                                                                                    PD-1634-14
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
August 13, 2015                                                Transmitted 8/12/2015 6:19:57 PM
                                                                 Accepted 8/13/2015 2:09:11 PM
                                                                                 ABEL ACOSTA
                            NO. PD-1634-14                                               CLERK

                  IN THE COURT OF CRIMINAL APPEALS
                           STATE OF TEXAS


                    AARON JACOB MOORE, Appellant

                                 VS.

                       STATE OF TEXAS, Appellee


                         No. 01-13-00663-CR
          IN THE FIRST COURT OF APPEALS, HOUSTON, TEXAS

                    CAUSE NO. 12-DCR-059791
    IN THE 400TH DISTRICT COURT, FORT BEND COUNTY, TEXAS


                  STATE'S REPLY BRIEF ON THE MERITS


                                       John F. Healey
                                       District Attorney, 268th Judicial District
                                       Fort Bend County, Texas

                                       C. Alexandra Foley
                                       Assistant District Attorney

                                       Gail Kikawa McConnell
                                       SBOT #11395400
                                       Assistant District Attorney
                                       301 Jackson Street
                                       Richmond, Texas 77469
                                       (281) 341-4460 / (281) 238-3340 (fax)

                                       Counsel for the State
                                      TABLE OF CONTENTS


TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

QUESTION GRANTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

        Does the court of appeals’s construction of “the state” in Section
        54.02(j)(4)(A), Family Code require dismissal of a case with prejudice
        without consideration of the factors for oppressive delay in violation of
        the separation of powers doctrine?

SUMMARY OF THE REPLY ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REPLY ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        A.      The office of a district attorney is constitutionally created and
                protected, and the Separation of Powers violation is the
                abridgment of the prosecutorial function. . . . . . . . . . . . . . . . . . . . . . . 2

        B       The Separation of Powers Clause protects prosecutorial duties
                under the Juvenile Justice Code, in particular, to protect the public
                and public safety, and to promote the concept of punishment for
                criminal acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

        C.      Section 54.02(j)(4)(A) is not a contractual arrangement like the
                Interstate Agreement on Detainers Act . . . . . . . . . . . . . . . . . . . . . . . . 7

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                         i
                                      INDEX OF AUTHORITIES

CASES                                                                                                          PAGE

Ex parte Youngblood,
      251 S.W. 509 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Johnson v. State
      58 S.W.60 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Landers v. State,
     256 S.W.3d 295 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Langever v. Miller,
     76 S.W.2d 1025 (Tex. 1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Meshell v. State,
     739 S.W.2d 246 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . 2, 3-4, 5, 7

State ex rel. Eidson v. Edwards,
       793 S.W.2d 1 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

State v. Williams,
       938 S.W.2d 456 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . 3, 7-8

Williams v. State,
      707 S.W.2d 40 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


TEXAS CONSTITUTION

Article V
       Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
       Section 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
       Section 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




                                                           ii
STATUTES

Code of Criminal Procedure
     Article 2.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
     Article 12.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
     Article 51.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Family Code
     Section 51.01            ................................................. 5
     Section 51.02            ................................................. 6
     Section 51.03            ................................................. 6
     Section 54.02            . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7, 8

Penal Code
      Section 22.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                           iii
                               NO. PD-1634-14

               IN THE COURT OF CRIMINAL APPEALS
                        STATE OF TEXAS


                   AARON JACOB MOORE, Appellant

                                      VS.

                        STATE OF TEXAS, Appellee


                       No. 01-13-00663-CR
        IN THE FIRST COURT OF APPEALS, HOUSTON, TEXAS

                   CAUSE NO. 12-DCR-059791
   IN THE 400TH DISTRICT COURT, FORT BEND COUNTY, TEXAS


               STATE'S REPLY BRIEF ON THE MERITS


TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

                  QUESTION GRANTED FOR REVIEW

    Does the court of appeals’s construction of “the state” in Section
    54.02(j)(4)(A), Family Code require dismissal of a case with prejudice
    without consideration of the factors for oppressive delay in violation of
    the separation of powers doctrine?




                                       iv
                   SUMMARY OF THE REPLY ARGUMENT

      Appellant argues that unlike the office of a county attorney, the office of a

district attorney is legislatively, not constitutionally created. However, this Court has

held that both offices are constitutionally created and protected. The Separation of

Powers Clause is violated when the Legislature abridges the prosecutorial function

conferred by the Texas Constitution on another department.

      Appellant argues that the Texas Constitution authorizes the Legislature to

establish other courts. However, that authority does not extend to the creation of a

right not to be punished for serious criminal acts or to abridge the prosecutorial

authority of the State. Further, the Juvenile Justice Code recognizes that juveniles

who commit criminal acts should be prosecuted and punished.

      Appellant argues in the alternative that Section 54.02, Family Code is

contractual in nature like plea agreements or the Interstate Agreement on Detainers

Act (“IADA”). However, in Williams v. State, this Court found the contractual nature

of the IADA dispositive in distinguishing the IADA from the unconstitutional Speedy

Trial Act. Likewise, Section 54.02 is not contractual in nature.




                                           1
                                REPLY ARGUMENT

       A.     The office of a district attorney is constitutionally created and
              protected, and the the Separation of Powers violation is the
              abridgment of the prosecutorial function.

       Appellant first argues that in Meshell v. State, 739 S.W.2d 246 (Tex. Crim.

App. 1987), this Court found a separation of powers violation on the basis of the

Freestone County Attorney’s “constitutional duty ‘to represent the State in all cases

in the District and inferior courts.’” [Appellant’s Br at 16] Appellant argues that the

district attorney in this case does not have the exclusive prosecutorial duty of the

Freestone County Attorney. [Appellant’s Br at 17]

       However, in finding that a trial court cannot disqualify a district attorney’s

office from prosecuting a case, absent prior representation of the defendant in the

same criminal action, this Court held:

       In Texas, the elected district or county attorney “shall represent the state
       in all criminal cases in the district courts of his district and in appeals
       therefrom, except in cases where he has been, before his election,
       employed adversely.” Tex. Code Crim. Proc. art. 2.01. The office of a
       district attorney is constitutionally created and protected; thus the district
       attorney’s authority “cannot be abridged or taken away.” State ex rel.
       Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990).

Landers v. State, 256 S.W.3d 295, 303-04 (Tex. Crim. App. 2008) (footnote citations

inserted in the text).

       Hence, the prosecutorial discretion of the district attorney is just as much


                                             2
protected by the Texas Constitution as that of a county attorney.

      Appellant further argues that “Article 5, Section 211 [sic], of the Texas

Constitution, expressly provides that the Legislature--and therefore, not the Texas

Constitution--shall regulate the duties of a district attorney.” [Appellant’s Br at 17]

However, this argument does apply this Court’s carefully reasoning in Meshell.

      In Meshell, this Court first recognized that the Texas Constitution conferred on

the Legislature, “complete authority to pass any law regulating the means, manner,

and mode of assertion of any of [a defendant’s] rights in the court.” Meshell, 739

S.W.2d at 255 (quoting Johnson v. State, 58 S.W. 60, 71 (1900)). This Court then

observed that a prerequisite to the Legislature’s power to act under its constitutional

authority “is the existence of a right for which the Legislature can provide procedural

guidelines.”   Meshell, 739 S.W.2d at 255. The Court then distinguished the

Legislature’s “ultimate control over establishment of procedural rules of court” from

creating a substantive right that exceeded the Legislature’s grant of power and

encroached upon another department, citing:

      Williams v. State, 707 S.W.2d 40 (Tex. Crim. App. 1986) (per curiam)
      (Legislature exceeded limited power to enact procedural guidelines for


      1
              Article 5, Section 21 establishes the offices of the county and district
attorney. Tex. Const. art. V, § 21. Section 31(a) now primarily provides the Supreme
Court of Texas with rule-making powers for the courts. State’s Brief at 13, see also
State v. Williams, 938 S.W.2d 456, 459 (1997).

                                          3
      bail and bail forfeiture); Ex parte Youngblood, 251 S.W. 509 (1923)
      (Legislature exceeded limited authority of contempt power); Langever
      v. Miller, 76 S.W.2d 1025, 1035–38 (Tex. 1934) (legislative power to
      enact procedural guidelines could not support substantive invasion of
      court's ability to enforce valid prior judgment).

Meshell, 739 S.W.2d at 255.

      This Court held that Article 32A, Code of Criminal Procedure violated the

Separation of Powers Clause because it was “directed at speeding the prosecutor’s

preparation and ultimate readiness for trial” and not at “providing procedural

guidelines for the speedy commencement of trial.” Meshell, 739 S.W.2d at 255. The

Act, if enforced would deprive the prosecuting attorney “of his exclusive prosecutorial

discretion in preparing for trial without any consideration for the factors used in

determining whether [the defendant] has been deprived of his constitutional right to

a speedy trial.” Id. at 256.

      Likewise, in requiring “a reason beyond the control of the state” to confer

jurisdiction on the juvenile court to transfer a case to district court, Section

54.02(j)(4)(A), is “directed at speeding the prosecutor’s preparation and ultimate

readiness” and not at providing procedural guidelines to prevent unconstitutional

oppressive delay in the filing of charges. This statute, if enforced would deprive the

prosecuting attorney of his exclusive prosecutorial discretion in filing charges without

any consider for the factors used in determining whether the defendant suffered


                                           4
unconstitutional oppressive delay.

      Appellant’s attempt to distinguish Meshell is unavailing.

      B      The Separation of Powers Clause protects prosecutorial duties
             under the Juvenile Justice Code, in particular, to protect the
             public and public safety, and to promote the concept of
             punishment for criminal acts.

      Appellant argues that because the Article V, § 1, of the Texas Constitution

authorizes the Legislature to establish other courts, “prescribe the jurisdiction and

organization thereof, and may conform the jurisdiction of the district and other

inferior courts thereto,” Section 54.02(j)(4)(A) is constitutional. [Appellant’s Br at

17-18] However, the constitutional authority to establish other courts does not also

give the Legislature the authority to create a substantive right not to be punished for

serious criminal acts or to encroach on the prosecutorial authority of the State.

      In Section D of his brief, Appellant suggests that the district attorney does not

have a “criminal case” to prosecute because the proceedings in juvenile court are civil

cases. [Appellant’s Brief at 14, 18-21] Appellant does not consider the purposes of

the Juvenile Justice Code; specifically, “to provide for the protection of the public and

public safety,” “to promote the concept of punishment for criminal acts,” and to

“protect the welfare of the community and to control the commission of unlawful acts

by children.” Tex. Fam. Code § 51.01(1), (2)(A), and (4) (West 2008).

      Appellant also does not consider key definitions in the Juvenile Justice Code

                                           5
such as:

•     “Prosecuting attorney” means the county attorney, district attorney, or other
      attorney who regularly serves in a prosecutory capacity in a juvenile court.
      Tex. Fam. Code § 51.02(11) (West 2008).

•     “Delinquent conduct is conduct, other than a traffic offense, that violates a
      penal law of this state or of the United States punishable by imprisonment or
      by confinement in jail.” Tex. Fam. Code § 51.03(a)(1) (West 2008).

      In other words, the Legislature has provided for the prosecution of criminal

cases, albeit with due regard for a defendant’s age. Dismissal of a juvenile petition

when no constitutional violation has occurred means that a serious offense will go

unpunished and the public unprotected.

      In footnote 21, on page 18, Appellant states “the limitations period appears to

be two years, because ‘it has no limitations period’ under Chapter 12, Texas Code of

Criminal Procedure.” [Appellant’s Br at 18, n.21] However, there is “no limitation”

for when a felony indictment may be presented for the offense of aggravated sexual

assault of a child. Tex. Code Crim. Proc. art. 12.01(1)(B) (West 2008).

      In other words, the penetration of the anus of a child, punishable by a sentence

of five to ninety-years or life imprisonment and up to a $10,000 fine, is such a serious

criminal act, that charges may be brought at any time had Appellant been an adult or

if his victim had suffered his sexual acts for a couple more years until Appellant had

turned eighteen. Tex. Penal Code § 22.021(a)(1)(B) (West 2008); Tex. Code Crim.


                                           6
Proc. art. 12.01(1)(B); Tex. Fam. Code § 54.02(j)(4)(B)(i) (West 2008).

      Like Meshell, in enacting a statute that dismisses the State’s case when no

constitutional violation is shown, the Legislature has encroached on the prosecutorial

function conferred by the Constitution on another government department, the district

and county attorneys.

      C.     Section 54.02(j)(4)(A) is not contractual in nature.

      Appellant argues in the alternative that Section 54.02(j)(4)(A) is “[s]imilar to

a plea bargain and the IADA2 compact” and is contractual in nature. [Appellant’s Br

at 21] Appellant argues:

      The jurisdictional provision at issue here affords to a district attorney the
      “benefit” of criminally prosecuting acts otherwise outside a district
      court’s jurisdiction; and in exchange for this opportunity, a prosecuting
      attorney agrees to “leave at the door” those prosecutorial discretions in
      criminal district court that may conflict with the juvenile court’s
      jurisdiction and discretion at its waiver hearing.

[Appellant’s Br at 21]

      Appellant relies on State v. Williams, 938 S.W.2d 456 (Tex. Crim. App. 1997),

in support of his proposition. In Williams, the State argued that the IADA interfered

with its prosecutorial discretion. Williams, 938 S.W.2d at 458. This Court found the

fact that the IADA is a compact between different states dispositive. Id. at 460.


      2
            Interstate Agreement on Detainers Act, codified in Article 51.14, Code
of Criminal Procedure.

                                           7
      The IADA enables a party state to obtain custody of an out-of-state
      prisoner for prosecution, and in exchange, imposes some duties upon that
      state to ensure that the prisoner is quickly returned. This arrangement is
      thus contractual in nature, and the prosecuting authorities submit to this
      contract when they obtain a prisoner through the IADA.

Williams, 938 S.W.2d at 460.

      Williams provides no support for finding Section 54.02(j)(4)(A) contractual in

nature.




                                          8
                                      PRAYER

      The State prays that this Court will find that Section 54.02(j)(4)(A), Family

Code violates the Separation of Powers Clause and is unconstitutional, affirm the

finding of the juvenile court that there was no oppressive investigatory delay, reverse

the judgment of the court of appeals, and affirm the judgment of the juvenile court.

                                               Respectfully submitted,

                                               John F. Healey
                                               SBOT # 09328300
                                               District Attorney, 268th Judicial District
                                               Fort Bend County, Texas

                                               /s/ Gail Kikawa McConnell
                                               Gail Kikawa McConnell
                                               SBOT #11395400
                                               Assistant District Attorney
                                               301 Jackson Street
                                               Richmond, Texas 77469
                                               (281) 341-4460 / (281) 238-3340 (fax)
                                               Gail.McConnell@fortbendcountytx.gov

                                               Counsel for the State



                       CERTIFICATE OF COMPLIANCE

      I hereby certify that the State’s reply brief in total through the prayer is 2,386
words, which is less than the 7,500 word limit for a brief on the merits.

                                               /s/ Gail Kikawa McConnell
                                               Gail Kikawa McConnell


                                           9
                          CERTIFICATE OF SERVICE

       I hereby certify that a copy of the State's brief on the merits was served by the
electronic filing manager or by email August 12, 2015, on Ms. Carmen Roe, Attorney
for Appellant, <carmen@carmenroe.com>, and on Ms. Lisa McMinn, State
Prosecuting Attorney, <Lisa.McMinn@spa.texas.gov>.

                                               /s/ Gail Kikawa McConnell
                                               Gail Kikawa McConnell




                                          10
