*1 during not have the first punish- offered ISASSI, Appellant, Alfred
ment hearing.3 noted, Significantly, I also “That any damaging has offered State not new The STATE of Texas. in this punishment evidence way negate does not in any fact No. PD-1347-09. it retained the to do so on resen- option majority’s tencing.” The determination Court Criminal Appeals Texas. burden, the State bears the under 6, Oct. circumstances, these to submit evidence sentence, justifying an increased order Opinion Denial Rehearing to rebut ineffective Miller’s assistance 8, Dec. claim completely inappropriate.
majority’s opinion is completely specula- exercise;
tive and an academic no one can will
predict exactly what occur resentencing; justi-
time of circumstances
fying may sentence have increased yet.
occurred should We refuse to enter-
tain such uncertainties. This case is strategy,
about trial and there was a valid
strategy part challenge on counsel’s not to sufficiency of enhancements on appeal.
direct the full logic When behind examined, majority’s decision here is absurdity shining through.
its comes majority
Thanks to the attor- appellate
neys are to nail required possi- down all by inquiring
bilities to the State about
what may may brought not be
in the event of a retrial under cir- these
cumstances. But all this can- information known,
not be even the State. The today imposes
Court no standard that
appellate attorney can or should have
meet.
Pearce,
(“A
"life,
habits, conduct,
health,
395 U.S.
phone calls in an attempt unsuccessful cut short a prosecution criminal of his aunt, him of convicted two counts rarely charged misdemeanor offense *3 of “improper Corpus influence.”1 The Christi Appeals Court of held that evidence was legally insufficient to show he made an the calls “with intent to influ- ence the outcome of proceeding on the basis other than considerations those law,” authorized required by as statute.2 granted We review3 and will reverse.
I.
A. The Facts. 5, 2005,
On August appellant’s aunt, Gonzalez, Anna Linda ran a light red Kingsville. Rafael Campos Constable fol- lowed her with lights flashing. his Instead Shackelford, Christi, Corpus Patricia A. over, of pulling home, Ms. drove Gonzalez Atty. Tempore, Pro for State of Texas. house, went inside her failed and to answer Dodson, Christi, Paul Corpus Lisa C. Instead, the constable’s knock. she called McMinn, Austin, Atty., Appel- State’s for appellant; nephew he was her and also the lee. county Appellant elected attorney. told cooperate, her to did. so she Constable OPINION Campos evading arrested Ms. Gonzalez for COCHRAN, J., opinion delivered the arrest with a took her jail. vehicle and WOMACK, the Court in which personal Ms. Gonzalez on a was released JOHNSON, HERVEY, KEASLER with requiring bond documents her to re- JJ., joined. pretrial twenty-four within port services hours the 105th report On and to District appellant evidence that then —the Kleberg County Attorney on September some Court —made 36.04(a). Appeals, Section 1. Did the in a case of 36.04 Court of first Tex. Penal Code provides person that a commits the offense of impression, require- misconstrue intent privately influence "if he addresses ment of Section 36.04 the absence of representation, entreaty, argument, or other guidance thereby from erro- this Court any public communication to servant who neously acquit Alfred the Defendant Isassi? exercises or will exercise official discretion in Appeals 2. Did fail to defer the Court of adjudicatory proceeding with an intent to jury’s credibility determinations con- influence the outcome of the on ducting sufficiency legal pursuant review its the basis of considerations other than those Virginia granted when it to Jackson v. law.” judgment acquittal on all counts based legally illegal insufficient — v State, (Tex.App. Isassi v. S.W.3d intent? 2009). Corpus Christi granted grounds 3. We these two for review: “Well, like, I was let report did Gonzalez?” And Gonzalez
Ms. arrest, said, “Yes, up.” I services, after her me look it And days but three Hernandez, said, Elana And so he pending called Maria it’s a case.” appellant “Well,” says, Campos coordinator is the pre-trial-bond “Ralph —he said, Hernandez ‘Yeah, District.4 Ms. 105th Judicial I one that arrested her.” county attorney appellant, knew both pend- still showing. that’s what I’m It’s attorney. as a former assistant district “Well, know says, you He did ing.” told Hernandez testified Ms. Attorney] Mark Assistant District [First had been that Anna Linda Gonzalez her pending investigation has a Skurka —an vehicle, evading arrested for arrest *4 on pending investigation Ralph open not charge, and that she did need felony said, “No, I I didn’t Campos?” And office services. pretrial to the for report to goes, ‘Yeah.” He says, know that.” He “was done stated that the arrest Appellant they’re prosecute to going “And it was an Ralph Campos and by Constable like, said, I “Okay.” I was case.” to on him the time due investigation “Well, gome and check let ahead with incident, ... arrest on another another said, case, him.” I “If that’s the then I’ll case individual and that the was another case,” dump ahead be- go and—and rejected.” Appellant said that going get to him, telling I I cause—and remember spoken to the DA’s office already “he had like, I to was “One less case have deal reject- to be going that the case was like, I was ‘You know how much with.” following Hernandez made the ed.” Ms. like, I was work there is here.” So up copy appear her of the order to in note on it as go dump ahead and soon as “We’ll prosecuted by not be DAs or court: “Will get I—I that.” county attorney’s per office as Alfred. appellant Trevino testified that never Ms. jail.” Because of pretrialed She was not Linda Gonzalez his told her Anna was call, excused pretrial this services Ms. aunt, had, that if “I think I but he would fel- noncompliance with standard Gonzalez’ have—I would hesitated as far as have ony-reporting requirements for about six on—on the following following up com- Appellant never told Ms. Hernan- — weeks. Trevino ments that were made.” Ms. soon that Ms. Gonzalez his aunt. dez was was a learned that Ms. Gonzalez member 24, 2005, the district attor- August On grand and that she jury of the local was evading-arrest office received the ney’s investigated failing to disclose a being for A Campos. from week case Constable during prior impaneling. theft conviction later, appellant called Assistant District a friend Attorney Aida Trevino who was 13th, September On services be- She had known him since appellant’s. stating that her sent Ms. Gonzalez a letter school, fore she went to law when she case evading arrest with a vehicle was secretary at the district attor- worked as comply had to pending and she was an assistant ney’s office report to to requiring pre- the notice her attorney. testified to district Ms. Trevino 15th, September services. On Ms. trial conversation: their grand was removed from Gonzalez said, next called you you happen jury. day, appellant “Do Aida He have a—do by then she had discov- again, to have a case on Anna Linda —or Anna Trevino but time, At District was com- ties. this 105th Nueces, Kleberg posed Kenedy, coun- years later, was Two ered that Ms. his aunt. It appel- Gonzalez convicted was a short conversation. lant of two counts of influence—a A class misdemeanor —on evidence day after the of his judge was the [I]t removing
issued the her from interference his aunt’s case. order He was jail, me grand jury again year probated and he called once sentenced one on the what he phone.... And said to months. six was, Aida, I “Hey,
me have Anna Linda my right Gonzalez here in office here Appeals Opinion. B. The Court of like, now.” she come talk He’s “Can On appeal direct appellant argued —in- said, you?” like, And I “Alfred”—I was alia —that the evidence adduced at trial ter probably going “We—we’re to indict legally prove insufficient the —as know, her. You been she’s removed of improper offense influence requires— like, from the I was “I grand jury.” “an intent to outcome of the her,” said, have nothing say and he the basis considerations you “So don’t talk to her?” want to And other than those authorized law.” The said, nothing say I “I have to her.” I *5 stated, agreed court and said, probably going “We’re to indict The evidence trial adduced estab- you her. And should know better than lished that Isassi contacted both Trevino that.” And that was—that was that. and Hernandez in order advise them Appellant pretrial called services the that Campos Constable was under inves- Jimenez, day next spoke yet and to Officer tigation, and that the First Assistant another He acquaintance. referred to the District Attorney pros- did intend to letter that Ms. had Gonzalez received and ecute Gonzalez for this reason. There asked if she to report still needed as there was no evidence that Isassi offered to do possibility was a the district attorney that anything, private capacity either in his was not the going pursue case because or in his capacity County Attorney, as the arresting officer was under investiga- exchange for a favorable result in his Appellant tion. said that he had talked to aunt’s case. any Nor was there evi- Trevino, Ms. the assistant district attor- any dence that gave Isassi information ney. Officer Jimenez said Ms. Gonza- to Trevino and Hernandez those lez still report needed to because it was lawfully individuals could not utilize procedure, standard once but documenta- determining how to exercise their official they tion of the was in hand dismissal discretion.5 would close the Ms. Gonzalez re- case. ported that same day services Rather, the the “intent of District Attor- given and was of her conditions bail ney drop against the case Gonzalez was
pending trial. indeed factor that Trevino and Hernan- clearly by were law to con-
In dez February of Ms. Gonzalez was in making regarding official decisions indicted for sider felony evading offense of po- Gonzalez’s case.”6 And while “Isassi’s July, arrest with a motor vehicle. In late County Attorney as part Kleberg that case was of a sition and his plea dismissed agreement relationship failure to disclose his with aggravated per- reached in case his grand-jury impan- given related to her Gonzalez have communica- eling. with an tions Trevino and Hernandez aura Isassi, — S.W.3d —, —. Id. at —. applies to circumstantial equally fact remains that standard impropriety, appeal nothing private that a citizen direct evidence.12 “Our role did and
Isassi
merely advised Trevino
guarding against
not do—he
the rare
could
is restricted
against
the case
his
Hernandez that
and
when a
does not act
occurrence
factfinder
prosecut-
weak and would not be
aunt was
rationally.”13
ed.”
Improper
Influence
B.
Statute.
II.
improp-
person
A
commits the offense
of Review.
A. Standard
“if
privately
he
addresses a
er
legal sufficiency
assessing
In
or oth-
representation, entreaty, argument,
Virgin
under Jackson
of the evidence
any public servant
er communication to
ia,8
evidence in
“we consider all of the
exercises or will exercise official dis-
who
favorable to the verdict and
light
most
in an
adjudicatory proceeding
cretion
whether,
on that evidence
determine
based
intent to influence the outcome of the
therefrom, a ra
inferences
reasonable
on the
proceeding
basis
considerations
could have found the essential
juror
tional
law.”14
than those authorized
other
beyond
of the crime
a reasonable
elements
here.15
Only the intent element is at issue
“our
to become
doubt.”9 But
role is not
noted,
the court of appeals
As
re
juror.
may not
thirteenth
This Court
intent to influence the outcome
phrase —an
weight
credibility of
evaluate the
on the basis of consider-
our
thereby
record evidence
substitute
ations other
than those authorized
fact-finder.”10
judgment
*6
penal
not further
in the
law—is
defined
“
Rather,
responsibility of
we defer to ‘the
in our case
code or
law.16
fairly
fact to
conflicts in
the trier of
resolve
evidence,
Although we have never construed the
testimony,
weigh
and
the
to
statute,
meaning
improper
of this
the
reasonable inferences from basic
influ-
draw
”11
ultimate
does
in the Model
appear
facts to
facts.’
This same
ence statute
the
Id.
outcome of the
on
7.
the basis of considerations other than those
307,
2781,
8. 443 U.S.
99
61 L.Ed.2d
S.Ct.
560
law,’
by
we need not
authorized
address
(1979).
whether the evidence was sufficient to estab
(1)
place
that his
took
lish
communications
State,
9,
(Tex.Crim.
Hooper v.
214
13
9.
S.W.3d
‘adjudicatory proceeding’
of an
the context
or
Jackson,
(citing
App.2007)
22.
judicial
pro-
Id.
55.
discretion in a
or administrative
in the face of
that flies
return a verdict
prospective
letters
mailed
fendant
law,
have a
they do not
County jury panel
and the
Ravalli
the facts
of the
members
Jury
was
nullification is
the Defendant
to do so.
legal right
a time when
during
law,
that
criminal act
the im-
by
another
and thus
charged with
not authorized
to the ex
jury panel.
applies
to trial before
go
would
influence statute
proper
by the
letters mailed
of the
jurors
The substance
to exer-
parte
attempt
persuade
pro-
a
the effect
that
lawless,
was to
raw,
power.30
Defendant
but
cise
jury,
on a
if
to sit
juror,
selected
spective
similar
have statutes
Though other states
disregard the
right
had the absolute
Texas,
under them
prosecutions
to that
vote for ac-
Judge
instructions
usually
involve
rare —and
have been
law was bad.”28
felt the
quittal
juror
if the
or,
above,
tamper
threats,
efforts to
as
case
upon
relied
a federal
judge
trial
improper
of the
a
The use
jury.31
federal
im-
corresponding
construing the
that it was
in the manner
influence statute
and denied
influence statute
proper
tell,
is,
truly a
far as we can
used here
dismiss, which was
motion to
defendant’s
in state courts.
impression
first
matter of
to not
theory that “it is error
on the
based
However,
corresponding
fed
they possess.”29
jurors
right
of a
tell the
1503,32
statute,
prohibit
eral
18 U.S.C.
power
have the raw
Although jurors
revolutionary government would
argu-
any representation, entreaty,
tion. The
ceeding
taxes.”).
ment,
abolish
designed
communication
or other
on the basis of consid-
influence the outcome
114,
See,
Heffner,
e.g.,
290 Mont.
State
those authorized
erations other
than
736,
(convictions
(1998)
964 P.2d
741-42
law.”).
official
threats and
evidence that the defen-
matters affirmed on
Id. at*l.
highway-crew mem-
dants confronted state
they
upset that their swift
were
bers because
*7,
(relying on United States v.
Id. at
38-40
impeded
the duties
the road was
travel on
(10th Cir.1980)).
Ogle,
In
Ogle,
641
judicial
influencing or
officer with a
or
ing
injuring
corrupt
improper purpose.35 The
applied
lawful,
has been construed and
in
juror
might
or
conduct itself
be
but if it was
cases. The distinction between
numerous
for an
performed
improper purpose, it falls
federal statute and the Texas statute is
the
within the criminal statute.36 As Justice
wording
in
of the mens rea element.
the
noted,
Holmes once
“Intent
make an
statute,
actor
In the federal
must “cor
criminal,
otherwise innocent act
if it is a
33
judicial
endeavor
influence a
ruptly”
Thus,
step
plot.”37
in a
“proper
inqui
justice;
or the
officer
due administration
ry is whether a defendant had
requi
statute,
actor
Texas
must have
corrupt
improperly
site
intent
intent
to influence
outcome of the
“an
investigation,
not on the means the
proceeding
the basis
considerations
employed
bringing
defendant
to bear
than those authorized
law.” As
other
general
this influence.”38
With
back
by the
noted
Model Penal Code commen
ground,
present
we turn to the
case.
tary,
mens rea of the
influ
statute
ence
is both broader and more
III.
equivalent
defined than
precisely
mens
appeals
The court of
found that the
rea under the federal statute.34 Both stat
however,
presented
State
“no evidence”
utes,
appel
criminalize conduct that ob
or
due
lant acted “with an intent
structs
influences the
administra
influence the
justice
tion of
if that conduct is undertaken
outcome of the
on the basis of
("Volume
Cir.1974)
act,
Ogle,
(noting
"any
238
any
33. See
613 F.2d at
I of
effort
contrived,"
Dictionary
Law
Bouvier’s
defines the term
requi-
however
if made with the
'corruption'
interfere,
act
as follows: ‘An
done with an
site intent to obstruct or
violates
give
advantage
some
1503) (internal
intent
inconsistent
omitted);
§
quotation marks
”).
duty
rights
with official
and the
of others.’
States,
437,
(9th
Cole v.
329
United
F.2d
443
Cir.1964) (affirming conviction of defendant
§
240.2
34. See
Commentar-
Model
Penal Code
urged grand-jury
who had
witness to invoke
3,
ies, vol.
at 57.
right
testify;
his fifth-amendment
not to
while
it,
duty
a witness "violates no
to claim
...
Cintolo,
980,
35. See United
v.
818 F.2d
States
corrupt
one who ... advises with
motive the
(1st Cir.1987);
§
991
Commentaries,
240.2
Model Penal Code
it,
witness to take
can
does himself ob-
48,
3, at
54-57.
vol.
struct or
due
influence the
administration of
justice.").
Cintolo,
(otherwise
36. See
818 F.2d
993
§
lawful means can violate
1503 if done with
States,
391,
37. Badders v.
240
United
U.S.
Baker,
intent);
corrupt
v.
United States
611
394,
367,
(1916);
36
L.Ed.
S.Ct.
60
706
see
964,
(4th Cir.1979) (advice
F.2d
967-69
also
R. Lafave & Austin W.
Wayne
Scott,
Jr.,
grand-jury witness to invoke Fifth Amend-
(1972)
Law 204
Handbook
on Criminal
given
can
ment
violate
1503 if
is
with a
("[TJhere are a number of instances in which
intent);
Fasolino,
corrupt
v.
United States
inquiry
why
into
act was committed
Cir.1978)
(2d
(attempt
F.2d
to ex-
determining
crucial
whether or not the
ploit special relationship
judge
trial
held
crime.”).
given
defendant has committed a
1503);
Griffin,
violate
United States
Cir.1979) (“The
(5th
F.2d
206-07
*9
Mitchell,
294,
38. United States v.
877 F.2d
justice
obstruction of
statute was drafted with
(4th Cir.1989) (using
construing
299
cases
eye
variety
corrupt
to 'the
methods
"corruptly”
interpret
under
1503 to
the
proper
justice
the
which
administration of
1505,
thwarted,
"corruptly”
term
in an obstruction
impeded
variety
may be
or
limit-
case;
investigation
congressional
affirming
only by
imagination
criminally
ed
the
of the
”)
improperly
convictions because defendants
(quoting
inclined.'
Anderson v. United
States,
uncle,
(6th Cir.1954));
attempted to
their
a member
215 F.2d
influence
Unit-
committee).
(2nd
Cioffi,
congressional
ed States
493 F.2d
of the
those
cient
that he
an intent
to
prove
other than
to
had
considerations
proceeding.
influence the
improperly
law.”
appel-
the
Notwithstanding that
means
light
in the
most favorable to the
Viewed
regarded
lawful
might
lant used
be
as
verdict,
jury’s
appellant’s
the evidence of
vacuum, clear proof
in a
of an
when viewed
culpable
following:
intent included the
to
would serve
criminalize
improper motive
(cid:127)
aunt
him from her
Appellant’s
called
theory
It was the State’s
his conduct.
Campos
home even before Constable
that,
aunt, appellant
was his
because she
her,
advice;
asking
his
arrested
for
(1)
the
at-
attempted to
district
thus,
assisting
involved
his
he was
charges
torney’s office to dismiss the
very
the
beginning
aunt from
Gonzalez;
(2)
Linda
the
against Anna
and
incident.
require
not
department
services
to
(cid:127)
arrest,
days
ap-
after his
Three
aunt’s
to the
report
her to
and adhere
standard
Hernandez,
pellant
Maria
called
Elana
appel-
of bond.39 If
pretrial conditions
and a
pre-trial
bond co-ordinator
lant’s
and intent when he made
motive
county
knew him
attor-
person who
was to
aunt
phone
these
calls
benefit his
at-
ney and a former assistant district
by short-circuiting
prosecution
her
for
He
her
Gonzalez
torney.
told
that Ms.
arrest,
evading
that was “an
to in-
intent
report
to
did not need
because Consta-
the proceeding
fluence
outcome of
being
Campos
investigated
ble
was
basis
of considerations other
than
incident,
“case was
some other
so this
by law.”
law does
those authorized
rejected.”41
to
going
be
not authorize the dismissal of criminal
(cid:127)
Ms.
he
Appellant told
Hernandez that
charges or the avoidance of standard bond
to
already spoken
the D.A.’s office
had
upon
conditions based
the defendant’s fa-
going
about this case and was
to be
another,
personal relationship
milial or
to
fact,
In
rejected.
appellant had
county attorney,
it a judge,
be
or other
spoken
the D.A.’s
office.
hand,
If,
official.40
on the other
(cid:127)
not tell
Hernandez
Appellant did
Ms.
simply
his
exercising
public-spirited
was
that Ms. Gonzalez was
aunt.
his
governance
interest
his tele-
good
and
(cid:127) A
phone
attorney’s
calls
unrelated to
aunt
week after
district
were
his
and
welfare,
case, ap-
her
then the evidence is insuffi-
office received Ms. Gonzalez’s
decide,
argument
gentlemen.
39.The State’s final
in-
ladies
Is this
following:
going
given
cluded
more
elected official
to be
any
you
family
Are
than
(cid:127)
would?
his
yourselves
[Y]ou need to ask
is this the
any differently
any-
treated
than
members
way you expect your elected
officials
body else?
your county?
act here in
Would this
happened
your family
have
if it had been
only peruse
morning
40. One need
news-
charged
member that was
with a crime?
papers
google
fixing
"ticket
scandals”
they
Would
have been treated the same
consistency
investiga-
see the number and
way as Anna Linda
Gonzalez
tions into the
dismissal of criminal
defendant in this case?
tickets,
cases, especially
parking
traffic and
(cid:127) [Appellant]
trying to
was
influence these
relationship”
judi-
upon "special
based
scenes,
people behind the
behind closed
personnel.
cial officers or court
aunt,
line,
help
doors
his
bottom
we know that he did that.
that,
(cid:127)
testimony
prove
actually
I
after the
And
have to
he
Later
established
don’t
investigation
completed,
proceeding, only
was
Constable Cam-
influenced the
that he
intent,
pos
any
wrong-do-
had
intent
cleared on
criminal
to influence
proceeding,
ing.
you
and that's what
need
*10
(cid:127)
Trevino,
pellant phoned
Appellant
Aida
an assis-
then
called
services
attorney,
Jimenez,
tant district
who was a friend
and talked to Officer
another
Appellant
of his.
told Ms. Trevino
acquaintance. He asked if Anna Lin-
Skurka,
boss,
that her
Mark
in-
was
da Gonzalez had to report
to receive
vestigating
Campos
conditions,
Constable
bond
and he told her that
“they’re
going
prosecute”
not
there was a possibility that the district
against
case
Ms. Gonzalez.
attorney
going
was not
to pursue the
against
case
her
arresting
because the
(cid:127) Mark Skurka testified that he never
officer
investigation.
was under
He
case,
spoke to appellant about this
said that he had talked with Ms. Trevi-
he
had
reviewed the case filed
no, but he
not say
did
that Ms. Trevino
Gonzalez,
against Ms.
and that he
upset
was
that he had called her or
would never dismiss a case that he had
that she
going
was not
to do anything
not reviewed.
help
Ms. Gonzalez.
(cid:127) Mark Skurka also testified that he
(cid:127) Appellant never told Officer Jimenez
never had a rule that Constable Cam-
that Anna Linda Gonzalez was his
pos’s cases were to be
pend-
dismissed
aunt.
ing
investigation.
He told Aida
Trevino to hold all of
“in
his cases
Appellant’s intent at the time he
investigation
limbo” until the
was com- made these telephone calls
a matter
plete.
fact,
for the
to decide
question
as a
taking
into
(cid:127)
all
account
of the evidence and
Appellant did not tell Ms. Trevino that
the credibility of the witnesses.42 In a
Anna Linda Gonzalez was his aunt.
review,
sufficiency
we
jury’s
afford the
in
(cid:127)
that,
Ms. Trevino testified
had she
culpable
ference of
intent as much defer
known that Ms.
appel-
Gonzalez was
ence as we do to the evidence supporting
aunt,
lant’s
she would have hesitated
proof
culpable
conduct.43
long
As
as the
up
follow on his comments.
jury’s finding
culpable
of a
intent “is sup
(cid:127) Appellant
again,
called Ms. Trevino
af-
inference,
ported by a reasonable
is
ter she had discovered from a third within
province
of the factfinder to
party, that Anna Linda Gonzalez was
choose which inference is most reason
appellant’s aunt. She had also discov-
able.”
ered
then that Ms. Gonzalez was
going to
aggravated
be indicted for
holding
In
perjury.
insufficient,
She told
that she
intent was
appeals
court of
did not want
to see or talk to Ms.
first stated that
there was “no evidence
Gonzalez.
appellant,
She told
[appellant]
anything,
“We’re
offered to do
probably going to indict her. And you
private capacity
either in his
his
should know
capacity
better than that.”
County Attorney,
exchange
Jackson,
(it
evidence,
atU.S.
644 law point to the makes probably result in his aunt’s case.”45 more for a favorable —no true, illegal pre-trial it to misinform bond improp- immaterial. The This is but or that a prosecutor partic- not mutu- or require er statute does coordinator influence consideration, by the quid pro rejected That ular case will be relevant quo. al or authority. again, But law- by bribery prosecuting statute.46 is covered conduct conduct not underlying fulness of the Second, the court of stat appeals intent to appellant’s determinative if was no that appel ed that there was obtain a because the dismissal defendant any lant information Ms. Trevino gave is not a was his aunt.50 That consider- and Ms. Hernandez those individuals by ation law.” In our system “authorized in how lawfully determining not use could justice, are people guilty we decide if of their official discretion. Even exercise law, upon a crime based the facts if appellant were true —if had commu this upon personal a familial or relation- only “the word on the street” that nicated to a ship public official.51 investiga Campos Constable under that, appeals The court of concluded be- tion—this would not “immunize Isassi’s in appellant “nothing private cause that a did relative securing tent to benefit his do,” holding citizen him could not “crimi- felony charge against her dismissal nally liable for this behavior would be to that, excuse delay and before from routine obscure the line between communi- supervision.”47 conditions of cations with law enforcement officials is on focus of the statute the state of illegal attempts to coerce those officials to “influencer,” not mind of the the propriety make decisions based on consid- of the action or inaction of the “influen-c 52 erations.” ee.”48 Third, appeals The jury appel- the court held that could have decided that showing that lant was simply doing there was no at- his routine official duty attorney tempted county to exercise on the basis as the communi- other cating personnel “considerations than those au- service pre-trial law,” in part attorney’s problems thorized because no law the district office any to inform a about illegal pre-trial involving makes bond case Constable Cam- prosecutor partic- pos, serendipitous coordinator or or that a and it was a coincidence rejected by particular ular case will be the relevant that the defendant hap- involved authority.49 And, prosecuting pened we add— aunt.53 Sacré bleu! The be his Isassi, support sentencing 45. — S.W.3d at —. submit in his letters based knowledge, upon personal but one who 46. See Tex. Penal Code relationship personal judge 36.02. uses his with the knowledge personal rather than the defen 47. Brief at 14. State's parte plea judge dant to make an ex oral 1503; may by § "An be covered out-of-court supra. See cases cited note 36 entreaty judge always oral would to the be suspect, mainly standing because one not 49. Id. relationship judge usually such to the would ear.”). gain judicial not be able to Baker, 50. See United States v. 611 F.2d Cir.1979). (4th 967-69 Isassi, — S.W.3d at —. Fasolino, F.Supp. States v. See United 449 (D.C.N.Y.1978), Baker, 'd, (finding 53. See F.2d at 968-69 586 F.2d aff (2d Cir.1978) (noting person prove that a who has sufficient evidence to defendant’s personal knowledge attempting persuade grand-jury of the defendant motive in *12 was, however, conclude, aunt, to help entitled cause he wants to his jury has he upon all of the evidence and reason- committed based a crime? The Court says yes. evidence, inferences from that that disagree. able I I think it is what the defen- all making intent of these appellant’s says, thinks, dant not what he that makes telephone influence pub- calls was to other attempt public an to a influence servant lic officials to dismiss criminal case improper. Anna Linda Gonzalez because she against Section Code, 240.2 of the Model Penal may his aunt. An official elected entitled Other Improper “Threats and In- manipulate judicial sys- and fluence in Official and Political Matters” is help family to a avoid condi- tem member comparable § to our Penal Code 36.03 of supervision prosecu- tions and (Coercion Voter) of Public Servant or and felony. Legislature, a in this tion for Influence) § 36.04 (Improper together.1 law, it, rarely invoked has forbidden and “congruence There is a of rationale” be- case, jury, reasonably in this and ra- tween the Model Penal Code offense and concluded, tionally a beyond reasonable offense bribery.2 of The offense is “a
doubt, that had that intent complement to of bribery” the crime improperly influence the outcome of his judgment reflects “a widespread pres- aunt’s criminal case on a basis not author- other sures than offer of benefit may ob- by law. ized justice.”3 struct administration of therefore the judgment We reverse of “Pressure” on a public servant obviously court of appeals and remand the case does not refer to is in what a defendant’s proceedings court for further con- mind; it refers to the nature of his interac- opinion. sistent with this public tion with the servant. KELLER, P.J., dissenting filed a Noting relationship the close between opinion HOLCOMB, which PRICE own, the model statute our Court JJ., joined. quotes the drafters Model Penal Code, designed “[This is] offense to reach MEYERS, J., participate. did not various means the integrity which KELLER, P.J., dissenting filed a government can undermined.”4 be But HOLCOMB, in which opinion PRICE public a presenting entirely servant with JJ., joined. legal reaching particular reasons for out- an integrity come is not attack What is it that the effort to makes ob- A attacks the special illegal: government. integrity bribe tain treatment is it what defendant, government money because personally motivates a or is it offered official him to public tempt what defendant tells a servant in an decide an persuade If a money order him? defendant outcome on the basis of rather than get tries his ease dismissed aunt’s be- on considerations law. witnesses to Fifth exercise their Amendment 1. Model Penal Code 240.2. right testify protect not to towas himself than rather inform of their witnesses constitu- Id. at 49. rights; argument tional "that defendant’s his pure only motives were and that he acted added). (emphasis Id. at 50 best two interests of the witnesses is an argument properly only addressable to a which, hold, Opinion citing evidentiary as we had a secure Model Penal Code 240.1-240.7, it.”). reject Explanatory in the base instant case to Note. informal under which govern- jeopardize practices integrity attacks the
Coercion free may tempt felt to communicate relevant parties force because threat of ment to officials of administrative on the basis of information him decide outcome *13 commentary The agencies.7 assures us rather than considerations fear provision to “com- Presenting application reasons to an of the legal law. that by merely tempts inappropriate him to decide an munications are neither official reprehensible” precluded by im- basis nor rather than is outcome on unauthorized requirement specific purpose.8 of The plicates integrity government. the of the focus is still the communication itself. commentary Penal to the Model The (l)(d), discussing punishment offense notes that subsection of grading In the Code offense, analogous improper-influ commentary to our which is this refers to for statute, “[ojther at its reach are types ence excludes from of threats” that “more ordinary tempts legislators to blandishments and entreaties akin questions officials sorts of of present “[a]ll executive because which will often close legisla pleas special for favors are made to threats distinguishing between refer executive officials.”5 The proper attempts persuade.”9 tive and “pleas for favors” seems special ence to the focus behavior —such as Again, is on con clearly inconsistent with Court’s entreaties —rather than blandishments and is on that the focus of the statute of clusion the motivation the accused. ”6 mind ‘influencer.’ “the state of reliance I do understand Court’s comment in this discussion The drafters’ case. unpublished on an Montana No- is be “lobbying” legislators this of in the is the where Montana case defen- yond of Penal scope the Model Code motivation influence the at jury dant’s the “lobbying” that it is of certain implies issue; simply the issue whether public servants that is within the other nullification was a consideration authorized It scope of the Model Penal Code. seems by law.10 “lobbying” to me that is more about what The Court cites a number of cases inter- and said it about is done than is one’s § which preting 18 concerns U.S.C. motivation. justice. obstruction usefulness when good point makes a The Court limited, though, these cases the dif- Model re- notes the Penal Code drafters’ language provision ferent of the federal jection suggestion only “cor- requirement). (including “corrupt” attempts prohibited. to influence be rupt” Moreover, the have fact that courts inter- given rejection rationale this But the for federal to make an otherwise- preted law inconsistent, internally seems to me legal act criminal because of defendant’s parts of well as inconsistent with other is not that Texas legis- motivation commentary, such reference as the intended lators to do same. special Some members “pleas favors.” case, that, resolving in this of the Institute feared without the In the issue says, “The law does not authorize “corrupt” requirement, provision would Court 240.2, Penal Code comment at 56. 9. Id. at 59. 5. Model Opinion at 644. 6. Holland, CR-95-53, 10. Montana No. 240.2, (Mont.Dist.Ct. Model Penal Code comment Mont. Dist LEXIS 929 Novem- 29, 1995). ber Id. at 57. charges however, on familial says, the dismissal based proof that “clear of an im- True, relationship ap- to another.”11 but proper motive would serve to criminalize never pellant anyone asked to dismiss [appellant’s] conduct .”2 Motive and intent charges based on a familial relationship. are not necessarily the same.3 A person The considerations on which who prosecutor communicates with a may requests based his were considerations au- have a motive help family member, thorized law.12 but he nevertheless intend to influ- ence the prosecutor’s only decision on the respectfully I dissent. basis of considerations that are authorized *14 law, by strength such as the of the evi- KELLER, P.J., dissenting filed a dence the case. I cannot fathom how a opinion. wholly uncommunicated motive4 could in- In his rehearing, appellant motion for fluence the outcome of a proceeding, so I contends that the Court’s construction of do not see how evidence of such could be give the statute “does not fair warning of sufficient to show intent. prohibited”
what is and leaves the courts Nevertheless, broadly Court holds “wholly with the unstructured task of de- that harboring a help family motive to fining through prosecutions criminal member is sufficient satisfy the intent limits of appropriate parte ex contact.” requirement of the statute. Under this Appellant also complains that the Court’s holding, a friend or relative would be ad- “public- motive discussion dichotomizes speak vised never to favorably prose- to a spirited good governance” with an interest cutor person about a investigation, under in family member’s welfare when “there even if asked. Even if his answer is true is no inherent conflict between them.” I (e.g., John Doe has never been in trouble agree. law), speaker with the risks criminal Part of the problem with the Court’s prosecution by saying so. opinion original submission is that I think this is exactly
conflates the what the concepts of motive and intent. Court by not, intended if “improper opinion. influence” statute its But it is requires then person opinion inadequately that a act “with an intent to influ- articulates ence the guidelines outcome of the on the what determining com- basis of considerations other than those munications are criminal. The opinion’s by opinion law.”1 The Court’s failure to do so renders the law unconstitu- State, PD-1347-09, Opinion at 642. v. Isassi NO. 2010 Tex. (October 6) (em Crim.App. LEXIS 1287 at 21 added). phasis specific 12. The resolution of this case is com-
plicated by issues such as whether the state- State, (Tex. Mays 318 S.W.3d true, ments made were Crim.App.2010) ("Appellant offered no evi extent to which I that matters. do not at- suggest dence to that he did not intend to tempt analyze any here to issue other than person. shoot a All of his mental-illness evi why intentionally holding dence showed he and know Court’s that "on the basis of [unau- ingly deputies: paranoid killed the He was thorized considerations]” refers to what is in thought they had 'mistreated' him. But the defendant’s mind rather than to what he capital motive is not an element of murder or murder.”) says. 36.04(a) (emphasis 1. Tex. Penal Code add- A4. motive could be communicated words ed). byor circumstances. appellant’s vague applied tionally
case.5 interpreta- if
Finally, even the Court’s clear, appellant of the statute were
tion foresee, before the no reason
had down, that was handed opinion
Court’s motive would
wholly uncommunicated legal an otherwise communication
cause so, This the Court’s being
violate 36.04. retroactively
interpretation should not be
applied appellant.6 re- respectfully
I dissent to Court’s grant rehearing.
fusal *15 ROMO, County
Sylvia Tax S. Bexar
Assessor-Collector, Appellant, TOYOTA, INC., Appellee.
CAVENDER
No. 04-10-00199-CV. Texas, Appeals
Court
San Antonio. 20,
Oct.
States,
Things
mining
suspect
‘N’
what a
5. See Posters
v. United
511
has to do
order to
513, 525,
114
128
satisfy
requirement
U.S.
S.Ct.
L.Ed.2d
provide
'credible
(1994)
applied"
(Explaining in an "as
identification”).
and reliable'
void-for-vagueness
"The
doctrine re
context:
quires
penal
that a
statute define the criminal
451, 457,
Tennessee,
Rogers v.
532 U.S.
6. See
that ordi
offense
sufficient definiteness
(2001) ("De-
121 S.Ct.