Actionable?
Well dont just stand there!!
Get To Work!!!
Hector P Garcia Institute of Education, Integrity, Culture and Public Policy: Corpus Christi Watchdog Authority: Judge Westergren has been given the opportunity to produce the ...
Wednesday, August 01, 2007
Wednesday, July 18, 2007
The Serpent IN the Garden January 14, 1996 Houston: Inaction Allowed Abuser To Roam For 10 Years.
If this was leaked to the media did the Corpus Christi Caller Times tell us about this pedophile?
Did the Caller publish any stories on this matter?
And the CCISD Board did they inform the community?
The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients - even after he had been publicly charged.
CORPUS CHRISTI - James Plaisted was a respected child psychologist, a deacon in one of the city's largest Baptist congregations and the father of four.
He also was a child molester so brazen he escorted little girls into church and fondled them under his coat while listening to the sermon.
Parents knew. So did church pastors, school officials and state regulators. But few did anything to stop him, and those who tried were remarkably unsuccessful.
It took 10 years to get Plaisted behind bars. Only he knows how many children he molested during that time.
Last month, Plaisted - already serving a two-year federal prison term for luring a Texas patient to Boston to continue molesting her -was brought back to Corpus Christi in chains.
He pleaded guilty to sexually assaulting four girls and was sentenced to 40 years in prison.
State regulators have yet to revoke his license to practice psychology.
""I think the Plaisted case is the model of what happens when the system fights with itself," said Susan Snyder, a Kingsville attorney and former prosecutor who tried to lock up Plaisted in 1992.
""Obviously, there have been safeguards in place to prevent this man all along, but either (state officials) were too lazy or too busy, or too scared of the politics of going and yanking this man's license," Snyder said. ""It's not the legal system failing. It's the people within the legal system that refuse to let the legal system work."
It's not as if no one tried.
Carmen Alvarado, the mother of the first child to accuse Plaisted more than 10 years ago, sought criminal charges against the therapist and filed an ethics complaint with the Texas Board of Examiners of Psychologists. She alleged that Plaisted had fondled her son's penis during a late-night counseling session.
Alvarado called the Parkdale Baptist Church, where Plaisted, 46, was a deacon.
""They said they were leaving it in God's hands," she recalled.
""I don't think they were thinking straight at the time."
She went to other parents. She got no help.
In the end, it was just her son's word against Plaisted, who told a Corpus Christi jury in 1986 that the 6-year-old child was a habitual liar and a pyromaniac who derived sexual excitement from setting fires. It didn't help that a new prosecutor was assigned to the case just before trial.
The jury acquitted Plaisted; his practice continued.
""It made me mad because when I went for help, all I asked was for them to testify," Alvarado recalled. ""We lost because my son was the only witness we had."
""It was a very tough call to make," said another victim's mother. ""And looking back, I really should have crucified him, but I didn't. I chose not to after talking to my attorney. He told me it would just really traumatize my daughter."
The Corpus Christi woman, who asked not to be identified, said she did confront Plaisted and his wife, who were neighbors in 1984, when her daughter was allegedly molested while spending the night with one of Plaisted's daughters.
""He did not deny it," she said. ""He said he could have done it
in his sleep."
Plaisted's wife laughingly added that she and her husband often made love at night, and he would not remember the next morning, the woman said.
The woman, who was also a member of the Parkdale Baptist Church, recalled telling church officials later about Plaisted's molestations.
""But it didn't seem to make any difference," she said. ""The church really backed him up, and a lot of people left the church after that."
Plaisted's attorney, Doug Tinker, refused to allow the Chronicle to interview his client. The criminal defense lawyer, who earlier this year represented Yolanda Saldivar, who was convicted of murdering Tejano star Selena, declined to discuss the Plaisted case.
The victims' families have since sued the church for negligence, but Parkdale's lawyer argues the congregation should not be held responsible for Plaisted's actions.
""It would be the church's wish to get this thing resolved without causing any additional hurt to anyone," said attorney Van Huseman. But he added, ""If a child gets molested in the middle of the service, how does that get to be the pastor's fault?"
Plaisted - a Nebraska native who served in the Army in Vietnam -came to Corpus Christi in 1982 with impeccable credentials, having earned his doctorate in clinical and child psychology from Auburn University in Alabama in 1981.
He quickly built a private practice, and over the years, developed a good reputation as an expert on brain dysfunction.
The Corpus Christi school district, along with local pediatricians, eagerly supplied him with young patients - even after he had been publicly charged. Members of the church also sought his help, and he had hospital privileges at the prestigious Driscoll Children's Hospital, a South Texas institution known both for quality care and charity.
Neighbors described Plaisted as pleasant, reserved, well-spoken. He was methodical, they said, and liked to work on projects around the house.
Plaisted recruited some of his victims from broken homes, showering the children with gifts, inviting them and their parents to Thanksgiving dinners. One 9-year-old girl who spent the night with Plaisted's daughter told prosecutors the psychologist molested her on the sofa in his living room while he and the children watched the movie "Home Alone"
on video.
He curried favor with his victims' parents by lending them money and refusing repayment, or by buying them air conditioners and other gifts. One mother even acted as a character witness for the therapist during the Alvarado trial, unaware that her own child was being molested.
""The bottom line is this guy had complaints filed against him at the psychology board - and they are serious - and the board doesn't notify the school about the complaints," said Jerry Boswell, director of the Citizens Commission on Human Rights, a group funded by the Church of Scientology (SEE CORRECTION) that documents cases such as Plaisted's. ""And the school is still referring children to this guy."
Corpus Christi school administrators said they used Plaisted infrequently for psychological testing of students, although school records and correspondence indicate he was a consultant from 1983 until he was indicted for child sexual assault in late 1992.
School administrators have identified records of five students referred to him for psychological testing between 1985 and 1992. There are no records prior to 1985.
School board President Henry Nuss, who has served on the board for seven years, said he first heard of the Plaisted case when he was contacted by the Houston Chronicle last week.
""We certainly should be more selective in who we're using," he said.
After Plaisted was charged in the Alvarado case in April 1986, Robert J. Garcia, the school district's special education director, wrote to the state psychology board to ask about the psychologist's record. The agency's executive director replied that Plaisted's license had been suspended, but because the psychologist was in the process of suing to get it back, he remained licensed to practice. The letter gave no details about the nature of the complaints.
""He was given a clean bill of health by the only agency that had anything to say about it," said Dr. Adrian Haston, a psychologist who coordinates the school district's psychological services, and who, years ago, shared an office with Plaisted.
Haston emphasized that none of the schoolchildren referred to Plaisted were molested. ""And we never had anything untoward, any problems of that sort," he said.
Asked why the district would risk using a psychologist once accused of being a child molester, Haston replied, ""This is something the district did, and you can ask the director of special education why."
Garcia said in a recent telephone interview that he could not remember whether he knew about the child molestation charges at the time he wrote to the psychology board.
""All I know is we asked for what his status was and they said he could still practice," he said. ""We knew he was under review, but we didn't know what for.
""Look, the state board of psychologists, they're the ones that allowed him to continue to practice," Garcia added angrily.
""If anyone should be asked as to why this guy was allowed to continue, it should be the state board of psychology."
Pressed for further details, Garcia abruptly ended the interview and hung up the phone.
Although Plaisted was acquitted in August 1986 in the Alvarado case, the psychology board continued its investigation and ruled in November of that year that Plaisted had violated professional standards.
The board officially suspended his license for two years, but said he would be allowed to resume his practice in three months.
Meanwhile, Plaisted challenged the suspension in state district court in Austin, arguing the psychology board had unfairly considered allegations that had not been introduced during his hearing, denying him the opportunity to defend himself against them. The judge agreed, and in January 1987 reversed Plaisted's suspension.
While the board was investigating Plaisted's case, they were contacted by Corpus Christi psychologist George Kramer.
Kramer, who had hired Plaisted in 1982 before Plaisted was licensed, told the board to subpoena records of the state Department of Human Resources. It did, and found other instances of alleged molestation by Plaisted.
In April 1989, the board reached an agreement with the psychologist that allowed him to keep his license if he agreed to be supervised for 11/2years. Plaisted was to treat children only in the presence of an associate or in a location where he could be observed by a television monitor. He also was to pay to have Corpus Christi psychologist Joseph Horvat supervise his casework.
Horvat met with Plaisted weekly, but after a year - convinced that Plaisted was doing nothing wrong - he recommended the supervision be terminated six months early. The board decided to continue the supervision.
""I have found no evidence in any way, shape or form of any behavior on his part which could be in any way construed as unprofessional or unethical," Horvat wrote to the board.
Included in one of his reports to the board was a review of Plaisted's treatment of an 8-year-old girl - a child Plaisted was later charged with molesting.
The board's general counsel, Barbara Holthaus, acknowledged past actions taken by the agency were inadequate.
""With hindsight, of course it wasn't appropriate, because look at what happened," Holthaus said. But she said the board has since added lay people to its ranks and has a new, tougher state law giving it better enforcement powers.
""Now, if we get a report that a psychologist is molesting a client, we can go before a judge and say we want to temporarily suspend the license," she said.
Holthaus said the board has filed a motion to revoke Plaisted's license, but Plaisted is fighting it.
""It's all kind of moot, because he's incarcerated," she said.
Soon after Plaisted completed his board-ordered supervision, Corpus Christi police received new information from state child welfare workers that Plaisted had been molesting girls at his office, in church and at home in his hot tub.
Former detective Eric Michalak, who now works in Colorado, remembered taking the Plaisted case to a Nueces County assistant district attorney for prosecution.
""He wanted to get a warrant for the doctor and arrest him, because we had very strong evidence against him," Michalak said. ""We had multiple victims and you had a guy in the position he was in, where he had access to all these victims.
You would want to take quick action rather than let it go on for so long."
The prosecutor was overruled by then-District Attorney Grant Jones, Michalak said. ""(Jones) just said, `We're not getting a warrant. We're taking our time.' He wanted the kids reinterviewed by one of the prosecutors.
""Any time you go after someone like that, there's a lot of politics that come into play," Michalak added. ""Instead of stepping in right then, and bringing it out in the open and taking it to a grand jury (for indictment), they delayed."
Jones contends that any delay in prosecution was an effort ""to tie the case down tight. We didn't want to lose him twice,"
said Jones, on whose watch Plaisted was acquitted in the Alvarado case.
Jones called it ""outrageous" the psychology board still hasn't revoked Plaisted's license.
""They should have done it in 1986," he said. ""What they want to do is wait around until you go to trial and you convict him, and then they come in behind your conviction and revoke his license. Well, what's he doing in the meantime? He could be out in the community molesting kids for two years."
Michalak said the case was finally taken to the grand jury several months later after he leaked the information about Plaisted's investigation to the local media.
""It was taking too long, and it wasn't being handled like another case," he said. ""And it was because he was so prominent in the community."
Plaisted was finally indicted in Corpus Christi in October 1992. He posted bond, closed his practice in Corpus Christi, and negotiated an agreement with the psychology board to place his license on inactive status until he could prove his innocence.
He then moved to Boston, where he enrolled in Boston University Law School and successfully completed his first year of studies by May 1994.
While in law school, Plaisted began calling a former patient - the girl whose treatment Horvat had reviewed in Corpus Christi. Plaisted convinced the girl's mother - who was also a patient of his - to bring the girl to Boston for additional therapy.
Plaisted's plans were foiled when a policeman setting up a speed trap in his neighborhood accidentally intercepted on his police radio a sexually explicit telephone call between the girl and Plaisted, who was using a cordless phone.
FBI agents were called in, six other calls were taped, and Plaisted was arrested on June 3, 1994, after he met the girl, then 13, and her mother at the train station and took them to a budget motel.
""The mother wasn't aware" of the molestations, said Adolfo Aguilo, an assistant Nueces County district attorney. ""The mother had a borderline personality disorder - she developed dependency on people -and unfortunately for her the person she developed a dependency on was Dr. Plaisted."
Sgt. Michael Harpster, a police detective from suburban Boston who helped arrest Plaisted, described him as ""very congenial, almost shy."
""He'd answer questions very courteously, but he didn't show any outward signs of knowing the seriousness of the situation," Harpster said.
Last January, Plaisted was sentenced by a federal judge in Boston to a two-year prison term after he pleaded guilty to transporting a minor across state lines to engage in illegal sexual activity.
The Corpus Christi conviction and sentence came almost a year later.
In the end, Plaisted admitted molesting four victims. But prosecutors say no one will ever know how many others failed to come forward.
""I imagine there could be several other victims. Through his practice and the church he probably had access over the years to thousands of children," said Aguilo, the Corpus Christi prosecutor who eventually secured Plaisted's guilty plea.
""To me, any kid that came in contact with this guy was a victim in some way or another," added Michalak.
When Plaisted was sentenced last month, it was a bitter emotional meeting for many of his young victims and their parents, who had been called as witnesses in case Plaisted decided against the plea bargain.
Parents said Plaisted stood up straight, held his head high and looked the judge in the eye. And when he saw the relatives of his former victims, he acted as if he were attending a reunion of old friends, they said. One parent said Plaisted looked as if he thought they were there as supporters or character witnesses.
""He turned around and gave the families a big smile," Alvarado said. ""I couldn't believe it."
Alvarado, who sued Plaisted in civil court, has received a settlement for an undisclosed amount. Her son, now a teen-ager, is still struggling with his past abuse, she said, and she continues to feel betrayed by those who would not join her in speaking out years ago.
""I told them if they had helped me in the beginning, none of this would have happened," she said.
Plaisted timeline
Key dates in the career of Dr. James R. Plaisted:
January 1983: Licensed to practice psychology in Texas.
October 1984: Investigated by Texas Department of Human Resources for allegedly molesting a neighbor's child.
April 1986: Charged in criminal case for allegedly fondling a boy during therapy.
August 1986: Acquitted by jury in Corpus Christi.
October 1992: Indicted for sexual abuse of three Corpus Christi girls.
December 1992: Closed Corpus Christi office; moved to Boston to begin law school.
June 1994: Arrested by FBI agents for luring a 13-year-old former Corpus Christi patient to Boston.
January 1995: Indicted by Corpus Christi grand jury on three counts of aggravated sexual assault for incidents years earlier involving the same girl.
January 1995: Sentenced to two years in federal prison in Boston case.
Dec. 7, 1995: Sentenced to 40 years in state prison by a Corpus Christi judge after pleading guilty to five counts of aggravated sexual assault of a child.
Did the Caller publish any stories on this matter?
And the CCISD Board did they inform the community?
The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients - even after he had been publicly charged.
CORPUS CHRISTI - James Plaisted was a respected child psychologist, a deacon in one of the city's largest Baptist congregations and the father of four.
He also was a child molester so brazen he escorted little girls into church and fondled them under his coat while listening to the sermon.
Parents knew. So did church pastors, school officials and state regulators. But few did anything to stop him, and those who tried were remarkably unsuccessful.
It took 10 years to get Plaisted behind bars. Only he knows how many children he molested during that time.
Last month, Plaisted - already serving a two-year federal prison term for luring a Texas patient to Boston to continue molesting her -was brought back to Corpus Christi in chains.
He pleaded guilty to sexually assaulting four girls and was sentenced to 40 years in prison.
State regulators have yet to revoke his license to practice psychology.
""I think the Plaisted case is the model of what happens when the system fights with itself," said Susan Snyder, a Kingsville attorney and former prosecutor who tried to lock up Plaisted in 1992.
""Obviously, there have been safeguards in place to prevent this man all along, but either (state officials) were too lazy or too busy, or too scared of the politics of going and yanking this man's license," Snyder said. ""It's not the legal system failing. It's the people within the legal system that refuse to let the legal system work."
It's not as if no one tried.
Carmen Alvarado, the mother of the first child to accuse Plaisted more than 10 years ago, sought criminal charges against the therapist and filed an ethics complaint with the Texas Board of Examiners of Psychologists. She alleged that Plaisted had fondled her son's penis during a late-night counseling session.
Alvarado called the Parkdale Baptist Church, where Plaisted, 46, was a deacon.
""They said they were leaving it in God's hands," she recalled.
""I don't think they were thinking straight at the time."
She went to other parents. She got no help.
In the end, it was just her son's word against Plaisted, who told a Corpus Christi jury in 1986 that the 6-year-old child was a habitual liar and a pyromaniac who derived sexual excitement from setting fires. It didn't help that a new prosecutor was assigned to the case just before trial.
The jury acquitted Plaisted; his practice continued.
""It made me mad because when I went for help, all I asked was for them to testify," Alvarado recalled. ""We lost because my son was the only witness we had."
""It was a very tough call to make," said another victim's mother. ""And looking back, I really should have crucified him, but I didn't. I chose not to after talking to my attorney. He told me it would just really traumatize my daughter."
The Corpus Christi woman, who asked not to be identified, said she did confront Plaisted and his wife, who were neighbors in 1984, when her daughter was allegedly molested while spending the night with one of Plaisted's daughters.
""He did not deny it," she said. ""He said he could have done it
in his sleep."
Plaisted's wife laughingly added that she and her husband often made love at night, and he would not remember the next morning, the woman said.
The woman, who was also a member of the Parkdale Baptist Church, recalled telling church officials later about Plaisted's molestations.
""But it didn't seem to make any difference," she said. ""The church really backed him up, and a lot of people left the church after that."
Plaisted's attorney, Doug Tinker, refused to allow the Chronicle to interview his client. The criminal defense lawyer, who earlier this year represented Yolanda Saldivar, who was convicted of murdering Tejano star Selena, declined to discuss the Plaisted case.
The victims' families have since sued the church for negligence, but Parkdale's lawyer argues the congregation should not be held responsible for Plaisted's actions.
""It would be the church's wish to get this thing resolved without causing any additional hurt to anyone," said attorney Van Huseman. But he added, ""If a child gets molested in the middle of the service, how does that get to be the pastor's fault?"
Plaisted - a Nebraska native who served in the Army in Vietnam -came to Corpus Christi in 1982 with impeccable credentials, having earned his doctorate in clinical and child psychology from Auburn University in Alabama in 1981.
He quickly built a private practice, and over the years, developed a good reputation as an expert on brain dysfunction.
The Corpus Christi school district, along with local pediatricians, eagerly supplied him with young patients - even after he had been publicly charged. Members of the church also sought his help, and he had hospital privileges at the prestigious Driscoll Children's Hospital, a South Texas institution known both for quality care and charity.
Neighbors described Plaisted as pleasant, reserved, well-spoken. He was methodical, they said, and liked to work on projects around the house.
Plaisted recruited some of his victims from broken homes, showering the children with gifts, inviting them and their parents to Thanksgiving dinners. One 9-year-old girl who spent the night with Plaisted's daughter told prosecutors the psychologist molested her on the sofa in his living room while he and the children watched the movie "Home Alone"
on video.
He curried favor with his victims' parents by lending them money and refusing repayment, or by buying them air conditioners and other gifts. One mother even acted as a character witness for the therapist during the Alvarado trial, unaware that her own child was being molested.
""The bottom line is this guy had complaints filed against him at the psychology board - and they are serious - and the board doesn't notify the school about the complaints," said Jerry Boswell, director of the Citizens Commission on Human Rights, a group funded by the Church of Scientology (SEE CORRECTION) that documents cases such as Plaisted's. ""And the school is still referring children to this guy."
Corpus Christi school administrators said they used Plaisted infrequently for psychological testing of students, although school records and correspondence indicate he was a consultant from 1983 until he was indicted for child sexual assault in late 1992.
School administrators have identified records of five students referred to him for psychological testing between 1985 and 1992. There are no records prior to 1985.
School board President Henry Nuss, who has served on the board for seven years, said he first heard of the Plaisted case when he was contacted by the Houston Chronicle last week.
""We certainly should be more selective in who we're using," he said.
After Plaisted was charged in the Alvarado case in April 1986, Robert J. Garcia, the school district's special education director, wrote to the state psychology board to ask about the psychologist's record. The agency's executive director replied that Plaisted's license had been suspended, but because the psychologist was in the process of suing to get it back, he remained licensed to practice. The letter gave no details about the nature of the complaints.
""He was given a clean bill of health by the only agency that had anything to say about it," said Dr. Adrian Haston, a psychologist who coordinates the school district's psychological services, and who, years ago, shared an office with Plaisted.
Haston emphasized that none of the schoolchildren referred to Plaisted were molested. ""And we never had anything untoward, any problems of that sort," he said.
Asked why the district would risk using a psychologist once accused of being a child molester, Haston replied, ""This is something the district did, and you can ask the director of special education why."
Garcia said in a recent telephone interview that he could not remember whether he knew about the child molestation charges at the time he wrote to the psychology board.
""All I know is we asked for what his status was and they said he could still practice," he said. ""We knew he was under review, but we didn't know what for.
""Look, the state board of psychologists, they're the ones that allowed him to continue to practice," Garcia added angrily.
""If anyone should be asked as to why this guy was allowed to continue, it should be the state board of psychology."
Pressed for further details, Garcia abruptly ended the interview and hung up the phone.
Although Plaisted was acquitted in August 1986 in the Alvarado case, the psychology board continued its investigation and ruled in November of that year that Plaisted had violated professional standards.
The board officially suspended his license for two years, but said he would be allowed to resume his practice in three months.
Meanwhile, Plaisted challenged the suspension in state district court in Austin, arguing the psychology board had unfairly considered allegations that had not been introduced during his hearing, denying him the opportunity to defend himself against them. The judge agreed, and in January 1987 reversed Plaisted's suspension.
While the board was investigating Plaisted's case, they were contacted by Corpus Christi psychologist George Kramer.
Kramer, who had hired Plaisted in 1982 before Plaisted was licensed, told the board to subpoena records of the state Department of Human Resources. It did, and found other instances of alleged molestation by Plaisted.
In April 1989, the board reached an agreement with the psychologist that allowed him to keep his license if he agreed to be supervised for 11/2years. Plaisted was to treat children only in the presence of an associate or in a location where he could be observed by a television monitor. He also was to pay to have Corpus Christi psychologist Joseph Horvat supervise his casework.
Horvat met with Plaisted weekly, but after a year - convinced that Plaisted was doing nothing wrong - he recommended the supervision be terminated six months early. The board decided to continue the supervision.
""I have found no evidence in any way, shape or form of any behavior on his part which could be in any way construed as unprofessional or unethical," Horvat wrote to the board.
Included in one of his reports to the board was a review of Plaisted's treatment of an 8-year-old girl - a child Plaisted was later charged with molesting.
The board's general counsel, Barbara Holthaus, acknowledged past actions taken by the agency were inadequate.
""With hindsight, of course it wasn't appropriate, because look at what happened," Holthaus said. But she said the board has since added lay people to its ranks and has a new, tougher state law giving it better enforcement powers.
""Now, if we get a report that a psychologist is molesting a client, we can go before a judge and say we want to temporarily suspend the license," she said.
Holthaus said the board has filed a motion to revoke Plaisted's license, but Plaisted is fighting it.
""It's all kind of moot, because he's incarcerated," she said.
Soon after Plaisted completed his board-ordered supervision, Corpus Christi police received new information from state child welfare workers that Plaisted had been molesting girls at his office, in church and at home in his hot tub.
Former detective Eric Michalak, who now works in Colorado, remembered taking the Plaisted case to a Nueces County assistant district attorney for prosecution.
""He wanted to get a warrant for the doctor and arrest him, because we had very strong evidence against him," Michalak said. ""We had multiple victims and you had a guy in the position he was in, where he had access to all these victims.
You would want to take quick action rather than let it go on for so long."
The prosecutor was overruled by then-District Attorney Grant Jones, Michalak said. ""(Jones) just said, `We're not getting a warrant. We're taking our time.' He wanted the kids reinterviewed by one of the prosecutors.
""Any time you go after someone like that, there's a lot of politics that come into play," Michalak added. ""Instead of stepping in right then, and bringing it out in the open and taking it to a grand jury (for indictment), they delayed."
Jones contends that any delay in prosecution was an effort ""to tie the case down tight. We didn't want to lose him twice,"
said Jones, on whose watch Plaisted was acquitted in the Alvarado case.
Jones called it ""outrageous" the psychology board still hasn't revoked Plaisted's license.
""They should have done it in 1986," he said. ""What they want to do is wait around until you go to trial and you convict him, and then they come in behind your conviction and revoke his license. Well, what's he doing in the meantime? He could be out in the community molesting kids for two years."
Michalak said the case was finally taken to the grand jury several months later after he leaked the information about Plaisted's investigation to the local media.
""It was taking too long, and it wasn't being handled like another case," he said. ""And it was because he was so prominent in the community."
Plaisted was finally indicted in Corpus Christi in October 1992. He posted bond, closed his practice in Corpus Christi, and negotiated an agreement with the psychology board to place his license on inactive status until he could prove his innocence.
He then moved to Boston, where he enrolled in Boston University Law School and successfully completed his first year of studies by May 1994.
While in law school, Plaisted began calling a former patient - the girl whose treatment Horvat had reviewed in Corpus Christi. Plaisted convinced the girl's mother - who was also a patient of his - to bring the girl to Boston for additional therapy.
Plaisted's plans were foiled when a policeman setting up a speed trap in his neighborhood accidentally intercepted on his police radio a sexually explicit telephone call between the girl and Plaisted, who was using a cordless phone.
FBI agents were called in, six other calls were taped, and Plaisted was arrested on June 3, 1994, after he met the girl, then 13, and her mother at the train station and took them to a budget motel.
""The mother wasn't aware" of the molestations, said Adolfo Aguilo, an assistant Nueces County district attorney. ""The mother had a borderline personality disorder - she developed dependency on people -and unfortunately for her the person she developed a dependency on was Dr. Plaisted."
Sgt. Michael Harpster, a police detective from suburban Boston who helped arrest Plaisted, described him as ""very congenial, almost shy."
""He'd answer questions very courteously, but he didn't show any outward signs of knowing the seriousness of the situation," Harpster said.
Last January, Plaisted was sentenced by a federal judge in Boston to a two-year prison term after he pleaded guilty to transporting a minor across state lines to engage in illegal sexual activity.
The Corpus Christi conviction and sentence came almost a year later.
In the end, Plaisted admitted molesting four victims. But prosecutors say no one will ever know how many others failed to come forward.
""I imagine there could be several other victims. Through his practice and the church he probably had access over the years to thousands of children," said Aguilo, the Corpus Christi prosecutor who eventually secured Plaisted's guilty plea.
""To me, any kid that came in contact with this guy was a victim in some way or another," added Michalak.
When Plaisted was sentenced last month, it was a bitter emotional meeting for many of his young victims and their parents, who had been called as witnesses in case Plaisted decided against the plea bargain.
Parents said Plaisted stood up straight, held his head high and looked the judge in the eye. And when he saw the relatives of his former victims, he acted as if he were attending a reunion of old friends, they said. One parent said Plaisted looked as if he thought they were there as supporters or character witnesses.
""He turned around and gave the families a big smile," Alvarado said. ""I couldn't believe it."
Alvarado, who sued Plaisted in civil court, has received a settlement for an undisclosed amount. Her son, now a teen-ager, is still struggling with his past abuse, she said, and she continues to feel betrayed by those who would not join her in speaking out years ago.
""I told them if they had helped me in the beginning, none of this would have happened," she said.
Plaisted timeline
Key dates in the career of Dr. James R. Plaisted:
January 1983: Licensed to practice psychology in Texas.
October 1984: Investigated by Texas Department of Human Resources for allegedly molesting a neighbor's child.
April 1986: Charged in criminal case for allegedly fondling a boy during therapy.
August 1986: Acquitted by jury in Corpus Christi.
October 1992: Indicted for sexual abuse of three Corpus Christi girls.
December 1992: Closed Corpus Christi office; moved to Boston to begin law school.
June 1994: Arrested by FBI agents for luring a 13-year-old former Corpus Christi patient to Boston.
January 1995: Indicted by Corpus Christi grand jury on three counts of aggravated sexual assault for incidents years earlier involving the same girl.
January 1995: Sentenced to two years in federal prison in Boston case.
Dec. 7, 1995: Sentenced to 40 years in state prison by a Corpus Christi judge after pleading guilty to five counts of aggravated sexual assault of a child.
Tuesday, May 22, 2007
South Texas Judicial Watch Dog Authority: Dear Officers of the Court, submitted for further investigation
South Texas Judicial Watch Dog Authority: Dear Officers of the Court, submitted for further investigation
In Re: State v Villa
Do a little research on Del Mar College's in house counsel, Sean Meredeth, DMC Auditorium, Ballet Nacional, little girls, Joe Alaniz, and the relationship with our DA
Why is this evidence not included in the current prosecution of Villa?
Why not drag the whole bunch down to the Courthouse?
Friends of the Prosecution or not, enough of the selective prosecutions. Plaisted, Applebee, and the one's who covered it up at Parkdale Baptist & St Joseph's here in the Jurisdiction of the Nueces County / 105th District Attorney. Zealously
Possible Brady Material?
Does this material not merit a Grand Jury Investigation?
Pervert in Auditorium
In Re: State v Villa
Do a little research on Del Mar College's in house counsel, Sean Meredeth, DMC Auditorium, Ballet Nacional, little girls, Joe Alaniz, and the relationship with our DA
Why is this evidence not included in the current prosecution of Villa?
Why not drag the whole bunch down to the Courthouse?
Friends of the Prosecution or not, enough of the selective prosecutions. Plaisted, Applebee, and the one's who covered it up at Parkdale Baptist & St Joseph's here in the Jurisdiction of the Nueces County / 105th District Attorney. Zealously
Possible Brady Material?
Does this material not merit a Grand Jury Investigation?
Pervert in Auditorium
Monday, May 07, 2007
"IN THE KNOW": Carlos Truan | Hugo Berlanga & The Primrose Path & Rangel Law School @ Texas A&I University.
"IN THE KNOW": Carlos Truan | Hugo Berlanga & The Primrose Path & Rangel Law School @ Texas A&I University.
Subject: ["IN THE KNOW"] Carlos Truan | Hugo Berlanga & The Primrose Path & Rangel Law...
To: kenedenonews@gmail.com
[ http://storkclub-winchell.blogspot.com/2007/05/irma-rangel-legacy-relating-to.html ]
http://www.ibcmemorial.org/irma.html
Monday, May 7, 2007
Carlos Truan | Hugo Berlanga | Henry Cuellar | Edwards, Al | Todd Hunter | Luci0 : The Primrose Path & Rangel Law School @ Texas A&I University.
Or posture for another agenda?
Who at that time wanted a Pharmacy College?
Celanese, King Ranch, URI?
Now we have this unorthodox legislation for an Engineering School @ TAMUCC?
This is a Developing Medical Community with the ability to become the finest in the world. Medical Nanotechnology is already here, $ are already here.
The Political Faction at TAMUCC will find their equilibrium eventually. An engineering school @ CCSU / TAMUCC is obtuse to the medical assets we have accumulated and the Philanthropy already well rooted in South Texas.
Irma Rangel Legislation was for the establishment of a law school at Texas A & I
The Age of Winchell: Irma Rangel Legacy : Relating to the establishment of a law school at Texas A&I University.
Hugo Berlanga | Henry Cuellar | Edwards, Al | Todd Hunter | Eddie Lucio
--
Posted By The Advocate to Google Yourself Corpus Christi at 5/07/2007 02:46:00 AM
Subject: ["IN THE KNOW"] Carlos Truan | Hugo Berlanga & The Primrose Path & Rangel Law...
To: kenedenonews@gmail.com
[ http://storkclub-winchell
http://www.ibcmemorial.orgMonday, May 7, 2007
Carlos Truan | Hugo Berlanga | Henry Cuellar | Edwards, Al | Todd Hunter | Luci0 : The Primrose Path & Rangel Law School @ Texas A&I University.
Or posture for another agenda?
Who at that time wanted a Pharmacy College?
Celanese, King Ranch, URI?
Now we have this unorthodox legislation for an Engineering School @ TAMUCC?
This is a Developing Medical Community with the ability to become the finest in the world. Medical Nanotechnology is already here, $ are already here.
The Political Faction at TAMUCC will find their equilibrium eventually. An engineering school @ CCSU / TAMUCC is obtuse to the medical assets we have accumulated and the Philanthropy already well rooted in South Texas.
Irma Rangel Legislation was for the establishment of a law school at Texas A & I
The Age of Winchell: Irma Rangel Legacy : Relating to the establishment of a law school at Texas A&I University.
Hugo Berlanga | Henry Cuellar | Edwards, Al | Todd Hunter | Eddie Lucio
| Legislative Session: 71(R) | Council Document: 71R 1835 MHT-D |
|
| Last Action: | 02/28/1989 S Reported favorably w/o amendments |
| Caption Version: | Introduced |
| Caption Text: | Relating to the establishment of a law school at Texas A&I University. |
| Author: | Truan |
| Subjects: | Education--Higher-- General (I0231) TEXAS A&I UNIVERSITY (U2467) |
| Companion: | HB 1630 by Rangel, Identical |
| Senate Committee: | Education | |
| Status: | Out of committee | |
| Vote: | Ayes=9 Nays=1 Present Not Voting=0 Absent=1 | |
--
Posted By The Advocate to Google Yourself Corpus Christi at 5/07/2007 02:46:00 AM
Sunday, April 01, 2007
Wednesday, December 13, 2006
subjective ~~"a claim of 'vindictive prosecution' presents primarily factual questions of government motive. ~~Intent?
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1559-03
RONNIE JOE NEAL, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
RUSK COUNTY
Cochran, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Keasler, Hervey and Holcomb, JJ., joined. Womack, J., filed a dissenting opinion in which, Price and Johnson, JJ., joined.
O P I N I O N
After a court trial, a judge found appellant guilty of possession of a deadly weapon in a penal institution and sentenced him to six years' imprisonment. The court of appeals reversed this conviction and ordered the case dismissed. It concluded that appellant's prosecution-which came after he filed a federal civil-rights suit-raised a presumption of vindictiveness that the State did not overcome at trial. (1) The State asks whether the court of appeals erred by reversing the trial court's judgment on a theory of prosecutorial vindictiveness when that theory was never properly presented to the trial court. (2) We hold that it did err when it reversed the trial court's judgment on a basis never pleaded, proved, or ruled upon in the trial court. We therefore reverse the court of appeals and affirm the judgment of the trial court.
I.
During the summer of 1998, appellant was in the Rusk County jail awaiting trial on charges of forgery and burglary of a habitation. On June 16, 1998, the local jailers caught him with a homemade weapon-a toothbrush sharpened into a stabbing instrument-which he had secreted in his boxer shorts. On July 17, 1998, appellant pleaded guilty, pursuant to a plea bargain, to both the forgery and burglary charges. On September 9, 1998, he was indicted for possession of a deadly weapon in a penal institution, stemming from the June 16th incident. Appellant filed a federal civil-rights lawsuit against Rusk County on May 20, 2000, alleging mistreatment in the jail. Before trial in the civil-rights suit, appellant and the State negotiated a plea bargain for a two-year sentence on the pending weapons charge. Appellant-who was by then in prison serving his burglary sentence-was bench-warranted back to Rusk County for a plea on the weapons charge. But before that plea hearing could take place, Rusk County officials returned appellant to prison because they learned he was HIV positive. Thus, on November 17, 2000, the State dismissed the weapons charge with a notation that "[t]he defendant was convicted in another case."
On February 28, 2001, the federal district court conducted a one-day trial on appellant's civil rights suit. Appellant testified and admitted that he had possessed the homemade weapon in the Rusk County jail. No ruling was made on that date in the federal trial. On March 6, 2001, six days after the federal hearing, the State-at the behest of the Rusk County Sheriff's Office, which had first learned about the dismissal of the weapons charge at the civil-rights trial-re-indicted appellant on the weapons charge. (3) Appellant learned on April 18, 2001, that the federal district judge had awarded him a $6,000 judgment against Rusk County in the civil-rights suit. (4)
The State declined to re-offer its original two-year plea bargain on the weapons case. After the trial court denied his pretrial motions (none of which claimed prosecutorial vindictiveness), appellant waived a jury and requested a court trial. After hearing the State's evidence, the trial court found appellant guilty.
At the punishment hearing, the State put on evidence of: 1) appellant's previous forgery and burglary convictions; 2) appellant's penitentiary packet, which listed four other convictions-one robbery, two burglaries, and one unauthorized use of a motor vehicle; and 3) letters appellant wrote to his girlfriend while in the Rusk County jail in which he asked for her assistance in smuggling a handgun into the jail so he could escape and in obtaining documents to create a new identification after he escaped.
The defense presented evidence that, before trial on the federal civil-rights case, the State and appellant had negotiated a plea bargain for a two-year sentence, but that the State was unwilling to re-offer that bargain after the federal trial. The defense characterized the re-indictment as unfair and retaliatory and asked the trial court to assess the original agreed-to two-year sentence. Appellant's attorney, in closing, stated: "Now, this man here, I think to resolve this issue, he's in agreement, his sister's in agreement, I'm in agreement, punish him with the original two years that everybody thought was right." In its closing, the State asked the court "to review all of the evidence that was introduced today, review the seriousness of the crime, review his criminal record and issue the appropriate sentence."
The trial court assessed punishment at six years in prison.
In his brief to the court of appeals, appellant alleged, for the first time, that his conviction should be reversed and the case dismissed because it "was in violation of his rights under the Due Process Clause of the Fourteenth Amendment because of prosecutorial vindictiveness." He stated that "[t]he prosecutor in this case acted in bad faith and maliciously by re-indicting [him] a second time" and that "there was no other reason except for revenge and retaliation for the prosecutor to pursue a second indictment."
The court of appeals agreed and held that the sequence of events ("the State dismissed Neal's charge completely, the civil suit was heard, and then the State re-filed the same charge") raised a presumption of vindictiveness and that there was no evidence in the trial record to overcome it. (5) It reversed the trial court's judgment and dismissed the indictment.
II.
Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute. Thus, "[i]f the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion." (6) Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State's duty to bring violators to justice. (7) Nevertheless, a decision to prosecute violates due process when criminal charges are brought in retaliation for the defendant's exercise of his legal rights. (8) Thus, the Supreme Court has held that, under specific, limited circumstances, the presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness. (9)
A constitutional claim of prosecutorial vindictiveness may be established in either of two distinct ways: 1) proof of circumstances that pose a "realistic likelihood" of such misconduct sufficient to raise a "presumption of prosecutorial vindictiveness," which the State must rebut or face dismissal of the charges; (10) or 2) proof of "actual vindictiveness"- that is, direct evidence that the prosecutor's charging decision is an unjustifiable penalty resulting solely from the defendant's exercise of a protected legal right. (11)
Under the first prong, if the State pursues increased charges or an enhanced sentence after a defendant is convicted, exercises his legal right to appeal, and obtains a new trial, the Supreme Court has found a presumption of prosecutorial vindictiveness. (12) In the very few situations in which this presumption does apply, it can be overcome by objective evidence in the record justifying the prosecutor's action. (13) The defendant must prove that he was convicted, he appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional enhancements. The burden then shifts to the prosecution to come forward with an explanation for the charging increase that is unrelated to the defendant's exercise of his legal right to appeal. (14) The trial court decides the issue based upon all of the evidence, pro and con, and the credibility of the prosecutor's explanation. (15)
Under the second prong, when the presumption does not apply, the defendant may still obtain relief if he can show actual vindictiveness. (16) To establish that claim, a defendant must prove, with objective evidence, that the prosecutor's charging decision was a "direct and unjustifiable penalty" that resulted "solely from the defendant's exercise of a protected legal right." (17) Under this prong, the defendant shoulders the burden of both production and persuasion, unaided by any legal presumption. (18) Once again, the trial judge decides the ultimate factual issue based upon the evidence and credibility determinations.
Under either prong, "[i]f the defendant is unable to prove actual vindictiveness or a realistic likelihood of vindictiveness, a trial court need not reach the issue of government justification." (19) That is, the State may stand mute unless and until the defendant carries his burden of proof under either prong.
III.
Appellant Forfeited His Prosecutorial Vindictiveness Claim Because He Failed to Comply with Texas Rule of Appellate Procedure 33.1(a).
In this case, appellant never filed a motion to dismiss or quash the indictment based on a claim of prosecutorial vindictiveness. Even at trial, he never argued that his due-process rights had been violated by the re-indictment. As the State Prosecuting Attorney points out, the evidence that the court of appeals relied upon to find prosecutorial vindictiveness was not presented at the hearing on appellant's pretrial motions. Instead, it was presented at the sentencing hearing after he had been found guilty. Even then, appellant offered this evidence solely in mitigation of punishment, not to support a legal due-process claim requiring dismissal of the indictment. (20)
Texas Rule of Appellate Procedure 33.1 provides that, in general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." (21)
In this case the trial court neither disregarded an absolute requirement (such as jurisdiction over the subject or person), nor denied appellant a waivable-only right (such as the right to counsel or a jury trial), so the only issue is whether appellant complied with Rule 33.1(a). He did not. Appellant's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, appellant never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The State was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness.
A. The claim was not timely.
The Texas Code of Criminal Procedure requires that, if a defendant seeks dismissal of an indictment as the remedy for his constitutional or statutory claim, the Rule 33.1 requirement of timeliness means that the claim generally must be raised and ruled upon before trial. (22) Under Article 28.01, a trial court must determine such "preliminary matters" at a pre-trial hearing. (23) All preliminary matters which are not raised at the pre-trial hearing, are generally considered forfeited. (24) A motion to set aside, dismiss, or quash an indictment should be made at the first opportunity, (25) and must be presented to the trial court prior to an announcement by that party that it is ready for trial. (26) This rule serves the salutary purpose "of preventing unnecessary trials and deterring the interruption of a trial on the merits for any objection relating to the institution and presentation of the charge." (27) It would make little sense to wait until after a trial is complete before complaining that the trial should never have taken place because the indictment was defective or should have been dismissed or quashed.
In this case, appellant did file a timely motion to quash the indictment based on two specific grounds: (1) an allegation of an illegal amendment to the indictment; and (2) a claim under Tex. Penal Code §12.45, which provides that "[i]f a court lawfully takes into account an admitted offense, prosecution is barred for that offense." (28) The court held a pretrial hearing, and those were the only two issues discussed and ruled upon. Appellant's counsel stated, during his closing arguments, that the State declined to re-offer its original two-year plea bargain once it had re-indicted appellant. Thus appellant had ample time and opportunity to include any pertinent legal claim of vindictiveness in his pretrial motions. Because appellant did not raise any prosecutorial vindictiveness claim at the pretrial hearing, that claim-based on events that occurred before trial and were known to appellant before trial-was untimely. (29)
B. The claim was not specific.
Nor was appellant's prosecutorial vindictiveness claim, to the degree that it was raised at punishment, specific under Rule 33.1(a). At trial, appellant never asserted that the timing of the re-indictment demonstrated either actual vindictiveness or a reasonable likelihood of misconduct sufficient to raise a presumption of prosecutorial vindictiveness. He used the timing to argue for mitigation of punishment-to prove that he deserved no more than the two-year sentence that the State had originally offered. Appellant took the stand and testified as follows:
Q Now, when you got re-indicted, were you still willing and able to take - willing and wanting to, to take the two original years?
A Yes, sir, I was.
Q Even though you thought it was over with?
A Yes, sir.
Q But in the negotiations then, they wouldn't agree to that, would they?
A No, sir.
Q Now, are you asking the Judge today for the original two years that you agreed to back in 2000?
A Yes, sir, I am.
***
Q And after that [federal civil-rights] trial on February 28th, were you indicted for the same incident?
A Yes, sir, I was.
Q And were you surprised?
A Yes, sir because I thought it was dismissed. So the first thing I felt was this was retaliation.
Q Are you asking the Judge, in order to get this over with, - are you asking him for the two years?
A Yes, sir, I am.
Debra Neil-Terrell, appellant's sister, likewise testified she thought the re-indictment was retaliation, but that a two year sentence would be fair:
Q And why did you want to be here for the sentencing?
A Because I would like to talk to the Judge and speak to him on behalf of my brother, because I truly feel this case is not about justice. It's about revenge.
***
Q Now, are you asking the Court - what are you asking the Court to do today?
A I'm begging the Court to please give my brother the original deal.
Q Of two years?
A Of two years, yes.
Q And do you think justice will be served that way?
A Yes, I do.
Appellant never uttered the words "prosecutorial vindictiveness" at trial. He never made this due-process claim at trial nor did he request the same relief at trial-dismissal of the indictment- that he requested on appeal. (30) What he did assert at trial was that the State acted in bad faith when it refused to re-offer the two-year plea bargain that it had agreed to before it dismissed the indictment in November 2000, which was before the federal civil trial. (31) This was not sufficient to put the trial court or the State on notice that he was raising a legally-cognizable due-process claim and seeking dismissal of the indictment. Appellant's due-process vindictiveness theory on appeal bore no resemblance to the equitable plea he made at trial. His position at the punishment hearing was that any sentence over two years would be unfair. This was not sufficient to put the trial court on notice of a due-process claim.
C. The claim was not ruled on by the trial court.
Because appellant never made his due-process claim in the trial court, that court was never given the opportunity to either hear evidence or rule on it. In Zillender v. State, (32) we stated the two-fold policies of requiring specific objections at trial:
First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. (33)
Because a defendant must prove his prosecutorial vindictiveness claim, the importance of making that claim in the trial court is paramount. Appellant never formally offered any evidence to support this claim, and the State was never given an opportunity to offer evidence to rebut this claim. We stated in Bone v. State: (34)
Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent. (35)
We should ordinarily accord the same opportunity to a prosecutor to explain his actions before a court condemns him as having violated a defendant's due-process rights with a vindictive prosecution and orders dismissal of a felony conviction. (36)
If appellant had properly raised this issue in a written pretrial motion, the State would have been on notice to introduce the federal court judgment (thus obviating a mistake of fact by the court of appeals) (37) and the prosecutor could have testified concerning any new evidence, such as appellant's letters from jail, that had come to his attention since the original dismissal of charges. The trial judge would have had an opportunity to rule upon that motion, based upon all of the evidence and by assessing the credibility of the prosecutor's explanations.
IV.
We conclude that the court of appeals violated ordinary notions of procedural default in reversing the trial court's judgment on a legal claim which was never presented in the trial court. (38) In this case, it was only on appeal that appellant analogized his situation to that in Blackledge. (39) The court of appeals agreed with his analogy:
Even though the charges are exactly the same in this case, the reasoning still applies. The sequence of events was that the State dismissed Neal's charge completely, the civil suit was heard, and then the State refiled the same charge. So in this case, Neal's position changed from being free from all charges to being subjected to a newly-filed charge-hence the "same" charge (as the original one) is "more serious" (than no charge at all). (40)
The court of appeals stated that there was no evidence in the record to overcome the presumption of vindictiveness. (41) This is not surprising because the State was never on notice of the claim, the defense never offered evidence to support that claim, the State was never given an opportunity to offer rebutting evidence, and the trial court never given an opportunity to rule upon that claim.
Because appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review. We therefore reverse the judgment of the court of appeals and affirm the trial court's judgment.
Cochran, J.
Delivered: November 17, 2004
Publish
1.
Neal v. State, 117 S.W.3d 301 (Tex. App. - Texarkana 2003).
2. We granted the State Prosecuting Attorney's two grounds for review:
1) The court of appeals erred by reversing the trial court's judgment on a theory not properly presented to the trial court and upon which the trial court was given no opportunity to rule; and
2) The court of appeals erred in applying a presumption of prosecutorial vindictiveness to the prosecutor's pretrial decision to re-indict, where the record fails to establish a reasonable likelihood of vindictiveness.
Because we agree with the State's first issue, we need not address the State's second ground for review, and we therefore dismiss it.
3. In a bill of exceptions, the prosecutor testified that the decision to re-indict came after the Sheriff's Office complained about the original dismissal. The Rusk County Jail Administrator also testified. He stated that after appellant admitted under oath and in open court that he was in possession of the deadly weapon, his office contacted the district attorney's office about re-indicting appellant.
4. The court of appeals mistakenly believed that the weapons charge "was not re-filed until after Neal went to trial and was awarded damages for violations of his civil rights against Rusk County."
Neal, 117 S.W.3d at 308. In fact, appellant testified that he found out he was awarded damages on April 18th. The State has attached a copy of the federal district court's written judgment to its brief in this Court. We decline to consider that attachment for the truth of its contents, but we do take notice of the fact that this document, verifying the date of the federal judgment as April 18, 2001, could have been introduced into evidence had appellant timely raised his complaint in the proper forum.
5.
Neal, 117 S.W.3d at 308-09.
6.
State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion").
7.
Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980).
8.
Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'") (quoting Hayes, 434 U.S. at 363).
9.
United States v. Goodwin, 457 U.S. 368, 373 (1982).
10.
United States v. Johnson, 171 F.3d 139, 140-41 (2d Cir. 1999).
11.
Goodwin, 457 U.S. at 380-81. See generally 4 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 13.7(c) (1999) (discussing historical evolution of constitutional "prosecutorial vindictiveness" claims). The Supreme Court made clear that it would be quite difficult for a defendant to meet the high burden of demonstrating actual vindictiveness. Goodwin, 457 U.S. at 384 n.19 (quoting government's brief that "the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor's actions through such a demonstration").
12.
Blackledge v. Perry, 417 U.S. 21 (1974). In Goodwin, the Supreme Court explained why the presumption of vindictiveness prong rarely-if ever-applied outside the context of prior conviction, successful appeal, and post-appeal enhanced charging decision:
There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins-and certainly by the time a conviction has been obtained-it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
Goodwin, 457 U.S. at 381.
13.
Goodwin, 457 U.S. at 375; see also United States v. Paramo, 998 F.2d 1212, 1220 (3rd Cir. 1993)("[e]ven if a defendant establishes a realistic likelihood of vindictiveness, however, the government still has an opportunity to proffer legitimate, objective reasons for its conduct").
14.
United States v. Krezdorn, 693 F.2d 1221, 1229 (5th Cir. 1982) (stating that when presumption of prosecutorial vindictiveness applies, "the district court may consider any reasonable explanation for the added charges, so long as the explanation tends to negate an inference of retaliatory motivation").
15.
Id.; see also United States v. Johnson, 91 F.3d 695, 698 (5th Cir. 1996) ("[a] district court's factual findings on prosecutorial vindictiveness are reviewed for clear error and the legal principles which guide the district court are reviewed de novo").
16.
Texas v. McCullough, 475 U.S. 134, 138 (1986).
17.
Goodwin, 457 U.S. at 384 & n.19; see also United States v. Whaley, 830 F.2d 1469, 1479 (7th Cir. 1987) ("[t]o prove actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights").
18.
United States v. Sarracino, 340 F.3d 1148, 1177-79 (10th Cir. 2003); United States v. Moulder, 141 F.3d 568, 572 (5th Cir. 1998) ("[i]n reviewing a prosecutorial vindictiveness claim, 'the court must examine the prosecutor's actions in the context of the entire proceedings.' The defendant must prove the claim by a preponderance of the evidence; and, '[i]f any objective event or combination of events ... should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created'") (citations omitted).
19.
United States v. Contreras, 108 F.3d 1255, 1262-63 (10th Cir. 1997).
20. The dissent argues that this Court does not address the claim that appellant actually raised in the trial court. That is, to some extent, true. The claim that appellant brought in the trial court was his closing argument equitable plea that
the trial judge should not impose any greater sentence than the two-year plea bargain that the prosecutor had once agreed to. That is not a legal claim of prosecutorial vindictiveness. Neither appellant nor the dissent cite any precedent that a plea-bargain offer that is once made, but later retracted, may form the basis of a legal claim of prosecutorial vindictiveness. It is largely for this reason that we have set out the two possible legal bases for a constitutional claim of prosecutorial vindictiveness in Part II.
This Court can address only the decision by the court of appeals, see Tex. R. App. P. 66.1, and that court ordered dismissal of the indictment on a legal claim that was not raised in the trial court.
21.
Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).
22.
See 43A George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 42.78, at 274 (2d ed. 2001).
23. Under Tex. Code Crim. Proc. art. 28.01 preliminary matters include:
(1) Arraignment of the defendant, if such be necessary; and appointment of counsel to represent the defendant, if such be necessary; (2) Pleadings of the defendant; (3) Special pleas, if any; (4) Exceptions to the form or substance of the indictment or information ....
24. Tex. Code Crim. Proc. art. 28.01, § 2, provides that "[w]hen a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits."
25.
Valadez v. State, 408 S.W.2d 109, 111 (Tex. Crim. App. 1966).
26.
Wilson v. State, 398 S.W.2d 291, 293 (Tex. Crim. App. 1966) (op. on reh'g).
27.
Sewell v. United States, 406 F.2d 1289, 1292 (5th Cir. 1969).
28. Appellant claimed that, because the State checked the box "convicted on other charges" on the dismissal form when it originally dismissed the weapons indictment, the trial court must have taken this indictment into account in accepting the plea bargain in the forgery and burglary charges. The trial court rejected this claim because appellant pleaded guilty to those crimes before he was ever indicted for the deadly-weapon offense and there was no evidence that the trial court had taken this uncharged offense into account in accepting the plea bargain on the forgery and burglary charges.
29.
See United States v. Peterson, 233 F.3d 101, 105 (1st Cir. 2000) ("[b]ecause Peterson failed to raise a claim of vindictive prosecution prior to trial, the claim is waived and we review for plain error"); Jarrett v. United States, 822 F.2d 1438, 1442 (7th Cir. 1987) ("Rule 12(b) requires that motions for selective and vindictive prosecution must be brought prior to trial or they will be deemed waived"); United States v. Conkins, 9 F.3d 1377, 1382 (9th Cir. 1993) ("a claim of 'vindictive prosecution' presents primarily factual questions of government motive. However, Sandvig did not raise this issue below, and therefore there is no evidence in the record to support his contention. Therefore, this issue does not present any of the exceptional circumstances that warrant a departure from our rule barring consideration of an issue raised for the first time on appeal").
30. The dissent notes that appellant did request, as alternative relief, that the court of appeals remand the case for a new trial or enforcement of the State's original plea offer, but that alternative relief is nonetheless based upon a legal claim that was never presented to the trial court.
31. In his closing statement, appellant's attorney argued for a two-year sentence, not dismissal of the indictment:
Now, you know, you try- the law is supposed to do justice. The law is supposed to be equal to all. What each one of us interpret as justice makes the difference on what different people get. At one time, me and the Prosecutor in this case were on the same line with Ronnie Joe Neal as to what justice was in this case, and that was two years in the state penitentiary. That's what we all thought justice would be served in this case.
But for some reason, it was dismissed, just up and dismissed by the District Attorney, who undoubtedly thought at that time even two years was too much justice, so they just dismissed. And I think there's been testimony as to why it was dismissed is because the night before the plea, the Sheriff's Office found out he had AIDS, and they took him back and didn't want to bring him back to Rusk County. But then when the federal lawsuit is heard, all at once justice should be 2 to 20 years. Not 2 years, but anywhere between 2 and 20 years.
That is not justice. That is punishing a man for filing suit on violation of his civil rights and not punishing for any criminal things he had done. And that ain't justice, Judge. In no sense of the word is that justice. Now, this man here, I think to resolve this issue, he's in agreement, his sister's in agreement, I'm in agreement, punish him with the original two years that everybody thought was right.
32. 557 S.W.2d 515 (Tex. Crim. App. 1977).
33.
Id. at 517.
34. 77 S.W.3d 828 (Tex. Crim. App. 2002).
35.
Id. at 836.
36.
See United States v. Amberslie, 312 F. Supp.2d 570, 571-72 (S.D.N.Y. 2004) (stating that when defendant provides sufficient circumstances to raise a rebuttable presumption of vindictiveness sufficient to require the Government to respond with evidence of lack of animus, "[s]uch a response may normally be made, at least in the first instance, through affidavits from the relevant prosecutors, after which the burden shifts back to the defense to establish that the proffered response is pretextual or otherwise inadequate").
37. See note 4,
supra.
38.
Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) ("a trial court's decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record").
39. Even then, appellant did not articulate whether his vindictive-prosecution claim was one purportedly raising a presumption of vindictiveness or one of actual animus. Arguably, therefore, the court of appeals reversed the trial court on a theory that was never properly raised, even in the appellate court.
40.
Neal, 117 S.W.3d at 308.
41.
But see United States v. White, 972 F.2d 16, 19 (2d Cir. 1992)("White violated federal and state laws in selling illegal drugs. The state's 1986 decision not to prosecute White is unrelated to the federal Government's 1991 determination that there was probable cause to believe that White had committed narcotics offenses. Even though White can show that his forfeiture claim brought his unprosecuted activities to the prosecutor's attention, this showing does not esta
OF TEXAS
NO. PD-1559-03
RONNIE JOE NEAL, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
RUSK COUNTY
Cochran, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Keasler, Hervey and Holcomb, JJ., joined. Womack, J., filed a dissenting opinion in which, Price and Johnson, JJ., joined.
O P I N I O N
After a court trial, a judge found appellant guilty of possession of a deadly weapon in a penal institution and sentenced him to six years' imprisonment. The court of appeals reversed this conviction and ordered the case dismissed. It concluded that appellant's prosecution-which came after he filed a federal civil-rights suit-raised a presumption of vindictiveness that the State did not overcome at trial. (1) The State asks whether the court of appeals erred by reversing the trial court's judgment on a theory of prosecutorial vindictiveness when that theory was never properly presented to the trial court. (2) We hold that it did err when it reversed the trial court's judgment on a basis never pleaded, proved, or ruled upon in the trial court. We therefore reverse the court of appeals and affirm the judgment of the trial court.
I.
During the summer of 1998, appellant was in the Rusk County jail awaiting trial on charges of forgery and burglary of a habitation. On June 16, 1998, the local jailers caught him with a homemade weapon-a toothbrush sharpened into a stabbing instrument-which he had secreted in his boxer shorts. On July 17, 1998, appellant pleaded guilty, pursuant to a plea bargain, to both the forgery and burglary charges. On September 9, 1998, he was indicted for possession of a deadly weapon in a penal institution, stemming from the June 16th incident. Appellant filed a federal civil-rights lawsuit against Rusk County on May 20, 2000, alleging mistreatment in the jail. Before trial in the civil-rights suit, appellant and the State negotiated a plea bargain for a two-year sentence on the pending weapons charge. Appellant-who was by then in prison serving his burglary sentence-was bench-warranted back to Rusk County for a plea on the weapons charge. But before that plea hearing could take place, Rusk County officials returned appellant to prison because they learned he was HIV positive. Thus, on November 17, 2000, the State dismissed the weapons charge with a notation that "[t]he defendant was convicted in another case."
On February 28, 2001, the federal district court conducted a one-day trial on appellant's civil rights suit. Appellant testified and admitted that he had possessed the homemade weapon in the Rusk County jail. No ruling was made on that date in the federal trial. On March 6, 2001, six days after the federal hearing, the State-at the behest of the Rusk County Sheriff's Office, which had first learned about the dismissal of the weapons charge at the civil-rights trial-re-indicted appellant on the weapons charge. (3) Appellant learned on April 18, 2001, that the federal district judge had awarded him a $6,000 judgment against Rusk County in the civil-rights suit. (4)
The State declined to re-offer its original two-year plea bargain on the weapons case. After the trial court denied his pretrial motions (none of which claimed prosecutorial vindictiveness), appellant waived a jury and requested a court trial. After hearing the State's evidence, the trial court found appellant guilty.
At the punishment hearing, the State put on evidence of: 1) appellant's previous forgery and burglary convictions; 2) appellant's penitentiary packet, which listed four other convictions-one robbery, two burglaries, and one unauthorized use of a motor vehicle; and 3) letters appellant wrote to his girlfriend while in the Rusk County jail in which he asked for her assistance in smuggling a handgun into the jail so he could escape and in obtaining documents to create a new identification after he escaped.
The defense presented evidence that, before trial on the federal civil-rights case, the State and appellant had negotiated a plea bargain for a two-year sentence, but that the State was unwilling to re-offer that bargain after the federal trial. The defense characterized the re-indictment as unfair and retaliatory and asked the trial court to assess the original agreed-to two-year sentence. Appellant's attorney, in closing, stated: "Now, this man here, I think to resolve this issue, he's in agreement, his sister's in agreement, I'm in agreement, punish him with the original two years that everybody thought was right." In its closing, the State asked the court "to review all of the evidence that was introduced today, review the seriousness of the crime, review his criminal record and issue the appropriate sentence."
The trial court assessed punishment at six years in prison.
In his brief to the court of appeals, appellant alleged, for the first time, that his conviction should be reversed and the case dismissed because it "was in violation of his rights under the Due Process Clause of the Fourteenth Amendment because of prosecutorial vindictiveness." He stated that "[t]he prosecutor in this case acted in bad faith and maliciously by re-indicting [him] a second time" and that "there was no other reason except for revenge and retaliation for the prosecutor to pursue a second indictment."
The court of appeals agreed and held that the sequence of events ("the State dismissed Neal's charge completely, the civil suit was heard, and then the State re-filed the same charge") raised a presumption of vindictiveness and that there was no evidence in the trial record to overcome it. (5) It reversed the trial court's judgment and dismissed the indictment.
II.
Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute. Thus, "[i]f the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion." (6) Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State's duty to bring violators to justice. (7) Nevertheless, a decision to prosecute violates due process when criminal charges are brought in retaliation for the defendant's exercise of his legal rights. (8) Thus, the Supreme Court has held that, under specific, limited circumstances, the presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness. (9)
A constitutional claim of prosecutorial vindictiveness may be established in either of two distinct ways: 1) proof of circumstances that pose a "realistic likelihood" of such misconduct sufficient to raise a "presumption of prosecutorial vindictiveness," which the State must rebut or face dismissal of the charges; (10) or 2) proof of "actual vindictiveness"- that is, direct evidence that the prosecutor's charging decision is an unjustifiable penalty resulting solely from the defendant's exercise of a protected legal right. (11)
Under the first prong, if the State pursues increased charges or an enhanced sentence after a defendant is convicted, exercises his legal right to appeal, and obtains a new trial, the Supreme Court has found a presumption of prosecutorial vindictiveness. (12) In the very few situations in which this presumption does apply, it can be overcome by objective evidence in the record justifying the prosecutor's action. (13) The defendant must prove that he was convicted, he appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional enhancements. The burden then shifts to the prosecution to come forward with an explanation for the charging increase that is unrelated to the defendant's exercise of his legal right to appeal. (14) The trial court decides the issue based upon all of the evidence, pro and con, and the credibility of the prosecutor's explanation. (15)
Under the second prong, when the presumption does not apply, the defendant may still obtain relief if he can show actual vindictiveness. (16) To establish that claim, a defendant must prove, with objective evidence, that the prosecutor's charging decision was a "direct and unjustifiable penalty" that resulted "solely from the defendant's exercise of a protected legal right." (17) Under this prong, the defendant shoulders the burden of both production and persuasion, unaided by any legal presumption. (18) Once again, the trial judge decides the ultimate factual issue based upon the evidence and credibility determinations.
Under either prong, "[i]f the defendant is unable to prove actual vindictiveness or a realistic likelihood of vindictiveness, a trial court need not reach the issue of government justification." (19) That is, the State may stand mute unless and until the defendant carries his burden of proof under either prong.
III.
Appellant Forfeited His Prosecutorial Vindictiveness Claim Because He Failed to Comply with Texas Rule of Appellate Procedure 33.1(a).
In this case, appellant never filed a motion to dismiss or quash the indictment based on a claim of prosecutorial vindictiveness. Even at trial, he never argued that his due-process rights had been violated by the re-indictment. As the State Prosecuting Attorney points out, the evidence that the court of appeals relied upon to find prosecutorial vindictiveness was not presented at the hearing on appellant's pretrial motions. Instead, it was presented at the sentencing hearing after he had been found guilty. Even then, appellant offered this evidence solely in mitigation of punishment, not to support a legal due-process claim requiring dismissal of the indictment. (20)
Texas Rule of Appellate Procedure 33.1 provides that, in general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." (21)
In this case the trial court neither disregarded an absolute requirement (such as jurisdiction over the subject or person), nor denied appellant a waivable-only right (such as the right to counsel or a jury trial), so the only issue is whether appellant complied with Rule 33.1(a). He did not. Appellant's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, appellant never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The State was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness.
A. The claim was not timely.
The Texas Code of Criminal Procedure requires that, if a defendant seeks dismissal of an indictment as the remedy for his constitutional or statutory claim, the Rule 33.1 requirement of timeliness means that the claim generally must be raised and ruled upon before trial. (22) Under Article 28.01, a trial court must determine such "preliminary matters" at a pre-trial hearing. (23) All preliminary matters which are not raised at the pre-trial hearing, are generally considered forfeited. (24) A motion to set aside, dismiss, or quash an indictment should be made at the first opportunity, (25) and must be presented to the trial court prior to an announcement by that party that it is ready for trial. (26) This rule serves the salutary purpose "of preventing unnecessary trials and deterring the interruption of a trial on the merits for any objection relating to the institution and presentation of the charge." (27) It would make little sense to wait until after a trial is complete before complaining that the trial should never have taken place because the indictment was defective or should have been dismissed or quashed.
In this case, appellant did file a timely motion to quash the indictment based on two specific grounds: (1) an allegation of an illegal amendment to the indictment; and (2) a claim under Tex. Penal Code §12.45, which provides that "[i]f a court lawfully takes into account an admitted offense, prosecution is barred for that offense." (28) The court held a pretrial hearing, and those were the only two issues discussed and ruled upon. Appellant's counsel stated, during his closing arguments, that the State declined to re-offer its original two-year plea bargain once it had re-indicted appellant. Thus appellant had ample time and opportunity to include any pertinent legal claim of vindictiveness in his pretrial motions. Because appellant did not raise any prosecutorial vindictiveness claim at the pretrial hearing, that claim-based on events that occurred before trial and were known to appellant before trial-was untimely. (29)
B. The claim was not specific.
Nor was appellant's prosecutorial vindictiveness claim, to the degree that it was raised at punishment, specific under Rule 33.1(a). At trial, appellant never asserted that the timing of the re-indictment demonstrated either actual vindictiveness or a reasonable likelihood of misconduct sufficient to raise a presumption of prosecutorial vindictiveness. He used the timing to argue for mitigation of punishment-to prove that he deserved no more than the two-year sentence that the State had originally offered. Appellant took the stand and testified as follows:
Q Now, when you got re-indicted, were you still willing and able to take - willing and wanting to, to take the two original years?
A Yes, sir, I was.
Q Even though you thought it was over with?
A Yes, sir.
Q But in the negotiations then, they wouldn't agree to that, would they?
A No, sir.
Q Now, are you asking the Judge today for the original two years that you agreed to back in 2000?
A Yes, sir, I am.
***
Q And after that [federal civil-rights] trial on February 28th, were you indicted for the same incident?
A Yes, sir, I was.
Q And were you surprised?
A Yes, sir because I thought it was dismissed. So the first thing I felt was this was retaliation.
Q Are you asking the Judge, in order to get this over with, - are you asking him for the two years?
A Yes, sir, I am.
Debra Neil-Terrell, appellant's sister, likewise testified she thought the re-indictment was retaliation, but that a two year sentence would be fair:
Q And why did you want to be here for the sentencing?
A Because I would like to talk to the Judge and speak to him on behalf of my brother, because I truly feel this case is not about justice. It's about revenge.
***
Q Now, are you asking the Court - what are you asking the Court to do today?
A I'm begging the Court to please give my brother the original deal.
Q Of two years?
A Of two years, yes.
Q And do you think justice will be served that way?
A Yes, I do.
Appellant never uttered the words "prosecutorial vindictiveness" at trial. He never made this due-process claim at trial nor did he request the same relief at trial-dismissal of the indictment- that he requested on appeal. (30) What he did assert at trial was that the State acted in bad faith when it refused to re-offer the two-year plea bargain that it had agreed to before it dismissed the indictment in November 2000, which was before the federal civil trial. (31) This was not sufficient to put the trial court or the State on notice that he was raising a legally-cognizable due-process claim and seeking dismissal of the indictment. Appellant's due-process vindictiveness theory on appeal bore no resemblance to the equitable plea he made at trial. His position at the punishment hearing was that any sentence over two years would be unfair. This was not sufficient to put the trial court on notice of a due-process claim.
C. The claim was not ruled on by the trial court.
Because appellant never made his due-process claim in the trial court, that court was never given the opportunity to either hear evidence or rule on it. In Zillender v. State, (32) we stated the two-fold policies of requiring specific objections at trial:
First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. (33)
Because a defendant must prove his prosecutorial vindictiveness claim, the importance of making that claim in the trial court is paramount. Appellant never formally offered any evidence to support this claim, and the State was never given an opportunity to offer evidence to rebut this claim. We stated in Bone v. State: (34)
Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent. (35)
We should ordinarily accord the same opportunity to a prosecutor to explain his actions before a court condemns him as having violated a defendant's due-process rights with a vindictive prosecution and orders dismissal of a felony conviction. (36)
If appellant had properly raised this issue in a written pretrial motion, the State would have been on notice to introduce the federal court judgment (thus obviating a mistake of fact by the court of appeals) (37) and the prosecutor could have testified concerning any new evidence, such as appellant's letters from jail, that had come to his attention since the original dismissal of charges. The trial judge would have had an opportunity to rule upon that motion, based upon all of the evidence and by assessing the credibility of the prosecutor's explanations.
IV.
We conclude that the court of appeals violated ordinary notions of procedural default in reversing the trial court's judgment on a legal claim which was never presented in the trial court. (38) In this case, it was only on appeal that appellant analogized his situation to that in Blackledge. (39) The court of appeals agreed with his analogy:
Even though the charges are exactly the same in this case, the reasoning still applies. The sequence of events was that the State dismissed Neal's charge completely, the civil suit was heard, and then the State refiled the same charge. So in this case, Neal's position changed from being free from all charges to being subjected to a newly-filed charge-hence the "same" charge (as the original one) is "more serious" (than no charge at all). (40)
The court of appeals stated that there was no evidence in the record to overcome the presumption of vindictiveness. (41) This is not surprising because the State was never on notice of the claim, the defense never offered evidence to support that claim, the State was never given an opportunity to offer rebutting evidence, and the trial court never given an opportunity to rule upon that claim.
Because appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review. We therefore reverse the judgment of the court of appeals and affirm the trial court's judgment.
Cochran, J.
Delivered: November 17, 2004
Publish
1.
Neal v. State, 117 S.W.3d 301 (Tex. App. - Texarkana 2003).
2. We granted the State Prosecuting Attorney's two grounds for review:
1) The court of appeals erred by reversing the trial court's judgment on a theory not properly presented to the trial court and upon which the trial court was given no opportunity to rule; and
2) The court of appeals erred in applying a presumption of prosecutorial vindictiveness to the prosecutor's pretrial decision to re-indict, where the record fails to establish a reasonable likelihood of vindictiveness.
Because we agree with the State's first issue, we need not address the State's second ground for review, and we therefore dismiss it.
3. In a bill of exceptions, the prosecutor testified that the decision to re-indict came after the Sheriff's Office complained about the original dismissal. The Rusk County Jail Administrator also testified. He stated that after appellant admitted under oath and in open court that he was in possession of the deadly weapon, his office contacted the district attorney's office about re-indicting appellant.
4. The court of appeals mistakenly believed that the weapons charge "was not re-filed until after Neal went to trial and was awarded damages for violations of his civil rights against Rusk County."
Neal, 117 S.W.3d at 308. In fact, appellant testified that he found out he was awarded damages on April 18th. The State has attached a copy of the federal district court's written judgment to its brief in this Court. We decline to consider that attachment for the truth of its contents, but we do take notice of the fact that this document, verifying the date of the federal judgment as April 18, 2001, could have been introduced into evidence had appellant timely raised his complaint in the proper forum.
5.
Neal, 117 S.W.3d at 308-09.
6.
State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion").
7.
Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980).
8.
Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'") (quoting Hayes, 434 U.S. at 363).
9.
United States v. Goodwin, 457 U.S. 368, 373 (1982).
10.
United States v. Johnson, 171 F.3d 139, 140-41 (2d Cir. 1999).
11.
Goodwin, 457 U.S. at 380-81. See generally 4 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 13.7(c) (1999) (discussing historical evolution of constitutional "prosecutorial vindictiveness" claims). The Supreme Court made clear that it would be quite difficult for a defendant to meet the high burden of demonstrating actual vindictiveness. Goodwin, 457 U.S. at 384 n.19 (quoting government's brief that "the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor's actions through such a demonstration").
12.
Blackledge v. Perry, 417 U.S. 21 (1974). In Goodwin, the Supreme Court explained why the presumption of vindictiveness prong rarely-if ever-applied outside the context of prior conviction, successful appeal, and post-appeal enhanced charging decision:
There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins-and certainly by the time a conviction has been obtained-it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
Goodwin, 457 U.S. at 381.
13.
Goodwin, 457 U.S. at 375; see also United States v. Paramo, 998 F.2d 1212, 1220 (3rd Cir. 1993)("[e]ven if a defendant establishes a realistic likelihood of vindictiveness, however, the government still has an opportunity to proffer legitimate, objective reasons for its conduct").
14.
United States v. Krezdorn, 693 F.2d 1221, 1229 (5th Cir. 1982) (stating that when presumption of prosecutorial vindictiveness applies, "the district court may consider any reasonable explanation for the added charges, so long as the explanation tends to negate an inference of retaliatory motivation").
15.
Id.; see also United States v. Johnson, 91 F.3d 695, 698 (5th Cir. 1996) ("[a] district court's factual findings on prosecutorial vindictiveness are reviewed for clear error and the legal principles which guide the district court are reviewed de novo").
16.
Texas v. McCullough, 475 U.S. 134, 138 (1986).
17.
Goodwin, 457 U.S. at 384 & n.19; see also United States v. Whaley, 830 F.2d 1469, 1479 (7th Cir. 1987) ("[t]o prove actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights").
18.
United States v. Sarracino, 340 F.3d 1148, 1177-79 (10th Cir. 2003); United States v. Moulder, 141 F.3d 568, 572 (5th Cir. 1998) ("[i]n reviewing a prosecutorial vindictiveness claim, 'the court must examine the prosecutor's actions in the context of the entire proceedings.' The defendant must prove the claim by a preponderance of the evidence; and, '[i]f any objective event or combination of events ... should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created'") (citations omitted).
19.
United States v. Contreras, 108 F.3d 1255, 1262-63 (10th Cir. 1997).
20. The dissent argues that this Court does not address the claim that appellant actually raised in the trial court. That is, to some extent, true. The claim that appellant brought in the trial court was his closing argument equitable plea that
the trial judge should not impose any greater sentence than the two-year plea bargain that the prosecutor had once agreed to. That is not a legal claim of prosecutorial vindictiveness. Neither appellant nor the dissent cite any precedent that a plea-bargain offer that is once made, but later retracted, may form the basis of a legal claim of prosecutorial vindictiveness. It is largely for this reason that we have set out the two possible legal bases for a constitutional claim of prosecutorial vindictiveness in Part II.
This Court can address only the decision by the court of appeals, see Tex. R. App. P. 66.1, and that court ordered dismissal of the indictment on a legal claim that was not raised in the trial court.
21.
Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).
22.
See 43A George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 42.78, at 274 (2d ed. 2001).
23. Under Tex. Code Crim. Proc. art. 28.01 preliminary matters include:
(1) Arraignment of the defendant, if such be necessary; and appointment of counsel to represent the defendant, if such be necessary; (2) Pleadings of the defendant; (3) Special pleas, if any; (4) Exceptions to the form or substance of the indictment or information ....
24. Tex. Code Crim. Proc. art. 28.01, § 2, provides that "[w]hen a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits."
25.
Valadez v. State, 408 S.W.2d 109, 111 (Tex. Crim. App. 1966).
26.
Wilson v. State, 398 S.W.2d 291, 293 (Tex. Crim. App. 1966) (op. on reh'g).
27.
Sewell v. United States, 406 F.2d 1289, 1292 (5th Cir. 1969).
28. Appellant claimed that, because the State checked the box "convicted on other charges" on the dismissal form when it originally dismissed the weapons indictment, the trial court must have taken this indictment into account in accepting the plea bargain in the forgery and burglary charges. The trial court rejected this claim because appellant pleaded guilty to those crimes before he was ever indicted for the deadly-weapon offense and there was no evidence that the trial court had taken this uncharged offense into account in accepting the plea bargain on the forgery and burglary charges.
29.
See United States v. Peterson, 233 F.3d 101, 105 (1st Cir. 2000) ("[b]ecause Peterson failed to raise a claim of vindictive prosecution prior to trial, the claim is waived and we review for plain error"); Jarrett v. United States, 822 F.2d 1438, 1442 (7th Cir. 1987) ("Rule 12(b) requires that motions for selective and vindictive prosecution must be brought prior to trial or they will be deemed waived"); United States v. Conkins, 9 F.3d 1377, 1382 (9th Cir. 1993) ("a claim of 'vindictive prosecution' presents primarily factual questions of government motive. However, Sandvig did not raise this issue below, and therefore there is no evidence in the record to support his contention. Therefore, this issue does not present any of the exceptional circumstances that warrant a departure from our rule barring consideration of an issue raised for the first time on appeal").
30. The dissent notes that appellant did request, as alternative relief, that the court of appeals remand the case for a new trial or enforcement of the State's original plea offer, but that alternative relief is nonetheless based upon a legal claim that was never presented to the trial court.
31. In his closing statement, appellant's attorney argued for a two-year sentence, not dismissal of the indictment:
Now, you know, you try- the law is supposed to do justice. The law is supposed to be equal to all. What each one of us interpret as justice makes the difference on what different people get. At one time, me and the Prosecutor in this case were on the same line with Ronnie Joe Neal as to what justice was in this case, and that was two years in the state penitentiary. That's what we all thought justice would be served in this case.
But for some reason, it was dismissed, just up and dismissed by the District Attorney, who undoubtedly thought at that time even two years was too much justice, so they just dismissed. And I think there's been testimony as to why it was dismissed is because the night before the plea, the Sheriff's Office found out he had AIDS, and they took him back and didn't want to bring him back to Rusk County. But then when the federal lawsuit is heard, all at once justice should be 2 to 20 years. Not 2 years, but anywhere between 2 and 20 years.
That is not justice. That is punishing a man for filing suit on violation of his civil rights and not punishing for any criminal things he had done. And that ain't justice, Judge. In no sense of the word is that justice. Now, this man here, I think to resolve this issue, he's in agreement, his sister's in agreement, I'm in agreement, punish him with the original two years that everybody thought was right.
32. 557 S.W.2d 515 (Tex. Crim. App. 1977).
33.
Id. at 517.
34. 77 S.W.3d 828 (Tex. Crim. App. 2002).
35.
Id. at 836.
36.
See United States v. Amberslie, 312 F. Supp.2d 570, 571-72 (S.D.N.Y. 2004) (stating that when defendant provides sufficient circumstances to raise a rebuttable presumption of vindictiveness sufficient to require the Government to respond with evidence of lack of animus, "[s]uch a response may normally be made, at least in the first instance, through affidavits from the relevant prosecutors, after which the burden shifts back to the defense to establish that the proffered response is pretextual or otherwise inadequate").
37. See note 4,
supra.
38.
Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) ("a trial court's decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record").
39. Even then, appellant did not articulate whether his vindictive-prosecution claim was one purportedly raising a presumption of vindictiveness or one of actual animus. Arguably, therefore, the court of appeals reversed the trial court on a theory that was never properly raised, even in the appellate court.
40.
Neal, 117 S.W.3d at 308.
41.
But see United States v. White, 972 F.2d 16, 19 (2d Cir. 1992)("White violated federal and state laws in selling illegal drugs. The state's 1986 decision not to prosecute White is unrelated to the federal Government's 1991 determination that there was probable cause to believe that White had committed narcotics offenses. Even though White can show that his forfeiture claim brought his unprosecuted activities to the prosecutor's attention, this showing does not esta
Monday, October 09, 2006
Juan Garcia "Feelin the Byte". Prevarication is not an attribute S TX "Believes In"
Juan is Using HD #33 AS A STEPPING STONE. ASK HIM TO COMMIT TO PUTTING THE TIME IN TO ACQUIRE THE NEEDED SENIORITY TO ACCOMPLISH GOALS FOR SOUTH TEXAS.
Mikal Watts? Who knows why the Good Government PAC gave the money and made the ads. It seems that it is hurting Juan more than helping him. maybe that is WATT Mikal intended.
IMO Juan Garcia should distance himself from the ads. But Juan is probably on the same page with the good Governnment PAC and the polarizing ads.
Payed? or what?
Posted on October 8, 2006 at 09:16:51 AM by cabalas
So jk and wife...
How much did seamen pay you guys to write and blast juan g.?
Or does you wife just like seamen?
-------------------------------------------------------------------------------------------------
Juan Garcia is not a Democrat. He is a Progressive.
Juan Lied From The Get Go.
Posted on October 8, 2006 at 11:17:12 AM by Jaime Kenedeno
We dont like Seamen and we dont like people who lie.
Not a choice IMO.
Juan's wife works for KFATSO. The only thing he is passionate about is the Homeowner's insurance on the island. I wonder why?
Juan should have been truthful.
You might want to ask him about intlellectual property.
Payed? Nobody pays us to write on this board. We can turn up the volume should you guys choose.
===================================
The fact that he frequents the SPTX Radio Station and Advertises in the SPTX Paper......
Posted on October 8, 2006 at 11:20:23 AM by Jaime Kenedeno
and the fact that he is a military man just do not reconconcile with each other.
Just doesnt make sense.
-------------------------------------
Re(1): The fact that he frequents the SPTX Radio Station and Advertises in the SPTX Paper......
Posted on October 8, 2006 at 06:20:29 PM by kj
What makes you so good jaime?
What have you done or could you do better than juan g.?
He works harder than you and homero.
Don't you still live at your parents house? Do you have a job other than doing homers bidding? Get real you are nothing more than a political prost.
-----------------------------------
That trash Christain Archer is Putting Out is costing Juan Garcia even on the Island.
Posted on October 8, 2006 at 11:00:33 PM by Jaime Kenedeno
Juan Garcia and Joe Hall live on the Island and their neighbors won't even vote for Juan. The military vote is second guessing due to the company of Companeros Juan is hangin with these days. Also, FYI I have my own home but it is not on the Island. Average people cant afford to live on the Island. Go run for office over there with that Menendez group. You guys dont got it and never will here in South Texas. Go do your business in San Antonio.
-----------------------------------
You are Jealous Rowland. A Kelleyized Socialista Anti American Air Brown Nosing For WATT
Posted on October 8, 2006 at 10:49:52 PM by Jaime Kenedeno
"What makes me so good?"
I can back up WATT I write. That is WATT makes me so good.
A JOB?
Do you pay my bills?
Do I ask you for anything?
My JOB Opportunities have been modified.
It is called being "BLACKBALLED".
But I never will relax and enjoy it.
Again it is your info Rowland.
Shall we blast your secrets to the world?
Why dont you got the balls to talk your crap to my face. I live at my parent's house cuz it is my house and my Father was ill. Well today he died.
And I run circles around all of these guys, i am smarter and much more prepared than you guys would ever estimate.
Political Prostitutes get paid and unlike them I enjoy WATT I do.
It aint ever gonna be about money for me like it is for the Andrades and the Rowlandos and all of you other brown nosing puds.
So you JUANA blast?
You found just the right guy.
Juan Garcia is a lying, decieving and backstabbing piece of work with a pretty face and a surfbord.
SO WATT.
Just wait and see who gets the word out now.
Mikal Watts? Who knows why the Good Government PAC gave the money and made the ads. It seems that it is hurting Juan more than helping him. maybe that is WATT Mikal intended.
IMO Juan Garcia should distance himself from the ads. But Juan is probably on the same page with the good Governnment PAC and the polarizing ads.
Payed? or what?
Posted on October 8, 2006 at 09:16:51 AM by cabalas
So jk and wife...
How much did seamen pay you guys to write and blast juan g.?
Or does you wife just like seamen?
-------------------------------------------------------------------------------------------------
Juan Garcia is not a Democrat. He is a Progressive.
Juan Lied From The Get Go.
Posted on October 8, 2006 at 11:17:12 AM by Jaime Kenedeno
We dont like Seamen and we dont like people who lie.
Not a choice IMO.
Juan's wife works for KFATSO. The only thing he is passionate about is the Homeowner's insurance on the island. I wonder why?
Juan should have been truthful.
You might want to ask him about intlellectual property.
Payed? Nobody pays us to write on this board. We can turn up the volume should you guys choose.
===================================
The fact that he frequents the SPTX Radio Station and Advertises in the SPTX Paper......
Posted on October 8, 2006 at 11:20:23 AM by Jaime Kenedeno
and the fact that he is a military man just do not reconconcile with each other.
Just doesnt make sense.
-------------------------------------
Re(1): The fact that he frequents the SPTX Radio Station and Advertises in the SPTX Paper......
Posted on October 8, 2006 at 06:20:29 PM by kj
What makes you so good jaime?
What have you done or could you do better than juan g.?
He works harder than you and homero.
Don't you still live at your parents house? Do you have a job other than doing homers bidding? Get real you are nothing more than a political prost.
-----------------------------------
That trash Christain Archer is Putting Out is costing Juan Garcia even on the Island.
Posted on October 8, 2006 at 11:00:33 PM by Jaime Kenedeno
Juan Garcia and Joe Hall live on the Island and their neighbors won't even vote for Juan. The military vote is second guessing due to the company of Companeros Juan is hangin with these days. Also, FYI I have my own home but it is not on the Island. Average people cant afford to live on the Island. Go run for office over there with that Menendez group. You guys dont got it and never will here in South Texas. Go do your business in San Antonio.
-----------------------------------
You are Jealous Rowland. A Kelleyized Socialista Anti American Air Brown Nosing For WATT
Posted on October 8, 2006 at 10:49:52 PM by Jaime Kenedeno
"What makes me so good?"
I can back up WATT I write. That is WATT makes me so good.
A JOB?
Do you pay my bills?
Do I ask you for anything?
My JOB Opportunities have been modified.
It is called being "BLACKBALLED".
But I never will relax and enjoy it.
Again it is your info Rowland.
Shall we blast your secrets to the world?
Why dont you got the balls to talk your crap to my face. I live at my parent's house cuz it is my house and my Father was ill. Well today he died.
And I run circles around all of these guys, i am smarter and much more prepared than you guys would ever estimate.
Political Prostitutes get paid and unlike them I enjoy WATT I do.
It aint ever gonna be about money for me like it is for the Andrades and the Rowlandos and all of you other brown nosing puds.
So you JUANA blast?
You found just the right guy.
Juan Garcia is a lying, decieving and backstabbing piece of work with a pretty face and a surfbord.
SO WATT.
Just wait and see who gets the word out now.
Tuesday, October 03, 2006
Dreams of Elaborate (elastic) Policies and Shifting Sands of Due Process. How many "DUBBLE TALKS" can you find in the Paragraphs Below?
The Response Article to this should be entertaining.
Mike Westergren should recuse as well. Will the Regents heed our words?
Probably not.
Del Mar Electronic Anonymous Input Forum: WATT will happen 2 morrow @ the Regents Meeting with CG who LOVES TA. Also, there is an individual (per Cox v. DMC) Who's Welfare is Threatened
Mike Westergren should recuse as well. Will the Regents heed our words?
Probably not.
Del Mar Electronic Anonymous Input Forum: WATT will happen 2 morrow @ the Regents Meeting with CG who LOVES TA. Also, there is an individual (per Cox v. DMC) Who's Welfare is Threatened
Monday, October 02, 2006
Welcome back my friend to the show that never ends, we are so glad you could attend....
Anti "American Air" RAIDio Polluting the Body of Christ. "We Know, We're From Here"
Anti "American Air" Radio Polluting the Body of Christ & Subversive Faux Publication using Marxist tactic controlling the press & flow of information
Many of you asked how someone like Sanctus Vilitas came to power. This is the lesson that all must learn. It is survival to the free society that must be established.
Vilitas came to power by using a Marxist tactic of controlling the press and the flow of information. It works my friends. The theory is simple. Control the information, the language, and you control the masses.
Even if you dont post it you read it!
Where is the First Amendment now?
Their once thrivin venue (STX Chisme), is now deserted.
Wonder why?
"We Know, We're from here"
--
Kenedeno & Associates
Anti American Air
Without Shame?
Why did they mask themselves?
Why do they want to claim the Democratic Name?
WATT does the DINO conspire to gain
at the expense of our neighbor's pain
They were sent down from the North with a "Points of Unity" Campaign
To piggy back our "work product" and say it is their own, is that not WATT they claim?
Now we will see the Beach Blockade succeed cuz for the JOB they bought the wrong brain.
And still they will have no shame.
You will see and I already know, their word is meaningless. Their Articles are very boring and slow.
After all, "We're From Here".....
And such is life in South Texas
True to our roots ......
The People Reap WATT they Sew.
That is a promise I quote.....
"We know" posted by Jaime Kenedeño
Thursday, August 10, 2006
Saturday, June 24, 2006
Friday, June 23, 2006
Saturday, June 17, 2006
Thursday, June 15, 2006
Wednesday, June 14, 2006
Saturday, June 10, 2006
Tuesday, May 30, 2006
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