THE VALUE OF A DIRECT VERDICT STRATEGY

The John T. Floyd law firm was recently retained to represent a client
charged with sexual assault pursuant to Tex. Penal Code § 22.011. The
client is a physical therapist who operates a small pain relief center in Harris
County. A patient leveled the accusation that our client inappropriately
“fondled” and inserted his finger in her vagina during a physical massage
session. The District Attorney’s requested, and received, a grand jury
indictment charging our client as a “health care services provider.” See: §
22.011(b)(9).

Our firm initiated both a factual and legal investigation of the charge. It is
well-established that an attorney has a fundamental duty under the Sixth
Amendment to investigate both the facts and law of a case. See: Harrison v.
Quarterman, 496 F.3d 419 (5th Cir. 2007).

The first area of our legal investigation began with the indictment. All the
elements of an offense must be alleged in the indictment. An indictment that
tracks the statutory language of the offense is generally sufficient. See:
Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App. 1986). Rarely will an
indictment that tracks the language of the penal statute be declared legally
insufficient. See: Bamhart v. State, 648 S.W.2d 696, 699 (Tex.Crim.App.
1983).

The procedural vehicle for challenging the sufficiency of an indictment is a

motion to quash. The Texas Court of Criminal Appeals has held that the
purpose of this motion is to apprise the trial court of any defects in the
charging instrument that are not obvious on its face. See: Green v. State, 533
S.W.2d 769 (Tex.Crim.App. 1976).

A successful motion to quash generally results in the District Attorney filing

an amended information to correct the defect in the charging instrument.

The second area of our legal investigation turned to the statute itself. §
22.011 offers a fertile field for legal investigation. The statute provides:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person
by any means, without that person's consent;
(B) causes the penetration of the mouth of another person by the sexual
organ of the actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's
consent, to contact or penetrate the mouth, anus, or sexual organ of
another person, including the actor; or

(2) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of a child by any
means;
(B) causes the penetration of the mouth of a child by the sexual organ of
the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth,
anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ
of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of
another person, including the actor.

(b) A sexual assault under Subsection (a)(1) is without the consent of the
other person if:
(1) the actor compels the other person to submit or participate by the use
of physical force or violence;
(2) the actor compels the other person to submit or participate by
threatening to use force or violence against the other person, and the other
person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other
person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other
person is at the time of the sexual assault incapable either of appraising
the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other
person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person's power to
appraise or control the other person's conduct by administering any
substance without the other person's knowledge;
(7) the actor compels the other person to submit or participate by
threatening to use force or violence against any person, and the other
person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or
participate;
(9) the actor is a mental health services provider or a health care services
provider who causes the other person, who is a patient or former patient of
the actor, to submit or participate by exploiting the other person's
emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or
participate by exploiting the other person's emotional dependency on the
clergyman in the clergyman's professional character as spiritual adviser;
or
(11) the actor is an employee of a facility where the other person is a
resident, unless the employee and resident are formally or informally
married to each other under Chapter 2,
Family Code.

(c) In this section:

(1) "Child" means a person younger than 17 years of age who is not the
spouse of the actor.
(2) "Spouse" means a person who is legally married to another.
(3) "Health care services provider" means:
(A) a physician licensed under Subtitle B, Title 3, Occupations Code;
(B) a chiropractor licensed under Chapter 201, Occupations Code;
(C) a physical therapist licensed under Chapter 453, Occupations Code;
(D) a physician assistant licensed under Chapter 204, Occupations Code;
or
(E) a registered nurse, a vocational nurse, or an advanced practice nurse
licensed under Chapter 301, Occupations Code.
(4) "Mental health services provider" means an individual, licensed or
unlicensed, who performs or purports to perform mental health services,
including a:
(A) licensed social worker as defined by Section 505.002, Occupations
Code;
(B) chemical dependency counselor as defined by Section 504.001,
Occupations Code;
(C) licensed professional counselor as defined by Section 503.002,
Occupations Code;
(D) licensed marriage and family therapist as defined by Section 502.002,
Occupations Code;
(E) member of the clergy;
(F) psychologist offering psychological services as defined by Section
501.003, Occupations Code; or
(G) special officer for mental health assignment certified under Section
1701.404, Occupations Code.
(5) "Employee of a facility" means a person who is an employee of a
facility defined by Section 250.001, Health and Safety Code, or any other
person who provides services for a facility for compensation, including a
contract laborer.

(d) It is a defense to prosecution under Subsection (a)(2) that the conduct

consisted of medical care for the child and did not include any contact
between the anus or sexual organ of the child and the mouth, anus, or
sexual organ of the actor or a third party.

(e) It is an affirmative defense to prosecution under Subsection (a)(2) that:

(1) the actor was not more than three years older than the victim and at the
time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, to
register for life as a sex offender; or
(B) was not a person who under Chapter 62, Code of Criminal Procedure,
had a reportable conviction or adjudication for an offense under this
section; and
(2) the victim:
(A) was a child of 14 years of age or older; and
(B) was not a person whom the actor was prohibited from marrying or
purporting to marry or with whom the actor was prohibited from living
under the appearance of being married under Section 25.01.

(f) An offense under this section is a felony of the second degree, except
that an offense under this section is a felony of the first degree if the victim
was a person whom the actor was prohibited from marrying or purporting
to marry or with whom the actor was prohibited from living under the
appearance of being married under Section 25.01.

Our client was charged under Subsection (b)(9) of § 22.011 as a “health care
services provider”; namely, a physical therapist. Subsection (c)(3)(C)
imposed upon the state the essential burden of proving that our client was
licensed under Chapter 453 of the Occupation Code.

Christopher Carlson, my co-counsel, Billy Sinclair, my para-legal, and I

faced a critical preliminary decision. We could have moved to quash the
indictment because the District Attorney had not charged in the indictment
that our client was a “licensed” physical therapist. The trial court would have
conducted a hearing, forcing the State to prove the license issue. If the State
could not establish the license issue, the trial court would have granted the
motion. The District Attorney’s Office would then have amended the
indictment removing the “health care services provider” element.

We elected to pursue a motion for directed verdict strategy. A motion for an

instructed or directed verdict is a challenge to the legal sufficiency of the
evidence. See: Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1987)
[“A challenge to the trial judge’s ruling on a motion for instructed verdict is
in actuality a challenge to the sufficiency of the evidence to support the
conviction.”]. This language was adopted as the rule. See: Cooke v. State,
858 S.W.2d 467, 470 (Tex.Crim.App. 1993). See also: Williams v. State,
937 S.W.2d 479, 482 (Tex.Crim.App. 1996)[motion for directed verdict is a
challenge to legal sufficiency of evidence].

There are differences between a legal sufficiency and factual sufficiency

challenges. See: Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000).
A legal sufficiency is viewed in a light most favorable to the prosecution
when based on the claim that the State failed to prove all the essential
elements of the crime charged beyond a reasonable doubt. See: King v.
State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).

We researched and prepared a hard copy of a motion for directed verdict that
we submitted after the State presented in its case in chief. As we had
anticipated, the State did not present any evidence that our client was a
“licensed” physical therapist under Chapter 453 of the Occupation Code. It
was a fatal tactical decision. The trial judge asked the District Attorney’s
Office if it had any “evidence” to establish that our client was a “licensed”
physical therapist, and when the District Attorney’s Office was unable to
produce that evidence, the judge granted our motion for directed verdict and
discharged the jury.

We had not hinged our case solely on the motion for directed verdict
strategy. We conducted an extensive factual investigation. We had several
witnesses ready to give testimony that would have contradicted significant
portions of the victim’s testimony. We also conducted an aggressive cross-
examination of the State’s two witnesses: the victim and investigating
officer. A post-verdict poll of the jurors revealed that our cross-examination
had already created significant reasonable doubt in the minds of several
jurors.

But it was our time-honored rule to go to the indictment and statute as the
starting points of our legal investigation that carried the day. Regardless of
our effective an attorney may be at cross-examination and other defensive
procedures during the trial itself, it is always the legal and factual
investigation before trial that prepares a defense attorney for any eventuality.
In this instance our pretrial investigation precluded us from having to subject
our witnesses to cross-examination or from having to make the critical
decision of whether to have our client testify or not.
The lesson we offer here is patience. Force the State to prove what it charges
in its indictment. A motion to quash has its procedural value, but it should
never be used to give the State an opportunity to amend the indictment when
there is a reasonable assumption that the State cannot prove all the elements
charged in that indictment.