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Here is the opinion.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-07-00626-CR

NO. 03-07-00627-CR

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Laura Ashley Hall, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NOS. D-1-DC-05-301948 & D-1-DC-07-900170

HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

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O P I N I O N

In Pitonyak v. State, 253 S.W.3d 834 (Tex. App.–Austin 2008, pet. ref’d), this Court affirmed the conviction of Colton Pitonyak, an intermittent University of Texas student, for the murder of twenty-one year-old Jennifer Cave, whose dismembered body was found in Pitonyak’s West Campus-area condominium. Pitonyak was apprehended after fleeing to Mexico in the company of Laura Ashley Hall, a fellow UT student. This appeal arises from subsequent criminal proceedings against Hall.

Following a jury trial, Hall was convicted of the felony offense of tampering with physical evidence–namely, a human body or body part–and the misdemeanor offense of hindering apprehension. See Tex. Penal Code Ann. §§ 37.09(c), (d)(1), 38.05(a), (c) (West Supp. 2008). Punishment was assessed at five years’ imprisonment for the evidence-tampering offense and one year’s imprisonment for hindering apprehension. Hall appeals, bringing seven points of error.

In her first two points, Hall seeks a new trial based on the State’s advocacy of what she contends were inconsistent factual theories during her trial and Pitonyak’s trial. Her third and fourth points raise claims of charge error. In her fifth and sixth points, Hall seeks a new trial based on allegations that the State suppressed or withheld evidence in violation of a discovery order and the Due Process Clause of the Fifth and Fourteenth Amendments, as construed in Brady v. Maryland ⁽¹⁾ and its progeny. In her seventh point, Hall seeks, in the alternative, a new punishment trial based on an additional claimed Brady violation.

We agree with Hall that the State suppressed evidence in violation of a discovery order and Brady. While we conclude that these actions ultimately did not cause reversible error in Hall’s convictions, they do require a new trial on her punishment.

BACKGROUND

Although Hall does not challenge the sufficiency of the evidence supporting her convictions, several of her appellate points must be evaluated in the context of the evidence presented at trial. We accordingly review the evidence in some detail.

Jennifer Cave’s disappearance, death, and discovery

When last seen alive, Jennifer Cave was with Colton Pitonyak in Austin’s Sixth Street district during the late evening hours of Tuesday, August 16, 2005. On this particular evening, the pair was celebrating a new job that Cave had obtained with an Austin law firm, which she was to start the following day. By all accounts, Cave was very excited about her new professional opportunity. A friend of Cave, Michael Rodriguez, testified at trial that he spoke with Cave via cell phone several times that evening, the latest at 1:05 a.m. on Wednesday, August 17. During that final conversation, according to Rodriguez, Cave indicated that she was still with Pitonyak, who was beating on car windows and urinating in public.

At approximately 3:00 a.m. that morning, according to witness Nora Sullivan–a former UT student whose connections to the underlying events included being a “good friend” of Pitonyak and down-the-hall neighbor in his condominium complex–Pitonyak showed up at her door alone indicating that he had misplaced his cell phone and asking to borrow hers. Sullivan recounted that Pitonyak, who appeared to her to be intoxicated, claimed to have exchanged gunfire at his condo with “two or three Mexican guys.” Sullivan testified that Pitonyak remained at her condo for approximately half an hour while the two visited and smoked cigarettes on her balcony. During their visit, Sullivan ascertained that Pitonyak had a handgun in his possession, which he unloaded in her presence. She added that Pitonyak also asked her if she noticed any blood on him. She noted a “smudge” of blood on Pitonyak’s arm. Despite her observations and Pitonyak’s statements, Sullivan did not contact police. She told the jury that she had simply dismissed Pitonyak’s tale of a gunfight as false because she had not heard any shots.

That afternoon, Pitonyak purchased several items from Breed & Company, a hardware store located about four blocks from his condo: bathroom tissue, shop towels (described as a type of heavy-grade paper towel), 55-gallon drum liners, carpet cleaner, a quart of ammonia, Febreze odor eliminator, a two-pack of latex gloves, a small plastic-handled hack saw, and dust masks. These items, as well as a corresponding receipt, were later recovered from Pitonyak’s condo. The receipt indicated that the purchases were made on August 17 at 3:18 p.m. ⁽²⁾ Jeffrey Breed, an owner of the hardware store, testified that he assisted a young man that afternoon in purchasing these items from what appeared to be a handwritten list. According to Breed, the young man was alone. Another receipt later recovered from Pitonyak’s condo reflected a purchase from a nearby Burger King at 3:26 p.m.

In the meantime, Jennifer Cave had not shown up for work at her new job. The law firm attempted unsuccessfully to reach her by phone, and eventually sent someone to look for her at her apartment. Again having no success in finding her, the firm called Sharon Cave, Jennifer Cave’s mother, expressing concern. Sharon ⁽³⁾ testified that after receiving the call, she made several calls to Jennifer’s cell phone but did not get an answer. Sharon proceeded to contact Jennifer’s cell phone provider, obtained a list of her daughter’s incoming and outgoing calls the preceding evening, and began calling those numbers in an effort to locate her daughter.

Through her calls, Sharon was able to determine that Jennifer had been out with Pitonyak the preceding evening. Pitonyak’s number had also appeared among Jennifer’s incoming or outgoing calls, and Sharon attempted unsuccessfully to reach him. Pitonyak later returned her call. ⁽⁴⁾ Pitonyak, according to Sharon, acknowledged that he had been with Jennifer the preceding evening but claimed they had parted ways around midnight. At the same time, Sharon happened to be on a different phone line with Michael Rodriguez, the friend who had spoken with Jennifer by phone at 1:05 a.m. Rodriguez overheard Pitonyak’s statements and informed Sharon that Pitonyak was lying because Jennifer had indicated during their later call that she was still with Pitonyak. Sharon confronted Pitonyak with that assertion. Pitonyak, according to Sharon, “just got mad and hung up.”

Around 6:30 p.m., Scott Engle, a former boyfriend of Jennifer, called Pitonyak. Engle testified that “I had previously called him [Pitonyak] trying to find Jennifer as well and left him a message and told him that I believed the cops were on their way to his house because we knew Jennifer’s car was over there.” Engle added that Pitonyak’s demeanor during this call was “[t]alking fast, jittery, nervous.”

Sharon further testified that her fiancé, Jim Sedwick, was assisting her search efforts and had left a message that evening for Pitonyak to call him. Pitonyak called back, and Sharon answered. ⁽⁵⁾ She confronted Pitonyak, “Colton, I know that you were with Jennifer. I want to know where she is.” Pitonyak, according to Sharon, responded, “Dude, I’m eating pizza with my friends. Leave me alone.” Thereafter, Sharon contacted Austin police to report her daughter missing.

On the following morning, Thursday, August 18, 2005, Sharon, accompanied by Sedwick, drove from Corpus Christi to Austin, where they met another of Sharon’s daughters and continued efforts to locate Jennifer. Sharon testified that while en route, Austin police contacted them and advised that Jennifer’s car had been located at Pitonyak’s condominium building. Concerned about Jennifer’s safety and fearing that Pitonyak was somehow involved in her disappearance, Cave and Sedwick ultimately broke into Pitonyak’s condominium. Sedwick entered the unit. He discovered Jennifer’s body in the bathtub of the unit’s bathroom. Sedwick immediately left the condo and called the police.

Sedwick and Austin police found a gruesome scene in Pitonyak’s bathroom. Jennifer Cave’s head and hands had been severed and placed in plastic garbage bags found on the bathroom floor. A plastic-handled hacksaw–one of the items Pitonyak had purchased at the hardware store the preceding afternoon–was found laying on top of Cave’s headless torso. There were blood stains in the bathroom sink and on the carpeted floor of the condo’s living area.

Police also found two bullet or shell casings on a table in the condo’s living room. An additional shell casing was found in the bathtub with Cave’s body. On the living room table was also found a folding buck knife and one of the blue shop towels. Each of these items, as well as the hacksaw, later tested positive for blood. A dishwashing machine in the unit’s kitchen area contained a machete and a steak knife. Also found in the unit were the other hardware items, an “Ace Hardware” bag, and the hardware store receipt, previously described. A pair of women’s flip flops was also found on the bathroom floor near the bathtub and toilet.

Medical examiner Elizabeth Peacock performed an autopsy on Cave’s body and testified on its results at trial. ⁽⁶⁾ She determined that Cave had been killed by a gunshot that had passed through Cave’s right arm into her chest, severing her aorta, before the bullet lodged near her back. Peacock could not determine an exact time of death, but opined that unconsciousness and death would have followed quickly after Cave had been shot. Based on the absence of gunpowder residue on Cave’s body, Peacock determined that the fatal shot had been fired from at least eighteen inches away.

On Cave’s left hand was a stab wound that, according to Peacock, occurred at or shortly after the time of death. Peacock acknowledged that the wound might have been defensive in nature. There were also clusters of stab wounds in Cave’s upper right chest and on the right side of her face and neck. The stab wounds were determined to have been made by the same knife and were described as symmetrical and in line, although some intersected into “Vs.” Peacock opined that the stab wounds, as well as the severing cuts to Cave’s head and hands, were made between four and twenty-four hours after death. The severing cuts, according to Peacock, would have been “difficult” to make, especially the cut through the spine. During the autopsy, Peacock also discovered a bullet inside Cave’s skull. She determined that the bullet had been fired into the head post-mortem through Cave’s severed neck.

Pitonyak’s car was found outside the condominium building. Inside it was a semi-automatic handgun. Forensics tests determined that the two bullets found inside Cave’s body and the three shell casings found in the condo were fired from this gun.

A warrant subsequently issued for Pitonyak’s arrest for murder. With the assistance of Mexican authorities, Pitonyak was eventually located in a hotel room in Piedras Negras. He was in the company of appellant Hall. Mexican authorities expelled the pair from the country at the Del Rio border crossing on August 23, 2005, where Pitonyak was promptly arrested by U.S. authorities. He was later indicted for murder, convicted, and sentenced to a fifty-five-year prison term. As noted, this Court affirmed his conviction on appeal. See Pitonyak, 253 S.W.3d at 844-57.

Criminal proceedings against Hall

On September 20, 2005, Hall was indicted on a felony count of hindering apprehension or prosecution. See Tex. Penal Code Ann. § 38.05. Section 38.05 of the penal code provides, in relevant part, that a person commits an offense “if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense . . . he: (1) harbors or conceals the other; [or] (2) provides or aids in providing the other with any means of avoiding arrest or effecting escape.” See id. § 38.05(a)(1), (2). The offense is a Class A misdemeanor unless “the person who is harbored, concealed, [or] provided with a means of avoiding arrest or effecting escape . . . is under arrest for, charged with, or convicted of a felony . . . and the person charged under this section knew that the person they harbored, concealed, [or] provided with a means of avoiding arrest or effecting escape . . . is under arrest for, charged with, or convicted of a felony,” in which case the offense is a third-degree felony. See id. § 38.05(c), (d). Hall’s indictment for this offense alleged in two separate paragraphs that Hall “on or about August 19, 2005, in the County of Travis, and State of Texas, did then and there, with intent to hinder the arrest, prosecution, conviction or punishment of Colton Pitonyak for the offense of murder,” and while knowing “that the said Colton Pitonyak was charged with a felony, namely, Intentional Murder,” (1) “harbor or conceal Colton Pitonyak” and (2) “provide or aid Colton Pitonyak with means of avoiding arrest of effecting escape, to-wit: the Defendant assisted Colton Pitonyak in his flight from the State of Texas and provided transportation for Colton Pitonyak in his flight from the State of Texas.”

On June 7, 2007, after Pitonyak was convicted of murder, Hall was indicted on a second-degree felony count of tampering with physical evidence. See id. § 37.09. In relevant part, section 37.09(d)(1) of the penal code provides that a person commits an offense if the person, “knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense.” Id. § 37.09(d)(1). The offense is a third-degree felony “unless the thing altered, destroyed, or concealed is a human corpse, in which case the offense is a felony of the second degree.” Id. § 37.09(c). Hall’s indictment for this offense alleged that Hall, “on or about August 17, 2005″–the date Cave was discovered missing and Pitonyak made his hardware store purchases– and “in the County of Travis, and State of Texas, did then and there, knowing that an offense, to wit: a murder, had been committed, alter or destroy or conceal a thing, to wit: a human body and biological evidence, with intent to impair its verity or availability as evidence in any subsequent investigation of or official proceeding related to the offense.”

The two charges against Hall were consolidated for trial. Neither Hall nor Pitonyak testified at her trial.

Hall’s participation in the Mexico trip

The evidence implicating Hall in the charged offenses included the undisputed facts that during the evening of August 17, 2005–after Pitonyak learned that authorities might be suspecting him of being involved in Jennifer Cave’s disappearance–Hall and Pitonyak left Austin and drove to Mexico in Hall’s car. Hall and Pitonyak’s cell phone records tracked the pair’s path south through New Braunfels during the 10 o’clock hour, then westward along U.S. 90 to Del Rio and the Mexican border. Along the way, Hall received a speeding ticket in Val Verde County, an indication that she was driving. The pair crossed the border into Mexico at 2:36 a.m. on the morning of August 18. Surveillance photographs from the border checkpoint shows the license plates on Hall’s Cadillac, and the car was later recovered by authorities when the pair was apprehended in Mexico. There was no evidence that Hall sought assistance from the authorities she encountered on her way to Mexico with Pitonyak.

The jury also heard evidence that Hall made preparations for the trip earlier in the day. A receipt recovered from Hall’s Cadillac reflected a 3:47 p.m. purchase of approximately 19 gallons of gasoline and a car wash from a station located on East Oltorf in southeast Austin. This purchase occurred at roughly the same time as Pitonyak’s purchases from the hardware store and Burger King several miles away near the UT campus. The State conceded during closing argument that there was ”no doubt” Pitonyak and Hall “were not together the entire day,” but urged that Hall’s gassing up and washing her car a few hours before leaving town was probative of a common plan with Pitonyak that included their respective “errands.” Later that evening, but before the pair left Austin, Hall, accompanied by Pitonyak, stopped off at the apartment of some friends and picked up a bottle of rum or vodka she had previously left there. One of the roommates, Star Salzman, testified that Hall appeared “normal” and not in fear in any way.

Hall’s presence at the crime scene

The State also presented evidence of contemporaneous eyewitness perceptions, physical evidence, and phone records tending to show that Hall had been to Pitonyak’s condo on August 17 before the pair left for Mexico. Cell phone records reflected a series of text and phone communications between Hall and Pitonyak beginning in the early morning hours of August 17. ⁽⁷⁾ At the time, Hall had been staying overnight at the apartment of Star Salzman and his roommates (the apartment to which she later returned to pick up her liquor on her way out of town). Another of the roommates, Ryan Martindill, testified that Hall woke him at around 7:00 a.m. and asked him to drive her to her apartment so she could pick up her car. He did. According to Martindill, he understood that Hall was going to meet with Pitonyak and that “I think she said he was going to be leaving soon and she wanted to go spend some time with him.”

The jury heard testimony about DNA testing performed on numerous items and sites at the crime scene, including the hacksaw, machete, buck knife, bloodstains in the living room and bathroom, various cloths or towels, and two dust masks found in the bathroom. Hall was statistically excluded as a contributor of DNA found on every item and site except for a blue shop towel found on a living room table–one of the items Pitonyak had purchased from the hardware store during the afternoon of August 17–and one of the women’s flip flops found in the bathroom. Neither Pitonyak nor Hall could be excluded as contributors of DNA found on the shop towel, and the probability of Hall being excluded as a contributor was 1:43. As for the DNA found on the flip-flop, neither Pitonyak, Hall or Cave could be excluded as contributors, and the probability of Hall being excluded as a contributor was 1:402.

DNA testing was also performed on the handgun recovered from Pitonyak’s car. Neither Pitonyak nor Hall could be excluded as contributors of DNA found on the pistol’s grip, slide, or magazine. The probability of Hall being excluded as a contributor of DNA found on the grip was 1:1,112 and, for the slide and magazine, 1:88.

The State’s DNA expert, Cassie Carridine, acknowledged that Hall’s probabilities of exclusion fell below the astronomical levels that would have constituted a conclusive “match.” By comparison, Carridine explained that Hall was determined conclusively to be the contributor of DNA found on women’s underwear and a pair of sweat pants recovered from her car; her possibility of exclusion for each of these items was 1:18.71 quadrillion. As another example, Cave was determined conclusively to be the contributor of DNA found on the hacksaw–her probability of exclusion was 1:130.1 quadrillion–and Pitonyak and Hall were excluded as possible contributors. ⁽⁸⁾ Carridine also acknowledged that DNA testing could not necessarily determine when a contributor had contact with a tested item or whether the item had been moved. During its subsequent deliberations, the jury asked for Cassidine’s testimony “in relation to the blue shop rags, the sandals from the bath room and the gun grip and magazine” to be read back to them.

The jury also heard evidence tending to establish that anyone who had been in Pitonyak’s condo during the day on August 17 would have known about Cave’s shooting and death. Police investigators described Pitonyak’s condo as a one-bedroom efficiency, with a living and sleeping area, kitchen area, and single bathroom. The jury could reasonably have inferred that in this small area, Hall could not have missed such telltale signs as shell casings and a blood stain in the living room–much less overlooked a dead body in the bathtub if she had entered the bathroom. ⁽⁹⁾

Hall’s motive

The State also presented evidence that Hall was highly motivated to protect Pitonyak or otherwise seek his favor without regard to his involvement in a grisly crime and even if it meant breaking the law. It was undisputed that Hall had a very strong and somewhat obsessive romantic interest in Pitonyak, while it appeared that Pitonyak was somewhat less interested. ⁽¹⁰⁾ Joseph Smith, a deputy U.S. marshal present when Pitonyak was arrested at the border, testified that Hall “made statements regarding her love for Colton, that she wanted to get him out of jail, that she wanted to make a phone call to talk to his attorney to get him out of jail, that she wanted to stand by him no matter what happened, and things to that effect.” Smith added that, “if someone had injured Colton, I believe she said that she would kill anyone who hurt Colton.” He added that Hall expressed the view “that it should be up to the friends of a murder victim to avenge them and it should not be a police matter.” Two days later, Hall returned to Austin, where she spent some time with Salzman and Martindill. Despite the murder charges pending against Pitonyak and what the record reflects was knowledge among her friends regarding the widely publicized macabre scene in his condo, Hall obtained a new tattoo of the name “Colton.”

Hall and the State advanced competing theories during trial to explain her interest in Pitonyak. Hall’s counsel attempted to portray her essentially as the manipulated victim of a “sociopath,” who, at most, had exhibited bad youthful judgment in falling sway to the wrong kind of guy. The State portrayed Hall as a more menacing figure. There was evidence that Hall–like other friends of Pitonyak, including Cave–was aware that Pitonyak dealt drugs, was somewhat unstable, brandished guns or knives, and cultivated a gangster or “bad guy” persona. The State presented evidence to the effect that Hall reveled in the role of the gangster’s girlfriend and shared Pitonyak’s dark traits. It was able to introduce a printout of Hall’s Facebook page–last updated on August 15, 2005–reflecting, among other things, that Hall’s “Summer Plans” included “I should really be more of a horrific person. Its in the works.” ⁽¹¹⁾

Hall’s self-incriminating admissions

To fill in the remaining gaps in its theory that Hall not only helped Pitonyak flee the country to avoid a murder charge, but helped dismember Cave’s body with intent to impede its use as evidence, the State relied on the testimony of four witnesses–Said Aziz, Henriette Langenbach, Nora Sullivan, and Javier Rosalez. Each of these witnesses recounted alleged self-incriminating admissions by Hall during the months before trial. ⁽¹²⁾

Said Aziz

Aziz testified that he had been a friend of Hall, Cave and Pitonyak while a student at UT. He recounted that Hall had called him seeking advice during the early morning hours of August 23, 2005, a few hours after she and Pitonyak were expelled from Mexico. Aziz ultimately spoke with Hall three times that day. During their first conversation, at approximately 6:30 a.m., Hall, according to Aziz, described the Mexican police kicking in the door to the hotel room where she was staying with Pitonyak and taking him away, adding, “I can’t believe they found us so fast.” Aziz, who had previously heard that authorities had been looking for Pitonyak in connection with a murder, asked Hall how long she had been involved in the situation. Hall, Aziz claimed, replied, “I have been all up in this shit since two hours after it started.”

Hall, according to Aziz, indicated she would tell the police that she “just thought they were on vacation.” Aziz responded “that my advice would be to start talking to police and tell the truth in order to stay out of trouble.” He concluded their first call by telling Hall that he was going back to sleep and would call her again later. They next spoke around 11:30 a.m. According to Aziz, “Laura said that she wanted to protect Colton and help him. . . . I do recall specifically that I became more agitated and I angrily told Laura that I could understand it being accidental if Colton had just shot Jennifer one time. I couldn’t believe that it was accidental with him stabbing her repeatedly and the other stuff.” Aziz asked Hall how the pair got to Mexico. Hall replied that she drove, adding that they went in her own car. Aziz then “asked Laura why she would want to help somebody who killed a girl very much like herself, to which she replied that she loves him, and, quote, ‘that’s just how she rolls.’”

Hall, according to Aziz, also said she was not going to turn her back on Pitonyak, to which Aziz exclaimed that “I thought she was crazy and I was revolted by this crime.” He also indicated that “She refused to believe that people would help the police. I don’t understand necessarily why.”

Aziz contacted the Austin Police Department and agreed to give a statement. At 3:35 p.m., as Aziz was in the parking lot by police headquarters preparing to go inside, he spoke to Hall again. Aziz described Hall as confused and distraught. She told him that the police were at her parents’ house investigating her involvement in the matter. Hall, according to Aziz, now claimed that “she didn’t know what was happening until the Mexican police came in.” ⁽¹³⁾ Aziz “asked her to clarify” in light of the inconsistency with her prior statements, and asked her point-blank if she was lying then or had lied in her previous statements. Hall, Aziz indicated, stated that she had lied in first statement. He continued, “I asked her if she had just been blustering to appear tough and hard. She replied that she guessed so.”

Henriette Langenbach

After she was charged with hindering apprehension, Hall was held for a period of time in the Travis County Jail. She shared a cell with Henriette (also known as Erika) Langenbach, who was being held on two felony counts of securing the execution of a document by deception and a felony count of misappropriating property by a fiduciary. At the time of trial, Langenbach was on probation for these offenses. She provided by far the most detailed account implicating Hall in the charged offenses.

Langenbach, who was in her early sixties, claimed that she developed a “motherly relationship” with Hall during their time together and that they had extensive conversations about Pitonyak and the Cave matter. Langenbach claimed that Hall professed that “she loved [Pitonyak] very much.” She added that Hall seemed to perceive the murder victim, Cave, as a romantic rival, appeared to be “extremely jealous” of Cave, and would typically refer to Cave as “f*cking waitress ho.”

Langenbach provided the jury essentially a step-by-step narrative of events in Pitonyak’s condo during the hours before Hall and Pitonyak left for Mexico. According to Langenbach, Hall “told me that when Colton called her at 5:30 in the morning, and when she arrived there, that he took her to the bathroom and showed her the body.” Langenbach claimed Hall told her that Pitonyak admitted shooting Cave and stabbing her body to make sure she was dead. After viewing the body in the bathtub, Hall then supposedly recounted that she and Pitonyak “first sat on the couch and talked about things.” Later, Hall purportedly told Langenbach, she used the bathroom toilet–in the same bathroom where Cave’s body lay–after Pitonyak closed the shower curtain to conceal the body in the bathtub.

Hall, according to Langenbach, described Pitonyak’s demeanor at the time as drunk, drugged, “just beside himself,” “worth nothing,” and “freaking out.” Hall supposedly claimed that Pitonyak initially wanted to flee to Detroit or his parent’s house, but that she had convinced him this plan was foolish because he would get caught. Hall also allegedly revealed that “it was their plan to dispose of the hands, the feet and her head and put it in Colton’s car and drive it to a lake somewhere and dispose of the car that way with the body parts in it.” When asked if Hall indicated whose idea it was to dismember Cave’s body, Langenbach testified that Hall “gave me the impression that she was in charge of this operation” by portraying herself as “the one with the cool head,” while “all [Pitonyak] did was either scream or cry or swear.” Hall also supposedly boasted that Pitonyak had originally sought her out for help precisely because of her cool-headed character. Hall, Langenbach continued, claimed that she “told Colton to get the stuff he was supposed to get” and made him a list. The pair then separated to run errands. Hall went to the bank and to get gas, cigarettes, and something to eat and drink. Langenbach testified that she asked Hall, with apparent reference to Breed & Company, why Pitonyak went “to a small place like that” rather than “Home Depot.” Hall allegedly remarked that “the sweetheart, he’s extremely intelligent, but when it comes down to this, he just doesn’t know.”

According to Langenbach, Hall told her she rejoined Pitonyak at a pizza restaurant. While Pitonyak was eating, Hall purportedly recounted, he received a call from Sharon Cave, “freaked out,” and “basically rushed through lunch.” The pair went back to Pitonyak’s condo “because they had made the decision already to go to Mexico then and they needed stuff from the apartment.” Hall allegedly “told me that she was the one that made the decision to go to Mexico because . . . she speaks fluent Spanish.” While gathering belongings, Hall, according to Langenbach, observed that Cave’s head and hands had been placed in black and white plastic bags, a description consistent with the evidence from the crime scene. The pair then drove to Mexico. Langenbach claimed that Hall described her time with Pitonyak in Mexico as “the six happiest days of her life.”

Langenbach further testified that Hall told her the pair sought out a hotel with an Internet connection “to stay on top of things because they were worried that they had found the body in the meantime and that they would be looking for Colton.” Hall purportedly also indicated that they had planned to sell her car to get money to travel to Switzerland or Brazil, but ran into the obstacle that Hall had not brought the car’s title. Hall also allegedly admitted to Langenbach that she and Pitonyak discussed different versions of the “story that they would have for the police.”

Langenbach also testified that Hall described details about the dismemberment, including where Cave’s hands were severed, and further observed, “if you cut up a dead body, there wouldn’t be that much blood” because blood would no longer be circulating. She also accused Hall of bragging, “How many grandmothers can tell their grandchildren that they cut up a body?” Langenbach described Hall’s demeanor regarding the horror of these acts “as just very cold, very unfeeling.” She added that Hall attributed her ability to run errands, eat, and perform other everyday tasks under these circumstances to Hall’s opinion that “intelligent people are able to compartmentalize things.” Langenbach further testified that Hall claimed she “didn’t understand what the big fuss was about” because, as Hall supposedly put it, Cave “was nothing. She was nobody. Colton had a full paid scholarship and Jennifer was just a waitress.”

Nora Sullivan

Sullivan was the friend of Pitonyak whom he had visited at approximately 3:00 a.m. on August 17. After giving her account of Pitonyak’s visit, which we have previously summarized, Sullivan testified that she had visited Pitonyak in the Travis County Jail between five and ten times, and that Hall had accompanied her on one of those visits in the spring of 2006. Over vigorous objections from Hall’s counsel, Sullivan was permitted to testify that Hall had made several key admissions following the jail visit. The basis of Hall’s objection was that the State had violated a discovery order by failing to disclose Hall’s alleged self-incriminating statements prior to trial.

Hall, according to Sullivan, acknowledged that she had been in Pitonyak’s apartment after Cave’s death and that Pitonyak had been engaged in “his task” of dismembering Cave’s body. Sullivan further claimed that Hall “said that he [Pitonyak] was procrastinating and sitting in the living room and watching TV and drinking beer” and that she had “tried to motivate” Pitonyak “to get him to do it . . . to convince him and get him moving.” When asked if Hall had indicated whether she played any direct role in the mutilation or dismemberment or Cave’s body, Sullivan testified, “She didn’t outright say so, but that was the impression I was given.”

Javier Rosalez

During the summer of 2006, Hall was working as a server at the Baby Acapulco restaurant on Austin’s Barton Springs Road. One of Hall’s co-workers was Javier Rosalez, who acknowledged having prior felony convictions for drugs and DUI for which he had served prison time. Rosalez testified that restaurant staff had heard the “buzz” about the Cave death and dismemberment and became aware that the co-worker they knew as “Ashley”–Laura Ashley Hall–had been implicated in some manner. Rosalez probed Hall about it. He claimed that Hall was initially reluctant to discuss the matter, citing an ongoing investigation, but eventually opened up to him and “almost seemed kind of boasting at times.” Hall, according to Rosalez, “said she had–she had helped and then masterminded the escape to Mexico.” However, Rosalez testified that Hall did not further elaborate on the extent or nature of her “help.” He also denied that Hall had claimed to be the “mastermind” of Cave’s dismemberment.

Rosalez added that Hall claimed “they would have gotten away with it” if she had not called her father from Mexico, which had prompted her father to turn them in. Rosalez also testified that he got into a heated argument with Hall after she once dismissed the incident as “a victimless crime” and opined that “they deserved to get away with it because they had already been locked up and they had learned their lessons.”

On cross-examination, Rosalez admitted that he had gossiped to his co-workers about Hall’s purported statements to him, but did not contact police. He acknowledged that he divulged these statements to police only after police, having eventually heard about Rosalez’s statements to his co-workers, showed up at his house. At the time, Rosalez was still on parole. Hall’s trial counsel urged the jury to infer that Rosalez, fearing adverse parole consequences, had spread false or greatly embellished rumors about Hall, then stuck by these stories after authorities confronted him. The State countered by suggesting that Rosalez had far more to fear from a perjury charge if his account of Hall’s admissions proved to be false.

Verdict

The district court submitted the felony charge of hindering apprehension or prosecution with the lesser-included offense of misdemeanor hindering apprehension or prosecution. See Tex. Penal Code Ann. § 38.05(a),(c), (d) (offense is a felony if the defendant “knew that the person they harbored, concealed, [or] provided with a means of avoiding arrest or effecting escape . . . is under arrest for, charged with, or convicted of a felony,” and is otherwise a misdemeanor). The jury found Hall not guilty of the felony offense but convicted her of the lesser-included misdemeanor.

The district court separately submitted the offense of tampering with physical evidence with a lesser-included offense of attempted tampering with physical evidence. See id. § 37.09(d)(1). It refused a timely request from Hall to submit a lesser-included offense charge on the offense of failure to report human remains. See id. § 37.09(d)(2). The jury found Hall guilty of tampering with physical evidence as charged in the indictment.

Punishment phase

The issue of Hall’s punishment was then tried to the jury. The State called a single additional witness, Douglas Conley. Conley testified that he was working as a taxi driver during the morning of August 6, 2006, when he picked up a woman, “Ashley,” from a West Campus-area residence and drove her to the Baby Acapulco’s on Barton Springs Road. In the courtroom, Conley identified the “Ashley” from his cab as Hall. The State elicited Conley’s testimony that Hall had made disparaging comments about Cave and exhibited a demeanor toward the victim that he characterized as “just cold, callous.”

Conley recounted that he and “Ashley” had a conversation in which she divulged that she was having trouble getting into law school because of a pending felony charge. Upon inquiry, “Ashley” told Conley that the charge was harboring a fugitive, further indicating that the fugitive was her boyfriend, that he was charged with murder, and that he was innocent. Conley claimed that “Ashley” referred to the murder victim as “some bitch.” According to Conley, “Ashley” elaborated that the victim had caused her “a lot of difficulty”and that the person was “Jennifer Cave.”

Hall presented her father, Loren Hall. He testified that his daughter had a history of academic success; working for prominent Austin law firms and lawyers; and participating in wholesome activities like debate, swimming, and rowing. According to Loren, his daughter’s personality and demeanor changed dramatically for the worse after she met Pitonyak. These changes, he claimed, included frequent use of derogatory terms for women. Loren added that after enduring her “trauma and things she was through with Colton,” Hall had been taking medication to control her affect and moods, that she had improved, and that “she is trying to improve herself . . . building herself back up, having more respect for people.” Loren pleaded with the jury to give his daughter probation, urging that she would work hard to rehabilitate herself if given the chance. He cited an example of Hall having worked hard to overcome difficulties and succeed in a college math course.

Hall also called Jason Mack, a former roommate of Pitonyak who also had known Hall and Cave. Mack testified that Pitonyak had borrowed money from Hall because he had needed to pay some “pretty bad characters.” Mack recounted that Hall came to Pitonyak’s condo two days before Cave’s murder to discuss the money issue with him. At the time, according to Mack, Pitonyak was drinking, drugged, “spazing out” because his anxiety medication had run out, and “had been up about nine days.” Mack claimed that Pitonyak physically threw Hall out of his condo. While Hall “was outside on the steps crying because [Pitonyak] had thrown her out,” Pitonyak, Mack indicated, pulled a gun out of a drawer and stated, “This bitch is getting on my f*cking nerves. I’m going to shoot her.” Mack eventually calmed him down, but later warned Hall that “you are going to get yourself killed” and that Pitonyak “is not in his right mind,” “hadn’t slept in nine days,” and “is getting delusional.”

The jury imposed a sentence of five years’ incarceration for the evidence-tampering conviction, the maximum one year for hindering apprehension, and did not recommend community supervision for either conviction.

Post-judgment proceedings

Hall filed a motion for new trial or, alternatively, a new punishment trial. Of relevance to this appeal, Hall argued that the State had wilfully violated a discovery order by failing to disclose Hall’s alleged statements to Nora Sullivan. She also asserted that the State had violated Brady by failing to disclose impeachment evidence against Henriette Langenbach and Douglas Conley that she had discovered after trial. Both sides presented affidavits and documentary evidence. After a hearing, the district court overruled Hall’s motion in its entirety and subsequently entered findings of fact and conclusions of law. This appeal followed.

ANALYSIS

Inconsistent theories

Hall’s first two points of error are predicated on her assertion that the State advocated a factual theory of her involvement in Cave’s dismemberment during her trial that was inconsistent with its theory during the Pitonyak trial. Citing excerpts from the closing arguments at each trial, Hall argues that during the Pitonyak trial “the State argued that it was Pitonyak’s idea to mutilate the body and the evidence showed appellant did not participate,” while “the theory and argument were exactly opposite” in her trial. In her first point of error, Hall argues that this claimed inconsistency violated her due process rights. See Thompson v. Calderon, 120 F.3d 1045, 1056-59 (9th Cir. 1997) (en banc), rev’d on other grounds, 523 U.S. 538 (1998); see also Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir. 2000) (holding “that use of inherently factually contradictory theories violates the principles of due process.”). In her second point of error, Hall similarly contends that the State should have been judicially estopped from advocating its “inconsistent” theory in her trial. See Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003). The State disputes whether Hall preserved her due process complaint and asserts several reasons why it believes neither doctrine is implicated on the record here. We need only hold that there is no inconsistency between the State’s theories at each trial that would implicate either due process or judicial estoppel.

During his trial, Pitonyak attempted to refute the mens rea element of murder by claiming that he had no recollection of shooting Cave and that he would not have harmed her intentionally. As for what Cave’s subsequent dismemberment and his flight might imply about his awareness of guilt, Pitonyak attempted to shift the blame for those acts to Hall. He denied any personal recollection of cutting the body himself and claimed that, after purchasing the hardware items, “I tried to go in there and do some cutting, but couldn’t.” During closing argument, the State attacked Pitonyak’s claims by emphasizing the relative amounts of DNA evidence linking Pitonyak to the dismemberment as compared to Hall:

That mutilation shows you, that flight to Mexico shows you, he had a guilty conscience. He knew what he had done, he knew he shouldn’t have done it, and he was going to get out of there.

They again want to blame [Laura Hall ⁽¹⁴⁾] for all of that. That’s all her doing. But, ladies and gentlemen, the evidence doesn’t support that. . . . That mutilation and trip to Mexico was Colton Pitonyak’s idea. And I will tell you why I know that. Look at the DNA. The only five places in this case [where] you see DNA of Laura Hall are two items of female clothing in a backpack that came back from Mexico, on a blue shop towel on the coffee table in front of the couch, on that handgun and on a sandal by the toilet in the bathroom. Those are the only five places. And these two men want you to believe that this one hundred whatever pound girl mutilating a body for hours, causing all sorts of injuries, doing what Dr. Peacock [the medical examiner] described as all kinds of work, she managed to do it without leaving any DNA. She is an absolute genius. The evidence doesn’t support that.

There is a green washcloth with his blood. There is a pair of jeans in the washer with his blood. There is a faucet knob with a combination of Jennifer and Colton. There is a smear on the wall, blood, and Colton. There is a smear in the bathtub, Jennifer and Colton. That same shop towel that had Laura Hall, Colton Pitonyak, and he, too, is on that gun. . . . You don’t get injured, you don’t bleed as a result of an accidental gunshot being fired. You get injured mutilating a body in a bathtub.

During Hall’s trial, the State argued:

If you have any doubt that Jennifer Cave was altered, destroyed or concealed, (demonstrating), that is Jennifer Cave. And the manner in which she was found was altered, it was destroyed, it was concealed in bags. That’s the offense.

You know Laura Hall was involved in that because of what she told people. . . . “All up in that” does not mean that you had no idea there was a body in that bathtub. She knew from two hours after he killed Jennifer Cave what they needed to do to avoid his conviction, his prosecution, his punishment and conviction. And that plan went into action with a 13-minute phone call at 6:00 a.m. on August 17th.

The next statement would be Henriette Langenbach. . . . There were two white bags, one for the hands, one for the head. She told you that Laura Hall told her that the feet, the hands and the head are used for identification purposes. . . .

The course of actions during the next day. He . . .went to Breed’s, I went to gas the car. . . .

The next statement she made was to Nora Sullivan after her release from jail . . . Nora told you what Laura said, is that she was the mastermind behind the tampering with the evidence[ ⁽¹⁵⁾]. . . . Nora told you she [Hall] was frustrated because Colton wouldn’t do what Colton needed to do. . . . She acted with the intent to make sure that he didn’t get arrested, convicted, punished for the offense of murder. In doing so, she helped him get to Mexico, she helped get him out of Apartment 88 at 2529 Rio Grande. She helped mutilate that body, and she did whatever she could to try to make sure those items were not available in any subsequent proceeding against Colton Pitonyak. And yes, they failed to finish the job, but that does not get you to attempt. Attempt is only if you find that she [Cave] was not altered or concealed or destroyed.

Hall characterizes the State’s arguments before the Pitonyak jury as tantamount to an assertion that she was innocent of any involvement in Cave’s dismemberment. To the contrary, as the district court observed when rejecting this argument below, “[i]t looks like [the State] is saying that [Hall] alone could not have done that,” not that Hall had not participated in the dismemberment to any extent. The State’s theory in the Pitonyak trial, in other words, was that Pitonyak must have been heavily involved in the dismemberment because Hall left relatively little DNA and this fact was inconsistent with the sort of struggle Hall would have had if she had acted alone in cutting through Cave’s spine and hands. This theory does not logically foreclose or contradict the State’s theory during Hall’s trial that “[s]he helped mutilate that body” in some manner and was culpable at least as a party. At most, there may be some potential tension between the State’s current depiction of Hall as the “mastermind” of the evidence-tampering scheme and its arguments before the Pitonyak jury that the “mutilation and trip to Mexico was Colton Pitonyak’s idea.” However, these two views can be reconciled to the extent that Hall could have been the mastermind of a plan for accomplishing a dismemberment that Pitonyak had initially conceived.

To violate due process, an irreconcilable inconsistency must exist at the core of the State’s cases. See Groose, 205 F.3d at 1050-52 (due process violated by contradictory theories in murder trials of co-defendants–in one case, that the victims had been killed before a defendant began to participate in a burglary, and in the other, that the victims had been killed after the defendant began to participate in the burglary). There was no such inconsistency here. We overrule Hall’s first point of error.

We similarly conclude that judicial estoppel is not implicated here. Judicial estoppel prohibits a party who has taken a position in an earlier proceeding from subsequently taking a contrary position. Davidson v. State, 737 S.W.2d 942, 948 (Tex. App.–Amarillo 1987, pet. ref’d); see Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 11-13 (Tex. 2008) (”The doctrine of judicial estoppel precludes a party from adopting a position inconsistent with one that it maintained successfully in an earlier proceeding.”) (citations omitted). The doctrine is not, strictly speaking, estoppel, but rather “arises from positive rules of procedure based on justice and sound public policy.” Davidson, 737 S.W.2d at 948. Its essential function is to prevent litigants from taking contradictory positions in successive proceedings. Id. Concluding that there is no inconsistency in the State’s theories against which justice or sound public policy would require judicial estoppel’s application here, we overrule Hall’s second point of error.

Charge error

Refusal to submit failure to report human remains

The offense of tampering with physical evidence for which Hall was convicted is defined in section 37.09(d)(1) of the penal code, and section 37.09(c) makes the offense a third-degree felony if the thing tampered with is a “human corpse.” See Tex. Penal Code Ann. § 37.09(c), (d)(1). Subsection (d)(2) of that statute defines a misdemeanor offense of failure to report human remains. See id. § 37.09(d)(2). In her third point of error, Hall argues that the district court abused its discretion in refusing her request to submit a lesser-included-offense charge on failure to report human remains with the court’s charge on tampering with physical evidence.

We review the district court’s decision regarding a lesser-included-offense charge for abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). A trial court may instruct the jury on a lesser-included offense if (1) the offense in question is a lesser-included offense under article 37.09 of the Texas Code of Criminal Procedure, and (2) the record contains some evidence that would permit a rational jury to find the defendant guilty only of the lesser-included offense. See Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). This two-pronged test is often referred to as the Aguilar/Rousseau test. See id. (citing Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)).

An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006). Hall urges that the offense of failure to report human remains is a lesser-included offense because it is established by proof of the same or less than all the facts required to establish the commission of the charged offense of tampering with physical evidence. See id. art. 37.09(1).

The court of criminal appeals has explained that “the facts required to establish the commission of the charged offense” under this analysis refers to the facts as alleged in the charging instrument. See Hall v. State, 225 S.W.3d 524, 534-35 (Tex. Crim. App. 2007). Therefore, “the determination of whether a lesser-included offense is involved should be made by comparing the elements of the greater offense, as the State pled it in the indictment, with the elements of the statute that defines the lesser offense.” Peavey v. State, 248 S.W.3d 455, 467 (Tex. App.–Austin 2008, pet. ref’d). This component of our analysis presents a question of law. Hall, 225 S.W.3d at 535.

Hall’s indictment for tampering with physical evidence alleged, in relevant part:

that Laura Hall, on or about the 17th day of August, 2005, and before the presentment of this indictment, in the County of Travis, and State of Texas, did then and there, knowing that an offense, to wit: a murder, had been committed, alter or destroy or conceal a thing, to wit: a human body and biological evidence, with intent to impair its verity or availability as evidence in any subsequent investigation of or official proceeding related to the offense.

As the offense was alleged in the indictment, the State was required to prove the following elements: (1) Hall; (2) knowing that a murder had been committed; (3) altered, destroyed, or concealed a human body; (4) with intent to impair its verity or availability as evidence in any subsequent investigation or official proceeding related to the offense. The statutory elements of the offense of failure to report human remains are: (1) a person (2) “observes a human corpse under circumstances in which a reasonable person would believe that an offense had been committed,” (3) “knows or reasonably should know that a law enforcement agency is not aware of the existence of or location of the corpse,” and (4) “fails to report the existence of and location of the corpse to a law enforcement agency.” Tex. Penal Code Ann. § 37.09(d)(2).

Hall argues that the indictment allegations that she knew a murder had been committed and intentionally concealed a human body contains the failure-to-report-human-remains statutory element of “observes a human corpse under circumstances in which a reasonable person would believe that an offense had been committed.” Similarly, Hall contends that the indictment allegation that she “concealed” a human body contains the statutory element of “fails to report the existence of and location of the corpse to a law enforcement agency.” However, the State could prove each element of evidence-tampering as alleged in the indictment without needing to prove the statutory element that Hall “knows or reasonably should know that a law enforcement agency is not aware of the existence of or location of the corpse.” To the contrary, Hall could, knowing that a murder had been committed, alter, destroy or conceal a human body with intent to impair its verity or availability as evidence even if she knew law enforcement officers already were aware of the corpse’s existence and were on their way to the scene.

Consequently, the offense of failure to report human remains would not be established by proof of the same or less than all the facts required to establish the commission of the charged evidence-tampering offense. The first step of the Aguilar/Rousseau test is not met. We need not reach the second step. See Peavey, 248 S.W.3d at 468. We hold that the offense of failure to report human remains is not a lesser-included offense of tampering with physical evidence as alleged in the indictment. The district court did not abuse its discretion in refusing to submit a lesser-included offense charge on failure to report human remains. We overrule Hall’s third point of error.

Failure to define “murder”

Tracking the indictment, the jury charge on tampering with physical evidence required the State to prove, among other elements, that Hall acted “knowing that an offense, to wit: a murder had been committed.” Under the penal code, a person commits “murder” if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Tex. Penal Code Ann. § 19.02(b) (West 2003). The penal code further provides that “[a] person acts intentionally, or with intent, with respect to . . . a result of his conduct when it is his conscious objective or desire to . . . cause the result.” Id. § 6.03(a) (West 2003). “A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Id. § 6.03(b). Thus, to obtain the conviction for evidence-tampering, the State was required to prove that Hall was aware that Pitonyak had shot Cave with the conscious objective or desire to kill her or cause her serious bodily injury, with awareness that his act was reasonably certain to kill her, or in the course of and in furtherance of his commission or attempted commission of a felony other than manslaughter. However, the jury charge did not include this definition of “murder” from the penal code, or any definition of the term.

In her fourth point of error, Hall argues that the district court reversibly erred in failing to include the penal code’s definition of “murder” in the jury charge on evidence-tampering. She urges that without this definition, the jury could “apply their own personal definitions” and “was free to convict appellant even if they found the homicide was committed recklessly or with criminal negligence.” See id. §§ 19.04 (manslaughter, or recklessly causing the death of an individual), 19.05 (criminally negligent homicide) (West 2003).

We review Hall’s claim under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Under the first prong of the test, we determine whether charge error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The State concedes that “[s]ince the jury necessarily had to use the term ‘murder’ in properly resolving the issues in this case,” the district court erred in failing to supply the penal code’s definition of the term. See Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986) (”[A] statutorily defined word or phrase must be included in the charge as part of the ‘law applicable to the case.’”). Because the State concedes that error exists, our disposition of Hall’s complaint turns solely on the second prong of the Almanza test–whether the error caused “harm.” Ngo, 175 S.W.3d at 743. The degree of harm required for reversal depends on whether Hall preserved her charge error complaint in the district court. If she preserved the complaint by timely objection, the record must show only “some harm” for reversal. Almanza, 686 S.W.2d at 171. By contrast, if Hall failed to preserve the complaint, the error would require reversal only if it resulted in “egregious harm.” See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). The State argues that Hall failed to preserve her complaint and that the error did not cause egregious harm.

Hall acknowledges that she never specifically objected to the district court’s failure to define “murder” in the charge, but suggests that she “[a]rguably” called the error to the district court’s attention when arguing a motion for instructed verdict on the evidence-tampering offense. Hall relies on the following statements by her trial counsel:

Your honor, I want my record to be complete. Both sides having closed as to the indictment on tampering, again, the defendant would request an instructed verdict as to this charge. Looking straight at the face of the indictments, it requires actual knowledge that an offense, a specific offense, murder, had been committed. Murder is a legally defined term of art. It is not synonymous with killing. It is not synonymous with death. Murder is a legally defined conclusion, and there is no evidence that Ms. Hall could have known a murder could have been committed. For that reason–and there is no proof, there is nothing in the record to show that she knew at any point that a murder had been committed . . . . Murder being a term of art defined by law, we believe that we are entitled to an instructed verdict on that as well.

We cannot agree that these statements preserved Hall’s current complaint with the absence of a “murder” definition in the jury charge. To preserve a complaint of charge error, Hall was required to “distinctly specify each ground of objection” in a manner “specific and clear enough to apprise the trial court of the nature of the objection.” Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim. App. 1985); see also Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) (requiring that defendant “distinctly specify[] each ground of objection” to charge). In the “arguable” objection on which she relies, Hall never refers to the jury charge. Instead, she frames her arguments solely in terms of sufficiency of the evidence as it bore upon her entitlement to an instructed verdict. As the State observes, a motion for instructed verdict denotes a challenge to the sufficiency of the evidence rather than a challenge to the form of the jury charge. See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Hall’s argument at trial regarding her instructed verdict motion was insufficiently specific and clear to apprise the district court of any additional complaint that the court needed to add a definition of “murder” to the charge. See Pennington, 697 S.W.2d at 390. Consequently, we will reverse only if we find the omission of the definition resulted in “egregious harm.” See Almanza, 686 S.W.2d at 171.

“Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). Here, our concern is whether the absence of a proper definition of “murder” in the charge caused the jury to convict Hall of evidence-tampering without finding an element that the State was required to prove–that she knew Pitonyak had committed a murder, as that term is defined in the penal code, and not some less culpable form of criminal homicide. The purpose of the egregious-harm inquiry is to ascertain whether the defendant has incurred actual harm, not just theoretical harm. Almanza, 686 S.W.2d at 174. This is a “difficult standard.” Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). Our inquiry is factual in nature and turns on the unique circumstances of this case. See id. Neither Hall nor the State has the burden to show harm or the lack thereof. See Warner, 245 S.W.3d at 464. Rather, an appellate court “makes its own assessment” in evaluating what effect, if any, an error had on the jury’s verdict by looking “only to the record before it.” Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000). We are to consider (1) the entire jury charge, (2) the state of the evidence, including the contested issues and the weight of the probative evidence, (3) the parties’ arguments, and (4) any other relevant information revealed by the record of the trial as a whole. Allen, 253 S.W.3d at 264; Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Harm may be shown by direct evidence or inferred from the record. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

As Hall emphasizes, nothing in the charge itself required the jury to apply the penal code’s definition of “murder” or otherwise distinguished “murder” from other forms of criminal homicide. When a statutory term is not defined in the jury charge, we are to assume that the jury considered the commonly understood meaning of the term in its deliberations. See Olveda v. State, 650 S.W.2d 408, 409 (Tex. Crim. App. 1983). Citing a single dictionary definition, the State asserts that the commonly understood meaning of “murder” denotes killing another with premeditation or malice aforethought, elements not explicitly included in the penal code definition. See Webster’s New World Dictionary of the American Language 936 (2d College ed. 1976) (murder is “the unlawful and malicious or premeditated killing of one human being by another; [or] any killing done while committing some other felony, as rape or robbery”). The State invokes the principle that where the commonly understood meaning of an undefined statutory term in a jury charge is more restrictive than the statutory definition, there is no harm from omitting the statutory definition from the charge because the omission would only operate to the defendant’s benefit. See Olveda, 650 S.W.2d at 409.

We agree that the term “murder,” as commonly understood by laypeople, can denote intentional homicide, if not also premeditation and malice, as suggested by numerous dictionaries we have consulted. ⁽¹⁶⁾ However, “murder” also has a broader or more colloquial meaning denoting homicide without legal justification–or, simply, homicide. ⁽¹⁷⁾ Depending on which of these “commonly understood” meanings jurors applied, “murder” might be broader or narrower than the penal code’s definition. Because jurors could, all other things being equal, apply either meaning, we disagree with the State that Olveda resolves Hall’s complaint.

The trial record, however, reflects that in their statements and arguments before the jury, both parties equated the term “murder” with intentionally causing death, a definition consistent with section 19.02(b)(1) of the penal code. In an effort to minimize her involvement, Hall advanced a primary theory that Pitonyak was “crazy,” a “sociopath” or a “beast” who intentionally killed Cave, dismembered her body, and perhaps even killed her with that plan in mind. During opening statements, Hall’s trial counsel informed the jury that “[t]he evidence is going to show that this was a deliberate and planned murder. There was nothing accidental about it. . . . [T]his murder was for no reason at all than to satisfy the whim and caprice of a beast who wanted to see what it would feel like to kill someone and take that body apart.” During closing argument, Hall’s counsel returned to this theme, arguing that Pitonyak “murdered [Cave] for nothing” and urging the jury to infer his intention to dismember her from evidence of his interest in crime movies with dismemberment scenes and that his last UT course was “The Human Body.” Neither party argued to the jury that ”murder” in the charge meant anything other than intentionally causing death. Hall’s counsel did dispute whether there was evidence Hall knew Pitonyak had been charged with “intentional murder” before the pair crossed the border (as required to convict her for the felony hindering-apprehension offense), but neither party questioned before the jury that “murder” meant intentional murder.

On appeal, Hall argues that “the lack of powder residue showed a shooting from a distance,” a reference to Dr. Peacock’s testimony that the absence of powder residue on Cave’s body indicated that the fatal shot was fired from at least eighteen inches away. Hall apparently suggests that the jury would have found, based on the distance of the shot, that Hall knew Pitonyak had acted recklessly or negligently rather than intentionally or knowingly. However, the record also contains strong evidence from which the jury reasonably could have concluded that Pitonyak shot Cave with intent to kill her (e.g., his assertions to Sullivan that he had been in a gunfight and his subsequent efforts to avoid apprehension), and that Hall would have known these facts from the circumstances of the crime and its aftermath. Hall also asserts that “the State argued it was unknown why Pitonyak killed Cave.” This statement refers to a portion of the State’s closing argument in which counsel, responding to Hall’s insinuations that Pitonyak killed Cave to dismember her, merely emphasized that “we don’t have to prove . . . motive,” but used the concept that Pitonyak’s motive could be inferred from the evidence to illustrate that the jury could likewise draw inferences regarding Hall’s motives to assist in the dismemberment and flight.

Having reviewed the trial record, we believe it more plausibly supports the inference that the jury would have equated “murder” with intentionally causing a person’s death, and that it convicted Hall based on that understanding. We cannot infer from this record that the jury actually applied a definition of “murder” less demanding than that in the penal code. Consequently, we conclude that the district court’s failure to include the penal code’s definition of “murder” in the charges did not cause Hall egregious harm. We overrule Hall’s fourth point of error.

Suppression of evidence

In her remaining points of error, Hall argues that she is entitled to a new trial on guilt or at least punishment because the State suppressed evidence of her alleged self-incriminating statements to Sullivan and impeachment evidence against Langenbach and Conley. A defendant in a criminal case has no general right to pretrial discovery of evidence in the State’s possession. See Michaelwitz v. State, 186 S.W.3d 601, 612 (Tex. App.–Austin 2006, pet. ref’d). However, under Brady and its progeny, the United States Supreme Court has recognized “what amounts to a federal constitutional right to certain minimal discovery.” Id. (quoting 42 George E. Dix. & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 22.21 (2d ed. 2001)). These authorities hold that “[t]o protect a criminal defendant’s right to a fair trial, the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the prosecution to disclose exculpatory and impeachment evidence to the defense that is material to either guilt or punishment,” Ex parte Reed, 271 S.W.3d 698, ___, 2008 Tex. Crim. App. LEXIS 1569, at *74 (Tex. Crim. App. Dec. 17, 2008), and that the State’s failure to comply with this duty constitutes harm requiring reversal and a new trial. See Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). On the other hand, there is no general due process right to advance notice of inculpatory evidence that the State intends to use against the defendant at trial. See Weatherford v. Bursey, 429 U.S. 545, 559-61 (1977). Additional discovery beyond the Brady minimum may, however, be ordered by the trial court. See Tex. Code Crim. Proc. Ann. art. 39.14 (West Supp. 2008). Such an order imposes on the State a continuing duty of disclosure. See Crane v. State, 786 S.W.2d 338, 348 (Tex. Crim. App. 1990).

Sullivan

Prior to trial, the district court ordered the State to produce witness statements, including all written or oral statements purportedly made by Hall concerning the events of the alleged offenses. See Tex. Code Crim. Proc. Ann art. 39.14(a) (West 2008). In compliance with this discovery order, the State produced a copy of the reporter’s record of the testimony Sullivan had given in Pitonyak’s trial. In that trial, Sullivan gave an account of Pitonyak’s 3:00 a.m. visit to her condo that was similar to the account she subsequently provided in Hall’s trial. Sullivan also testified during Pitonyak’s trial, similar to Hall’s trial, that she had visited Pitonyak in jail “maybe like five” times, that Hall had sought her out through her Facebook page “because she had heard that I was visiting or had visited Colton at the jail,” and that she had allowed Hall to accompany her on one of those visits. However, in contrast to her later testimony in Hall’s trial, Sullivan made no claim during Pitonyak’s trial that Hall had made any statements to her regarding Cave’s dismemberment, much less any admissions implicating herself in such acts. The State did not divulge the existence of any statements by Hall to Sullivan implicating herself in the dismemberment until Sullivan was already on the stand testifying in Hall’s trial. There is no dispute that the State had prior knowledge of the alleged statements and intended to elicit Sullivan’s testimony about them, yet did not disclose their existence to Hall as the discovery order required.

Over the objections of Hall’s trial counsel, and after a one-day postponement of Sullivan’s testimony in an attempt to cure any unfair surprise, the district court permitted the State to elicit Sullivan’s testimony about Hall’s alleged self-incriminating statements to her. In her fifth point of error, Hall argues that the district court abused its discretion in admitting Sullivan’s testimony and in overruling the same complaint in Hall’s new trial motion. Hall asserts that the record establishes that the State wilfully failed or refused to disclose the statements as required by the discovery order. She relies on the rule that evidence wilfully withheld from disclosure under a discovery order should be excluded from evidence. See Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006) (stating that “[e]vidence wilfully withheld from disclosure under a discovery order should be excluded from evidence” and holding that admission of such evidence was an abuse of discretion) (citing Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978)); see also Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.–Austin 2001) (”the extreme sanction of exclusion should not be imposed absent wilfulness on the part of the prosecution.”), aff’d, 92 S.W.3d 531 (Tex. Crim. App. 2002). ⁽¹⁸⁾ “Wilfulness” denotes that the prosecutor “acted with the specific intent to wilfully violate the discovery order,” “made a conscious decision to violate the plain directive of the discovery order,” or violated the order in a “calculated effort to frustrate the defense.” See Oprean, 201 S.W.3d at 727-28.

Hall further argues that she was harmed by the admission of Sullivan’s testimony about the statements. Even if the district court abused its discretion in admitting the testimony in the face of a wilful discovery order violation, Hall still had the burden of demonstrating harm to obtain reversal on appeal. See Cooks v. State, 844 S.W.2d 697, 734 n.31 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 927 (1993); Hollowell, 571 S.W.2d at 180. Because Hall’s complaint is based on the discovery order violation rather than the substantive inadmissibility of the statements, the harm we review is that caused by the State’s failure to disclose the statements as required by the discovery order. See Cooks, 844 S.W.2d at 734 n.32; Oprean v. State, 238 S.W.3d 412, 415 (Tex. App.-Houston [1st Dist.] 2007, pet. ref’d) (op. on remand). “In so doing, we take into consideration the intended purpose of the discovery order: to prevent surprise and to permit appellant to prepare an adequate defense.” Oprean, 238 S.W.3d at 415.

The State concedes that it violated the discovery order in failing to disclose Hall’s statements to Sullivan. Nevertheless, it maintains that the district court did not abuse its discretion in admitting the testimony because the record demonstrates its violation was not wilful. The State further asserts there is no harm from any wilful discovery order violation because the district court took measures to mitigate any unfair surprise or prejudice.

As with other rulings admitting or excluding evidence, we review the district court’s decision to admit Sullivan’s testimony under an abuse-of-discretion standard of review. Id. at 726. We also review the court’s ruling on Hall’s motion for new trial under the same standard. See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). Under this standard, an appellate court should uphold a trial judge’s ruling unless it is outside the “zone of reasonable disagreement.” Oprean, 201 S.W.3d at 726. We afford “almost total deference” to any explicit written or oral fact findings by the district court “based on an evaluation of credibility and demeanor.” Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). In the absence of such findings, we “view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Id. (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)). Hall’s appellate contentions, in substance, are challenges to the district court’s findings (whether express or implied) that the State did not violate the discovery order wilfully and its failure to find harm. We accordingly evaluate the record support for those findings.

Sullivan was initially called to testify during the morning of the first day of Hall’s trial. After Sullivan testified that Hall had asked to accompany her on one of her visits to Pitonyak in jail, Hall’s counsel asked to approach. A bench conference ensued in which the State revealed for the first time that Sullivan “has had discussions with Laura Hall regarding her involvement in the case, but they are not in any statements” it had previously produced pursuant to the discovery order. The State further indicated that Sullivan “informed us of this when we were discussing her coming here for this trial.” Hall’s counsel vigorously objected to Sullivan testifying about alleged admissions or statements by his client that the State had not produced as required by the discovery order. The district court recessed the trial and held a hearing out of the jury’s presence to determine the nature of the statements in question and when the State had obtained them.

During the hearing, Sullivan testified that the first time she had discussed Hall’s statements with prosecutors “would have been about last week on the phone.” The record reflects that Sullivan was testifying on a Tuesday. The district court ordered that Sullivan’s testimony would not be permitted “until I have had further information” and Hall’s counsel had “an opportunity to talk to the witness before any further direct or cross-examination on this particular issue.” ⁽¹⁹⁾ Trial proceeded with the State calling other witnesses.

Later, during the lunch recess that day, the record reflects that the district court instructed a reluctant Sullivan to submit to an interview with Hall’s counsel. The court also required the State to produce notes that its second-chair prosecutor had made during two pretrial interviews with Sullivan. The prosecutor represented to the district court that her first interview had been “last week,” though she did “not know exactly what date that was,” and that the other was “yesterday.” Following the recess, Hall’s counsel represented that Sullivan had told him she had revealed the statements to the State not later than Monday or Tuesday of the preceding week. Hall’s counsel urged again that evidence of the statements should be excluded because the State had violated the discovery order. Counsel also urged that he had been unfairly surprised by Sullivan’s sudden transformation from an innocuous background witness into one of the State’s primary champions implicating Hall in the charged offenses.

The State’s lead prosecutor apologized for the discovery order violation, but represented to the district court that “it was certainly not an intentional act.” He suggested that the State’s trial team had inadvertently overlooked its duty to disclose the statements during the “hectic few days” leading up to trial. The State further urged that any harm from its violation “was cured by the opportunity for [Hall's counsel] to visit with the witness.” The district court took the matter under advisement and trial continued.

Following the testimony of the afternoon’s first witness, the record reflects that Hall’s counsel tendered a handwritten motion for continuance to the district court. The motion itself is not in the appellate record, although the district court and the parties discuss some of its contents on the record. From this record, it appears that the continuance motion was conditioned on the district court’s denial of Hall’s motion to exclude Sullivan’s testimony. ⁽²⁰⁾

During a subsequent recess that day, the district court returned to the issue of Sullivan’s testimony. It stated on the record that Hall’s counsel “has had an opportunity to discuss her testimony and further inquiry to see what she has to say,” that “the record has been made as to when the State actually acquired this information,” and that a discovery order had been in place. The court also observed that Hall had filed a motion for continuance and stated that “part of the motion asks for . . . an opportunity to interview the witness. That has been granted.” The court emphasized that the statements in question were “[n]ot Brady” but “non-exculpatory and non-mitigating,” and suggested that Hall presumably would be aware of any such statements she had made and could assist her counsel with that information. The district court then stated, “I do not find that the State withheld these in bad faith or wilfully in any way to infringe upon the defendant’s right to have adequate defense.”

The district court then denied Hall’s motion to exclude Sullivan’s testimony “as of now.” “[I]n an abundance of caution,” however, the court postponed any further testimony from Sullivan until the following day so as to afford Hall “further opportunity to investigate any other matters with regard to this witness.” The court suggested that it might revisit its rulings if “anything further is presented” regarding Sullivan’s testimony.

Hall did not raise any additional objections regarding Sullivan’s testimony before it resumed on the following afternoon. Nor did Hall obtain any further rulings on her continuance motion or seek additional delay.

When Hall re-urged her complaint regarding the admission of Sullivan’s testimony in her motion for new trial, ⁽²¹⁾ her trial counsel submitted an affidavit in which he detailed differences in trial strategy and additional investigation he would have pursued to impeach Sullivan and demonstrate that she had fabricated her account of Hall’s admissions. Specifically, counsel presented evidence that he would have obtained: (1) testimony from Pitonyak’s trial counsel that Sullivan had not mentioned Hall’s admissions during a pre-trial interview; (2) testimony from witnesses who claim they saw Sullivan, who had been attending Pitonyak’s trial, cry when the verdict was announced; (3) the phone records of any calls Hall and Sullivan had with each other; and (4) jail records showing that Sullivan continued to visit Pitonyak in the county jail until May 2007–three months before Hall’s trial–when he was transported to prison.

The State tendered an affidavit from its second-chair prosecutor explaining the circumstances in which she had obtained the statements from Sullivan. The prosecutor recounted that the prosecution team met with and interviewed Sullivan before Pitonyak’s trial, but “we did not discuss Laura Hall with her at any time that I can recall.” During the weeks prior to Hall’s trial, the prosecutor claimed she had difficulty reaching Sullivan, who had moved to California, and had to subpoena her to testify. The prosecutor testified that she traded several messages and had “two or three” brief conversations with Sullivan before they “finally had a longer conversation that included working out personal service, travel arrangements and a discussion of the Laura [H]all case.” Regarding the timing of this conversation, the prosecutor acknowledged, “I believe this was a week or so prior to trial.”

Following this call, according to the prosecutor, Sullivan was finally served with process on the Thursday or Friday before trial, and flew to Austin on the Sunday before trial. She “believe[d] that we first met in person regarding the Laura Hall case” at 8 a.m. on Tuesday, the first day of trial. During this meeting, they “discussed all questions we anticipated asking at trial and when she would be testifying.” ⁽²²⁾ The prosecutor added that, as reflected in the trial record, “I took notes from our telephone discussion and face to face meeting.” She further averred that these notes were “immediately” disclosed “[o]nce the question arose as to whether the State was required to disclose the statements.” However, the prosecutor’s affidavit is silent as to any explanation for the State’s failure to disclose the statements at any of the earlier junctures at which the record reflects the State possessed some version of the statements–following the phone conversation with Sullivan the preceding week, following the Tuesday morning meeting, or during the State’s pretrial preparations to examine Sullivan about those very statements.

In denying Hall’s new trial motion, the district court made the following written findings of fact pertinent to Sullivan’s testimony:

16. Nora Sullivan testified for the State that the Defendant had made incriminating comments to Sullivan prior to trial;

17. The State’s counsel knew Sullivan claimed the Defendant made these statements but did not disclose those statements to the defense prior to trial;

18. When Sullivan began to testify to the non-disclosed statements, a recess was called to permit defense counsel to interview Sullivan about these statements;

19. Defense counsel was permitted to interview Sullivan before she was recalled to testify.

Although the district court had stated an oral finding regarding the State’s wilfulness during trial, it made no explicit finding on that issue in connection with Hall’s new trial motion.

The trial record reflects that the State had come to trial prepared to examine Sullivan about the statements; the statements’ existence was not a sudden revelation to the State while Sullivan was on the witness stand. In fact, the State’s second-chair prosecutor took notes reflecting these statements during a phone conversation with Sullivan that, she admitted, occurred “a week or so prior to trial.” She also acknowledged that the statements were discussed again during a face-to-face meeting with Sullivan at 8 a.m. on the first morning of trial. The State did not call Sullivan to testify that day until after opening statements and four other witnesses had testified. There is no suggestion that the State was unaware of the discovery order. Nonetheless, the State did not disclose the statements until after it was already beginning to elicit Sullivan’s testimony about them–and then only after Hall’s trial counsel inquired whether the State’s line of inquiry was delving into statements it had not disclosed under the discovery order.

The State asserts that its failure to disclose the statements was “an oversight attributable to the fact that the information was not received until the hectic week before trial,” as the first-chair prosecutor had suggested at trial, adding that the district court (at least at trial) had explicitly found the non-disclosure not to be wilful or in bad faith. ⁽²³⁾ It further urges us to infer that Sullivan’s statements were not fully “fleshed out” until the face-to-face meeting at 8 a.m. on the first morning of trial. It nonetheless remains that the State offers no explanation for its failure thereafter to disclose the statements before putting Sullivan on the stand later that morning and attempting to elicit those statements from her. This record establishes that the State acted wilfully in failing to disclose the statements at least after its 8 a.m. meeting with Sullivan, if not earlier. See Oprean, 201 S.W.3d at 727-28.

To establish that the district court’s admission of Sullivan’s testimony is reversible, however, Hall had the burden of showing harm. See Cooks, 844 S.W.2d at 734 n.31; Hollowell, 571 S.W.2d at 180. Specifically, Hall had to demonstrate that the State’s failure to disclose the statements upon learning of them–which occurred about one week before trial, at the earliest–unfairly surprised her and prevented her from presenting an adequate defense. See Oprean, 238 S.W.3d at 415. On this record, Hall cannot make this showing. because she has failed to preserve any complaint that any unfair surprise or prejudice remained after the one-day postponement the district court provided.

As previously explained, the reporter’s record reflects that Hall filed a handwritten motion for continuance, but the motion itself does not appear in the appellate record. The sole indication of the specific relief Hall requested in her motion, and the sole ruling on the motion that is reflected in the record, is the district court’s statement during the first afternoon of trial that it had granted a part of the motion by postponing Sullivan’s testimony for a day to afford Hall’s counsel the opportunity to interview the witness. The district court emphasized that it would revisit its rulings regarding Sullivan’s testimony if “anything further is presented” after Hall’s counsel had “further opportunity to investigate any other matters with regard to this witness.” Thereafter, Hall did not object or complain that the one-day postponement the district court had provided was insufficient to cure any unfair surprise or prejudice caused by the State’s discovery order violation. In short, there is no indication in the appellate record that Hall requested or was denied any delay greater than that which the district court afforded her. Consequently, Hall cannot show harm from the admission of Sullivan’s testimony. See Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) (failure to request a continuance waives error on the basis of surprise or violation of a discovery order). ⁽²⁴⁾

Absent a showing of harm, we cannot hold that any abuse of discretion in admitting Sullivan’s testimony was reversible error. We overrule Hall’s fifth point of error.

Langenbach

In her remaining two points of error, Hall asserts that the State failed to disclose impeachment evidence as required under Brady and that the district court, consequently, abused its discretion in overruling these grounds in her motion for new trial. With regard to Langenbach, Hall complains that the State failed to produce information in its possession that the witness had been convicted in New Zealand on a count of kidnaping and two counts of “uttering,” a crime similar to forgery, and had been charged in Travis County with tampering with a government record for lying about her New Zealand convictions on a Texas real estate license application.

To establish a due process violation under Brady, a defendant must show that: (1) the State failed to disclose evidence in its possession; (2) the withheld evidence is favorable to the defendant; and (3) the evidence is “material,” that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Webb v. State, 232 S.W.3d 109, 114 (Tex. Crim. App. 2007) (citing Hampton, 86 S.W.3d at 612). The evidence may be material to either guilt or punishment. Brady, 373 U.S. at 87. Evidence that could be used effectively to impeach a prosecution witness, including prior convictions, is evidence favorable to the defendant for Brady purposes. See United States v. Bagley, 473 U.S. 667, 676 (1985); Arroyo v. State, 117 S.W.3d 795, 798 n.1 (Tex. Crim. App. 2003). The State’s duty to disclose such evidence applies “irrespective of the good faith or bad faith of the prosecution,” Brady, 373 U.S. at 87, and regardless of whether the defendant has previously requested it. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). ⁽²⁵⁾

There is no dispute that the undisclosed information about Langenbach’s prior convictions was favorable evidence for Brady purposes. See Bagley, 473 U.S. at 676; Arroyo, 117 S.W.3d at 798 n.1. Nor, in our view, is there a serious question that the State had possession of this information. The State stipulated that the information had been contained in the Travis County District Attorney’s files regarding the three Travis County offenses on which Langenbach was being held when she shared a cell with Hall. However, it claimed that the prosecutors in the Hall case were unaware of the files in the Langenbach case, and the district court so found. ⁽²⁶⁾ Although the State did not dispute in its pre-submission briefing that it possessed the information for Brady purposes and had a potential duty to disclose it, it contended during oral argument and in a post-submission letter that “it no longer believes that it had such a duty because the prosecution team did not have knowledge of those convictions.” The State suggests that because Langenbach’s prosecution was “handled by a different section of [the] prosecutor’s office, clearly not part of the prosecution team” in Hall’s case, the Hall prosecution team had no duty to disclose Brady information contained in the office’s files concerning the unrelated Langenbach proceedings. The State attempts to rely on the concept of a “prosecution team” that has developed in the case law to define the universe of prosecutors and investigators extending beyond the prosecutor’s office whose knowledge of Brady material should be imputed to the prosecutor. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (prosecutors must not only disclose information within their own personal knowledge, but “have a duty to learn of any evidence favorable to the defense that is known to others acting on the government’s behalf in the case, including the police.”); State v. Moore, 240 S.W.3d 324, 328 (Tex. App.–Austin 2007, pet. ref’d) (distinguishing Texas Attorney General’s Office from “prosecution team” of police, investigating agencies, and other agencies “closely aligned with the prosecution”). The State urges us to apply this “prosecution team” concept within the single agency of the Travis County District Attorney, suggesting that it was required to disclose only the Brady materials known to the office employees personally involved in the Hall prosecution. We find no support for the State’s position. See Ex parte Richardson, 70 S.W.3d 865, 871-73 (Tex. Crim. App. 2002) (duty under Brady applied despite prosecutor’s lack of personal knowledge of favorable information in office files); see also Giglio v. United States, 405 U.S. 150, 154 (1972) (recognizing that a prosecutor’s office is an “entity” and that information in the possession of one attorney in the office “must be attributed” to the office as a whole) (citing Restatement (Second) of Agency § 272 (1958)); Moore, 240 S.W.3d at 328 (”The duty to disclose under Brady arose only if the prosecutors or other members of the ‘prosecuting team’ knew of the investigation or had access to the information”).

Whether the State’s failure to disclose the impeachment evidence constituted a due process violation turns instead on whether the evidence was “material” under Brady. Undisclosed evidence is “material” to guilt or punishment “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. In other words, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. The Supreme Court has further explained that this standard “is not a sufficiency of the evidence test”–”[a] defendant need not demonstrate that, after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Id. at 434-35. Instead, the defendant must “show[] that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435. On the other hand, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Hampton, 86 S.W.3d at 612 (quoting United States v. Agurs, 427 U.S. 97, 109 (1976)); see also id. (distinguishing this standard from the general standard for constitutional harmless error). The inquiry “involves balancing the strength of the [favorable] evidence against the evidence supporting conviction.” Hampton, 86 S.W.3d at 613. We must accordingly consider “the entire body of evidence” at trial. Id. Similarly, we evaluate materiality “in terms of suppressed evidence considered collectively, not item-by-item.” Kyles, 514 U.S. at 436. We consider the evidence in the light most favorable to the district court’s ruling that the State’s failure to disclose the additional criminal history information did not violate Hall’s due process rights. See Webb, 223 S.W.3d at 115.

Our analysis of the undisclosed impeachment evidence’s materiality begins with the fact that the State did disclose Langenbach’s Travis County convictions and that Hall’s trial counsel was able to utilize this evidence in an effective cross-examination. Prior to trial, the State provided Hall a “Notice of Witnesses’ Criminal History” disclosing that Langenbach had three Travis County felony convictions, all dated October 17, 2005: (1) securing execution of document by deception, for which she was sentenced to two years in state jail, probated for a term of five years; (2) misappropriation of property by a fiduciary, for which she was sentenced to ten years in prison, probated for a term of ten years; and (3) another count of securing execution of a document by deception, for which she was sentenced to two years in state jail, probated for a term of five years. During her direct examination, Langenbach acknowledged that she was currently on felony probation related to charges of securing execution of a document by deception and was being held on these charges when she shared a jail cell with Hall. Hall’s trial counsel began his cross-examination of Langenbach by inquiring whether she had previously been to prison for any other conviction. Langenbach responded, “Yes, sir.” The following exchange ensued:

Q: And where was it, ma’am?

A: In New Zealand.

Q: For what offense?

A: I tried to help a friend adopt a baby and in order to get the baby to the United States, she needed an American passport for the baby and I went with her to the American embassy.

Q: And you were convicted of trying to–fraudulently trying to obtain a passport?

A: No, of helping my friend adopt a baby.

Q: Is the adoption of a child a crime in New Zealand?

A: Because it wasn’t executed in New Zealand.

Hall’s counsel then proceeded to question Langenbach about her Travis County convictions, eliciting her acknowledgment that each crime involved her deceiving and harming others for her own benefit. ⁽²⁷⁾ For example, Langenbach responded in the affirmative to counsel’s question, “In each instance you stole something or swindled somebody, cheated somebody into signing things for you; is that right?” Counsel did not return to Langenbach’s New Zealand convictions other than to elicit her affirmative response to the following question regarding her Travis County convictions: “So, similar to the charge that you had been in prison for in New Zealand, you were deceiving somebody?”

With this evidence of past criminal convictions involving fraudulent and dishonest conduct before the jury, Hall’s counsel attempted to raise the inference that Langenbach had utilized facts about the crime she had heard in media reports to weave a false account that she could trade to authorities in exchange for favorable treatment. He elicited Langenbach’s admissions that she knew the meaning of the term “jailhouse snitch” (as Hall’s counsel described one, “somebody who gathers information on someone, supplies it to police authorities in exchange for some form of favorable treatment”), and that Langenbach had recognized Hall from television. Langenbach insisted that her account was based solely on Hall’s statements to her and denied receiving any favorable treatment in exchange for her testimony.

Even without the additional impeachment evidence the State withheld, Langenbach’s cross-examination based on her three Travis County convictions seriously damaged her credibility, informing the jury that she had a history and propensity to lie, cheat and scheme–to an extent of committing felony criminal offenses–to advance her own interests at others’ expense. Evidence of the New Zealand convictions, of course, would have informed the jury that Langenbach had more convictions for this sort of misconduct and that her misconduct dated back to at least 1996. Nonetheless, the central fact that she had a history and pattern of such conduct was already before the jury. Similarly, Hall asserts that because the additional prior convictions would have increased Langenbach’s likelihood of going to prison (and, at her age, dying there), they would have tended to establish greater incentives for her to lie to curry favor with authorities. But the jury already knew the key fact that Langenbach, with three pending felony charges, had strong incentives to be a “jailhouse snitch.” Hall also complains that the additional impeachment information would have enabled her to better attack Langenbach’s attempt to downplay her New Zealand offenses as a single incident of “helping my friend adopt a baby.” However, the jury reasonably could have concluded that this assertion further undermined Langenbach’s credibility, as she quickly acknowledged that adopting a baby was not a crime in New Zealand and that whatever offense or offenses she had committed actually had involved deceitful conduct similar to her Travis County offenses.

We must also consider the materiality of the undisclosed impeachment evidence in light of the role or importance of Langenbach’s testimony in supporting Hall’s convictions. To obtain its conviction against Hall for the lesser-included misdemeanor offense of hindering apprehension, the State was required to prove beyond a reasonable doubt that Hall, “with intent to hinder the arrest, prosecution, conviction, or punishment for Colton Pitonyak for the offense of murder,” either (1) “harbor[ed] or conceal[ed] Colton Pitonyak” or (2) “assisted Colton Pitonyak in his flight from the State of Texas and provided transportation to Colton Pitonyak in his flight from the State of Texas.” There was overwhelming evidence that Hall voluntarily supplied her own vehicle for use in transporting Pitonyak across the Mexican border and drove the car herself. ⁽²⁸⁾ The State also presented strong evidence, apart from Langenbach’s testimony, tending to establish that Hall took these actions with knowledge of Cave’s murder and intent to hinder Pitonyak’s apprehension for the crime. Cell phone records demonstrated repeated contacts between Hall and Pitonyak during the early morning of August 17, and Martindill’s testimony placed Hall at the condo later that morning. Said Aziz testified that Hall admitted, “I have been up in this shit since two hours after it started.” Aziz added that Hall told him, with regard to their apprehension by Mexican police, “I can’t believe they found us so fast,” a statement implying an awareness that authorities would be searching for them. Aziz similarly recounted that he “asked Hall why she would want to help somebody who killed a girl very much like herself, to which she replied that she loves him and, quote, ‘that’s just how she rolls.’” The State also presented DNA evidence showing high probabilities that Hall had been in the condo during the day and–as reflected by her probability of exclusion as a contributor to DNA found on the shop towel–after Pitonyak’s mid-afternoon trip to the hardware store. Further informing the inferences of guilt the jury reasonably could draw from this evidence, it heard considerable evidence that Hall was highly motivated to protect Pitonyak and seek his favor, despite his involvement in a murder and even if it meant breaking the law. ⁽²⁹⁾

Langenbach’s testimony had greater relative importance in supporting Hall’s conviction for tampering with physical evidence. To secure this conviction, the State was required to prove, beyond a reasonable doubt, that (1) Hall, “either acting alone or with another as a party to the offense,” (2) “knowing that an offense, to wit: a murder, had been committed,” (3) “alter[ed] or destroy[ed] or conceal[ed] a thing, to wit, a human body or biological evidence,” ⁽³⁰⁾ (4) “with intent to impair its verity or availability as evidence in any subsequent investigation of or original proceeding related to the offense.” The district court instructed the jury on the law of parties: “[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both,” and that “[a] person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”

As noted, there was strong evidence that Hall was physically present in Pitonyak’s condo both before and after his trip to the hardware store, that she knew he had murdered Cave, that she was highly motivated to protect Pitonyak, and that she helped him flee to Mexico later that evening. However, there was little, if any, physical evidence connecting Hall directly to the dismemberment of Cave’s body. Hall was excluded as a contributor to DNA found on the hacksaw, knives, machete, dust masks, and every other item found in the condo other than a blue shop towel from the living room and the flip-flops found in the bathroom. DNA evidence on Pitonyak’s handgun did show a high probability that Hall had contacted the item at some point. However, the State’s expert Carridine acknowledged that the mere fact one’s DNA appeared on an item did not establish when the person made contact, where they made contact, or what they were doing. ⁽³¹⁾ There was also evidence that Hall had gassed up and washed her car while Pitonyak was buying a hacksaw and other supplies at the hardware store. While perhaps probative of Hall’s plan to help in the escape to Mexico, it does not necessarily show her involvement in dismembering Cave’s body.

The State’s case against Hall for evidence-tampering ultimately rested upon evidence of Hall’s alleged after-the-fact admissions. We have held that the district court did not commit reversible error in admitting Nora Sullivan’s testimony about Hall’s purported admissions to her. Sullivan squarely implicated Hall as a party to the offense, testifying that Hall admitted she “tried to motivate” Pitonyak “to get him to do it . . . to convince and get him moving” in “his task” of dismembering Cave’s body. This testimony further informed the inferences that the jury drew from Hall’s admission to Aziz that “I have been up in this shit since two hours after it started,” and the impact of Rosalez’s testimony that Hall admitted “she had helped [in some unspecified way] and then masterminded the escape to Mexico.”

Langenbach, to be sure, provided the most detailed account of events in Pitonyak’s condo on August 17, and was the only witness squarely implicating Hall in personally cutting on Cave’s body. (Sullivan could testify to no more than her “impression” that Hall had directly participated). Nonetheless, balancing the strength of the impeachment evidence withheld by the State with the impeachment evidence already before the jury and the strength of the State’s case, see Hampton, 86 S.W.3d at 613, we conclude that the withheld impeachment evidence does not rise to the level of material in the constitutional sense. The State’s case against Hall for misdemeanor hindering apprehension was very strong. While its case for evidence-tampering was less so, there was sufficient evidence to convict Hall, at least as a party, in light of Sullivan’s testimony and the inferences it enabled the jury to draw from other evidence. Although the test for materiality does not turn on whether sufficient evidence remains to support the verdict if we ignore Langenbach’s testimony, see Kyles, 514 U.S. at 434-35, we do balance the strength of this evidence against that of the undisclosed evidence to determine whether the latter would have placed the State’s whole case as to either conviction in such a different light as to undermine our confidence in the jury’s verdict and constitute a reasonable probability of a different outcome. See id.; Hampton, 86 S.W.3d at 613. In light of the impeachment evidence already before the jury, we cannot conclude that it would have. Compare Webb, 232 S.W.3d at 115 (in prosecution for sexual assault of a child, possibility that victim would file civil suit against defendant was not material “[i]n light of all the evidence presented against Appellant and the abundant impeachment evidence Appellant offered against the complainant”); Saldivar v. State, 980 S.W.2d 475, 486 (Tex. App.–Houston [14th Dist.] 1998, pet. ref’d) (undisclosed theft conviction was not material where witness’s inconsistent statements permitted effective cross-examination, State’s case was “strong,” and witness’s testimony was cumulative of other witnesses); with Ex parte Richardson, 70 S.W.3d 865, 871-73 (Tex. Crim. App. 2002) (”Applicant’s trial counsel did impeach Ms. Hanson’s testimony in other ways, but nothing presented at trial . . . could compare with a parade of six law enforcement officers testifying that, in their opinion, Ms. Hanson was not a credible witness”). While the additional impeachment possibly “might have helped the defense, or might have affected the outcome of the trial” in regard to guilt-innocence, this “does not establish ‘materiality’ in the constitutional sense.” Hampton, 86 S.W.3d at 612 (quoting Agurs, 427 U.S. at 109). To this extent, we overrule Hall’s sixth point of error. We will address the implications of Langenbach’s undisclosed convictions for Hall’s punishment in the next section.

Conley

In her seventh point of error, Hall argues that the district court abused its discretion in denying her a new punishment trial because the State violated Brady in suppressing impeachment evidence relating to Douglas Conley. Conley was the cab driver who was the State’s sole witness during the punishment phase. He claimed that Hall, while riding in his cab, had referred to the murdered and decapitated Cave as “some bitch” and exhibited a demeanor toward the victim that Conley described as “just cold, callous.”

Following trial, Conley contacted Hall’s counsel and claimed that he had been unable to identify Hall in a photo line-up during his initial meeting with Austin police after reporting “Ashley’s” alleged statements. He later supplied an affidavit in which he testified to these facts. Conley further asserted that he had raised the issue with prosecutors when meeting with them before testifying in Hall’s trial. In response to his inquiry about the line-up, according to Conley, prosecutors showed him a single 8″ x 10″ photo to confirm Hall’s identity and “told [him] not to worry about it.” ⁽³²⁾

In response, the State stipulated that, indeed, Conley had been unable to identify Hall’s photo from the line-up. It also presented affidavit testimony from both the lead and second-chair prosecutor admitting that Conley, during a pre-trial meeting, had asked them about his previous difficulties in identifying Hall in the line-up. Their description of this conversation differed somewhat from Conley’s version. Both prosecutors claimed that Conley had insisted that the woman in his cab was Hall. When asked how he knew, according to the prosecutors, Conley assured them he had seen Hall in media coverage on the case and could tell “Ashley” was Hall. The State also emphasized to the district court that Conley had identified Hall at trial as the woman in his cab, and that facts Conley testified “Ashley” told him corresponded to the evidence about Hall (e.g., the pending felony charge involving aiding a boyfriend accused of murder, and Rosalez’s testimony that Hall had worked at Baby Acapulco’s on Barton Springs Road that summer). The State presented further corroborating proof that there had been only five felony hindering-apprehension cases pending against white females in Travis County when Conley picked up “Ashley,” one of which was against Hall.

In denying Hall’s motion, the district court found that Conley had testified for the State “attributing disparaging statements about the victim to the defendant,” that Conley had been shown a photo line-up and “was unable to identify the defendant from that photo line-up,” that prosecutors had possession of that information from a report prepared by the police detective who had interviewed Conley and Conley’s own inquiries, that “the defense team was not informed of the failure of Mr. Conley to identify Ms. Hall from the photo array prior to trial,” and that there was no testimony concerning Conley’s failure to identify Hall at trial. However, the court also found that “[t]here were additional identifying factors in Mr. Conley’s narrative that supported the identification despite Conley’s inability to identify the defendant from the photo line up.”

There is no dispute that Conley’s failure to identify Hall in a photo line-up and the prosecutor’s subsequent actions to confirm her identity with Conley were impeachment evidence in the State’s possession that it did not disclose to Hall. The parties join issue, however, as to whether this undisclosed evidence was material under Brady.

Unlike the largely cumulative impeachment evidence the State withheld regarding Langenbach, there was no other impeachment evidence before the jury about Conley. We also must agree with Hall that evidence Conley had been unable to identify Hall in a photo line-up during his first meeting with police–and that prosecutors had subsequently wood-shedded him before trial by showing him a single photo of Hall–would have been very powerful impeachment. Used effectively, this evidence could raise strong inferences that Conley, for whatever reason, had fabricated his account, or was at least mistaken. ⁽³³⁾ We are unpersuaded by the State’s arguments that this potential impact was effectively “cured” by Conley’s in-court identification of Hall, as the jury would also have heard that Conley had been wood-shedded with the aid of Hall’s photograph. Nor do we believe the State’s corroborating proof resolves the problem, as the record reflects that many of these facts about Hall had been widely publicized in media reports about the case. ⁽³⁴⁾ Conley, as noted, admitted that he had followed the news coverage on the case.

The State suggests that Conley’s testimony was merely cumulative of guilt-innocence evidence to the effect that Hall was “cold” and “callous” regarding Cave’s fate. The State emphasizes Langenbach’s testimony that Hall articulated such shocking thoughts as wondering what “the big fuss was about” because Cave “was nothing. She was nobody. Colton had a full paid scholarship and Jennifer was just a waitress,” and bragging, “How many grandmothers can tell their grandchildren that they cut up a body?” It also refers to Rosalez’s testimony that Hall had termed Cave’s murder and dismemberment a “victimless crime,” Aziz’s account of Hall’s “‘that’s just how she rolls’” comment, and the content of Hall’s Facebook page. And, lest we overlook the obvious, the jury did convict Hall of participating, at least as a party, in a gruesome decapitation and dismemberment of a murder victim.

Nevertheless, Conley played a uniquely critical role in regard to punishment. He was the State’s sole witness during the punishment phase, and his testimony was clearly calculated to shock and disgust the jury one last time before it began its punishment deliberations. More importantly, Conley was the State’s primary witness establishing that Hall’s “cold” and “callous” view of her crimes had persisted despite the passage of time. While Aziz and Langenbach testified to statements Hall made shortly after her return from Mexico, Conley testified to statements she allegedly made over a year afterward. The State emphasized this temporal relationship during its final closing argument on punishment, in which it urged the jury that Hall had evidenced a persisting lack of remorse confirming that she was beyond rehabilitation. The State argued:

You can consider her words to Doug Conley in August of 2006, a year after Jennifer Cave was killed. He just killed some bitch. That’s a lack of remorse and you can hold that against her. You cannot fathom someone who having seen what she saw did, what she did a year later, treat her like she never lived. That is a lack of remorse that you absolutely can consider.

After this statement, the State added, “The words she said to Javier Rosalez at very close in time and same place. Her lack of remorse shows you that she cannot be rehabilitated.” It concluded by urging the jury, “There is no course of action you have but to send her to prison for the maximum sentence because of the mind that is on her shoulders. There is no one of you who I believe will take the risk of letting her out with anything less than the maximum sentence.”

Although Rosalez did testify that Hall uttered her “victimless crime” statement in roughly the same time frame as her statements to Conley, he, unlike Conley, had been impeached with proof of two prior felony convictions. Furthermore, Langenbach, who provided the State’s most graphic and sensational testimony attributing to Hall a callousness and lack of remorse, had also been solidly impeached. For these reasons, Conley’s testimony would tend to have greater probative value relative to these witnesses. Alternatively, to the extent the jury would have afforded much weight to Langenbach’s testimony, it becomes significant that the State also withheld additional impeachment evidence on her. Although we concluded that this evidence was ultimately not material to Hall’s guilt, we must consider it in conjunction with the suppressed impeachment evidence on Conley when evaluating the materiality of both in regard to punishment. See Kyles, 514 U.S. at 434-35 (we evaluate materiality “in terms of suppressed evidence considered collectively, not item-by-item.”).

The record also reflects that, even on the state of the evidence presented at trial, the jury gave more than mere passing consideration to granting Hall probation on her evidence-tampering conviction. During its punishment deliberations, the jury sent out notes inquiring whether it could impose imprisonment for Hall’s hindering-apprehension conviction and probation for evidence-tampering. It also inquired whether, if it granted probation, it had any control over the conditions of Hall’s supervision.

On this record, we must conclude that the suppressed impeachment evidence against Conley was material–had it been disclosed and used effectively, it would have placed the State’s punishment case in such a different light as to undermine confidence in the verdict and give rise to a reasonable probability of a different outcome. See Kyles, 514 U.S. at 434-35. This is especially so when considering the cumulative impact of this evidence together with the suppressed impeachment evidence against Langenbach. See id. at 436. In other words, we hold that because of the State’s suppression of impeachment evidence, Hall did not receive the fair punishment trial that the Due Process Clause requires. We accordingly sustain Hall’s seventh issue and, to this extent, her sixth issue.

CONCLUSION

We have overruled Hall’s points of error challenging her convictions but sustained her points to the extent they challenge her punishment. Accordingly, we affirm the district court’s judgments as to the findings of guilt, reverse those parts of the judgments imposing sentence, and remand the causes for a new trial on punishment. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2008).

__________________________________________

Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Waldrop

Affirmed in part; Reversed and Remanded in part

Filed: February 19, 2009

Publish

1. 373 U.S. 83 (1963).

2. The receipt itself stated only that the purchases had been made at “3:18″ on August 17. Jeffrey Breed, an owner of the store, confirmed that the store would have been open only at 3:18 p.m.

3. Both Sharon Cave and Loren Hall, Hall’s father, testified at trial. We will use the first names of the parents and their children when necessary to avoid confusion with their common surnames.

4. Pitonyak’s cell phone records were in evidence. They reflect a four-minute call to a number in Corpus Christi at 5:39 p.m., which corresponds roughly to the time frame Sharon described. The records also show a two-minute call at 5:47 p.m. to a Corpus Christi number that corresponds to Jennifer’s cell phone number.

5. Pitonyak’s phone records reflect an 8:30 p.m. call to a number in the Corpus Christi area code.

6. Photographs of the body parts were also in evidence.

7. Hall’s cell phone records reflected that Pitonyak sent her a text message at 3:34 a.m. (which, according to Nora Sullivan’s account, would have been shortly after Pitonyak left her condo) and that Hall texted back at 3:35 a.m. There was testimony that Hall’s return message stated, “What do you mean.” Pitonyak’s cell phone records, in contrast, showed the earliest text message he sent to Hall on August 17 was at 5:34 a.m. and did not reflect a responsive text message from Hall. Thereafter, both Hall and Pitonyak’s cell phone records reflect a thirteen-minute call from Pitonyak to Hall beginning at approximately 6:00 a.m., a one-minute call from Hall to Pitonyak beginning at 6:57 a.m., a four-minute call from Pitonyak to Hall beginning at approximately 6:57, and a two-minute call from Pitonyak to Hall beginning at about 7:24 a.m.

8. Carridine, however, suggested that any DNA from anyone who had merely touched the saw could have been “overpowered” by Cave’s blood.

9. Moreover, Sedwick testified that when he entered the condo on the following morning, there was a strong odor coming from the bathroom. However, there was no testimony regarding the extent to which this indicator would also have been present on the 17th.

10. There was also testimony that, much to Hall’s consternation, Pitonyak had other female friends that included Cave and Sullivan. Despite Hall’s reservations, there was no direct testimony that Pitonyak was romantically linked with either Cave or Sullivan at the time of the crime, although there was evidence in the record indicating they had drug use in common.

11. Hall listed her screen name as “DocPhantasm” and her favorite quote as the following statement from horror writer Peter Straub:

You’re part music and part blood, part thinker and part killer. And if you can find all of that within you and control it, then you deserve to be set apart.

Hall also listed, among her favorite films, several that had violent crime themes: Pulp Fiction, Scarface, Carlito’s Way, Heat, and Donnie Brasco. At least two of the films, the State pointed out, had scenes involving the dismemberment of bodies.

Elsewhere on the page, under “About Me,” Hall commented, “Uh, don’t be like me. Not a role model! Also, I’m really quite bored. Entertain me?” Under “Clubs and Jobs,” she similarly opined that “I hate my job. Working is for losers.” Under “Looking For,” Hall indicated, “Whatever I can get.”

12. Ryan Martindill, on the other hand, recounted that during Hall’s visit on August 24, she claimed that “she was innocent,” that “she did not know what was going on” at Pitonyak’s condo, and that she had denied ever entering the condo’s bathroom.

13. It was on the following day that Hall professed to Martindill her innocence and ignorance of Pitonyak’s crime.

14. The record actually read, “Jennifer Cave (sic).” From context, the State obviously intended to refer to Hall rather than Cave.

15. Actually, Sullivan didn’t say this. It was Rosalez who used the term “mastermind,” but he denied that Hall ever claimed to have masterminded the evidence-tampering, as opposed to the flight to Mexico. The facts asserted by the State most closely resemble Langenbach’s testimony.

16. See Merriam-Webster’s Collegiate Dictionary 764 (10th ed. 2000) (”The crime of unlawfully killing a person especially with malice aforethought.”); American Heritage Dictionary of the English Language 863 (1973) (”The unlawful killing of one human by another, especially with premeditated malice.”); Cambridge Dictionary of the English Language, available online at http://dictionary.cambridge.org/define.asp?key=murder*1+0&dict=A (last visited January 6, 2009) (”The crime of intentionally killing a person.”); Compact Oxford English Dictionary, available online at http://www.askoxford.com/concise_oed/murder?view=uk (last visited January 6, 2009) (”The unlawful premeditated killing of one person by another.’).

17. See Random House Dictionary of the English Language 1266 (2nd ed. 1987) (”The killing of another human being under conditions specifically covered in law.”); The American Heritage College Dictionary 898 (3rd ed. 2000) (”To kill another human being unlawfully.”); Webster’s New College Dictionary 721 (2nd ed. 1999) (”To kill unlawfully.”); Bryan Garner, Garner’s Modern American Usage 533 (Oxford University Press 2003) (”The killing of another human being.”); Webster’s Third New International Dictionary 1488 (1986) (”The crime of killing a person under circumstances specifically defined by statute.”); American Heritage Dictionary of the English Language 863 (1973) (”To kill unlawfully.”); Merriam-Webster’s Collegiate Dictionary 764 (10th ed. 2000) (”To slaughter wantonly.”).

18. Thus, we are not called upon to address “what remedies are available when the State’s conduct is of a less culpable nature.” State v. LaRue, 152 S.W.3d 95, 100 (Tex. Crim. App. 2004). Likewise, Hall does not appear to contend on appeal that the district court abused its discretion in failing to provide any remedy short of excluding Sullivan’s testimony.

19. The district court stated, “You have a duty to disclose this immediately if it’s an admission.  Those are the rules. There’s no doubt about that.” The court ruled that Sullivan’s testimony is “not coming in right now this morning, I can guarantee you that.”

20. When tendering the continuance motion to the district court, Hall’s counsel requested that the court “reserve ruling on it until you do the other.”

21. Hall also alleged that the State knew or should have known that Sullivan had fabricated her testimony about the admissions. Hall has not pressed this claim on appeal.

22. Responding to Hall’s charge that the State knowingly presented false testimony, the prosecutor averred that Sullivan had “appeared to be honest and truthful,”and that “I had no indication that her statements were false or fabrications.”

23. We observe that when the first-chair prosecutor later presented an affidavit in opposition to Hall’s new trial motion, he did not address the issue of Sullivan’s statements.

24. We also observe that, even without the additional investigation Hall’s counsel desired, counsel was able to raise some inferences at trial regarding Sullivan’s credibility and her motives to fabricate her account of Hall’s statements. Hall’s counsel attempted to raise the inference that Sullivan had recently fabricated a lie to implicate Hall out of anger or spite related to Pitonyak’s conviction and the Pitonyak jury’s evident rejection of his theory that Hall, not he, had dismembered Cave’s body. Counsel highlighted the facts that Pitonyak had shown up at Sullivan’s door at 3:00 a.m.; that she had not called police after seeing him armed, with blood on him, claiming to have been in a gunfight; and that she had repeatedly visited Pitonyak in jail. He also questioned Sullivan about testimony the jury had previously heard from Richard Barberia, one of the Austin police officers who had investigated the crime scene. Barberia recounted that some residents of the condominium complex had informed him that a woman, who later turned out to be Sullivan, “was acting kind of weird.” He located Sullivan and spoke with her. According to Barberia, Sullivan asked “what had happened and who was the girl?” “That question concerned me,” Barberia explained, “for I did not remember telling her that a woman was involved.” Sullivan had also indicated to Barberia that Pitonyak was “a good friend of hers,” that she had seen Pitonyak on Tuesday, August 16, and that he had attempted to call her during the evening of Wednesday, August 17 (when Pitonyak was preparing to flee or was fleeing to Mexico). Hall’s counsel also questioned Sullivan as to why she had never previously divulged Hall’s alleged admissions, despite having testified in Pitonyak’s trial and been interviewed by counsel in that case. He also accused Sullivan of being angry or “festering” over Pitonyak’s conviction, which she denied. This line of questioning, however, was ultimately limited by counsel’s inability to impeach Sullivan with details about her relationship with Pitonyak and her display of emotions regarding his verdict.

25. In addition to the State’s constitutional obligations, the district court specifically ordered the State to produce any Brady materials. In her sixth and seventh points of error, Hall does not complain of any concurrent violations of this discovery order.

26. The court found that “[t]he prosecutors in the instant case did not review the files concerning prosecution of Langenbach and did not have personal knowledge of the New Zealand convictions.”

27. Hall’s counsel and Langenbach had the following exchange:

Q: What were you in jail for here in Travis County?

A: Securing a document that had something to do with real estate.

Q: The initial charge was securing the execution of a document by deception?

A: Yes.

Q: Deception means by lying or deceiving somebody?

A: Yes, sir.

. . . .

Q: So, similar to the charge that you had been in prison for in New Zealand, you were deceiving somebody?

A: Yes, sir.

Q: And then you also had a rap for misappropriation of property by a fiduciary?

A: Yes, sir.

Q: That means you were in a fiduciary duty to someone, took their property?

A: Yes, sir.

Q: And you had another case of securing execution of a document by deception separate from the other one; is that correct?

A: It was all in one case, yes, sir.

Q: Well, they were all in one case, but they were different counts, weren’t they?

A: Yes, sir.

Q: And eventually–actually, you had a fourth case pending but it got dismissed, right?

A: Yes, sir, I guess. Yeah, I guess.

Q: In each instance you stole something or swindled somebody, cheated somebody into signing things for you; is that right?

A: Yes, sir.

28. See supra at 10-11.

29. See supra at 13-15.

30. The State has acknowledged that “a human body or biological evidence” necessarily refers to Cave’s body or “a subcomponent” of her body. See Tex. Penal Code Ann. §§ 37.09(c), (d)(1), 42.08(c)(1).

31. Nor was there any testimony–even from Langenbach– that Hall had fired the shot into Cave’s severed head. Moreover, even if evidence could support an inference that Hall (perhaps out of jealousy or other dark emotion) had been the one to fire the shot into Cave’s head, this would not necessarily support the further inference that Hall did so “with intent to impair its verity or availability as evidence.”

32. Conley also professed “surprise” that prosecutors had contacted him after his meeting with police, that he “could not understand why defense counsel had not asked me about the photo lineup,” and that he “surmised that it was because the prosecutors neglected to share this information.” Conley also stated, “I felt used and ashamed of my role in what I now believe was little more than a lynch mob seeking to unfairly convict Laura Hall.”

33. Incidentally, in addition to volunteering his alleged account of Hall’s ride to police, then volunteering his assistance to Hall in her new trial motion, Mr. Conley has similarly interjected himself into the proceedings on appeal, filing a pro se amicus curiae brief in support of Hall (and “in the public interest in support of the peace and dignity of the State of Texas”). Conley both vaguely disparages Hall’s appellate counsel regarding an apparently unrelated matter and accuses the State of “gross prosecutorial misconduct” in attempting to prosecute Hall for evidence-tampering involving a human body (he questions whether a human body can be a “thing” under section 37.09 of the penal code). Conley further argues that the State acted “deceptively”or committed “perjury” in securing an indictment against Hall for felony hindering apprehension because Pitonyak had not yet been charged with murder when the pair fled Travis County. See Tex. Penal Code Ann. § 38.05 (a), (c), (d). As previously explained, the jury acquitted Hall of this offense and convicted her of the lesser-included offense of misdemeanor hindering apprehension, which did not require a finding that Hall knew Pitonyak had been charged with murder. See id.

34. E.g., testimony of Martindill, Aziz, and Langenbach noting awareness from media reports concerning Cave’s death and dismemberment, that Pitonyak had been charged with murder, that Hall had fled to Mexico with him, and that Hall had been charged with aiding him.

Robert Gibbs, the incoming White House press secretary, responded Friday to a question posted by “Thaddeus from Lansing, Mich.,” on Mr. Obama’s Web site, www.change.gov, asking if the president-elect would repeal “don’t ask, don’t tell.”

“Thaddeus,” Mr. Gibbs answered, “you don’t hear a politician give a one-word answer much. But it’s yes.”

This change is long overdue but only time will tell if President Obama will have the courage, persistence and integrity necessary to make it happen.   Bill Clinton certainly did not as he came into office with a promise to repeal the military’s policy of excluding homosexuals from service in the Armed Forces and instead almost immediately betrayed us by agreeing to a compromise which resulted in the “don’t ask, don’t tell” policy which was actually worse than the original policy and resulted in more homosexuals than ever being expelled from the military.

The $13 Billion Industry Is In No Fear Of Collapse, But Why Take Chances?

LOS ANGELES, Jan. 7 /PRNewswire/ — As the 2009 AVN Adult Expo opens in Las Vegas this week, Girls Gone Wild CEO Joe Francis and HUSTLER magazine publisher Larry Flynt are petitioning the newly convened 111th Congress to provide a financial bailout for the adult entertainment industry along the lines of what is being sought by the Big Three automakers, a spokesperson for Francis announced today.

Adult industry leaders Flynt and Francis sent a joint request to Congress asking for $5 billion in federal assistance, “Just to see us through hard times,” Francis said. “Congress seems willing to help shore up our nation’s most important businesses, we feel we deserve the same consideration. In difficult economic times, Americans turn to entertainment for relief. More and more, the kind of entertainment they turn to is adult entertainment.”

But according to Flynt the recession has acted like a national cold shower. “People are too depressed to be sexually active,” Flynt says, “This is very unhealthy as a nation. Americans can do without cars and such but they cannot do without sex.”

While not to the degree felt by banks and automakers, the Adult Entertainment industry has been hit by the effects of the economic downturn. DVD sales and rentals have decreased by 22 percent in the past year as viewers turn to the internet for adult entertainment. It is estimated that roughly half of all internet users visit adult sites, with the number of unique visitors to adult websites (including GirlsGoneWild.com and Hustler.com) has grown to more than 75 million per month.

But the “saltpeter” effect remains.

“With all this economic misery and people losing all that money, sex is the farthest thing from their mind,” Flynt says, “It’s time for congress to rejuvenate the sexual appetite of America. The only way they can do this is by supporting the adult industry and doing it quickly.”

“The popularity of adult entertainment in America has grown steadily for the past half century,” Francis says. “Its emergence into the mainstream of popular culture suggests that the US government should actively support the adult industry’s survival and growth, just as it feels the need to support any other industry cherished by the American people.”

I don’t know much about trademark law but it seems to me that it is very unlikely that the patrons of Palazio Men’s Club and anyone who saw their advertisements would become confused, mistaken or deceived as to the affiliation, connection, or association of Palazio Men’s Club with FremantleMedia or as to the origin, sponsorship or approval of Palazio Men’s Club products and services by FremantleMedia.  The “Stripper Idol” competition and the “American Idol” television show are two very different things and no reasonable person would confuse one with the other.

Text of the complaint (Click here to download PDF file)

Case 1:08-cv-00908-LY

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FREMANTLEMEDIA
NORTH AMERICA, INC.,
Plaintiff,

v.
BENELUX CORPORATION and
ATHANASES STAMATOPOULOS,
Defendants.
Civil Action No.
Jury Trial Demanded

PLAINTIFF’S ORIGINAL COMPLAINT
FremantleMedia North America, Inc. (”Fremantle” or “Plaintiff) files this its Original Complaint against Benelux Corporation and Athanases Stamatopoulos (collectively “Defendants”) and would respectfully show the Court as follows:
I. PARTIES

1. Plaintiff FremantleMedia North America, Inc. is a Delaware corporation with its principal place of business in Santa Monica, California.

2. Defendant Benelux Corporation is a corporation organized under the laws of the State of Texas and doing business in the State of Texas. Defendant Benelux Corporation has its principal place of business in Austin, Texas. Benelux Corporation may be served with process through its registered agent, Athanases Stamatopoulos located at Gaines Mill Cove, Austin, Texas 78745.

3. Defendant Athanases Stamatopoulos is an individual residing in Travis County,
Texas and is the sole owner and director of Defendant Benelux Corporation.   Defendant
Athanases Stamatopoulos may be served with process at Gaines Mill Cove, Austin, Texas 78745.

II. JURISDICTION AND VENUE

4.  The United States District Court for the Western District of Texas has jurisdiction over this action pursuant to the provisions of 28 U.S.C. § 1331 in that this matter is a civil action arising under the Constitution, laws, or treaties of the United States, This action involves federal trademark rights, federal Lanham Act violations, and other federal causes of action.
5.  This Court also has jurisdiction over this action pursuant to the provisions of 28
U.S.C. § 1332 in that this matter is a civil action between citizens of different states wherein the amount in controversy is believed to exceed the sum of $75,000, exclusive of interest and cost.  Plaintiff is a Delaware corporation with its principal place of business in Santa Monica, California.   Defendants are residents of the State of Texas and are doing business in Texas.  Defendants also do business in Travis County, Texas, and a substantial part Defendants’ acts and conduct giving rise to the claims herein occurred in Travis County, Texas.

III. FACTUAL BACKGROUND

6.  The mark AMERICAN IDOL is a federally registered trademark owned by FremantleMedia. For example, FremantleMedia owns U.S. Trademark Registration No. 2,715,725 for the stylized mark AMERICAN IDOL issued May 13, 2003, for entertainment services in the nature of a continuing television talent show and U.S. Trademark Registration No. 2,751,431 for the word mark AMERICAN IDOL issued August 12, 2003 for entertainment services in the nature of a continuing television talent show. Copies of U.S. Trademark Registration No. 2,715,725 and U.S. Trademark Registration No. 2,751,431 are attached hereto as Exhibits A and B, respectively.   U.S. Trademark Registration No. 2,715,725 and U.S. Trademark Registration No. 2,751,431
are valid, subsisting, and in full force and effect.

7.  In addition, FremantleMedia owns over 40 other pending federal trademark applications or issued federal trademark registrations for the mark AMERICAN IDOL including, but not limited to, U.S. Trademark Registration Nos. 3,142,771; 3,101,422; 2,863,808; 2,951,733; 2,955,077 (stylized); 2,959,920; 3,037,638; 3,062,247 (stylized); 3,064,528; 3,114,786; 3,146,138 (stylized); 3,181,455; 3,204,113; 3,257,662; 3,295,322; 3,319,294; 3,330,238; 3,330,275; 3,342,055; 3,353,040; 3,416,143; 3,350,013; 3,353,263; 3,357,980; 3,366,823.

8.  The trademark AMERICAN IDOL® is associated exclusively with FremantleMedia for use in connection with entertainment services directed to talent competitions. FremantleMedia has used the trademark AMERICAN IDOL® in interstate commerce continuously since at least 2002. As a result of FremantleMedia’s marketing of its products and services and the extensive advertising and other business generation efforts to promote the trademark AMERICAN IDOL®, FremantleMedia’s television talent show “American Idol,” has met with great success resulting in the trademark AMERICAN IDOL® becoming well-known and famous in the Austin metropolitan area, the State of Texas, the United States, and globally as identifying FremantleMedia’s entertainment services. Consequently, FremantleMedia has developed substantial recognition among the consuming public for its high quality entertainment services offered in connection with its trademark AMERICAN IDOL® and has acquired and enjoys a valuable reputation and significant goodwill associated with its trademark AMERICAN IDOL® and services provided in connection with its trademark AMERICAN IDOL®.

9.  FremantleMedia’s use of the trademark AMERICAN IDOL® in the entertainment services industry has been exclusive. As a result of this exclusive use of the trademark AMERICAN IDOL® and the long and widespread use that has been made by FremantleMedia of the trademark AMERICAN IDOL®, there is substantial recognition and association of the trademark AMERICAN IDOL® with FremantleMedia by the public.

10.   Defendants operate a sexually oriented business under the name Palazio Men’s Club. This business is generally referred to as a “gentlemen’s club” at which women remove off their clothes while dancing to music. These women are referred to by Defendants as “strippers.” Defendant Benelux Corporation is the owner of the Palazio’s Men’s Club and Defendant Athanases Stamatopoulos is the sole owner and officer of Defendant Benelux Corporation. Accordingly, all decisions regarding the operation of Palazio Men’s Club, including decisions regarding advertisements and promotions of events held at Palazio Men’s Club are made, on information and belief, solely by Defendant Athanases Stamatopoulos.

11. FremantleMedia recently learned that Defendants were and currently are promoting a “stripper” talent contest at which the “winner” receives a prize of $500.00. As part of the promotion of this contest, Defendants use the term “Stripper Idol.” In addition to using the words, Defendants appropriated FremantleMedia’s AMERICAN IDOL logo shown in U.S. Trademark Registration No. 2,715,725 (Exhibit A hereto), including the color scheme, design, and font, to promote their stripper talent contest. Attached hereto as Exhibit C is an example of Defendants’ infringing advertisement.

12.       By using a mark that is confusingly similar to FremantleMedia’s mark AMERICAN IDOL® in association with its “stripper talent contest,” Defendants are infringing upon FremantleMedia’s trademark rights. Given the similarity of Defendants’ promotional term “Stripper Idol,” both alone and together as part of a logo (Exhibit C hereto), there is a substantial likelihood that consumers will be confused, misled or deceived as to the sponsorship, affiliation, association, or connection of Defendants’ stripper talent contest.

13.   Moreover, Defendants’ infringing use of FremantleMedia’s mark AMERICAN IDOL® is being used in connection with a business enterprise that tarnishes the reputation and, thus, diminishes the value of FremantleMedia’s mark AMERICAN IDOL®. Accordingly, Defendants’ promotion of its “stripper talent contest” by using a term confusing similar to FremantleMedia’s mark AMERICAN IDOL® is diluting the value of FremantleMedia’s mark AMERICAN IDOL® and damaging the goodwill and high quality reputation of FremantleMedia’s AMERICAN IDOL® branded services and products.

14.  Upon   learning   of   Defendants’    violation   of   FremantleMedia’s   rights,
FremantleMedia sent a letter to Defendant Benelux Corporation demanding that Defendants immediately cease their illegal activity. Defendant Benelux Corporation’s representative, Scott Stevenson, responded and informed FremantleMedia that the infringement would not stop, Thereafter, FremantleMedia sent a second letter again demanding that Defendants cease their infringing activity.  Defendants did not respond to FremantleMedia’s second letter, however, a review     of     Defendant     Benelux      Corporation’s     website      located     at     URL http://www.palaziomensclub.com   confirms   that   Defendants   continue   to   infringe   upon FremantleMedia’s trademark rights.

IV. CAUSES OF ACTION

COUNT I – TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION UNDER THE LANHAM ACT

15.       FremantleMedia repeats and realleges the allegations set forth in paragraphs 1-14.

16.       Defendants’ improper use of, and promotion of a “stripper” competition under, a mark confusingly similar to FremantleMedia’s mark AMERICAN IDOL®, as well as Defendants’ use of a logo that is virtually identical in color, design, and font is confusing to consumers and constitutes infringement of FremantleMedia’s trademark rights in violation of the Lanham Trademark Act (”Lanham Act”). Defendant’s unauthorized use of FremantleMedia’s marks violates Section 43 of the Lanham Act which prohibits the use of a trademark by Defendants in such a manner as is likely to cause confusion, mistake, or to deceive as to the affiliation, connection, or association of Defendants with FremantleMedia or as to the origin, sponsorship or approval of Defendants’ products by FremantleMedia. See 15 U.S.C. § 1125. Defendants’ use of the mark AMERICAN IDOL® also violates Section 32 of the Lanham Act prohibiting the unauthorized use of a trademark which is likely to cause confusion. See 15 U.S.C. §1114.

17.       Defendants are currently promoting and advertising Defendants stripper competition under FremantleMedia’s registered and common law trademarks without the consent of FremantleMedia and will continue to do so unless enjoined from doing so by this Court. If Defendants are permitted to continue to promote its services in this manner, FremantleMedia’s goodwill created by its marks AMERICAN IDOL® are placed in jeopardy. The continuing acts of Defendants are jeopardizing the goodwill of FremantleMedia and its valuable trademarks, and such acts have caused and are causing irreparable injury to FremantleMedia and to the consuming public. Unless the acts of the Defendants complained of herein are enjoined by this Court, they will continue to cause irreparable injury to FremantleMedia and to the public, for which there is no adequate remedy at law. Accordingly, FremantleMedia seeks injunctive relief prohibiting the infringing acts by Defendants complained of herein.

18.       Additionally or in the alternative, FremantleMedia seeks an accounting and its
actual and consequential damages resulting from Defendants’ infringing acts.    Moreover, FremantleMedia seeks punitive, additional, and enhanced damages from Defendants.

COUNT II – TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION UNDER TEXAS LAW
19.       FremantleMedia repeats and realleges the allegations set forth in paragraphs 1-18.

20. The acts of Defendants complained of above constitute trademark infringement and unfair competition under federal law, the common law of the State of Texas, and statutory law of the State of Texas. As a result of the infringement and unfair competition by Defendants, FremantleMedia has suffered and will continue to suffer injury and damage in an amount yet to be determined. Upon information and belief, the acts of infringement by Defendants have resulted in substantial unjust profits and unjust enrichment on the part of Defendants in an amount yet to be determined. Such acts of trademark infringement and unfair competition are causing harm to FremantleMedia.

21. The continuing acts of Defendants are jeopardizing the goodwill of FremantleMedia and its valuable trademarks, and such acts have caused and will continue to cause irreparable injury to FremantleMedia and to the consuming public. Unless the acts of the Defendants complained of herein are enjoined by this Court, they will continue to cause irreparable injury to FremantleMedia and to the public, for which there is no adequate remedy at law.

22. Additionally or in the alternative, FremantleMedia seeks an accounting and its actual and consequential damages as a result of Defendants’ infringing acts which have resulted in confusion among the public. Moreover, FremantleMedia seeks punitive and enhanced damages for Defendants’ willful conduct.

COUNT IV – TRADEMARK DILUTION UNDER TEXAS LAW

23.  FremantleMedia repeats and realleges the allegations set forth in paragraphs 1 -22.

24. The facts set out above demonstrate that Defendants are diluting the exclusivity and distinctiveness of FremantleMedia’s mark AMERICAN IDOL in violation of the Texas Anti-Dilution Act. Defendants’ unauthorized use of FremantleMedia’s mark AMERICAN IDOL® constitutes a dilution of FremantleMedia’s mark AMERICAN IDOL® and injures FremantleMedia’s business reputation, in violation of Tex. Bus. & Com. Code § 16.29.

25. As a result of the dilution by Defendants, FremantleMedia has suffered, and is
suffering, injury and damage in an amount yet to be determined. Upon information and belief, the acts of dilution by Defendants have resulted in and are currently resulting in substantial unjust profits and unjust enrichment on the part of Defendants in an amount yet to be determined.    FremantleMedia seeks injunctive relief to prevent this type of injury from continuing.    Additionally or in the alternative, FremantleMedia seeks an accounting and damages.

COUNT V – REQUEST FOR MONETARY RELIEF, TREBLE DAMAGES AND ATTORNEYS’ FEES AND COSTS

26. FremantleMedia repeats and realleges the allegations set forth in paragraphs 1-25.

27. The acts of Defendants complained of above have resulted in trademark infringement and unfair competition. Accordingly, Pursuant to 15 U.S.C. § 1117(a), FremantleMedia is entitled to recover 1) Defendants’ profits; 2) any damages sustained as a result of Defendants’ infringing acts; and 3) the costs associated with these causes of action.

28. Moreover, FremantleMedia is entitled to an award of treble damages, as well as an award of punitive damages, pursuant to 15 U.S.C. § 1117(b) as a result of the extenuating circumstances of this case, Defendants’ intentional use of FremantleMedia’s trademarks, and its gross, wanton, or willful conduct.

29. Furthermore, as a result of Defendants’ actions, FremantleMedia has been required to retain the services of counsel to represent it in this matter, and it has been forced to incur and is presently incurring attorneys’ fees in order to enforce its trademark rights. These fees and expenses are necessary and reasonable in order to prosecute this matter. Accordingly, FremantleMedia requests that it be granted an award of attorneys’ fees and costs as a result of Defendants’ actions as permitted under 15 U.S.C. § 1117(a).

DEMAND FOR JURY TRIAL
30. FremantleMedia demands a trial by jury on all claims and issues.

CONCLUSION AND PRAYER

WHEREFORE, FremantleMedia North America, Inc. prays for entry of judgment:

a.  finding that Defendants have infringed FremantleMedia North America, Inc.’s trademark rights in the mark AMERICAN IDOL®, including, but not limited to, U.S. Trademark Registration No. 2,715,725 and U.S. Trademark Registration No. 2,751,431;

b.  finding that Defendants have infringed FremantleMedia North America, Inc.’s common law trademark rights in the mark AMERICAN IDOL®;

c.  finding that Defendants have falsely and intentionally mislead consumers by directly or indirectly representing that Defendants’ infringing services are endorsed by, sponsored by, or affiliated with FremantleMedia North America, Inc.;

d.  finding that Defendants have engaged in unfair competition;

e.  enjoining Defendants, their officers, directors, agents, employees, representatives, successors, assigns, if any, and those in privity or concert with them from further acts that would amount to infringement of the marks AMERICAN IDOL®, including, but not limited to, U.S. Trademark Registration No. 2,715,725 and U.S. Trademark Registration No. 2,751,431, or unfair competition;

f. awarding FremantleMedia North America, Inc. all damages caused by the acts of Defendants and all profits of Defendants from acts complained of, and/or all costs to FremantleMedia North America,  Inc.  caused by Defendants’  activities complained of herein;
g. trebling the damages and profits awarded to FremantleMedia North America, Inc. as authorized by 15 U.S.C. § 1117;

h. granting FremantleMedia North America, Inc. pre-judgment and post-judgment interest on the damages caused to FremantleMedia North America, Inc. by reasons of Defendants’ activities complained of herein at the highest rates allowed by law;

i. finding that this is an exceptional case and awarding FremantleMedia North America, Inc. its reasonable and necessary attorneys’ fees in accordance with 15 U.S.C. §1117;

j. awarding costs to FremantleMedia North America, Inc.; and

k. awarding FremantleMedia North America, Inc. such other and further relief, at law or in equity, as the Court may deem just and proper under the circumstances.

Respectfully submitted,
GREENBERG TRAURIG LLP
Dated: December 15,2008       By:.
Anthony Matheny
Attorney-In-Charge
State Bar No. 24002543
1000 Louisiana, Suite 1700 Houston, Texas 77002
Telephone: (713) 374-3583 Facsimile: (713) 754-7583
ATTORNEYS FOR PLAINTIFF FREMANTLEMEDIA NORTH AMERICA, INC.

The Sklars lost their case on a number of grounds.   I don’t know if this was their last shot or if further appeals are still possible.

Part 1:  Scientology tax break case back in court — 2008-02-11

Opinion Text (Click here to download PDF from court website, click here to download PDF from frouman.com)

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Michael Sklar; Marla Sklar,
Petitioners-Appellants,
v.
Commissioner of Internal
Revenue,
Respondent-Appellee.

No. 06-72961
Tax Ct. No. 395-01
OPINION

Appeal from a Decision of the United States Tax Court
Argued and Submitted February 4, 2008—Pasadena, California
Filed December 12, 2008
Before: Harry Pregerson and Kim McLane Wardlaw, Circuit Judges, and Ronald B. Leighton,* District Judge.
Opinion by Judge Wardlaw

*The Honorable Ronald B. Leighton, United States District Judge for the Western District of Washington, sitting by designation.

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COUNSEL
Jeffrey I. Zuckerman (argued), Curtis, Mallet-Prevost, Colt & Mosle, LLP, Washington, D.C., for the petitioners-appellants.
Ellen Page DelSole (argued), Eileen J. O’Connor, and Ken­neth L. Greene, Department of Justice, Washington, D.C., for the respondent-appellee.

OPINION
WARDLAW, Circuit Judge:
Michael and Marla Sklar (“the Sklars”) appeal from a deci­sion of the Tax Court affirming the disallowance of deduc-

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tions they claimed for tuition and fees paid to their children’s Orthodox Jewish day schools. See Sklar v. Comm’r, 125 T.C. 281 (2005). We have jurisdiction pursuant to 28 U.S.C. § 7482(a)(1), and we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Taxpayers
The Sklars are Orthodox Jews who in 1995 had five school-aged children. Rather than send their children to public school to meet California State educational requirements, the Sklars enrolled each of their children in one of two Orthodox Jewish day schools, Emek Hebrew Academy (“Emek”) and Yeshiva Rav Isacsohn Torath Emeth Academy (“Yeshiva Rav”). They did so “because of their sincerely and deeply held religious belief that as Jews they have a religious obligation to provide their children with an Orthodox Jewish education in an Ortho­dox Jewish environment.” In 1995, the Sklars paid a total of $27,283 to Emek and Yeshiva Rav which included $24,093 for tuition, $1300 for registration fees, $1715 for other man­datory fees, and $175 for an after school Mishna program at Emek.1 During 1995, Emek and Yeshiva Rav each were exempt from federal income tax under I.R.C. § 501(c)(3), which provides tax exempt status for certain institutions “or­ganized and operated exclusively for religious, charitable, . . . or educational purposes,” among others. Both schools also qualified as organizations described in I.R.C. § 170(b)(1)(A), which allows donors to deduct charitable donations to qualify­ing institutions.
Both schools provided daily exposure to Jewish heritage and values. Their goals included educating their students in Jewish heritage and values, as well as the tenets of the Jewish faith. To this end, time was allocated in the school day for prayers and religious studies, students were required to adhere

1Mishna is the study of Jewish oral law.

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to Orthodox Jewish dress codes, and boys and girls attended classes separately.
A child’s day at each school included specified hours devoted to courses in religious studies and specified hours devoted to secular studies. The length of time that each stu­dent participated in secular classes, as opposed to religious studies, and the length of the total school day varied with the gender and grade level of the particular student.
Quality secular education that fulfilled the mandatory edu­cation requirements of the State of California also was a goal of both schools. Emek sought to provide a thorough and well-balanced curriculum in both religious and secular studies so that every student could succeed “in the most rigorous yeshiva [(Jewish)] high schools and other institutions of higher learning.” Yeshiva Rav sought to prepare its students for matriculation to yeshiva high schools and to attend a col­lege or seminary.
During the school years in issue, the Sklars paid tuition and mandatory fees to Emek and Yeshiva Rav for their children’s education. To ensure payment, the Sklars, like other parents, were required to contract with each school to pay, and to give to each school postdated checks covering, the tuition for the upcoming school year. Both schools provided tuition dis­counts to families based on financial need, if documented by detailed financial information submitted to the schools’ schol­arship committees, but the Sklars did not seek or receive such assistance. Although an Orthodox Rabbinic ruling precluded either school from expelling students from the Jewish studies program during the school year, nonpayment of tuition could result in expulsion from secular studies and the schools’ refusal to allow the children to register for classes in the sub­sequent school year.

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B. The Prior Litigation
In 1993, the Sklars learned of a confidential closing agree­ment2 the Internal Revenue Service (“IRS”) had executed with the Church of Scientology that purportedly allowed deduc­tions for certain religious educational services such as audit­ing and training. The Sklars subsequently amended their tax returns for 1991 and 1992, and filed a return for 1993, includ­ing new deductions for a portion of the tuition they had paid to their children’s schools. See Sklar, 125 T.C. at 288. The IRS allowed these deductions, apparently under the impres­sion that the Sklars were Scientologists. See id. The Sklars claimed similar deductions in 1994, but these were disal­lowed. Id. at 288-89. The IRS Notice of Deficiency explained that because the costs were for personal tuition expenses, they were not deductible. The Sklars pursued an unsuccessful peti­tion for redetermination before the Tax Court regarding their 1994 deductions, which subsequently came before us. Judge Reinhardt, writing for our Court in an opinion joined by Judge Pregerson, upheld the Tax Court’s denial of the deduction. See Sklar v. Comm’r (Sklar I), 282 F.3d 610 (9th Cir. 2002), amending and superseding Sklar v. Comm’r, 279 F.3d 697 (9th Cir. 2002).
In Sklar I, the Sklars made virtually identical arguments to those they assert here, based predominantly on their theories that a portion of their tuition payments are tax deductible because they received in exchange only intangible religious benefits and the Scientology Closing Agreement is an uncon-2Under § 7121 of the Internal Revenue Code, the IRS is authorized to execute “closing agreements.” A closing agreement is “an agreement in writing with any person relating to the liability of such person (or of the person or estate for whom he acts) in respect of any internal revenue tax for any taxable period.” I.R.C. § 7121(a); see also 26 C.F.R. § 301.7121-1. Such closing agreements are intended to be “final and conclusive, and, except upon a showing of fraud or malfeasance, or misrepresentation of a material fact,” shall not be reopened or annulled. I.R.C. § 7121(b).

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stitutional establishment of religion from which they should also benefit.
The Sklar I panel soundly rejected the Sklars’ argument that certain 1993 amendments to the Tax Code rendered their tuition payments deductible as payments to exclusively reli­gious organizations for which the Sklars received only intan­gible religious benefits. 282 F.3d at 612-14. Specifically, the panel noted that the amendments addressed “clearly proce­dural provisions” and that the deduction the Sklars alleged would be “of doubtful constitutional validity.” Id. at 613.
Next, the Sklar I panel held that the IRS was compelled to disclose the contents of its Closing Agreement with the Church of Scientology, at least to the extent it fell under I.R.C. § 6104(a)(1)(A), see 282 F.3d at 614-18, and that such disclosure was necessary as a practical matter because the agreement affects “not just one taxpayer or a discrete group of taxpayers, but a broad and indeterminate class of taxpayers with a large and constantly changing membership.” Id. at 617. Further, the panel held “where a closing agreement sets out a new policy and contains rules of general applicability to a class of taxpayers, disclosure of at least the relevant part of that agreement is required in the interest of public policy.” Id. In Sklar I, the panel therefore rejected
the argument that the closing agreement made with the Church of Scientology, or at least the portion establishing rules or policies that are applicable to Scientology members generally, is not subject to public disclosure. The IRS is simply not free to enter into closing agreements with religious or other tax-exempt organizations governing the deductions that will be available to their members and to keep such provisions secret from the courts, the Congress, and the public.
Id. at 618. The Sklar I panel nevertheless opined, without resolving the issue, that the Tax Court’s ruling that the Clos-

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ing Agreement was irrelevant to the deductibility of the Sklars’ tuition payments was “in all likelihood correct.” Id. It continued:
The Tax Court concluded that the Sklars were not similarly situated to the members of the Church of Scientology who benefitted from the closing agree­ment. While we have no doubt that certain taxpayers who belong to religions other than the Church of Scientology would be similarly situated to such members, we think it unlikely that the Sklars are. Religious education for elementary or secondary school children does not appear to be similar to the “auditing” and “training” conducted by the Church of Scientology.
Id. at 618 n.13; see also Hernandez v. Comm’r, 490 U.S. 680, 684-85 (1989) (describing “auditing” and “training”).
The Sklar I panel then turned to the Sklars’ Establishment Clause and administrative consistency arguments. Although it was not required to decide those issues because the Sklars had “failed to show that their tuition payments constitute a par­tially deductible ‘dual payment’ under the Tax Code,” Sklar I, 282 F.3d at 620, the panel noted that had it been required to do so, it would have first concluded that the IRS policy constitutes an unconstitutional denominational preference under Larson v. Valente, 456 U.S. 228 (1982).3 See Sklar I,
3Larson v. Valente established an analytical framework to assess the constitutionality of statutes granting denominational preferences. 456 U.S. 228, 245-52 (1982). To survive an Establishment Clause challenge under Larson, a statute which grants a denominational preference must be justi­fied by a “compelling governmental interest” to which it is “closely fit­ted.” Id. at 247-48, 252; see also id. at 246 (“[T]his Court has adhered to the principle, clearly manifested in the history and logic of the Establish­ment Clause, that no State can pass laws which aid one religion or that prefer one religion over another.” (internal citation and quotation marks omitted)).

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282 F.3d at 618-19. The panel reasoned that the denomina­tional preference embodied in the Closing Agreement was unconstitutional because it “cannot be justified by a compel­ling governmental interest.” Id. However, the panel indicated it would not be willing to extend that preference to other reli­gious organizations for three reasons: First, an extension of the preference would amount to state sponsorship of all reli­gions, which the panel doubted “Congress or any agency of the government would intend.” Id. at 619-20. Second, an extension of the preference would be “of questionable consti­tutional validity under Lemon,”4 because administering the policy “could require excessive government entanglement with religion.”5 Id. at 620. Third, the requested policy violated appeared to violate I.R.C. § 170. Id.
The panel also indicated it would reject the Sklars’ admin­istrative consistency claim because it “seriously doubted” that the Sklars were similarly situated to the Scientologists.6 The
4In Lemon v. Kurtz, 403 U.S. 602 (1971), the Supreme Court established a three-prong test to determine whether the state has violated the Estab­lishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive gov­ernment entanglement with religion.” Id. at 612-13 (1971) (internal cita­tions and quotation marks omitted).
5In Hernandez v. Commissioner, 490 U.S. 680 (1989), the Supreme Court rejected the claim that payments made to the Church of Scientology for purely religious education and training were deductible as gifts or con­tributions under I.R.C. § 170. Id. at 692-94. Among other reasons it gave for its decision, the Court explained that “the deduction petitioners seek might raise problems of entanglement between church and state.” Id. at 694; see also infra Part II.B (discussing § 170 and Hernandez).
6Judge Silverman, concurring, concluded that the question of whether the Sklars were “similarly situated” to the Scientologists had “no bearing on whether the tax code permits the Sklars to deduct the costs of their chil­dren’s religious education as a charitable contribution.” Sklar I, 282 F.3d at 622. Rather, he concluded that the Sklars were absolutely barred from taking the deduction by the Internal Revenue Code and Supreme Court precedent. See id. at 622-23.

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panel further stated that even if the Sklars were similarly situ­ated, “because the treatment they seek is of questionable stat­utory and constitutional validity under § 170 of the IRC, under Lemon, and under Hernandez, we would not hold that the unlawful policy set forth in the closing agreement must be extended to all religious organizations.” Id. at 620.
Finally, relying on United States v. American Bar Endow­ment, 477 U.S. 105 (1986), the Sklar I panel rejected the argu­ment that the Sklars’ tuition payments were deductible as a “dual payment” or “quid pro quo payment,” a payment made in part as consideration for goods and services and in part for charitable purposes. In American Bar Endowment, the Supreme Court held that the taxpayer must satisfy a two-part test to be entitled to the § 170 deduction for a quid pro quo payment:
First, the payment is deductible only if and to the extent it exceeds the market value of the benefit received. Second, the excess payment must be made with the intention of making a gift.
477 U.S. at 117 (internal citation and quotation marks omit­ted). The Sklar I panel held that the Sklars failed to introduce evidence demonstrating both “that any dual tuition payments they may have made exceeded the market value of the secular education their children received,” 282 F.3d at 621, or “that they intended to make a gift by contributing such ‘excess pay­ment.’ ” Id. The panel also suggested that for the purpose of demonstrating the first part of the American Bar Endowment test, the “market value” for the tuition payments would be the cost of a comparable secular education offered by private schools, evidence the Sklars had failed to introduce, perhaps, because of the “practical realities of the high cost of educa­tion.” Id.
C. The Current Litigation
On their 1995 tax return, the Sklars claimed $15,000 in deductions for purported charitable contributions that com-

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prised a portion of their five children’s tuition at Emek and Yeshiva Rav. The deduction was based on their estimate that 55% of the tuition payments were for purely religious educa­tion, an estimate supported by letters submitted two years later (in 1997) that were drafted by each of the schools at the Sklars’ request. Sklar, 125 T.C. at 288-89.
The IRS disallowed the $15,000 deduction. The IRS also determined the Sklars had “failed to meet the substantiation requirements of Internal Revenue Code Section 170(f)(8) with respect to the disallowed $15,000.00 of claimed charitable contributions.” The Sklars petitioned the Tax Court for a rede-termination of deficiency, asserting that (1) the tuition and fee payments to exclusively religious schools are deductible under a dual payment analysis to the extent the payments exceeded the value of the secular education their children received (a question left somewhat open in Sklar I); (2) Sec­tions 170(f)(8) and 6115 of the Internal Revenue Code, as enacted in 1993, authorized the deduction of tuition payments for religious education made to exclusively religious schools (an issue all but foreclosed by Sklar I); and (3) that the 1993 Closing Agreement between the Commissioner and the Church of Scientology constitutionally and administratively requires the IRS to allow other taxpayers to take the same charitable deductions for tuition payments to their religious schools (a question the panel discussed at length but declined to decide in Sklar I). Before the Tax Court, the Sklars and the IRS stipulated that in 1993 the IRS had executed a confiden­tial closing agreement with the Church of Scientology, set­tling several outstanding issues between the IRS and the Church of Scientology. See id. at 298. Under this agreement, members of the Church of Scientology were authorized to deduct as charitable contributions at least 80% of the fees for qualified religious services provided by the Church of Scien­tology. See id. at 298-99.
The Tax Court again rejected the Sklars’ arguments, hold­ing that the tuition and fee payments to the Jewish Day

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Schools were not deductible under any of the Sklars’ theories.7 First, the Tax Court rejected the Sklars’ effort to prove that the tuition and fee payments so exceeded the market value of the secular education their children received that they took on a “dual character,” i.e. that the payments had the character of both a purchase of education and a charitable contribution. Id. at 291-94; see also American Bar Endowment, 477 U.S. at 117. It found that the Sklars’ expert report regarding tuition at various Los Angeles area schools demonstrated only that
(1) Some schools charge more tuition than Emek and Yeshiva Rav Isacsohn, and some charge less; and (2) the amount of tuition petitioners paid is unremark­able and is not excessive for the substantial benefit they received in exchange; i.e., an education for their children.
125 T.C. at 293-94. The Tax Court concluded that the Sklars failed to demonstrate that any part of their tuition payments was intended as a charitable contribution and that the well-established law precluding deduction of tuition payments to schools providing both secular and religious education con­trolled. Second, the Tax Court held that the 1993 amendments to the Code “did not change what is deductible under section 170.” Id. at 296-97. In keeping with our reasoning in Sklar I, the Tax Court concluded that neither § 170(f)(8), nor § 6115, as amended in 1993, nor the accompanying legislative history suggested that Congress intended to make a substantive change to the Code or to overrule the “long line of cases” pre­cluding deductibility of tuition payments to religious schools. Id. at 296. Third, the Tax Court held that the Closing Agree­ment between the IRS and the Church of Scientology is irrele­vant to the question of whether the Sklars are entitled to the § 170 deductions. Id. at 299. Finally, the Tax Court concluded
7The Tax Court also ruled that the Sklars were not liable for an accuracy-related penalty the IRS had imposed under I.R.C. § 6662, an issue not before us on this appeal.

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that the Sklars’ separate payments for Mishna classes, which were held apart from other classes at Emek, should not be treated any differently than the tuition and fee payments. The Sklars timely appeal.
II. DISCUSSION
A.    Standard of Review
“We review the Tax Court’s conclusions of law and its con­struction of the tax code de novo, and no deference is owed that court on its application of the law.” Sklar I, 282 F.3d at 612. We review the Tax Court’s factual determinations for clear error and its evidentiary rulings for abuse of discretion. See Sparkman v. Comm’r, 509 F.3d 1149, 1155-56 (9th Cir. 2007).
B.    The Sklars’ 1995 Tuition Payments Are Not Deductible as Charitable Contributions Under the Internal Revenue Code
[1] Section 170 of the Internal Revenue Code allows tax­payers to deduct “any charitable contribution,” defined as “a contribution or gift to or for the use of” certain eligible enti­ties enumerated in § 170(c), including those exclusively orga­nized for religious purposes and educational purposes. I.R.C. § 170(a)(1), (c). “[T]o ensure that the payor’s primary pur­pose is to assist the charity and not to secure some benefit,” we require such contributions to be “made for detached and disinterested motives.” Graham v. Comm’r, 822 F.2d 844, 848 (9th Cir. 1987). Therefore, “quid pro quo” payments, where the taxpayer receives a benefit in exchange for the pay­ment, are generally not deductible as charitable contributions. See Hernandez v. Comm’r, 490 U.S. 680, 689-91 (1989). In keeping with this framework, tuition payments to parochial schools, which are made with the expectation of a substantial benefit, or quid pro quo, “have long been held not to be chari­table contributions under § 170.” Id. at 693; see also DeJong

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v. Comm’r, 309 F.2d 373, 376 (9th Cir. 1962) (“The law is well settled that tuition paid for the education of the children of a taxpayer is a family expense, not a charitable contribution to the educating institution.”).
[2] In Hernandez, the Supreme Court considered “whether taxpayers may deduct as charitable contributions payments made to branch churches of the Church of Scientology”8 in return for services known as “auditing” and “training.” 490 U.S. at 684. Both are considered forms of religious education. “Auditing” involves a form of spiritual counseling whereby a person gains spiritual awareness in one-on-one sessions with an auditor. By participating in “training,” a person studies the tenets of Scientology, gains spiritually, and may seek to become an auditor. Members of the Church of Scientology sought to deduct payments for auditing and training as chari­table contributions for religious services. The Court held that such payments for religious educational services “do not qual­ify as ‘contribution[s] or gift[s].’ ” Id. at 691. Rather, “[t]hese payments were part of a quintessential quid pro quo exchange: in return for their money, petitioners received an identifiable benefit, namely, auditing and training sessions.” Id. The Court reasoned “ ‘[t]he sine qua non of a charitable contribution is a transfer of money or property without ade­quate consideration.’ ” Id. (quoting American Bar Endowment, 477 U.S. at 118).
[3] The Court further rejected the taxpayers’ argument that a quid pro quo analysis was not even appropriate, because the
8In Hernandez, the Commissioner had stipulated before the Tax Court that “the branch churches of Scientology are religious organizations enti­tled to receive tax-deductible charitable contributions under the relevant sections of the Code.” 490 U.S. at 686. This stipulation isolated the statu­tory issue of “whether payments for auditing or training sessions constitute ‘contribution[s] or gift[s]’ under § 170.” Id. Similarly, the parties to the current litigation stipulated before the Tax Court “that an agreement dated October 1, 1993, between the Commissioner and the Church of Scien­tology settled several longstanding issues.” 125 T.C. at 298.

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payments for auditing and training services resulted in receipt of a purely religious benefit. Id. at 692-93. The Court first found no support in the language of § 170, which makes “no special preference for payments made in the expectation of gaining religious benefits or access to a religious service.” Id. at 693. Second, the Court reasoned that accepting the taxpay­ers’ “deductibility proposal would expand the charitable con­tribution deduction far beyond what Congress has provided.” Id. at 693. For example, “some taxpayers might regard their tuition payments to parochial schools as generating a religious benefit or as securing access to a religious service,” which would be incorrect because “such payments . . . have long been held not to be charitable contributions under § 170.” Id. Finally, the Court noted that “the deduction petitioners seek might raise problems of entanglement between church and state” because it would “inexorably force the IRS and review­ing courts to differentiate ‘religious’ benefits from ‘secular’ ones.” Id. at 694. While declining to pass on the constitution­ality of such hypothetical inquiries, the Court noted that “ ‘pervasive monitoring’ for ‘the subtle or overt presence of religious matter’ is a central danger against which we have held the Establishment Clause guards.” Id. (quoting Aguilar v. Felton, 473 U.S. 402, 413 (1985)). Thus, the Hernandez decision clearly forecloses the Sklars’ argument that there is an exception in the Code for payments for which one receives purely religious benefits.
1. The 1993 Amendments to the Tax Code Did Not Overrule Hernandez
To circumvent Hernandez’s clear holding, the Sklars resur­rect their Sklar I argument that the 1993 amendments to IRS §§ 170(f)(8) and 6115 overruled the Court’s holding in Her­nandez that only gifts or contributions may be deducted under § 170. According to the Sklars, the 1993 amendments provide for the deduction of tuition payments for which they receive only intangible religious benefits. We agree with the Tax

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Court that the Sklar’s interpretation of the 1993 amendments is misguided.
[4] Amended § 170(f)(8) requires the taxpayer to “substan-tiate[ ] the contribution by a contemporaneous written acknowledgment of the contribution by the donee organiza­tion.” I.R.C. § 170(f)(8)(A). This acknowledgment must include an estimate of the value of any goods or services the donor received in exchange, “or, if such goods or services consist solely of intangible religious benefits, a statement to that effect.” I.R.C. § 170(f)(8)(B)(iii). The amendment also defines an “intangible religious benefit” as one “which is pro­vided by an organization organized exclusively for religious purposes and which generally is not sold in a commercial transaction outside the donative context.” Id. As the Tax Court correctly held, Sklar, 125 T.C. at 296-97, and as we have previously suggested, Sklar I, 282 F.3d at 613, this amendment creates an exception only to the new substantia­tion requirement created by § 170(f)(8)(A).9 Nothing in the amendment’s language suggests that Congress intended to expand the types of payments that are deductible contribu­tions. As the Sklar I panel explained:
9Although the Sklars rely on the new substantiation requirement as sup­port for their deduction of tuition payments, they did not fully comply with the requirement themselves. Section 170(f)(8)(C) requires that sub­stantiation be provided by the earlier of (1) the date on which the return is filed or (2) the due date for filing the return. However, the Sklars did not submit the required supporting documentation until November 1997. The IRS argues that this untimely substantiation should serve as an abso­lute bar to the Sklars’ claimed deductions. However, some of the Sklars’ deductions, such as payments for Mishna classes, were not subject to the substantiation requirement because they fell below the $250 threshold described in section 170(f)(8). “Separate contributions of less than $250 are not subject to the requirements of section 170(f)(8), regardless of whether [they sum up to] $250 or more.” 26 C.F.R. § 1.170A-13(f)(1) (as amended in 1996). Because we conclude that no part of the Sklars’ pay­ments were deductible, we need not reach the issue.

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Given the clear holding of Hernandez and the absence of any direct evidence of Congressional intent to overrule the Supreme Court on this issue, we would be extremely reluctant to read an addi­tional and significant substantive deduction into the statute based on what are clearly procedural provi­sions regarding the documentation of tax return information, particularly where the deduction would be of doubtful constitutional validity.

Id.

[5] The second pertinent 1993 amendment requires donee organizations to disclose limitations on the deductibility of certain quid pro quo payments to the donors of such pay­ments. See I.R.C. § 6115. Amended § 6115(a) requires any organization that “receives a quid pro quo contribution in excess of $75” to provide the donor with a written statement declaring that the deductible portion of the contribution can­not include “the value of the goods or services provided by the organization,” along with “a good faith estimate of the value of such goods or services.” However, § 6115(b) explains:
For purposes of this section, the term “quid pro quo contribution” means a payment made partly as a con­tribution and partly in consideration for goods or ser­vices provided to the payor by the donee organization. A quid pro quo contribution does not include any payment made to an organization, orga­nized exclusively for religious purposes, in return for which the taxpayer receives solely an intangible reli­gious benefit that generally is not sold in a commer­cial transaction outside the donative context.
I.R.C. § 6115(b) (emphasis added). The Sklars read the exemption from the disclosure requirement for organizations organized exclusively for religious purposes which provide

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solely an intangible religious benefit completely out of con­text. The Sklar I panel explained why the Sklars’ reading of the exemption is unsupportable:
[Section] 6115 requires that tax-exempt organiza­tions inform taxpayer-donors that they will receive a tax deduction only for the amount of their donation above the value of any goods or services received in return for the donation and requires donee organiza­tions to give donors an estimate of this value, exempting from this estimate requirement contribu­tions for which solely intangible religious benefits are received.
282 F.3d at 613.
Nor does the legislative history of these amendments even mention Hernandez, and the House Report specifically states that, although the new requirements apply only to quid pro quo contributions for commercial benefits, “[n]o inference is intended . . . [regarding] whether or not any contribution out­side the scope of the bill’s substantiation or reporting require­ments is deductible (in full or in part) under the present-law requirements of section 170.” H.R. Rep. No. 103-111, at 786 n.170 (1993), reprinted in 1993 U.S.C.C.A.N. 378, 1017 n.170. Thus, the House Report confirms that Congress intended to preserve the status quo ante, and hardly serves as support for the Sklars’ argument.10
10In light of certain well-established deductible payments to religious organizations in exchange for intangible religious benefits, such as pew rents and church dues, see Hernandez, 490 U.S. at 701-02, it seems plausi­ble that Congress contemplated these sorts of contributions in amending §§ 170(f)(8) and 6115 in a manner that did not impose the arduous task of valuing the intangible religious benefits, such as the ability to partici­pate in religious celebrations, that donors receive in exchange for these contributions.

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[6] To put to rest the Sklars’ statutory claim, we now hold that neither the plain language of the 1993 amendments nor the accompanying legislative history indicates any substantive change to Hernandez’s holding that payment for religious education to religious organizations is not deductible. We agree with the observation of both the Tax Court and the Sklar I panel that had Congress intended to overrule judicial precedent and to provide charitable contributions for tuition and fee payments to religious organizations that provide reli­gious education, it would have expressed its intention more clearly. See 282 F.3d at 613; 125 T.C. at 296-97.
2. The Tuition Payments Were Not “Dual Payment” Contributions
[7] The Tax Court correctly concluded that no part of the Sklar’s tuition payments is deductible under a “dual payment” analysis. See Sklar, 125 T.C. at 290-94, 299-300. In American Bar Endowment, the Supreme Court considered the question of the extent to which payments to organizations that bear the “dual character” of a purchase and a contribution are deduct­ible under § 170. 477 U.S. at 116-18. IRS Revenue Ruling 67-246 had set forth a two-part test for determining the extent to which such payments are deductible:
First, the payment is deductible only if and to the extent it exceeds the market value of the benefit received. Second, the excess payment must be “made with the intention of making a gift.”
Id. at 117 (quoting Rev. Rul. 67-246, 1967-2 Cum. Bull. 104, 105 (1967)). The Court held that Revenue Ruling 67-246 embodied the proper standard, reasoning: “The sine qua non of a charitable contribution is a transfer of money or property without adequate consideration. The taxpayer, therefore, must at a minimum demonstrate that he purposely contributed money or property in excess of the value of any benefit he received in return.” Id. at 118.

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In American Bar Endowment, taxpayer members of a chari­table organization sought to deduct under § 170 refunds from insurance policies negotiated and purchased on their behalf by the charitable organization, which they donated to the organi­zation. See id. at 106-09, 116-18. They claimed that the pre­miums paid for the insurance, part of which was subsequently refunded due to the “experience rating” of the policies, were dual payments. Id. The Supreme Court held that the taxpayer members met neither prong of the two-part test for deductibil-ity of dual payments. Stating that the “most logical test of the value of the insurance [the benefit received in return for their payment] is the cost of similar policies,” the Court held that because three of the four taxpayers “failed to demonstrate that they could have purchased similar policies for a lower cost,” they failed to demonstrate that their payment exceeded the market value of the benefit received. Id. at 118. Because the fourth taxpayer, who did prove that there was a comparable insurance program at a lower premium rate for which he was eligible, failed to demonstrate that he knew about the avail­able lower premium during the tax years at issue, the Court held that he failed the second prong of the test—“that he intentionally gave away more than he received.” Id.
[8] The Sklars again have failed to meet their burden of sat­isfying either prong of the two-part test for a dual payment, and we seriously doubt that they could ever make the showing that would support a “dual payment” deduction for tuition for combined religious and secular education.11 In Sklar I, the panel concluded that the Sklars failed to satisfy the require­ments for partial deductibility of their tuition payments. Our analysis has not changed, despite the Sklars’ effort to intro­duce evidence as to market value.
11Indeed, the Tax Court expressed skepticism as to whether a dual pay­ment analysis would ever be appropriate in this context. See 125 T.C. at 293 (“[M]ore fundamentally, the record speaks to whether a dual pay­ments analysis applies in this case at all.”).

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[9] First, the Sklar I panel reasoned that the Sklars “failed to show that they intended to make a gift by contributing any such ‘excess payment.’ ” 282 F.3d at 621. In fact, the Sklars have never even argued—not in Sklar I, not before the Tax Court and not before us—that they intended to make a gift as a portion of their tuition payment. Indeed, the record is to the contrary. In their brief, the Sklars explain at length that they pay the tuition and fees to send their children to Orthodox Jewish schools because it is a religious imperative of Ortho­dox Judaism. They “sent their children to Yeshiva Rav Isac-sohn and Emek in 1995 because of their sincerely and deeply held religious belief that as Jews they have a religious obliga­tion to provide their children with an Orthodox Jewish educa­tion in an Orthodox Jewish environment.” Because they paid for religious education out of their own deeply held religious views, and because the record demonstrates that throughout the school day—during recess, lunch and secular, as well as religious, classes—the schools inculcate their children with their religion’s lifestyle, heritage, and values, the Sklars have actually demonstrated the absence of the requisite charitable intent.
Second, the Sklar I panel reasoned that “the Sklars have not shown that any dual tuition payments they may have made exceeded the market value of the secular education their chil­dren received.” Id. The panel stated that the Sklars needed to present evidence that their total payments exceeded “[t]he market value [of] the cost of a comparable secular education offered by private schools.” Id. Before the Tax Court, the Sklars introduced expert testimony asserting that “Catholic schools are the most reasonable comparison benchmarks for the schools attended by the Sklar children.” Based on his esti­mation of tuition paid for Archdiocesan Catholic schools12 in
12The flaws in the expert report itself are too numerous to mention, but we point out only one: the archdiocesan schools are subsidized in large measure by the parishes in the Archdiocese in order to force down the costs of education and to afford all Catholic children the opportunity to attend Catholic schools. Thus, by choosing archdiocesan schools as the basis for his comparative market value, the Sklars’ expert guaranteed that the tuition and fees paid to the Sklars’ schools would greatly exceed the tuition at the archdiocesan Catholic schools.

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Los Angeles County in 1995, the Sklars’ expert concluded that the market value of the secular education the Sklars’ chil­dren received was between $1483 and $1724, such that in 1995 the Sklars made “excess payments” of almost $5000 per child. The Sklars’ expert also included tuition data for other Los Angeles schools in his report. The Tax Court correctly concluded that the evidence in the record indicated: “(1) Some schools charge more tuition than Emek and Yeshiva Rav Isacsohn, and some charge less; and (2) the amount of tuition petitioners paid is unremarkable and is not excessive for the substantial benefit they received in exchange; i.e., an education for their children.” 125 T.C. at 293-94. Before us, the Sklars have failed to demonstrate—or even argue on appeal—that the Tax Court’s factual findings as to the data set forth in their expert’s report are clearly erroneous.
[10] Thus, the Tax Court did not err by concluding that the Sklars failed to show that any part of their tuition fees was a charitable deduction, subject to a dual payment analysis. We conclude that under Hernandez and the Internal Revenue Code, their tuition and fee payments must be treated like any other quid pro quo transaction, even if some part of the bene­fit received was religious in nature. See 490 U.S. at 691-94. We therefore agree with the Tax Court that the Sklars’ tuition is not deductible, in whole or in part, under § 170.
C. The 1993 Closing Agreement Does Not Constitutionally and Administratively Require the IRS To Allow Chari­table Deductions for the Sklars’ Tuition Payments to Religious Schools
The Sklars reassert their Sklar I argument that in light of allegedly similar deductions allowed for members of the Church of Scientology under a closing agreement with the IRS, the disallowance of deductions for Orthodox Jewish reli­gious education violates the Establishment Clause and princi­ples of administrative consistency. They also argue that the Tax Court abused its discretion in denying discovery about

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the Closing Agreement, including compelling its production.13 Before the Tax Court, the Sklars and the Commissioner “stip­ulated that an agreement dated October 1, 1993, between the Commissioner and the Church of Scientology settled several longstanding issues.” 125 T.C. at 298. A letter the Sklars had received from the IRS was also admitted. It established that the Closing Agreement “allows individuals to claim, as chari­table contributions, 80 percent of the cost of qualified reli­gious services.” Id. The Sklars argued that because of the Closing Agreement, the Commissioner is constitutionally and administratively precluded from disallowing their deductions for school tuition and fees, which they contend are “jurispru-dentially indistinguishable” from the auditing and training provided by the Church of Scientology.
The Tax Court correctly dispatched that argument by citing to Sklar I. See 125 T.C. at 299. There the panel stated that “[w]e seriously doubt that the Sklars are similarly situated to the persons who benefit from the Scientology closing agree­ment because the religious education of the Sklars’ children does not appear to be similar to the ‘auditing’, ‘training’ or other ‘qualified religious services’ conducted by the Church of Scientology.” 282 F.3d at 620; see also id. at 618 n.13. We also conclude that tuition and fee payments to schools that provide secular and religious education as part of one curricu­lum are quite different from payments to organizations that provide exclusively religious services. Because the Sklars are situated differently than members of the Church of Scien­tology, the Tax Court did not abuse its discretion in determin­ing that the Closing Agreement itself was not relevant, and therefore not discoverable in the Sklars’ redetermination pro­ceedings.
13The Sklars made several efforts to obtain the Closing Agreement. The IRS repeatedly objected and sought protective orders on grounds of rele­vance and in reliance on I.R.C. § 6103, which makes confidential certain taxpayer “return information,” including closing agreements. The Tax Court sustained the IRS’s objections, without disclosing its reasoning, and the document was not admitted into evidence.

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[11] Nor did the Tax Court err in its conclusion that “the agreement reached between the [IRS] and the Church of Scientology does not affect the result in this case,” Sklar v. Comm’r, 125 T.C. at 299, because “the analysis in [American Bar Endowment] controls here.” Id. (internal citation omit­ted). The Sklar I panel previously assumed the contents of the Closing Agreement, with reference to a Wall Street Journal article that purported to reprint the agreement in full. See Sklar I, 282 F.3d at 615; Scientologists and IRS Settle for $12.5 Million, Wall St. J., Dec. 30, 1997, at A12; agreement reprinted in Wall St. J. Interactive Edition (www.wsj.com). The panel also held that the IRS must make the Closing Agreement publicly available.14 282 F.3d at 614-18. The Sklar I panel further presumed from the IRS’s failure to disclose that the terms of the Closing Agreement were as set forth in the Wall Street Journal article, and concluded that the Closing Agreement constitutes an unconstitutional denominational preference. Id. at 619. We cannot improve upon the original panel majority’s elucidation of the principles at stake:
Applying [Larson v. Valente, 456 U.S. at 246-47,] to the policy of the IRS towards the Church of Scien­tology, the initial inquiry must be whether the policy facially discriminates amongst religions. Clearly it does, as this tax deduction is available only to mem­bers of the Church of Scientology.
14In Sklar I, we held that closing agreements “constitute, at least in part, information required to be disclosed under § 6104,” 282 F.3d at 615 n.7, and that “in appropriate circumstances, disclosure may be required under § 6104 or otherwise,” id. at 616. Section 6104 of the Code compels certain 501(c) and 501(d) organizations to disclose any documents submitted in support of an application for exemption. However, § 6103 prohibits the disclosure of closing agreements and other confidential “return informa­tion.” Id. Considering the interaction of the two sections, we held that “§ 6103 does not categorically prohibit the disclosure of closing agree­ments,” but on the contrary “the disclosure prohibitions of § 6103 are sub­ject to the mandatory disclosure requirements of § 6104.” Id. Our holding in Sklar I is binding here, although we do not decide the extent to which the Closing Agreement might be discoverable in an appropriate forum.

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The second Larson inquiry is whether or not the facially discriminatory policy is justified by a com­pelling governmental interest. 456 U.S. at 246-47, 102 S. Ct. 1673. Although the IRS does not concede that it is engaging in a denominational preference, it asserts in its brief that the terms of the settlement agreement cannot be used as a basis to find an Estab­lishment Clause violation because “in order to settle a case, both parties are required to make compro­mises with respect to points on which they believe they are legally correct.” This is the only interest that the IRS proffers for the alleged policy. Although it appears to be true that the IRS has engaged in this particular preference in the interest of settling a long and litigious tax dispute with the Church of Scien­tology, and as compelling as this interest might oth­erwise be, it does not rise to the level that would pass strict scrutiny. The benefits of settling a controversy with one religious organization can hardly outweigh the costs of engaging in a religious preference. Even aside from the constitutional considerations, a con­trary rule would create a procedure by which any denomination seeking a denominational preference could bypass Congressional law-making and IRS rulemaking by engaging in voluminous tax litigation. Such a procedure would likely encourage the prolif­eration of such litigation, not reduce it. Larson, 456 U.S. at 248, 102 S. Ct. 1673 (holding that even assuming arguendo that the government has a com­pelling governmental interest for a denominational preference, it must show that the rule is “closely fit­ted to further the interest that it assertedly serves”). Because the facial preference for the Church of Scientology embodied in the IRS’s policy regarding its members cannot be justified by a compelling gov­ernmental interest, we would, if required to decide the case on the ground urged by the Sklars, first determine that the IRS policy constitutes an uncon-

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stitutional denominational preference under Larson, 456 U.S. at 230, 102 S. Ct. 1673.
282 F.3d at 618-19 (footnote omitted). However, the Sklar I panel declined to follow the Sklars’ suggestion that they, too, are entitled to an unconstitutional denominational preference for three reasons:
First, we would be reluctant ever to presume that Congress or any agency of the government would intend that a general religious preference be adopted, by extension or otherwise, as such preferences raise the highly sensitive issue of state sponsorship of reli­gion. In the absence of a clear expression of such intent, we would be unlikely to consider extending a policy favoring one religion where the effect of our action would be to create a policy favoring all. Sec­ond, the Supreme Court has previously stated that a policy such as the Sklars wish us to create would be of questionable constitutional validity under Lemon, because the administration of the policy could require excessive government entanglement with religion. Hernandez, 490 U.S. at 694, 109 S. Ct. 2136; see Lemon, 403 U.S. at 612-13, 91 S. Ct. 2105. Third, the policy the Sklars seek would appear to violate section § 170. See Hernandez, 490 U.S. at 692-93, 109 S. Ct. 2136.
Id. at 619-20.
The Sklar I panel also rejected the Sklars’ administrative inconsistency claim on two grounds:
First, in order to make an administrative inconsis­tency claim, a party must show that it is similarly sit­uated to the group being treated differently by the agency. United States v. Kaiser, 363 U.S. 299, 308 [(1960)]. We seriously doubt that the Sklars are sim-

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ilarly situated to the persons who benefit from the Scientology closing agreement because the religious education of the Sklars’ children does not appear to be similar to the “auditing”, “training” or other “qualified religious services” conducted by the Church of Scientology. Second, even if they were so situated, because the treatment they seek is of ques­tionable statutory and constitutional validity under § 170 of the IRC, under Lemon, and under Her­nandez, we would not hold that the unlawful policy set forth in the closing agreement must be extended to all religious organizations.
Id. at 620 (citation omitted).
[12] These principles are as correct today as they were six years ago. We adopt the full force of the conclusions they dic­tate. To conclude otherwise would be tantamount to rewriting the Tax Code, disregarding Supreme Court precedent, only to reach a conclusion directly at odds with the Establishment Clause—all in the name of the Establishment Clause. The principle the Sklars advance does not stop with them and their 1995 taxes; its logic would extend to all members of religious organizations who benefit from educational services that are in whole or part religious in nature. The Tax Court correctly held that neither the Establishment Clause nor principles of administrative consistency allow the Sklars the deductions they seek, and the Tax Court’s denial of discovery regarding the Closing Agreement in proceedings involving the deduct-ibility of the Sklars’ tuition and fees was not an abuse of dis­cretion.
CONCLUSION
The Tax Court correctly affirmed the IRS’s disallowance of deductions the Sklars claimed for tuition and fees paid to their children’s Orthodox Jewish day schools. The decision of the Tax Court is AFFIRMED.

But all the criticism of the invitation extended to Rick Warren misses the most important thing:  the inaugural invocation or prayer is an unconstitutional tradition that must be abolished as it has no legitimate place whatsoever in a ceremony in which the head of a modern secular state takes office.

The ruling summarized the background of the case:

A Welfare and Institutions Code section 300 petition was filed on behalf of three minor children after the eldest of them reported physical and emotional mistreatment by the children’s father. The Los Angeles County
Department of Children and Family Services investigated the situation and discovered, among other things, that all eight of the children in thefamily had been home schooled by the mother rather than educated in a public or private school.The attorney representing the younger two children asked the juvenile court to order that the children be enrolled in a public or private school. The dependency court declined to make such an order despite the court’s opinion that the home schooling the children were receiving was “lousy,” “meager,” and “bad,” and despite the court’s opinion that keeping the children at home deprived them of situations where (1) they could interact with people outside the family, (2) there are people who could provide help if something is amiss in the children’s lives, and (3) they could develop emotionally in a broader world than the parents’ “cloistered” setting.

As noted above, the court ruled that the parents have a constitutional right to home school the children. From that ruling the attorney for the younger children seeks extraordinary writ relief.

While I agree that parents have the right to home school their children, I don’t believe that they have the right to deny their children the right to an education by qualified and credentialed educators. Those who want to educate their children at home should either be qualified and credentialed educators themselves or hire such people to teach their children. Similarly, parents of sick children have the right to care for their children at home. However, when a child needs medical care, they should summon a qualified and credentialed medical professional and not attempt to provide such care themselves unless they have the professional training and credentials to do so. I don’t think anyone would seriously argue that parents with no medical training or credentials have the right to perform appendectomies or other surgery on their children yet when it comes to education, many people in our society seem to have little concern for the significant and long-term harm to children that can result when they are denied the right to a quality education that meets basic standards.

Fortunately, in this case, the Second District Court of Appeal agreed that children’s rights and California law cannot be infringed by parents who claim that that the right to home school their children exempts them from compliance with the law and gives them the right to deprive their children of a legal education.

This ruling will undoubtedly be appealed to the California Supreme Court. I certainly hope it is upheld and will be following it closely.

Text of the ruling:

Filed 2/28/08
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re RACHEL L. et al., Persons Coming
Under the Juvenile Court Law.
B192878
JONATHAN L. and MARY GRACE L.,
Petitioners,
v.
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF
LOS ANGELES,
Respondent;
___________________________________
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Real Party in Interest.
(Los Angeles County
Super. Ct. No. JD00773)
ORIGINAL PROCEEDINGS in mandate. Stephen Marpet, Temporary Judge.
(Pursuant to Cal. Const., art. VI, § 21.) Writ granted.
Children’s Law Center of Los Angeles, Cameryn Schmidt and
Christine Caldwell, for Petitioners.
No appearance for Respondent.
2
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel
and Judith A. Luby, for Real Party in Interest.
___________________________________________
3

In this dependency case (Welf. & Inst. Code, § 300), we consider the question whether parents can legally “home school” their children. The
attorney for two of the three minor children in the case has petitioned this court for extraordinary writ relief, asking us to direct the juvenile
court to order that the children be enrolled in a public or private school, and actually attend such a school.

The trial court’s reason for declining to order public or private schooling for the children was its belief that parents have a constitutional right
to school their children in their own home. However, California courts have held that under provisions in the Education Code, parents do not have a
constitutional right to home school their children. Thus, while the petition for extraordinary writ asserts that the trial court’s refusal to order
attendance in a public or private school was an abuse of discretion, we find the refusal was actually an error of law. It is clear to us that
enrollment and attendance in a public full-time day school is required by California law for minor children unless (1) the child is enrolled in a
private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential
for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance (Ed. Code, § 48220 et seq.)
applies to the child. Because the parents in this case have not demonstrated that any of these exemptions apply to their children, we will grant the
petition for extraordinary writ.

BACKGROUND OF THE CASE

A Welfare and Institutions Code section 300 petition was filed on behalf of three minor children after the eldest of them reported physical and
emotional mistreatment by

4

the children’s father. The Los Angeles County Department of Children and Family Services investigated the situation and discovered, among other
things, that all eight of the children in the family had been home schooled by the mother rather than educated in a public or private school.1 The
attorney representing the younger two children asked the juvenile court to order that the children be enrolled in a public or private school. The
dependency court declined to make such an order despite the court’s opinion that the home schooling the children were receiving was “lousy,”
“meager,” and “bad,” and despite the court’s opinion that keeping the children at home deprived them of situations where (1) they could interact with
people outside the family, (2) there are people who could provide help if something is amiss in the children’s lives, and (3) they could develop
emotionally in a broader world than the parents’ “cloistered” setting. As noted above, the court ruled that the parents have a constitutional right
to home school the children. From that ruling the attorney for the younger children seeks extraordinary writ relief.

DISCUSSION

1. California’s Provisions for Compulsory Education of Minor Children Article IX, section 1 of California’s Constitution states: “A general diffusion
of knowledge and intelligence being essential to the preservation of the rights and liberties 1 Over the years, the parents of the children have
given various reasons for not sending the children to school. Although previously they stated they do not believe in the policies of the public
school system, more recently they have asserted that they home school because of their religious beliefs. The father also recently opined that
educating children outside the home exposes them to “snitches.”

5

of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”
“In obedience to the constitutional mandate to bring about a general diffusion of knowledge and intelligence, the Legislature, over the years,
enacted a series of laws. A primary purpose of the educational system is to train school children in good citizenship, patriotism and loyalty to the
state and the nation as a means of protecting the public welfare. [Citation.] The Supreme Court of the United States, in the case of Pierce v.
Society of Sisters, 268 U.S. 510 [45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468], held that: ‘No question is raised concerning the power of the state
reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age
attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good
citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.’ [¶] Included in the laws governing the
educational program were those regulating the attendance of children at school and the power of the state to enforce compulsory education of children
within the state at some school is beyond question. (Meyer v. Nebraska, 262 U.S. 390 [43 S.Ct. 625, 628, 67 L.Ed. 1042, 29 A.L.R. 1446]; Ex parte
Liddell, 93 Cal. 633, 640 [29 P. 251].” (In re Shinn (1961) 195 Cal.App.2d 683, 686-687.)

Full-time public school education for persons between the ages of six and eighteen is compulsory under California’s compulsory education law (Ed.
Code,

6

§ 48200 et seq.),2 “and each parent, guardian, or other person having control or charge of the pupil shall send the pupil to the public full-time day
school . . . and for the full time designated as the length of the schoolday by the governing board of the school district” (§ 48200). Exemptions to
compulsory public school education are made for, among others, children who (1) attend a private full-time day school (§ 48222) or (2) are instructed
by a tutor who holds a valid state teaching credential for the grade being taught (§ 48224). These provisions of the Education Code (in their
predecessor section numbers) were held to be constitutional in People v. Turner (1953) 121 Cal.App.2d Supp. 861, 865 et seq., (“Turner”), and an
appeal to the United States Supreme Court from that decision was dismissed for want of a substantial federal question in Turner v. People of the
State of California (1954) 347 U.S. 972 [98 L.Ed. 1112, 74 S.Ct. 785]. Turner was cited with approval in In re Shinn, supra, 195 Cal.App.2d at p. 694
(“Shinn”).

In Shinn, children were found to be habitually truant and were made wards of the juvenile court because their parents violated the compulsory
education laws in effect at that time. The laws were former sections 12101, 12154, and 12155, which were predecessors to current sections 48200,
48222, and 48224, respectively. (Shinn, supra, 195 Cal.App.2d at pp. 687, 693-694.)

In Turner, the court affirmed a judgment of conviction of parents who refused to send their children to public school and instead provided them with
instruction that did

2 Unless otherwise indicated, all references herein to statutes are to the Education Code.

7

not come within the exemptions to the compulsory public school education law. The appellant parents were convicted of violating former section 16601,
a predecessor to current section 48200. Former sections 16624, and 16625 provided exemptions for children attending private full-time day school and
children being educated by a person holding a valid teaching credential, but the parents did not make use of the exemptions. (Turner, supra, 121
Cal.App.2d Supp. at pp. 863-864.)

The parents in Turner contended that former section 16601 was unconstitutional because it deprived them of a right to determine how and where their
children should be educated. Citing Pierce v. Society of Sisters (1925) 268 U.S. 510 [69 L.Ed. 1070, 45 S.Ct. 571], the Turner court stated the
statute would be unconstitutional if it required parents to place their children in public schools and had no alternative means of education, but the
court noted that former section 16601 permitted such alternative means and therefore was not unconstitutional. The court specifically rejected the
argument that it is unconstitutional to require that parents possess the qualifications prescribed by statute if the parents seek to act as their
children’s teachers, saying that nothing in the Pierce opinion declared or intimated such a finding of unconstitutionality. (Turner, supra, 121
Cal.App.2d Supp. at p. 865.)

The Turner court observed that there are “many cases dealing with statutes of this character,” and specifically referred to State v. Hoyt (1929) 84
N.H. 38 [146 A. 170], where the Supreme Court of New Hampshire held constitutional a statute requiring children to be educated in either a public
school or an approved private school, and rejected the argument that the federal guarantee of liberty permits parents to

8

resist such state statutes by having their children educated in their own home by the parents themselves or a private tutor. (State v. Hoyt, supra,
146 A. at p. 171; Turner, supra, 121 Cal.App.2d Supp. at pp. 865-867.) The Turner court observed that the court in Hoyt stated it would be an
unreasonable burden on the state to have to supervise each and every home in which a child was being educated. (Turner, at pp. 866-867.) The Turner
court further observed it could find no cases in which a court has held that a state’s failure to permit home instruction as an alternative to public
school education is unconstitutional. (Id. at p. 867.)

Turner also held that the subject former statutes were neither arbitrary nor unreasonable when they required that teachers in private full-time day
schools only be “persons capable of teaching” and did not have to hold a valid teaching credential for the grade being taught, but did require that a
home tutor hold such a credential. The court observed that whereas it is unreasonably difficult and expensive for a state to supervise parents who
instruct children in their homes, supervising teachers in organized private schools is less difficult and expensive. (Turner, supra, 121 Cal.App.2d
Supp. at p. 867.) Moreover, it would not be unreasonable for the Legislature to conclude that teachers in private schools would be directly
supervised by the persons who run the schools, and such persons would have an interest in maintaining the required standard of instruction by
competent teachers so that the schools would continue to qualify for the private full-time day school exemption. (Id. at pp. 867-868.)

9

Additionally, the Turner court rejected, and noted that courts in other states had also rejected, the notion that parents instructing their children
at home come within the private full-time day school exemption in then-section 16624 (now section 48222). The court stated that a simple reading of
the statutes governing private schools and home instruction by private tutors shows the Legislature intended to distinguish the two, for if a private
school includes a parent or private tutor instructing a child at home, there would be no purpose in writing separate legislation for private
instruction at home. (Turner, supra, 121 Cal.App.2d Supp. at p. 868; accord Shinn, supra, 195 Cal.App.2d at p. 693.) Moreover, even if being taught
at a parent’s home could be construed as attendance at a private day school, the parents in Turner had not demonstrated that their home already
qualified as a private school under the requirements of the Education Code. (Turner, at p. 869.)

Nor was the Turner court persuaded by the parents’ contention that the education being provided to their children in their home was as good or better
than the children would have obtained in a public or private school or through a credentialed tutor, and therefore the purpose of the statutes was
satisfied. The court stated California’s legislative scheme makes no such exemption to attendance in a public school. (Turner, supra, 121 Cal.App.2d
Supp. at p. 868-869; accord Shinn, supra, 195 Cal.App.2d, at p. 694, where the court stated that “[h]ome education, regardless of its worth, is not
the legal equivalent of attendance in school in the absence of instruction by qualified private tutors.”)

10

Turner was cited with approval in Board of Education v. Allen (1968) 392 U.S. 236 [20 L.Ed.2d 1060, 88 S.Ct. 1923] (“Allen”). There, the Supreme
Court stated: “Since Pierce [v. Society of Sisters was decided], a substantial body of case law has confirmed the power of the States to insist that
attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction,
employ teachers of specified training, and cover prescribed subjects of instruction. Indeed, the State’s interest in assuring that these standards
are being met has been considered a sufficient reason for refusing to accept instruction at home as compliance with compulsory education statutes.
These cases were a sensible corollary of Pierce v. Society of Sisters: if the State must satisfy its interest in secular education through the
instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.” (Id., 392
U.S. at pp. 245-247, fns. omitted.) The Allen court cited Turner as a case in which home instruction was rejected as a means of complying with a
state’s compulsory education laws. (Id. at p. 247, fn. 8.) Moreover, as noted above, the appeal to the United States Supreme Court by the parents in
Turner was dismissed for want of a substantial federal question.3

3 In the instant case, the parents’ citation to Cassady v. Signorelli (1996) 49 Cal.App.4th 55 provides them with no support for their assertion of a
right to home school their children with the mother providing the educational instruction. Cassady is a family law case involving the question
whether the trial court abused its discretion when it ordered that a minor child must attend a public or private school rather than be home schooled.
Although the reviewing court stated that “a parent might normally have the right to provide home schooling, private schooling, or government
schooling to

11

The Legislature has not amended the substantive aspects of the compulsory education statutes that were analyzed in Turner and Shinn. Like those
courts, we find no reason to strike down the Legislature’s evaluation of what constitutes an adequate education scheme sufficient to promote the
“general diffusion of knowledge and intelligence,” which Article IX, section 1 of our Constitution states is “essential to the preservation of the
rights and liberties of the people.” We agree with the Shinn court’s statement that “the educational program of the State of California was designed
to promote the general welfare of all the people and was not designed to accommodate the personal ideas of any individual in the field of education.”
(Shinn, supra, 195 Cal.App.2d at p. 697.)

2. Consequences of Parental Denial of a Legal Education Because parents have a legal duty to see to their children’s schooling within the provisions
of these laws, parents who fail to do so may be subject to a criminal complaint against them, found guilty of an infraction, and subject to
imposition of fines or an order to complete a parent education and counseling program. (§§ 48291 & 48293.) Additionally, the parents are subject
to being ordered to enroll their children in an appropriate school or education program and provide proof of enrollment to the court, and willful
failure to comply with such an order may be punished by a fine for civil contempt. (§ 48293.)

a child,” the court did not address the requirements of the Education Code, nor the excellent treatment of California’s public compulsory education
law found in Shinn and Turner. The court simply ruled that based on the facts of the case, it was not an abuse its discretion to order that the child
not be home schooled.

12

Jurisdiction over such parental infractions may be assigned to juvenile court judges. (§ 48295; Welf. & Inst. Code, § 601.4.) Further, under
section 361, subdivision (a) of the Welfare and Institutions Code, the juvenile court has authority to limit a parent’s control over a dependent
child, including a parent’s right to make educational decisions for a child, so long as the limitations do not exceed what is necessary to protect
the child; and under section 362, subdivision (d) of that code, the juvenile court may make reasonable orders directed at the parents to ensure that
the child regularly attends school. An order directing a child’s regular attendance at school in compliance with the Education Code’s provisions for
compulsory education is a protection against the child being adjudged a habitual truant, while it also recognizes the child’s rights under
California’s compulsory public education law.

3. Analysis of the Education Issues in the Instant Case

The parents in this case assert that when the mother gives the children educational instruction at home, the parents are acting within the law
because mother operates through Sunland Christian School where the children are “enrolled.”4 However, the parents have not demonstrated that mother
has a teaching credential such that the children can be said to be receiving an education from a credentialed tutor. It is clear that the education
of the children at their home, whatever the quality of that 4 In support of the parents’ home schooling, Terry Neven, Sunland Christian School’s
administrator, submitted a letter in which he stated the school is a private school and the two younger children are enrolled there. The letter fails
to mention that the children do not actually receive education instruction at the school.

13

education, does not qualify for the private full-time day school or credentialed tutor exemptions from compulsory education in a public full-time day
school. The parents are not aided by a letter from the Lynwood Unified School District stating that Sunland Christian School “appeared to be a valid
charter school.” Aside from the fact that Sunland Christian School cannot be a charter school unless it is, among other things, part of California’s
public school system and nonsectarian,5 the parents present no authority to the effect that a charter school can excuse the statutory requirement
that tutors be credentialed if their students are to come within the tutor exemption to compulsory public school education.

Likewise, an affidavit of Sunland Christian School administrator Terry Neven provides no authority for the parents’ home schooling. In the affidavit,
Neven talks at length about “independent study” programs, including his school’s independent study program. He does not mention any Education Code
section that provides for parents teaching their children by “independent study” through private schools. Section 51745 et seq. provides for
independent study for students, through a school district or a county office of education; however, its purpose is to provide students with certain
educational opportunities, such as education during travel, or individualized 5 Charter schools are part of, and are under the jurisdiction of,
California’s public school system. (§ 47615; Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1137 et seq.) They must be nonsectarian in
their programs and all other operations, they cannot charge tuition, and they cannot be conversions from private schools. (§§ 47605, subd. (d)(1)
& 47602, subd. (b); Wilson, at p. 1131.) Their teachers must be credentialed as teachers in other public schools would be required to be
credentialed. (§ 47605, subd. (l); Wilson, at p. 1137.)

14

study in an area of interest or subject not currently available in the regular school curriculum. Clearly, section 51745 does not apply to mother’s
home schooling of the children.

Nor is there importance to Mr. Neven’s statement, in a letter to the Lynwood Unified School District, that Sunland Christian School “has been
evaluated by both Los Angeles Unified School District and the Los Angeles County Office of Education to be in compliance with state laws.”6 Such
representation does not constitute a statement that the Los Angeles Unified School District and the Los Angeles County Office of Education knowingly
gave their stamp of approval to children being deprived of an education in a public or private full-time day school setting, or by a credentialed
tutor, through the ruse of enrolling them in a private school and then letting them stay home and be taught by a non-credentialed parent.

Although Mr. Neven reported to the Lynwood Unified School District that he makes visits to the parents’ home about four times a year, and although
some of the children in the family reported to the Department of Children and Family Services social worker that they were given tests at the end of
some school years and they took the tests at the Sunland Christian School, the fact remains that the children are taught at home by a
non-credentialed person. Moreover, the very language of section 48222 is an implicit rejection of the parents’ position that having someone from
Sunland Christian 6 Both the Lynwood and the Los Angeles school districts are mentioned in Mr. Neven’s letter because the children live in one school
district, and the Sunland Christian School is in the other school district. 15

School monitor mother’s instruction of the children is sufficient. Section 48222 provides an exemption from compulsory public school education for
“[c]hildren who are being instructed in a private full-time day school.” (Italics added.) It is the language of the statutes that constitutes
California’s plan for education of its children. Thus, under California’s compulsory public school education law, Mr. Neven’s occasional observation
of mother’s instruction of the children and their occasional taking of tests at the private school is without legal significance. Lastly, we address
the parents’ claim that they home school their children because of religious beliefs. We recognize that “a State’s interest in universal education .
. . is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the
Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so
long as they . . . ‘prepare [them] for additional obligations.’ ” (Wisconsin v. Yoder (1972) 406 U.S. 205, 214 [32 L.Ed.2d 15, 92 S.Ct. 1526]
(Yoder).) The parents cite Yoder as a basis for their contention that their religious beliefs entitle them to refuse to send their children to
school. Yoder involved children whose parents’ religion (Amish) accepted education given outside of the home for grades one through eight but
mandated that children not continue their education in a public or private school past the eighth grade. The Yoder court rejected the notion that
parents have a universal right to refuse to obey a state’s compulsory education law. The court recognized that “allowing every person to make his own
standards on matters of conduct in which society as a whole has important

16

interests” is precluded by “the very concept of ordered liberty,” and thus, “if the Amish asserted their claims because of their subjective
evaluation and rejection of the contemporary secular values accepted by the majority, . . . their claims would not rest on a religious basis” but
rather would be philosophical and personal. (Yoder, supra, 406 U.S. at pp. 215-216.) However, from the testimonial evidence of scholars on the
subjects of religion and education, the court found that the Amish traditional way of life does not rest on personal preferences but rather on “deep
religious conviction, shared by an organized group, and intimately related to daily living” (id. at p. 216), and the Amish religious beliefs and
style of living are centuries old (id. at p. 217). “Old Order Amish communities today are characterized by a fundamental belief that salvation
requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values
is central to their faith.” (Id. at p. 210.) Testimony showed that not only were the values taught in high schools contrary to those of the Amish
religion, but attendance at high school takes Amish children away from their community during the period of their lives when they are to acquire
Amish attitudes and integrate into the Amish religious community. The Yoder court observed that Amish children receive an informal vocational
education in their own communities after graduation from eighth grade that prepares them to be productive members of the Amish community. (Id. at pp.
211-212, 222.) Moreover, one of the witnesses testified that compulsory high school education for Amish children would “ultimately result in the
destruction of the Old Order Amish church community as it exists in the United States today.” (Id. at p. 212.)

17

The parents in the instant case have asserted in a declaration that it is because of their “sincerely held religious beliefs” that they home school
their children and those religious beliefs “are based on Biblical teachings and principles.” Even if the parents’ declaration had been signed under
penalty of perjury, which it was not, those assertions are not the quality of evidence that permits us to say that application of California’s
compulsory public school education law to them violates their First Amendment rights. Their statements are conclusional, not factually specific.
Moreover, such sparse representations are too easily asserted by any parent who wishes to home school his or her child.

4. Remand for Further Proceedings

Because the trial court in this case simply ruled that the parents have a constitutional right to home school their children, the court made no
explicit factual findings concerning the parents’ compliance with California’s compulsory public education law. So that findings and legal
conclusions can be made on the record by the trial court, we will remand the case for a hearing on the issue whether the parents have been in
compliance with that law.

The dependency court should exercise the authority, granted to it by Welfare and Institutions Code sections 361, subdivision (a), and 362,
subdivision (d), to order the parents to comply with the Education Code. Upon remand, absent any legal ground for not doing so, the court must order
the parents to (1) enroll their children in a public full-time day school, or a legally qualified private full-time day school and (2) see to it that
the children receive their education in such school. Given the history of this family, 18

which we need not discuss here,7 permitting the parents to educate the children at home by means of a credentialed tutor would likely pose too many
difficulties for the tutor. Further, the court should not permit the children to be enrolled in the Sunland Christian School because that school was
willing to participate in the deprivation of the children’s right to a legal education.

DISPOSITION

The petition for extraordinary writ is granted. Let a writ of mandate issue directing the respondent juvenile court to comply with the views
expressed herein.

CERTIFIED FOR PUBLICATION
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.

7 On November 20, 2007, we filed a separate, unpublished opinion for this case that decides consolidated appeals (Nos. B192601 and B195484) filed by
the parents and two of the minor children. Those appeals address matters other than the home schooling issue and our opinion sets out a history of
the family vis-à-vis the dependency court.

What is Amazon Mechanical Turk?

In 1769, Hungarian nobleman Wolfgang von Kempelen astonished Europe by building a mechanical chess-playing automaton that defeated nearly every opponent it faced. A life-sized wooden mannequin, adorned with a fur-trimmed robe and a turban, Kempelen’s “Turk” was seated behind a cabinet and toured Europe confounding such brilliant challengers as Benjamin Franklin and Napoleon Bonaparte. To persuade skeptical audiences, Kempelen would slide open the cabinet’s doors to reveal the intricate set of gears, cogs and springs that powered his invention. He convinced them that he had built a machine that made decisions using artificial intelligence. What they did not know was the secret behind the Mechanical Turk: a human chess master cleverly concealed inside.

Today, we build complex software applications based on the things computers do well, such as storing and retrieving large amounts of information or rapidly performing calculations. However, humans still significantly outperform the most powerful computers at completing such simple tasks as identifying objects in photographs—something children can do even before they learn to speak.

When we think of interfaces between human beings and computers, we usually assume that the human being is the one requesting that a task be completed, and the computer is completing the task and providing the results. What if this process were reversed and a computer program could ask a human being to perform a task and return the results? What if it could coordinate many human beings to perform a task?

Amazon Mechanical Turk provides a web services API for computers to integrate “artificial artificial intelligence” directly into their processing by making requests of humans. Developers use the Amazon Mechanical Turk web service to submit tasks to the Amazon Mechanical Turk web site, approve completed tasks, and incorporate the answers into their software applications. To the application, the transaction looks very much like any remote procedure call: the application sends the request, and the service returns the results. Behind the scenes, a network of humans fuels this artificial artificial intelligence by coming to the web site, searching for and completing tasks, and receiving payment for their work.

I have found the Mechanical Turk service useful for some tasks I needed done but for which I did not have the skills, time or patience.

The first thing I tried was creating a task to translate a short newspaper article from French into English. However, this did not work out very well as I got two submissions that were obviously the product of machine translation from something like AltaVista Babel Fish or Google Translate. The third submission was just barely acceptable but ultimately not usable for my purposes. To make matters worse, since I don’t know much French I couldn’t easily verify the accuracy of the translation. However, Mechanical Turk could certainly be used for translation services (indeed there are a couple companies that have used it for that purpose – however, when I contacted one of them for a quote I never got any reply) if you set up a system to evaluate the quality and accuracy of the translation work.

I had much better success with another type of task: transcribing videos in a foreign language (in this case, French television news reports). I think it helped that I offered a bit more money than most requesters were offering for similar tasks. However, I still paid much less than a professional transcription service would have charged.
More on this later…

In a September 4, 2000, story in Forbes magazine, Brigid McMenamin reported on their case:

Los Angeles accountant Michael Sklar was shelling out $24,000 a year to send his four children to Jewish day schools in 1994 when a four-line Internal Revenue Service ruling caught his eye.

The November 1993 edict declared “obsoleted” the IRS’ 1978 ruling barring members of the Church of Scientology from deducting the “fixed donations” they paid for religious education and “auditing”–a practice in which Scientology ministers ask members probing questions to identify areas in need of spiritual work.

Sklar wondered: If Scientologists can deduct their form of religious education, why can’t I deduct mine? The Orthodox Jew decided to write off 55% of his tuition bills, based on the proportion of time his children’s schools said was spent on religious courses.

The Sklars claimed the deduction on their 1994 tax return and amended their earlier returns to take the deduction. In correspondence included with their return, they stated that they believed that their Orthodox Jewish family was entitled to the same tax breaks granted to Scientologist families. The IRS apparently misunderstood their claim and informed them that, to take the religious education deduction, they would need to submit documentation proving they were members of the Church of Scientology. When they replied that they were Orthodox Jews and not Scientologists, the IRS denied their deduction. Thus began a legal battle that would continue for many years. Eventually, the Sklars were fortunate enough to get pro bono legal counsel from Jeffrey Zuckerman of Curtis, Mallet-Prevost, Colt & Mosle. After a number of unfavorable rulings, including one in the 9th Circuit appeals court in 2004, the case came back to the 9th Circuit Court of Appeals in 2006 and finally came to be heard on February 4, 2008.

In a recent article, Josh Gerstein of the New York Sun reported on the hearing:

A Jewish couple’s bid to take a tax deduction they say the Internal Revenue Service reserves only for members of the Church of Scientology is getting a friendly reception from a federal appeals court, increasing the possibility of a ruling that could create a tax break for taxpayers of many religions who pay tuition to religious schools.

During arguments on the case this week, three judges who ride the 9th Circuit Court of Appeals expressed deep skepticism of the IRS’s position that the way the agency treats Scientologists is irrelevant to the deductions the Orthodox Jews, Michael and Marla Sklar, took for part of their children’s day school tuition and for after-school classes in Jewish law.

“The view of the IRS is it can unconstitutionally violate the Constitution by establishing religion, by treating one religion more favorably than other religions in terms of what is allowed as deductions, and there can never be any judicial review of that?” Judge Kim Wardlaw asked at the court session Monday in Pasadena, Calif.

“That is not at all what I said,” a Justice Department lawyer representing the IRS, Ellen Delsole, said.

“That’s the bottom line,” Judge Wardlaw and a colleague on the panel, Harry Pregerson, both replied. “This does intrude into the Establishment Clause,” Judge Wardlaw added.

Fortunately for those who weren’t able to make it to Pasadena last week, an audio recording of the entire 48-minute hearing is available.

While it is clear to me that that the IRS shouldn’t favor one religion over another by granting its members special tax breaks that are denied to everyone else, the ideal solution in this case would not be expanding the tax deduction to include adherents of all religions but rather to get rid of it entirely. I would go even further and suggest that we should completely eliminate all religious tax breaks. They are part of a perverse and antiquated system that needs to be abolished. I am a member of a Church that is perhaps the only religion in the world that is proud to pay its taxes. It is time for other religions to do the same.

Update (March 2, 2008): While the 9th Circuit has yet to issue a ruling in this case, there is an excellent interview with Jeffrey I. Zuckerman, the attorney representing the Sklars, on GlossLip radio.

More information:

• Audio of February 4, 2008 oral argument in Sklar, et al v. CIR (Windows Media Audio (WMA), 0:47:48, 7.07MB)
• US Court of Appeals for the Ninth Circuit – Docket # 06-72961 (PDF, 3 pages, 60KB)
• New York Sun: Judges Press IRS on Church Tax Break — 2008-02-08
• New York Sun: A School Case To Watch — 2008-02-08
• Google News Archive Search – Timeline – Sklar, Scientology, deduction
• New York Times: Scientologists’ Tax Break Cited in Suit Against I.R.S. – 2004-03-24
• 125 T.C. No. 14 UNITED STATES TAX COURT MICHAEL AND MARLA SKLAR, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 395-01. Filed December 21, 2005.
• T.C. Memo. 2000-118 UNITED STATES TAX COURT – MICHAEL AND MARLA SKLAR, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent – Docket No. 1556-97. Filed April 5, 2000.
• Jewish Telegraphic Agency: One Family Goes To Tax Court To Fight For Tax Breaks For Religious Education — 2004-03-31
• Jewish Law – Legal Briefs – Michael and Marla Sklar v. Commisioner of Internal Revenue
• United States Court of Appeals for the Ninth Circuit – 00-70753 – Amended Opinion – February 27, 2002 (PDF, 23 pages, 45KB)

“Mr. Lorello noted in his confession that most of what he stole was not particularly valuable (some of his items sold for as little as $10). Most of the artifacts were known among dealers as trash, he wrote, although he used a trashier word than trash.”

Please don’t keep us in suspense, Eric. What word did he use? The only ones I can think of at the moment are synonymous with excrement but surely that is only because I have a limited imagination.

So I called the number listed and after going through the extremely annoying voice prompt phone tree and waiting on hold for a few minutes, I was informed that I should call the “dry loop” number which is 1-800-264-0002. This time I waited much longer on hold (about 15 minutes). Finally, I got to talk to a real live person. She asked for some information to look up my account so she could check to see if I could get it or not. So about a minute goes by and she informs me that it is available and starts to explain the order process. But then she notices that her system now says I can’t get it which she says is very strange. She says she’ll try something else and after a few minutes says it is available and she is putting the order through now. But then she says it was rejected. So it seems I can’t get it after all. This makes no sense as there is certainly no technical reason why they can’t provide me with the service I already have without charging me for another service which I don’t want or need.

A couple of years ago, Michael T. Arnold landed at the Los Angeles International Airport after a 20-hour flight from the Philippines. He had his laptop with him, and a customs officer took a look at what was on his hard drive. Clicking on folders called “Kodak pictures” and “Kodak memories,” the officer found child pornography.

The search was not unusual: the government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer’s hard drive, the government says, is no different than looking through a suitcase.

One federal appeals court has agreed, and a second seems ready to follow suit.

There is one lonely voice on the other side. In 2006, Judge Dean D. Pregerson of Federal District Court in Los Angeles suppressed the evidence against Mr. Arnold.

“Electronic storage devices function as an extension of our own memory,” Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. “They are capable of storing our thoughts, ranging from the most whimsical to the most profound.”

Computer hard drives can include, Judge Pregerson continued, diaries, letters, medical information, financial records, trade secrets, attorney-client materials and — the clincher, of course — information about reporters’ “confidential sources and story leads.”

But Judge Pregerson’s decision seems to be headed for reversal. The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.

This is certainly an interesting case. Those who know me are well aware that my contempt for child molesters and consumers of child pornography is boundless. Indeed, while I strongly oppose the use of torture in interrogations (not only because I believe it is morally wrong but also because it is ineffective), I would make an exception to allow child molesters and abusers to be tortured over a long period of time as a form of retributive justice. However, I am also a strong supporter of the constitutional right of individuals in the United States to be free from unreasonable searches and seizures by the government. Thus, I don’t believe that government agents at the border or anywhere else should have a nearly unlimited power to search through persons and their belongings without reasonable suspicion, probable cause or a search warrant. I do think the border is a special case and different rules should apply but there should still be limits on the power to search. Unless there is reasonable suspicion or probable cause, the scope of searches at the border should be limited to the primary mission of U.S. Customs and Border Protection: preventing terrorists and terrorist weapons from entering the United States, stemming the flow of illegal drugs and other contraband and protecting the United States agricultural and economic interests from harmful pests and diseases. They should not have the unchecked power to look at every file on a traveler’s laptop or read every document in a traveler’s possession. Nevertheless, under current case law they do have that power. The “Border search exception” article on Wikipedia has some good information on that subject. I listened to the audio of the oral argument before the Ninth Circuit in United States v. Arnold and, while I haven’t read all the briefs in the case, I have to say that the government’s position and argument struck me as being very strong and compelling while the appellee’s argument was weak and not very persuasive.

More about this later…

Vandari.com Offers Apostates Google Email and Collaboration Solutions Austin, Texas., January 2, 2008 – Vandari.com announced today plans to deploy Google Apps™ – Google’s set of hosted and customizable communications solutions as part of the group’s core IT service offerings. As a result apostates will have access to free communications tools including email, shared calendars, instant messaging and word processing under the vandari.com, vandari.net and vandari.org domain names.”Google Apps will help us destroy The Family International more easily and efficiently than ever before, while relieving our IT department of the traditional costs associated with email and collaboration solutions” said Jacob Sanders.” “We’re glad to let Google do what it does best — provide us with great technology, so we can do what we do best — serve our demon overlords.”

Google Apps allows institutions as well as individuals to use Google’s communication and collaboration applications under their own domain names. All services are hosted by Google and are available to users via any internet-connected computer and many mobile devices.

Google Apps includes the following services:

• Gmail™ – provides gigabytes of email storage, highly effective spam filtering and powerful search;

• Google Calendar™ – allows easy coordination of work or class schedules, meetings and events online;

• Google Talk™ – supports free PC-to-PC voice calls and instant messaging;

• Google Docs™ – allows users to create and collaborate on documents and spreadsheets in real-time;

For More Information:

Jacob Sanders

jacob@vandari.com

How to get a Vandari.com Google Apps account:

Send an email to jacob@vandari.com with your name (for example – “Jane Doe” You must provide a name but it doesn’t have to be your real name.) and the username you want (for example, jane@vandari.com). If your request is approved (and it very likely will be), you will receive an email with instructions and a temporary password you must change after your first login.

The Senate sponsor, Frank Lautenberg, D-N.J., expressed strong support for the provision Friday, saying it would help U.S. plaintiffs in lawsuits against Iran and Libya, including relatives of Americans killed in the bombing of the Marine barracks in Beirut in 1983 and in the bombing of a Berlin disco in 1986.

“My language allows American victims of terror to hold perpetrators accountable – plain and simple,” Lautenberg said in a statement.

Naturally, one would assume that this would be something the Bush administration would strongly support. Yet, it seems it would like a special exception for terrorism sponsoring states in which a regime change occurs.

That makes no sense. When our civil justice system holds a company or a nation-state liable for something, that liability is tied to the company or the state in question and not its leadership (although separate claims can certainly be brought against the individuals responsible). While leadership changes may be highly desirable in many of these cases, there is no reason that there should be an enormous loophole permitting a state sponsor of terrorism to escape all liability simply because there is a change of control in its government.

Unlike the Bush administration, I believe that terrorists and those who support them should be held accountable for their actions and thus I fully support section 1083 of H.R. 1585. Nevertheless, I understand that there may be reasonable objections to this section and rational reasons that could be offered for why this section should not become law. However, the feeble argument of the Bush administration does not even come close to offering a rational basis for its opposition. The White House position, that these legal claims should not proceed simply because they involve acts that occurred prior to the 2003 regime change in Iraq, is not persuasive.

Here is the section in question:

SEC. 1083. TERRORISM EXCEPTION TO IMMUNITY.

(a) Terrorism Exception to Immunity-

(1) IN GENERAL- Chapter 97 of title 28, United States Code, is amended by inserting after section 1605 the following:

`Sec. 1605A. Terrorism exception to the jurisdictional immunity of a foreign state

`(a) In General-

`(1) NO IMMUNITY- A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

`(2) CLAIM HEARD- The court shall hear a claim under this section if–

`(A)(i)(I) the foreign state was designated as a state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject to subclause (II), either remains so designated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section; or

`(II) in the case of an action that is refiled under this section by reason of section 1083(c)(2)(A) of the National Defense Authorization Act for Fiscal Year 2008 or is filed under this section by reason of section 1083(c)(3) of that Act, the foreign state was designated as a state sponsor of terrorism when the original action or the related action under section 1605(a)(7) (as in effect before the enactment of this section) or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208) was filed;

`(ii) the claimant or the victim was, at the time the act described in paragraph (1) occurred–

`(I) a national of the United States;

`(II) a member of the armed forces; or

`(III) otherwise an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment; and

`(iii) in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration; or

`(B) the act described in paragraph (1) is related to Case Number 1:00CV03110 (EGS) in the United States District Court for the District of Columbia.

`(b) Limitations- An action may be brought or maintained under this section if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of this section) or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208) not later than the latter of–

`(1) 10 years after April 24, 1996; or

`(2) 10 years after the date on which the cause of action arose.

`(c) Private Right of Action- A foreign state that is or was a state sponsor of terrorism as described in subsection (a)(2)(A)(i), and any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, shall be liable to–

`(1) a national of the United States,

`(2) a member of the armed forces,

`(3) an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment, or

`(4) the legal representative of a person described in paragraph (1), (2), or (3),

for personal injury or death caused by acts described in subsection (a)(1) of that foreign state, or of an official, employee, or agent of that foreign state, for which the courts of the United States may maintain jurisdiction under this section for money damages. In any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages. In any such action, a foreign state shall be vicariously liable for the acts of its officials, employees, or agents.

`(d) Additional Damages- After an action has been brought under subsection (c), actions may also be brought for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and loss claims under life and property insurance policies, by reason of the same acts on which the action under subsection (c) is based.

`(e) Special Masters-

`(1) IN GENERAL- The courts of the United States may appoint special masters to hear damage claims brought under this section.

`(2) TRANSFER OF FUNDS- The Attorney General shall transfer, from funds available for the program under section 1404C of the Victims of Crime Act of 1984 (42 U.S.C. 10603c), to the Administrator of the United States district court in which any case is pending which has been brought or maintained under this section such funds as may be required to cover the costs of special masters appointed under paragraph (1). Any amount paid in compensation to any such special master shall constitute an item of court costs.

`(f) Appeal- In an action brought under this section, appeals from orders not conclusively ending the litigation may only be taken pursuant to section 1292(b) of this title.

`(g) Property Disposition-

`(1) IN GENERAL- In every action filed in a United States district court in which jurisdiction is alleged under this section, the filing of a notice of pending action pursuant to this section, to which is attached a copy of the complaint filed in the action, shall have the effect of establishing a lien of lis pendens upon any real property or tangible personal property that is–

`(A) subject to attachment in aid of execution, or execution, under section 1610;

`(B) located within that judicial district; and

`(C) titled in the name of any defendant, or titled in the name of any entity controlled by any defendant if such notice contains a statement listing such controlled entity.

`(2) NOTICE- A notice of pending action pursuant to this section shall be filed by the clerk of the district court in the same manner as any pending action and shall be indexed by listing as defendants all named defendants and all entities listed as controlled by any defendant.

`(3) ENFORCEABILITY- Liens established by reason of this subsection shall be enforceable as provided in chapter 111 of this title.

`(h) Definitions- For purposes of this section–

`(1) the term `aircraft sabotage’ has the meaning given that term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation;

`(2) the term `hostage taking’ has the meaning given that term in Article 1 of the International Convention Against the Taking of Hostages;

`(3) the term `material support or resources’ has the meaning given that term in section 2339A of title 18;

`(4) the term `armed forces’ has the meaning given that term in section 101 of title 10;

`(5) the term `national of the United States’ has the meaning given that term in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22));

`(6) the term `state sponsor of terrorism’ means a country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), section 40 of the Arms Export Control Act (22 U.S.C. 2780), or any other provision of law, is a government that has repeatedly provided support for acts of international terrorism; and

`(7) the terms `torture’ and `extrajudicial killing’ have the meaning given those terms in section 3 of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).’.

(2) AMENDMENT TO CHAPTER ANALYSIS- The table of sections at the beginning of chapter 97 of title 28, United States Code, is amended by inserting after the item relating to section 1605 the following:

`1605A. Terrorism exception to the jurisdictional immunity of a foreign state.’.

(b) Conforming Amendments-

(1) GENERAL EXCEPTION- Section 1605 of title 28, United States Code, is amended–

(A) in subsection (a)–

(i) in paragraph (5)(B), by inserting `or’ after the semicolon;

(ii) in paragraph (6)(D), by striking `; or’ and inserting a period; and

(iii) by striking paragraph (7);

(B) by repealing subsections (e) and (f); and

(C) in subsection (g)(1)(A), by striking `but for subsection (a)(7)’ and inserting `but for section 1605A’.

(2) COUNTERCLAIMS- Section 1607(a) of title 28, United States Code, is amended by inserting `or 1605A’ after `1605′.

(3) PROPERTY- Section 1610 of title 28, United States Code, is amended–

(A) in subsection (a)(7), by striking `1605(a)(7)’ and inserting `1605A’;

(B) in subsection (b)(2), by striking `(5), or (7), or 1605(b)’ and inserting `or (5), 1605(b), or 1605A’;

(C) in subsection (f), in paragraphs (1)(A) and (2)(A), by inserting `(as in effect before the enactment of section 1605A) or section 1605A’ after `1605(a)(7)’; and

(D) by adding at the end the following:

`(g) Property in Certain Actions-

`(1) IN GENERAL- Subject to paragraph (3), the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this section, regardless of–

`(A) the level of economic control over the property by the government of the foreign state;

`(B) whether the profits of the property go to that government;

`(C) the degree to which officials of that government manage the property or otherwise control its daily affairs;

`(D) whether that government is the sole beneficiary in interest of the property; or

`(E) whether establishing the property as a separate entity would entitle the foreign state to benefits in United States courts while avoiding its obligations.

`(2) UNITED STATES SOVEREIGN IMMUNITY INAPPLICABLE- Any property of a foreign state, or agency or instrumentality of a foreign state, to which paragraph (1) applies shall not be immune from attachment in aid of execution, or execution, upon a judgment entered under section 1605A because the property is regulated by the United States Government by reason of action taken against that foreign state under the Trading With the Enemy Act or the International Emergency Economic Powers Act.

`(3) THIRD-PARTY JOINT PROPERTY HOLDERS- Nothing in this subsection shall be construed to supersede the authority of a court to prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment in property subject to attachment in aid of execution, or execution, upon such judgment.’.

(4) VICTIMS OF CRIME ACT- Section 1404C(a)(3) of the Victims of Crime Act of 1984 (42 U.S.C. 10603c(a)(3)) is amended by striking `December 21, 1988 with respect to which an investigation or’ and inserting `October 23, 1983, with respect to which an investigation or civil or criminal’.

(c) Application to Pending Cases-

(1) IN GENERAL- The amendments made by this section shall apply to any claim arising under section 1605A of title 28, United States Code.

(2) PRIOR ACTIONS-

(A) IN GENERAL- With respect to any action that–

(i) was brought under section 1605(a)(7) of title 28, United States Code, or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208), before the date of the enactment of this Act,

(ii) relied upon either such provision as creating a cause of action,

(iii) has been adversely affected on the grounds that either or both of these provisions fail to create a cause of action against the state, and

(iv) as of such date of enactment, is before the courts in any form, including on appeal or motion under rule 60(b) of the Federal Rules of Civil Procedure,

that action, and any judgment in the action shall, on motion made by plaintiffs to the United States district court where the action was initially brought, or judgment in the action was initially entered, be given effect as if the action had originally been filed under section 1605A(c) of title 28, United States Code.

(B) DEFENSES WAIVED- The defenses of res judicata, collateral estoppel, and limitation period are waived–

(i) in any action with respect to which a motion is made under subparagraph (A), or

(ii) in any action that was originally brought, before the date of the enactment of this Act, under section 1605(a)(7) of title 28, United States Code, or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208), and is refiled under section 1605A(c) of title 28, United States Code,

to the extent such defenses are based on the claim in the action.

(C) TIME LIMITATIONS- A motion may be made or an action may be refiled under subparagraph (A) only–

(i) if the original action was commenced not later than the latter of–

(I) 10 years after April 24, 1996; or

(II) 10 years after the cause of action arose; and

(ii) within the 60-day period beginning on the date of the enactment of this Act.

(3) RELATED ACTIONS- If an action arising out of an act or incident has been timely commenced under section 1605(a)(7) of title 28, United States Code, or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208), any other action arising out of the same act or incident may be brought under section 1605A of title 28, United States Code, if the action is commenced not later than the latter of 60 days after–

(A) the date of the entry of judgment in the original action; or

(B) the date of the enactment of this Act.

(4) PRESERVING THE JURISDICTION OF THE COURTS- Nothing in section 1503 of the Emergency Wartime Supplemental Appropriations Act, 2003 (Public Law 108-11, 117 Stat. 579) has ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States.

(d) Severability- If any provision of this section or the amendments made by this section, or the application of such provision to any person or circumstance, is held invalid, the remainder of this section and such amendments, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such invalidation.

SCOX was finally delisted from NASDAQ yesterday (December 27th, 2007). SCOX.PK closed today at $0.065 with a market cap of about 1.17 million. It is indeed gratifying to see the market finally recognize what most intelligent observers have known for the past 4 years: that SCO’s fraudulent and feckless schemes were doomed to failure. But it is disturbing that it has gone on so long and drained an enormous amount of money that could have been put to much better uses. By my rough calculations, the parties to the various cases SCO is involved in have spent a combined total of well over $100 million in legal fees and expenses not to mention that some investors have lost tens of millions of dollars. After SCO is utterly destroyed (and sadly this will probably take a couple more years during which even more money will be wasted), I doubt any of the victims of SCO’s fraudulent scheme will be able to recover much more than a tiny fraction of their losses.

Some may find this interesting.

More Information:

• CBS THREATENS EERIE & ECC: “STOP SAMPLING OR WE SUE!”
• ECC: Culture Jamming

The Last.fm service is also amazing and I wish I had tried it a long time ago. One of its best features is that it helps you find music you might never have heard of otherwise. I’ve always enjoyed listening to Bessie Smith. I first heard of her when I lived in Chattanooga for a few years and attended the Bessie Smith Blues Strut during the Riverbend festival a couple times but I didn’t become a real fan until the professor for an American literature course I was taking brought a record player to class one day, dimmed the lights, played Bessie Smith singing “St. Louis Blues” and then challenged us to identify the singer. No one could although one person guessed it was Ella Fitzgerald. He knew I had lived in Chattanooga for awhile and seemed disappointed that I didn’t know the answer. There’s a lot of things I’ve forgotten from the years I wasted spent in college but listening to Bessie Smith that day is something I never forgot. Thus, it may not be surprising that one of the first artists I looked for on Last.fm was Bessie Smith. Under “Similar Artists” I soon found Victoria Spivey and I was hooked after the first couple songs.