Vineyard v. State

review of the ruling trial court’s my on the mixed It position in Guzman that when question of fact and by Appeals law raised applies wrong defen law wrong review, dant’s motion or the suppress to standard of ought evidence. we to Guz man, simply point problem to the in that (stating Appeals at 87-88 court’s Court of de analysis and remand the matter for reconsid- probable cause); cided de novo there was no rejected ap- eration. But that Guzman Loesch v. proach by and Guzman is the law which we (Tex.Crim.App.1997)(stating Ap Court of majority’s opinion today are all bound.1 The peals de conducted novo determination of distinguish explain makes no effort to or suspicion). whether there was In reasonable departure from majority Guzman. The cases, both the Court faults of the Court ought to offer a coherent meaningful and Appeals’ however, analysis, because the rele explanation as to when this Court will con- vant factors were considered in isolation duct its own de novo review when we will and Guzman, rather totality. as a at 87 remand for the Appeals Court of to so. do (criticizing Appeals Court of failing explanation provided Until that I so can apply totality of circumstances test tell how to decide which cases should be sent “examinfing] independently each fact and not, back I and cases should will as- [finding] that of facts standing none alone sume, Guzman, per no that such cases finding proba were sufficient to warrant of should be sent back. ble considering cause” rather than the facts I have no idea how this Court would decide whole”); Loesch, (criticiz “taken aas at 831 the issue were we to conduct a de novo Appeals examining Court of factors my time, review. I will not invest as a lone “in “look[ing] isolation” rather than at all dissenter, conducting my own de novo re- together”). the facts In the instant might ultimately view. However we decide Court vacates and remands to the Court issue, says Guzman this Court should Appeals to reconsider the issue. Guz it, not Appeals. decide I Court there- man, specifically the Court declined to send fore dissent to the Court’s order to vacate Appeals matter back to the Court of and remand. reconsideration, conducting instead our own de novo Compare review of the issue. Guz

man, (Meyers, fii. 4 concurring and

dissentingXquestioning role of this Court

“reviewing” appeals decisions of courts of noting “normally, and that when this Court VINEYARD, Appellant, Cecil Don appeals applied determines a court wrong applied test wrongly proper or of Texas STATE test, we vacate remand for and that court test”) No. 4446-96. properly apply proper with Guz man, Meyers’ fn. 3 (responding to Texas, Appeals Court of Criminal “reviewing” comments about decisions En Banc. appeals stating courts of that this Court Jan. 1998. “reviews” conducting decision de novo concluding disagree review and “we with the prob

Court and decide there was cause”).

able Admittedly majority said that its discretion to review de novo these decisions Guzman appeals "may" courts and this Court courts”). re- appellate the intermediate But no questions view these mixed of law and fact de guidance provided majority there or in the novo, suggesting appeals the courts opinion today appeals as to when the courts of “may” differently elect review them also might this Court elect not to conduct de novo Court, “may” the case of this we elect also matter, insight I review. Until further on the Guzman, ("the appel- review them all. dispose of will assume this Court should cases in may questions late court de 'mixed review novo ” manner as Court Guzman. may law fact’ "[t]his exercise Sweetwater, Hall, appellant. for

Lance Cooley, Atty., Snyder, Mat- Dist. Dana W. Austin, Paul, Atty., thew State’s State. FOR ON STATE’S PETITION

OPINION DISCRETIONARY REVIEW McCORMICK, Presiding Judge, delivered opinion in which MANSFIELD, KELLER, HOLLAND and WOMACK, Judges, joined. possession jury appellant convicted videotape possessing a child visually depicting “film containing image” Appellant engaging sexual conduct. prosecu- in a successive was later convicted pornography for of child photograph with a “film possessing a engaging depicting a child in sexual visually to 10 Appellant sentenced conduct. $10,000 assessed a years’ confinement and fine for this granted conviction. The trial Prosecuting court’s We the State Attor- judgment provided ney’s petition that the confinement for discretionary review de- begin second conviction would not termine “whether run convictions for appellant until -videotape had his of a served sentence for of a V.T.C.A, prosecutions photograph, pursuant first conviction. Both arose -43.26,3 out of the same According resulting transaction. from opinion the of the Appeals: appellant’s pro- Court of incident of violate against tection jeopardy.” double We also 20, 1993, April “On law enforcement offi granted Attorney’s petition the District house, appellant’s pursuant cers searched discretionary essentially review that raises warrant, to a search videotapes, and found the grounds for review as are raised in albums, photo sexually and other oriented Prosecuting petition.4 the State Attorney’s Vineyard State, in materials a closet.” v. We will judgment reverse the of the Court of 1995). (Tex.App.—Eastland 913 S.W.2d 731 Appeals. appeal, appellant On direct claimed the prosecution second jeop- Initially, violated the double Ap we note the Court ardy peals clauses of the United States and misapplied Blockburger Texas the test fo Appeals Constitutions.1 The cusing solely the statutory on element agreed, appellant’s where, reversed “film image.” second convic- The law is that as here, tion and in ordered indictment that case or same act transaction violates one Vineyard, statutory dismissed. 913 at provision S.W.2d 731. In more than a once subse deciding appellant’s that quent prosecution second conviction is not barred jeopardy principles, violated double principles “requires if each offense Appeals proof Court of Blockburger;2 relied on the that a fact does not.” other elements,” State, Vineyard, 122, Iglehart the “same test. 913 837 S.W.2d 127-28 test, (the S.W.2d Applying (Tex.Cr.App.1992) at 732-33. Blockburger test fo Appeals Court of that proof cuses on necessary determined essen- establish tial in prosecution offense); element each was a “film elemente each see also image,” (Tex.Cr. “videotape” State, that the 60, the first Watson v. 900 S.W.2d 61 Here, prosecution App,1995). and the “photograph” prosecution the sec- the first re prosecution descriptive ond were merely quired appellant alle- proof possessed that a “vid gations of that eotape” essential element. Id. required The which was not in the second prosecution. Court of also Legisla- decided the The second re quired proof ture did not intend “that the appellant possessed “pho simultaneous that a possession more image tograph” than one film not required cre- which was in the first prosecution.’” prosecution. ates prosecu more than one ‘unit of the second Blockburger,5 Id. tion does not violate See Wat appellant's disposition 1. Prosecuting Our decision here 4. resolves claims of the State Attor- under ney’s petition disposes both constitutions. See Bauder v. also Attor- District (Tex.Cr.App.1996) 921 S.W.2d 703-09 ney’s petition. We therefore dismiss District (McCormick, P.J., dissenting); parte Ex Rath Attorney’s petition. mell, (Clin (Tex.Cr.App.1986) 717 S.W.2d 52 ton, J., And, dissenting). not we have been asked 5. We also note this Court has stated Block- ap to decide whether "the Texas Constitution burger “precisely applicable” test is not cases plies exactly way the same as the United like this where defendant’s conduct violates States Constitution” in cases like this. Bau statutory provision more once. See der, J.). (Meyers, 921 S.W.2d at 697 Rathmell, (the Blockburger 717 S.W.2d at 35 ra- applies tionale to situations in which crimi- Blockburger 2. v. United 52 nal conduct statu- violates distinct (1932). L.Ed. S.Ct. 76 306 tory provisions); iglehart, at 130 (Clinton, J., (the dissenting) Blockburger 43.26(a), test de- in rele- permit termines when will and will part, provides vant that a commits the multiple prosecutions where statutes two distinct offense of of child if that conduct); person knowingly intentionally "possesses also Wat- violated the same see ma- son, (Clinton, J., containing visually concurring) 900 at 64 terial de- S.W.2d picts engaging Blockburger appropriate (concluding a child in sexual conduct. was the trans chooses from one son, 61; many offenses as it Iglehart, S.W.2d S.W.2d proof requires long each offense action so at 127-28. not). other does a fact which the The next issue we address holdings in Rathmell This Court’s whether, statutory interpreta as matter In Rath- law, inform our decision here. appellant’s Iglehart of our simultaneous state mell, applicable statute we construed videotape both “an causing the death of proscribed off photograph more than one constitutes Watson, 61-62; prosecutions for to allow ense.6 See S.W.2d individual” 127; Rathmell, causing more than one individual Iglehart, 837 the death of S.W.2d 35; Rathmell, Iglehart, also see 837 S.W.2d in a transaction. (whether (Clinton, dissenting) Similarly, Iglehart, at 130 con we at 34-36. pro- more of a constitutes one or violations applicable duct statute which construed jeopardy analysis de property statute under current appropriating without scribed upon Legislature has defined pends how the to allow of “the owner” effective consent offense); Rathmell, 717 at 52-55 S.W.2d vari- prosecutions appropriating for separate (Clinton, entirely a dissenting). This is from more than property items of ous requires intent question legislative which Iglehart, in single transaction. See owner Legislature to our intend us decide whether at 126-27. 837 S.W.2d in cases this for ed like the simultaneous deci- Part of rationale this Court’s pornography item of each child Leg- Iglehart in and was the sions Rathmell separate to constitute a or an “al violation applicable use islature’s in the statutes prosecution.” unit lowable Sanabria See Igle- singular “individual” and “owner.” See United 98 S.Ct. hart, (Clinton, J., at 131 dissent- 837 S.W.2d Watson, (1978); 57 L.Ed.2d 900 S.W.2d Similarly, Legislature has used ing). Rathmell, 61; 127; Iglehart, 837 S.W.2d at image” in statute singular term “film 35; Watson, 717 S.W.2d at see also 43.26(a). See applicable to this case. Section (the (Clinton, J., concurring) at 64 5.W.2d Dissenting Judge claimed Iglehart, Clinton issue boils to one of units of down “allowable singular than the use “of the rather that prosecution”); Iglehart, 837 at 130 bearing question plural form” has no “on the (Clinton, J., dissenting). Our resolution Legis- many prosecution the of how units of this is determinative the federal Iglehart, See lature meant to allow.” jeopardy question. constitutional double (Clinton, J., dissenting). How- at 131 (few, Iglehart, any, 837 S.W.2d at if ever, necessarily rejected Judge this Court imposed by Jeop limitations are the Double Igle- position in both Rathmell and Clinton’s ardy legislative power Clause on the to de hart. offenses); fine York v. ref'd) (Tex.App.—Texarkana Judge claimed pet. Iglehart, Clinton also (our legislature applicable best” am- state is free carve out as that the statute was “at to interpret- posses- Supreme test in that United Court in case because “simultaneous States heroin violation scope jeopardy sion of cocaine and amounts to offense"). the double clause However, statutory Constitution, of more than one the determina- the United States case, necessary we it to ad- in this have found largely a of what constitutes an ‘offense’is application Appeals’ dress the Court of of Block- Legislature 'The has the matter of state law: way burger because of the the Court of power [and to establish and define crimes Appeals defined the essential of “film element "[flew, any, imposed if limitations prosecutions. in both pow- Jeopardy Clause on the Double (Citations Omitted). ’] er to define offenses.” actually inquiry appellate 6. This the main is statutory con- we as a matter of If determine Igle- should in cases courts make like this. comprises appellant’s struction that conduct hart, 837 S.W.2d at 127: ended, offense, single inquiry as a but a our analysis step "The first in our double offense prosecution for the same successive decide, requires us as a matter appellant’s be a after earlier conviction would interpretation, appellant’s whether conduct prima facie violation of pre- constituted liminary than one This more offense. (Citation Omitted).” clause. because, necessary determination although Court is bound decisions from this biguous on Legislature intended approach case from the this Court took in multiple prosecutions that because of Iglehart and Rathmell. this ambiguity, this Court ap- should have We also unpersuasive find plied the lenity” presumed “rule of Appeals’ reliance on Legislature did permit not intend to multiple 43.26(f), Legisla- evidence prosecutions violations of the ture’s intent to establish statute in a Iglehart, transaction. See distinct offenses cases like this. Section (Clinton, J., 837 S.W.2d at 133-34 dissent- 43.26(f) provides in a ing). This Court also necessarily rejected promotion of child Iglehart position and Rathmell.7 promote with the intent pornogra- consistent with ap phy,8 person possessing “six or more iden- proach this Iglehart Court took in and Rath- tical depicting a child ... mell, we Legislature hold the intended in presumed possess the film image with the cases like this to make of each promote intent (emphasis material.” item of child pornography an “allowable unit added). prosecution.” support As further for our The Court of stated that Section decision in this Legislature we note the 43.26(f) “demonstrates legislature has met several times since this Court decid did not intend to establish and dis- Iglehart and Rathmell ed changing without tinct possession offenses for the of each film those decisions which is some indication of 43.26(a). image” under Section disagree. We legislative approval approach 43.26(f) merely Section See, presump- Court took in creates a Marin e.g., those cases. v. 267,271-72 tion that a possesses 891 who “six or (Tex.Cr.App. 1994); Daugherty, State v. 268, images” more identical film possesses those (Baird, 273-74 (Tex.Cr.App.1996) promote concur with the intent to them ring). We see no depart 43.26(e).9 reason to in this under Section legislative history 7.We note further any given of Sec- photographs that at moment the are supports, tion 43.26 or at least is not inconsistent being distributed for others to see. This bill with, our construction of it in this case. In cases effectively would curtail the circulation of such this, Iglehart, like as in Rathmell and there are material, people prosecuted since could be and victims; therefore, multiple separate prosecu- prison possessing By sent to it. thus inhib- permissible. for each victim should be This iting the pornography, demand for child support victim rationale finds in the bill drastically bill production would reduce its analysis by Jurisprudence the Criminal Commit- promotion. study group tee adopt- of the House that studied Supreme already "The U.S. Court has held in Analy- what is now Section 43.26. See Bill Ferber, New York v. [102 458 U.S. 747 S.Ct. sis, Committee, Jurisprudence Criminal House 3348, (1982), pro- 73 L.Ed.2d 1113] that laws (on Study Group prohibit possession a bill to hibiting promotion and distribution of 626, pornography) pg.25, April child of HB at pornography child are It constitutional. held adopt 1985. The vote to HB 626 was 5-0 compelling pro- states have a interest in voting with one member not and 3 members tecting physical psychological well- abstaining. pg.24. See id. at being of minors. The court noted that child Jurisprudence The Criminal Committee which pornography permanent is a record adopt voted to apparently per- HB 626 was not participation child’s and that the harm to the opponents suaded of the bill who claimed compounded by child is circulation the mate- pornography protected child was Supreme similarly up- rials. The Court would by the United States Constitution. This commit- constitutionality hold the of this bill if it were apparently persuaded by tee supporters (sic) challenged.” (Emphasis Supplied). ever of the bill who claimed: "Child type por- is the worst 43.26(e), defines nography exploits because it defenseless and promoting possessing offenses of with the society stage vulnerable members of at a of life promote pornography. intent to child they profoundly impressionable. when are direct, though produce, Even it is a crime to express opinion pornography, 9. We no distribute on whether there is no law prohibiting possession. images” sepa- of six It “identical film is traumatic constitutes enough 43.26(a) photographed, ques- for children to be rate but it violations of Section as that presented even more traumatic child to know tion is not in this case.

«39 in Bar respect Supreme Court’s decision to the construction ed States With issue, appellant au the federal says relies on various federal v. United which rett States congres cases on thorities construed various at in those was “based statute issue Sanabria, U.S. sional enactments. See 437 the num the status of the offender and not 68-69, 2181-82; 98 S.Ct. at Bell v. United possessed.” Berry, 977 F.2d guns ber of States, 349 75 99 L.Ed. 919; U.S. S.Ct. 423 U.S. see Barrett v. United (1955); Tellez, 498, 502, 905 United States v. 11 F.3d 212, 218-19, 450 46 L.Ed.2d S.Ct. (5th Cir.1993), denied, (in cert. (1976) Act of enacting the Gun Control (1994); 1060, 114 1630, 128 S.Ct. L.Ed.2d 354 merely Congress not intend to re did (5th Berry, 977 United States v. F.2d 915 sales). strict interstate Cir.1992); Osunegbu, United States majority opinion Bell echoes (5th Cir.1987). F.2d are not re We Judge dis- approach advocated in Clinton’s quired follow these federal authorities in senting opinion Iglehart. Judge Clinton’s law, determining, as a matter of state opinion Bell. dissenting Iglehart cites even our intent of statutes. (Clinton, Iglehart, 133-34 we decline follow these federal authorities J., dissenting) (claiming “per- Bell should be they to the extent our inconsistent with authority”). majority suasive of this Court holding in this case. persuasive not find Bell when this Court did holding note We also our this case is not Iglehart, still it decided and we not find do necessarily inconsistent with as the Sanabria persuasive. in that by Congress offense case was defined Moreover, agree inclined with we are participation in single “illegal gambling as Congress clearly the dissenters in Bell opposed being business” as defined transport intended the simultaneous devices, of illegal gambling girl across lines for each woman or state government’s “undisputed theory of the purposes” a separate “immoral to be offense. case was that a single gambling there was Bell, 82-84, at 622- U.S. 75 S.Ct. engaged betting business which in both horse (Minton, J., dissenting).10 pur- 23 Like the Sanabria, numbers betting.” See 437 Bell, in pose of the statute at issue federal 68-69, 2181-82; U.S. at 98 S.Ct. see also 43.26(a) purpose protec- of is the (in Osunegbu, 822 prosecu- F.2d at 480-81 a exploitation. child from individual tion for two counts of mail conspiracy to steal Bell, 82-84, 349 at 622- See 75 S.Ct. U.S. Service, gov- from the Postal United States (Minton, J., dissenting) (Congress 23 had as effectively ernment only conceded that one purpose protection its of the individual offense packages occurred because “two were girl exploitation). woman or from time”). at the stolen same holding Finally, Our in this case appellant also is not neces- relies on this Court’s sarily Tellez, Crosby, parte inconsistent with which holds in Ex 683 decision (Tex.Cr.App.1986). that simultaneous of In Crosby, two firearms this Court only only applicable aggravated robbery is one offense under the fed- occurs held that one eral statute making aggravating it an for a felon elevates offense when the element that firearm, Berry, robbery to be in aggravated of the offense from rob- similarly pos- bery which holds as to is that simultaneous the defendant causes serious injury during of bodily session ammunition under the same feder- to more than one Tellez, 533-34; Crosby, al statute. 11 703 F.3d at the same transaction. Berry, Crosby 977 F.2d at 919. These two cases at 684-85. We find distin- S.W.2d facts, merely applied language on guishable some from the Unit- and we also note Bell, protection dissenters claimed: was not with the means concerned of transportation. Surely it intend to did not transport “To me the means that one statute transported by the make it easier if one females girls or more women commerce constitutes bus load. construction the statute Congress offense as to each had one. plain purpose protection reaches that does violence to its result as its of the individual 82-84, Bell, girl wording.” exploitation, U.S. 75 S.Ct. woman or from and the trans- 349 (Minton, dissenting). portation punished. It each female was be 622-23 basis of Crosby this Court’s decision in Supreme interpreting scope Court in Legislature jeopardy intended for the double “theft” clause of the United Constitution, “integral part be the States aggra- the offense of determination of what robbery” only largely vated constitutes “offense” is and that “one theft of matter of person” Legislature state law: “The has occurred that case. See Cros- power to establish and define crimes by, 708 S.W.2d at “integral part 685. The ‘f]ew, if any, imposed [and limitations are the offense of pornogra- of child by Jeopardy the Double Clause on the phy” is the harm to each individual child. ” legislative power to define offenses.’ apply Crosby we decline to to this State, (Tex. Spradling v. approach and we decide to follow Cr.App.1989), citing Sanabria v. United taken this Court’s more recent decisions 98 S.Ct. Iglehart. Rathmell and (1978). L.Ed.2d 43 we determine as a If We judgment reverse the of matter ap construction that Appeals and remand the cause there to ad- pellant’s comprises conduct but a appellant’s remaining points dress of error. ended, offense, inquiry our as a succes sive the same offense after MEYERS, J., an opinion filed concurring appellant’s earlier conviction be a would judgment PRICE, which BAIRD and prima jeopar violation the double facie JJ., joined. dy clause. OVERSTREET, J., dissented without Iglehart v. opinion. added); (Tex.Crim.App.1992)(emphasis see (Clinton, J., also id. at 130 dissenting)(test MEYERS, Judge, concurring. Blockburger inapposite announced in be This case is foremost a case of cause that determines when will intent. The Court major- and the permit and will multiple prosecutions ity presented confuse the issue applying where two distinct statutes are violated Blockburger determining before conduct; here, the issue is whether Legislature intended that there be of- double :is violated when accused is Only offenses, fenses here. if there are two prosecuted more than once under same stat it they does matter that are “the same” for utory provision—root question Legis is what jeopardy purposes Blockburger. under prosecutions).1 lature intended to units seminal appellant whether Prosecuting Attorney The State states the prosecuted can be posture more than once exactly right: under the of this case (section 43.26), statutory provision same distinct, presents This case but re- things during of two lated, First, different the issues. what is the “allowable same transaction. In a involving case multi- prosecution”—i.e., offense, pre- unit of the ple prosecutions 43.26, under the by § scribed Penal Code provision upon based relating Pornogra- theft of to Possession of items Child Second, owners, phy? property belonging posses- of does a conviction for to different explained videotape the sion of a in violation of Sec. legislature’s the 43.26, supra, proscribe constitute intent to offenses was the prosecution bar to a succeeding posses- preliminary question: photograph, sion of a also in of violation step The first in our double anal- 43.26, supra? relevancy Sec. The the decide, ysis requires us to as a matter of depends upon disposition second issue the statutory interpretation, appel- whether the issue. first lant’s conduct constituted more one added). (Emphasis preliminary offense. This determination is because, necessary although this Court is question Legis- And the so is whether the by bound decisions from the United States lature intended that section 43.26 be divisible majority says inquiry” Blockburger analysis conducting While the the "main is before decid- “statutory interpretation” Legislature the it none- intended that there exactly inquiry by theless muddles what be two offenses. con- possess “material must depending The defendant prosecution separate units of into “material” image.” The term taining a film images possessed. We types film upon of items or a number suggests intent Legislature’s if first look to see provides that the further things. The section plain language of the from the can be derived image.” “a film 43.26, must include ap- material provision.2 Penal Code section may pos- multiple things be while entirety provided plicable to this only in- (material), those items need sessed as follows:3 But I image film offense. clude (a) if: commits an offense person A necessarily means not convinced that am (1) person knowingly or intentional- film image more than one inclusion of containing a film ly possesses material one of- more than commission of means the youn- visually depicts a child image that apparent Legislative intent is more fense. years age the time the ger than 18 (c). from subsection image of child was made who film (e), following affir- Under subsection conduct; and engaging in sexual available: mative are defenses (2) the material person knows that defendant, faith, (1) reason- good depicts the child as described Subdivi- engaged ably the child who believed that (1). sion age years or conduct was the sexual (b) In this section: older; (1) photograph, “Film includes a (2) spouse the defendant was slide, film, negative, videotape, or or a offense; time of the child at the reproduction any these. (3) fide edu- was for bona the conduct (2) meaning conduct” has the “Sexual medical, cational, psychological, psychiat- assigned by 43.25. Section enforcement, ric, judicial, law (3) meaning assigned “Promote” has the purpose; or by 43.25. Section (4) not more than two defendant (c) provided years The affirmative defenses than the child. older 43.25(f) apply also to a is on defenses of the affirmative The focus under this section. requiring depicted, thus particular (d) (a) An is a considered individu- image offense under Subsection film be that each instance, collectively. if felony degree. of the third For ally rather than images of two two film possessed a defendant (e) person commits an offense if: children, affirma- might he have an different (1) person knowingly or intentional- possession of one but as to his tive defense ly promotes possesses with intent to other, upon depending the status not the promote material described Subsec- image must particular Each child. (a)(1); tion determining the independently in considered (2) knows that the material an affirmative defense. applicability of depicts the child as described Subsec- structured Legislature not have would (a)(1). to be the film provision such that (f) possesses six or more who individually purposes of deter- for considered depicting a child as images film identical given affirmative mining applicability of a (a)(1) pre- described Subsection defense, collectively purposes of de- but possess images film with sumed to It fol- prosecution.” “units of termining the promote the material. the intent to may more than commit that a defendant lows (e) more than one possesses he one offense when (g) under An offense Subsection multiple film image, degree. felony of the third history has since been amended. majority 3. Section 43.26 looks to 2. The position. support Consideration of further legislative history of its inappropriate legisla- when apparent from the face of stat- tive intent is ute, here. types.4 the same or different Nothing in suggests this case images pos- that the two

sessed are of the same Having children.

possessed film images, appel-

lant committed two offenses.

The next is whether these two Blockburger.

offenses are “the same” under ease, prosecutions this successive we look charging

to the elements in the instrument penal provision.

rather than the code State Perez,

v. (Tex.Crim.App.

1997). Each indictment requires proof of a

matter the other does not. alleges One videotape, of a posses the other

sion of a photograph. Appellant was not , charged with the “same offense” in the two

cases; his second is not barred jeopardy. Appeals The Court of

erred in concluding otherwise. judgment

The Appeals

should be I judg- reversed. concur

ment of the Court. PRICE, JJ., join.

BAIRD and Shamsie, Christi,

Terry Corpus appel- lant. Texas, Appellant, The STATE of Skurka, Atty., Corpus Mark Asst. Dist. Christi, Paul, Austin, Atty., Matthew State’s

Randy TAFT, Appellee. Christian for the State. No. 1467-96. Texas,

Court of Criminal En Banc. PETITION OPINION ON STATE’S FOR DISCRETIONARY REVIEW Jan. PER CURIAM. appellee charged aggravated with

sexual assault. His first trial ended hung jury. mistrial Prior to re- because of trial, granted the trial court the “Defendant’s Suppress Motion on the Oral Statements” ground they prejudicial more were probative. See Rule of Criminal Evidence question might image A further be whether all sesses more than one film but presented pos- offenses are when the defendant are of the same child.

Case Details

Case Name: Vineyard v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 7, 1998

Citation: 958 S.W.2d 834

Docket Number: 4446-96

Court Abbreviation: Tex. Crim. App.