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THE VALUE OF A DIRECT VERDICT STRATEGY

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THE VALUE OF A DIRECT VERDICT STRATEGY Houston Criminal Attorney John Floyd Discusses His Recent Victory by Instructed Verdict; After State Rests Judge Instructs Jury to Acquit on Charges of Sexual Assault
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THE VALUE OF A DIRECT VERDICT STRATEGY Houston Criminal Attorney John Floyd Discusses His Recent Victory by Instructed Verdict; After State Rests Judge Instructs Jury to Acquit on Charges of Sexual Assault and Find Not Guilty The John T. Floyd law firm was recently retained to represent a client in Houston charged with sexual assault pursuant to Tex. Penal Code The client is a physical therapist who operates a pain relief center in Houston, Harris County. A patient leveled the accusation that our client inappropriately fondled and inserted his finger in her vagina during a physical massage session against her consent. The District Attorney s Office requested, and received, a grand jury indictment charging our client with sexual assault which also designated him as a health care services provider. See: (b)(9). We believed our client was wrongly accused and set out to exonerate him. Our firm initiated both an extensive factual and legal investigation of the allegations contained in the indictment. It is well-established that an attorney has a fundamental duty under the Sixth Amendment to investigate both the facts and law of a case. See: Harrison v. Quarterman, 496 F.3d 419 (5 th Cir. 2007). The first area of our legal investigation began with the indictment itself. It is vitally important that any defense begin with a close examination of the charging instrument as to understand the exact elements of the governments case. All the elements of an offense must be alleged in the indictment. An indictment that tracks the statutory language of the offense is generally sufficient. See: Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App. 1986). Rarely will an indictment that tracks the language of the penal statute be declared legally insufficient. See: Bamhart v. State, 648 S.W.2d 696, 699 (Tex.Crim.App. 1983). The procedural vehicle for challenging the sufficiency of an indictment is a motion to quash. The Texas Court of Criminal Appeals has held that the purpose of this motion is to aprise the trial court of any defects in the charging instrument that are not obvious on its face. See: Green v. State, 533 S.W.2d 769 (Tex.Crim.App. 1976). However, a successful motion to quash generally results in the District Attorney filing an amended information to correct the defect in the charging instrument. This is not a significant victory for the defense. The second area of our legal investigation turned to the statute itself offers a fertile field for legal investigation. The statute provides: (a) A person commits an offense if the person: (1) intentionally or knowingly: (A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; (B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or (C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (2) intentionally or knowingly: (A) causes the penetration of the anus or sexual organ of a child by any means; (B) causes the penetration of the mouth of a child by the sexual organ of the actor; (C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; (D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or (E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor. (b) A sexual assault under Subsection (a)(1) is without the consent of the other person if: (1) the actor compels the other person to submit or participate by the use of physical force or violence; (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat; (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist; (4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it; (5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring; (6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge; (7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat; (8) the actor is a public servant who coerces the other person to submit or participate; (9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor; (10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or (11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code. (c) In this section: (1) Child means a person younger than 17 years of age who is not the spouse of the actor. (2) Spouse means a person who is legally married to another. (3) Health care services provider means: (A) a physician licensed under Subtitle B, Title 3, Occupations Code; (B) a chiropractor licensed under Chapter 201, Occupations Code; (C) a physical therapist licensed under Chapter 453, Occupations Code; (D) a physician assistant licensed under Chapter 204, Occupations Code; or (E) a registered nurse, a vocational nurse, or an advanced practice nurse licensed under Chapter 301, Occupations Code. (4) Mental health services provider means an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a: (A) licensed social worker as defined by Section , Occupations Code; (B) chemical dependency counselor as defined by Section , Occupations Code; (C) licensed professional counselor as defined by Section , Occupations Code; (D) licensed marriage and family therapist as defined by Section , Occupations Code; (E) member of the clergy; (F) psychologist offering psychological services as defined by Section , Occupations Code; or (G) special officer for mental health assignment certified under Section , Occupations Code. (5) Employee of a facility means a person who is an employee of a facility defined by Section , Health and Safety Code, or any other person who provides services for a facility for compensation, including a contract laborer. (d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party. (e) It is an affirmative defense to prosecution under Subsection (a)(2) that: (1) the actor was not more than three years older than the victim and at the time of the offense: (A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or (B) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and (2) the victim: (A) was a child of 14 years of age or older; and (B) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section (f) 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 Our client was charged under Subsection (b)(9) of as a health care services provider ; namely, a physical therapist. Subsection (c)(3)(c) imposed upon the state the essential burden of proving that our client was licensed under Chapter 453 of the Occupation Code. Christopher Carlson, my co-counsel, Billy Sinclair, my paralegal, and I faced a critical preliminary decision. We could have moved to quash the indictment because the District Attorney had charged in the indictment that our client was a licensed physical therapist, which he was not. The trial court would have conducted a hearing, forcing the State to prove the license issue. If the State could not establish the license issue, the trial court would have granted the motion. The District Attorney s Office would then have amended the indictment removing the health care services provider element. We elected instead to remain silent about this issue and instead allow the State to put on their case and then to pursue a motion for directed verdict. A motion for an instructed or directed verdict is a challenge to the legal sufficiency of the evidence and is presented after the state has put on their case in chief and has rested. See: Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1987)[ A challenge to the trial judge s ruling on a motion for instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. ]. This language was adopted as the rule. See: Cooke v. State, 858 S.W.2d 467, 470 (Tex.Crim.App. 1993). See also: Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996)[motion for directed verdict is a challenge to legal sufficiency of evidence]. There are differences between a legal sufficiency and factual sufficiency challenge. See: Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). A legal sufficiency challenge is viewed in a light most favorable to the prosecution when based on the claim that the State failed to prove all the essential elements of the crime charged beyond a reasonable doubt. See: King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). We researched and prepared a hard copy of a motion for directed verdict that we submitted after the State presented in its case in chief. As we had anticipated, the State did not present any evidence that our client was a licensed physical therapist under Chapter 453 of the Occupation Code. It was a fatal error by the government. The trial judge asked the District Attorney s Office if it had any evidence to establish that our client was a licensed physical therapist, and when the District Attorney s Office was unable to produce that evidence, the judge granted our motion for directed verdict and discharged the jury. After a jury has been sworn in on a case, and the defendant has been arraigned, jeapardy attaches and therefore our client could not be recharged with this offense. Though our directed verdict strategy saved the day, we had not hinged our case solely on the motion for directed verdict. We conducted an extensive factual investigation using our team of former homicide detective investigators. They beat the pavement and knocked on doors conducting interview after interview of witnesses that knew either the Defendant or the complaining witness. We had several witnesses ready to give testimony that would have contradicted significant portions of the complaining witnesses testimony. We also conducted an aggressive cross-examination of the State s two witnesses: the victim and investigating officer. A post-verdict poll of the jurors revealed that our cross-examination had already created significant reasonable doubt in the minds of all the jurors. Essentially, we were going to win this case one way or another. But, in the end, it was our time-honored rule to go to the indictment and statute as the starting points of our legal investigation that carried the day. Regardless of how effective an attorney may be at cross-examination and other defensive procedures during the trial itself, it is always the legal and factual investigation before trial that prepares a defense attorney for any eventuality. In this instance, our pretrial investigation precluded us from having to subject our witnesses to cross-examination from the State and from having to make the critical decision of whether to have our client testify or not. The lesson we offer here is patience. Force the State to prove what it charges in its indictment. A motion to quash has its procedural value, but it should never be used to give the State an opportunity to amend the indictment when there is a reasonable assumption that the State cannot prove all the elements charged in that indictment.
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