THE STATE OF TEXAS v. ALFRED ISASSI (dissenting)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. PD-1347-09
THE STATE OF TEXAS, Appellant
v. 
ALFRED ISASSI 
ON APPELLANT'S MOTION FOR REHEARING
FROM THIS COURT'S OPINION 
ON STATE'S PETITION FOR DISCRETIONARY REVIEW 
FROM THE THIRTEENTH COURT OF APPEALS 
KLEBERG COUNTY 
Keller, P.J., filed a dissenting opinion.

In his motion for rehearing, appellant contends that the Court's construction of the statute "does not give fair warning of what is prohibited" and leaves the courts with the "wholly unstructured task of defining through criminal prosecutions the limits of appropriate ex parte contact." Appellant also complains that the Court's motive discussion dichotomizes "public-spirited good governance" with an interest in a family member's welfare when "there is no inherent conflict between them." I agree.

Part of the problem with the Court's opinion on original submission is that it conflates the concepts of motive and intent. The "improper influence" statute requires that a person act "with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law." (1) The Court's opinion says, however, that "clear proof of an improper motive would serve to criminalize [appellant's] conduct." (2) Motive and intent are not necessarily the same. (3) A person who communicates with a prosecutor may have a motive to help a family member, but he may nevertheless intend to influence the prosecutor's decision only on the basis of considerations that are authorized by law, such as the strength of the evidence in the case. I cannot fathom how a wholly uncommunicated motive (4) could influence the outcome of a proceeding, so I do not see how evidence of such could be sufficient to show intent.

Nevertheless, the Court broadly holds that harboring a motive to help a family member is sufficient to satisfy the intent requirement of the statute. Under this holding, a friend or relative would be advised never to speak favorably to a prosecutor about a person under investigation, even if asked. Even if his answer is true (e.g., John Doe has never been in trouble with the law), the speaker risks criminal prosecution by saying so.

I think this is exactly what the Court intended by its opinion. But if it is not, then the opinion inadequately articulates the guidelines for determining what communications are criminal. The opinion's failure to do so renders the law unconstitutionally vague as applied to appellant's case. (5)

Finally, even if the Court's interpretation of the statute were clear, appellant had no reason to foresee, before the Court's opinion was handed down, that a wholly uncommunicated motive would cause an otherwise legal communication to violate 36.04. This being so, the Court's interpretation should not be retroactively applied to appellant. (6)

I respectfully dissent to the Court's refusal to grant rehearing.

Filed: December 8, 2010

Publish

1. Tex. Penal Code 36.04(a) (emphasis added).

2. Isassi v. State, NO. PD-1347-09, 2010 Tex. Crim. App. LEXIS 1287 at 21 (October 6) (emphasis added).

3. Mays v. State, 318 S.W.3d 368, 381 (Tex. Crim. App. 2010) ("Appellant offered no evidence to suggest that he did not intend to shoot a person. All of his mental-illness evidence showed why he intentionally and knowingly killed the deputies: He was paranoid and thought they had 'mistreated' him. But motive is not an element of murder or capital murder." )

4. A motive could be communicated by words or by circumstances.

5. See Posters 'N' Things v. United States, 511 U.S. 513, 525 (1994) (Explaining in an "as applied" context: "The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983) (explaining that the statute before it "as presently drafted and as construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a 'credible and reliable' identification").

6. See Rogers v. Tennessee, 532 U.S. 451, 457 (2001) ("Deprivation of the right to fair warning, we continued, can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face.").