PD-0401-09, Ex parte Amber Lovill: The CCA granted the State's petition for discretionary review with oral argument in this forgery case out of Nueces County on the following seven issues:
1. Was the Court of Appeals correct in effectively interpreting Young to mean that any error that contributed to the inception or continuation of the criminal proceeding before a plea of true was entered is preserved?Here, Lovill brought a selective prosecution based on gender claim because, according to her, the State sought to revoke her probation and place her in a drug-treatment facility because she was using drugs during her pregnancy. She'd been charged with forgery for writing bad checks, and placed on probation. The State filed one motion to revoke alleging that she was using amphetamine during probation, she'd failed to report, she'd failed to pay costs, and she'd failed to go for a substance abuse screening. Pursuant to a plea bargain, she plead true to some allegations and her probation was modified.
2. Alternately, does the Young rule apply to a collateral attack raising errors that occurred before an open guilty plea was entered, or does collateral review fall back on stricter standards of waiver?
3.When the factual basis for a selective prosecution claim has become apparent, must the defendant raise his specific constitutional claim at that time in order to avoid waiver?
4. Whether in an appeal from the trial court's denial of an 11.072 application for writ of habeas corpus the appellate court may disregard the trial court's findings when it concludes that there is "overwhelming evidence" to the contrary?
5. Whether a probation officer's consideration of the effects of a probationer's pregnancy on her own health and that of her unborn child, in connection with the decision to submit a violation report, amounts to gender discrimination under the Equal Protection Clause?
6. Whether the health of an unborn child is an important and even compelling state interest which justifies the State in treating a pregnant probationer differently than it would a probationer who is not pregnant?
7. Whether one who raises a claim of selective prosecution/discriminatory enforcement must show that the discriminatory action actually caused some harm?
Later, the State filed a second motion to revoke alleging another positive test for drugs, failure to report, and failure to pay various costs. She admitted the violations and the court accepted her pleas of true. Her probation officer recommended SAFPF (in patient drug treatement), but she wanted out-patient. The probation officer also admitted on cross-examination that the probation department was seeking to revoke because she was pregnant. The trial court modified her probation and sent her to SAFPF. Lovill filed a motion for new trial alleging selective prosecution. At the hearing, probation officers admitted that Lovill's pregnancy played a part in the determination to seek revocation. The trial court denied the motion, and Lovill appealed that order. Lovill also filed a writ of habeas corpus seeking relief from the trial court's order increasing the term of probation.
On appeal, the State argued, based on Young v. State, that Lovill's plea of true waived any non-jurisdictional defects. The court of appeals rejected this argument (in a published opinion) because the State failed to show that the plea of true was independent of the error, the selective prosecution. The State also argued that Lovill had failed to raise the selective prosecution argument until the motion for new trial. The court of appeals disagreed, noting that Lovill's counsel repeatedly argued at the revocation hearing that Lovill was only being prosecuted because Lovill was pregnant. Also, selective prosecution claim can be raised at numerous different points during a criminal proceeding. Finally, the court of appeals reversed the trial court because Lovill had carried her burden to show selective prosecution. The court of appeals held that Lovill had shown discriminatory purpose on the part of the State. The State's witnesses testified that they were not willing to work with Lovill because she was pregnant and that her pregnancy contributed to the decision to revoke. While the court also notes that Lovill was required to show that a similarly situated person outside the protected class was not prosecuted, there's no discussion in the case on what evidence established that. Also, the court held that the record was undeveloped on whether the discrimintion was justified, so the court reversed and remanded for a new hearing to further flesh out Lovill's Equal Protection claim.
Here's a link to the court of appeals case info.
