Tag Archives: Texas Law

Chocolate Penis Spells Trouble in Waco

The Waco Tribune-Herald reports that Thomas Gourneau of Cedar Hill has been charged with criminal harassment after sending a penis-shaped chocolate candy bar to a McLennan County Sheriff’s employee.  The prank, which targeted Tracy Chance who formerly worked for the Sheriff and is now a jailer, was based on a romantic rivalry between the two men over Gourneau dating Chance’s ex-wife.

The posting of the problematic pecker has been turned into a criminal case by an overzealous prosecutor likely because the target worked in law enforcement.  Even though there are allegations of long-standing animosity between Gourneau and Chance, it is hard to imagine that a local DA would be interested in such antics if the target of the prank had not been working for the Sheriff.  The chocolate cock was sent anonymously, so it required actual detective work investigating Gourneau’s bank and credit card records.  Red is glad to see that the McLennan County Sheriff and DA are doing God’s work after completely botching the prosecution of bikers in the wake of the fatal Twin Peaks shootout.  But it’s no laughing matter for Gourneau who faces up so six months in jail and a $2000 fine for his actions in sending the delicious dick to Chance.

Gourneau’s attorney, Cody Cleveland, questions the motives behind prosecution for sending a phony phallus. In his interview with the Tribune-Herald, Cleveland expressed his dismay with a complaint over a  succulent schlong.

“I question whether if I or somebody not involved in law enforcement had called 911 and said we had a matter that needed to be investigated and told them I had received a chocolate candy bar in the shape of a penis, how long I would be sitting before they arrived at my office or my house to investigate that crime,” Cleveland said. “I wonder whether or not there would be any kind of follow-up as far as a warrant issued or an arrest made.  I just think because this guy works for the sheriff’s office and it got delivered to him at the sheriff’s office that it was easy for him to walk across the hall and get a detective to look into the case. That’s the reason they went forward.”

Well, Waco has never been known as the most tolerant of Texas towns.  So if you are thinking of sending any edible genitalia (vanilla vagina?) in that direction, be forewarned.

 

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Today in Texas History – April 15

From the Annals of the Supreme Court – In1869, the U.S. Supreme Court handed down its decision in Texas v. White which essentially eviscerated the argument of individual state sovereignty apart from the Union.  The SCt ruled that Texas still had the right to sue in the federal courts despite having seceded in 1861.  Texas has sued for an injunction prohibiting George W. White and others from transferring U.S. issued bonds they purchased from the secession-era Texas State Military Board during the Civil War.  The bonds had been issued to Texas as part of the Compromise of 1850, but at the time of the Civil War not all such bonds had been issued.  Texas sold the bonds to raise funds durng the war.  After the war, the US Treasury refused to redeem the war-issued bonds.  Texas sued to reclaim the bonds from the purchasers.  Under Article III, section 2 of the US Constitution, which provides original jurisdiction in the Supreme Court in cases where the State is a party, Texas sued directly in the U.S. Supreme Court   At the SCt, the issue turned on whether Texas, having seceded and not having completed Reconstruction, had status in the Union and therefore the right to sue as a federal court.  Texas argued that the Union was indestructible and Texas’ status as a state remained unchanged by the war.  White argued that Texas, by seceding from the Union and waging war against the United States, had lost the status of a state in the Union and therefore had no right to sue in the SCt. In a five-to-three decision authored by Chief Justice S. P. Chase, the court held the Union to be indestructible and thus not dissoluble by any act of a state, the government, or the people.

Today in Texas History – November 30

From the Annals of the Governing Documents – In 1869, Texas voters approved a new state constitution. The 1869 Constitution was adopted during Reconstruction in compliance with Congressional mandates.  The preface of the bill of rights in the new constitution reflected strong sentiment against the previous unpleasantness of secession and the horrors of the Civil War.  The Constitution of the United States was declared to be the supreme law.  Slavery was outlawed and the equality of all persons before the law was recognized.  This was intended to protect the rights of freedmen.  The 1869 Constitution was short-lived.  As Reconstruction ended, the very racist southern Democrats of the time called for a new constitution which was adopted in 1876 and provided strict limits on governmental powers.  That document is still the basis for Texas governance today – even though heavily amended subsequent years.

Will the Beaver Eat the Gator? Buc-ee’s claims Choke Creek’s logo is too similar

Mega-roadside store chain Buc-ee’s has sued its much smaller competitor Choke Creek claiming that CC’s cowboy hat wearing alligator logo is too similar to Buc-ee’s baseball cap wearing beaver.   The trademark infringement suit was filed in December of 2015, but is being tried this week in U.S. District Judge Keith Ellison’s court in Houston.

Red for one has never confused a baseball cap with a cowboy hat or a beaver for an alligator – especially an alligator sporting some awesome “guns.”  Just saying.

Supreme Court Finds Texas Uses Obsolete Standard for Mental Illness in Capital Cases

On Tuesday, the U.S. Supreme Court held that Texas has been using an obsolete standard in determining whether persons convicted of capital crimes have the requisite mental capacity to deserve execution for their actions.  In a  5-to-3 decision,  the Court determined that  Bobby James Moore, who killed a store clerk in in Houston in 1980 during a botched robbery, had not been judged by a correct standard for his decided mental deficiencies.  Guilt  was not an issue; nor was the fact that Moore had extremely limited  mental abilities. In fact, prosecution’s expert witness had testified  that Moore “suffers from borderline intellectual functioning.”  The case now goes back to the Texas Court of Criminal Appeals – a court notoriously favorable to upholding death penalty convictions.  The state must come up with a new method to determine if a convicted inmate is intellectually disabled and therefore ineligible for execution.   Texas can no longer rely on decades-old medical standards and a controversial set of factors.   The Texas Tribune has more.

 Moore was convicted of capital murder and sentenced to death in July 1980, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to Texas’ brief to the high court.

In 2014, a Texas state court used current medical standards, which looks for deficits in intellectual and adaptive functioning that began as a child, to determine Moore was intellectually disabled and could not be executed. But the Texas Court of Criminal Appeals overruled the decision, claiming the lower court erred by using those standards instead of the state’s test.

The test, commonly known as the Briseno standard, was established by the Court of Criminal Appeals in 2004, two years after the U.S. Supreme Court ruled that executing the intellectually disabled was unconstitutional. The court defined the test using a medical definition from 1992 — which claims intellectual and adaptive functioning must be “related,” meaning Moore’s poor adaptive skills could be traced to something else, like an abusive childhood. The test also uses several other nonclinical factors (the Briseno factors) to help courts determine adaptive functioning. The Court of Criminal Appeals claimed, based on its test, that Moore doesn’t legally have the disability.

Included in the Briseno factors is a controversial reference to Lennie, a character from John Steinbeck’s novel “Of Mice and Men.” The Briseno opinion written by the Court of Criminal Appeals said most citizens might agree a person like Lennie, a childlike character who didn’t intend to kill a woman but simply didn’t understand his strength, should be exempt from execution. The state has argued the reference was an “aside.” Critics say it exemplifies the arbitrariness of defining intellectual disability in Texas.

In the opinion, Ginsburg faults Texas for using current medical standards in other criminal cases, but not with the death penalty.

“Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake,” she wrote.

The Texas Court of Criminal Appeals ruled Moore was not intellectually disabled by looking at both intellectual and adaptive deficits. But the high court knocked down the ruling not only on adaptive functioning  — how he can learn new skills, etc. — but also on intellectual functioning as well. Previous court rulings have stated that when intellectual functioning is “borderline,” with an IQ at or around 70, the state must look into adaptive behavior. Moore’s IQ, 74, led the high court to rule that this was necessary, which is what triggered Roberts’ dissent.

Roberts agreed that the nonclinical Briseno factors are an “unacceptable method” of determining adaptive deficits but said the Texas Court of Criminal Appeals still performed its due diligence in determining Moore’s intellectual functioning.

“The Court overturns the CCA’s conclusion that Moore failed to present sufficient evidence of both inadequate intellectual functioning and significant deficits in adaptive behavior without even considering ‘objective indicia of society’s standards’ reflected in the practices among the States,” Roberts wrote. “The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles.”

Moore’s case was the third time since 2002 that the high court considered the death penalty and the intellectually disabled. That year, justices ruled that executing people with intellectual disabilities is unconstitutional, but it left it up to the states to legally determine the condition. In 2014, the court weighed in on borderline cases, ruling that states can’t use an IQ below 70 as the sole way to define the disability.

In Texas, It’s a Felony to Harbor an Illegal Alien – But What Does that Mean?

The Fifth Circuit Court of Appeals has reinstated a Texas law that makes it a felony punishable by up to 10 years to harbor illegal aliens.  The ruling lifted an injunction that had blocked the 2015 law from taking full effect, in a ruling praised by both the state and immigrant advocates.

The law makes it a felony to encourage unauthorized immigrants to enter or remain in the country by concealing, harboring or shielding that person from detection.  Two landlords had sued to prevent enforcement arguing that the law was overly broad and could apply to people who rent apartments and homes to undocumented immigrants.  Texas argued that the law was intended to apply only to alien smuggling and human trafficking operations.  But that wasn’t the way the law was written and  – given the near total control of the State by the Red Meat Wing of the Republican Party – it was an open question as to who could be prosecuted.

The Fifth Circuit, in an opinion by Judge Jerry Smith, cleared the air by holding that the law as written does not apply to persons who provide shelter to or conduct business with illegal aliens.

“There is no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes ‘harboring … that person from detection.'”

Thus, landlords and homeless shelters cannot be prosecuted.  Here, the Fifth Circuit saved the bacon of the pathetic excuse for an Attorney General that is Ken Paxton by issuing a ruling that saves the statute but likely does not accomplish what the Tea Party dominated State House really wanted.

Trump Drops Texas Voters in the Grease

Coming down on the side of making it harder to vote in the face of absolutely no evidence of in-person voter fraud, the Trump Administration decided that Texas’ Voter ID law is A-Okay.  The Texas Tribune reports:

The U.S. Department of Justice confirmed Monday it plans to ditch its longstanding position that Texas lawmakers purposefully discriminated against minority voters by passing the nation’s strictest voter identification law in 2011.

The move comes one day before a federal judge is scheduled to hear arguments on that high-stakes voting rights question, and it highlights yet another instance in which President Donald Trump has dramatically departed from the path of his predecessor.

Former President Obama’s Justice Department originally teamed up with civil rights groups against Texas throughout the long-winding legal battle over the ID law, known as Senate Bill 14. But on Monday, lawyers for U.S. Attorney General Jeff Sessions told parties that they were dropping a claim that Texas lawmakers intentionally discriminated against Latino and African-American voters.