Victorick, Ex Parte David Lee v. State

Opinion

PD-0030-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/6/2015 5:50:35 PM Accepted 2/11/2015 1:48:01 PM ABEL ACOSTA NO. PD-0030-15 CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

Ex parte DAVID LEE VICTORICK, Petitioner

AMENDED PETITION FOR DISCRETIONARY REVIEW (Oral Argument Not Requested)

On Discretionary Review from Docket Number 9-14-00112-CR Ninth Court of Appeals, Beaumont

Trial Court Cause Number 13-11-12323-CR 435TH Judicial District Montgomery County, Texas

Submitted by:

L.T. “Butch” Bradt #02841600 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478-3500 (281) 201-0700 Fax: (281) 201-1202 ltbradt@flash.net February 11, 2015 Attorney for David Lee Victorick IDENTITY OF PARTIES

Petitioner: David Lee Victorick

Counsel for Petitioner at Trial Court and on Appeal: L.T. “Butch” Bradt #02841600 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478-3500 (281) 201-0700 Fax: (281) 201-1202 ltbradt@flash.net

Respondent: The State of Texas

Counsel for the State of Texas: Honorable Brett Ligon, District Attorney William Delmore, Ass’t District Attorney 207 W. Phillips, 2nd Floor Conroe, Texas 77301 (936) 539-7800 Fax: (936) 760-6940 bill.delmore@mctx.org

Postconviction Litigation Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 (512) 936-1400 const_claims@texasattorneygeneral.gov

State Prosecuting Attorney P.O. Box 13046 Austin, Texas 78711-3046 information@spa.texas.gov

Trial Court Judge: Honorable Michael T. Seiler

i TABLE OF CONTENTS Page

IDENTITY OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

QUESTIONS OR GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . 2

QUESTION NO. ONE: Petitioner is never charged by complaint but he is placed on bond 77 days before he is indicted. The conditions of bond are oppressive and onerous, depriving Petitioner of, inter alia, First, Second, Fifth and Fourteenth Amendment rights. Does this constitute punishment for Fifth Amendment Double Jeopardy purposes?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

QUESTION NO. TWO: Can conditions of bond be so oppressive and onerous as to constitute punishment for Fifth Amendment Double Jeopardy purposes, especially when they are imposed before any criminal charge is brought? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT AND AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE NO. ONE RESTATED: A Defendant is never charged by complaint or information but is placed on bond 77 days before he

ii is indicted. The conditions of bond are oppressive and onerous, depriving the Defendant of First, Second, Fifth and Fourteenth Amendment rights. This constitutes punishment for Fifth Amendment Double Jeopardy purposes. . . . . . . . . . . . . . . . . . . 6

ISSUE NO. TWO RESTATED: Conditions of bond can be so oppressive and onerous as to constitute punishment for Fifth Amendment Double Jeopardy purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ancillary Conditions of Bond Were An Order.. . . . . . . . . . . . . . 8 Constitution and Code of Criminal Procedure. . . . . . . . . . . . . . 9

Statutory Guidelines To Setting Bail. . . . . . . . . . . . . . . . . . . . . . . . . . 10

No Record To Support Conditions of Bond.. . . . . . . . . . . . . . . . . . . . . 12

Statutory Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Conditions of Bond.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Deprivation of Constitutionally-Guaranteed Rights. . . . . . . . . . . . . . 15

Due Process Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATION OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iii TABLE OF AUTHORITIES Page

FEDERAL CASES

Cummings v. Missouri, 71 U.S. 277 (1866). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Estelle v. Williams, 425 U.S. 501 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Long Grove Country Club Estates, Inc. v. Village of Long Grove, 693 F.Supp. 640 (N.D. Ill. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Loving v. Virginia, 388 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Maness v. Meyers, 419 U.S. 449 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Mathews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . 20

Nanez v. Ritger, 304 F.Supp. 354 (E.D. Wis., 1969). . . . . . . . . . . . . . . . . . . 17

Paul v. Davis, 424 U.S. 693 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Prince v. Massachusetts, 321 U.S. 158 (1944). . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Jorn, 400 U.S. 470 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Halper, 490 U.S. 435 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Whalen v. United States, 445 U.S. 684 (1980).. . . . . . . . . . . . . . . . . . . . . . . . 7

Williams v. United States, 541 F.Supp. 1187 (E.D. N.C. 1982). . . . . . . . . . . 17

STATE CASES

Aldine I. S. Dist. v. Ogg, 122 S.W.3d 257 (Tex. App. – Houston [1ST Dist.]

iv 2003, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Azeez v. State, 248 S.W.3d 182 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . 12

Calvert v. Fort Worth Nat. Bank, 356 S.W.2d 918 (Tex. 1962). . . . . . . . . . 12

Cloud v. State, 150 Tex.Crim. 458, 461, 202 S.W.2d 846 (1947). . . . . . . . . 9

Dunn v. County of Dallas, 794 S.W.2d 560 (Tex. App. – Dallas 1990) ............................................................... 8

Ex parte Elliott, 950 S.W.2d 714, 716 (Tex. App. – Fort Worth 1997, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ex parte Harrell, 542 S.W.2d 169 (Tex. Crim. App. 1976)... . . . . . . . . . . . . 12

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . 3

Ex parte Mode, 77 Tex. Crim. 432, 180 S.W. 708 (1915) . . . . . . . . . . . . . . . 12

Ex parte Vance, 608 S.W.2d 681 (Tex. Crim. App. 1980).. . . . . . . . . . . . . 10

Ex parte Victorick, Docket No. 09-14-00112-CR, ___ S.W.3d ____, 2014 WL 6984140 (Tex. App. —Beaumont December 10, 2014) (Designated for publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FKM P'ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619 (Tex.2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Halbert v. Alford, 16 S.W. 814 (Tex. 1891)... . . . . . . . . . . . . . . . . . . . . . . . . . 8

Kniatt v. State, 206 S.W .3d 657 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . 5

Ludwig v. State, 812 S.W.2d 323 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . 11

v Lyle v. State, 80 Tex. Crim. 606, 193 S.W. 680 (1917). . . . . . . . . . . . . . . . . 12

Nguyen v. State, 881 S.W.2d 141 (Tex. App. – Houston [1ST Dist.]1994) ............................................................... 9

Robinson v. State, 739 S.W.2d 795 (Tex. Crim. App. 1987).. . . . . . . . . . . 3

Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . 9

STATE STATUTES

Article § 1.07, Texas Code of Criminal Procedure (1966). . . . . . . . . . . . . . . 9

Article 17.15, Code of Criminal Procedure (2005). . . . . . . . . . . . . . . 10, 12, 13

Article 17.40(a), Texas Code of Criminal Procedure (Vernon 2007). . . 11-13

Article 56.01(3), Texas Code of Criminal Procedure (Vernon 2006). . . . . . 14

Article 56.32(a)(11)(A)(I), Texas Code of Criminal Procedure (Vernon 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Texas Govt’ Code § 311.016(2) (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Texas Penal Code § 2.01 (Vernon 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Texas Penal Code, § 33.01(4) (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19

Texas Penal Code, § 33.021(b) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Texas Penal Code, § 33.021(c) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4

U.S. CONSTITUTION

Amend. I, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 17, 20

vi Amend. II, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 20

Amend. V, U.S. Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 17, 18, 20

Amend. VIII, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Amend. XIV, U.S. Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 17, 20

TEXAS CONSTITUTION

Article 1, § 11, Texas Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Article 1, § 23, Texas Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

OTHER AUTHORITIES

Black’s Law Dictionary (9th ed. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Random House Dictionary, © Random House, Inc. 2014. . . . . . . . 13, 14, 16

Wittenberg, Understanding Voice Over IP Technology, 2-6 First Ed. 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hamilton, History of the Republic of the United States. . . . . . . . . . . . . . . . . 7

vii Statement Regarding Oral Argument

Under Texas Rules of Appellate Procedure 68.4(c), Petitioner does not

request oral argument before this Court. See Tex. Rule App. Proc. 68.4(c).

Although this is a meritorious appeal of a criminal case, Petitioner believes

that the facts and legal arguments are adequately presented in this Petition

and in the record on appeal. Petitioner also believes that the decisional

process of the Court will not be significantly aided by oral argument. As a

result, Petitioner does not request oral argument and asks that the Questions

presented in this Petition be considered by submission only. Should the Court

desire oral argument, Petitioner will be happy to comply.

viii TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

Petitioner, David Lee Victorick, respectfully shows:

STATEMENT OF THE CASE

This petition requests this Court to review the judgment and opinion of

the Ninth Court of Appeals in Ex parte Victorick, Docket No. 09-14-00112-

CR, ___ S.W.3d ____, 2014 WL 6984140 (Tex. App. —Beaumont December

10, 2014) (Designated for publication)(See Appendix 1).

On August 29, 2013, Petitioner was placed on bond, even though no

complaint was filed and there was no indictment.

On November 14, 2013, the State charged Petitioner by indictment with

a second-degree felony under Section 33.021(c), Texas Penal Code. The terms

and conditions of the original bond were continued by a new written order.

Before trial, Petitioner filed a writ of habeas corpus alleging that the

terms and conditions of bond were so oppressive as to constitute punishment

and thus trigger his Fifth Amendment Double Jeopardy protections.

The writ was denied.

PROCEDURAL HISTORY

The trial court set Ancillary Conditions of Bond on August 29, 2013.

Petitioner was indicted on November 14, 2013. (CR – 1ST Appeal, p. 13,

1 Appendix 2)

On November 19, 2013, the Ancillary Conditions of Bond were again

imposed on Petitioner. (CR - 1ST Appeal, p. 48; Appendix 3). On December 6,

2013, the trial court ordered the District Clerk to place certified copies of all

documents from Cause No. 13-08-09228-CR into Cause No. 13-11-12323-CR.

(CR – 1ST Appeal, p. 86).

On March 7, 2014, Petitioner filed his Application for Writ of Habeas

Corpus on Double Jeopardy grounds.

On March 7, 2014, the trial court denied the Writ. On March 7, 2014,

Petitioner filed his Notice of Appeal.

On December 10, 2014, the Ninth Court of Appeals denied Petitioner

relief and affirmed the trial court. On January 5, 2015, Petitioner filed his

Motion for Extension of Time. On January 14, 2015, this Honorable Court

granted his Extension of Time until February 9, 2015. This Petition is timely

filed.

QUESTIONS OR GROUNDS FOR REVIEW

Petitioner presents the following questions or grounds for discretionary

review.

QUESTION NO. ONE: Petitioner is never charged by complaint but he is placed on bond 77 days before he is indicted. The conditions of bond are

2 oppressive and onerous, depriving Petitioner of, inter alia, First, Second, Fifth and Fourteenth Amendment rights. Does this constitute punishment for Fifth Amendment Double Jeopardy purposes?

QUESTION NO. TWO: Can conditions of bond be so oppressive and onerous as to constitute punishment for Fifth Amendment Double Jeopardy purposes, especially when they are imposed before any criminal charge is brought?

The relevant pages of the record are: CR – 1ST Appeal, pp. 5, 13, 47, 48,

85 and 86.

STATEMENT OF FACTS

Petitioner disagrees with the characterization of the facts set forth by the

Court of Appeals and submits that the following represents the facts as they

actually occurred.

On August 29, 2013, Petitioner was “indicted” for violating § 33.021(b),

Texas Penal Code.1 On that same day, the trial court set Bond in the amount 2 of $250,000 and it set Ancillary Conditions of Bond.3 (Appendix 2) The

Ancillary Conditions of a Bond were an order, requiring Petitioner to comply

with the ancillary conditions.

1 Indictment, 1ST CR p. 5 This Court declared this statute unconstitutional. See, Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). As a result, the indictment was void from the inception. See, Robinson v. State, 739 S.W.2d 795, 797 (Tex. Crim. App. 1987). … 2 Order Setting Bond, 1ST CR p. 7 … 3 Ancillary Conditions of Bond, 1ST CR p. 12. …

3 On September 3, 2013, Petitioner posted a surety bond in the amount

of $250,000 in Cause No. 13-08-09228-CR.4

On October 30, 2013, this Honorable Court declared § 33.021(b), Penal

Code unconstitutional.5

On November 14, 2013, Petitioner was indicted for violating § 33.021(c),

Texas Penal Code.6 Petitioner was not taken into custody on this charge.

Petitioner never posted a new bond.

On November 19, 2013, the trial court imposed identical conditions of

bond under the new indictment.7 (Appendix 3)

On December 6, 2013, the State moved to “dismiss” the indictment in

Cause No. 13-08-09228-CR, as the indictment “charged” a violation of §

33.021(b), Texas Penal Code.8

On December 6, 2013, the trial court ordered the District Clerk to place

certified copies of all documents that are contained in the Court’s file in Cause

4 Bond, 1ST CR p. 15 … 5 Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). … 6 Indictment in Cause No. 13-11-12323-CR, 1ST CR p. 47 … 7 Ancillary Conditions of Bond in Cause No. 13-11-12323-CR, 1ST CR p. 48 … 8 Motion to Dismiss and Order in Cause No. 13-08-09228-CR, 1ST CR p. 85. As the statute was unconstitutional, the indictment was void. See Fn. 1, above. …

4 No. 13-08-09229-CR into the court’s file in Cause No. 13-11-12323-CR.9

On March 7, 2014, Petitioner filed his Special Plea of Double Jeopardy10

and his Writ of Habeas Corpus.11

On March 7, 2014, the trial court heard and denied the Writ of Habeas

Corpus.12

On March 7, 2014, Petitioner filed his Notice of Appeal.13 On December

10, 2014, the Ninth Court of Appeals affirmed the trial court’s ruling.

(Appendix 1)

STANDARD OF REVIEW

This Court reviews a trial court’s ruling on a pretrial writ of habeas

corpus for an abuse of discretion.14 In conducting this review, the Court views

the facts in the light most favorable to the trial court’s ruling.15

ARGUMENT AND AUTHORITY

9 Order to District Clerk, 1ST CR p. 86. … 10 Special Plea of Double Jeopardy, 2ND CR p. 30. … 11 Writ of Habeas Corpus, 2ND CR p. 19. … 12 Order on Application for Writ of Habeas Corpus, 2ND CR p. 29. … 13 Notice of Appeal, 2ND CR p. 42. … 14 Kniatt v. State, 206 S.W .3d 657, 664 (Tex. Crim. App. 2006). … 15 Kniatt, 206 S.W.3d at 664. …

5 ISSUE NO. ONE RESTATED: A Defendant is never charged by complaint or information but is placed on bond 77 days before he is indicted. The conditions of bond are oppressive and onerous, depriving the Defendant of First, Second, Fifth and Fourteenth Amendment rights. This constitutes punishment for Fifth Amendment Double Jeopardy purposes.

ISSUE NO. TWO RESTATED: Conditions of bond can be so oppressive and onerous as to constitute punishment for Fifth Amendment Double Jeopardy purposes.

These two Issues are addressed together because they are interrelated

and rely upon the same argument and authorities. This is a case of first

impression. And this case presents an important legal question that has never

been answered but should be: when a certified copy of an order from a prior

case between the same parties is ordered placed into the court’s file in the

current case, does that order become an order in the new case?

FIFTH AMENDMENT DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment prohibits trying

a person and punishing a person twice for the same offense. 16 The Fifth

Amendment’s guarantee against double jeopardy protects not only against a

second trial for the same offense but also against multiple punishments for the

16 Amend. V, U.S. Constitution – “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...” …

6 same offense.17 This case falls within the protection against multiple

punishments prohibition.

And, in a different context, the Supreme Court has held that Double

Jeopardy may attach if the circumstances are attributable to judicial

overreaching.18 Petitioner argues that the circumstances under which the

Ancillary Conditions of Bond were first imposed upon him, coupled with their

draconian effect, constitute such judicial overreaching as to trigger his Double

Jeopardy protections.

PUNISHMENT

The Constitution does not define punishment. One must, therefore, look

to caselaw and other authorities to see how punishment has been defined.

Mr. John C. Hamilton, in his ‘History of the Republic of the United

States,’ said that deprivation or suspension of any civil rights for past conduct

is punishment for such conduct.19

And, early on, the Supreme Court opined that:

“The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the

17 Whalen v. United States, 445 U.S. 684 (1980); United States v. Halper, 490 U.S. 435, 440 (1989). … 18 United States v. Jorn, 400 U.S. 470, 483-484 (1971)(plurality opinion). … 19 Vol. 3, p. 24. …

7 causes of the deprivation determining this fact. .... Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.”20

Because he was deprived of constitutional rights before he was charged,

Petitioner was punished by the ancillary conditions of bond.

ANCILLARY CONDITIONS OF BOND WERE AN ORDER:

Because the Ancillary Conditions of Bond stated that the “Defendant

Shall”, they were an order directed to Petitioner.21 He had to obey that order

lest his bond be forfeited and he be incarcerated pending trial.22

A court acts by and through its orders and not otherwise.23 An order is

a command, direction, or decision on a collateral or intermediate point in a

case, indeterminative of the main issue.24 The Ancillary Conditions of Bond

were, therefore, orders.

Petitioner acknowledges that the trial court could have taken judicial

notice of the Ancillary Conditions of Bond that it entered in Cause No. 13-08-

20 Cummings v. Missouri, 71 U.S. 277, 321 – 322 (1866) [Emphasis supplied]. … 21 Id., “Defendant shall:...” Shall is mandatory. § 311.016(2), Texas Govt’ Code. … 22 Maness v. Meyers, 419 U.S. 449, 458 (1975) (All orders must be complied with promptly.) … 23 Dunn v. County of Dallas, 794 S.W.2d 560, 562 (Tex. App. – Dallas 1990). … 24 Halbert v. Alford, 16 S.W. 814 (Tex. 1891). …

8 09228-CR.25 But it did not do so. Instead it ordered the District Clerk to place

certified copies of all documents from that case into the court’s file in Cause

No. 13-11-12323-CR.

In doing so, the trial court made the Ancillary Conditions of Bond that

it entered in Cause No. 13-08-09228-CR, an order in Cause No. 13-11-12323-

CR.26 And because of this, Petitioner had to and was required to comply with

the conditions of bond 77 days before he was indicted in Cause No. 13-11-

12323-CR.

CONSTITUTION AND CODE OF CRIMINAL PROCEDURE:

The right to a reasonable bond is based on the presumption of innocence

and is protected by the United States and Texas Constitutions and the Texas

Code of Criminal Procedure.27 “The presumption of innocence that surrounds

every accused person means an assumption which prevails as the judgment

of the law until the contrary is proven.”28 And “[T]he presumption of

innocence, although not articulated in the Constitution, is a basic component

25 Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987). … 26 Rule 34.5(a), T.R.A.P. … 27 U.S. Const. Amend. VIII; Tex. Const. art. 1, § 11; Texas Code Crim. P. Art. § 1.07. See also, Nguyen v. State, 881 S.W.2d 141, 142 (Tex. App. – Houston [1ST Dist.]1994). … 28 Cloud v. State, 150 Tex.Crim. 458, 461, 202 S.W.2d 846, 848 (1947) (op. on reh'g). …

9 of a fair trial under our system of criminal justice.”29 Indeed, the Code of

Criminal Procedure mandates that “[A]ll persons are presumed innocent and

no person may be convicted of an offense unless each element is proved

beyond a reasonable doubt.”30

It is against that context that this Court should recall that the primary

purpose of an appearance bond is to secure the defendant’s presence in

court.31

STATUTORY GUIDELINES TO SETTING BAIL:

Article 17.15, Code of Criminal Procedure, sets out the statutory factors

that a court may consider in setting bail. The factors set out in the Code of

Criminal Procedure allows the trial court to consider the future safety of an

alleged victim of the alleged offense and the community when it sets the

amount of bail.32

Interestingly, bail was set at $250,000 even though Petitioner has deep

roots in the community, owns a home with his wife, has no prior criminal

29 Estelle v. Williams, 425 U.S. 501, 503 (1976). … 30 Texas Penal Code § 2.01 (Vernon 2003). … 31 Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. [Panel Op.] 1980). … 32 To the extent that this section of the Code of Criminal Procedure refers to a victim, Petitioner argues that it is unconstitutional as depriving him of the presumption of innocence, as there can be no victim until it is proven that a crime has, in fact, been committed. …

10 record, and was not charged with a crime of violence. Compare that amount

of bail to what this Court reduced bail to in a case where the defendant was

charged by two indictments with murder and one indictment for capital

murder.33 There, this Court reduced bail to $50,000. This Court did so even

though it noted:

“It appears that both the habeas court and the court of appeals were influenced by testimony that appellant had threatened his victims, a brother-in-law and nephew by marriage, before he allegedly killed them. He had also threatened the life of his mother-in-law, who testified she felt she was a victim of appellant’s crimes, and would be endangered if appellant were to be released on bond. Appellant’s wife echoed this concern.”34

Article 17.40(a), Texas Code of Criminal Procedure (Vernon 2012),

provides that:

To secure a defendant’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.35

Conditions of bond are to be tailored to insure an individual defendant will

appear for court hearings.36

33 See, Ludwig v. State, 812 S.W.2d 323 (Tex. Crim. App. 1991). … 34 Ludwig, 812 S.W.2d at 324. … 35 To the extent that this section of the Code of Criminal Procedure refers to a victim, Petitioner argues that it is unconstitutional as depriving him of the presumption of innocence, as there can be no victim until it is proven that a crime has, in fact, been committed. … 36 Ex parte Elliott, 950 S.W.2d 714, 716 (Tex. App. – Fort Worth 1997, pet. ref'd). …

11 Article 17.15 and Article 17.40(a), Texas Code of Criminal Procedure, are

statutes that involve the same general subject matter and also possess the

same general purpose (securing the defendant’s appearance at trial, the safety

of the “victim” and the community). They are, therefore, “in pari materia.”37

In order to arrive at a proper construction of a statute, and determine

the exact legislative intent, all acts and parts of acts dealing with the same

subject and having the same purpose will, therefore, be taken38 and read

together,39 each enactment in reference to the other,40 as though they were

parts of one and the same law.41 Stated another way, statutes bearing on the

same subject matter should be construed together, and both given effect, if

possible.42

NO RECORD TO SUPPORT CONDITIONS OF BOND:

Petitioner points out that there is no record for this Court to review to

37 Azeez v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008). … 38 Calvert v. Fort Worth Nat. Bank, 356 S.W.2d 918, 921 (Tex. 1962). … 39 Ex parte Harrell, 542 S.W.2d 169, 171 (Tex. Crim. App. 1976). … 40 Ex parte Harrell, 542 S.W.2d at 171. … 41 Ex parte Mode, 77 Tex. Crim. 432, 180 S.W. 708 (1915) (overruled in part on other grounds by, Lyle v. State, 80 Tex. Crim. 606, 193 S.W. 680 (1917)). … 42 Aldine I. S. Dist. v. Ogg, 122 S.W.3d 257, 270 (Tex. App. – Houston [1ST Dist.] 2003, no pet.). …

12 determine how the trial court allegedly considered the statutory factors in

setting the Ancillary Conditions of Bond. Further, there is no hearing of any

sort shown to have occurred before the Conditions were set, under either

docket number.43

STATUTORY CONSTRUCTION:

Article 17.15(2), Texas Code of Criminal Procedure forbids a court from

using the power to require bail so as to make it an instrument of oppression.

Since Article 17.15 is in pari materia with Article 17.40, Article 17.40(a) must

be read as forbidding a court from setting conditions of bond so as to make

them an instrument of oppression.

Oppression is not defined in the Code of Criminal Procedure. Since the

Legislature did not define the word, oppression, it has its ordinary meaning. 44

Oppression is defined as the exercise of authority or power in a

burdensome, cruel, or unjust manner, or as an act or instance of oppressing.45

Oppress is defined as to burden with cruel or unjust impositions or restraints;

43 Entire CR. … 44 See FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008) (“We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired, but otherwise, we construe the statute’s words according to their plain and common meaning unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results.”) … 45 Random House Dictionary, © Random House, Inc. 2014 …

13 subject to a burdensome or harsh exercise of authority or power.46

The Ancillary Conditions of Bond were beyond oppressive, they deprived

Petitioner of Constitutionally-guaranteed rights.

THE CONDITIONS OF BOND:

The Ancillary Conditions of Bond were entered by the trial court without

holding a hearing or receiving any evidence on the record.47 Based upon some

unknown information, the trial court determined that a crime had been

committed, that there was a victim and that the safety of the community had

to be protected. Specific reference is made to ¶¶ 15 and 17, thereof and the

word, “victim,” within each paragraph. This is important because the word –

“victim” – is defined in the Code of Criminal Procedure as:

“... a person who is the victim of the offense of sexual assault, kidnapping, aggravated robbery, trafficking of persons, or injury to a child, elderly individual, or disabled individual or who has suffered personal injury or death as a result of the criminal conduct of another.”48

Or as:

“(A) an individual who: (I) suffers personal injury or death as a result of criminally

46 Random House Dictionary, © Random House, Inc. 2014 … 47 See Ancillary Conditions of Bond, 1ST CR p. 12 and p. 48 and entire CR as to lack of any hearing on Conditions of Bond. … 48 Tex. Crim. Pro. Art. 56.01(3) (Vernon 2006). [Emphasis supplied] …

14 injurious conduct ...”49

By using the term, “victim”, the trial court determined that Petitioner had

committed a crime. Petitioner argues that this was actually an adjudication

of his guilt, which also forbade his subsequent trial.

DEPRIVATION OF CONSTITUTIONALLY-GUARANTEED RIGHTS:

The Ancillary Conditions of Bond50 prohibited Petitioner from:

a) Possessing any firearms;

b) Having any association, contact and communication, directly or

indirectly with the alleged victim’s family or household;51

c) Not go to or within 100 yards of the residence of the alleged victim

or the alleged victim’s family or household;

d) Having any contact with any child under the age of 17 years of age;

and

e) Having no contact with any computer52 or internet connection.

49 Tex. Crim. Pro. Art. 56.32(a)(11)(A)(I) (Vernon 2006). [Emphasis supplied] … 50 See Ancillary Conditions of Bond, 1ST CR p. 12 and p. 48. … 51 The Ancillary Conditions of Bond refers to the victim. Mr. Victorick denies that a crime was committed and therefore substitutes the term, alleged victim. … 52 § 33.01(4), Texas Penal Code defines computer as “an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device.” …

15 Contact was not defined in the Ancillary Conditions of Bond, so the word has

its ordinary meaning – the act or state of touching; a touching or meeting, as

of two things or people; immediate proximity or association.53

The Ancillary Conditions of Bond54 also required Petitioner to:

a) Work faithfully at suitable employment as far as possible; and

b) Support his dependents.

In the context of both cases, it is undisputed that the alleged victim is his step-

daughter.

Prior to this case, Petitioner had never been convicted of any crime. As

such, he has a Second Amendment and Article 1, § 23, Texas Constitution,

right to possess firearms. But the Ancillary Conditions of Bond removed that

constitutional right from him. This was even though the crime alleged was not

a crime of violence or one in which a firearm was used. As such, Petitioner has

been punished by depriving him of his Second Amendment right.

Petitioner has a First Amendment right to associate with his wife.55

Petitioner was deprived of his First Amendment right to associate with his

53 Random House Dictionary, © Random House, Inc. 2014. … 54 See Ancillary Conditions of Bond, 1ST CR p. 12 and p. 48. … 55 Loving v. Virginia, 388 U.S. 1, 12 (1967)(Among the decisions that an individual may make without unjustified government interference are personal decisions “relating to marriage”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944)(family relationships). …

16 wife through the Ancillary Conditions of Bond. As such, Petitioner was

punished.

A citizen has a First Amendment right to religion, which includes the

right to attend church.56 A citizen also has a First Amendment protected right

to move about freely and peaceably in public places.57

The Ancillary Conditions of Bond prohibited Petitioner from having any

contact with any child under 17 years of age. Because persons under the age

of 17 years can reasonably be expected to be encountered there, this Condition

of Bond prohibited Petitioner from attending church, from going to the super

market, to the movies or even to the store, in fact from going anywhere in

public. These are First Amendment rights that Petitioner was denied and

deprived of. As such, Petitioner was punished through the denial of these

First Amendment rights.

Petitioner has a Fifth and Fourteenth Amendment liberty interest in

being able to work.58 The loss of one’s job amounts to a deprivation of liberty

56 See, e.g., Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). … 57 Nanez v. Ritger, 304 F.Supp. 354 (E.D. Wis., 1969). … 58 Long Grove Country Club Estates, Inc. v. Village of Long Grove, 693 F.Supp. 640, 662 (N.D. Ill. 1988) (“Liberty includes the right “to work for a living in the common occupations of the community.” ”); Williams v. United States, 541 F.Supp. 1187 (E.D. N.C. 1982) (citizens do possess the right to work for a living in the common occupations of the community. U.S. Const.

17 when that person does not remain free to locate alternate employment.59 The

Ancillary Conditions of Bond prevented Petitioner from having any contact

with a computer or internet connection. Other than menial physical jobs,

most jobs require that applicants, such as Petitioner, submit their application

online. Because of the prohibition against contact with a computer, Petitioner

could not even apply for a job without violating the Ancillary Conditions of

Bond.

Most jobs today require that employees access either a computer, or a

Point Of Sale (POS) terminal (a computer), which would violate the Ancillary

Conditions of Bond. Even swiping a credit card accesses the internet and

violates the Ancillary Conditions of Bond. These Conditions of Bond

prohibited Petitioner from seeking, much less continuing any employment.

Petitioner was, therefore, been denied a constitutionally-protected liberty

interest and was punished.

This is over and above the fact that there is no job where one can be

assured that he will not have any contact with a person under the age of 17

years, however inadvertent or fleeting. But any such contact would be a

Amend. 5). … 59 See, e.g., Paul v. Davis, 424 U.S. 693 (1976) reh. denied 425 U.S. 985 (1976). …

18 violation of the terms and conditions of Bond and subject Petitioner to

forfeiture of his Bond and incarceration pending trial. The only way to avoid

this was for Petitioner to remain in the home where he was staying. Again,

Petitioner was punished.

As to having no contact with any computer,60 this condition prohibited

Petitioner from being able to use any cell phone as all have the ability to store

numbers in their memory and thus qualify as computers.61 It also effectively

denied Petitioner the right to seek employment because virtually all phones

have a built-in memory for last number called, etc. and thus qualify as a

computer.

And as to having no access to the internet, in light of VoIP, 62 Petitioner

could not even chance making a telephone call from a land line, lest he

inadvertently violate the Conditions of Bond by having his call go over the

Internet via VoIP.

60 § 33.01(4), Texas Penal Code defines computer as “an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device.” … 61 This is before one anaylyzes their ability to perform logical and mathematical functions. … 62 VoIP – Voice over Internet Protocol. See Wittenberg, Understanding Voice Over IP Technology, 2-6 First Ed. 2009. Common examples of this service are Comcast®, MagicJack®, Vonage® and RingCentral®. …

19 In short, these terms and conditions are so onerous and oppressive that

Petitioner was punished for the acts alleged in the indictment – long before

any trial was had and long before he was charged in any manner.

DUE PROCESS ANALYSIS:

“Procedural due process imposes constraints on governmental decisions

which deprive individuals of “liberty” or “property” interests within the

meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”63

The “right to be heard before being condemned to suffer grievous loss of any

kind, even though it may not involve the stigma and hardships of a criminal

conviction, is a principle basic to our society.”64

Here, Petitoner was not afforded the right to be heard on any of the

Ancillary Conditions of Bond before they were twice imposed upon him by

judicial fiat.65 This, even though those Conditions deprived Petitioner of First,

Second, Fifth and Fourteenth Amendment rights.

CONCLUSION AND PRAYER

Seventy-seven days before he was charged in any manner, Petitioner

63 Mathews v. Eldridge, 424 U.S. 319, 332 (1976) … 64 Mathews v. Eldridge, 424 U.S. at 333 [emphasis supplied]. … 65 Fiat – An order or decree, esp. an arbitrary one . Black's Law Dictionary (9th ed. 2009) …

20 was deprived of First, Second, Fifth and Fourteenth Amendment rights

without a hearing and without the State showing that any of the conditions

imposed were necessary for the safety of the alleged victim or for the safety of

the community. Having been imposed by judicial fiat and having effectively

relegated Petitioner to living incommunicado and isolated from the world,

these Conditions of Bond should be held to constitute punishment for the

purpose of Double Jeopardy. Further, the judicial overreaching that is shown

to have occurred should also be held to trigger Petitioner’s Double Jeopardy

rights. Upon that finding, this Court should vacate any subsequent

punishment of Petitioner. Petitioner prays for general relief.

Respectfully submitted,

By: /s/ L.T. Bradt L.T. “Butch” Bradt #02841600 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478-3500 (281) 201-0700 Fax: (281) 201-1202 ltbradt@flash.net Attorney for Petitioner, David Lee Victorick

CERTIFICATE OF SERVICE

I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P., certify that a true and correct copy of the foregoing Petition was delivered to:

Honorable Brett Ligon, District Attorney

21 William Delmore, Ass’t District Attorney 207 W. Phillips, 2nd Floor Conroe, Texas 77301 bill.delmore@mctx.org

Postconviction Litigation Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 const_claims@texasattorneygeneral.gov

State Prosecuting Attorney P.O. Box 13046 Austin, Texas 78711-3046 information@spa.texas.gov

on February 6, 2015.

/s/ L.T. Bradt L.T. Bradt

CERTIFICATION OF COMPLIANCE

This is to certify that, using the word count feature of WordPerfect X7, the total number of words in the Petition is 4121, except in the following sections: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of questions presented, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. This document also complies with the typeface requirements because it has been prepared in a proportionally-spaced typeface in 14-point Georgia and the footnotes are in a proportionally-spaced typeface in 12-point Times New Roman.

22 APPENDIX

23 In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00112-CR NO. 09-14-00190-CR ____________________

EX PARTE DAVID LEE VICTORICK

DAVID LEE VICTORICK, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 13-11-12323 CR ________________________________________________________ _____________

OPINION

This matter involves two appeals filed by David Lee Victorick relating to his

indictment and subsequent conviction for online solicitation of a minor. 1 See Tex.

1 We have considered three related matters filed by Victorick. Initially, we dismissed a petition for a writ of mandamus wherein Victorick sought to compel the presiding administrative judge to grant Victorick’s motion to recuse the trial 1 Penal Code Ann. § 33.021(c) (West 2011). On March 7, 2014, the trial court

denied Victorick’s pre-trial application for writ of habeas corpus asserting a claim

of double jeopardy. Victorick filed a notice of appeal and requested that his trial be

stayed pending the resolution of Appeal No. 09-14-00112-CR, but this Court

denied the motion to stay. Victorick was tried, convicted, and sentenced to five

years of imprisonment. Victorick filed a notice of appeal of the final judgment,

docketed in Appeal No. 09-14-00190-CR. We affirm the order denying the

application for a writ of habeas corpus and the judgment of conviction.

ISSUES

Victorick presents two issues in Appeal No. 09-14-00112-CR (the pre-trial

request for habeas relief). First, he contends a bond order that issued after his arrest

judge. See In re Victorick, No. 09-13-00483-CR, 2013 WL 5969469, at *1 (Tex. App.—Beaumont Nov. 6, 2013, orig. proceeding) (mem. op., not designated for publication). Next, we denied a petition for a writ of mandamus and prohibition filed by Victorick to compel the trial court to stay the trial pending the resolution of his appeal of the trial court’s denial of a pre-trial habeas application challenging the facial constitutionality of the statute creating the offense for which he was indicted. See In re Victorick, No. 09-13-00550-CR, 2013 WL 6885130, at *1 (Tex. App.—Beaumont Dec. 30, 2013, orig. proceeding, [leave denied]) (mem. op., not designated for publication). Finally, we affirmed the trial court’s denial of Victorick’s facial challenge to the constitutionality of Texas Penal Code section 33.021(c). See Ex parte Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at *1 (Tex. App.—Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for publication). In the habeas appeal now before us, we granted Victorick’s motion to take judicial notice of the clerk’s record filed in Appeal No. 09-13-00551-CR. See Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987).

2 on a previous indictment, which did not go to trial, constitutes punishment under

the Fifth Amendment’s Double Jeopardy Clause because the bond contained

oppressive and onerous conditions that infringed upon his constitutional rights.

Second, Victorick contends the oppressive and onerous conditions of his pre-trial

bond on the indictment under which he was tried constitute punishment for double

jeopardy purposes. In a motion to dismiss and with a suggestion of mootness, the

State argues that Victorick’s conviction mooted the appeal of the denial of pre-trial

habeas relief.

Victorick presents three issues in Appeal No. 09-14-00190-CR (appeal of his

conviction). First, he challenges the legal sufficiency of the evidence to support his

conviction. Second, he contends he was deprived of an impartial magistrate. Third,

Victorick contends the procedural rules that apply to recusal proceedings deprived

him of due process because the rules do not provide for an interlocutory appeal.

INDICTMENT AND CONVICTION

The State initially indicted Victorick for online solicitation of a minor under

subsection (b)(1) of section 33.021 of the Penal Code. See Tex. Penal Code Ann. §

33.021. After subsection (b)(1) was found to be unconstitutional by the Texas

Court of Criminal Appeals in Ex parte Lo, Victorick was re-indicted under

subsection (c) of section 33.021 for knowingly soliciting a fifteen year old girl to

meet him with the intent that she engage in sexual contact, sexual intercourse, or 3 deviate sexual intercourse with him. See 424 S.W.3d 10, 27 (Tex. Crim. App.

2013). Victorick entered a not guilty plea and a jury found the appellant guilty as

charged, and assessed his punishment at imprisonment for five years.

MOOTNESS

Before we address Victorick’s appellate issues we consider the State’s

argument that Victorick’s appeal of the denial of the pre-trial request for habeas

relief is moot. As a general rule, a habeas appeal relating to pre-trial bail is mooted

by the subsequent conviction of the defendant because upon his conviction the

habeas applicant is no longer being subjected to pre-trial confinement. See e.g.,

Martinez v. State, 826 S.W.2d 620, 620 (Tex. Crim. App. 1992). Unlike a habeas

claim concerning pre-trial bail in which the applicant seeks relief from an

unconstitutional pre-trial confinement, if he is correct regarding his double

jeopardy argument, Victorick may be entitled to relief from the sentence imposed

in the judgment of conviction that has also been appealed to this Court. Therefore,

Victorick’s pre-trial request for habeas relief is not necessarily mooted by his

conviction.

DOUBLE JEOPARDY CLAIM

The indictment accusing Victorick of online solicitation of a minor under

section 33.021(c) of the Texas Penal Code alleged, in part, that Victorick, on or

about June 2, 2013, did “knowingly solicit by text message, K.E., a minor, to meet 4 the defendant, with the intent that K.E. would engage in sexual contact and sexual

intercourse and deviate sexual intercourse with the defendant[.]” After indictment,

Victorick filed an application for writ of habeas corpus in which he alleged that he

was being illegally confined because “[t]he Court has set conditions of bond that

are not only oppressive, they have denied him constitutionally-guaranteed rights.”

Victorick alleged that “Double Jeopardy forbids his trial on the present

indictment.” Victorick’s petition for habeas relief contends that subjecting him to a

trial and potential conviction and sentence for a second degree felony would

violate the Double Jeopardy Clause’s prohibitions against multiple punishments

because he had already been subjected to punishment within the scope of the

Double Jeopardy Clause by conditions of his bond that prohibited him from: (1)

possessing any firearms; (2) contacting the alleged victim’s family; (3) going

within 100 yards of the residence of the alleged victim; (4) contacting any child

under seventeen years of age; or (5) having any contact with any computer or

internet connection. Victorick argues that the conditions of his bond effectively

denied him his right to bear arms, to associate with his wife, to attend church, to

move about freely and peaceably in public places, and to work. No evidence was

offered in the pre-trial habeas hearing. The trial court denied the application.

The Fifth Amendment states that “[n]o person shall . . . be subject for the

same offense to be twice put in jeopardy of life or limb. . . .” U.S. CONST. 5 amend. V. Victorick argues that placing him on bond under conditions that he

contends are oppressive and onerous constitutes punishment for Fifth Amendment

double jeopardy purposes. Citing United States v. Jorn, Victorick contends that

judicial overreaching triggers double jeopardy protections. See 400 U.S. 470, 483-

84 (1971) (plurality op.). Jorn held the Double Jeopardy Clause barred a re-trial

after the trial court sua sponte discharged the jury without manifest necessity for

calling a mistrial and without considering granting a continuance. Id. at 487. Jorn

was a successive prosecution case in which jeopardy attached with the seating of

the jury in the first trial and terminated when the trial court discharged the jury;

jeopardy would attach a second time with the seating of a new jury, thereby

implicating the Fifth Amendment’s protection against successive prosecution. See

id. at 484.

Victorick argues the trial court erred in failing to apply the Jorn successive

prosecution concept, notwithstanding the fact that jeopardy attached only once in

his case. Victorick contends without citing any authority that by referring to the

complaining witness as the “victim” in the order setting conditions of bond, the

trial court determined that he had committed a crime and the entry of the order

functioned as an adjudication of guilt. The law of this state is well settled that with

respect to a jury trial, jeopardy attaches when the jury is empaneled and sworn, and

for a bench trial jeopardy attaches when the defendant pleads to the charging 6 instrument. See Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996) (The

constitutional prohibition against double jeopardy does not apply until the

defendant enters a plea before the trier of facts.). Jeopardy does not attach in a

preliminary hearing regardless of what facts may be determined during the

proceeding. See id.

Nevertheless, when the defendant has been subjected to a single trial, “the

Double Jeopardy Clause ‘prevent[s] the sentencing court from prescribing greater

punishment than the legislature intended.’” Ervin v. State, 991 S.W.2d 804, 807

(Tex. Crim. App. 1999) (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)).

Factors considered in determining legislative intent include whether two provisions

imposing separate punishments are contained within the same statutory section,

whether they are phrased in the alternative, whether they are named similarly,

whether they have common punishment ranges, whether they have a common

focus or gravamen, and whether that common focus tends to indicate a single

instance of conduct, whether the elements that differ between them can be

considered the same under an imputed theory of liability which would result in the

offenses being considered the same under the Blockburger test, and whether there

is legislative history articulating an interest to treat the offenses as the same or

different for double jeopardy purposes. Ervin, 991 S.W.2d at 814 (citing

Blockburger v. United States, 284 U.S. 299, 304 (1932)). 7 The State cites cases from other jurisdictions, which hold that conditional

pre-trial release cannot be considered punishment for purposes of the Double

Jeopardy Clause because it serves a remedial rather than a punitive purpose and a

bond condition is not based on a determination of guilt. See State v. Torres, 890

So.2d 292, 296 (Fla. Dist. Ct. App. 2d Dist. 2004) (conditions of pre-trial release

requiring accused to attend sex offender treatment were not punitive and double

jeopardy did not attach); accord Parent v. State, 900 So.2d 598, 599-600 (Fla. Dist.

Ct. App. 2d Dist. 2004) (special conditions placed on pre-trial release of DUI

defendant did not bar further prosecution under the double jeopardy clause);

Halikipoulos v. Dillion, 139 F.Supp.2d 312 (E.D.N.Y. 2001) (pre-trial release

condition requiring defendant to attend “stoplift” counseling program did not

constitute punishment and court rejected double jeopardy argument). While not

binding on this Court, the cases are instructive of the result reached in other

jurisdictions.

In Texas, the Code of Criminal Procedure provides rules for fixing the

amount of the bond and the conditions of bond. Tex. Code Crim. Proc. Ann. arts.

17.15 (West 2005), 17.40 (West Supp. 2014). “The bail shall be sufficiently high

to give reasonable assurance that the undertaking will be complied with.” Tex.

Code Crim. Proc. Ann. art. 17.15. In setting the amount of the bond, “[t]he power

to require bail is not to be used as to make it an instrument of oppression.” Id. The 8 magistrate considers “[t]he nature of the offense and the circumstances under

which it was committed” and also considers “[t]he future safety of a victim of the

alleged offense and the community. . . .” Id. In Texas, “a magistrate may impose

any reasonable condition of bond related to the safety of a victim of the alleged

offense or to the safety of the community.” Tex. Code Crim. Proc. Ann. art. 17.40.

Unlike the criminal offense of online solicitation of a minor that is contained

within the Penal Code, the statutes that authorize a trial court to fix bail pending

trial and to impose conditions on a defendant’s pre-trial release on bail function to

ensure the defendant’s appearance at trial and to protect the community without

requiring a finding of guilt. Compare Tex. Code Crim. Proc. Ann. arts. 17.15,

17.40, with Tex. Penal Code Ann. § 33.021(c). We conclude that the clear intent of

the Legislature as demonstrated in the plain language contained in articles 17.15

and 17.40 was to permit a trial court to set reasonable conditions of bond as a

requirement for pre-trial release and then to impose the penalty set out in the Penal

Code for the offense if the defendant is later tried and convicted. See Ervin, 991

S.W.2d at 814.

Victorick argues that in his case, the trial court failed to follow the rules

established by articles 17.15 and 17.40 of the Texas Code of Criminal Procedure

and that the trial court imposed unreasonable conditions of bond. See Tex. Code

Crim. Proc. Ann. arts. 17.15, 17.40. He argues that the conditions impacted his 9 freedoms as guaranteed by the Fifth Amendment to such a degree that he has been

punished before trial for the acts alleged in the indictment. The proper method to

challenge a punitive bail condition is by filing either a motion to reduce bail or an

application for a writ of habeas corpus for a bail reduction. See Stack v. Boyle, 342

U.S. 1, 6 (1951) (the proper procedure for challenging bail as unlawfully fixed is

by motion for reduction of bail); Ex parte Young, 257 S.W.3d 276, 278 (Tex.

App.—Beaumont 2008, no pet.) (the accused may challenge the conditions

attached to bail through a pre-trial writ of habeas corpus).

Victorick petitioned for pre-trial habeas relief, but he sought only relief from

the indictment and did not seek habeas relief from the order setting ancillary

conditions of bond. Furthermore, he submitted no evidence regarding the

oppressive nature of the conditions of bond. During the hearing on his pre-trial

habeas petition, the State argued that the bond conditions were reasonable because

they related to safety of the victim and the community. Considering that the

indictment accused Victorick of online solicitation of a member of his household,

and the use of a computer, electronic or texting device, the trial court reasonably

could have determined that temporarily prohibiting his use of the internet and

contact with the victim’s family was authorized by article 17.40, even though the

conditions necessarily impaired Victorick’s freedom to communicate electronically

and to associate with his family. See Tex. Code Crim. Proc. Ann. art. 17.40. 10 Therefore, we conclude that the trial court did not err in denying the application for

writ of habeas corpus. Accordingly, we overrule both issues raised by Victorick in

Appeal No. 09-14-00112-CR.

SUFFICIENCY OF THE EVIDENCE

In Victorick’s first issue in Appeal No. 09-14-00190-CR (appeal of his

conviction), Victorick challenges the sufficiency of the evidence to support his

conviction of online solicitation of a minor. A person commits the offense of

online solicitation of a minor if the person “over the Internet, by electronic mail or

text message or other electronic message service or system, or through a

commercial online service, knowingly solicits a minor to meet another person,

including the actor, with the intent that the minor will engage in sexual contact,

sexual intercourse, or deviate sexual intercourse with the actor or another person.”

See Tex. Penal Code Ann. § 33.021(c). Victorick argues the evidence at trial was

insufficient to prove beyond a reasonable doubt that he did “knowingly solicit by

text message, K.E., a minor, to meet the defendant, with the intent that K.E. would

engage in sexual contact and sexual intercourse and deviate sexual intercourse with

the defendant,” as alleged in the indictment. Victorick contends that

“communicating in a sexually explicit manner with a minor, even if with the intent

to arouse or gratify the sexual desire of any person, is legal.” He argues the

evidence is legally insufficient to establish he violated the statute because the State 11 failed to prove beyond a reasonable doubt that he solicited K.E. to meet him and

that he acted with the intent that K.E. engage in sexual contact.

The “Jackson v. Virginia legal-sufficiency standard is the only standard that

a reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In evaluating

the legal sufficiency of the evidence, we review all the evidence in the light most

favorable to the verdict to determine whether any rational fact finder could have

found the essential elements of the offense beyond a reasonable doubt. Brooks, 323

S.W.3d at 902 n.19; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

The jury is the ultimate authority on the credibility of witnesses and the

weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State,

623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury’s

responsibility to fairly resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214

S.W.3d at 13. If the record contains conflicting inferences, we must presume that

the jury resolved such facts in favor of the verdict and defer to that resolution.

Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). We also determine whether the necessary inferences are 12 reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at

778. We may not substitute our judgment concerning the weight and credibility of

the evidence for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000).

Courts and juries no longer face the difficult task of excluding every reasonable hypothesis other than the defendant’s guilt. Under the current standard of review, there is no reason to treat circumstantial evidence of an accused’s mental state any differently than circumstantial evidence of other elements. Just as circumstantial evidence is reviewed under the same standard as direct evidence, circumstantial evidence of intent is reviewed under the same standard as circumstantial evidence of other elements.

Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). “As long as the

verdict is supported by a reasonable inference, it is within the province of the

factfinder to choose which inference is most reasonable.” Id. at 523.

In 2013, Victorick was employed as a high school coach and teacher. A year

before the events at issue in this appeal, Victorick’s wife became concerned that

Victorick might have developed a sexual attraction to K.E. His wife noticed that

Victorick displayed a keen interest in the possibility that his step-daughter, K.E.,

might be sexually active and the wife observed what appeared to be inappropriate

sexual remarks in text messages from Victorick to K.E. Victorick explained to his

wife that he had been “referring to . . . basketball, teaching her how to shoot,

13 dribble better, things of that nature[]” and that is what he meant when he sent K.E.

a text message saying that “he could show her things and do things that, you know,

some of those boys couldn’t.” Mrs. Victorick believed her husband, but she put

locks on K.E.’s door and she would stay up until Victorick went to bed “to make

sure that he wasn’t going in there and downloading from her phone[.]” There were

times when Victorick was “acting like a jealous boyfriend[;]” for example, once he

climbed a ladder to look into a neighboring cul-de-sac to observe K.E. and her

boyfriend.

On the date of the offense, Victorick, his wife, and K.E. were attending a

graduation party at a friend’s home. Victorick was, according to his wife, “drinking

excessively” at the party. After K.E. left the party and went to a nearby fast food

restaurant with a boy, Victorick sent K.E. a text message asking, “Is your quickly

done? Time to get back.” K.E. responded, “I’m pretty sure all we did was go get

ice cream.” The exchange of messages between K.E. and Victorick continued as

follows:

K.E.: We need water

Victorick: I.need then & sick me you willl love, where are you! Suck me!

K.E.: Never

Victorick: If you ever. You will h understand how good I I eat p[---]y, let me show you! You will. Love ir!!’ Ask the others!!

14 K.E.: F[---] you

Victorick: Please let me eat you you will love, it quit f[---]ing, I love your, miore than you know!

K.E.: F[---]ing for

K.E.: Die 2

K.E. showed the messages to Victorick’s wife, who understood that it

referred to oral sex. A few weeks thereafter, K.E. called 9-1-1 about a physical

altercation she had with Victorick. During the call, K.E. told the dispatcher that

Victorick grabbed her by her hair and shoved her into the furniture, and also that

he was “trying to get me to do things with him . . . sexual things.”

K.E. testified at trial that she did not believe Victorick was trying to have

sex with her, and that she believed he could have sent the messages because he was

trying to keep her from having sex with more people. She does remember,

however, telling her mother that she was “creeped out” by her stepfather, and she

agreed that she called 9-1-1. A clinical psychologist testified for the State. He

stated that he had counseled hundreds of children who were victims of sexual

abuse. With respect to the Victorick case, he observed the testimony of K.E.,

reviewed some but not all of the texts between Victorick and K.E, reviewed the

statements given by K.E.’s mother and Victorick, and reviewed other items from

2 We use brackets and dashes to note our omission of some letters due to the profane nature of the words. 15 the reports. Further, he testified that abusers often “groom” their victims “[t]o

foster that dependence and to foster that trust so that they can not only abuse the

child and have access to them, but to the extent that they do harm the child in some

way, the child may not tell about it, may even have positive relationships toward

the person related to ways that they’ve been manipulated.” The psychologist stated

that the testimony of K.E. that she did not want Victorick to get in trouble, or that

she did not think the texts were intended to be sexual, or that she blamed herself,

would be

consistent with someone who has been groomed by a suspect, groomed to feel like, to the extent anything bad is happening, it’s my fault, rather than the other person’s fault, and groomed to take responsibility for that, rather than entertain the idea, which may be a hard idea to entertain, to the extent that a child wants to believe in their father and the goodness of their father and having a good relationship with the father, that can be a lot for a child to give up. And in some cases that I have worked on, they will try to deny or rationalize or even blame themselves for what’s happening rather than believe that their father might be trying to hurt them.

A forensic examination of Victorick’s phone revealed an exchange of

thousands of messages between Victorick and K.E. prior to July 25, 2013. Included

within the messages are statements that demonstrate Victorick’s sexual interest in

K.E.

In his brief on appeal, Victorick further argues that his communications

before the date of the offense were not illegal, “no matter how salacious, vulgar,

16 inappropriate or sexually explicit any of the text messages that Mr. Victorick sent

before June 2, 2013, may have been[.]” He argues that the text message sent from

his phone when K.E. went to the fast food restaurant did not request that K.E. meet

him. Victorick contends that his messages, which express a present desire to

engage in oral sex, appear to have occurred after K.E. returned to the party because

they were made after K.E. asked Victorick for water. The alleged presence of

Victorick and K.E. being in the same building at the time Victorick sent the

messages would not, however, negate the element of the offense that the person

“knowingly solicits a minor to meet another person, including the actor” with the

intent that the minor will engage in sexual contact. See Tex. Penal Code Ann. §

33.021(c). The jury could have reasonably concluded based upon the content of the

messages, as well as the testimony and evidence in the record, that Victorick sent

K.E. a text message that solicited K.E., a minor, to meet.

“Meet” is not defined in the statute. “Words not specially defined by the

Legislature are to be understood as ordinary usage allows, and jurors may thus

freely read statutory language to have any meaning which is acceptable in common

parlance.” Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).

“Accordingly, when determining the sufficiency of evidence to support a jury

verdict, reviewing courts must not employ definitions of relevant statutory words

which are different or more restrictive than the jurors themselves were legally 17 entitled to use.” Id. Among its commonly understood terms, “meet” means, “to

come near or in touch with by approach from another direction” and “in the basic

sense pertinent here, [usually] implies no more than to come into the presence or

company of whether by chance or design[.]” WEBSTER’S THIRD NEW INT’L

DICTIONARY 1404 (2002). The jury could, using the ordinary understanding of the

word “meet,” find that Victorick solicited K.E. to meet him, and further that

Victorick asked the victim to engage in a sex act that required physical contact

between them.

Victorick argues that the text message, “I.need then & sick me you willl

love, where are you! Suck me!”, does not “solicit” K.E. “Solicit” is not defined in

section 33.021 of the Texas Penal Code, and could be understood by the jury by its

commonly defined terms, which include, “to approach with a request or plea” and

“to endeavor to obtain by asking or pleading[.]” WEBSTER’S THIRD NEW INT’L

DICTIONARY 2169 (2002). “Suck” is also found in the dictionary, and includes the

meaning, “to draw in the mouth over or around an object. . . .” Id. at 2283. The part

of “me” to which Victorick referred could be understood by the jury to mean his

genitals, especially in light of another communication from Victorick to K.E. in

which Victorick suggested that they engage in oral sex. The jury could, using the

ordinary understanding of the word “solicit,” find that Victorick asked or pleaded

with K.E. to engage in oral sex. 18 Victorick contends that the evidence is legally insufficient because the mere

presence of the text on his phone does not prove that he sent the message because

there were college-age students at the party and one of them could have sent the

message. The officer who examined Victorick’s phone testified that it was

password-protected. It was reasonable for the jury to infer that Victorick sent the

message. His wife saw him use the phone that night, and Victorick sent sexually

explicit messages to K.E. on many other occasions.3 Because the inference that it

was Victorick that sent the message from his password-protected phone was

reasonable, the State was not required to exclude the possibility that someone else

at the party used Victorick’s phone to send the messages to K.E. See Laster, 275

S.W.3d at 521, 523.

Viewing the totality of the evidence and inferences in a light most favorable

to the verdict, the jury could have reasonably inferred that Victorick sent the

messages to K.E. See Hooper, 214 S.W.3d at 13. We conclude that the evidence is

legally sufficient to support the verdict. Accordingly, we overrule issue one.

3 The testimony and evidence indicated that Victorick—a 58-year-old high school teacher and coach—spied upon K.E. when she was with her friends; he snuck into her room at night while she slept; he used the “notes” function of his cell phone to record his own thoughts regarding her sexual activity and to record his sexual attraction to her; and he sent many other text messages to K.E. that included requests to be permitted to perform what a jury could reasonably conclude were sex acts. 19 IMPARTIAL TRIBUNAL

In his second issue in Appeal No. 09-14-00190-CR (appeal of his

conviction), Victorick argues that the reference to the “victim” in the pre-trial order

setting ancillary conditions of bond demonstrates that the trial judge pre-judged his

guilt, and establishes that he was deprived of a fair and impartial tribunal, in

violation of the Due Process Clause of the Fifth and Fourteenth Amendments. See

Tumey v. Ohio, 273 U.S. 510, 523 (1927). “A fair trial in a fair tribunal is a basic

requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955).

The trial court used a pre-printed form that contained several references to

the “victim” and “the victim’s family” which Victorick argues indicates that the

trial court pre-judged his guilt before the trial. The document imposes conditions

but includes no factual findings. The document was not prepared for use before the

jury, nor is there any indication from the record that the pre-trial order setting

ancillary conditions of bond was ever shown to the jury. Additionally, during the

trial, when Victorick objected to the prosecutor’s reference to the complaining

witness as “the victim” the trial court sustained the objection and instructed

counsel to use the phrase “alleged victim” and instructed the jury that “any time

. . . prosecutor uses the word ‘victim,’ that you take it as alleged victim.”

Therefore, we conclude that the record does not support Victorick’s claim that the

trial court deprived him of the presumption of innocence. We overrule issue two. 20 RECUSAL PROCEDURE

In his third issue in Appeal No. 09-14-00190-CR (appeal of his conviction),

Victorick challenges the constitutionality of the recusal procedure contained in

Rule 18a(a)(3) and 18a(j)(1)(A) of the Texas Rules of Civil Procedure. See Tex. R.

Civ. P. 18a. Subsection (a)(3) of Rule 18a provides that a party may not seek

recusal of the judge solely on account of the judge’s rulings in the case in which

his recusal is sought. Id. Subsection (j)(1)(A) states that an order denying a motion

to recuse may be reviewed only for abuse of discretion on appeal from the final

judgment. Id. Victorick argues that Rule 18a unconstitutionally denies a criminal

defendant due process “[b]ecause the defendant will have been forced, as was Mr.

Victorick, to a trial before a judge who has prejudged his guilt.”

“Whenever we are confronted with an attack upon the constitutionality of a

statute, we presume that the statute is valid and that the Legislature has not acted

unreasonably or arbitrarily. [citation omitted] The burden rests upon the individual

who challenges the statute to establish its unconstitutionality” as applied to him.

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (citing to Ex parte

Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)); Wood v. State, 18

S.W.3d 642, 650-51 (Tex. Crim. App. 2000). Victorick has not established that the

trial court prejudged his guilt. Furthermore, Victorick has not shown that Rule 18a

21 is unconstitutional as applied to him or as applied to some hypothetical third party.

Therefore, we overrule issue three.

CONCLUSION

Having overruled all of the issues that have been raised by the appellant in

his appeals, we affirm the order denying the application for a writ of habeas corpus

and we affirm the judgment of conviction.

AFFIRMED.

________________________________ LEANNE JOHNSON Justice

Submitted on November 10, 2014 Opinion Delivered December 10, 2014 Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

22 IN THE NINTH COURT OF APPEALS _____________________ _____

09-14-00112-CR __________________________

_________________________________________________________________

On Appeal from the 435th District Court of Montgomery County, Texas Trial Cause No. 13-11-12323 CR _________________________________________________________________

JUDGMENT

THE NINTH COURT OF APPEALS, having considered this cause on appeal, concludes that the order of the trial court should be affirmed. IT IS THEREFORE ORDERED, in accordance with the Court’s opinion, that the order denying the application for a writ of habeas corpus is affirmed. Opinion of the Court delivered by Justice Leanne Johnson December 10, 2014 AFFIRMED ********** Copies of this judgment and the Court’s opinion are certified for observance.

Carol Anne Harley Clerk of the Court 13 48