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Date: 11-30-2017

Case Style:

Scott Folkerts v. The State of Texas

Scott Folkerts Sentenced for 2013 Lubbock Death

Case Number: 07-16-00391-CR

Judge: Brian Quinn

Court: Court of Appeals Seventh District of Texas at Amarillo

Plaintiff's Attorney: Jeffrey S. Ford

Defendant's Attorney: Aaron R. Clements

Description: Scott Folkerts (appellant) was convicted of manslaughter when, after drinking
alcohol, he caused the death of the passenger who rode in his vehicle. The death
occurred when appellant drove the vehicle at a speed far in excess of the posted limit
and struck the rear of another vehicle. Within the indictment charging him of
manslaughter, the State also averred that he had used a deadly weapon, the latter
being the vehicle he drove. Appellant contended that the 5th and 14th Amendments to
the United States Constitution required the State to append a scienter to the deadly

weapon allegation.1 That is, he believed that those Amendments obligated the State of
Texas to allege and prove, beyond reasonable doubt, that he intended to use the
vehicle to cause death or serious bodily injury. The trial court apparently rejected the
argument when it denied his motion to quash the deadly weapon paragraph of the
indictment and his motion to dismiss. We too reject the contention.
Our Texas Legislature defined deadly weapon as 1) “a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or serious
bodily injury;” or 2) “anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(A),(B)
(West Supp. 2017). Finding that the defendant used or exhibited a deadly weapon
during the commission of the crime underlying the prosecution is not without effect. As
explained in Prichard v. State, __ S.W.3d __, 2017 Tex. Crim. App. LEXIS 586 (Tex.
Crim. App. June 28, 2017), one found to have used or exhibited such a weapon is
subject to “a stricter penalty.” Id. at *9-10.
Despite the Court of Criminal Appeal’s observation of the effect such a finding
has on the penalty, it has not required the State to prove the accused intended to cause
death or serious bodily injury with the weapon. Quite the contrary, the Court has held
that a deadly weapon finding is not dependent upon proof that the actor intended to
cause death or serious injury when using or exhibiting the purported weapon. Moore v.
State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017). Yet, appellant suggests that the
United States Constitution says otherwise and cites us to the United States Supreme
Court opinions in Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 1 Though invoking the 5th and 14th Amendments, appellant failed to inform us of the particular clauses within those amendments that provide the foundation for his argument. We assume the pertinent clauses to be those relating to due process.

288 (1952), Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001, 192 L. Ed.2d 1
(2015) and Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed.2d 314
(2013). None however support the contention.
We begin with Morissette. There, the United States Supreme Court dealt with a
federal statute (i.e., 18 U.S.C. § 641) criminalizing the theft of federal property. It was
asked to determine if proof of a criminal intent or scienter was needed to secure a lawful
conviction of the offense. In answering the question in the affirmative, the Supreme
Court uttered such things as “‘[i]t is alike the general rule of law and the dictate of
natural justice that to constitute guilt there must be not only a wrongful act, but a
criminal intention.’” Morissette, 342 U.S. at 274 (quoting People v. Flack, 125 N.Y. 324,
334, 26 N.E. 267, 270 (1891)). Yet, missing from the opinion is any mention of the
requirement being founded in due process. Rather, the Court ruled as it did because of
the relationship between the federal crime and the common law. It viewed the former
as akin to a common law conversion, and prohibitions against conversions or thefts in
the common law fell within the category of “crimes of intendment.” Id. at 272-73. That
those prohibitions historically resided in such a category led the Court to find “no
grounds for inferring any affirmative instruction from Congress to eliminate intent from
any offense with which the defendant was charged.” Id. Thus, the holding in Morissette
had little to do with due process but much to do with the adoption of common law
precepts into the realm of federal criminal law.
Additionally, the statement that no grounds existed for inferring that Congress
thought to eliminate intent from the offense with which Morissette was charged is quite
interesting in its own right. It indicates that there may be some criminal offenses for

which the elimination of intent by the particular legislative body is lawful. Indeed, the
Supreme Court expressly recognized as much when it drew the distinction between
crimes having their foundation in common law and those which do not. For instance,
the high court observed that “‘public welfare offenses’” “do not fit neatly into any of such
accepted classifications of common-law offenses, such as those against the state, the
person, property or public moral.” Id. at 255. “Many . . . are not in the nature of positive
aggressions or invasions, with which the common law so often dealt, but are in the
nature of neglect where the law requires care, or inaction where it imposes a duty.” Id.
“In this respect, whatever the intent of the violator, the injury is the same, and the
consequences are injurious or not according to fortuity. Hence, legislation applicable to
such offenses, as a matter of policy, does not specify intent as a necessary element.”
Id. at 256. The Court also alluded to its own precedent wherein it acknowledged the
legitimacy of some statutory crimes dispensing with the need to prove scienter, those
opinions being United States v. Balint, 258 U.S. 250, 42 S. Ct. 303, 66 L. Ed. 619
(1922) and United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66 L. Ed. 619
(1922). So too did it reaffirm the conclusions in Balint and Behrman. Morissette, 342
U.S. at 260 (stating that “[t]he conclusion reached in the Balint and Behrman cases has
our approval and adherence for the circumstances to which it was there applied.”); see
also, United States v. Rodriguez, 416 F.3d 123, 126 (2d Cir. 2005) (citing Balint while
noting that the federal criminal statute there involved, 8 U.S.C. § 1326, “defines a
statutory offense rather than enshrining in statute a common law offense” and
concluding that there was no need to prove specific intent to secure a conviction under

We need not jump into a debate on whether the Texas statutes concerning
deadly weapon findings and their effect fall within the realm of public welfare offenses or
the like under Morissette; that is irrelevant to our discussion. What is relevant is
Morissette’s recognition that not all crimes require scienter to be lawful. And, if scienter
is not required in all instances then it can hardly be suggested that Morissette stands for
the proposition that either the 5th or 14th Amendments of the United States Constitution
require proof of scienter. The common law may have mandated it, but Morissette did
not say that the U.S. Constitution or due process required it.
The same is no less true of Elonis. The former dealt with another federal criminal
statute, 18 U.S.C. § 875(c), and the question of whether scienter must accompany the
communication of a threat under that federal provision. The Court held that it did. The
decision was reached after 1) noting that the absence of such an intent would
incorporate into the particular statute a standard of negligence, Elonis, 135 S. Ct. at
2011; 2) stating that “‘the presumption in favor of a scienter requirement should apply to
each of the statutory elements that criminalize otherwise innocent conduct,’” id.
(emphasis in original); and 3) stating that “[f]ederal criminal liability generally does not
turn solely on the results of an act without considering the defendant’s mental state.” Id.
at 2012, quoting Morissette, supra (emphasis added). Missing from Elonis, though, is
any utterance that 1) liability under criminal statutes generally enacted by any of the fifty
States may not stand without considering the mental state of the accused or 2) either
the 5th or 14th Amendments of the United States Constitution mandate the proof of
scienter. Simply put, the Elonis Court was addressing federal criminal laws and
whether common law tradition like that discussed in Morissette applied to them. It dealt

not with Texas criminal statutes and whether their enforcement required proof of
scienter under our United States Constitution. Indeed, mentioning the “presumption in
favor of a scienter” is most telling. If the United States Constitution, as opposed to the
common law and its application to current criminal statutes, mandated scienter, then
there would be no need for a presumption that scienter is favored.
As for Alleyne, it dealt with whether certain findings which increase the
mandatory minimum sentence for a crime must be made by a jury, instead of the jurist,
per the Sixth Amendment of the United States Constitution. Alleyne, 570 U.S. at ___,
133 S. Ct. at 2155. Neither the 5th or 14th Amendments nor the question of scienter
were in play there.
In short, we overrule appellant’s issue. He did not illustrate that the Due Process
Clauses of the 5th or 14th Amendments of the United States Constitution required
Texas prosecutors to prove the accused used or exhibited a deadly weapon with the
intent to cause death or serious bodily injury as a prerequisite to securing a sustainable
deadly weapon finding.

Outcome: The judgment of the trial court is affirmed.

Plaintiff's Experts:

Defendant's Experts:


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