Tarrant County Criminal Courts are ready to reopen. The Office of Court Administration published Tarrant County’s approved plan on Friday, June 5, signaling that we’ve been given the green light to get back to business. So what will this mean for defendants, attorneys and visitors? Here’s an overview of the plan and answers to some frequently asked questions.

What is the COVID-19 Operating Plan for Tarrant County Courts?

On Friday, June 5, the Office of Court Administration published Tarrant County’s approved plan for reopening its courts. This plan outlines how the judges in Tarrant County plan on complying with the orders from the Supreme Court and Court of Criminal Appeals. The following key restrictions will be in place:

• The maximum number of people permitted in the gallery of each courtroom will be posted at each courtroom.  Family members and others are discouraged from attending.
• Judges and court staff will be required to wear face coverings while in the courtrooms during in-person proceedings.
• Judges may remove face coverings when, in the opinion of the judge, it is necessary when speaking for clarity.
• All other individuals entering the courtrooms will be required to wear surgical face coverings and shall not remove those coverings except upon order of the judge.
• Individuals will be strongly encouraged to bring a surgical face covering with them, but if the individual does not have a surgical face covering, a disposable surgical face covering will be provided by the sheriff’s department. Individuals will be strongly encouraged to wear the surgical face covering at all times while in the court building.
• In-person proceedings shall be set at least 15 minutes apart to allow court building cleaning staff to clean the courtrooms between proceedings.
• Except in instances where multi-person dockets are necessary, judges and court staff will set trials and hearings individually and will stagger them throughout the day rather than all at one setting. When multi-person dockets are necessary, judges and court staff will ensure that proper social distancing is maintained not only within the courtroom but also in the public areas outside the courtroom if all persons are not able to be in the courtroom at the same time.
• Individuals who are over age 65 and individuals with serious underlying health conditions, such as high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune systems are compromised such as by chemotherapy for cancer or other conditions requiring such therapy are considered to be vulnerable. The courts will make accommodations for these individuals.
• All persons not from the same household who are permitted in the court building will be required to maintain adequate social distancing of at least 6 feet.
• No more than 4 people can use an elevator at a time in the Tim Curry Justice Center. (Get ready to use the stairs if you want to be in court on time.)
• The chairs/pews in the gallery of the courtroom have been marked to identify appropriate social distancing. Seating is limited to every other row.

The Scheduling Plan for the Criminal Courts for In-Person Dockets are as follows:

Monday (Felony)

396th (6th Floor)

371st (8th Floor)

CDC 1 (5th Floor)

372nd (6th Floor)

Tuesday (Misdemeanor)

CCC1 (5th Floor)

CCC3 (7th Floor)

CCC5 (6th Floor)

CCC9 (8th Floor)

CCC4 (5th Floor)

CCC7 (8th Floor)

CCC8 (7th Floor)

CCC10 (7th Floor)

Wednesday     (Felony)

432nd (6th Floor)

213th (5th Floor)

297th (5th Floor)

CDC 3 (7th Floor)

Thursday         (Misdemeanor)

CCC1 (5th Floor)

CCC2 (6th Floor)

CCC4 (5th Floor)

CCC5 (6th Floor)

CCC6 (8th Floor)

CCC7 (8th Floor)

CCC8 (7th Floor)

CCC10 (7th Floor)

Friday  (Misdemeanor and Felony)

CDC 2 (6th Floor)

CDC 4 (8th Floor)

CCC2 (6th Floor)

CCC3 (7th Floor)

CCC6 (8th Floor)

CCC9 (8th Floor)

Why were my court dates being reset?

In addition to the widely-published governor’s orders, Texas criminal courts also have to abide by orders issued by the Supreme Court of Texas and the Texas Court of Criminal Appeals, which works closely with the Office of Court Administration (OCA). The OCA is the state agency that provides resources and guidance for state district and county courts in Texas and operates under the direction and supervision of the Texas Supreme Court.

To date, there have been 17 emergency orders regarding the COVID-19 state of disaster by the Supreme Court of Texas. Each of these orders are focused on ensuring the safety of everyone involved in the criminal justice system, including defendants, lawyers, judges, juries, and general public. These orders pushed back court dates back to ensure a reasonable level of safety for all participants.

Why did it take this long for Tarrant County Criminal Courts resumed normal business?

In order for in-person court business to open back up, the county must submit a COVID-19 operating plan to the OCA detailing how officials plan to keep participants and the public safe from infection. The plan must lay out how it will ensure adequate social distancing, reduce courthouse occupancy, screen courthouse workers and visitors, and comply with state-wide restrictions. Once approved by the OCA, courts can get back to business.

The Office of Court Administration provided a template, which if used, is easily approved. Counties seeking to modify the template or submit their own plan will have to show how their plan meets the requirements set forth by the Supreme Court, Court of Criminal Appeals, and the Office of Court Administration. Tarrant County’s plan wasn’t approved until the first week of June.

When will jury trials resume in Tarrant County?

Pursuant to the 17th Emergency Order Regarding the Covid-19 State of Disaster, the Supreme Court of Texas prohibits jury trials from being conducted, with limited exception, until at least August 1, 2020. Even when trials resume, expect individuals who are in jail awaiting trial and cases involving child sexual assault allegations to be set before cases involving defendants who are free on bond while awaiting trial.

Can a jury be seated after August 1, 2020?

While courts are undoubtedly eager to get back to some semblance of normalcy, there could still be issues seating a jury after August 1, 2020. If certain segments of the population are restricted from coming to the courthouse because of age or health concerns, challenges may be raised regarding whether the potential jurors represent a fair cross-section of the community. Of course, each individual juror summoned to jury duty will also have to determine if he or she is going to show up or not. While disobeying a jury summons can result in arrest and an order of contempt from the court, it is hard to imagine an elected judge in Tarrant County putting someone in jail, exposing them to the COVID pandemic, if their reason for non-appearance was due to a health concern.

Additionally, the OCA is considering pushing the date back to August 15, 2020.

Are grand juries allowed to meet?

Yes, grand juries can meet by video conference or in person as long as the social distancing and group size requirements are met. Courts are encouraged to extend the grand jury terms during this time.

My attorney says we are set for a virtual docket or a Zoom plea, what should I expect?

As of right now, there’s not a unified plan regarding the way virtual dockets are conducted. One of the challenges of having 20 elected judges, each in charge of their own court, is that it can be challenging to find a consensus. Some courts have attorneys and clients check in for a “Zoom docket.” Others only have clients appear by Zoom if they are set for a plea. Only a limited number of in-custody pleas occur each day.

Can I watch a court proceeding that is held virtually?

Yes. The Supreme Court of Texas requires that virtual dockets are streamed online, and the high court strongly suggests the streaming take place through Youtube. You can watch Tarrant County (or any other county) court proceedings live here: http://streams.txcourts.gov/.

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When an accusation of a sexual nature is made – anything from online solicitation of a minor to sexual assault or even continuous sexual assault – we often consider whether completing a psychosexual examination would be beneficial for our client. When a defense attorney refers a client to complete a psychosexual examination, the attorney will take steps to ensure whatever is discussed at the evaluation is protected by attorney-client privilege (unlike psychosexual examinations that are court-ordered). In other words, the results of a psychosexual examination conducted under attorney-client privilege are only shared with the prosecution or the court –  if the defense attorney wishes to do so. If for some reason, a psychosexual examination is not favorable, the attorney may use it instead to assist the client in getting counseling, which again may positively effect the ultimate outcome of the case.

A lot of thought goes into whether a person should undergo a psychosexual examination, and how the results might benefit a client. For instance, it may be used to show that a client does not have predilection to be attracted to children. It may be used to show the accused has never been a “hands-on” offender. It might be used to show the person is a good candidate for rehabilitation and probation – which can cut significantly against arguments that a prison sentence is appropriate.

What Are Psychosexual Evaluations?

A psychosexual evaluation is a battery of examinations that uses scientific methods to evaluate a person’s psychological and sexual functioning. The psychosexual examination evaluates sexual interests to see if there is a deviation from generally accepted sexual behavior, which could be considered abnormal, and if acted-upon, illegal. Examples of such behavior includes an attraction to minors, family members, and nonconsensual sex. The evaluation also helps provide information about an individual’s risk of re-offending and what treatment might be most effective.

Psychosexual evaluations are administered to both juveniles and adults and used in both criminal and civil courtrooms. Other than being used by proactive defense attorneys in criminal cases, evaluations can also be ordered by a judge as a condition of an open plea or after a plea as a condition of probation. Psychosexual examinations are generally administered by mental health professionals, and in some cases evaluations are conducted by probation employees.

What Do Psychosexual Evaluations Entail?

Psychosexual evaluations are typically, but not always, divided into four sections: a clinical interview, psychometric tests, a psychological assessment of sexual arousal, and a risk assessment.

• The clinical interview serves as an ice breaker between the evaluator and the client. The evaluator will ask questions regarding the client’s family history, educational background, any mental health concerns, and intimate relationship history, among other things. The client will discuss the allegations and the evaluator will take notes on his or her initial impressions and any observations regarding the client. In some cases, clinical interviews will also be performed between the evaluator and a client’s family members.
• The psychometric tests include: a personality inventory which consists of a 154-item objective psychological test that is computer-scored and designated to identify psychopathic individuals; a sexual inventory which is a thorough assessment of the client’s sexual history, background, and development; and an intelligence test – or IQ test – which evaluates the client’s intellectual abilities and allows the evaluator to determine whether the client can handle the mental demands of treatment.
• The psychological assessment helps the evaluator determine whether the allegation against the client is likely to reoccur or whether the allegation would be considered outlier behavior. This is typically determined by using penile plethysmography, which is a psychological assessment of the client’s sexual arousal pattern. The test measures the blood pressure and erectile changes in the penis, along with the client’s breathing when introduced to different visual stimuli depicting sexual behavior with adults and children. Stimuli depicting sexual behavior can also be presented to female clients to demonstrate their arousal behavior. Additionally, if a polygraph test is required, this is when the test will be performed. Polygraph tests are most common when the client denies actual physical contact with the victim and in the psychosexual evaluations of juveniles.
• The risk assessment determines the client’s risk of recommitting any type of crime but focuses more on the risk of recommitting sexual crimes.

The entire evaluation can be completed in roughly six hours but is usually stretched out over the course of an entire day to allow for breaks in between sections. It is unusual for evaluations to spill over into a second day.

Why Would a Defense Attorney Request a Psychosexual Evaluation?

Psychosexual evaluations have become a useful tool for criminal defense attorneys, but when requesting this evaluation, but there are also risks. First and foremost, psychosexual evaluations aid during plea negotiations, help determine trial strategies, and can be a significant mitigating factor during sentencing. As an additional perk, if the evaluation is conducted at the request of the client’s defense attorney, then the results of the evaluation are covered under attorney-client privilege. The client, however, does run the risk of further incriminating him or herself in regards to the current allegation or past unreported allegations. The evaluator is required, by law, to report any other cases of sexual abuse, meaning a client who admits to sexually abusing another individual will likely be subject to a new investigation and will run the risk of new additional charges being filed.

How Can You Prepare for a Psychosexual Evaluation?

You must tell your attorney about any charged or uncharged conduct that could come up in the interview. You should go in prepared to spend at least one full day talking to someone about the most intimate facts about yourself and your thoughts. It is important to be honest, as the evaluations are designed to pick up on deception.

You should also be prepared for rather invasive tests to determine your response to sexual stimuli. The penile plethysmograph, for instance, is a pressure sensitive device that tests for erectile responses. The most beneficial responses are to consensual adult stimulus. Responses to non-adult or non-consensual stimuli are noted. Notably, the lack of a response at all – due to dysfunction, medication, nerves etc. – while not devastating, is typically not looked upon favorably by courts or prosecutors.

Are there Psychosexual Evaluations for Juveniles?

Adolescents require psychosexual evaluations when they participate in inappropriate behaviors such as engaging in sexual activity with children who are three or more years younger, family members, non-consenting partners, animals, or individuals who have mental or physical disabilities. Adolescents also require this type of evaluation if they expose themselves or touch others, or if they are found guilty of any sex offense.

Psychosexual Evaluations Can Be an Effective Tool

Psychosexual evaluations can be an effective tool for providing a scientific basis for determining whether a person is unlikely to reoffend, a person’s likelihood of rehabilitation, and even proclivity for certain types of offenses. It is important that you are open and honest with your attorney in order for them to provide their best recommendation as to whether, and how, you should undergo a psychosexual examination.

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Prior to April 20, 2020, 48 states and the federal system required unanimous jury verdicts for serious criminal offenses. Louisiana and Oregon, however, only required a 10-2 jury verdict, meaning only 10 jury members needed to be in full agreement that a defendant was “guilty” of the serious crime with which he or she was charged. This is due, in part, to the 1972 plurality decision Apodaca v. Oregon, which held that a jury could convict a defendant with a non-unanimous verdict without violating the Constitution. In the past 120 or so years, the Supreme Court had touched on this subject about 13 times but had never barred non-unanimous jury verdicts.

On April 20, 2020, the Supreme Court issued a landmark decision in Ramos v. Louisiana ruling the Sixth Amendment requires a unanimous jury verdict in serious criminal cases and this extends to the states through the 14th Amendment.

Ramos v. Louisiana

Evangelisto Ramos was indicted in a Louisiana state court for second-degree murder in 2015 for allegedly stabbing Trinece Fedison to death in 2014. In 2016, Ramos was found guilty and sentenced to life in prison without the possibility of parole by a 10-2 jury decision. Ten jury members believed Ramos was guilty, but two believed he was innocent. In most courtrooms across the nation, including all courtrooms in Texas, a 10-2 jury decision for the charge of murder would have resulted in a hung jury –  a mistrial for Ramos.

Ramos’s defense team appealed the case to the Louisiana Fourth Circuit Court of Appeal. Ramos argued that his conviction by a non-unanimous jury violated his constitutional rights under the Sixth Amendment right to a trial by an “impartial” jury. The Louisiana Fourth Circuit Court of Appeal affirmed the lower court’s judgment, and the Louisiana Supreme Court denied review.

Overturning Apodaca v. Oregon

The Apodaca plurality decision spent little time grappling with the historical meaning of the Sixth Amendment. Louisiana argued the ruling in Apodaca v. Oregon allowed the sentencing of Ramos to life in prison without parole without a unianimous verdict. In Ramos v. Louisiana the Supreme Court considered the language of the Sixth Amendment and “the right to an impartial jury,” acknowledging that racial discrimination was a significant motivating factor for the 10-2 laws in both Louisiana and Oregon, and ultimately overruled the longstanding precedent established by Apodaca v. Oregon. After over 120 years of periodically discussing this topic, the Supreme Court finally made the landmark decision that unanimous jury verdicts are required to convict a defendant of a serious crime. As a result of this decision, Ramos v. Louisiana was reversed, and Evangelisto Ramos will have the opportunity to have his case tried again, this time by an “impartial jury.”

Continuous Sexual Assault in Texas

Texas has long required a unanimous verdict in criminal cases. This is codified under Code of Criminal Procedure 36.29(a) and it can be found in Article V, Section 13 of the Texas Constitution. However, Texas Penal Code 21.02, which applies to Continuous Sexual Assault allegations, allows a jury to return a non-unanimous verdict as to the specific instances of conduct.

Aside from capital murder, continuous sexual abuse of a child is the most serious crime in which an individual can be charged and arguably the allegation that comes with the greatest stigma. The Texas Penal Code Section 21.02 provides that a person commits continuous sexual abuse if he or she is over the age of 17 and has engaged in two or more acts of sexual abuse with a child – or multiple children – within a 30-day period. For purposes of this charge, a child means a person under the age of 14 when the sexual acts were allegedly committed. If convicted, a person faces anywhere from 25 years to life in prison without the possibility of probation, a deferred adjudication program, or even parole.

In Texas, a person can be convicted of continuous sexual assault of a child without the jury being unanimous as to the specific instances of conduct. That means, if all 12 jurors believe that the accused is guilty of continuous sexual assault, they do not have to agree on which two instances of sexual misconduct actually occurred.

Specifically, Texas Penal Code 21.02 which provides:

(d) If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

Simply put, all 12 members of the jury do not all have to agree on which two or more acts of sexual abuse the accused committed to convict the accused of continuous sexual abuse. This statutory exception makes it different than other cases where the Court of Criminal Appeals has ruled that a jury must be unanimous as to the discrete offense that the accused was guilty of. See Cosio v. State, 353 S.W.3d 766 where the Court ruled a jury charge must include a unanimity-as-to-specific-instance charge when multiple instances are presented to the jury.

The Effect of Ramos v. Louisiana on Continuous Sexual Assault Charges in Texas

In the years to come, expect to see defense attorneys preserve this issue at the trial level and for the argument to be raised in Texas courts of appeal in the future.

Since its enactment in 2007, section 21.02 of the Texas Penal Code has been challenged on multiple occasions, resulting in no modification to the statute to date. In 2010 the Court of Appeals of Texas—Dallas published Render v. State. Here, the defendant argued, among other things, that the continuous sexual abuse statute he was charged under violated the unanimity requirement. The appellate court affirmed the trial court’s judgment and explained that section 21.02 of the Texas Penal Code is a statute that creates a single element of a “series” of sexual abuse. It does not make each act of sexual abuse a separate element of the offense that needs to be agreed upon unanimously. In the Ramos v. Louisiana decision, the court repeatedly mentioned that only the criminal justice systems in Louisiana and Oregon would be affected by this decision because on the surface these are the only two states that allowed non-unanimous verdicts. Those states will have to retry the defendants who were convicted by non-unanimous juries whose cases are still pending on direct appeal. Despite this, expect to see further challenges to Penal Code Section 21.02 in light of Ramos v. Louisiana.

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Duplicity in Prosecution or Politics as Usual?

In recent days, Tarrant County District Attorney Sharen Wilson has publicly stated that her office plans to pursue a murder indictment against former Fort Worth Police Officer Aaron York Dean in the officer-involved shooting death of Atatiana Jefferson.

“We have completed an initial review of the case, and based on the evidence we intend to ask the Grand Jury for an indictment of murder against Aaron Dean,” Tarrant County Criminal District Attorney Sharen Wilson said in a recent statement to the media. “We will prosecute this case to the fullest extent of the law.”

While many in the community applauded this quick decision, the pronouncement of her intentions inside the grand jury room have raised the eyebrows of local attorneys and courthouse observers – especially since it is out of line with her current protocol and past handling of other officer-involved shootings.

What is the Tarrant County Law Enforcement Incident Team (LEIT)?

All officer-involved shootings in Tarrant County are supposed to be handled by the Law Enforcement Incident Team (LEIT) of the Tarrant County District Attorney’s Office. The Unit is made up of two former police officers who are now prosecutors within the office.

What is the Tarrant County District Attorney LEIT Protocol?

The protocol for LEIT investigations regarding officer-involved shootings is outlined very specifically and states the LEIT will “present all cases thoroughly and neutrally…to ensure that the grand jury has all the facts and law needed to reach a just decision.”

“LEIT will not make a recommendation to the grand jury about whether or not to seek criminal charges in any LEIT case,” the protocol states.

LEIT Protocol Broken

Clearly, the DA’s announcement that prosecutors intend to ask a grand jury for a murder indictment goes against the very protocol that this District Attorney put into place after taking office.

It is also a departure from how every other officer-involved shooting has been handled by her office. In the past, officer-involved shootings were taken directly to a grand jury prior to the officer’s arrest. In other words, the officer was only arrested after a grand jury returned an indictment – if they did. In most cases, the grand jury no-billed the officer.

In this case, Officer Dean was arrested and formally charged by the DA with murder just days after the shooting. The speed with which he was charged begs the question of whether the DA’s Office completed the independent investigation outlined in the “Protocol for Law Enforcement Incidents” developed by her office.

The Grand Jury Process in Texas

The grand jury process has always been a secretive proceeding that is closed to the public and defense attorneys. In Texas, a grand jury is a body of 12 people who are “randomly selected from a fair cross section of the population.” The identities of the members of the grand jury are kept secret so they can operate independently of any outside pressures.

The goal of the grand jury is to hear criminal complaints to determine whether probable cause exists and if criminal charges should be brought against the accused. If at least nine jurors vote that a person should be charged with a crime, the case is indicted and proceeds in the criminal process. If not, the case is no-billed, which essentially means the grand jury believes there was insufficient evidence to prosecute someone.

Pursuant to Code of Criminal Procedure Article 20.011, the only people allowed in the grand jury room are the grand jurors, prosecutors, bailiffs and a court reporter. No judge oversees the proceedings.

And while defense attorneys are not allowed in the grand jury room, most Texas counties will allow defense attorneys to submit “grand jury packets” or defendant presentations for the grand jury to consider, if they chose to do so. These packets are presented to the grand jury through the prosecutor.

These grand jury packets could include anything from additional photos and videos, to concerns about the investigation, legal arguments, even polygraph results. These packets allow grand juries to consider more than a prosecutor’s summary in determining whether or not to indict a case.

Experienced and discerning prosecutors prefer for grand juries to have a complete picture of the case, rather than indicting cases that they will ultimately lose at trial.

However, for reasons that are not clear, Tarrant County no longer allows “grand jury packets” or presentations in cases – other than officer-involved incidents resulting in serious bodily injury or death. How cases proceed through the grand jury in Tarrant County depends entirely on whether the accused is a cop or a civilian. In other words, criminal cases involving officers and civilians are handled differently and, in the latest case, the DA has already her violated her own protocol.

Grand Jury Process in Tarrant County: Difference between Cops and Civilians

In early 2019, the Tarrant County District Attorney’s Office implemented a new policy regarding grand jury defense presentations. The new policy broke not only with decades of tradition in Tarrant County, but also stands in stark contrast to the grand jury policies of other elected district attorneys in Texas.

The new policy states that defense attorneys “will only be allowed to address the Grand Jury in the form of a sworn affidavit or affidavits, executed by a person or person with personal knowledge of the facts alleged in the affidavits. The affidavits will be provided to the Grand Jurors when the case is presented by the State. Defendants wishing to testify may still do so.”

There is, however, a glaring – and little known – exception, which is coming to light now in the wake of the fatal shooting of Atatiana Jefferson by a Fort Worth officer. In cases where the grand jury is considering whether to indict a police officer for a shooting, the defense attorney is provided great leeway in what they can present to the grand jury – and the limitation of “sworn affidavits” is removed.

According to the DA’s Protocol for Law Enforcement, attorneys for involved officers, upon request, will have an opportunity to meet and make a presentation to the DA, the Chief of the Criminal Division and the chief of the Law Enforcement Incident Team (LEIT.)  Furthermore – and distinguishable from attorneys representing civilians – attorneys for the involved officers “will have an opportunity to make a presentation to the grand jury.”

The reason for the disparity in the way cases involving cops and civilians are handled at the grand jury level are unclear.

No Other DA has an Affidavit-Only Policy

Earlier this year, the Tarrant County District Attorney’s Office did not respond to emails seeking comment or explanation regarding the affidavit-only policy change for civilian defendants.

We also filed open records requests to various district Attorney Offices around the state but could not find another DA’s Office with an “affidavit-only” grand jury policy.

Haley Holik, an attorney on staff with the Texas Public Policy Foundation and its Right on Crime Initiative, said grand jury policies that vary from county to county “underscore the need for statewide reform.”

“Every Texan should be afforded the same level of protection, regardless of jurisdiction,” Holik said.

Laypeople naturally assume that the grand jury has all of the pieces of the puzzle to make that determination, but that is not always the case – and certainly not in Tarrant County anymore.

In Texas, prosecutors are under no legal obligation to present exculpatory evidence to the grand jury– that is, evidence that justify or exonerate a defendant’s actions. A witness or suspect providing testimony to a grand jury is not allowed to have an attorney present inside the grand jury room. And if prosecutors don’t get an indictment, they are allowed to present the same evidence to another grand jury or grand juries without limitation in an effort to obtain an indictment.

To be clear, it is certainly within the discretion of the elected District Attorney to create policies that prohibits most defense materials from reaching the grand jury through the prosecutors. The consequences of that decision, however, are reflected on the Tarrant County District Attorney’s trial board.

It is also within a DA’s purview to implement protocols for the handling of officer-involved shootings. Still, implementing a second tier of cases where officers accused of offenses benefit from greater protections undermines the confidence the community has in its justice system and it raises grave concerns about whether every other defendant in the county is receiving due process under the law.

Prosecutors take an oath to seek justice. Policies that create one tier of grand jury access for officers accused of crimes and another for everyone else make it impossible for prosecutors to live up to their oaths.

Now, whether the DA will follow her own protocol and allow defense attorneys representing former Aaron York Dean case to make a presentation to the grand jury remains to be seen. After all, she has already side-stepped her own procedures in this high-profile case.

Contact us at 817-203-2220 or reach out online.

The post Tarrant DA breaks protocol in latest officer-involved shooting. What will happen next? appeared first on Varghese Summersett PLLC.

More than 20 people were killed and two dozen more injured after a shooting at a shopping center in El Paso, Texas. The shooter has been identified as Patrick Crusius, a 21-year-old from Allen, Texas. Crusius is believed to have posted a white nationalist manifesto on 8chan 20 minutes prior to the shooting. The manifesto blames immigrants and first-generation Americans for taking jobs. The question many have now is whether Patrick Crusius will get the needle for his acts. This article explores the possibility in the state and federal system.

Will Causing Multiple Deaths Result in Capital Murder Charges?

A person who intentionally or knowingly kills more than one individual during a single course of criminal conduct is guilty of capital murder. A person facing capital murder charges may face the death penalty. The State (meaning the local district attorney) will decide as to whether prosecutors will seek the death penalty. In this case, El Paso County District Attorney Jamie Esparza has already announced plans to see the death penalty.

When the State seeks the death penalty, and the individual is found guilty, a jury will decide whether or not to impose the death penalty. Only a jury can render a verdict of death.

Can Causing Multiple Deaths be a Hate Crime?

Chapter 411.046 of the Texas Government Code defines hate crimes for reporting purposes in Texas. A hate crime is one that is motivated by prejudice, hatred, or advocacy of violence. That finding does not impact sentencing. For limited offenses, the Code of Criminal Procedure provides for an enhancement of one level if an offense was committed “because of the defendant’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference or by status as a peace officer or judge.”

There’s no sentencing enhancement in the state system for capital murder based on the offense qualifying as a hate crime. Article 42.014, Code of Criminal Procedure does not allow for a sentencing enhancement other than for arson, graffiti, or criminal mischief.

Federally, this offense could be prosecuted as a hate crime. 18 USC 249 is the federal Hate Crime statute. 18 USC 249 (a)(1) covers willfully causing bodily injury or death “because of the actual or perceived race, color, religion, or national origin” of the victim(s). The federal murder statute, covered in 18 USC 1111, occurs when a person possesses malice aforethought and unlawfully kills victims with a firearm. A person convicted of first-degree murder can receive the death penalty. In capital cases, the decision to seek the death penalty rests with the Attorney General. 18 USC 3591 sets forth instances when a person can be sentenced to death in the federal system.

Federal prosecutors rarely seek the death penalty, but they did seek it – and received it –  for Dylann S. Roof, the white supremacist who shot and killed nine African-American churchgoers in 2015.

In the Crusius case, federal prosecutors have said that they are exploring hate-crimes and domestic terror charges that are death penalty eligible in the federal system.

Insanity as a Defense to Capital Murder

Many already  wonder if Crusius will be able to avoid a capital sentence by claiming he was insane.

Insanity is a very difficult defense to raise successfully in Texas. “The insanity defense and the requirements to raise the defense is codified in Texas Penal Code Section 8.01.(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

In the federal system, insanity can be raised the defendant as an affirmative defense that the defense would have to prove by a preponderance of evidence pursuant to 18 USC 17. The defendant would have to prove a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.

Contact us at 817-203-2220 or reach out online.

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