statutes are in pari materia when they “deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons and things,” though we have previously made clear that the statutes’ purposes are the most significant factors. (6)

The doctrine arises “where one statute deals with a subject in comprehensive terms and another deals with a portion of the same subject in a more definite way.” (7) In the context of penal provisions in particular, “this Court has on a number of occasions found two statutes to be in pari materia . . . where one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision.” (8) This Court has made clear, however, that “[t]he adventitious occurrence of like or similar phrases, or even of similar subject matter, in laws enacted for wholly different ends will not justify applying the rule.” (9)

When two statutes are in pari materia, the doctrine requires that the statutes be “taken, read, and construed together, each enactment in reference to the other, as though they were parts of one and the same law.” (10) To that end, “[a]ny conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.” (11) Where such statutes irreconcilably conflict, however, “the more detailed enactment . . . will prevail, regardless of whether it was passed prior to or subsequently to the general statute, unless it appears that the legislature intended to make the general act controlling.” (12) Further, such conflict implicates due process rights that require the State to prosecute the defendant under the special statute where two statutes are in pari materia. (13)

Under Texas Penal Code § 32.51(b), a person commits the offense of fraudulent use or possession of identifying information if:

the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of: (1) identifying information of another person without the other person’s consent; or (2) information concerning a deceased natural person, including a stillborn infant or fetus, that would be identifying information of that person were that person alive, if the item of information is obtained, possessed, transferred, or used without legal authorization; or (3) identifying information of a child younger than 18 years of age.

Under Texas Penal Code § 38.02(b), a person commits the offense of failure to identify if:

he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has: (1) lawfully arrested the person; (2) lawfully detained the person; or (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

First, we note that the statutes appear to be aimed at different classes of people. While § 32.51 applies broadly to anyone who, with intent to harm or defraud another, obtains, possesses, transfers, or uses the identifying information of another, § 38.02(b)(1)-(3), by its elements, applies only to those who have been lawfully arrested or detained by the police or who are believed by police to have witnessed a crime. Section 38.02, then, applies to a much narrower class of persons than § 32.51. Put another way, the unique circumstances surrounding the conduct separates the two statutes.

Second, the plain language and placement of each statute in the Penal Code indicate that § 32.51 and § 38.02 do not have the same subject or purpose. The plain language of § 32.51 suggests that the subject of that statute is the use of another’s identifying information without permission. The plain language of § 38.02, on the other hand, suggests that the subject of that statute is the act of providing police officers with false identification. The statutes’ plain language further demonstrates that the purposes of the two statutes are sufficiently dissimilar. The purpose of § 32.51 is to prevent identity theft. This statute’s placement within Title 7 of the Penal Code, entitled “Offenses Against Property” indicates the statute is property-centric. More specifically, its inclusion within Chapter 32, Sub-Chapter D, entitled “Fraud” and “Other Deceptive Practices,” respectively, is indicative of the fact that this offense is intended to prevent fraudulent practices. The purpose of § 38.02, on the other hand, is to ensure that officer’s receive accurate information by criminalizing the act of providing law enforcement with false identification. Here, too, an examination of the placement of the statute within the Penal Code is informative. Section 38.02 is located in Chapter 38, entitled “Obstructing Governmental Operation,” of Title 8, entitled “Offenses Against Public Administration.”

Also relevant is the fact that neither offense appears to be a “more narrowly hewn” version of the other, as is generally the case where two penal statutes are in pari materia. (14) This is because each offense contain elements that the other does not. Section 32.51 requires an intent to defraud or harm another, while § 38.02 includes no such requirement. Section 32.51 also requires that the name used be that of a real person, while under § 32.51, the false name can be entirely fictional. Section 38.02 requires that the misinformation be conveyed during an arrest or detention or in circumstances leading a police officer to believe that the person conveying the misinformation is a witness to a criminal offense.

Finally, because the in pari materia doctrine seeks to give full effect to legislative intent, § 32.51(e) is the most authoritative proof that the Legislature did not intend to limit the State to prosecution under § 38.02 in circumstances in which §32.51 is equally applicable. Subsection (e) of § 32.51 states that “[i]f conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.” (15) This manifests the clear intent of the Legislature to allow prosecution under this section or any other relevant section of the Penal Code, seemingly despite any potential conflict between statutes. Here, the Legislature made its intent clear. To ignore this subsection would be to disregard that intent, contrary to the very purpose of the doctrine of in pari materia.

Given that § 32.51 and § 38.02 have different subjects and purposes and are aimed at different groups of people, it is clear that the two are not in pari materia, particularly in light of § 32.51(e). The court of appeals correctly held that the doctrine of in pari materia did not preclude Jones’s prosecution under § 32.51.

B. Applicable Sufficiency Standard

Upon further review of the record, we conclude that review of Jones’s second issue, in which she asserts the court of appeals applied an improper standard of review, was improvidently granted.

The court of appeals’s judgment is affirmed.

DATE DELIVERED: April 17, 2013

PUBLISH

1. Jones v. State, Nos. 05-10-01561-CR and 05-10-01562-CR, 2012 Tex. App. Lexis 785, at *5-6 (Tex. App.–Dallas Jan. 31, 2012) (mem. op., not designated for publication).

2. Ex parte Martin, 747 S.W.2d 789 (Tex. Crim. App. 1988) (op. on reh’g).

3. Ex parte Martin, 747 S.W.2d 789 (Tex. Crim. App. 1988) (op. on reh’g).

4. Jones, Nos. 05-10-01561-CR and 05-10-01562-CR, 2012 Tex. App. Lexis 785 at *7-8.

5. Mills v. State, 722 S.W.2d 411, 413 (Tex. Crim. App. 1986).

6. Azeez v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008); Alejos v. State, 555 S.W.2d 444, 450 (Tex. Crim. App. 1977) (quoting 2A C. Dallas Sands et al, Statutes and Statutory Construction § 51.03, at p. 298 (4th ed., 1973 & Supp.))

7. Azeez, 248 S.W.3d at 192.

8. Id.

9. Alejos, 555 S.W.2d at 450 (quoting 53 Tex. Jur. 2d, Statutes § 186 (1964)).

10. Azeez, 248 S.W.3d at 192.

11. Id.

12. Id.

13. Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006); see Tex. Gov’t Code § 311.026 (“(a) If a general provision conflicts with a special or local provision, the provision shall be construed, if possible, so that effect is given to both. (b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.”)

14. Azeez, 248 S.W.3d at 192.

15. Tex. Penal Code § 32.51(e).

Appellant filed a motion for new trial on January 15, 2009, but it was denied. Appellant appealed, arguing that the restitution order must be vacated because the trial court did not orally pronounce restitution in open court, and the written judgment therefore did not properly reflect the orally pronounced sentence. Appellant argued in the alternative that the trial court improperly calculated restitution to include losses from individuals not named in the indictment. The court of appeals held that, under Tex. R. App. P. 33.1(a), appellant had failed to preserve the restitution issues by failing to raise them in the trial court. Burt v. State, No. 05-09-00116-CR, 2011 WL 3211249, at *10 (Tex. App.-Dallas July 29, 2011, pet. granted) (mem. op., not designated for publication).

Because appellant did not have an opportunity to object to the restitution order in the trial court, we find that he could not have preserved the error for review and that the error was therefore not forfeited. (1) We reverse the court of appeals and remand this cause to that court for consideration of the merits of the appellant’s restitution claims.

I. Facts

Appellant was accused of operating a Ponzi scheme involving real estate and was charged with misapplication of fiduciary property in an aggregate amount over $200,000. He was represented by appointed counsel. Twenty complainants were named in the original indictment, but the trial court later granted the state’s motion to strike four of those names. At trial, there was extensive testimony from appellant’s alleged victims regarding the amount of money they had lost.

Appellant’s trial ended on January 15, 2009. The jury returned a guilty verdict, and the trial court held a punishment hearing. After the jury left the courtroom to deliberate on punishment, the trial judge instructed the state “to prepare a proposed order of restitution in the case, probably with some sort of supporting memorandum to justify whatever number you come up with.” The judge continued, “You can rely on everything that was introduced in the case. We don’t need to have a hearing on it as far as an evidentiary hearing, but if y’all can’t come up with an agreed figure, then we will have to have a hearing on it at some point in the future, okay? And the sooner, the better.”

The jury sentenced appellant to 14 years’ incarceration and a $10,000 fine. The trial judge orally pronounced appellant’s sentence in accordance with the jury’s verdict and then stated to the parties, “The sooner we can get that restitution matter taken care of, the better.” The docket sheet contains a January 15, 2009 entry that states, “restitution order to follow,” and a January 16, 2009 entry that states, “restitution ordered.” The judgment, dated January 16, 2009, contains a restitution order for $591,785, which corresponds to the total reflected in State’s Exhibit 57, a table of twenty named victims and their alleged losses. The record does not reflect when appellant became aware of the restitution order.

At the conclusion of the trial on January 15, 2009, appellant filed a motion for new trial, notice of appeal, and his pauper’s oath in order to obtain appointed appellate counsel. On that same day, appellant’s motion for new trial was overruled, (2) and he was appointed appellate counsel.

Appellant appealed, raising five issues, including two issues challenging the restitution order. In issue number four, appellant argued that, “because the trial court failed to hold a restitution hearing and did not impose restitution in open court, the trial court erred by entering an order of restitution in the judgment. The judgment should be reformed to strike the restitution order.” In issue number five, appellant argued that, “only in the alternative to Issue No. 4, the restitution order is flawed and should be remanded to the trial court for a restitution hearing.”

The court of appeals affirmed the judgment, but it did not reach the merits of issues four and five. The court found that appellant failed to preserve those issues for appellate review either by objecting to the court’s imposition of restitution or by raising the issue in an amended motion for new trial. Burt v. State, 2011 WL 3211249, at *10.

Appellant filed a petition for discretionary review raising four grounds. The first three grounds challenge the court of appeals’s holding on preservation, while the fourth ground challenges the amount of restitution. (3)

II. Analysis

A. Preservation

Ordinarily, to preserve an issue for appellate review, an appellant must have first raised the issue in the trial court. Tex. Rule App. Proc. 33.1(a); see also Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (discussing Rule 33.1). A sentencing issue may be preserved by objecting at the punishment hearing, or when the sentence is pronounced. See, e.g., Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim. App. 2002) (appellant failed to preserve error as to restitution amount by failing to object at the punishment hearing to amount of restitution sought by the prosecution); Russell v. State, 341 S.W.3d 526, 527-28 (Tex. App.–Fort Worth 2011, no pet.) (appellant failed to preserve Eighth Amendment complaint when he did not object at sentencing). In some instances, an appellant may preserve a sentencing issue by raising it in a motion for new trial. See, e.g., Bitterman v. State, 180 S.W.3d 139, 142-43 (Tex. Crim. App. 2005) (appellant raised issue of plea breach in motion for new trial). (4)

The requirement that an objection be raised in the trial court assumes that the appellant had the opportunity to raise it there. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (appellant did not allege that he did not have an opportunity to object when sentence was pronounced and so failed to preserve error); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (permitting appellant to raise his objection for the first time in a motion for new trial since “appellant had no opportunity to object to the trial court’s action until after that action was taken.”). Thus, when an appellate court finds that error has not been preserved, it will often recite the times at which the appellant had the opportunity to object, but failed to do so. See, e.g., Idowu v. State, 73 S.W.3d at 920 (“Neither appellant nor his counsel objected at the punishment hearing . . ..); see also Burt v. State, 2011 WL 3211249, at *10. An appellant fails to preserve error by failing to object when he had the opportunity; conversely, if an appellant never had the opportunity to object, then he has not forfeited error. See Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003) (appellant did not forfeit his objection since “the [trial] court modified the terms of Rickels’s probation without a hearing, and Rickels had no opportunity to object.”); Cobb v. State, 95 S.W.3d 664, 666 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (appellant did not forfeit challenge to language in written judgment “because the judgment was not prepared until after the end of the hearing, [therefore] appellant could not have complained at the hearing about any alleged defect in the judgment.”).

In this case, the court of appeals held that appellant had not preserved his complaint about the restitution order when “[a]ppellant did not object to the trial court’s imposition of restitution . . ., [appellant] did not include restitution as an issue in [the motion for new trial] . . ., [and] appellant did not file an amended motion for new trial raising the restitution issue.” Burt v. State, 2011 WL 3211249, at *10. In finding that error was not preserved, the court of appeals suggested three ways that appellant could have preserved the restitution issues: by objecting to the imposition of restitution (presumably at the sentencing hearing); by including the issues in the motion for new trial; or by amending his motion for new trial to include the restitution issues. Id. But the court of appeals’s analysis ignores the fact that it was impossible for appellant to raise the restitution issues in any of these forums, since the written judgment containing the restitution order was issued after each of these supposed opportunities. Cf. Bailey v. State, 160 S.W.3d 11, 16 (Tex. Crim. App. 2004) (“[appellant] could not have appealed a decision granting restitution because there was no restitution award to appeal.”).

Appellant raised two issues concerning restitution in the court of appeals: that his orally pronounced sentence was different from the sentence in the written judgment and the oral pronouncement should control; and that the amount in the written judgment improperly included losses from alleged victims not named in the indictment. These issues arose when restitution was ordered in the written judgment. Although each of the three forums suggested by the court of appeals for preservation was available to appellant, they were available to him only before the written judgment issued and therefore could not have been used to challenge a judgment that did not yet exist. (5)

Appellant could not have objected during the oral pronouncement because at that point, he could not have known that the sentence in the written judgment would be different from the orally pronounced sentence, or that there might be error in the amount of restitution. Similarly, when appellant filed his motion for new trial on January 15, 2009, the written judgment had not yet issued, so appellant could not have known to include the restitution issues in the motion. The trial court ruled on the motion for new trial that same day, thus preventing appellant from amending the motion to include the restitution issues.

We sustain appellant’s grounds for review one, two, and three.

B. Amount of restitution

Appellant argues in his fourth issue that “the restitution order is an illegal sentence because it orders payment to non victims who are not named in the indictment.” The court of appeals did not reach the merits of this issue because it found that the issue was not preserved. We find that, in the circumstances surrounding the judgment, applicant did not forfeit his complaint as he had no opportunity to object and therefore could not have preserved error. We remand appellant’s fourth ground for review to the court of appeals.

III. Conclusion

Because the court of appeals found that appellant’s restitution issues had not been preserved and therefore did not reach their merits, we reverse the judgment of the court of appeals and remand this cause to that court to address the merits of appellant’s complaints: whether the trial court erred in including a restitution order in the written judgment; or, in the alternative, whether the trial court impermissibly included in the restitution order losses from victims not named in the indictment.

Delivered: April 17, 2013

Publish

1. We note that, although appellant couches his complaint in terms of waiver, the claim asserted is actually that of forfeiture by failing to preserve the error for appellate review. Waiver: “The intentional relinquishment of a known right, claim, or privilege.” Ballentine’s Law Dictionary 1356 (3d ed. 1969). Forfeiture: “an enforced and involuntary loss of a right.” Id. at 489.

2. As appellant points out, the trial court’s docket sheet does not indicate when the motion for new trial was overruled. However, appellant states in his brief that FORVUS, the case-management computer system for Dallas County, indicates that the motion for new trial was overruled on January 15, 2009. Since this is not disputed by the state, and the record is otherwise silent, we will assume that the motion was overruled on January 15, 2009.

3. As stated in appellant’s petition for discretionary review:

Ground for review No. 1: The court of appeals’ determination that the trial court’s error is subject to waiver violates appellant’s right to procedural due process under the Fourteenth Amendment to the United States Constitution (citation omitted.).

Ground for review No. 2: The court of appeals’ affirmed the trial court’s written restitution order which contradicts the oral sentencing pronouncement. The court of appeals’ determination that the trial court’s error is subject to waiver conflicts with this court’s decisions in Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004), Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004) and Ex Parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).

Ground for review No. 3: The court of appeals’ determination that appellant waived objection to the trial court’s written restitution order despite the absence of an oral restitution pronouncement conflicts with the decisions of every other court of appeals which has considered the issue (citation omitted).

Ground for review No. 4: The restitution order is an illegal sentence because it orders payment to non- victims who are not named in the indictment. The court of appeals affirmed the illegal sentence in violation of this Court’s decisions in Ex Parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006), Ex Parte Lewis, 892 S.W.2d 4, 6 (Tex. Crim. App. 1994), and Gordon v. State, 707 S.W.2d 626, 629 (Tex. Crim. App. 1986).

4. This Court has held that an appellant may raise a sentencing issue in a motion for new trial for the first time only if the appellant did not have the opportunity to object in the punishment hearing. Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (“[In Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992)], we permitted the preservation of error [by filing a timely motion for new trial] only because the appellant did not have the opportunity to object [to the trial court's denying appellant a separate punishment hearing].”).

5. We assume, arguendo, that appellant found out about the restitution order at the earliest possible moment -when the written judgment issued. However, we note that the record does not reflect when appellant became aware of the grounds for his complaint, and it is unlikely that appellant found out about the restitution order immediately after the written judgment issued. Appellant’s appointed trial counsel had already been dismissed, appellant had begun serving his sentence, and there is no requirement that inmates be served with their written judgment.

The judgment entered against the applicant reflects that he was charged with the offense of forgery of a check in cause number 2000CR1247, allegedly committed on September 27, 1999. (2) A jury convicted him of that offense on January 31, 2002. On April 12, 2002, he pled true before the trial court to unspecified enhancement provisions, and the trial court assessed a sentence of twenty years’ incarceration in the penitentiary. (3) The judgment also reflects that court costs were assessed against the applicant on that date in the amount of $295.25. In the specific category of “APPOINTED ATTY,” however, the trial court assessed no cost against the applicant in the judgment. The judgment reflects that the applicant was represented by counsel at trial, but does not specify whether counsel was retained or appointed.

More than nine years later, on July 27, 2011, the Bexar County District Clerk issued a “Bill of Cost” with respect to cause number 2000CR1247. In addition to the $295.25 that were specifically assessed in the judgment as court costs in 2002, this belated “Bill of Cost” also assessed a cost for “APPOINTED ATTY” in the amount of $7,945.00. The applicant subsequently filed a pleading denominated as a post-conviction application for writ of habeas corpus, on this Court’s prescribed form, (4) challenging the district clerk’s apparently unilateral assessment of appointed attorney fees as a cost of court on due process grounds. The applicant alleged that, as of the time of his trial and appeal, he had been “declared indigent and has had no material change in his financial status” since that time. Relying upon Article 26.05(g) of the Code of Criminal Procedure, (5) as well as this Court’s opinion in Mayer v. State, (6) the applicant claimed that, because the trial court has never made a finding that he is able to pay the cost of his representation, the “Bill of Cost” should be deleted. (7) The trial court forwarded the application to this Court with a recommendation that it simply be dismissed for failing to state facts that, even if true, would entitle him to relief from the judgment of conviction against him. In essence, the trial court would have us dismiss the applicant’s purported writ application because it does not state a claim that is cognizable in felony post-conviction habeas proceedings under Article 11.07.

Rather than immediately accepting that recommendation, and without specifically addressing the trial court’s concern with the cognizability of the applicant’s claim, this Court remanded the cause to the trial court for further fact development. (8) The trial court has now forwarded amended findings of fact and conclusions of law to this Court. Relying upon “personal recollection,” (9) but without addressing whether the applicant was indigent and represented by appointed counsel at trial, the trial court made an express finding of fact that the applicant was determined to be indigent for purposes of appeal on May 6, 2002, and that counsel was duly appointed to represent him for appellate purposes on May 21, 2002. Moreover, the trial court determined, “[t]here is no record that the court conducted any hearing or findings into [the applicant's] ability to pay his court-appointed attorney fees after [he] was determined to be indigent.” On the basis of these amended findings, the trial court now recommends that we grant habeas corpus relief by deleting the “Bill of Cost.”

In Mayer v. State, we observed that “the defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees” under Article 26.05(g). (10) The trial court has conceded that the District Clerk’s 2011 “Bill of Cost” is not predicated upon any findings whatsoever with respect to these “critical elements.” Because no such findings were made during the nine years between the entry of the judgment and the Clerk’s issuance of the “Bill of Cost,” there is no basis for the assessment of attorney fees in the latter. (11)

We decline to grant post-conviction habeas corpus relief under Article 11.07, however. On reflection, we conclude, as did the convicting court in its initial recommendation, that the applicant’s challenge to the “Bill of Cost” in no way implicates the fact or duration of his confinement pursuant to his conviction in cause number 2000CR1247; for this reason, it is not the proper subject of a statutorily governed post-conviction application for writ of habeas corpus. (12) On the other hand, if the District Clerk’s “Bill of Cost” has any validity at all, it could be only by virtue of the trial court’s authority under Article 26.05(g), and questions of the validity of orders entered under the authority of this provision, we have held, constitute “criminal law matters” for purposes of our mandamus jurisdiction under Article V, Section 5(c), of the Texas Constitution. (13) It has long been our practice with respect to pleadings in extraordinary matters to look to the substance of the pleading, not its denomination. (14) Considering the substance of the present applicant’s pleading, we will treat it as an application for writ of mandamus that asks us to compel the Bexar County District Clerk to amend the “Bill of Cost” corresponding to cause number 2000CR1247 that was filed on July 27, 2011.

Before we may grant extraordinary relief on his application as a writ of mandamus, the applicant must fulfill two prerequisites. First, he must show that he lacks an adequate legal remedy. (15) Because the District Clerk’s “Bill of Cost” came nine years after the judgment of conviction was entered, long after the applicant could have challenged it in the course of an ordinary appeal, (16) because it does not now constitute an independently appealable order, (17) and because we have held today that it cannot be challenged in a post-conviction habeas corpus proceeding, we conclude that the applicant has satisfied the showing that he has no adequate legal remedy available. Second, he must show that he has a clear entitlement to the relief he seeks. (18) In the apparent absence of an order from the trial court under Article 26.05(g) mandating the reimbursement of appointed attorney fees–not to mention the necessary finding that a previously indigent applicant has the present financial wherewithal to pay those appointed attorney fees–the District Clerk lacked any authority to assess attorney fees as part of the belated “Bill of Cost” filed on July 27, 2011. (19) Accordingly, we will conditionally grant mandamus relief and order the Bexar County District Clerk to delete the assessment of costs for attorney fees in the amount of $7,945.00 from the “Bill of Cost” that was filed on that date, corresponding with the judgment in cause number 2000CR1247, while leaving intact those costs, in the amount of $295.25, that were expressly imposed by the trial court in the judgment.

We assume that the District Clerk will immediately comply with our order; the writ of mandamus will issue only in the event that she should refuse to do so. Mandamus relief is conditionally granted.

DELIVERED: April 17, 2013

PUBLISH

1. Tex. Code Crim. Proc. art. 11.07.

2. There is no copy of the indictment in the record presently before us.

3. The judgment reflects that the applicant was charged with forgery punishable as a state jail felony under Section 32.21(d) of the Texas Penal Code. Tex. Penal Code § 32.21(d). The judgment also reflects, in the category of “PLEA TO ENHANCEMENT,” that the applicant pled “TRUE TO HABITUAL,” while in the category “FINDING ON ENHANCEMENT,” the trial court accordingly found “TRUE TO HABITUAL.” Without the indictment before us, we cannot precisely determine how the applicant became susceptible to a twenty-year sentence, but he does not challenge that sentence in any respect in this proceeding.

4. See Tex. R. App. P. 73.1(a).

5. Effective January 1, 2002, this provision reads:

(g) If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.

Acts 2001, 77th Leg., ch. 906, § 8, p.1808, eff. Jan. 1, 2002.

6. 309 S.W.3d 552 (Tex. Crim. App. 2010).

7. See Defendant’s Brief in Support of 11.07 Habeas Petition at 5.

8. See Ex parte Daniel, 2012 WL 4449425 (No. WR-54,101-06, Tex. Crim. App., delivered September 26, 2012) (not designated for publication). Observing that “[t]here is no indication that the trial court ever signed an order imposing [attorney fees as court] costs or complying with” Article 26.05(g), we found that the applicant had “alleged facts that, if true, might entitle him to relief.” We remanded the cause accordingly, with the following instructions:

The trial court shall make findings of fact as to whether Applicant was declared indigent at the time of his trial and appeal and if so, when, if at all, the trial court ordered that Applicant repay attorney fees from his trial or appeal. If the trial court ordered Applicant to repay attorney fees, the trial court shall find whether any determination as to Applicant’s ability to pay was made prior to imposing those fees, and whether Applicant had the ability to appeal the imposition of such fees. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claims for habeas corpus relief.

Id. at *1.

9. See Tex. Code Crim. Proc. art. 11.07, § 3(d) (to resolve controverted issues of fact, trial court “may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection”). The same judge who signed the judgment of conviction in 2002 has also presided over these purported Article 11.07 proceedings.

10. 309 S.W.3d at 556. See also Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer).

11. Assuming, without deciding, that the applicant’s claim would be subject to ordinary notions of procedural default, we note that he has raised his claim at the earliest opportunity after the District Clerk issued its unilateral “Bill of Cost.” Moreover, we need not decide whether the District Clerk’s “Bill of Cost” would have been valid had it actually been predicated on a finding by the trial court, nine years after the fact, that the applicant can now afford to reimburse the State for the cost of his court-appointed representation. In Curry v. Wilson, 853 S.W.2d 40, 44-45 (Tex. Crim. App. 1993), we held that a trial court’s jurisdiction persists, even after the entry of a judgment of acquittal, to order the repayment of county funds under Article 26.05(g) (then Article 26.05(e)). We placed no specific time limits on this “continuing authority.” The provision was amended in 2002, however, to require that any such order be made “during the pendency of the charges or, if convicted, as court costs[.]” Acts 2001, 77th Leg., ch. 906, § 8, p. 1808, eff. Jan. 1, 2002. Whether this language qualifies our holding of “continuing authority” in Curry v. Wilson is an issue we need not presently decide, given the trial court’s concession that no such order has ever been entered in this case.

12. See, e.g., Ex parte Lockett, 956 S.W.2d 41, 42 (Tex. Crim. App. 1997) (this Court lacked jurisdiction under Article 11.07 to entertain a claim that assessment of a drug tax against the applicant violated double jeopardy because his “drug-tax claim does not request a change of either the fact or length of his confinement”); Ex parte Baker, 185 S.W.3d 894, 897-98 (Tex. Crim. App. 2006) (Article 11.07 habeas corpus relief “not available” to challenge effectiveness of counsel during post-conviction DNA-testing proceedings because those proceedings do not, in themselves, “impose an independent confinement”); George E. Dix & John M. Schmolesky, 43B Texas Practice: Criminal Practice and Procedure § 58:3, at 713-14 (3rd ed. 2011) (“Use of the Article 11.07 procedure is . . . limited to efforts to challenge either the fact or length of the confinement resulting from a felony conviction.”).

13. Johnson v. Tenth Judicial District Court of Appeals, 280 S.W.3d 866, 869 (Tex. Crim. App. 2008); Curry v. Wilson, supra, at 43; Smith v. Flack, 728 S.W.2d 784, 788-89 (Tex. Crim. App. 1987); Tex. Const. art. V, § 5(c). Cf. Armstrong, supra, at 767 (holding that sufficiency of the evidence to support order to reimburse attorney fees under Article 26.05(g) constituted a “criminal law matter” for purposes of invoking court of appeals’s authority to resolve criminal appeals).

14. E.g., Houlihan v. State, 579 S.W.2d 213, 216-17 (Tex. Crim. App. 1979); Broggi v. Curry, 571 S.W.2d 940 (Tex. Crim. App. 1978); State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168-69 (Tex. Crim. App. 1971).

15. E.g., Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011).

16. The appellant in Armstrong was able to appeal the assessment of attorney fees, but in that case, the bill of costs that included those fees was “prepared” the day after the appellant’s deferred-adjudication probation was revoked and the trial court signed the judgment proceeding to adjudication. 340 S.W.3d at 762.

17. The right to appeal is conferred by statute. Johnson, supra, at 873, n.38. We are aware of no statute conferring a right to appeal from a bill of costs independently of the appeal of the judgment of conviction in a criminal case, as in Armstrong.

18. Bowen, supra.

19. Tex. Code Crim. Proc. art. 26.05(g); Mayer, supra, at 556. In Armstrong, we held that “attorney fees as set forth in a certified bill of costs are effective whether or not incorporated by reference in the written judgment.” 340 S.W.3d at 767. Even so, Article 26.05(g) contemplates an express order from the trial court to require a defendant to reimburse to the State “the amount that it finds [he] is able to pay.” The trial court has conceded that it made no finding with respect to the applicant’s ability to pay prior to the District Clerk’s filing of the “Bill of Cost” in this case.

Lopez was soon met by Deputy Chavarria, and Lopez informed him that the home smelled like marijuana. Lopez and the deputy knocked on appellant’s door. Appellant cracked open the door, and Lopez again noticed a strong odor of marijuana from within the home. Deputy Chavarria also smelled “a very strong, fresh odor of marijuana” coming “from the crack in the door.” In light of his “suspicion to believe that there was possible marijuana in the house,” the deputy determined that entry was required to “prevent [the marijuana] from being destroyed” and to preserve it for use in prosecution. He thought that if he left to obtain a warrant, it would “make the evidence available for destruction.”

For this reason, Deputy Chavarria forcibly entered the home, pointed a taser gun at appellant, handcuffed him, and placed him on the floor. He searched appellant and the surrounding area for weapons and asked him if there was marijuana in the home. Appellant confirmed that there was and indicated that it was in a backpack nearby. The deputy located a plastic baggie of marijuana in appellant’s backpack after appellant consented to the search in writing. Deputy Chavarria placed him under arrest for possession of marijuana.

Appellant filed a motion to suppress the evidence. Appellant argued that the odor of marijuana alone does not justify a warrantless entry and that nothing indicated that he intended to destroy evidence. The trial court denied the motion. (1) The State offered the marijuana into evidence at trial, and the jury found appellant guilty and sentenced him to one year in prison, probated.

On direct appeal, appellant challenged the trial court’s ruling on the motion to suppress, arguing that the circumstances failed to justify the deputy’s warrantless entry into appellant’s home. The court of appeals agreed and reversed. Turrubiate, 365 S.W.3d at 783. It held that “the record does not support the existence of exigent circumstances requiring immediate entry into the apartment without first obtaining a warrant” because “nothing in the record suggests that destruction of evidence was a risk under the circumstances.” Id. at 787. Although the State’s brief argued that the risk to the child from the presence of marijuana in the home constituted an exigent circumstance that would permit the warrantless entry, the court of appeals did not address that argument, instead confining its analysis to the risk of the destruction of evidence as an exigent circumstance. See id. In its petition for discretionary review, as in its direct-appeal brief, the State contends that the risk to the child posed by the presence of marijuana in the home and the risk of the destruction of evidence each are exigent circumstances that justify this warrantless entry. We address only the risk of destruction of evidence because the court of appeals has not yet addressed whether there was an exigency based on any risk to the child. (2)

II. Analysis of Exigent Circumstances Based on Risk of Destruction of Evidence

A. Standard of Review

We review a trial court’s denial of a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010). We review the trial court’s factual findings for an abuse of discretion, but review the trial court’s application of law to the facts de novo. Id. When the trial court does not issue findings of fact, as here, findings that support the trial court’s ruling are implied if the evidence, viewed in a light most favorable to the ruling, supports those findings. See State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). Almost total deference is given to the trial court’s implied findings, especially those based on an evaluation of witness credibility and demeanor. Valtierra, 310 S.W.3d at 447. We will sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id.

Generally, in determining whether the State demonstrated probable cause and exigent circumstances, appellate review is limited to the record at the time of the suppression hearing. O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000). However, appellate review may include evidence adduced at trial when, as here, “the suppression issue has been consensually re-litigated by the parties during trial on the merits.” Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).

B. Law Applicable to Warrantless Entry

A warrantless entry into a residence is presumptively unreasonable. (3) Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). When a defendant moves to suppress evidence based on a warrantless search, the State has the burden of showing that probable cause existed at the time the search was made and that exigent circumstances requiring immediate entry made obtaining a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Probable cause exists when reasonably trustworthy circumstances within the knowledge of the police officer on the scene would lead him to reasonably believe that evidence of a crime will be found. See id. If probable cause exists, exigent circumstances may require immediate, warrantless entry by officers who are (1) providing aid to persons whom law enforcement reasonably believes are in need of it; (2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; or (3) preventing the destruction of evidence or contraband. Gutierrez, 221 S.W.3d at 685. We address the State’s argument regarding the third circumstance and remand for the court of appeals to address the State’s argument regarding the first circumstance.

1. Imminent Destruction of Evidence: McNairy factors and

Before the Supreme Court’s decision in Kentucky v. King, this Court, in McNairy v. State, identified five factors relevant to a reasonable determination by the searching officers that evidence might be destroyed or removed before they could obtain a search warrant. See Kentucky v. King, 131 S. Ct. 1849 (2011); McNairy, 835 S.W.2d at 107. The five circumstances were as follows:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant;

(2) a reasonable belief that the contraband is about to be removed;

(3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought;

(4) information indicating that the possessors of the contraband are aware that the police are on their trail; and

(5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

McNairy, 835 S.W.2d at 107.

The State argues that the court of appeals’s application of these factors conflicts with the recent Supreme Court opinion in King. See 131 S. Ct. 1849. The State argues that, under King, the primary inquiry in deciding the legality of a warrantless entry is whether an officer reasonably believed that entry was necessary to prevent the destruction of evidence. See id. It contends that the existence of probable cause combined with the deputy making his presence known to the occupants and the strong odor of marijuana emanating from the home justified the deputy’s inference that the destruction of evidence was imminent so as to permit the warrantless entry. We disagree.

In King, the Court held that, when probable cause and exigent circumstances exist, police officers may enter a home without a warrant, even when their conduct created the exigency, as long as the officers did not create the exigency by violating or threatening to violate the Fourth Amendment. Id. at 1858. The Court assumed that an exigency existed and decided only the question, “Under what circumstances do police impermissibly create an exigency?” Id. at 1862-63. The Court determined that police officers loudly knocking on the door of an apartment and announcing their presence did not violate or threaten to violate the Fourth Amendment. Id. at 1863. It disavowed many state-court approaches, including faulting a police officer who, after acquiring evidence sufficient to establish probable cause to search, did not seek a warrant, but instead knocked on the door to speak with an occupant or to obtain consent to search. Id. at 1860.

Nothing in King supports the State’s contention that a police officer who has probable cause to believe that there are illegal narcotics in a home may enter that home without a warrant after he has identified himself as an officer and made his presence known to the occupant if there is a noticeable odor of marijuana emanating from the home. See id. The State’s approach would abandon the requirement that the record affirmatively show facts that reasonably indicate exigent circumstances that a defendant was attempting to, or would attempt to, destroy evidence, a requirement vital to the Supreme Court’s holding in King. Compare id. at 1856-57. The State’s interpretation would permit a presumption that an occupant will attempt to destroy illegal narcotics merely because he possesses them and is aware of the presence of police, and there is an odor of marijuana. The State’s proposed approach is ultimately premised upon generalizations regarding the behavior of individuals who are in possession of illegal narcotics, namely, that they will take immediate action to destroy evidence if the police are at their door and an odor of marijuana fumes is present.

An approach based on such generalizations, however, is not authorized by King. See id. at 1862. The Supreme Court’s analysis in King states,

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

Id. (internal citations omitted) (emphasis added). The Supreme Court did not presume that possessors of narcotics would destroy evidence upon learning of a police presence, but instead held that only those occupants who attempted to destroy evidence would be subjected to a warrantless exigent-circumstances search. Id. In other words, the Court required that the record show proof of imminent destruction based on affirmative conduct by those in possession of narcotics in a particular case. See id. (4)

In light of King, we conclude that the five McNairy factors no longer adequately assist a court in determining whether the record shows an exigent circumstance. See id.; McNairy, 835 S.W.2d at 107. The first circumstance—the degree of urgency involved and the amount of time necessary to obtain a warrant—and the third circumstance—the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought—are now immaterial to the exigent-circumstances evaluation. See King, 131 S. Ct. at 1962; McNairy, 835 S.W.2d at 107. The second circumstance, which permits consideration of whether there is a reasonable belief that the contraband is about to be removed, essentially allows the court to consider the ultimate question at issue, which asks whether there is proof that the officer reasonably believed that removal or destruction of evidence was imminent. See King, 131 S. Ct. at 1862. Although it remains appropriate for a court to consider McNairy‘s fourth and fifth circumstances regarding whether occupants know the police are “on their trail” and whether the evidence is readily destructible, these factors are merely aids in a court’s assessment of the entire record in determining whether the officer reasonably believed that the removal or destruction of evidence was imminent. See id.; McNairy, 835 S.W.2d at 107.

2. Circumstances Did Not Show Destruction of Evidence Imminent

The State contends that, given the strong odor of marijuana emanating from appellant’s home, it was reasonable for the trial court to conclude that appellant was aware that the police were on his trail when he opened the door. Despite the lack of furtive movements, the State contends that these circumstances, alone, gave the officer reason to believe that appellant would attempt to destroy the marijuana absent immediate intervention. We disagree.

We can conceive of many instances in which an occupant possessing contraband would not attempt to destroy it after a police officer has identified himself at the occupant’s door. For example, a police officer may have probable cause to believe that a high-school student is in possession of marijuana that he sells from his bedroom in his parents’ home. The student’s parents, knowing that the officer is on the student’s “trail” for the marijuana in their home, would not necessarily attempt to destroy the contraband. But the State’s proposed approach would permit the warrantless search because an officer has probable cause and there is a presumed exigency that someone in possession of contraband will destroy it when he knows a police officer is on his trail. Or an occupant may know that it would be futile to attempt to destroy the illegal substance, such as someone in possession of 100 kilos of well-packaged cocaine. Or an occupant may decide to risk keeping the illegal substance despite the police presence, such as someone who believes he has successfully concealed the substance against police search. A reviewing court should not presume, therefore, that a showing that an occupant possessed contraband and that an officer with probable cause knocked and announced himself also shows that destruction of evidence was imminent.

Although the Supreme Court did not reach the ultimate question as to whether there actually were exigent circumstances in King, the Court discussed the evidence that tended to show the existence of those circumstances. King, 131 S. Ct. at 1862. This included evidence that (1) police officers smelled marijuana coming from an apartment and (2) after officers banged on the apartment door, they “‘could hear people inside moving,’” and “‘[i]t sounded as [though] things were being moved inside the apartment.’” Id. at 1854. Those noises led the officers to believe that “drug-related evidence was about to be destroyed.” Id.

By comparison, the only facts that purportedly establish exigent circumstances in this case are the odor of marijuana and appellant’s knowledge that a police officer was at appellant’s door. Lacking is the additional evidence discussed in King of attempted or actual destruction based on an occupant’s movement in response to the police knock. Id. We require some evidence of exigency beyond mere knowledge of police presence and an odor of illegal narcotics. (5)

We agree with the court of appeals that nothing in the record suggests that destruction of evidence was imminent under the circumstances. See Turrubiate, 365 S.W.3d at 787. Appellant voluntarily answered the door both times Lopez knocked and did not engage in any conduct suggesting that he intended to destroy evidence, such as making furtive movements after seeing Deputy Chavarria at the door.

Similarly, the state court in King on remand from the Supreme Court determined that the facts in that case, which included the additional circumstance of sounds of things being moved inside the apartment, did not establish exigent circumstances. King v. Commonwealth,386 S.W.3d 119, 122-23 (Ky. 2012, pet. for cert. filed). Concluding that the officers’ belief that evidence was about to be destroyed was not supported by the record, the court noted that the sounds described by the officers “were indistinguishable from any household sounds, and were consistent with the natural and reasonable result of a knock on the door.” Id. It explained that probable cause to believe that a crime has been committed does not necessarily create exigent circumstances and held that the State “must show something more than a possibility that evidence is being destroyed to” constitute an exigent circumstance. Id. at 123.

The Eighth Circuit recently held that facts arguably more incriminating than those in the present case did not constitute exigent circumstances under King. United States v. Ramirez, 676 F.3d 755, 761-63 (8th Cir. 2012). In United States v. Ramirez, the record revealed that officers had probable cause to believe that occupants of a hotel room were in possession of illegal drugs. Id. at 758. The officers knocked on the hotel-room door and heard “the sound of an individual approaching the door.” Id. No one, however, answered the door. Id. Having already obtained a key to the room, an officer unsuccessfully attempted to open the door with it, while blocking the peephole and announcing “housekeeping.” Id. When an occupant partially opened the door, the officers announced themselves, and the occupant tried to shut the door. Id. The officers forced the door open and found contraband within the room. Id.

Concluding that the circumstances did not justify the officers’ warrantless entry, the Court noted that the officers had neither seen nor heard anything indicating that the occupants might imminently destroy evidence. Id. at 763. The Court observed that there was “no dead bolt lock being engaged, no toilet flushing or a shower or faucet running, and no shuffling noises or verbal threats emanating from the room; nor did the officers have any information that an occupant of room 220 had attempted to escape through a window, nor any indication that these individuals were armed or dangerous.” Id. The Court explained that, “when the police knock on a door but the occupants choose not to respond or speak, or maybe even choose to open the door and then close it, or when no one does anything incriminating, the officers must bear the consequences of the method of investigation they’ve chosen.” Id. at 762. The Court observed that, even assuming the officers were “conducting a run-of-the-mill attempt to simply knock and gain entry,” the occupant was not obligated to allow them to enter and was “within his bounds in his attempt to close the door.” Id. The Court concluded that the occupant’s attempt to shut the door in response to the officers’ knock did not support the exigency and “[t]hat he did so, without more, does not bolster the claim that it was reasonable to conclude that the destruction of evidence was imminent.” Id. Similarly, given the absence of evidence in the present case showing that the destruction of evidence was imminent, we agree with the court of appeals that the record does not support the deputy’s warrantless entry into appellant’s home on that basis.

III. We Remand Case for Court of Appeals to Decide State’s Alternative Ground

In its brief to both the court of appeals and to this Court, the State alternatively contends that another exigent circumstance justified the warrantless entry, namely, that a police officer in Deputy Chavarria’s position would have reasonably believed that the presence of marijuana in the home was endangering the health and safety of the six-month-old baby who lived there. (6) See Gutierrez, 221 S.W.3d at 685. The emergency-doctrine exception to the Fourth Amendment permits police officers to make warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Id.; Shepherd v. State, 273 S.W.3d 681, 683-84 (Tex. Crim. App. 2008). If a search is justified for that type of exigency, the police may seize any evidence that is in plain view or otherwise lawfully obtained during the course of their legitimate emergency activities. See Shepherd, 273 S.W.3d at 683-84; Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).

The State explains that an officer would have reasonably believed that exigent circumstances existed based on (1) appellant’s admission that a child lived in the home; (2) the report submitted to the children’s protective agency that alleged marijuana use inside that home; and (3) the noticeable odor of marijuana coming from inside the home. The court of appeals did not address the State’s contention that the deputy’s entry was justified by an objectively reasonable belief that the child required immediate aid. See Gutierrez, 221 S.W.3d at 685. Because this alternative ground, if supported by the record, may have been the basis to properly uphold the trial court’s finding of exigent circumstances, the court of appeals erred in failing to address it. See Valtierra, 310 S.W.3d at 447-48 (reviewing court will sustain trial court’s ruling if that ruling is “reasonably supported by the record and is correct on any theory of law applicable to the case”); Tex. R. App. P. 47.1 (appellate court must hand down an opinion that addresses every issue raised and necessary to final disposition of appeal). We remand this case to the court of appeals, therefore, to decide whether the State made the argument regarding the imminent risk to the baby at trial and, if not, whether the court of appeals may nonetheless address that argument on appeal because it is an alternative basis to uphold the trial court’s ruling. See Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App. 2012) (appellate court may not reverse conviction without first addressing preservation issues). We sustain the State’s sole issue in part.

IV. Conclusion

A police officer who enters a home without a warrant merely because he had probable cause to believe contraband was in that home, smelled marijuana, and identified himself to the occupant of that home violates the Fourth Amendment. We, however, reverse the judgment of the court of appeals and remand the case to that court to decide the State’s appellate arguments with respect to the safety of the child.

Delivered: April 10, 2013

Publish

1. The trial judge did not render a ruling at the hearing and indicated that she would issue a ruling before trial. About five weeks later and several months before the trial had begun, she tendered a letter to the parties informing them that she was denying the motion, and that letter was made a part of the record on appeal. See Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985) (“It is settled that when a pre-trial motion to suppress evidence is overruled, the accused need not subsequently object to the admission of the same evidence at trial in order to preserve error.”). Neither party requested findings of fact or conclusions of law.

2. The State’s sole ground in its petition for discretionary review states,

The Court of Appeals’ opinion fails to read the record in a light most favorable to the trial court’s ruling and fails to consider the totality of the circumstances in contravention of the appropriate standard of review, resulting in an erroneous conclusion that no exigency existed to justify the deputy’s warrantless entry into the appellant’s residence in conflict with the United States Supreme Court’s opinion in Kentucky v. King[, 131 S. Ct. 1849 (2011)].

3. Within the last few weeks, the Supreme Court reiterated that at the Fourth Amendment’s “‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Florida v. Jardines, 569 U.S. ___, No. 11-564, 2013 U.S. LEXIS 2542, at *7-8 (U.S. Mar. 26, 2013) (not yet reported) (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)). Citing King, the Supreme Court reaffirmed that “[a] police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is ‘no more than any private citizen might do.’” Id. at *11 (quoting King, 131 S. Ct. at 1862).

4. The Fifth Circuit has also recently explained that the mere possibility that evidence may be destroyed does not give rise to a finding of exigent circumstances. United States v. Menchaca-Castruita, 587 F.3d 283, 295-96 (5th Cir. 2009). It rejected the government’s argument based on generalizations regarding drug traffickers and instead required evidence of more specific circumstances to support an officer’s belief that delay to obtain a warrant will result in the destruction of evidence. Id.

5. See, e.g., Gutierrez v. State, 221 S.W.3d 680, 683 (Tex. Crim. App. 2007) (exigent circumstances existed where (1) officers had tip that appellant had a stolen computer; (2) appellant saw officers arrive at his home and met them outside; (3) officers smelled marijuana from inside the home; (4) officers questioned him about the computer; (5) he admitted having the stolen computer; (6) he “had bloodshot eyes and looked very nervous;” and (7) he said he would go inside and retrieve the computer while officers remained on the porch); Estrada v. State, 154 S.W.3d 604, 605-06 (Tex. Crim. App. 2005) (exigent circumstances where officer smelled marijuana, knocked and announced, then heard people “running” inside, and, after no one answered, he saw two vehicles quickly exiting the driveway); United States v. Mata, 517 F.3d 279, 289 (5th Cir. 2008) (exigent circumstances existed where officers knew that (1) occupants possessed contraband “with absolute certainty;” (2) knew they “had only hours” before the occupants would deliver the drugs; (3) numerous cars were entering and exiting the premises; and (4) “individuals were conducting counter-surveillance–keeping an eye out for law enforcement”); United States v. Jones, 239 F.3d 716, 721 (5th Cir. 2001) (exigency where officers suspected, but were not certain, that criminal activity was occurring within home, knocked, and saw firearm in plain view within reach of occupant when he opened the door), cert. denied, 534 U.S. 861 (2001).

6. The State argues that, although the deputy did not testify that he entered the residence out of concern for the child’s safety, objective evidence of an exigency will justify an officer’s warrantless entry irrespective of his subjective motives. See Bond v. United States, 529 U.S. 334, 339 n.2 (2000) (“[T]he subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s actions violate the Fourth Amendment.”).

The court of appeals affirmed appellant’s conviction. Appellant filed a petition for discretionary review in this Court, raising one issue: whether Section 51.095(a)(1)(A) permits law-enforcement officers to be present when a juvenile is initially read his rights. (2) Because Section 51.095(a)(1)(A) does not prohibit the presence of law-enforcement officers, we affirm.

I. Facts

On May 24, 2010, the complainant and three of his friends were robbed in Texarkana by three people, one of whom brandished an AK-47 assault rifle. Later that night, a Texas Department of Public Safety patrolman saw a vehicle approaching him with its headlights off. The vehicle’s headlights went on, and then off, and then on again. The officer followed the vehicle into a parking lot and saw the two rear-seat passengers, one of whom was appellant, exit the vehicle, place an object wrapped in a white cloth behind the vehicle’s back tire, and walk away. The officer picked up the object and saw that it was an AK-47. He ran after appellant and caught him, then handcuffed appellant and placed him in the patrol car. The officer questioned appellant about the vehicle’s other occupants, whom appellant identified. The officer found women’s jewelry and a cell phone on appellant. The phone was later identified as belonging to a recently robbed Hooks resident.

Appellant was arrested and taken to the Hooks Police Department, a juvenile processing center. A magistrate read him Miranda warnings, and he was then interrogated by police officers. After an hour and a half, appellant was taken to the juvenile detention center in Texarkana, where he was put into the custody of a juvenile officer, who transported him to the juvenile detention center in Marshall, Harrison County. Two Texarkana police officers were dispatched to Marshall to obtain a statement from appellant.

The two Texarkana officers took appellant to the office of Justice of the Peace Kenneth Alford. Alford read the Miranda warnings to appellant, which according to Alford, appellant understood and voluntarily waived his rights. At the later suppression hearing, Alford stated that he was alone in his office when he administered the warnings to appellant, but one of the Texarkana officers stated that both the officers were present for the warnings.

After the magistrate read the warnings to him, appellant was interrogated by the officers. One officer asked most of the questions, while the other typed appellant’s statement. Appellant’s statement was given to Alford, who, according to his testimony at the suppression hearing, reviewed it with appellant outside the presence of the officers, and appellant signed it voluntarily. In the signed statement, appellant admits to taking part in the charged robbery, as well as other robberies and burglaries.

Appellant moved to suppress the signed statement at trial, but the motion was denied. Appellant was found guilty and appealed. Relying on Diaz v. State, 61 S.W.3d 525, 527 (Tex. App.–San Antonio 2001, no pet.), which stated in dicta that “[n]o law enforcement personnel are allowed to be present during the [magistrate's] warnings . . .,” appellant argued that the statement should have been suppressed because it was obtained in violation of Section 51.095(a)(1)(A). The court of appeals disagreed, holding instead that “[t]here is no requirement anywhere in § 51.095 mandating that the magistrate be alone with the juvenile at the time the warnings are given.” Herring v. State, 359 S.W.3d 275, 280 (Tex. App.–Texarkana 2012, pet. granted). Appellant filed a petition for discretionary review in this Court to resolve the apparent conflict between the courts of appeals.

II. Analysis

At issue are various subsections of Texas Family Code section 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;

(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; . . ..

Section 51.095(a)(1) delineates what is required before a juvenile’s written statement may be admitted as evidence. Subsection 51.095(a)(1)(A) requires that the statement show “that the child has at some time before the making of the statement received from a magistrate” the statutory warnings set out in subsections 51.095(a)(1)(A)(i)-(iv). Subsection 51.095(a)(1)(B)(i) requires that “the statement [] be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present . . ..” Subsection 51.095(a)(1)(D) instructs the magistrate to determine that the juvenile understands the contents of the statement and that the juvenile has knowingly, intelligently, and voluntarily waived his rights. This section also requires the magistrate to certify that “the magistrate has examined the child independent of any law enforcement officer or prosecuting attorney . . . and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights[.]” At issue in this case is whether Subsection 51.095(a)(1)(A) likewise prohibits the presence of law enforcement when the magistrate gives the warnings to the juvenile.

All that Subsection 51.095(a)(1)(A) requires is that a magistrate read the juvenile the statutory warnings enumerated in Section 51.095(a)(1)(A)(i)-(iv). There is no explicit requirement in this section that the magistrate be alone with the juvenile or that law-enforcement officers not be present. In contrast, Subsections 51.095(a)(1)(B)(i) and 51.095(a)(1)(D) expressly prohibit the presence of law-enforcement officers, unless it is required for the safety of court personnel. Appellant urges us to import the express prohibition of the presence of law-enforcement officers in Subsections 51.095(a)(1)(B)(i) and 51.095(a)(1)(D) into Subsection 51.095(a)(1)(A). We decline to do so.

Appellant concedes that Subsection 51.095(a)(1)(A) is silent as to the presence of law-enforcement officers. Appellant also correctly states that, in Diaz, the Fourth Court of Appeals made “clear that no law-enforcement officers are allowed to be present during any of the warnings.” See Diaz, 61 S.W.3d at 527. However, the issue in Diaz was not the presence of law-enforcement officers, but misstatements by the magistrate about the maximum range of punishment. While the court of appeals did state that no officers may be present during the warnings, it cited only generally to Section 51.095 without discussion or analysis as to why that could be true. See id. Neither Diaz nor appellant offers convincing analysis as to why our interpretation should stray from the text of the statute. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (“Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.”)

Appellant also proposes general policy reasons why the Diaz approach “complies with the purpose of the Juvenile Justice Code,” but appellant’s argument “is nevertheless one of policy, not of statutory construction.” See Tyra v. State, 897 S.W.2d 796, 799 (Tex. Crim. App. 1995).

III. Conclusion

Because Texas Family Code subsection 51.095(a)(1)(A) does not explicitly prohibit the presence of law-enforcement officers when a magistrate reads the required statutory rights to a juvenile, while other subsections of Section 51.095 expressly forbid the presence of law-enforcement officers during other kinds of proceedings, we hold that, by omitting such a prohibition in Subsection 51.095(a)(1)(A), the legislature expressed its intent that such a prohibition should not apply to the reading of the statutory warnings. (3) We affirm the judgment of the court of appeals.

Delivered: April 10, 2013

Publish

1. Appellant was later certified to stand trial as an adult.

2. As stated in appellant’s petition for discretionary review, “Although Texas Family Code Section 51.095(a)(1)(A) is silent as to whether law enforcement may be present when a juvenile is initially read his rights, Diaz v. State calls this statutory silence into question. Clarification is needed on this point, as Appellant’s confession would not have been admissible under the Diaz analysis.”

3. We leave open the question of whether a magistrate may choose to exclude law-enforcement officers from the reading of the statutory warnings.

BACKGROUND

Applicant was arrested on December 8, 2006, during the execution of a search warrant on Room 25 of the Sunset Motel located at 2305 Clovis Road, Lubbock, Texas. The search resulted in the seizure of cocaine base and marijuana. Applicant was indicted for the offense of possession with intent to deliver cocaine in an amount of between 4 and 200 grams.

The affidavit in support of the search warrant stated the following, in pertinent part:

6. The target of this investigation is a black male known as “Dizzy”, who resides at 2305 Clovis Road, Room number 25, Lubbock, Lubbock County, Texas based on the information set forth herein below.

* * *

The Affiant believes the Confidential Source (CS), referred to in this affidavit to be truthful. The below listed CS’s have provided information in the past that has proven to be true and correct, and the information provided has been corroborated through surveillance, record checks, and other law enforcement officers.

Affiant has learned through his tenure as a DEA Task Force Officer in Lubbock, Texas, as a Lubbock Police Officer, through Confidential Sources, Sources of Information, and other law enforcement officers that “Dizzy” and “Nookie” are distributors of cocaine base in the Lubbock, Texas area. Within the past seventy-two hours, that above listed confidential informant has observed a quantity of cocaine base inside of the listed motel room. The confidential informant is able to recognize cocaine base and other controlled substances.

The Above referenced confidential informant has given information in the past on at least five occasions that has been proven to be credible and reliable. Affiant believes the informant to be credible and reliable base[d] on the past performance of the confidential informant.

* * *

Based on information contained within this Affidavit, and based on my training, education, and experience, Affiant believes that “Dizzy” and “Nookie” are distributors of cocaine base in the Lubbock, Texas area and that “Dizzy” and “Nookie” utilize this building for the purpose of concealing his proceeds and cocaine base.

Due to these factors, Affiant asks for the issuance of a warrant that will authorize him to search said premises for potential contraband.

Applicant filed a motion to suppress alleging that all evidence obtained during the search of the motel room should be suppressed because the search violated his constitutional and statutory rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article I, Section 9, of the Texas Constitution; and Article 38.23 of the Texas Code of Criminal Procedure. Specifically, Applicant argued that the search warrant used to obtain the evidence in the case was improper because (1) the search warrant affidavit did not reflect sufficient probable cause to justify the issuance of a search warrant because it lacked sufficient underlying circumstances to permit the conclusion that the contraband was at the location where it was claimed to be and failed to establish the credibility of the confidential informant; (2) the search warrant affidavit did not show probable cause sufficient to justify the issuance of the search warrant because there was no substantial basis for concluding that probable cause existed; (3) the information contained in the search warrant affidavit was stale; and (4) the issuing magistrate was misled by information in the affidavit that the affiant officer knew was false or would have known was false but for his reckless disregard for the truth.

At the pretrial hearing on the motion to suppress, the only witness to testify was Agent Dwayne Gerber, a Lubbock Police Department officer assigned to the Drug Enforcement Administration (DEA) Task Force. Gerber testified that he prepared the search warrant affidavit on December 8, 2006. He stated that the confidential informant, who he believed to be reliable, observed narcotics within the motel room within the preceding seventy-two hours and that Gerber used the information as support for his request for the issuance of a warrant. Gerber explained that the search warrant is based on the facts that are within the affidavit. He also acknowledged that “the only data that is specific with the exception of the room number and numerals and how the building looks, as far as facts and circumstances is that the confidential informant had been in there within 72 hours.” Regarding the search executed in the motel room, Gerber stated that he seized the two bags of contraband from the toilet. $120 was also located in the room, but it was not seized.

The trial court denied the motion to suppress: “I do agree with [the State] that the affidavit is sufficient and the search warrant is valid based on that affidavit. So the motion to suppress is denied.”

During the guilt phase of trial, a forensic chemist for the DEA testified about his analysis of the drugs found in the motel room during the execution of the search warrant. When the State offered that contraband into evidence, defense counsel stated, “No objection.” After hearing all of the evidence, the jury found Applicant guilty of the lesser-included offense of possession of cocaine in an amount of between 4 and 200 grams, and he was subsequently sentenced to ninety-nine years’ imprisonment. (1)

On direct appeal, the Amarillo Court of Appeals upheld Applicant’s conviction. Moore, 2010 Tex. App. LEXIS 3312. The court overruled Applicant’s argument that “the trial court should have suppressed the evidence found as a result of execution of the search warrant” because Applicant waived any such complaint when he said “no objection” at the time the evidence was offered. Id. at *5. Applicant’s petition for discretionary review was denied by this Court.

On October 25, 2011, Applicant filed this pro se application for writ of habeas corpus, in which he complains of two instances of alleged ineffective assistance of trial counsel. Applicant asserts that trial counsel was ineffective for not preserving for appellate review the denial of a motion to suppress. (2)

The State filed a response to Applicant’s writ application, in which the State argued that prejudice had not been shown for two reasons. First, the State maintained that Applicant did not allege any facts establishing that he had a reasonable expectation of privacy in the motel room, so his claim should not be addressed on the merits. Second, the State argued that “[t]he search warrant affidavit supported issuance of a search warrant, given that the affidavit alleged sufficient, specific facts showing probable cause to believe that there were drugs located within the motel room.”

Subsequently, trial counsel filed an affidavit. He stated, “It was not a matter of trial strategy when I did not object to the evidence that had been previously the subject of a Motion to Suppress. . . . I should have objected to preserve the error for appellate review.” Trial counsel also stated, “I do believe the warrant to be invalid and hope that my client would not be punished further for my mistake.”

Following receipt of the State’s response and trial counsel’s affidavit, the trial court entered findings of fact and conclusions of law, recommending that relief be denied because ineffective assistance of counsel had not been shown. The court found that counsel’s performance was deficient because “[i]t was not a matter of trial strategy for trial counsel not to object to the evidence that had previously been the subject of a pretrial motion to suppress.” However, the court determined that prejudice had not been shown. It explained that it had “denied the motion to suppress, rejecting the various legal challenges to the search warrant. The motion to suppress was properly denied because the search warrant affidavit supported issuance of a search warrant, in that the affidavit alleged sufficient, specific facts showing probable cause to believe that there were drugs then present within the motel room.” Therefore, the trial court concluded that “[e]ven if the issue had been preserved for appellate review, it would have been denied by the appellate court because the denial of the motion to suppress did not constitute an abuse of discretion.”

The writ application and accompanying documents were received by this Court, and on June 13, 2012, we ordered this application to be filed and set for submission. Ex parte Moore, No. AP-76,817, 2012 Tex. Crim. App. Unpub. LEXIS 599 (Tex. Crim. App. June 13, 2012) (not designated for publication). Applicant’s motion to expand the habeas record with objections was also granted. We ordered the parties to brief the following issue:

Whether Applicant was denied effective assistance of trial counsel when counsel filed and argued, before trial, a motion to suppress evidence obtained from a search conducted pursuant to a warrant, which was denied, but failed to preserve the issue of the validity of the search warrant for appellate review. See Strickland v. Washington, 466 U.S. 668 (1984).

We hold that Applicant was not denied effective assistance of counsel. He has failed to show that he was prejudiced by his trial counsel’s performance. Consequently, relief is denied.

ANALYSIS

A defendant has a Sixth Amendment right to effective assistance of counsel. U.S. Const. amend. VI. Ineffective assistance of counsel claims are cognizable on habeas review, and to determine whether to grant habeas relief for ineffective assistance of counsel, Texas courts apply the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011); Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986). Strickland requires the applicant to establish two components by a preponderance of the evidence: deficient performance of trial counsel and harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome of the trial. Strickland, 466 U.S. at 687.

Under the first prong of Strickland, the applicant must show that his attorney’s performance was deficient, meaning that it “fell below an objective standard of reasonableness” under prevailing professional norms and according to the necessity of the case. Id. at 687-88; Ex parte Marrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (asking “whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases”). The applicant “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (quotations omitted).

We agree with the trial court’s conclusion that Applicant has shown that his counsel’s performance was deficient. At trial, defense counsel stated, “No objection” to the introduction of the evidence that was the subject of the suppression motion. “[W]hen the defendant affirmatively asserts during trial he has ‘no objection’ to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pre-trial ruling.” Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986). Therefore, the court of appeals correctly found that Appellant waived the complaints raised in the hearing on the motion to suppress when he stated, “No objection” when the evidence was offered by the State. See Moore, 2010 Tex. App. LEXIS 3312, at *5. Additionally, in his affidavit, trial counsel concedes that he had no trial strategy when he said, “No objection” to the admission of the evidence and he should have objected to preserve the error for appellate review. He also admits that he believed at the time and continues to believe that Gerber’s affidavit in support of the search warrant was not sufficient and the evidence should have been suppressed. Accordingly, counsel’s performance fell below an objective standard of reasonableness.

Under the second prong of Strickland, the applicant must demonstrate that he was prejudiced by his attorney’s performance or that “there is a reasonable probability[ (3)] that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Consequently, to demonstrate harm in this case, Applicant must show that he would likely have been successful on appeal had the issue been properly preserved, that is, that the trial court’s denial of Applicant’s motion to suppress was an abuse of discretion. Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998); see Martinez, 330 S.W.3d at 901.

A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). At a hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). An appellate court must view the record of the hearing on the motion in the light most favorable to the trial court’s ruling and must sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal, 935 S.W.2d at 138. When the trial court does not file findings of fact concerning its ruling on a motion to suppress, we assume that the court made implicit findings that support its ruling, provided that those implied findings are supported by the record. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); see Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).

To evaluate the trial court’s ruling on the motion to suppress, we must initially consider whether Applicant has standing to challenge the search of the motel room that resulted in the discovery of the cocaine for which he was prosecuted. (4) If he personally did not have a reasonable expectation of privacy in the motel room, then he cannot complain of an alleged violation of his Fourth Amendment rights resulting from that search. The State argued on direct appeal that Applicant did not establish his standing to complain about the search, and it renews the argument here.

The Fourth Amendment of the U.S. Constitution and Article I, Section 9, of the Texas Constitution protect individuals from unreasonable searches and seizures. Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993). The rights secured by the Fourth Amendment and Article I, Section 9, are personal, and accordingly, an accused has standing to challenge the admission of evidence obtained by an “unlawful” search or seizure only if he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois 439 U.S. 128, 139, 143 (1978); Richardson, 865 S.W.2d at 948-49. The defendant who challenges a search has the burden of proving facts demonstrating a legitimate expectation of privacy. Villarreal, 935 S.W.2d at 138. He must show that he had a subjective expectation of privacy in the place invaded and that society is prepared to recognize that expectation of privacy as objectively reasonable. Id.; see Smith v. Maryland, 442 U.S. 735, 740 (1979).

In considering whether a defendant has demonstrated an objectively reasonable expectation of privacy, we examine the totality of the circumstances surrounding the search, including

(1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy.

Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal, 935 S.W.2d at 138. This is a non-exhaustive list of factors, and no one factor is dispositive. Granados, 85 S.W.3d at 223. “Although we defer to the trial court’s factual findings and view them in the light most favorable to the prevailing party, we review the legal issue of standing de novo.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).

In Stoner v. California, 376 U.S. 483 (1964), the United States Supreme Court held that a registered guest in a hotel room, like a tenant of a house, is entitled to the constitutional protections against unreasonable searches and seizures.

In Clapp v. State, 639 S.W.2d 949 (Tex. Crim. App. 1982), this Court held that a guest in a hotel room rented by another did not have a reasonable expectation of privacy in that room. In that case, the police went to a hotel room registered to Susan Otts to execute an arrest warrant for Joel Hamm. Otts gave the police permission to search the suite for Hamm, and as one officer searched the suite, he encountered the appellant, Clapp. Clapp accompanied the officer as he searched the rest of the suite. One bedroom appeared to be unoccupied, but the bed in the second bedroom was unmade and Clapp’s watch was on the dresser. While the officer was checking the second bedroom, he heard water running in the adjoining bathroom. Upon entering the adjoining bathroom, the officer saw two tinfoil packets, later determined to contain narcotics, swirling in the toilet bowl. The officer retrieved the packets and arrested Clapp for possession of amphetamine. This Court held that Clapp did not have standing to object to the search because the evidence showed that “he was merely a guest in Ott’s motel room.” Id. at 953.

Eight years later, in Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme Court held that an overnight guest has a legitimate expectation of privacy in his host’s home and implied the same for an overnight guest in another’s hotel room. The Supreme Court explained,

To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society. . . . although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth–”a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.”

Id. at 98-99 (citations omitted, emphasis added).

The following year, in Villarreal v. State, 935 S.W.2d 134, we declined to extend the protection afforded in Minnesota v. Olson to a more casual, temporary visitor. In Villarreal, the appellant was a guest in another individual’s residence. A search of the residence resulted in the appellant’s arrest for felony possession of marijuana and cocaine with intent to deliver. The record established that the appellant was in the residence for an hour or two to arrange a business transaction and that he left the residence and returned shortly after midnight, rushing inside to avoid arrest. There was no evidence that the appellant had clothes or other belongings in the room or any other evidence suggesting that the appellant intended to stay the evening. The court of appeals, in holding that appellant lacked standing to challenge the search, recognized that Minnesota v. Olson held that an overnight guest had a legitimate expectation of privacy in the residence in which he spent the night, but “decline[d] to extend this expectation to the more casual visitor such as appellant.” Villarreal v. State, 893 S.W.2d 559, 561 (Tex. App.–Houston [1st Dist.] 1994). We affirmed the court of appeals’s holding: “In our view, American society is not willing to sanction as objectively reasonable the subjective expectation of privacy of someone who is in a residence under the circumstances presented in this case.” Villarreal, 935 S.W.2d at 139.

Synthesizing this case law, it is clear that the rationale behind Minnesota v. Olson compels the conclusion that overnight guests of a registered hotel guest share the registered guest’s reasonable expectation of privacy in the hotel room. However, whether a temporary guest may share in the registered guest’s reasonable expectation of privacy is to be evaluated by the totality of the circumstances. This holding is consistent with the holdings of other jurisdictions. (5) And, in Rakas v. Illinois, 439 U.S. 128, the Supreme Court rejected the phrase “legitimately on premises” as too broad a gauge for measuring Fourth Amendment rights, illustrating its point by noting that the phrase would allow even a “casual visitor” invited into a home for a presumably brief stay to have standing. Id. at 142.

Turning to the case at hand, when viewed in the light most favorable to the trial court’s ruling, the record of the hearing on the motion to suppress established only that Applicant was in the motel room at the time the search warrant was executed. The evidence does not show that Applicant’s subjective expectation of privacy was one that society was prepared to recognize as objectively reasonable under the circumstances. This conclusion is grounded on the totality of the circumstances established by the evidence. There was no evidence that Applicant was the registered guest of the room or that he had any property or possessory interest in the room. Nor was there evidence that he had any personal belongings in the room or that he intended to stay overnight.

Because Applicant did not have a reasonable expectation of privacy in the motel room, he cannot complain of an alleged violation of his Fourth Amendment rights resulting from the search at issue, and the trial court did not abuse its discretion in denying Applicant’s motion to suppress. Therefore, Applicant has failed to demonstrate harm resulting from trial counsel’s deficient performance because he has not shown that he would likely have been successful on appeal had the issue been properly preserved.

Relief is denied.

Delivered: April 10, 2013

Publish

1. Applicant pled “true” to the enhancement paragraph.

2. Applicant’s other claims were denied because they lacked merit. Ex parte Moore, No. AP-76,817, 2012 Tex. Crim. App. Unpub. LEXIS 599 (Tex. Crim. App. June 13, 2012) (not designated for publication).

3. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

4. Though frequently expressed as whether the defendant has “standing” to challenge a search, “the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.” Rakas v. Illinois, 439 U.S. 128, 139 (1978).

5. See, e.g., United States v. Baskin, 424 F.3d 1, 3 (1st Cir. 2005) (holding that the defendant failed to establish that he had a reasonable expectation of privacy in a motel room that was registered to another person); United States v. Vanaman, 12 Fed. Appx. 222, 231 (6th Cir. 2001) (holding that the defendant lacked standing to challenge the search of a motel room when the room was not registered in his name and there was no evidence that he stayed there); United States v. Sturgis, 238 F.3d 956, 958-59 (8th Cir. 2001) (holding that defendant, who was visiting another’s motel room for the purpose of distributing controlled substances, lacked a reasonable expectation of privacy in the motel room); United States v. Gordon, 168 F.3d 1222, 1226 (10th Cir. 1999) (recognizing that registered occupants of a hotel room and overnight guest of the registered occupants have standing to object to a search); United States v. Wilson, 36 F.3d 1298, 1303 (5th Cir. 1994) (holding that an overnight guest of hotel resident had standing to object to search of the hotel room); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991) (holding that the defendant had no standing to object to search of hotel room absent evidence showing that he was an overnight guest of registered guest); Rockett v. State, 891 S.W.2d 366, 369-70 (Ark. 1995) (holding that defendant lacked standing to object to search when the room was registered in another name and defendant failed to present any evidence that he spent more than a brief period in the room); People v. Dumas, 955 P.2d 60, 63 n.4 (Colo. 1998) (holding that defendant, who was the renter and occupant of the motel room at the time, had standing to challenge the search of the room); State v. Gonzalez, 85 P.3d 711, 714-15 (Kan. App. 2004) (holding that defendant had no reasonable expectation of privacy in motel room he occupied but which was registered in another occupant’s name and there was no evidence that defendant was an overnight guest); State v. McMillian, 557 S.E.2d 138, 142-43 (N.C. Ct. App. 2001) (holding that absent evidence that defendant planned to stay overnight, he had no standing to object to search of hotel room registered to another person); People v. Ali, 517 N.Y.S.2d 216, 217-18 (N.Y. App. Div. 1987) (holding co-occupant with registered hotel guest shared reasonable expectation of privacy in hotel room); Owens v. State, 269 P.3d 1093, 1097-98 (Wyo. 2012) (holding that the defendant lacked standing to challenge the legality of search of friend’s motel room).