Victorick, Ex Parte David Lee v. State ( 2015 )

PD-0030-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/6/2015 5:50:35 PM
Accepted 2/11/2015 1:48:01 PM
ABEL ACOSTA
NO. PD-0030-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
Ex parte DAVID LEE VICTORICK,
Petitioner
AMENDED PETITION FOR
DISCRETIONARY REVIEW
(Oral Argument Not Requested)
On Discretionary Review from Docket Number 9-14-00112-CR
Ninth Court of Appeals, Beaumont
Trial Court Cause Number 13-11-12323-CR
435TH Judicial District
Montgomery County, Texas
Submitted by:
L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478-3500
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net
February 11, 2015
Attorney for David Lee Victorick
IDENTITY OF PARTIES
Petitioner: David Lee Victorick
Counsel for Petitioner at Trial Court and on Appeal:
L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478-3500
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net
Respondent: The State of Texas
Counsel for the State of Texas:
Honorable Brett Ligon, District Attorney
William Delmore, Ass’t District Attorney
207 W. Phillips, 2nd Floor
Conroe, Texas 77301
(936) 539-7800
Fax: (936) 760-6940
bill.delmore@mctx.org
Postconviction Litigation Division
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
(512) 936-1400
const_claims@texasattorneygeneral.gov
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
information@spa.texas.gov
Trial Court Judge:
Honorable Michael T. Seiler
i
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
QUESTIONS OR GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . 2
QUESTION NO. ONE: Petitioner is never charged by complaint but he
is placed on bond 77 days before he is indicted. The conditions of
bond are oppressive and onerous, depriving Petitioner of, inter
alia, First, Second, Fifth and Fourteenth Amendment rights. Does
this constitute punishment for Fifth Amendment Double Jeopardy
purposes?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
QUESTION NO. TWO: Can conditions of bond be so oppressive and
onerous as to constitute punishment for Fifth Amendment Double
Jeopardy purposes, especially when they are imposed before any
criminal charge is brought? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT AND AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUE NO. ONE RESTATED: A Defendant is never charged by
complaint or information but is placed on bond 77 days before he
ii
is indicted. The conditions of bond are oppressive and onerous,
depriving the Defendant of First, Second, Fifth and Fourteenth
Amendment rights. This constitutes punishment for Fifth
Amendment Double Jeopardy purposes. . . . . . . . . . . . . . . . . . . 6
ISSUE NO. TWO RESTATED: Conditions of bond can be so oppressive
and onerous as to constitute punishment for Fifth Amendment
Double Jeopardy purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ancillary Conditions of Bond Were An Order.. . . . . . . . . . . . . . 8
Constitution and Code of Criminal Procedure. . . . . . . . . . . . . . 9
Statutory Guidelines To Setting Bail. . . . . . . . . . . . . . . . . . . . . . . . . . 10
No Record To Support Conditions of Bond.. . . . . . . . . . . . . . . . . . . . . 12
Statutory Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Conditions of Bond.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Deprivation of Constitutionally-Guaranteed Rights. . . . . . . . . . . . . . 15
Due Process Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATION OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
iii
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Cummings v. Missouri, 71 U.S. 277 (1866). . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S.
872 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Estelle v. Williams, 425 U.S. 501 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Long Grove Country Club Estates, Inc. v. Village of Long Grove, 693 F. Supp.
640 (N.D. Ill. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Loving v. Virginia, 388 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Maness v. Meyers, 419 U.S. 449 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Mathews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . 20
Nanez v. Ritger, 304 F. Supp. 354 (E.D. Wis., 1969). . . . . . . . . . . . . . . . . . . 17
Paul v. Davis, 424 U.S. 693 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Prince v. Massachusetts, 321 U.S. 158 (1944). . . . . . . . . . . . . . . . . . . . . . . . 16
United States v. Jorn, 400 U.S. 470 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Halper, 490 U.S. 435 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 7
Whalen v. United States, 445 U.S. 684 (1980).. . . . . . . . . . . . . . . . . . . . . . . . 7
Will. v. United States, 541 F. Supp. 1187 (E.D. N.C. 1982). . . . . . . . . . . 17
STATE CASES
Aldine I. S. Dist. v. Ogg, 122 S.W.3d 257 (Tex. App. – Houston [1ST Dist.]
iv
2003, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Azeez v. State, 248 S.W.3d 182 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . 12
Calvert v. Fort Worth Nat. Bank, 356 S.W.2d 918 (Tex. 1962). . . . . . . . . . 12
Cloud v. State, 150 Tex. Crim. 458, 461, 202 S.W.2d 846 (1947). . . . . . . . . 9
Dunn v. County of Dallas, 794 S.W.2d 560 (Tex. App. – Dallas 1990)
............................................................... 8
Ex parte Elliott, 950 S.W.2d 714, 716 (Tex. App. – Fort Worth 1997, pet. ref'd)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Ex parte Harrell, 542 S.W.2d 169 (Tex. Crim. App. 1976)... . . . . . . . . . . . . 12
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . 3
Ex parte Mode, 77 Tex. Crim. 432, 180 S.W. 708 (1915) . . . . . . . . . . . . . . . 12
Ex parte Vance, 608 S.W.2d 681 (Tex. Crim. App. 1980).. . . . . . . . . . . . . 10
Ex parte Victorick, Docket No. 09-14-00112-CR, ___ S.W.3d ____, 2014 WL
6984140 (Tex. App. —Beaumont December 10, 2014) (Designated for
publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FKM P'ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d
619 (Tex.2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d
619 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Halbert v. Alford, 16 S.W. 814 (Tex. 1891)... . . . . . . . . . . . . . . . . . . . . . . . . . 8
Kniatt v. State, 206 S.W .3d 657 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . 5
Ludwig v. State, 812 S.W.2d 323 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . 11
v
Lyle v. State, 80 Tex. Crim. 606, 193 S.W. 680 (1917). . . . . . . . . . . . . . . . . 12
Nguyen v. State, 881 S.W.2d 141 (Tex. App. – Houston [1ST Dist.]1994)
............................................................... 9
Robinson v. State, 739 S.W.2d 795 (Tex. Crim. App. 1987).. . . . . . . . . . . 3
Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . 9
STATE STATUTES
Article § 1.07, Texas Code of Criminal Procedure (1966). . . . . . . . . . . . . . . 9
Article 17.15, Code of Criminal Procedure (2005). . . . . . . . . . . . . . . 10, 12, 13
Article 17.40(a), Texas Code of Criminal Procedure (Vernon 2007). . . 11-13
Article 56.01(3), Texas Code of Criminal Procedure (Vernon 2006). . . . . . 14
Article 56.32(a)(11)(A)(I), Texas Code of Criminal Procedure (Vernon 2006)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Texas Govt’ Code § 311.016(2) (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Texas Penal Code § 2.01 (Vernon 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Texas Penal Code, § 33.01(4) (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19
Texas Penal Code, § 33.021(b) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Texas Penal Code, § 33.021(c) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
U.S. CONSTITUTION
Amend. I, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 17, 20
vi
Amend. II, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 20
Amend. V, U.S. Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 17, 18, 20
Amend. VIII, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Amend. XIV, U.S. Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 17, 20
TEXAS CONSTITUTION
Article 1, § 11, Texas Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Article 1, § 23, Texas Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
OTHER AUTHORITIES
Black’s Law Dictionary (9th ed. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Random House Dictionary, © Random House, Inc. 2014. . . . . . . . 13, 14, 16
Wittenberg, Understanding Voice Over IP Technology, 2-6 First Ed. 2009.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Hamilton, History of the Republic of the United States. . . . . . . . . . . . . . . . . 7
vii
Statement Regarding Oral Argument
Under Texas Rules of Appellate Procedure 68.4(c), Petitioner does not
request oral argument before this Court. See Tex. Rule App. Proc. 68.4(c).
Although this is a meritorious appeal of a criminal case, Petitioner believes
that the facts and legal arguments are adequately presented in this Petition
and in the record on appeal. Petitioner also believes that the decisional
process of the Court will not be significantly aided by oral argument. As a
result, Petitioner does not request oral argument and asks that the Questions
presented in this Petition be considered by submission only. Should the Court
desire oral argument, Petitioner will be happy to comply.
viii
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Petitioner, David Lee Victorick, respectfully shows:
STATEMENT OF THE CASE
This petition requests this Court to review the judgment and opinion of
the Ninth Court of Appeals in Ex parte Victorick, Docket No. 09-14-00112-
CR, ___ S.W.3d ____, 2014 WL 6984140 (Tex. App. —Beaumont December
10, 2014) (Designated for publication)(See Appendix 1).
On August 29, 2013, Petitioner was placed on bond, even though no
complaint was filed and there was no indictment.
On November 14, 2013, the State charged Petitioner by indictment with
a second-degree felony under Section 33.021(c), Texas Penal Code. The terms
and conditions of the original bond were continued by a new written order.
Before trial, Petitioner filed a writ of habeas corpus alleging that the
terms and conditions of bond were so oppressive as to constitute punishment
and thus trigger his Fifth Amendment Double Jeopardy protections.
The writ was denied.
PROCEDURAL HISTORY
The trial court set Ancillary Conditions of Bond on August 29, 2013.
Petitioner was indicted on November 14, 2013. (CR – 1ST Appeal, p. 13,
1
Appendix 2)
On November 19, 2013, the Ancillary Conditions of Bond were again
imposed on Petitioner. (CR - 1ST Appeal, p. 48; Appendix 3). On December 6,
2013, the trial court ordered the District Clerk to place certified copies of all
documents from Cause No. 13-08-09228-CR into Cause No. 13-11-12323-CR.
(CR – 1ST Appeal, p. 86).
On March 7, 2014, Petitioner filed his Application for Writ of Habeas
Corpus on Double Jeopardy grounds.
On March 7, 2014, the trial court denied the Writ. On March 7, 2014,
Petitioner filed his Notice of Appeal.
On December 10, 2014, the Ninth Court of Appeals denied Petitioner
relief and affirmed the trial court. On January 5, 2015, Petitioner filed his
Motion for Extension of Time. On January 14, 2015, this Honorable Court
granted his Extension of Time until February 9, 2015. This Petition is timely
filed.
QUESTIONS OR GROUNDS FOR REVIEW
Petitioner presents the following questions or grounds for discretionary
review.
QUESTION NO. ONE: Petitioner is never charged by complaint but he is
placed on bond 77 days before he is indicted. The conditions of bond are
2
oppressive and onerous, depriving Petitioner of, inter alia, First,
Second, Fifth and Fourteenth Amendment rights. Does this constitute
punishment for Fifth Amendment Double Jeopardy purposes?
QUESTION NO. TWO: Can conditions of bond be so oppressive and
onerous as to constitute punishment for Fifth Amendment Double
Jeopardy purposes, especially when they are imposed before any
criminal charge is brought?
The relevant pages of the record are: CR – 1ST Appeal, pp. 5, 13, 47, 48,
85 and 86.
STATEMENT OF FACTS
Petitioner disagrees with the characterization of the facts set forth by the
Court of Appeals and submits that the following represents the facts as they
actually occurred.
On August 29, 2013, Petitioner was “indicted” for violating § 33.021(b),
Texas Penal Code.1 On that same day, the trial court set Bond in the amount
2
of $250,000 and it set Ancillary Conditions of Bond.3 (Appendix 2) The
Ancillary Conditions of a Bond were an order, requiring Petitioner to comply
with the ancillary conditions.
1
Indictment, 1ST CR p. 5 This Court declared this statute unconstitutional. See, Ex
parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). As a result, the indictment was void from the
inception. See, Robinson v. State, 739 S.W.2d 795, 797 (Tex. Crim. App. 1987). …
2
Order Setting Bond, 1ST CR p. 7 …
3
Ancillary Conditions of Bond, 1ST CR p. 12. …
3
On September 3, 2013, Petitioner posted a surety bond in the amount
of $250,000 in Cause No. 13-08-09228-CR.4
On October 30, 2013, this Honorable Court declared § 33.021(b), Penal
Code unconstitutional.5
On November 14, 2013, Petitioner was indicted for violating § 33.021(c),
Texas Penal Code.6 Petitioner was not taken into custody on this charge.
Petitioner never posted a new bond.
On November 19, 2013, the trial court imposed identical conditions of
bond under the new indictment.7 (Appendix 3)
On December 6, 2013, the State moved to “dismiss” the indictment in
Cause No. 13-08-09228-CR, as the indictment “charged” a violation of §
33.021(b), Texas Penal Code.8
On December 6, 2013, the trial court ordered the District Clerk to place
certified copies of all documents that are contained in the Court’s file in Cause
4
Bond, 1ST CR p. 15 …
5
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). …
6
Indictment in Cause No. 13-11-12323-CR, 1ST CR p. 47 …
7
Ancillary Conditions of Bond in Cause No. 13-11-12323-CR, 1ST CR p. 48 …
8
Motion to Dismiss and Order in Cause No. 13-08-09228-CR, 1ST CR p. 85. As the
statute was unconstitutional, the indictment was void. See Fn. 1, above. …
4
No. 13-08-09229-CR into the court’s file in Cause No. 13-11-12323-CR.9
On March 7, 2014, Petitioner filed his Special Plea of Double Jeopardy10
and his Writ of Habeas Corpus.11
On March 7, 2014, the trial court heard and denied the Writ of Habeas
Corpus.12
On March 7, 2014, Petitioner filed his Notice of Appeal.13 On December
10, 2014, the Ninth Court of Appeals affirmed the trial court’s ruling.
(Appendix 1)
STANDARD OF REVIEW
This Court reviews a trial court’s ruling on a pretrial writ of habeas
corpus for an abuse of discretion.14 In conducting this review, the Court views
the facts in the light most favorable to the trial court’s ruling.15
ARGUMENT AND AUTHORITY
9
Order to District Clerk, 1ST CR p. 86. …
10
Special Plea of Double Jeopardy, 2ND CR p. 30. …
11
Writ of Habeas Corpus, 2ND CR p. 19. …
12
Order on Application for Writ of Habeas Corpus, 2ND CR p. 29. …
13
Notice of Appeal, 2ND CR p. 42. …
14
Kniatt v. State, 206 S.W .3d 657, 664 (Tex. Crim. App. 2006). …
15
Kniatt, 206 S.W.3d at 664. …
5
ISSUE NO. ONE RESTATED: A Defendant is never charged by complaint
or information but is placed on bond 77 days before he is indicted. The
conditions of bond are oppressive and onerous, depriving the Defendant
of First, Second, Fifth and Fourteenth Amendment rights. This
constitutes punishment for Fifth Amendment Double Jeopardy
purposes.
ISSUE NO. TWO RESTATED: Conditions of bond can be so oppressive
and onerous as to constitute punishment for Fifth Amendment Double
Jeopardy purposes.
These two Issues are addressed together because they are interrelated
and rely upon the same argument and authorities. This is a case of first
impression. And this case presents an important legal question that has never
been answered but should be: when a certified copy of an order from a prior
case between the same parties is ordered placed into the court’s file in the
current case, does that order become an order in the new case?
FIFTH AMENDMENT DOUBLE JEOPARDY
The Double Jeopardy Clause of the Fifth Amendment prohibits trying
a person and punishing a person twice for the same offense. 16 The Fifth
Amendment’s guarantee against double jeopardy protects not only against a
second trial for the same offense but also against multiple punishments for the
16
Amend. V, U.S. Constitution – “nor shall any person be subject for the same offence
to be twice put in jeopardy of life or limb...” …
6
same offense.17 This case falls within the protection against multiple
punishments prohibition.
And, in a different context, the Supreme Court has held that Double
Jeopardy may attach if the circumstances are attributable to judicial
overreaching.18 Petitioner argues that the circumstances under which the
Ancillary Conditions of Bond were first imposed upon him, coupled with their
draconian effect, constitute such judicial overreaching as to trigger his Double
Jeopardy protections.
PUNISHMENT
The Constitution does not define punishment. One must, therefore, look
to caselaw and other authorities to see how punishment has been defined.
Mr. John C. Hamilton, in his ‘History of the Republic of the United
States,’ said that deprivation or suspension of any civil rights for past conduct
is punishment for such conduct.19
And, early on, the Supreme Court opined that:
“The deprivation of any rights, civil or political, previously
enjoyed, may be punishment, the circumstances attending and the
17
Whalen v. United States, 445 U.S. 684 (1980); United States v. Halper, 490 U.S.
435, 440 (1989). …
18
United States v. Jorn, 400 U.S. 470, 483-484 (1971)(plurality opinion). …
19
Vol. 3, p. 24. …
7
causes of the deprivation determining this fact. .... Any
deprivation or suspension of any of these rights for past conduct
is punishment, and can be in no otherwise defined.”20
Because he was deprived of constitutional rights before he was charged,
Petitioner was punished by the ancillary conditions of bond.
ANCILLARY CONDITIONS OF BOND WERE AN ORDER:
Because the Ancillary Conditions of Bond stated that the “Defendant
Shall”, they were an order directed to Petitioner.21 He had to obey that order
lest his bond be forfeited and he be incarcerated pending trial.22
A court acts by and through its orders and not otherwise.23 An order is
a command, direction, or decision on a collateral or intermediate point in a
case, indeterminative of the main issue.24 The Ancillary Conditions of Bond
were, therefore, orders.
Petitioner acknowledges that the trial court could have taken judicial
notice of the Ancillary Conditions of Bond that it entered in Cause No. 13-08-
20
Cummings v. Missouri, 71 U.S. 277, 321 – 322 (1866) [Emphasis supplied]. …
21
Id., “Defendant shall:...” Shall is mandatory. § 311.016(2), Texas Govt’ Code. …
22
Maness v. Meyers, 419 U.S. 449, 458 (1975) (All orders must be complied with
promptly.) …
23
Dunn v. County of Dallas, 794 S.W.2d 560, 562 (Tex. App. – Dallas 1990). …
24
Halbert v. Alford, 16 S.W. 814 (Tex. 1891). …
8
09228-CR.25 But it did not do so. Instead it ordered the District Clerk to place
certified copies of all documents from that case into the court’s file in Cause
No. 13-11-12323-CR.
In doing so, the trial court made the Ancillary Conditions of Bond that
it entered in Cause No. 13-08-09228-CR, an order in Cause No. 13-11-12323-
CR.26 And because of this, Petitioner had to and was required to comply with
the conditions of bond 77 days before he was indicted in Cause No. 13-11-
12323-CR.
CONSTITUTION AND CODE OF CRIMINAL PROCEDURE:
The right to a reasonable bond is based on the presumption of innocence
and is protected by the United States and Texas Constitutions and the Texas
Code of Criminal Procedure.27 “The presumption of innocence that surrounds
every accused person means an assumption which prevails as the judgment
of the law until the contrary is proven.”28 And “[T]he presumption of
innocence, although not articulated in the Constitution, is a basic component
25
Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987). …
26
Rule 34.5(a), T.R.A.P. …
27
U.S. Const. Amend. VIII; Tex. Const. art. 1, § 11; Texas Code Crim. P. Art. § 1.07.
See also, Nguyen v. State, 881 S.W.2d 141, 142 (Tex. App. – Houston [1ST Dist.]1994). …
28
Cloud v. State, 150 Tex. Crim. 458, 461, 202 S.W.2d 846, 848 (1947) (op. on reh'g).
…
9
of a fair trial under our system of criminal justice.”29 Indeed, the Code of
Criminal Procedure mandates that “[A]ll persons are presumed innocent and
no person may be convicted of an offense unless each element is proved
beyond a reasonable doubt.”30
It is against that context that this Court should recall that the primary
purpose of an appearance bond is to secure the defendant’s presence in
court.31
STATUTORY GUIDELINES TO SETTING BAIL:
Article 17.15, Code of Criminal Procedure, sets out the statutory factors
that a court may consider in setting bail. The factors set out in the Code of
Criminal Procedure allows the trial court to consider the future safety of an
alleged victim of the alleged offense and the community when it sets the
amount of bail.32
Interestingly, bail was set at $250,000 even though Petitioner has deep
roots in the community, owns a home with his wife, has no prior criminal
29
Estelle v. Williams, 425 U.S. 501, 503 (1976). …
30
Texas Penal Code § 2.01 (Vernon 2003). …
31
Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. [Panel Op.] 1980). …
32
To the extent that this section of the Code of Criminal Procedure refers to a victim,
Petitioner argues that it is unconstitutional as depriving him of the presumption of innocence, as
there can be no victim until it is proven that a crime has, in fact, been committed. …
10
record, and was not charged with a crime of violence. Compare that amount
of bail to what this Court reduced bail to in a case where the defendant was
charged by two indictments with murder and one indictment for capital
murder.33 There, this Court reduced bail to $50,000. This Court did so even
though it noted:
“It appears that both the habeas court and the court of appeals
were influenced by testimony that appellant had threatened his
victims, a brother-in-law and nephew by marriage, before he
allegedly killed them. He had also threatened the life of his
mother-in-law, who testified she felt she was a victim of
appellant’s crimes, and would be endangered if appellant were to
be released on bond. Appellant’s wife echoed this concern.”34
Article 17.40(a), Texas Code of Criminal Procedure (Vernon 2012),
provides that:
To secure a defendant’s attendance at trial, a magistrate may
impose any reasonable condition of bond related to the safety of
a victim of the alleged offense or to the safety of the community.35
Conditions of bond are to be tailored to insure an individual defendant will
appear for court hearings.36
33
See, Ludwig v. State, 812 S.W.2d 323 (Tex. Crim. App. 1991). …
34
Ludwig, 812 S.W.2d at 324. …
35
To the extent that this section of the Code of Criminal Procedure refers to a victim,
Petitioner argues that it is unconstitutional as depriving him of the presumption of innocence, as
there can be no victim until it is proven that a crime has, in fact, been committed. …
36
Ex parte Elliott, 950 S.W.2d 714, 716 (Tex. App. – Fort Worth 1997, pet. ref'd). …
11
Article 17.15 and Article 17.40(a), Texas Code of Criminal Procedure, are
statutes that involve the same general subject matter and also possess the
same general purpose (securing the defendant’s appearance at trial, the safety
of the “victim” and the community). They are, therefore, “in pari materia.”37
In order to arrive at a proper construction of a statute, and determine
the exact legislative intent, all acts and parts of acts dealing with the same
subject and having the same purpose will, therefore, be taken38 and read
together,39 each enactment in reference to the other,40 as though they were
parts of one and the same law.41 Stated another way, statutes bearing on the
same subject matter should be construed together, and both given effect, if
possible.42
NO RECORD TO SUPPORT CONDITIONS OF BOND:
Petitioner points out that there is no record for this Court to review to
37
Azeez v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008). …
38
Calvert v. Fort Worth Nat. Bank, 356 S.W.2d 918, 921 (Tex. 1962). …
39
Ex parte Harrell, 542 S.W.2d 169, 171 (Tex. Crim. App. 1976). …
40
Ex parte Harrell, 542 S.W.2d at 171. …
41
Ex parte Mode, 77 Tex. Crim. 432, 180 S.W. 708 (1915) (overruled in part on other
grounds by, Lyle v. State, 80 Tex. Crim. 606, 193 S.W. 680 (1917)). …
42
Aldine I. S. Dist. v. Ogg, 122 S.W.3d 257, 270 (Tex. App. – Houston [1ST Dist.]
2003, no pet.). …
12
determine how the trial court allegedly considered the statutory factors in
setting the Ancillary Conditions of Bond. Further, there is no hearing of any
sort shown to have occurred before the Conditions were set, under either
docket number.43
STATUTORY CONSTRUCTION:
Article 17.15(2), Texas Code of Criminal Procedure forbids a court from
using the power to require bail so as to make it an instrument of oppression.
Since Article 17.15 is in pari materia with Article 17.40, Article 17.40(a) must
be read as forbidding a court from setting conditions of bond so as to make
them an instrument of oppression.
Oppression is not defined in the Code of Criminal Procedure. Since the
Legislature did not define the word, oppression, it has its ordinary meaning. 44
Oppression is defined as the exercise of authority or power in a
burdensome, cruel, or unjust manner, or as an act or instance of oppressing.45
Oppress is defined as to burden with cruel or unjust impositions or restraints;
43
Entire CR. …
44
See FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d
619, 633 (Tex.2008) (“We use definitions prescribed by the Legislature and any technical or
particular meaning the words have acquired, but otherwise, we construe the statute’s words
according to their plain and common meaning unless a contrary intention is apparent from the
context, or unless such a construction leads to absurd results.”) …
45
Random House Dictionary, © Random House, Inc. 2014 …
13
subject to a burdensome or harsh exercise of authority or power.46
The Ancillary Conditions of Bond were beyond oppressive, they deprived
Petitioner of Constitutionally-guaranteed rights.
THE CONDITIONS OF BOND:
The Ancillary Conditions of Bond were entered by the trial court without
holding a hearing or receiving any evidence on the record.47 Based upon some
unknown information, the trial court determined that a crime had been
committed, that there was a victim and that the safety of the community had
to be protected. Specific reference is made to ¶¶ 15 and 17, thereof and the
word, “victim,” within each paragraph. This is important because the word –
“victim” – is defined in the Code of Criminal Procedure as:
“... a person who is the victim of the offense of sexual assault,
kidnapping, aggravated robbery, trafficking of persons, or injury
to a child, elderly individual, or disabled individual or who has
suffered personal injury or death as a result of the
criminal conduct of another.”48
Or as:
“(A) an individual who:
(I) suffers personal injury or death as a result of criminally
46
Random House Dictionary, © Random House, Inc. 2014 …
47
See Ancillary Conditions of Bond, 1ST CR p. 12 and p. 48 and entire CR as to lack
of any hearing on Conditions of Bond. …
48
Tex. Crim. Pro. Art. 56.01(3) (Vernon 2006). [Emphasis supplied] …
14
injurious conduct ...”49
By using the term, “victim”, the trial court determined that Petitioner had
committed a crime. Petitioner argues that this was actually an adjudication
of his guilt, which also forbade his subsequent trial.
DEPRIVATION OF CONSTITUTIONALLY-GUARANTEED RIGHTS:
The Ancillary Conditions of Bond50 prohibited Petitioner from:
a) Possessing any firearms;
b) Having any association, contact and communication, directly or
indirectly with the alleged victim’s family or household;51
c) Not go to or within 100 yards of the residence of the alleged victim
or the alleged victim’s family or household;
d) Having any contact with any child under the age of 17 years of age;
and
e) Having no contact with any computer52 or internet connection.
49
Tex. Crim. Pro. Art. 56.32(a)(11)(A)(I) (Vernon 2006). [Emphasis supplied] …
50
See Ancillary Conditions of Bond, 1ST CR p. 12 and p. 48. …
51
The Ancillary Conditions of Bond refers to the victim. Mr. Victorick denies that a
crime was committed and therefore substitutes the term, alleged victim. …
52
§ 33.01(4), Texas Penal Code defines computer as “an electronic, magnetic, optical,
electrochemical, or other high-speed data processing device that performs logical, arithmetic, or
memory functions by the manipulations of electronic or magnetic impulses and includes all input,
output, processing, storage, or communication facilities that are connected or related to the device.”
…
15
Contact was not defined in the Ancillary Conditions of Bond, so the word has
its ordinary meaning – the act or state of touching; a touching or meeting, as
of two things or people; immediate proximity or association.53
The Ancillary Conditions of Bond54 also required Petitioner to:
a) Work faithfully at suitable employment as far as possible; and
b) Support his dependents.
In the context of both cases, it is undisputed that the alleged victim is his step-
daughter.
Prior to this case, Petitioner had never been convicted of any crime. As
such, he has a Second Amendment and Article 1, § 23, Texas Constitution,
right to possess firearms. But the Ancillary Conditions of Bond removed that
constitutional right from him. This was even though the crime alleged was not
a crime of violence or one in which a firearm was used. As such, Petitioner has
been punished by depriving him of his Second Amendment right.
Petitioner has a First Amendment right to associate with his wife.55
Petitioner was deprived of his First Amendment right to associate with his
53
Random House Dictionary, © Random House, Inc. 2014. …
54
See Ancillary Conditions of Bond, 1ST CR p. 12 and p. 48. …
55
Loving v. Virginia, 388 U.S. 1, 12 (1967)(Among the decisions that an individual
may make without unjustified government interference are personal decisions “relating to
marriage”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944)(family relationships). …
16
wife through the Ancillary Conditions of Bond. As such, Petitioner was
punished.
A citizen has a First Amendment right to religion, which includes the
right to attend church.56 A citizen also has a First Amendment protected right
to move about freely and peaceably in public places.57
The Ancillary Conditions of Bond prohibited Petitioner from having any
contact with any child under 17 years of age. Because persons under the age
of 17 years can reasonably be expected to be encountered there, this Condition
of Bond prohibited Petitioner from attending church, from going to the super
market, to the movies or even to the store, in fact from going anywhere in
public. These are First Amendment rights that Petitioner was denied and
deprived of. As such, Petitioner was punished through the denial of these
First Amendment rights.
Petitioner has a Fifth and Fourteenth Amendment liberty interest in
being able to work.58 The loss of one’s job amounts to a deprivation of liberty
56
See, e.g., Employment Div., Dept. of Human Resources of Oregon v. Smith, 494
U.S. 872 (1990). …
57
Nanez v. Ritger, 304 F. Supp. 354 (E.D. Wis., 1969). …
58
Long Grove Country Club Estates, Inc. v. Village of Long Grove, 693 F. Supp. 640,
662 (N.D. Ill. 1988) (“Liberty includes the right “to work for a living in the common occupations
of the community.” ”); Williams v. United States, 541 F. Supp. 1187 (E.D. N.C. 1982) (citizens do
possess the right to work for a living in the common occupations of the community. U.S. Const.
17
when that person does not remain free to locate alternate employment.59 The
Ancillary Conditions of Bond prevented Petitioner from having any contact
with a computer or internet connection. Other than menial physical jobs,
most jobs require that applicants, such as Petitioner, submit their application
online. Because of the prohibition against contact with a computer, Petitioner
could not even apply for a job without violating the Ancillary Conditions of
Bond.
Most jobs today require that employees access either a computer, or a
Point Of Sale (POS) terminal (a computer), which would violate the Ancillary
Conditions of Bond. Even swiping a credit card accesses the internet and
violates the Ancillary Conditions of Bond. These Conditions of Bond
prohibited Petitioner from seeking, much less continuing any employment.
Petitioner was, therefore, been denied a constitutionally-protected liberty
interest and was punished.
This is over and above the fact that there is no job where one can be
assured that he will not have any contact with a person under the age of 17
years, however inadvertent or fleeting. But any such contact would be a
Amend. 5). …
59
See, e.g., Paul v. Davis, 424 U.S. 693 (1976) reh. denied 425 U.S. 985 (1976). …
18
violation of the terms and conditions of Bond and subject Petitioner to
forfeiture of his Bond and incarceration pending trial. The only way to avoid
this was for Petitioner to remain in the home where he was staying. Again,
Petitioner was punished.
As to having no contact with any computer,60 this condition prohibited
Petitioner from being able to use any cell phone as all have the ability to store
numbers in their memory and thus qualify as computers.61 It also effectively
denied Petitioner the right to seek employment because virtually all phones
have a built-in memory for last number called, etc. and thus qualify as a
computer.
And as to having no access to the internet, in light of VoIP, 62 Petitioner
could not even chance making a telephone call from a land line, lest he
inadvertently violate the Conditions of Bond by having his call go over the
Internet via VoIP.
60
§ 33.01(4), Texas Penal Code defines computer as “an electronic, magnetic, optical,
electrochemical, or other high-speed data processing device that performs logical, arithmetic, or
memory functions by the manipulations of electronic or magnetic impulses and includes all input,
output, processing, storage, or communication facilities that are connected or related to the device.”
…
61
This is before one anaylyzes their ability to perform logical and mathematical
functions. …
62
VoIP – Voice over Internet Protocol. See Wittenberg, Understanding Voice Over IP
Technology, 2-6 First Ed. 2009. Common examples of this service are Comcast®, MagicJack®,
Vonage® and RingCentral®. …
19
In short, these terms and conditions are so onerous and oppressive that
Petitioner was punished for the acts alleged in the indictment – long before
any trial was had and long before he was charged in any manner.
DUE PROCESS ANALYSIS:
“Procedural due process imposes constraints on governmental decisions
which deprive individuals of “liberty” or “property” interests within the
meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”63
The “right to be heard before being condemned to suffer grievous loss of any
kind, even though it may not involve the stigma and hardships of a criminal
conviction, is a principle basic to our society.”64
Here, Petitoner was not afforded the right to be heard on any of the
Ancillary Conditions of Bond before they were twice imposed upon him by
judicial fiat.65 This, even though those Conditions deprived Petitioner of First,
Second, Fifth and Fourteenth Amendment rights.
CONCLUSION AND PRAYER
Seventy-seven days before he was charged in any manner, Petitioner
63
Mathews v. Eldridge, 424 U.S. 319, 332 (1976) …
64
Mathews v. Eldridge, 424 U.S. at 333 [emphasis supplied]. …
65
Fiat – An order or decree, esp. an arbitrary one . Black's Law
Dictionary (9th ed. 2009) …
20
was deprived of First, Second, Fifth and Fourteenth Amendment rights
without a hearing and without the State showing that any of the conditions
imposed were necessary for the safety of the alleged victim or for the safety of
the community. Having been imposed by judicial fiat and having effectively
relegated Petitioner to living incommunicado and isolated from the world,
these Conditions of Bond should be held to constitute punishment for the
purpose of Double Jeopardy. Further, the judicial overreaching that is shown
to have occurred should also be held to trigger Petitioner’s Double Jeopardy
rights. Upon that finding, this Court should vacate any subsequent
punishment of Petitioner. Petitioner prays for general relief.
Respectfully submitted,
By: /s/ L.T. Bradt
L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478-3500
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net
Attorney for Petitioner,
David Lee Victorick
CERTIFICATE OF SERVICE
I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P.,
certify that a true and correct copy of the foregoing Petition was delivered to:
Honorable Brett Ligon, District Attorney
21
William Delmore, Ass’t District Attorney
207 W. Phillips, 2nd Floor
Conroe, Texas 77301
bill.delmore@mctx.org
Postconviction Litigation Division
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
const_claims@texasattorneygeneral.gov
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
information@spa.texas.gov
on February 6, 2015.
/s/ L.T. Bradt
L.T. Bradt
CERTIFICATION OF COMPLIANCE
This is to certify that, using the word count feature of WordPerfect X7,
the total number of words in the Petition is 4121, except in the following
sections: caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of questions presented, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix. This
document also complies with the typeface requirements because it has been
prepared in a proportionally-spaced typeface in 14-point Georgia and the
footnotes are in a proportionally-spaced typeface in 12-point Times New
Roman.
/s/ L.T. Bradt
L.T. Bradt
22
APPENDIX
23
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00112-CR
NO. 09-14-00190-CR
____________________
EX PARTE DAVID LEE VICTORICK
and
DAVID LEE VICTORICK, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-11-12323 CR
________________________________________________________ _____________
OPINION
This matter involves two appeals filed by David Lee Victorick relating to his
indictment and subsequent conviction for online solicitation of a minor. 1 See Tex.
1
We have considered three related matters filed by Victorick. Initially, we
dismissed a petition for a writ of mandamus wherein Victorick sought to compel
the presiding administrative judge to grant Victorick’s motion to recuse the trial
1
Penal Code Ann. § 33.021(c) (West 2011). On March 7, 2014, the trial court
denied Victorick’s pre-trial application for writ of habeas corpus asserting a claim
of double jeopardy. Victorick filed a notice of appeal and requested that his trial be
stayed pending the resolution of Appeal No. 09-14-00112-CR, but this Court
denied the motion to stay. Victorick was tried, convicted, and sentenced to five
years of imprisonment. Victorick filed a notice of appeal of the final judgment,
docketed in Appeal No. 09-14-00190-CR. We affirm the order denying the
application for a writ of habeas corpus and the judgment of conviction.
ISSUES
Victorick presents two issues in Appeal No. 09-14-00112-CR (the pre-trial
request for habeas relief). First, he contends a bond order that issued after his arrest
judge. See In re Victorick, No. 09-13-00483-CR, 2013 WL 5969469, at *1 (Tex.
App.—Beaumont Nov. 6, 2013, orig. proceeding) (mem. op., not designated for
publication). Next, we denied a petition for a writ of mandamus and prohibition
filed by Victorick to compel the trial court to stay the trial pending the resolution
of his appeal of the trial court’s denial of a pre-trial habeas application challenging
the facial constitutionality of the statute creating the offense for which he was
indicted. See In re Victorick, No. 09-13-00550-CR, 2013 WL 6885130, at *1 (Tex.
App.—Beaumont Dec. 30, 2013, orig. proceeding, [leave denied]) (mem. op., not
designated for publication). Finally, we affirmed the trial court’s denial of
Victorick’s facial challenge to the constitutionality of Texas Penal Code section
33.021(c). See Ex parte Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at *1
(Tex. App.—Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for
publication). In the habeas appeal now before us, we granted Victorick’s motion to
take judicial notice of the clerk’s record filed in Appeal No. 09-13-00551-CR. See
Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987).
2
on a previous indictment, which did not go to trial, constitutes punishment under
the Fifth Amendment’s Double Jeopardy Clause because the bond contained
oppressive and onerous conditions that infringed upon his constitutional rights.
Second, Victorick contends the oppressive and onerous conditions of his pre-trial
bond on the indictment under which he was tried constitute punishment for double
jeopardy purposes. In a motion to dismiss and with a suggestion of mootness, the
State argues that Victorick’s conviction mooted the appeal of the denial of pre-trial
habeas relief.
Victorick presents three issues in Appeal No. 09-14-00190-CR (appeal of his
conviction). First, he challenges the legal sufficiency of the evidence to support his
conviction. Second, he contends he was deprived of an impartial magistrate. Third,
Victorick contends the procedural rules that apply to recusal proceedings deprived
him of due process because the rules do not provide for an interlocutory appeal.
INDICTMENT AND CONVICTION
The State initially indicted Victorick for online solicitation of a minor under
subsection (b)(1) of section 33.021 of the Penal Code. See Tex. Penal Code Ann. §
33.021. After subsection (b)(1) was found to be unconstitutional by the Texas
Court of Criminal Appeals in Ex parte Lo, Victorick was re-indicted under
subsection (c) of section 33.021 for knowingly soliciting a fifteen year old girl to
meet him with the intent that she engage in sexual contact, sexual intercourse, or
3
deviate sexual intercourse with him. See 424 S.W.3d 10, 27 (Tex. Crim. App.
2013). Victorick entered a not guilty plea and a jury found the appellant guilty as
charged, and assessed his punishment at imprisonment for five years.
MOOTNESS
Before we address Victorick’s appellate issues we consider the State’s
argument that Victorick’s appeal of the denial of the pre-trial request for habeas
relief is moot. As a general rule, a habeas appeal relating to pre-trial bail is mooted
by the subsequent conviction of the defendant because upon his conviction the
habeas applicant is no longer being subjected to pre-trial confinement. See e.g.,
Martinez v. State, 826 S.W.2d 620, 620 (Tex. Crim. App. 1992). Unlike a habeas
claim concerning pre-trial bail in which the applicant seeks relief from an
unconstitutional pre-trial confinement, if he is correct regarding his double
jeopardy argument, Victorick may be entitled to relief from the sentence imposed
in the judgment of conviction that has also been appealed to this Court. Therefore,
Victorick’s pre-trial request for habeas relief is not necessarily mooted by his
conviction.
DOUBLE JEOPARDY CLAIM
The indictment accusing Victorick of online solicitation of a minor under
section 33.021(c) of the Texas Penal Code alleged, in part, that Victorick, on or
about June 2, 2013, did “knowingly solicit by text message, K.E., a minor, to meet
4
the defendant, with the intent that K.E. would engage in sexual contact and sexual
intercourse and deviate sexual intercourse with the defendant[.]” After indictment,
Victorick filed an application for writ of habeas corpus in which he alleged that he
was being illegally confined because “[t]he Court has set conditions of bond that
are not only oppressive, they have denied him constitutionally-guaranteed rights.”
Victorick alleged that “Double Jeopardy forbids his trial on the present
indictment.” Victorick’s petition for habeas relief contends that subjecting him to a
trial and potential conviction and sentence for a second degree felony would
violate the Double Jeopardy Clause’s prohibitions against multiple punishments
because he had already been subjected to punishment within the scope of the
Double Jeopardy Clause by conditions of his bond that prohibited him from: (1)
possessing any firearms; (2) contacting the alleged victim’s family; (3) going
within 100 yards of the residence of the alleged victim; (4) contacting any child
under seventeen years of age; or (5) having any contact with any computer or
internet connection. Victorick argues that the conditions of his bond effectively
denied him his right to bear arms, to associate with his wife, to attend church, to
move about freely and peaceably in public places, and to work. No evidence was
offered in the pre-trial habeas hearing. The trial court denied the application.
The Fifth Amendment states that “[n]o person shall . . . be subject for the
same offense to be twice put in jeopardy of life or limb. . . .” U.S. CONST.
5
amend. V. Victorick argues that placing him on bond under conditions that he
contends are oppressive and onerous constitutes punishment for Fifth Amendment
double jeopardy purposes. Citing United States v. Jorn, Victorick contends that
judicial overreaching triggers double jeopardy protections. See 400 U.S. 470, 483-
84 (1971) (plurality op.). Jorn held the Double Jeopardy Clause barred a re-trial
after the trial court sua sponte discharged the jury without manifest necessity for
calling a mistrial and without considering granting a continuance. Id. at 487. Jorn
was a successive prosecution case in which jeopardy attached with the seating of
the jury in the first trial and terminated when the trial court discharged the jury;
jeopardy would attach a second time with the seating of a new jury, thereby
implicating the Fifth Amendment’s protection against successive prosecution. See
id. at 484.
Victorick argues the trial court erred in failing to apply the Jorn successive
prosecution concept, notwithstanding the fact that jeopardy attached only once in
his case. Victorick contends without citing any authority that by referring to the
complaining witness as the “victim” in the order setting conditions of bond, the
trial court determined that he had committed a crime and the entry of the order
functioned as an adjudication of guilt. The law of this state is well settled that with
respect to a jury trial, jeopardy attaches when the jury is empaneled and sworn, and
for a bench trial jeopardy attaches when the defendant pleads to the charging
6
instrument. See Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996) (The
constitutional prohibition against double jeopardy does not apply until the
defendant enters a plea before the trier of facts.). Jeopardy does not attach in a
preliminary hearing regardless of what facts may be determined during the
proceeding. See id.
Nevertheless, when the defendant has been subjected to a single trial, “the
Double Jeopardy Clause ‘prevent[s] the sentencing court from prescribing greater
punishment than the legislature intended.’” Ervin v. State, 991 S.W.2d 804, 807
(Tex. Crim. App. 1999) (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)).
Factors considered in determining legislative intent include whether two provisions
imposing separate punishments are contained within the same statutory section,
whether they are phrased in the alternative, whether they are named similarly,
whether they have common punishment ranges, whether they have a common
focus or gravamen, and whether that common focus tends to indicate a single
instance of conduct, whether the elements that differ between them can be
considered the same under an imputed theory of liability which would result in the
offenses being considered the same under the Blockburger test, and whether there
is legislative history articulating an interest to treat the offenses as the same or
different for double jeopardy purposes. Ervin, 991 S.W.2d at 814 (citing
Blockburger v. United States, 284 U.S. 299, 304 (1932)).
7
The State cites cases from other jurisdictions, which hold that conditional
pre-trial release cannot be considered punishment for purposes of the Double
Jeopardy Clause because it serves a remedial rather than a punitive purpose and a
bond condition is not based on a determination of guilt. See State v. Torres, 890
So. 2d 292, 296 (Fla. Dist. Ct. App. 2d Dist. 2004) (conditions of pre-trial release
requiring accused to attend sex offender treatment were not punitive and double
jeopardy did not attach); accord Parent v. State, 900 So. 2d 598, 599-600 (Fla. Dist.
Ct. App. 2d Dist. 2004) (special conditions placed on pre-trial release of DUI
defendant did not bar further prosecution under the double jeopardy clause);
Halikipoulos v. Dillion, 139 F. Supp. 2d 312 (E.D.N.Y. 2001) (pre-trial release
condition requiring defendant to attend “stoplift” counseling program did not
constitute punishment and court rejected double jeopardy argument). While not
binding on this Court, the cases are instructive of the result reached in other
jurisdictions.
In Texas, the Code of Criminal Procedure provides rules for fixing the
amount of the bond and the conditions of bond. Tex. Code Crim. Proc. Ann. arts.
17.15 (West 2005), 17.40 (West Supp. 2014). “The bail shall be sufficiently high
to give reasonable assurance that the undertaking will be complied with.” Tex.
Code Crim. Proc. Ann. art. 17.15. In setting the amount of the bond, “[t]he power
to require bail is not to be used as to make it an instrument of oppression.” Id. The
8
magistrate considers “[t]he nature of the offense and the circumstances under
which it was committed” and also considers “[t]he future safety of a victim of the
alleged offense and the community. . . .” Id. In Texas, “a magistrate may impose
any reasonable condition of bond related to the safety of a victim of the alleged
offense or to the safety of the community.” Tex. Code Crim. Proc. Ann. art. 17.40.
Unlike the criminal offense of online solicitation of a minor that is contained
within the Penal Code, the statutes that authorize a trial court to fix bail pending
trial and to impose conditions on a defendant’s pre-trial release on bail function to
ensure the defendant’s appearance at trial and to protect the community without
requiring a finding of guilt. Compare Tex. Code Crim. Proc. Ann. arts. 17.15,
17.40, with Tex. Penal Code Ann. § 33.021(c). We conclude that the clear intent of
the Legislature as demonstrated in the plain language contained in articles 17.15
and 17.40 was to permit a trial court to set reasonable conditions of bond as a
requirement for pre-trial release and then to impose the penalty set out in the Penal
Code for the offense if the defendant is later tried and convicted. See Ervin, 991
S.W.2d at 814.
Victorick argues that in his case, the trial court failed to follow the rules
established by articles 17.15 and 17.40 of the Texas Code of Criminal Procedure
and that the trial court imposed unreasonable conditions of bond. See Tex. Code
Crim. Proc. Ann. arts. 17.15, 17.40. He argues that the conditions impacted his
9
freedoms as guaranteed by the Fifth Amendment to such a degree that he has been
punished before trial for the acts alleged in the indictment. The proper method to
challenge a punitive bail condition is by filing either a motion to reduce bail or an
application for a writ of habeas corpus for a bail reduction. See Stack v. Boyle, 342
U.S. 1, 6 (1951) (the proper procedure for challenging bail as unlawfully fixed is
by motion for reduction of bail); Ex parte Young, 257 S.W.3d 276, 278 (Tex.
App.—Beaumont 2008, no pet.) (the accused may challenge the conditions
attached to bail through a pre-trial writ of habeas corpus).
Victorick petitioned for pre-trial habeas relief, but he sought only relief from
the indictment and did not seek habeas relief from the order setting ancillary
conditions of bond. Furthermore, he submitted no evidence regarding the
oppressive nature of the conditions of bond. During the hearing on his pre-trial
habeas petition, the State argued that the bond conditions were reasonable because
they related to safety of the victim and the community. Considering that the
indictment accused Victorick of online solicitation of a member of his household,
and the use of a computer, electronic or texting device, the trial court reasonably
could have determined that temporarily prohibiting his use of the internet and
contact with the victim’s family was authorized by article 17.40, even though the
conditions necessarily impaired Victorick’s freedom to communicate electronically
and to associate with his family. See Tex. Code Crim. Proc. Ann. art. 17.40.
10
Therefore, we conclude that the trial court did not err in denying the application for
writ of habeas corpus. Accordingly, we overrule both issues raised by Victorick in
Appeal No. 09-14-00112-CR.
SUFFICIENCY OF THE EVIDENCE
In Victorick’s first issue in Appeal No. 09-14-00190-CR (appeal of his
conviction), Victorick challenges the sufficiency of the evidence to support his
conviction of online solicitation of a minor. A person commits the offense of
online solicitation of a minor if the person “over the Internet, by electronic mail or
text message or other electronic message service or system, or through a
commercial online service, knowingly solicits a minor to meet another person,
including the actor, with the intent that the minor will engage in sexual contact,
sexual intercourse, or deviate sexual intercourse with the actor or another person.”
See Tex. Penal Code Ann. § 33.021(c). Victorick argues the evidence at trial was
insufficient to prove beyond a reasonable doubt that he did “knowingly solicit by
text message, K.E., a minor, to meet the defendant, with the intent that K.E. would
engage in sexual contact and sexual intercourse and deviate sexual intercourse with
the defendant,” as alleged in the indictment. Victorick contends that
“communicating in a sexually explicit manner with a minor, even if with the intent
to arouse or gratify the sexual desire of any person, is legal.” He argues the
evidence is legally insufficient to establish he violated the statute because the State
11
failed to prove beyond a reasonable doubt that he solicited K.E. to meet him and
that he acted with the intent that K.E. engage in sexual contact.
The “Jackson v. Virginia legal-sufficiency standard is the only standard that
a reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.
App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In evaluating
the legal sufficiency of the evidence, we review all the evidence in the light most
favorable to the verdict to determine whether any rational fact finder could have
found the essential elements of the offense beyond a reasonable doubt. Brooks, 323
S.W.3d at 902 n.19; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
The jury is the ultimate authority on the credibility of witnesses and the
weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State,
623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury’s
responsibility to fairly resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214
S.W.3d at 13. If the record contains conflicting inferences, we must presume that
the jury resolved such facts in favor of the verdict and defer to that resolution.
Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). We also determine whether the necessary inferences are
12
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at
778. We may not substitute our judgment concerning the weight and credibility of
the evidence for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.
Crim. App. 2000).
Courts and juries no longer face the difficult task of excluding every
reasonable hypothesis other than the defendant’s guilt. Under the
current standard of review, there is no reason to treat circumstantial
evidence of an accused’s mental state any differently than
circumstantial evidence of other elements. Just as circumstantial
evidence is reviewed under the same standard as direct evidence,
circumstantial evidence of intent is reviewed under the same standard
as circumstantial evidence of other elements.
Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). “As long as the
verdict is supported by a reasonable inference, it is within the province of the
factfinder to choose which inference is most reasonable.” Id. at 523.
In 2013, Victorick was employed as a high school coach and teacher. A year
before the events at issue in this appeal, Victorick’s wife became concerned that
Victorick might have developed a sexual attraction to K.E. His wife noticed that
Victorick displayed a keen interest in the possibility that his step-daughter, K.E.,
might be sexually active and the wife observed what appeared to be inappropriate
sexual remarks in text messages from Victorick to K.E. Victorick explained to his
wife that he had been “referring to . . . basketball, teaching her how to shoot,
13
dribble better, things of that nature[]” and that is what he meant when he sent K.E.
a text message saying that “he could show her things and do things that, you know,
some of those boys couldn’t.” Mrs. Victorick believed her husband, but she put
locks on K.E.’s door and she would stay up until Victorick went to bed “to make
sure that he wasn’t going in there and downloading from her phone[.]” There were
times when Victorick was “acting like a jealous boyfriend[;]” for example, once he
climbed a ladder to look into a neighboring cul-de-sac to observe K.E. and her
boyfriend.
On the date of the offense, Victorick, his wife, and K.E. were attending a
graduation party at a friend’s home. Victorick was, according to his wife, “drinking
excessively” at the party. After K.E. left the party and went to a nearby fast food
restaurant with a boy, Victorick sent K.E. a text message asking, “Is your quickly
done? Time to get back.” K.E. responded, “I’m pretty sure all we did was go get
ice cream.” The exchange of messages between K.E. and Victorick continued as
follows:
K.E.: We need water
Victorick: I.need then & sick me you willl love, where are you! Suck me!
K.E.: Never
Victorick: If you ever. You will h understand how good I I eat p[---]y, let me
show you! You will. Love ir!!’ Ask the others!!
14
K.E.: F[---] you
Victorick: Please let me eat you you will love, it quit f[---]ing, I love your,
miore than you know!
K.E.: F[---]ing for
K.E.: Die 2
K.E. showed the messages to Victorick’s wife, who understood that it
referred to oral sex. A few weeks thereafter, K.E. called 9-1-1 about a physical
altercation she had with Victorick. During the call, K.E. told the dispatcher that
Victorick grabbed her by her hair and shoved her into the furniture, and also that
he was “trying to get me to do things with him . . . sexual things.”
K.E. testified at trial that she did not believe Victorick was trying to have
sex with her, and that she believed he could have sent the messages because he was
trying to keep her from having sex with more people. She does remember,
however, telling her mother that she was “creeped out” by her stepfather, and she
agreed that she called 9-1-1. A clinical psychologist testified for the State. He
stated that he had counseled hundreds of children who were victims of sexual
abuse. With respect to the Victorick case, he observed the testimony of K.E.,
reviewed some but not all of the texts between Victorick and K.E, reviewed the
statements given by K.E.’s mother and Victorick, and reviewed other items from
2
We use brackets and dashes to note our omission of some letters due to the
profane nature of the words.
15
the reports. Further, he testified that abusers often “groom” their victims “[t]o
foster that dependence and to foster that trust so that they can not only abuse the
child and have access to them, but to the extent that they do harm the child in some
way, the child may not tell about it, may even have positive relationships toward
the person related to ways that they’ve been manipulated.” The psychologist stated
that the testimony of K.E. that she did not want Victorick to get in trouble, or that
she did not think the texts were intended to be sexual, or that she blamed herself,
would be
consistent with someone who has been groomed by a suspect,
groomed to feel like, to the extent anything bad is happening, it’s my
fault, rather than the other person’s fault, and groomed to take
responsibility for that, rather than entertain the idea, which may be a
hard idea to entertain, to the extent that a child wants to believe in
their father and the goodness of their father and having a good
relationship with the father, that can be a lot for a child to give up.
And in some cases that I have worked on, they will try to deny or
rationalize or even blame themselves for what’s happening rather than
believe that their father might be trying to hurt them.
A forensic examination of Victorick’s phone revealed an exchange of
thousands of messages between Victorick and K.E. prior to July 25, 2013. Included
within the messages are statements that demonstrate Victorick’s sexual interest in
K.E.
In his brief on appeal, Victorick further argues that his communications
before the date of the offense were not illegal, “no matter how salacious, vulgar,
16
inappropriate or sexually explicit any of the text messages that Mr. Victorick sent
before June 2, 2013, may have been[.]” He argues that the text message sent from
his phone when K.E. went to the fast food restaurant did not request that K.E. meet
him. Victorick contends that his messages, which express a present desire to
engage in oral sex, appear to have occurred after K.E. returned to the party because
they were made after K.E. asked Victorick for water. The alleged presence of
Victorick and K.E. being in the same building at the time Victorick sent the
messages would not, however, negate the element of the offense that the person
“knowingly solicits a minor to meet another person, including the actor” with the
intent that the minor will engage in sexual contact. See Tex. Penal Code Ann. §
33.021(c). The jury could have reasonably concluded based upon the content of the
messages, as well as the testimony and evidence in the record, that Victorick sent
K.E. a text message that solicited K.E., a minor, to meet.
“Meet” is not defined in the statute. “Words not specially defined by the
Legislature are to be understood as ordinary usage allows, and jurors may thus
freely read statutory language to have any meaning which is acceptable in common
parlance.” Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).
“Accordingly, when determining the sufficiency of evidence to support a jury
verdict, reviewing courts must not employ definitions of relevant statutory words
which are different or more restrictive than the jurors themselves were legally
17
entitled to use.” Id. Among its commonly understood terms, “meet” means, “to
come near or in touch with by approach from another direction” and “in the basic
sense pertinent here, [usually] implies no more than to come into the presence or
company of whether by chance or design[.]” WEBSTER’S THIRD NEW INT’L
DICTIONARY 1404 (2002). The jury could, using the ordinary understanding of the
word “meet,” find that Victorick solicited K.E. to meet him, and further that
Victorick asked the victim to engage in a sex act that required physical contact
between them.
Victorick argues that the text message, “I.need then & sick me you willl
love, where are you! Suck me!”, does not “solicit” K.E. “Solicit” is not defined in
section 33.021 of the Texas Penal Code, and could be understood by the jury by its
commonly defined terms, which include, “to approach with a request or plea” and
“to endeavor to obtain by asking or pleading[.]” WEBSTER’S THIRD NEW INT’L
DICTIONARY 2169 (2002). “Suck” is also found in the dictionary, and includes the
meaning, “to draw in the mouth over or around an object. . . .” Id. at 2283. The part
of “me” to which Victorick referred could be understood by the jury to mean his
genitals, especially in light of another communication from Victorick to K.E. in
which Victorick suggested that they engage in oral sex. The jury could, using the
ordinary understanding of the word “solicit,” find that Victorick asked or pleaded
with K.E. to engage in oral sex.
18
Victorick contends that the evidence is legally insufficient because the mere
presence of the text on his phone does not prove that he sent the message because
there were college-age students at the party and one of them could have sent the
message. The officer who examined Victorick’s phone testified that it was
password-protected. It was reasonable for the jury to infer that Victorick sent the
message. His wife saw him use the phone that night, and Victorick sent sexually
explicit messages to K.E. on many other occasions.3 Because the inference that it
was Victorick that sent the message from his password-protected phone was
reasonable, the State was not required to exclude the possibility that someone else
at the party used Victorick’s phone to send the messages to K.E. See Laster, 275
S.W.3d at 521, 523.
Viewing the totality of the evidence and inferences in a light most favorable
to the verdict, the jury could have reasonably inferred that Victorick sent the
messages to K.E. See Hooper, 214 S.W.3d at 13. We conclude that the evidence is
legally sufficient to support the verdict. Accordingly, we overrule issue one.
3
The testimony and evidence indicated that Victorick—a 58-year-old high
school teacher and coach—spied upon K.E. when she was with her friends; he
snuck into her room at night while she slept; he used the “notes” function of his
cell phone to record his own thoughts regarding her sexual activity and to record
his sexual attraction to her; and he sent many other text messages to K.E. that
included requests to be permitted to perform what a jury could reasonably
conclude were sex acts.
19
IMPARTIAL TRIBUNAL
In his second issue in Appeal No. 09-14-00190-CR (appeal of his
conviction), Victorick argues that the reference to the “victim” in the pre-trial order
setting ancillary conditions of bond demonstrates that the trial judge pre-judged his
guilt, and establishes that he was deprived of a fair and impartial tribunal, in
violation of the Due Process Clause of the Fifth and Fourteenth Amendments. See
Tumey v. Ohio, 273 U.S. 510, 523 (1927). “A fair trial in a fair tribunal is a basic
requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955).
The trial court used a pre-printed form that contained several references to
the “victim” and “the victim’s family” which Victorick argues indicates that the
trial court pre-judged his guilt before the trial. The document imposes conditions
but includes no factual findings. The document was not prepared for use before the
jury, nor is there any indication from the record that the pre-trial order setting
ancillary conditions of bond was ever shown to the jury. Additionally, during the
trial, when Victorick objected to the prosecutor’s reference to the complaining
witness as “the victim” the trial court sustained the objection and instructed
counsel to use the phrase “alleged victim” and instructed the jury that “any time
. . . prosecutor uses the word ‘victim,’ that you take it as alleged victim.”
Therefore, we conclude that the record does not support Victorick’s claim that the
trial court deprived him of the presumption of innocence. We overrule issue two.
20
RECUSAL PROCEDURE
In his third issue in Appeal No. 09-14-00190-CR (appeal of his conviction),
Victorick challenges the constitutionality of the recusal procedure contained in
Rule 18a(a)(3) and 18a(j)(1)(A) of the Texas Rules of Civil Procedure. See Tex. R.
Civ. P. 18a. Subsection (a)(3) of Rule 18a provides that a party may not seek
recusal of the judge solely on account of the judge’s rulings in the case in which
his recusal is sought. Id. Subsection (j)(1)(A) states that an order denying a motion
to recuse may be reviewed only for abuse of discretion on appeal from the final
judgment. Id. Victorick argues that Rule 18a unconstitutionally denies a criminal
defendant due process “[b]ecause the defendant will have been forced, as was Mr.
Victorick, to a trial before a judge who has prejudged his guilt.”
“Whenever we are confronted with an attack upon the constitutionality of a
statute, we presume that the statute is valid and that the Legislature has not acted
unreasonably or arbitrarily. [citation omitted] The burden rests upon the individual
who challenges the statute to establish its unconstitutionality” as applied to him.
Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (citing to Ex parte
Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)); Wood v. State, 18
S.W.3d 642, 650-51 (Tex. Crim. App. 2000). Victorick has not established that the
trial court prejudged his guilt. Furthermore, Victorick has not shown that Rule 18a
21
is unconstitutional as applied to him or as applied to some hypothetical third party.
Therefore, we overrule issue three.
CONCLUSION
Having overruled all of the issues that have been raised by the appellant in
his appeals, we affirm the order denying the application for a writ of habeas corpus
and we affirm the judgment of conviction.
AFFIRMED.
________________________________
LEANNE JOHNSON
Justice
Submitted on November 10, 2014
Opinion Delivered December 10, 2014
Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
22
IN THE NINTH COURT OF APPEALS
_____________________ _____
09-14-00112-CR
__________________________
Ex Parte David Lee Victorick
_________________________________________________________________
On Appeal from the
435th District Court of Montgomery County, Texas
Trial Cause No. 13-11-12323 CR
_________________________________________________________________
JUDGMENT
THE NINTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the order of the trial court should be affirmed. IT IS
THEREFORE ORDERED, in accordance with the Court’s opinion, that the
order denying the application for a writ of habeas corpus is affirmed.
Opinion of the Court delivered by Justice Leanne Johnson
December 10, 2014
AFFIRMED
**********
Copies of this judgment and the Court’s opinion are certified for
observance.
Carol Anne Harley
Clerk of the Court
13
48