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Criminal Law Click here for the full text of this decision Though a warrant check in the context of a traffic stop is generally viewed as a reasonable law enforcement exercise, it may not be used as a means of extending a detention once the reasonable suspicion forming the basis for the stop has been dispelled. FACTS:This is the state’s appeal of an order granting Craig Allen Kothe’s motion to suppress evidence seized during what he alleges was an illegal detention. Kothe was indicted for possession of a controlled substance in the amount of less than one gram. Following arraignment on this charge, the trial court conducted a pre-trial hearing on Kothe’s motion to suppress evidence including drug paraphernalia found in Kothe’s vehicle and heroin found on Kothe’s girlfriend, Jennifer Brantley. Kothe’s motion was granted, and the trial court entered an order suppressing the evidence. The state appeals this order, bringing two issues before this court. First, the state argues the trial court erred in granting Kothe’s motion to suppress because the search that uncovered the incriminating evidence was valid. Second, the state contends the trial court erred in granting Kothe’s motion to suppress because Kothe did not have standing to challenge the search of Brantley. HOLDING:Affirmed. Craig Allen Kothe’s motion for rehearing is granted. The opinion and judgment issued Jan. 29, 2003 are withdrawn and the following is substituted. In its first issue, the state contends the trial court erred in granting Kothe’s motion to suppress because the search in question was valid and no evidence was obtained in violation of either the Texas or the U.S. constitutions. The Fourth Amendment protects individuals from unreasonable search and seizure. Traffic stops are considered seizures within the meaning of the Fourth Amendment. Nevertheless, traffic stops are considered more similar to investigative detentions than formal arrests. Therefore, the court analyzes the legality of traffic stops for Fourth Amendment purposes under the standard articulated in Terry v. Ohio, 392 U.S.1, (1968). The Terry standard has two prongs: 1. whether the officer’s action was justified at its inception; and 2. whether the search and seizure was reasonably related in scope to the circumstances that justified the stop in the first place. Because Kothe never disputed the legality of the initial stop, the state’s argument on appeal focuses on the second prong of Terry, the scope of the stop. The courts of the United States and Texas have consistently held that any “investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Once the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.” In other words, once an officer’s suspicions have been dispelled, the detention must end unless there is additional, articulable, reasonable suspicion. Consequently, a detention that is not temporary and reasonably related in scope to the circumstances which justified the interference is unreasonable and, thus, violative of the Fourth Amendment. The focus of the motion to suppress was on the estimated 10- to 12-minute delay between the time when deputy Forslund determined Kothe was not intoxicated to the time when Kothe was questioned about the bag of coins. Kothe says the reason for his detention ended as soon as it was determined he was not intoxicated, and his continued detention thereafter violated his Fourth Amendment rights. The state maintains that even after deputy Forslund determined Kothe was not intoxicated, the officer had a reasonable period of time in which to complete his investigation, and it was during that time that probable cause arose to justify Kothe’s continued detention. Although some authorities mandate that deputy Forslund’s investigative detention could last no longer than the time it took him to determine whether Kothe was intoxicated, it has been suggested, in a traffic stop situation, it is not unreasonable for an officer to check for outstanding warrants. Although the court agrees that a warrant check in the context of a traffic stop is generally viewed as a reasonable law enforcement exercise, it may not be used as a means of extending a detention once the reasonable suspicion forming the basis for the stop has been dispelled. The record shows that deputy Forslund initiated the warrant check afterhe determined Kothe was not intoxicated. At that point, the reason for detaining Kothe no longer existed, and the record contains no articulable facts demonstrating reasonable suspicion of criminal activity necessary for his continued detention. The teletype alert received by deputy Forslund, which would have justified Kothe’s continued detention, was nonetheless received 10 to 12 minutes after the basis for Kothe’s detention was resolved. In granting the motion to suppress, the trial court concluded it was not reasonable for deputy Forslund to continue to detain Kothe, even for the purpose of conducting additional computer checks, after it was determined Kothe was not intoxicated. The 10- to 12-minute delay that occurred while the officer waited on results of a warrant check may not have imposed an undue hardship on Kothe, but whether the delay was burdensome is not the issue. The question is whether the continued detention was reasonable. Under the abuse of discretion standard, this court may not substitute its judgment for that of the trial court. And, as noted, it must defer to the trial court’s determination of the historical facts and rulings on mixed questions of law and fact. Here, the determination of whether Kothe’s continued detention was reasonable under the circumstances involved the trial court’s evaluation of the historical facts as well as the credibility of the witnesses. These are findings this court cannot disturb on appeal. And because it finds no error in the application of the law to the facts as found by the trial court, the court overrules the state’s first issue. OPINION:Green, J.; Stone, Green, and Marion, JJ. FACTS:Appellant John Gilbert Martinez was found guilty of the offense of capital murder. He was 15 at the time of the offense and was certified to stand trial as an adult. A jury found Martinez guilty, and, due to his age, an automatic life sentence was imposed. On appeal, Martinez presents seven issues. HOLDING:Affirmed. Martinez complains that the trial court erred in overruling his motion for a mistrial after the jury sent out two notes indicating that it was deadlocked. The jury began its deliberations on Feb. 6, 2001 at 11:50 a.m., broke for lunch and sent the court a note that it was deadlocked before its dinner break at 6 p.m. Without objection, the court instructed the jury to continue deliberating, which it did until around 9 p.m. The jury resumed deliberations the next day at 9 a.m., requested that lunch be brought in and sent out another note around 4 p.m. indicating that it was hopelessly deadlocked with one juror voting not guilty. The juror voting not guilty also sent out a note which read as follows: “Your Honor, I appeal to you out of a sense of frustration and deadlock. And out of a sense of wanting to do my duty to not cave-in to the other jurors and a sense of guilt of causing undue hardship to my fellow jurors. Key to all of this is the Charge of the Court that J.M. intentionally caused the death. The description or definition of intentionally under 2, states in part, “when it is his conscious objective or desire to cause the result.’ I do not see or can find in what evidence we have that the state proved or even cited facts to substantiate intentionally. We all agree on knowingly aware that his conduct. But I, and I alone, cannot find intent to kill. I have asked my co-jurors to show me where, but from perspective, they have merely repeated the items we agree upon under aware. My colleagues, from my perspective, have come to the point of “probably’ ‘because he’ and attacks on my motives and integrity. In a sense I cannot blame them, and I do feel responsible for their hardship experienced or being experienced. I need help. I need help with explanation, elaboration of what the element ‘intentionally caused’ equal intent with respect to the issue of his conduct when it is his conscious objective or desire to cause the result. Perhaps you, or a member of the Court, could meet me in chambers to help me. Otherwise, I do not feel our impass will end. Thank you. Joseph C. Valenzuela Jr. [sic throughout].” The court then submitted the following supplemental charge to the jury: “Members of the Jury. Your Presiding Juror has advised the Court that you have not been able to reach a unanimous decision. In connection with such communication, I advise the jury as follows: “Any verdict in this case must be unanimous. If this jury, after a reasonable length of time, finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. “The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. Any future jury will be impaneled and will likely hear the same evidence which has been presented to this jury. The questions to be determined by that jury will likely be the same questions confronting you. And there is no reason to hope the next jury will find those questions any easier to decide than you have found them. “With this additional instruction, you are instructed to continue the deliberations in an effort to arrive at a verdict, which is acceptable to all members of the jury. “Remember, at all times, that no juror is expected to yield a conscientious conviction he or she may have as to the weight or the affect [sic] of the evidence. But remember also that after full deliberation and consideration of the evidence in this case, it is your duty to agree upon a verdict, if you can do so, without surrendering your conscientious conviction. “If the jury wishes to communicate further with the Court they shall notify the bailiff. Any communications relative to the case must be written, prepared by the presiding juror, and shall be submitted to the Court through the bailiff. Carmen Kelsey, Presiding Judge.” At 4:30 p.m., the jury retired and continued deliberating. The jury took a dinner break of more than one hour and returned its guilty verdict at 8:40 p.m. Excluding lunch and dinner breaks, the jury deliberated for around 16 hours. According to Martinez, the court’s Allencharge had the effect of coercing a verdict. See Allenv. United States, 164 U.S. 492 (1896). Further complicating matters, Juror Valenzuela was contacted after trial and signed an affidavit which reads as follows: “I was a juror in the case of the State of Texas vs. John G. Martinez. The day after the verdict was rendered I received a telephone call from a Bexar County District Attorney’s Investigator named Rick Sauceda. Mr. Sauceda asked directions to my work and said he had an affidavit he wanted me to sign. Mr. Sauceda came to my place of employment at Lackland Air Force Base, and I signed the affidavit. A short time later I received a letter from the prosecutors in this case thanking me for my service as a juror. “It has always been my feeling that the prosecution did not prove capital murder in this case. The jury charge gave the definition of capital murder and murder, but there was no provision for a finding of murder, or robbery. I believe that if other sentencing options were available the jury would have chose one of them. As a juror I could not just let John Martinez go so I finally voted for the only option that was given to me, and that was to vote for the capital murder conviction.” The use of a supplemental charge in this context has long been sanctioned by the Texas Court of Criminal Appeals and the U.S. Supreme Court. An Allencharge is unduly coercive and therefore improper if it pressures jurors into reaching a particular verdict or improperly conveys the court’s opinion of the case. The primary inquiry to determine the propriety of an Allencharge is its coercive effect upon juror deliberations, “in its context and under all circumstances.” To answer that question, the court examines the nature of the case, the amount of evidence considered by the jury and the time of deliberation. The court must examine the nature of the case in determining whether the trial court abused its discretion in giving this charge instead of declaring a mistrial. First, the language used in this charge is similar to language found not to be coercive in other cases. The charge itself did not directly address the minority juror and did not shade the instruction with coercive nuance. Rather, the trial court simply directed all jurors “to continue deliberations in an effort to arrive at a verdict which is acceptable to all members of the jury.” The court’s charge reminded the jurors that “no juror is expected to yield a conscientious conviction he or she may have as to the weight or the affect of the evidence” . . . and that “it is your duty to agree upon a verdict, if you can do so, without surrendering your conscientious conviction.” Martinez does not suggest that the language of this charge conveyed the court’s opinion of the case. Second, the complexity of this case and factors of judicial economy weigh in favor of the trial court’s instruction to the jury to continue deliberating. This was a capital murder case made even more difficult by the fact of Martinez’s minority. After three days of voir dire, the presentation of testimony spanned seven days, and 21 witnesses testified. When the jury reported that it was unable to reach a unanimous verdict, the trial court gave the instruction provided by the defense. Martinez requests a change in the law applicable to these types of supplemental charges. He states that this case requires a departure from established law because juror Valenzuela directly expressed “feelings that his conscience was being questioned along with his integrity.” However, the process of questioning one’s ideological beliefs and predispositions is central to the success of the jury system. “The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Allen, 164 U.S. at 501-02. It certainly cannot be the law that each juror should not listen with deference to the arguments and with distrust of its own judgment, if he finds a large majority of the jury taking a different view of the case than what he does himself. It cannot be that each juror should go into the jury room with a blind determination that his verdict shall represent his opinion of the case at the moment; or that he should close his ears to the arguments of others who are equally intelligent and honest as himself. Based on the trial court’s broad discretion in these matters, the emotional nature of the testimony presented in this case and the gravity of the crime, the trial court properly ordered the jury to continue deliberating and reach a verdict if it was possible to do so without sacrificing any one juror’s conscientious conviction. The trial court did not abuse its discretion in allowing the jury to deliberate for 16 hours, even after receipt of juror Valenzuela’s note. Additionally, the trial court’s action of returning the jury to deliberate did not coerce juror Valenzuela or prevent an impartial verdict from being reached. OPINION:Stone, J.; Stone, Duncan, Angelini, JJ. FACTS:In this appeal, the court considers whether the untimely handling of one application for writ of habeas corpus requires that a subsequent application for writ of habeas corpus be granted. HOLDING:Affirmed. Werne appeals the trial court’s denial of his Second Application. Werne’s four points of error on appeal assert the trial court erred by: 1. refusing to release Werne unconditionally on his First Application; 2. not conducting a timely hearing on his First Application; 3. denying Werne’s Second Application in light of his prior illegal detention; and 4. by denying Werne’s right to counsel at the time he filed his First Application. In his third point of error, Werne contends the trial court erred by denying his Second Application. In this Second Application, Werne sought to challenge his pretrial incarceration based on the Texas governor’s warrant. Werne argues on appeal that the trial court’s failure to grant relief on his First Application deprived him of his constitutional right to liberty and that this deprivation cannot be cured by subsequent issuance and service of a valid governor’s warrant. The court agrees with the trial court’s subsequent acknowledgment that, in failing to release Werne unconditionally after the first habeas corpus hearing, it erred. The existence of error on the First Application does not, however, resolve the issue presented in the case now before this court � whether the trial court erred in denying Werne’s Second Application. Werne does not contest the propriety of the warrant issued by the governor. Instead, Werne argues that, in light of the fact the trial court erred so grievously by delaying a hearing on his First Application for over two months, and then by releasing him only on a bond rather than granting unconditional release as demanded by law, this constituted an unconstitutional infringement on individual liberty that cannot be rendered acceptable by an untimely governor’s warrant. The court cannot agree that a later, properly issued governor’s warrant should be disregarded. Werne takes the position that his second incarceration constitutes a form of constitutional error because he was unlawfully jailed while the trial court disregarded his efforts to obtain the freedom to which he was entitled. It is true that, if a liberty interest is created by a statute, due process concerning that liberty interest requires notice and a meaningful opportunity to be heard. In this case, Werne’s liberty interests were denied in connection with the First Application. Werne asks this court to recognize those errors in its review of the Second Application and to penalize the trial court for its previous failures by directing that the state be prohibited from enforcing the current governor’s warrant. The state suggests that the court might instead merely treat these as two separate proceedings and not consider one in reviewing the other. The court declines both invitations. The court will not declare that there is no instance in which such an error might be so great as to fatally corrupt a later proceeding. In this case, however, it does not so conclude. The error was ultimately rectified, although at the cost of six unnecessary weeks in jail for Werne. That error, however, has not contaminated the present proceeding, which involves a proper governor’s warrant and arrest pursuant to that warrant. Even were the court to find it proper to fully merge these two proceedings and apply the rule controlling its review of harm resulting from error of constitutional magnitude, it would not find reversible error. In such a review, the court must reverse the judgment of the trial court unless it determines beyond a reasonable doubt the error did not contribute to the conviction. When performing this analysis, the Texas Court of Criminal Appeals has held that the following factors are to be considered: 1. the source of the error; 2. the nature of the error; 3. whether the error was emphasized and its probable collateral implications; 4. the weight a juror would probably place on the error; and 5. whether declaring the error harmless would encourage the state to repeat it with impunity. Orona v. State, 791 S.W.2d 125 (Tex. Crim. App. 1990). No single factor is dispositive. Instead, the existence and severity of these factors are indicative of the harm caused by the improper conduct. In this case, only the first and fifth factors are implicated by this analysis. The source of the error was evidently the court itself. That alone is of substantial importance. The fifth factor is whether declaring this behavior harmless would encourage the court to repeat it, confident that it could do so with impunity. This court is not convinced the trial court would choose to act in such a fashion. The judicial system rests on the trial courts’ timely and correct application of the law, and in the absence of any indication that the error by this trial court was intentional, as opposed to accidental or inadvertent, this court is unwilling to assume the trial court would willfully ignore the law. It therefore finds no harm. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ. FACTS:A jury found Asiya Hosain Askari guilty of violating �31.03 of the Texas Penal Code, Texas’ consolidated theft statute, by collecting Texas welfare benefits through deception. The state asserted at trial that Askari fraudulently claimed her husband, who was earning several thousand dollars each month as a Houston car salesman, did not live in her household, thereby enabling her to receive public assistance to which she was not entitled. On appeal, she challenges the sufficiency of the evidence and claims the trial court erred by denying her pretrial motion to quash the indictment. HOLDING:Affirmed. In her third point of error, Askari contends the trial court erred by overruling her motion to quash the indictment. Askari asserts the indictment failed to, among other things, set forth how the alleged appropriation was unlawful in that it did not state a “manner and means” of how the defendant committed theft. In Berg v. State, 747 S.W.2d 800 (Tex. Crim. App. 1984), the Texas Court of Criminal Appeals reviewed the sufficiency of the evidence supporting Berg’s conviction for theft. The court held: “It is now clear that the State need only allege that the person charged (1) “unlawfully” appropriated personal property (2) with the intent to deprive the owner of the property. See v.T.C.A., Penal Code, Section 31.03. If the State alleges these elements, then they have alleged all that is necessary to establish that the accused has been charged with a crime and all that is necessary to give the accused notice of the crime of which he is accused. The State need not plead the manner of acquisition or the circumstances surrounding the offense. The manner of acquisition or circumstance surrounding the acquisition are merely evidentiary matters and there is no requirement that the State plead evidentiary matters.” Since Berg, many intermediate courts of appeals have reached a different conclusion. In Smith v. State, 761 S.W.2d 546 (Tex. App. � Corpus Christi 1988, no pet.) (citing Gorman v. State, 634 S.W.2d 681 (Tex. Crim. App. 1982)), the 13th Court of Appeals held that a defendant charged with theft may require the state to specify the manner in which the defendant allegedly appropriated the property. In Green v. State, 767 S.W.2d 919 (Tex. App. � Beaumont 1989, pet. ref’d), the 9th Court of Appeals held the trial court erred by denying the defendant’s motion to quash the theft indictment because the indictment did not allege the manner in which the property was allegedly unlawfully appropriated. The Green court found, however, that such a failure did not impact Green’s ability to prepare a defense because the evidence at trial showed Green “was aware of the existence and importance of the state’s case.” The Green court then held the indictment’s failure to allege the manner of the unlawful appropriation did not prejudice Green’s substantial rights. In Noel v. State, 769 S.W.2d 366 (Tex. App. � San Antonio 1989, no pet.), the 4th Court of Appeals held that a defendant, on the filing and presentment of a motion to quash, is entitled to have the theft indictment specify the manner in which the state intends to show the defendant allegedly appropriated the property. The Noel court held the trial court erred by denying Noel’s motion to quash the indictment, but further held the error harmless because the record did not indicate that the indictment’s lack of specificity effected Noel’s ability to prepare a defense. The Noel court also distinguished the Texas Court of Criminal Appeals’ holding in Berg on the basis that Berg addressed evidentiary sufficiency rather than reviewed a motion to quash. In the case now before this court, the indictment alleged Askari, on or about Nov. 1, 2000, and continuing through Dec. 1, 2001, did: “[U]nlawfully . . . appropriate, by acquiring and otherwise exercising control over property, namely, FOOD STAMP BENEFITS, MEDICAID AND AID TO FAMILIES WITH DEPENDENT CHILDREN BENEFITS AKA TEMPORARY ASSISTANCE TO NEEDY FAMILY BENEFITS, owned by the State of Texas, hereinafter the Complainant, with the intent to deprive the Complainant of the property and the total value of the property appropriated was over $1,500.00 dollars and under $20,000.00 dollars.” The indictment does not allege the manner in which Askari allegedly unlawfully appropriated welfare benefits. Askari filed a motion to quash, thus triggering the state’s duty to further specify the manner of the alleged unlawful appropriation. The trial court erred by denying Askari’s motion to quash. The court must now decide whether such error was harmful. On appeal, Askari contends “the state’s theory is simply not apparent from the face of the “elastic’ pleading; moreover, the defense hotly contested the State’s accusation of unlawful appropriation.” First, in her opening statement before the presentation of the state’s case at trial, Askari’s counsel told the jury he expected the evidence to show Ali moved out of the couple’s household during the time in which Askari received benefits and, for cultural reasons, the couple did not share the existence of marital discord with their extended families. Counsel’s argument makes it clear Askari was aware the state intended to prove the manner of unlawful appropriation was by making a false statement to TDHS regarding Ali’s residency in the household. Second, Askari’s concession on appeal that the defense “hotly contested” the state’s accusation of unlawful appropriation supports the court’s conclusion that the indictment’s failure to allege the manner of illegal appropriation had no detrimental impact on Askari’s ability to present a defense. The court finds Askari has failed to show the trial court’s failure to quash the indictment created reversible error. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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