Palacios v. State (511 S.W.3d 549, 2014)

OPINION

Opinion by

Chief Justice VALDEZ.

Appellant, Mary Alice Palacios, was convicted of official oppression by intentionally or knowingly subjecting Leroy Trevino and Francisco De Luna III to an arrest that she knew was unlawful. See Tex. Penal Code Ann. § 39.03(a)(1) (West, Westlaw through 3d C.S.). She was sentenced to thirty days’ confinement in the county jail and assessed a fine of $4,000 for each count. However, the sentences were suspended, and appellant was placed on community supervision for six months. By several issues, appellant challenges the convictions. We reverse and render an acquittal.

I. Unlawful Act

This case arises from appellant’s acts and decisions she made while exercising her judicial duties as Justice of the Peace for Precinct 4, Place 2 in Hidalgo County, Texas. At issue are appellant’s interpretation of applicable law in the area of truancy and her authority to act in issuing arrest warrants for Trevino and De Luna. Specifically, the State claimed that appellant’s court lacked jurisdiction to issue arrest warrants for De Luna, that she violated double jeopardy principles, and that she caused Trevino to be arrested for failure to appear in her court when he did in fact appear. In connection with the foregoing, the State indicted appellant for three counts of official oppression, accusing her of subjecting Trevino, De Luna, and Elizabeth Diaz to arrests that she knew were unlawful. Appellant contends that the State’s premise is incorrect under the penal code’s definition of unlawful. Specifically appellant argues that under the penal code, her court’s lack of jurisdiction and her alleged violation of De Luna’s right against double jeopardy do not make her act of signing the arrest warrants in this case unlawful as defined by the penal code. In other words, there was nothing criminal or tortious about her acts.

Under a hypothetically correct jury charge, to convict appellant of official oppression as alleged in this case, the State had to prove that appellant, a public servant, while acting under color of her office or employment, intentionally subjected Trevino and De Luna to an arrest that she knew was “unlawful.” See Tex Penal Code Ann. § 39.03(a)(1); see also State v. Edmond, 933 S.W.2d 120, 127 (Tex.Crim. App.1996) (explaining that when charged with official oppression by mistreatment, the defendant must have known that the mistreatment alleged in the indictment was in fact unlawful in that it was either criminal or tortious). The penal code defines “‘[ufrlawful’ as criminal, tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.” Tex. Penal Code Ann. § 1.07(a)(48) (West, West-law through 2013 3d C.S.). Thus, the State had to prove that appellant, while acting under color of her office, intentionally subjected Trevino and De Luna to an arrest that she knew was criminal, tor-tious, or both. See id., § 39.03(a)(1); Edmond, 933 S.W.2d at 127 (“In order for a defendant to [know that his conduct] is unlawful [under the official oppression statute, the conduct] must be in fact, unlawful. Otherwise a defendant’s ‘mistake of law5 as to the illegality of his own act would create liability where none before existed.”).

The preliminary issue before us is whether appellant’s acts of signing the arrest warrants were criminal or tortious. Although at trial, the State did not allege that any of appellants acts were criminal or tortious, we understand the State’s theory as being that appellant’s acts were criminal because her court lacked jurisdiction, she violated double jeopardy principles, and she had Trevino arrested for an offense he did not commit. See id. A crime is “an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law.” Webster’s http:// www.merriam-webster.com/dictionary/ crime. Here, the State does not cite to any law, and we find no law or authority, that makes a judge criminally liable to punishment if that judge performs an act, such as signing an arrest warrant, though her court lacks jurisdiction. Regarding the violation of double jeopardy principles, again the State cites no law, and we find none, that makes a judge criminally liable to punishment if that judge signs a warrant for a person’s arrest in violation of the defendant’s right against double jeopardy.

Our interpretation of what constitutes an “unlawful” act under the penal code is bolstered by our review of cases determining whether a police officer’s discharge of his official duties is unlawful. For example, in Hall v. State, the issue before the court of criminal appeals was whether a police officer had acted “unlawfully” or within the “lawful discharge” of his official duties when he pushed an inmate. 158 S.W.3d 470, 474 (Tex.Crim.App. 2005). The court explained that a police officer is acting within the lawful discharge of his official duties if he “is not criminally or tortiously abusing his office as a public servant.” Id. at 475. The court of criminal appeals explained that when determining the “lawfulness” or “unlawfulness” of the officer’s acts, the appellate court does not concern itself with whether the officer has crossed every “t” and dotted every “i.” Id. In other words, whether the officer’s acts were unlawful does not depend on whether the officer lawfully arrested the defendant or on whether the officer read the Miranda warnings to the defendant. Id. (citing Guerra v. State, 771 S.W.2d 453, 461 (Tex.Crim.App.1988); Montoya v. State, 744 S.W.2d 15, 29 (Tex.Crim.App. 1987), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim. App.1996)). Instead, what matters is whether the officer’s acts were criminal, tortious, or both. See Id.

Although the case before us does not involve the issue of lawful discharge of official duties, we find Hall instructive and analogous to the situation here. This same reasoning applies to judges, whether a judge’s acts are unlawful as defined by the penal code does not depend on whether the judge lawfully issues a warrant, indeed, there are multiple cases wherein a judge’s warrant is found to be invalid or a police officer’s initial warrantless arrest is without probable cause. See Stiggers v. State, 506 S.W.2d 609 (Tex.Crim.App.1974) (concluding that the arrest of appellant was “unlawful” but stating that “[a]n unreasonable seizure of the person that does not produce evidence of culpability does not per se vitiate a conviction. This is particularly true where, as here, there is no claim that any circumstance of the alleged illegal arrest led to appellant’s conviction, the evidence supporting which is unchallenged.”); Hamm v. State, 709 S.W.2d 14, 15 (Tex.App.-Corpus Christi 1986, no pet.) (“If a conviction is not based upon the fruits of an illegal detention, the mere fact that the illegal detention occurred will not invalidate the subsequent conviction.”). However, as set out in Hall, what matters is whether the judge is criminally or tortiously abusing his office as a public servant. See Hall, 158 S.W.3d at 475.

We understand that the court in Hall analyzed whether a defendant had the right to defend himself with physical force from a public servant. However, pertinent to our analysis, the Hall court held that in order for the police officer’s acts to be unlawful, it had to be criminal, tortious, or both. Hall, 158 S.W.3d 470, 474. Therefore, based on the plain reading of the definition of unlawful in the penal code, and our understanding of what constitutes an unlawful act, as previously stated, the State had the burden of proving that appellant’s act of signing the warrants was criminal or tortious. See Tex. Penal Code Ann. § 39.03. The State, in this case, could not prevail by merely showing that appellant lacked legal authority to act as it has alleged in this case. In addition, the State had the burden of proving beyond a reasonable doubt that appellant knew that her acts were criminal, tortious, or both. See Tex. Penal Code Ann. §§ 1.07(a)(48), 39.03.

II. Standard of Review and Applicable Law

In a sufficiency review, we examine the evidence in the light most favorable to the prosecution to determine whether any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 898-99 (Tex.Crim.App.2010) (plurality op.). The fact finder is the exclusive judge of the facts, the credibility of witnesses, and of the weight to be given testimony. Brooks, 323 S.W.3d at 899. We must resolve any evidentiary inconsistencies in favor of the judgment. Id.

We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314 (Tex.App.-Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997)). Under a hypothetically correct jury charge, a person commits the offense of official oppression, as charged in this case, if the “public servant acting under color of his office or employment ... intentionally subjects another to ... [an] arrest ... that he [or she] knows is unlawful,” i.e., that is criminal, tortious, or both. Tex. Penal Code Ann. § 39.03(a)(1).

The definition of unlawful in the penal code, would not include an act that would be criminal or tortious if not justified or privileged. See id. § 1.07(a)(48) (West, Westlaw through 2013 3d C.S.). Thus, appellant is not guilty in this case, if a justification or privilege existed for her acts. See id. A party is justified under section 9.21 of the Texas Penal Code when “the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process.” Id. § 9.21(a) (West, Westlaw through 2013 3d C.S.). Section 9.21(d)(1) further states that the actor’s conduct is justified if the actor “reasonably believes” that “the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful....” Id. § 9.21(d)(1). A “reasonable belief’ is one “that would be held by an ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(42).

III. The State’s Case

At appellant’s trial, the State presented testimony from a variety of lay witnesses as to whether appellant’s court lacked jurisdiction to issue the warrants for De Luna. The State also presented testimony from De Luna and Trevino, among others. The trial court admitted State’s Exhibits 1 through 16, which include a variety of documents filed in appellant’s court and with the Hidalgo County Sheriffs Office (the “HCSO”). The trial court also admitted copies of the text of articles 45.057, 45.058, 45.059, and 45.060 of the Texas Code of Criminal Procedure. Appellant presented testimony from several witnesses. The trial court also admitted Defendant’s Exhibit 1, which is a memo sent on May 5, 2008 to the Hidalgo County Sheriffs Office requesting that any defendant incarcerated for a capias pro fine issued under her authority be released on a promise to appear.

In its opening remarks, the State prosecutor stated the following:

May it please the Court, opposing counsel, co-counsel. Good afternoon.

In January of last year, 2010, Public Defender Jaime Gonzalez was happening just to go through a list of the jail rosters. He came across a name, Francisco De Luna, and he noticed that he was in jail approximately 18 days on a Class C misdemeanor, raised all types of red flags for him because normally, for him, he notices when somebody is in jail more than 15 days on a Class B misdemeanor. He tries to get them out. They’ve been in jail too long.

It’s his responsibility as a public defender. He’s been charged or he’s been requested by the County Commissioner’s Court to ensure that—that—to make sure that all of those defendants who are in jail, especially those misdemeanor offenses, that they are not spending too much time in jail because we have—we spend so much money every day on these defendants that every time they are in county jail, taxpayers have to pay so much money per day for them and also to protect their rights.

So this is what started the whole thing. And when—about the ease, the eventual civil case and the eventual criminal ease against Judge Mary Alice Palacios. You’re going to find through the evidence—and the evidence is going to be in the form of exhibits and the form of testimony. And those exhibits all are going to come from Judge Mary Alice Palacios’s court.

You’re going to find that these exhibits are very—they’re dismal. But—but the evidence is there nonetheless. And all of this is from her court, all of these exhibits, primarily all of them.

And you’re going to notice with Francisco De Luna that he had multiple failure to attend cases, including, also, failure to comply cases, as well, but, regardless, they were all Class C misdemeanors, juvenile offenses.

You’re going to find that Judge Mary Alice Palacios signed orders transferring each and every one of [De Luna’s] cases, except for the last one, 22 orders transferring. You’re going to learn that by doing so, she no longer has jurisdiction of a case. And just like Judge Aida Salinas Flores mentioned during voir dire, a Court must have jurisdiction over a defendant. She waived that jurisdiction by sending all those cases over to juvenile court.

He [De Luna] goes to juvenile court. There is a—at some point there is a letter sent to Judge Mary Alice Palac-ios’s court, this is a letter by the juvenile court that’s sent to all public officials, including police departments, that says that the family did not respond to services and the cases are being closed. Nowhere on that letter is there a signature by the judge transferring the case back, nothing of that nature.

Francisco De Luna goes to juvenile court, he’s put on probation for the cases that Judge Mary Alice Palacios transfers up to juvenile court, he does his time, [and] he does his juvenile probation. The day—or close around about the time he turned 17, Judge Mary Alice Palacios issues out what’s called a birthday letter under 45.060 [of the Texas Code of Criminal Procedure]. It’s one of the statutes you got to view during voir dire.

And that letter, she sends it out, and then she has him arrested. He was originally supposed to spend, according to her—her order of arrest—she adjudicated him to arrest. He was supposed to spend 100 and some odd days for about $10,000 worth of fines. She stacked all of the fines in the cases he had been in her court for, even though she knew she had already transferred the cases. How do we know she knew? She signed 22 orders transferring.

That individual who was in here, he would have spent a long time in the county if it hadn’t been for Jaime Gonzalez seeing the injustice. So essentially, Ladies and Gentlemen, what we discussed during voir dire, double jeopardy violation of a Fifth Amendment right. He served two punishments for the same crime. There is no getting around orders to transfer. That’s just one.

The last one Leroy Trevino. This is an individual who did everything and appeared every time he was supposed to report. He appeared multiple times. He was told to go to—he was put under full disposition.

And then eventually—when he was told to come back, he came back every time and, actually, there is a notation in his file that says the case was going to be closed by her court staff because he was doing everything he needed to do. And then the next entry says, no, he needs to pay court costs and fines. There is eight months of inactivity on this file, eight months of inactivity.

A birthday letter is sent out, sent out, and he appears. He appears at her court. We know that because it’s in the file. Yet she still arrests him for failure to appear even though he showed up on the date the summons told him to. It will state on the warrant, failure to attend school, and in parenthesis it will say FTA. According to her court staff, that’s failure to appear. Regardless if they say otherwise, it’s failure to attend school.

Remember the statutes we read during voir dire. You can’t jail them for those fines because those are juvenile cases.

Ladies and Gentlemen, we bring these three before you and ask you that you not judge those individuals for their actions. We’re here on Judge Mary Alice Palacios. And I know that you would want the same rights for yourself and your children and everybody else you know. Everybody has a fair trial, including the judge. It should be the same way those individuals who appeared before her.

They came with their parents before her. Pay up or you’re going to jail, no ifs, ands or buts. I don’t understand. Why do I have to pay when I’m on deferred? Why am I going to have to suddenly pay? Why am I being subjected to arrest? Just take him away.

Ladies and Gentlemen, she knew the law. He appeared before her, and he was arrested. Those are constants. The orders are constants, the summons are constants. They cannot change at all.

The witnesses that you will hear, the majority of them, are all her court staff. They are very loyal to her. But they are State’s witnesses because we have to have them to testify. I just want you to remember that. Just because they’re State’s witnesses—they are still employed by her office. And a lot of those people that you saw in here come in— she has 20 some odd employees.

There is going to be a lot of testimony, I’m sure, that she has a big docket. You’re going to learn that she goes out and recruits—and recruit business, recruit truancy, failure to attend cases, from the school districts.

When someone goes out and runs for this position, gets paid quite a bit of money from Hidalgo County, goes out and tries to round up more business from school districts and also more monies from them, she knows the law.

We don’t know why she’s doing this, bending the law to her favor, but it was happening, and the evidence is there. The law is there. We are confident when you look at these documents and hear testimony, the law—the law, you will find Mary Alice Palacios guilty of three counts of official misconduct. Thank you.

A. The Chief Public Defender, Jaime Gonzalez

Gonzalez testified that the Public Defender’s Office of Hidalgo County “absorb[s] currently 40 percent of the caseload in misdemeanor cases” and that he reviews the jail roster log in order to assist defendants who are in jail for misdemean- or offenses to get out of jail as quickly as possible. Gonzalez stated that his office “normally” “covers Class A and Class B misdemeanors.” According to Gonzalez, Class C misdemeanors are fine-only offenses. Gonzalez stated that he was reviewing a client’s case who had committed a Class C misdemeanor, and he was conducting a “random check[]” of the jail roster because “people fall through the cracks and even though they’re disposed of, they should be released, they remain in custody.” Gonzalez testified that while he was checking on his client, he discovered that De Luna had been in jail for eighteen days for similar reasons as his client. Gonzalez believed that De Luna had been confined due to warrants that appellant had issued. Gonzalez could not recall exactly how long De Luna had been ordered to stay in custody but believed De Luna was required to serve approximately fifty or sixty days. Gonzalez stated that De Luna told him that he had “roughly, $8thou [sic] or so of fines, and he could not pay it and that he was told if he could not pay it, he had to serve time in jail.”

According to Gonzalez, he reviewed the Texas Code of Criminal Procedure and stated, “[I] basically just did a—in my opinion, a quick look over, if there was anything that I could see that if this was correct under the law.” The prosecutor then asked, “So once you determined that he was in there improperly, what did you do?” Gonzalez responded, “At that point I—again, I wasn’t confident of my interpretation of—of the Juvenile Code section, so I contacted Eric Schreiber with the District Attorney’s Office to explain to him my position of my concern with Mr. De Luna and the other [unnamed] individual, their incarceration, and I—that was the next thing.” Gonzalez testified that “Mr. Schreiber ... considered it a gray area. He didn’t—he didn’t understand what I was saying either. We were kind of talking back and forth, so with Mr. Schreiber, I know that Mr. Schreiber and myself wanted to speak to Homer Vasquez with the District Attorney’s Office.[] And I again explained my position on the interpretation of the law.”

Gonzalez stated that after conferring with the other men, he filed a petition for writ of habeas corpus requesting that De Luna be released because he was being held improperly. Gonzalez testified that he filed the writ of habeas corpus because he “believe[d De Luna] was in custody illegally and that is the order to the [c]ourt, and it was granted by Judge Rudy Gonzalez.” The trial court admitted the orders signed by the District Court judge granting habeas corpus relief and ordering that De Luna be released from jail. The trial court overruled defense counsel’s objections to the orders on the bases that: (1) they were not relevant to the arrest issue because the orders concerned confinement issues; and (2) admission violated rule of evidence 404(b).

Gonzalez admitted that he did not review the documents that were filed in appellant’s court regarding De Luna. Gonzalez stated he did not conduct an investigation into the facts, and “[i]t was just a cursory review of the law and what [he] saw off the criminal case management system, Able Term, on my computer, basically.” According to Gonzalez, the Able Term system documented that De Luna was arrested “for possession of marijuana, a Class B misdemeanor.” When the prosecutor asked, “And then he was—then that case [the marihuana possession case] was taken care of.... And then he was arrested on those [juvenile] offenses,” Gonzalez replied, “He was arrested for possession of marijuana, Class B misdemeanor, and he disposed of the case and he continued to remain in custody on the [juvenile] offenses listed in [State’s] Exhibit No. 2.” The prosecutor asked, “And in order for him to have been in custody on those offenses, he had to have been originally arrested for those,” Gonzalez responded, “Correct.” Gonzalez believed “[fjrom what [he] saw” that De Luna committed all of the offenses before he turned seventeen and that De Luna was arrested for those offenses.

When asked to describe his understanding of “double jeopardy,” Gonzalez said,

My understanding is when a person is accused of a crime, when he—either when he’s acquitted or found not guilty in a trial or there is a conviction, he cannot be retried in a trial or there is a conviction, he cannot be retried for the same crime or a similar crime after he’s been acquitted or convicted.[]

Gonzalez agreed with the prosecutor that double jeopardy encompasses “multiple punishments for the same crime.”

The State asked Gonzalez if he was “aware of where Mr. De Luna was arrested,” and Gonzalez replied, “I am not aware exactly where he was arrested. I know that he was originally arrested for a possession of marijuana charge.” Gonzalez testified that he spoke with appellant about De Luna’s case and that appellant “had a different interpretation than” his own interpretation of the “two article sections” they discussed. The prosecutor asked if appellant was “angry.” Gonzalez replied, “I wouldn’t say she was angry, but she was—I recall that she did—she was forceful, raising her voice and her position, defending her position.”

On cross-examination, Gonzalez stated that he did not know that there were twenty-two warrants for De Luna’s arrest. Gonzalez knew that there were ten offenses related to failure to attend school. Gonzalez agreed with appellant’s defense counsel that in a criminal case, the accused will make several appearances in court. Appellant’s defense counsel asked, “Now, sir, tell the jury what a judge can do if an accused individual fails to make any of those appearances?” Gonzalez replied, “A judge can order what’s—an order for their arrest for failure to appear [in court].” Gonzalez did not know who would have had the obligation to notify the accused that he was summoned to appear in court, but he “believed” the notice would come from either the “County Clerk’s Office or from the actual court.” Gonzalez testified that an accused has an obligation to keep the authorities “apprised” of his address. Gonzalez explained that he wanted Schreiber’s opinion regarding De Luna’s situation because Schreiber was a prosecutor in appellant’s court. When appellant’s trial counsel asked Gonzalez if appellant had issued the warrants for De Luna’s arrest for his failure to appear, Gonzalez said, “The warrant that I saw, the ten that are listed on Exhibit 2, were for failure to attend school, from what I saw, and other charges, abusive language, I believe is one of them, I can’t remember exactly.”

On re-direct examination, the prosecutor stated, “Now, you’re not familiar with JP law or Municipal Court law, are you?” Gonzalez responded, “I am not familiar with it [especially when it comes to juveniles].” Gonzalez testified that he does not “handle” truancy or failure to attend cases. The prosecutor then published article 45.060(a) of the Texas Code of Criminal Procedure and asked Gonzalez to read it. Gonzalez said, “It says, A, Except as provided by Articles 45.058 and 45.059, an individual may not be taken into secured custody for offenses alleged to have occurred before the individual’s 17th birthday.” The prosecutor asked, “Okay. Now, the offenses in which you have said that the defendant [De Luna] was arrested on and—and detained were on offenses he committed before his 17th birthday?” Gonzalez replied, “That was my—that was my interpretation, yes.”

On re-cross examination, Gonzalez stated that a person is considered an adult when he or she turns seventeen and agreed that a person who is seventeen can be placed in “secured custody” and go to jail. Gonzalez recalled that all of the offenses occurred when De Luna was younger than seventeen. Gonzalez stated that he did not know when appellant issued warrants for “the failure to appear offenses.”

B. Appellant’s Court Coordinator, Roberto Leal

Leal testified that he had worked as the court coordinator for appellant’s court for approximately seven years. Leal stated, “I pretty much handle a variety of things, the scheduling of her dockets, civil, criminal, you know, truancy court dates.” On cross-examination, Leal explained that appellant’s court “has a civil docket which have to do with small lawsuits under [$]10,000, evictions. Lately we’re doing towing hearings, unlawful towing. We do justice civil courts, we do peace' bonds, we do criminal traffic” and death inquests.

Leal testified that appellant was required to have eighty hours of training in her first year on the bench and then she was required to attend twenty hours of training every year. Leal agreed that the majority of appellant’s cases were truancy cases. Leal explained “the process that a person goes through when they are accused of being truant” as follows:

It goes from the filing of a case, whether it’s a juvenile or an adult, either in the form of a complaint or a citation, and it gets given a docket number. It’s processed. And a process, we mean—I mean it’s input into the system of Able Term, as the County uses it through our clerks, the truancy clerks. From there on out, it’s taken to the case managers, and we send up the ticket—if it’s a ticket, for the most part, a court date is already on the ticket that’s signed by the juvenile or the defendant, in particular, whether it’s a juvenile or an adult. When it’s a complaint, we send out to—a summons to the address that’s provided to us once it’s filed. If—if it’s a—and that’s on a complaint or a ticket.

Once we go to court, everybody signs in, everybody gets the parent—the parents, if it’s a juvenile, they have sign-in sheets to get their information, to get John Doe’s mother’s name, their date of birth, their current address. They fill it out for us so we can put it in the file, and if for whatever reason they have to come back, at least that’s what we know that we have for them. Once they are seated in, the Judge would admonish them, once they are all there, give them their rights, whatnot.

From there on out, the case managers would get the file, start looking through them to see which ones are their first times there; first timers I mean they’ve never been in trouble before, it’s the first time they appear in court and just talk to the parents. Everything was a case-by-case basis.

They would also assess the cases that were set for status. These were people asked to come back under Court order to see how they’re doing, to do a checkup. You know, they were all referred for a drug test to see if anyone were positive or negative, just so we can narrow down why they’re being truant. If they’re positive for drugs, we can focus on that. If they were negative, they would do community service at the Boys and Girls Club Teen Court, you know, but that’s pretty much how the process was.

Everything was on a ease-by-case basis. If they are asked to come back, it varies. It would vary if they didn’t come back. I mean, it’s a big process.

Leal explained that once the child comes into the court on a charge of truancy, that child is read his rights and enters a plea of guilty or not guilty. Leal stated that if the child pleads guilty, the court defers disposition and puts the child on probation. If the child complies with the conditions of probation, then “there is [sic] no court fees that are actually collected if he is compliant.” The judgments are written, and the conditions are provided in writing to the child.

Leal stated that as the judge, appellant would sign the orders that the child was responsible for following. “The case managers would assess the cases.... If they would say they need to do Teen Court or whatever that they—the person or the defendant was asked to do by a case manager, and the judge would enforce the judgment if she agreed with that.” Leal agreed that only the judge has the authority to issue a fine and enforce the conditions. However, the case managers would make recommendations and fill out the paperwork. “Signing the judgment would be the judge. Of course, she would look over them before to make sure everything was where it was supposed to be, and the case managers would fill out, if they could, and not leave the judge on the stand.”

Leal explained that “deferred adjudication” occurs when the defendant is “put on probation from the date of judgment,” and there are several conditions “just on truancy that she can ask you to be on throughout probation. The probation can vary from one month, two months, [or] three months. What it is [] that during that deferral period, whatever the time frame may be, the judge is—if [the defendant] complied again, the original fine assessed is waived, which is the County fine.” Leal agreed with the prosecutor that in defended adjudication situations, the fine was also being deferred. Leal testified that court costs are not deferred and are mandatory according to the county auditors because court costs are only waived if the district attorney’s office dismisses the case.

Leal stated that if the defendant did not comply with the conditions, the defendant is “brought back to court, and we had—we work with several agencies so they give us stats, statistics on—John Doe was referred and he hasn’t gone, even though it was on his judgment.” The defendant is then “brought back” to the coui’t for a “show-cause hearing” where the defendant is asked to explain to the judge his or her reasons for not complying with the conditions of probation.

On cross-examination, appellant’s defense counsel asked, “Are you able to tell the jury how many of [25,000 to 26,000 children in the] truancy cases” that appellant presided over came back to appellant’s court, Leal said, “You would—honestly between those cases, you could say that—I would say maybe a fourth or maybe half, towards the middle, come back. Other first-timers we never see again.” Leal stated that the “success rate of the truancy program conducted by” appellant is “about 89 to 90 percent success rate based on statistics [the court] receives from the other agencies, which are New Beginnings and Teen Court.”

Defense counsel then asked Leal to review the documents admitted into evidence regarding De Luna’s case. Leal agreed that there were “about” twenty-five truancy exhibits regarding De Luna. Leal reviewed Exhibit 90 and described it as “a warrant for Francisco De Luna.” Leal testified that the Edinburg Consolidated Independent School District had filed in appellant’s court a complaint alleging that De Luna had failed to attend school. Warrants had then been “drafted and done in [the court’s] office.” Leal testified that the records also contained three letters that were “FTA, which is failure to appear:” When asked if the warrant was for failure to appear, Leal replied, “It’s more for a case manager, but, I mean, it runs the same as ours. You could say that they failed to appear for that original court setting that they were asked to as an adult.” Leal testified that based on the documents, De Luna failed to appear “about 23, 22, 23, yes” times.

Leal explained that they mail the notices to the defendant’s residence at the addresses provided by the school districts and that it is the defendant’s duty to keep the court informed of his or her change of address. Citations are sent to the defendants telling them when and where to appear. Leal testified that based on the documents before him, De Luna and his mother missed the court dates that they were ordered to attend. Leal stated that without the paperwork, he has no independent recollection of De Luna.

Defense counsel asked Leal to explain appellant’s philosophy regarding the truancy cases. Leal said:

Judge Palacios is not so much about collecting revenue. As far as these cases go, if you want to run numbers on how many delinquent—or how many fines we have out there for students that haven’t appeared, we have a lot to collect. If anything, it’s about getting kids back in school, you know, for the most part because nothing is collected. And to say that Jane Doe or John Doe was in court—we didn’t collect anything there, no. Everything waits after the case is finalized, whatever the outcomes may be, but it’s more about having these kids go to school, and if they have a drug problem, to take care of that, a family problem, to take care of that. It varies.

Leal explained that the forms that are used in appellant’s court are approved by the “D.A.’s office ... particularly Erie Schreiber because he is the ADA that’s assigned to our court. You know, that’s who we have gone to for the most part if anything—we have questions in reference to a particular case or circumstances of a case.” According to Leal, Schreiber “never” alerted him “to any potential problems” concerning the truancy cases in appellant’s court.

On re-direct-examination, the prosecutor asked Leal to review the documents related to De Luna’s case in appellant’s court. Leal established that appellant signed an order transferring De Luna’s case to the juvenile could on March 8, 2007, issued the “birthday letter” on December 17, 2008, and issued the warrant for De Luna’s arrest on January 21, 2009. Leal agreed with the prosecutor that a notation regarding the transfer of De Luna’s case to juvenile court appeared on the docket sheet. Leal clarified that there were twenty-two orders of transfer in De Luna’s case. The prosecutor asked, “All these cases are on this birthday letter for basically notifying them, setting them up to get arrested when he turns 17 for the same offenses that were transferred to juvenile court. Are all of these the same cases?” Leal responded, ‘Yes, ma’am.”

Leal acknowledged that State’s Exhibit 9X did not include “anything about [an] order transferring [De Luna’s] cases back” to appellant’s court. State’s Exhibit 9X is a document from the Hidalgo County Juvenile Center entitled, “Disposition.” It states, in relevant part, that “On 3/23/07 a referral was received” from appellant’s court regarding De Luna’s alleged “contempt of court.” The document states, “Please be advised the following action has been taken.” The document then lists several possible actions. However, none of these actions are checked. Instead, in a section entitled “Additional Information,” the document states in hand writing the following: “[The] family did not respond for services.” The document is signed by a juvenile probation officer. On re-cross examination, appellant’s trial counsel asked if State’s Exhibit 9X was sent in response “to your requests or to Palacios’s requests to appear in your court on this case,” Leal said, “No.” On re-direct examination, Leal agreed with the prosecutor that State’s Exhibit 9X was sent before the transfer of De Luna’s cases to juvenile court.

C. Appellant’s Former Case Manager, Marcela Adela Cherry

Cherry testified that she is currently employed with the Texas Attorney General’s Office as a field investigator. Cherry began working in that office on December 13, 2010. Prior to that date, Cherry worked in appellant’s court as a case manager. Cherry held that position from “September of 2008 up until December of 2010.” Specifically, Cherry handled “[t]ru-ancy or school-related offenses.” Cherry said, “The majority of the training [that she] received was on-the-job training” from appellant. The prosecutor asked if Cherry was aware that appellant “signed arrest warrants for failure to appear for those who turn 17,” and Cherry replied, “After a notice for continuing obligation was mailed .... Yes.” Cherry could not tell the jury how many of the notices had been mailed from appellant’s court to defendants.

When asked by the prosecutor, Cherry identified State’s Exhibit 9A as “a notice of continuing obligation.” Cherry read the notice as follows:

Our court records reveal that before [your] 17th birthday, you were accused of a criminal offense and have failed to make an appearance or enter a plea in this matter. As an adult, you are notified that you have a continuing obligation to appear in this case. Failure to appear as required by this notice may be an additional criminal offense and [may] result in a warrant being issued for your arrest.[]

Cherry acknowledged that there was an order transferring De Luna’s cases from appellant’s justice court to the juvenile court. The prosecutor asked, “Once this order is signed and the case is transferred—once this order is signed, the judge, Mary Alice Palacios, loses jurisdiction; isn’t that right?” Cherry responded, “It’s my understanding that at least for a time being she does.” The prosecutor asked, “What’s the time being,” and Cherry said, “Well, if the juvenile probation sends us a letter back saying that they are not going to take on the case, we—we, in a sense, keep it again.”

The prosecutor asked Cherry to review the documents included in State’s Exhibit 7A and 7B. Cherry said that a “commitment order” signed by appellant appeared in the documents included in State’s Exhibit 7A and explained that she understood that a “commitment order” signed by a justice of the peace “commit[s] that person to jail for a specific charge.” Cherry stated that the specific charge against Trevino was “Failure to attend school, failure to appear.” Cherry explained that the “Notice of continuing obligation” would have been sent before the individual could be arrested for failure to appear. Cherry had never heard the “notice of continuing obligation” referred to as “a birthday letter.”

Cherry testified that she did not know why Trevino was arrested and that she believed that he did appear on the date he was required to appear. Cherry believed that there was a clerical error on the documents included in State’s Exhibits 7A and 7B. When the prosecutor asked, “So what was he arrested for, then,” Cherry replied, “there was a waiver that he, I guess, declined to do community service or waive any other type of—waive any other type of alternative sentencing.” Cherry agreed with the prosecutor that by signing the waiver, Trevino asserted that “he couldn’t pay the fine, essentially, and so because he couldn’t pay the fine, he had to go to jail, right?” The following exchange then occurred between the prosecutor and Cherry:

Q He appeared on August 4th, 2009, yet, the warrant says failure to attend school, FTA, and the FTA, it is your representation, stands for failure to appear?

A That’s correct, yes.

Q So if you’re saying it was a clerical error and he was obviously incarceration [sic] and arrested by Judge Mary Alice Palacios on August 4, 2009, what was he arrested for, then?

A I would—I don’t know if I can answer that question, but my understanding would be then that he was there for the failure to attend school, but to satisfy the fines and costs of that.

Q Oh, so it’s going back to an offense he committed prior to the age of 17 then? Is that what your testimony is now?

A Right.

Q Okay. Now, you are aware, though, that an individual who is 17 cannot be jailed for offenses that happened prior to his 17th birthday, correct?

A Yes, ma’am.

Cherry testified that according to the case manager’s notes regarding Trevino’s case, he was doing well, and it had been recommended that his case be closed in October of 2008 when he completed his probation. Cherry stated that the period of probation in Trevino’s case could only be set for a maximum of six months and that there was no document or order in the record indicating that his probation had been extended. Later, Cherry clarified that the docket sheet indicated that Trevino’s probation had been extended. Cherry agreed with the prosecutor that although the probationary period had ended, the court could reset the cases beyond the six months. Cherry agreed that in Trevino’s case, appellant ordered Trevino to pay the fines, he was unable to do so, Trevino signed a waiver, he was arrested in appellant’s courtroom, and appellant committed him to jail. Cherry testified that the order sent to Trevino to appear in appellant’s court was sent ten months after he completed the terms of his probation.

Cherry explained that the reason there were two cause numbers related to Trevino’s case is because “it’s assigned a juvenile—a juvenile cause number and then an adult cause number.” Cherry agreed with the prosecutor that there was only one judgment in the court’s file and that the only judgment on file indicated a probationary period of six months. When asked if the judgment included a fine, Cherry replied, “No, I didn’t see any.” Cherry agreed that in “November [Trevino was] ordered to pay a fine and court costs.” However, Cherry could not recall if the case sheet or the docket sheet reflected imposition of the fine and court costs.

Cherry stated that “the notice of continuing obligation birthday letter” went out on July 22, 2009 ordering Trevino to appear in appellant’s court on August 4, 2009. Cherry agreed that Trevino appeared on that date. Cherry agreed that appellant signed the warrant for Trevino’s arrest on the “failure to attend school, failure to appear.” Cherry stated she believed that, according to the docket sheet, Trevino appeared every time he was summoned to appear in appellant’s court.

On cross-examination, Cherry testified that Trevino would have been told that he could pay the fine and court costs at a later date, that a payment plan could have been arranged, and that he could perform community service in lieu of paying the fine. Cherry stated that based on Trevino’s signature on the waiver, he had chosen to go to jail and not pay the fine or perform community supervision. Cherry explained, that although a case manager recommended that Trevino’s case be closed, appellant made the final decision whether to close the case. Cherry stated that appellant apparently had not accepted the recommendation because according to the case manager’s notes, Trevino had additional absences. Defense counsel asked if Cherry agreed that Trevino was told he had to immediately pay the fine or go to jail, and Cherry disagreed. Cherry clarified that the language used in the warning that is included in the “birthday letter” or what Cherry referred to as the notice of continuing obligation came “straight out of the [Texas] Code [of Criminal Procedure].”

Cherry testified that most of the forms used in appellant’s court were provided by the Justice Training Center, which is the same agency that trains the justices of the peace in Texas. Cherry stated that the other forms that were not provided by the Justice Training Center had been approved by the District Attorney’s Office. Cherry testified that Schreiber handled all of the cases in appellant’s court where the defendant pleaded “not guilty,” which included “failure to attend cases.” According to Cherry, Schreiber never expressed that there was a problem with the procedures followed in appellant’s court. Cherry testified that she presented the notice of continuing obligation forms to Schreiber before she sent them to the defendants and that Schreiber never expressed a concern with the forms. When asked if any of the forms used in appellant’s court were created by “her office,” Cherry replied, “Not to my knowledge, no.”

On re-direct examination, the prosecutor asked, “[Ijsn’t it true that Judge Mary Alice Palacios was going to Valley View, Hidalgo and Donna ISD and recruiting truancy work?” Cherry responded, “Recruiting work, I’ve never seen that, no.” Cherry elaborated, “Well, actually, I was approached by the attendance clerk for Valley View when I just started, a few months after I started, and they told me that they had seen an article in the paper for what [appellant] was doing for the [ECISD].”

Cherry agreed with the prosecutor that appellant’s staff writes in the information regarding the defendant on the “birthday letter.” The prosecutor asked, “You could actually put my name in there and say I failed to appear, couldn’t you? You could put that in the birthday letter if you wanted to? Yes or no?” Cherry said, “No, you can’t do that.”

The prosecutor asked, “So essentially the way that [defense counsel] is insinuating it and the way you are answering his questions, LeRoy Trevino' was arrested on a clerical error,” and Cherry responded, “No, he was not arrested on a clerical error.” Cherry agreed with the prosecutor that the commitment and warrant documented that Trevino was arrested for failure to appear.

The prosecutor asked Cherry to read articles 45.041 and 45.048 of the Texas Code of Criminal Procedure silently. After following the prosecutor’s directions, Cherry agreed that “the word community service” did not appear in the articles. On re-cross examination, Cherry explained that the code of criminal procedure did not authorize the imposition of community supervision or an option to pay at a later date but that appellant “wanted to [do] it for them.” Cherry agreed with defense counsel that Trevino “said no” to any alternative sentencing. Cherry stated that the organizations where the “young people” could perform community service included “the Humane Society, the library, Boys and Girls Club. There were so many. The museum. There were so many places that they could perform the hours.”

D. Trevino

Trevino testified that he was eighteen years old at the time of appellant’s trial. When asked why he was cited for truancy, Trevino said, “I just wasn’t going to school.” Trevino testified that while he was attending high school in McAllen, he was transferred to alternative school in Weslaco. According to Trevino, someone from McAllen caused a problem on the bus, and thereafter, no one from McAllen was allowed to ride the van that transported the McAllen students to Weslaco. Trevino stated that he could not find a ride to Weslaco and that is why he was absent.

Trevino testified that appellant told him to pay a fine, and his parents would pay a portion of the fine every time they appeared with him in appellant’s court. Trevino did not receive any receipts for payment and did not receive “a piece of paper telling [him] what [he] had to do.” Trevino testified that he “always appeared” when he was summoned to appear in appellant’s court.

Trevino recalled receiving a letter when he turned seventeen informing him that he “had to go to court and take care of some payment plans that [he] hadn’t taken care of or [he] was going to be arrested.” Trevino stated that he went to court, and he was arrested “[b]ecause he hadn’t finished paying off [his] fines.” Trevino believed that he owed about $1,000.00 in fines, but he did not have any money at the time. When the prosecutor asked, ‘Were you offered community service,” Trevino replied, “No, ma’am. My mother was.” The prosecutor asked why Trevino had chosen to go to jail; he responded, “Because it was my behalf, you know what I mean? It was my mistake so I was going to have it.” Trevino stated that he spent “[m]aybe like a week and a half’ in county jail after he was arrested.

On cross-examination, Trevino agreed that appellant had placed him on probation and had ordered him to pay a fine. Trevino did not pay the fine, and appellant gave him the option of additional time to pay the fine. He refused that option. Trevino agreed that while he was on probation for his truancy, he had the option of paying the fine in installments but was not able to make those payments.

On re-direct examination, Trevino testified that appellant ordered his mother to serve community service hours and “extended [his] six-month probation to a nine-month.” Trevino claimed that appellant threatened to “lock up” his disabled mother for his truancy and that his mother cried.

E. De Luna

De Luna testified that he was nineteen years old at the time of appellant’s trial. De Luna recalled that when he was in high school at “Johnny Economedes,” he “was missing too much school” and was “told to go to court.” When asked, “And did you go to court,” De Luna said, “Not all the times.” De Luna testified that he went to appellant’s court twice. De Luna recalled that he went to a different court that ordered him to serve probation; he served and successfully finished his probation. De Luna believed that once he completed the probation, he “thought it was over” because that is what his probation officer told him. De Luna testified that he had approximately twenty tickets and that he had “to serve the time” in jail for all of those tickets. De Luna spent eighteen days in jail.

On cross-examination, defense counsel asked, “Okay. And out of the 22 citations, you only went to court on two of them; is that right,” De Luna said, “Yes, sir.” De Luna agreed that he received notices from the judge to appear in court when he received the tickets, but he “just didn’t go.” De Luna testified that his mother wanted to take him to court, but he would not go.

De Luna acknowledged that he had a pending federal lawsuit against appellant, but denied that he was asking for money. De Luna admitted that the $10,000 or $11,000 fíne he was ordered to pay was not paid. When defense counsel again asked De Luna if he was seeking money damages in his federal lawsuit against appellant, De Luna said, “Well, money damages.... Yes, sir.”

E. De Luna’s Mother, Elsa De Luna

' Elsa testified that De Luna was diagnosed with A.D.H.D. in third grade. She added that De Luna “has had a lot of learning disorders.” Elsa stated that De Luna began getting in trouble for truancy “shortly after his father died.” Elsa testified that she appeared once with De Luna in appellant’s court where he was ordered to pay a fine. Elsa said that they went to appellant’s court two other times, “but she was not there, so they told [her] that they would contact [them] both times, and then after that, they never contacted [them], but, that was, like, years after.”

Elsa testified that De Luna went to juvenile court and received probation with community service, which he completed. Elsa was informed by the juvenile court that De Luna’s case was closed. Elsa stated that subsequently, De Luna was arrested for “PI,” and was told that the bail was $168.00. Once Elsa obtained the money, she was told that De Luna owed $10,000 in tickets due to his truancy. Elsa believed that De Luna had already served his probation on those tickets, so she went to speak with appellant. Elsa stated that she spoke with a man at appellant’s court who told her that she had to pay $10,000 for De Luna’s release. However, Elsa did not have the money, so she asked if she could make payments. Elsa testified that she was told that she had to pay the entire amount before De Luna would be released from jail. Elsa stated that she informed the court that De Luna had already completed his probation for those truancy tickets. When asked to describe appellant’s court’s employees’ attitude, Elsa said, “I believe it was very unprofessional, because I did ask them to please, please—I pleaded with them to please let me make some kind of arrangement to get my son out. I mean, I was devastated. He had never been in jail, and as a mother you don’t know what’s going to go on or happen in there. And they didn’t give me the opportunity.” Elsa was told that her son would have to serve 101 days in jail for the fines.

F. Juvenile Probation Officer, Juan Ti-jerina

Tijerina testified that he is assigned to “the court unit as a court officer” and is currently assigned to the 480th District Court. Tijerina described the juvenile court as “a court that has jurisdiction over juvenile cases, juveniles that commit crimes within the community and are arrested, those offenses that are committed are submitted to the probation department for review, and those are submitted to the District Attorney’s Office to see if they will file a petition on those cases.” When the prosecutor asked if juvenile cases are handled in the “JP court or a different court,” Tijerina said, “No. They are handled in the—currently it’s the 449th District Court that handles juvenile cases, the 430th District Court and the 332nd.” Tijerina agreed with the prosecutor that cases can be transferred from the justice of the peace courts to the juvenile court. Tijeri-na explained that “what happens is that if an order to transfer is signed by a JP judge, it’s submitted to the probation department’s intake unit, and they assign the ease accordingly.” Tijerina stated that once a case is transferred to the juvenile court, it does not to his knowledge get transferred back to the justice of the peace court;

Tijerina agreed with the prosecutor that there were several different orders from appellant’s court transferring De Luna’s cases to juvenile court included in the court’s documents admitted as State’s Exhibits 9-5, 9-B, 9-S, 9-T, 9-U, 9-D, 9-C, 9-E, 9-F, 9-G, 9-H, 9-1, 9-J, 9-K, 9-L, 9-M, 9-0, 9-P, 9-Q, and 9-R. Tijerina stated that “[t]o [his] knowledge,” if the justice of the peace court transfers a case to the juvenile court, the juvenile court “retains jurisdiction” and the justice of the peace court loses jurisdiction.

Tijerina stated that De Luna was ordered to serve one year of probation. Tijerina was not aware if De Luna successfully completed probation. However, Tijerina could tell from his file that Veronica Calvillo, the probation officer who was assigned to De Luna’s case, “closed out the case.” Tijerina explained that if the child does not “successfully complete [probation], we [the probation officers] usually—it depends. If the child ages out of the—of the system, which is he turns 17 or 18, depending on the term of the probation, we can normally—if—if he—if he commits another offense, then we revoke the probation, but normally if—if everything seems to be well, then we just usually close the case out once he completes probation.” Tijerina said that in the disposition letter, Calvillo documented that De Luna’s probation term had expired. Tijerina explained that meant “that the 12-month period ended and usually if there wasn’t any kind of subsequent offense, then the case was closed, successfully or not. It—it would depend on what that probation officer.”

When asked what “does [double jeopardy] mean,” Tijerina replied, “When somebody is charged with a crime the second time around once they’ve been found true or guilty of the offense.” Tijerina agreed with the prosecutor that regarding all of De Luna’s cases, “it would be fair to say that Francisco De Luna paid for those crimes.” When asked, “And so if he was ordered to go to jail on those same crimes, that would be double jeopardy, would it not,” Tijerina responded, “I would think so.”

On cross-examination, Tijerina testified that one of the charges De Luna had in the juvenile court concerned his running away from home and the other charge was for contempt of court. Tijerina clarified that “there was one set of contempts [sic] that were submitted [to the juvenile court], and then there were a second set of contempts [sic] that were submitted June 2007, and then there were another set of contempts [sic] that were submitted October the 4th of 2007.” Tijerina stated that the juvenile court dealt with “[o]ne of the contempts [sic] [which] involved Mr. De Luna having tardies, another contempt involved Mr. De Luna having excessive tardies, and another contempt involved him having failure to attend school, another contempt for failure to attend school.” Tijerina continued, “Another contempt for failure to attend school, subsequent failure to attend school, I believe the child having contraband or a weapon, another failure to attend school, a subsequent—this one involves failure to comply, [with] rules and penalties.” Appellant’s trial counsel stated, “Now, Mr. Tijerina, contempt is a separate offense from failure to attend school; is that right?” Tijerina replied, “To my understanding” and agreed that contempt and failure to attend school are different crimes. When asked what the State alleged in its petition in the juvenile court that De Luna had done, Tijerina stated that

[the petition] included the runaway that occurred on August 20, 2007 and also included in Count Number 2 that Mr. De Luna failed to attend school on September—August the 22nd, 24th of 2006, September 1st, 25th, 20th, 2006; Count 3, failed to attend school October 11th, 7th, 24th, 30th, and 31st of 2006, also; Count 4, November 3rd, 10th, 16th, 29th, 2006; December 13th, 2006; Count 5 included January 8th, 10th, 11th, 17th, of 2007; and Count 6 included February the 5th, 15th, 2007, March 19th, 21st, 26th of 2007.

Tijerina testified that once the justice of the peace court transfers the cases to the juvenile court, the juvenile court alone maintains jurisdiction over those cases. Tijerina stated that as a courtesy, someone from his department sometimes sends a disposition letter to the justice of the peace court indicating that the cases have been disposed. Tijerina testified that such a letter was included in his file regarding De Luna’s cases, which was dated January 4, 2008.

During re-direct examination, Tijerina testified that the probation department notified appellant of “the action that was taken in the juvenile court” regarding De Luna’s probation. Tijerina stated that State’s Exhibit 9X, a document entitled “Disposition” from the Hidalgo Count