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JANUARY 18, 2010

AS LONG AS ACTUAL VIOLATION OF LAW OCCURS, LAW ENFORCEMENT AGENT IS FREE TO ENFORCE LAW AND DETAIN PERSON FOR THAT VIOLATION, REGARDLESS OF OFFICER’S SUBJECTIVE REASON FOR STOP

State v. Thornton, slip op. no. 07-08-0427-CR, Amarillo Court of Appeals, January 13, 2010 - Appellee was walking along road in Lubbock, Texas when he was stopped by a Lubbock PD officer for ostensively jaywalking.  The officer showed Appellee his badge and ordered him to stop.  As the officer exited his patrol car, he saw Appellee drop something.  After Appellee’s detention, the officer retrieved a crack pipe which turned out to be the object discarded by Appellee.  The officer then checked for warrants and sure enough, Appellee had one.  He was cited for the outstanding warrant, possession of drug paraphernalia and tampering with evidence, the latter offense growing out of Appellee’s attempt to discard and/or destroy the crack pipe.

At the suppression heaing, Appellee argued that the officer did not have sufficient reasonable suspicion to arrest for jaywalking.  He pointed out that under the relevant jaywalking statute, section 552.005 Transportation Code, the law required that there be some finding that Appellee obstructed or interfered with traffic when crossing a street not marked with a crosswalk.  However, the State argued that even if the officer was mistaken in believing Appellee committed jaywalking, there was nevertheless sufficient evidence to establish that he violated section 552.006 which requires pedestrians to walk on the left side of the roadway or the shoulder of the highway facing oncoming traffic.  Appellee countered that there was no evidence that he violated this section because he was crossing the street rather than walking along the street.

After hearing evidence, the trial court entered findings of facts and conclusions of law.  It found that the officer observed Appellee (and another suspect) walking in the street.  It also confirmed that the object discarded by Appellee was a crack pipe.  The trial court concluded that the officer’s only reason for approaching these two individuals was based on the officer’s belief that they were jaywalking.  While the trial court concluded that there was sufficient evidence to support a conviction for tampering with evidence and that the officer had a reasonable basis for stopping Appellee for jaywalking, it did not make any conclusion of law regarding the legality of the initial detention.  It did make a finding that Appellee violated the law even though it did not make an explicit determination of exactly what statute was violated.  Oddly enough, the trial court then excluded the evidence, noting that the jaywalking statute is ”rarely enforced except when officers want to circumvent probable cause to stop someone they suspect may possess drugs or stolen property.”

Held: Trial court order of suppression reversed and cause remanded to trial court.  Since the officer observed a violation of the law (take your pick: jaywalking or walking on wrong side of street), the officer likewise had sufficient reasonable suspicion to initiate an encounter.  This was a legal stop. See Ford v. State, 158 S.W.3d 488, 492-94 (Tex.Crim.App. 2005).  As long as an actual criminal violation has occurred, the subjective intent of the officer is no import. Garcia v. State, 827 S.W. 937 (Tex.Crim.App. 1992).  Law enforcement is free to enforce the laws and detain suspects for those specific infractions.  Having deferred to the trial court’s finding that Appellee violated a criminal statute, then it was improper for the trial court to have suppressed evidence arising from that stop, absent any other findings that might otherwise void the detention. 

UNASSIGNED ERROR: ACCUSED CONVICTED OF OFFENSE FOR WHICH HE WAS NEVER INDICTED; CAUSE REVERSED AND REMANDED

Lopez v. State, slip op. no. 10-08-00400-CR, Waco Court of Appeals, January 6, 2010 - Appellant was originally indicted for aggravated assault.  The indictment alleged that Appellant intentionally, knowingly or recklessly caused injury to Adela Lopez by burning her with gasoline, a deadly weapon.  This pled a second degree felony.  At trial, the State filed a motion to amend the indictment and include an allegation that Adela Lopez was a member of Appellant’s family, as described in the Family Code, thus kicking the charge up to a first degree felony. see Texas Pen. Code 22.02(b)(1).  However, the appellate record contained no order granting the State’s motion to amend.  In any event, the parties tried the case to a jury as if the order had been granted.  Accordingly, the jury was instructed on a theory of prosecution which was never contained in the indictment.

On appeal, Appellant claimed error at the punishment phase in light of the charge which authorized punishment for a first degree felony when Appellant was guilty, at most, of only a second degree felony.  However, the Waco Court recognizeed that it has authority to review unassigned error.  And if unassigned error involves an “obvious error,” then there is no need to engage the parties in additional briefing. 

The Court of Criminal Appeals has held for many years that an amendment of an indictment can be accomplished only by “the actual alteration of the charging instrument.” Ward v. State, 829 S.W.2d 787, 793 (Tex.Crim.App. 1992).  Neither the motion to amend nor the trial judge’s granting of the amendment is considered the actual amendment.  The manual alteration of the indictment is required or, failing that, a proffer of a copy of the original indictment reflecting the amendment sought. See Riney v. State, 28 S.W.3d 561, 565-66 (Tex.Crim.App. 2000).  The photocopy must be incorporated into the record under the direction of the trial court, pursuant to the authority of Art. 28.11 C.C.P., with the knowledge of the defense. Id. at 566.  Thus, courts have three methods by which to amend the indictment: 1) physical alteration of the indictment; 2) filing a copy of the indictment or other document reflecting the amendment or 3) including the language of the amended indictment in the order granting the amendment. Garza v. State, 269 S.W.3d 300 (Tex.Ct.App.-Amarillo 2008, pet. granted); Aguilera v. State, 75 S.W.3d 60, 64 (Tex.Ct.App.-San Antonio 2002, pet. ref’d.)

Here, the only document filed of record with respect to the amendment was the State’s motion to amend.  There is no oral or written order granting the motion and no written document reflecting the requested amendment or an order incorporating the changes requested in the indictment.  The indictment was never amended. see Johnson v. State, 214 S.W.3d 157, 158 (Tex.Ct.App.-Amarillo 2007, no pet.)  The guilt-innocence charge instructed the jury to determine if Appellant was guilty of the offense as contained in the State’s motion to amend.  However, because the indictment was never amended, the charge authorized the jury to return a verdict of guilt on a felony for which Appellant was never indicted.  If the indictment was not properly amended, then the hypothetically correct charge must be based on the original indictment rather than the purportedly amended one.  Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000).

Appellant was convicted of a different offense than what he was indicted for.  Because Appellant did not object to the submission of the charge, his conviction may be reversed only if the error caused “egregious harm.” see Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985).  Here, Appellant was convicted for an offense for which he was never indicted.  Such error goes to the “very basis of the case” and requires reversal. accord: Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App. 2006); Garza v. State, 269 S.W.3d at 302.  The judgment of the trial court is reversed and remanded for whole new trial. 

DECEMBER 29, 2009

APPELLANT’S VEHICULAR STOP NOT SUPPORTED BY THE REQUISITE LEVEL OF SPECIFIC, ARTICULABLE FACTS TO DEMONSTRATE THAT SOME CRIMINAL ACTIVITY WAS AFOOT; EVIDENCE SUPPRESSED

Derichsweiler v. State, slip op. no. 02-08-00117-CR, Ft. Worth Court of Appeals, November 25, 2009 - Appellant was indicted for felony DWI, enhanced with two prior felony convictions.  He filed a motion to suppress all evidence arising from the initial stop.  The trial court denied the motion.  Appellant was later convicted and sentenced by the jury to 47 years in prison.  On appeal, he claimed that the arresting officers could not point to any criminal activity on his part which would have justified the stop of his vehicle in a public parking place.

At the suppression hearing, witnesses testified to a person, later identified as Appellant, who was “acting funny” while parked in a fast food restaurant parking lot.  Appellant would drive his car behind other vehicles and then stare at the drivers.  He then would drive around the parking lot, stop and do the same thing with another person driving up to the take-out line.  Some of the witnesses described Appellant’s appearance as “not normal.”  Some of the women drivers felt like they were being stalked.  None testified that they observed Appellant commit any crime or make any threatening gestures.  Eventually, police were summoned.  Three black-and-whites surrounded Appellant’s car so that he could not drive off.  Appellant was then removed from the car and eventually arrested for DWI.

Appellant’s detention had to be justified on less than probable cause if the State could establish that Appellant was involved in some criminal activity based on specific, articulable facts. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000).  It is an objective standard that disregards any subjective intent of the officer making the detention and looks solely to an objective basis for the stop. 

Here, there was no objective evidence that any crime had been committed by Appellant.  All that the officers knew was that, based on nothing more than a radio dispatch, some citizens had observed a vehicle and its driver who was termed “suspicious.”  Circling a public parking lot at 8:00 p.m. does not constitute criminal activity.  Thus, this critical factor distinguishes this case from those legion of cases in which citizens call in and report specific criminal activity.  And as to the argument made by the State that Appellant was not truly “detained,” the Ft. Worth Court made short work of that by observing that when three cop cars surround a suspect’s car, effectively rendering it immobile, it strains logic and credulity to believe that a detention had not taken place.  It is significant to note that the officers could have simply waited until Appellant exited his car to determine his condition as to sobriety or they could have followed him in his car and observed a traffic violation, thus providing a basis for the stop.  This they chose not to do and it was fatal.  The trial court’s order denying suppression is reversed and case remanded for new trial.

NO REASONABLE EXPECTATION OF PRIVACY WHEN OWNER GIVES INSTRUCTIONS WITHOUT LIMITATION TO COMPUTER TECH TO TRANSFER FILES IN PERFORMING WORK ON COMPUTER

Brackens v. State, slip op. no. 01-07-00827-CR, Houston Court of Appeals, First District, December 17, 2009 - Appellant was indicted for possession of child pornography.  He filed a motion to suppress which was denied by the trial court.  Pursuant to a plea bargain, he was placed on deferred adjudication and permitted to appeal the denial of his suppression motion. 

Briefly, Appellant took his computer into a Circuit City store for “simple data migration” and provided the technician with an external hard drive to complete the task.  The technician who performed the work testified that in order to do what Appellant asked, it was necessary that he had to open files in performing data migration.  In so doing, he came across the child porno files which were turned over to the police, leading to the instant prosecution.  Appellant presented his own computer technician who testified that it was simply not necessary to open files to perform “data migration,” thus bolstering Appellant’s claim that he did not consent to the technician’s decision to open various files.  The trial court chose to believe the technician who performed the work and held that Appellant consented to the search because he placed no restrictions on the “data migration” job.

One does not necessarily lose reasonable expectation of privacy in one’s closed computer files by handing it over to a computer technician. United States v. Barth, 26 F. Supp. 929, 936 (W.D. Tex. 1998).  However, this expectation of privacy can be reduced or even destroyed if the activity or the circumstances of the situation significantly lessen the defendant’s expectation of privacy by creating a reasonably foreseeable risk of intrusion by parivate parties. Id.  In such a situation, any subsequent law enforcement search must be limited in scope to the private party’s legitimate search. Id.

Held: Under these specific circumstances, Appellant’s request to back up his video and photographs, without limitation on how to effectuate the request, created a reasonably foreseeable risk of intrusion by the tech.  Because the tech was a private party not acting as a government actor or agent at the time he opened the suspect files, the Fourth Amendment was not implicated.  Thus, the trial court’s denial of Appellant’s motion to suppress was affirmed. 

DECEMBER 28, 2009

A DEFENDANT MAY KNOWINGLY WAIVE HIS RIGHT TO APPEAL AS PART OF A PLEA BARGAIN, EVEN IF THERE IS NO SENTENCING AGREEMENT, AS LONG AS CONSIDERATION IF GIVEN BY STATE FOR THAT WAIVER

Ex parte Terrence Broadway, slip op. nos. AP-76,059 & AP-76,060, Court of Criminal Appeals - Applicant entered his guilty plea to two charges of possession of controlled substance and retaliation.  He chose to enter an “open” plea after declining the State’s plea bargain offer.  He was life enhanced.  After accepting the plea, the trial court sentenced Applicant to the minimum of 25 years.  He later filed a writ of habeas corpus, alleging ineffective assistance of his trial lawyer.  He charged his lawyer with failing to inform him of his right to appeal the sentence and that counsel allowed him to sign a waiver of appeal before he was sentenced. 

When Applicant entered his open plea, he hoped to persuade the trial court to put him on deferred adjudication and place him a drug treatment program. In order to secure the trial court’s ability to consider deferred adjudication, both the State and Applicant had to waive its rights to a jury trial.  This the State did at trial.  The trial court determined that the State, in effect, gave up one of its rights (jury trial) in return for Applicant’s decision to enter an unconditional plea even if there was no punishment recommendation.  This fact set this case apart from Ex parte Delaney, 207 S.W.3d 794 (Tex.Crim.App. 2006) where the Court of Criminal Appeals had held that a waiver of appeal is not knowingly or voluntarily made when the consequences of the plea are not known with certainty.  In Delaney, the applicant signed the waiver of appeal before final adjudication and sentencing and the waiver, made at the onset of the plea, was not bargained for.  Here, there was a bargain because the State gave consideration for Applicant’s waiver.  It gave up its right to a jury trial as well as the ability to charge Applicant with any other new offenses which may have arisen from the circumstances surrounding the original charges.  A defendant may knowingly and intelligently waive his entire appeal as part of a plea, even when sentencing is not agreed upon, where consideration is given by the State for that waiver.

JURY VERDICT OF GUILT BASED ON INDICTMENT WHICH ALLEGED THAT DEFENDANT CAUSED DEATH OR SERIOUS BODILY INJURY IS NECESSARILY A FINDING THAT A DEADLY WEAPON WAS USED

Crumpton v. State, slip op. no. PD-1634-07, Court of Criminal Appeals, December 9, 2009 - Appellant was chargd in a one-count indictment with causing the death of an individual by driving her motor vehicle, a deadly weapon, and causing it to strike and collide with complainant’s motor vehicle.  The jury’s verdict read as follows: “We, the jury, find the defendant guilty of criminally negligent homicide, as included in the indictment.  Appellant argued that the jury’s finding of guilt based on a lesser-included offense did not provide a basis for a deadly weapon finding since it referred to the lesser-included offense and the verdict form nor the charge contained a separate special issue asking the jury if it found that Appellant had used a deadly weapon during commission of the offense. see Ex parte Beck, 769 S.W.2d 525, 528 (Tex.Crim.App. 1989).  Without expressly overruling Beck, the Court finds that the jury verdict authorized the entry of a deadly weapon finding for two reasons: 1) the jury verdict made express reference that it found Appellant guilty “as included in the indictment.”  Since the indictment expressly alleged that Appellant committed the offense with a deadly weapon, the verdict’s reference to the indictment constituted a finding that the allegation was true.  2) A verdict of homicide necessarily is a finding that a deadly weapon was used.  Since the statutory definition of a deadly weapon includes anything that is capable of causing death in the manner of its use, then a finding of guilt on homicide necessarily includes the jury finding that the accused used something that in its manner was capable of causing and did cause death.  Therefore, the verdict alone, even if on a lesser included offense, provided an adequate basis for the trial court to eter the deadly weapon finding.  The Court finally notes that this decision is controlled and foreshadowed by an earlier case styled Blount v. State, 257 S.W.3d 712 (Texas. Crim.App. 2008) where the Court held that an allegation that athe deendant committed or attempted to comit aggravated assault with adequate notice that there would be an issue of his exhibition or use of a deadly weapon since each manner of committing aggravated assault involves the use of a dealy weapon.

NOVEMBER 24, 2009

REVERSIBLE ERROR IN FAILURE TO SUBMIT 38.23 INSTRUCTION TO JURY CONCERNING REASONABLENESS OF VEHICLE STOP

Mills v. State, slip op. no. 03-08-00332-CR, Austin Court of Appeals, August 31, 2009 - Appellant was stopped by a peace officer for the ostensible offense of failure to use turn signal indicator.  However, the officer testified that he was looking for probable cause to stop Appellant since he (Appellant) was driving away from a “high drug activity locale.”  Appellant presented testimony, other than his own at the suppression hearing, that the officer could not possible have seen Appellant approach the intersection where he allegedly failed to turn on his signal indicator.  An important part of Appellant’s evidentiary presentation concerning the question of whether the officer was actually able to observe a traffic offense was the in-car video from the officer’s cruiser.  

The Austin Court holds that the video, coupled with the concessions made by the officer during cross-examination during the suppression hearing and before the jury, were enough to warrant an Art. 38.23 instruction which would have instructed the jury that it could disregard the evidence of cocaine seized from Appellant’s vehicle.  The cause is reversed and remanded for whole new trial.

NO BASIS FOR PAT-DOWN SEARCH IRRESPECTIVE OF OFFICER’S GOOD FAITH CONCERN THAT HOMELESS PERSONS OFTEN POSSESS WEAPONS AND DRUGS

Chism v. State, slip op. no. 06-09-00045-CR, Texarkana Court of Appeals, September 16, 2009 - Gilmer, Texas police officer Griswold responded to a report of a person who was “panhandling” at a local convenience store.  After being given a brief description of the person, Griswold stopped Appellant who was walking along a state highway leading out of town.  The officer expressed good faith in his belief that Appellant fit the description of the panhandler.  However, during the suppression hearing, defense counsel established that the ”anti-panhandling” ordinance, which was proferred by the prosecution to justify the initial stop, was not in effect at the time of the incident.  

Once Griswold made contact with Appellant, the officer immediately conducted a pat-down search.  Griswold conceded that Appellant did not engage in any suspicious behavior, obeyed all requests made by Griswold, did not attempt to flee or otherwise present behavior that Griswold could term provocative or threatening.  There was no evidence to suggest that Appellant was armed.  Griswold testified that it was his “normal practice” always to search for weapons.  The pat-down revealed cocaine under one gram. 

An officer may make an investigative stop of a citizen even though grounds for arrest are absent.  As long as the officer has a reasonable suspicion based on articulable facts that “criminal activity is afoot” and that a certain person is connected with such activity, the officer may detain that person.  This Terry stop does not authorize a frisk for weapons in all encounters.  A police officer who otherwise has lawfully detained a person may conduct a protective search of the detainee’s outer clothes for weapons if the officer has a reasonable belief, based on specific, articulable facts, that the person is armed and dangerous.  Although the officer doesn’t have to be dead certain about this, there should be something more than mere speculation or a hunch.  The purpose of the limited search is not to uncover evidence of a crime but to allow the officer to continue his limited investigation into suspicious behavior free from the risk of serious injury or death due to the detainee’s access to a weapon. 

Pat-down searches conducted as a normal part of police-citizen encounters are not justified nor permitted.  Constitutional protections against unreasonable searches and seizures cannot be “whittled away” by police regulations or standard operating procedures.  And even if the officer insists that it is his normal practice to conduct pat-down searches, he must still establish a reasonable belief, based on specific and articulable facts, that the detainee was armed and dangerous.  Here, Griswold detained Appellant under circumstances that fail to establish a reasonable basis to believe that Appellant was armed or dangerous.  There were no bulges in Appellant’s clothing nor was there any evidence that he presented a threat to the officer.  And the officer’s perceived observations about the transient population around Gilmer do not amount to anything more than hunches which run afoul of the minimum constitutional standards attaching to a Terry stop.  Therefore, based on the totality of the circumstances and the facts known to Griswold at the moment of the pat down, the facts do not support a reasonably prudent concern for officer safety and the resulting seizure of the drugs was unjustified.  The motion to suppress should have been granted by the trial court.  Cause is reversed and remanded for whole new trial.

SEARCH WARRANT, BASED ON SINGULAR AFFIDAVIT WHICH DOES NOT LIST INFORMANTS OR THEIR RELIABILITY, FAILS TO PROVIDE THE REQUISITE PROBABLE CAUSE

State of Texas v. Hill, slip op. no. 06-09-00051-CR, Texarkana Court of Appeals, October 16, 2009 - The appeal involves a search warrant which authorized law enforcement to search Appellant’s residence for methamphetamine.  At the suppression hearing, the trial court had before it a warrant which was based on a single affidavit executed by the sponsoring law enforcement officer, Tucker.  The affidavit in question showed that all the information sworn to by Tucker was provided by unnamed confidential informants.  The affidavit failed to list whether any of the informants had ever provided reliable information in the past.  None of the representations made by these confidential informants ever provided a date, time or location for alleged deliveries of meth by Appellant.  Further, none of the representations made by informants who claimed to have been inside Appellant’s residence included dates, times or descriptions of when the drug transactions took place.  In short, all of the informants credited statements were quoted second-hand and none contained any statements against penal interest.  Here, the informants’ statements, uncorroborated with any past history of reliability, failed to provide any reasonable basis for a conclusion that drugs were present in Appellant’s house.  Moreover, police surveillance of Appellant’s house for a period of three hours was likewise insufficient to corroborate the informants’ second-hand representations.  The trial court’s order of suppression is affirmed. 

DEFENSE COUNSEL’S FAILURE TO FILE JURY ELECTION AS TO PUNISHMENT DEEMED NOT PART OF A VALID TRIAL STRATEGY; CASE REMANDED TO TRIAL COURT FOR NEW PUNISHMENT HEAR

Ramirez v. State, slip op. no. 03-08-00723-CR, Austin Court of Appeals, November 20, 2009 - Appellant was indicted and convicted for intoxication manslaughter.  The trial court assessed punishment at 18 years confinement in TDC.  In the dispositive point of error, he claimed that the trial court abused its discertion in failing to grant him a new trial on punishment based on ineffective assistance of counsel. 

In this regard, the evidence developed at the new trial hearing showed that defense counsel simply forgot that Appellant, because he was charged with an Art. 42.12 3g offense (one which alleges the use of deadly weapon, e.g. his vehicle), was not entitled to seek probation from the court.  She had  multiple discussions with Appellant about her belief that, if he were convicted, he would nonetheless be able to ask for probation from the court.  Further, when defense counsel’s mistaken belief concerning the probation issue came to light after receipt of the jury’s guilty verdict, the prosecution offered to permit Appellant to go to the jury for probation, provided that defense counsel went on the record and waived any potential error arising from her failure to file the jury election prior to voir dire.  This she refused to do, erroneously believing that she needed the client’s consent to do so.  However, Appellant testified that trial counsel never brought this issue up with him during trial.  When questioned about her failure to recognize that Appellant would not be able to request probation from the judge due to the classification of the offense, she stated that she simply forgot that intoxication manslaughter with the use of a deadly weapon was a “3g” offense and that her failure to file the jury election was not a part of any perceived trial strategy. 

In a case involving counsel’s misunderstanding of the law relating to probation, the lawyer’s mistake, standing alone, is not sufficient to establish ineffective assistance of counsel.  The defendant must also show that 1) he was otherwise eligible for felony probation; 2) counsel’s inaction or failure was not a part of a viable trial strategy; 3) defendant’s decision not to seek probation from the jury was based on counsel’s representations and 4) defendant would have made a different choice had he known that the trial court was legally prevented from granting probation.  In this case, Appellant clearly established all four conditions.  Further, prejudice is shown in that probation was a possible outcome that was contemplated by both the prosecution and the defense.  And it turns out that defense counsel had declined an offer of probation before trial.  Considering the fact that the State offered to let Appellant go to the jury for punishment, provided defense counsel agree to waive any complaint on her part regarding her failure to file the appropriate jury election, the Austin Court concludes that probation was a definite possibility as an “outcome” of the trial.  Thus, the Austin Court’s confidence in the actual outcome of the trial (18 years confinement) is undermined, Appellant satisfies the two-pronged Strickland test and a new punishment hearing is ordered.        

NOVEMBER 20, 2009

STATE NOT LONGER BOUND BY ESTABLISH THAT THERE “MUST BE SOME EVIDENCE IN THE RECORD THAT WOULD PERMIT A JURY TO FIND A DEFENDANT GUILTY ONLY OF A LESSEER INCLUDED OFFENSE,” THUS OVERRULING AREVELO V. STATE, 943 S.W.2D 887 (TEX.CRIN.APP. 1997) AND PERMITTING TRIAL COURT TO SUBMIT LESSER INCLUDED OFFENSE INSTRUCTION, EVEN OVER DEFENSE OBJECTIONS

Grey v. State, slip op. no. PD-0137-09, Court of Criminal Appeals, November 18, 2009 - Appellant was charged with aggravated assault and further, the indictment alleged that he used his hands as a deadly weapon.  At trial, the State requested that the jury be instructed to the lesser included offense of simple assault.  Appellant’s attorney objected to the inclusion of the instruction, arguing that there was absolutely no evidence that he ever intended not to use his hands as a deadly weapon.  In short, defense counsel was embarking on an “all or nothing” strategy in which the jury would be forced to convict on the facts or acquit in the absence of a lesser included offense alternative.  The judge proceeded to charge the jury on simple assault.  Sure enough, the jury returned a guilty verdict on the simple assault. 

On appeal to the Austin Court of Appeals, Appellant argued that the State was bound by Arevalo v. State, 943 S.W.2d 887 (Tex.Crim.App. 1997) which holds that the State is bound by the Royster-Rousseau doctrine which requires that a trial judge submit a lesser-included instruction but only when “some evidence exists in the record that would permit a jury to find that if the defendant is guilty, he is guilty only of the lesser included offense.”  The Austin Court agreed, finding absolutely no evidence to support the submission of the lesser-included simple assault instruction.  It reversed and remanded for new trial. (See discussion of case back on November 14, 2008 under this category.)  The State then filed its PDR, arguing that Arevalo should be overruled.  The Court of Crimional Appeals agrees.

The Court overrules Arevalo based on a number of considerations, high among them that implementation of the rule leads to absurd results (remanding a case back to the trial court on a charge which was not supported by sufficient evidence in the first place) and because it places undue restrictions on the State’s ability to see that the jury is given as many opportunities to convict on some offense, provided that result is rational and based on available evidence. 

The cautious approach for the prosecutor to take would be - or at least should be - to request the lesser-included offense.  Allowing submission of lesser offenses when requested by the prosecutor would serve at least two important interests.  First, society has an interest in convicting and punishing people who are guilty of crimes.  When, in the prosecutor’s judgment, submission of the lesser-included offense will enhance the prospects of securing an appropriate criminal conviction for a defendant who is in fact guilty, society’s interests are best served by allowing the submission.  Second, the prosecutor has “the primary duty . . . not to convict, but to see that justice is done.”  Even if the prosecutor believes in a given case that he will secure a conviction on the charged offense if the only alternative is acquittal, he might also beleive that a the jury should be given the option to decide whether a conviction on the lesser offense is more appropriate.

Of course, the prosecutor could simply abandon the charged offense in favor of the lesser-inclouded offense.  But doing so would reflect not caution but capitulation.  If the prosecutor believes the evidence for the charged offense is strong but also believes that the jury ought to be able to consider the lesser-included offense, then abandoning the charged offense as a remedy for the dilemma created by Arevalo would be overkill.  And the decision on whether to abandon the charged ofeense would itself pose a dilemma because the prosecutor would not want to effectuate an abandonment unnecessarily.

                                                          Page 11-12, slip opinion

So, logic (and a friendly court) decides the result.  And an opinion that contains so many helpful hints for the prosecutor!  They need all the help they can get.

THERE IS NO “DUE PROCESS EXCEPTION” TO THE RULE THAT AN UNSWORN ORAL MOTION FOR A CONTINUANCE PRESERVES NOTHING FOR REVIEW

Anderson v. State, slip opinion PD-1441-08, Court of Criminal Appeals, November 18, 2009 - Appellant was tried and convicted for aggravated sexual assault of a child.  Prior to trial, there was some discussion between the lawyers about the availability of DNA evidence which would connect Appellant to the offense.  The actual tests and results were not made available to the State until the trial was already underway.  When the test results were provided to the defense and the sponsoring expert was identified for disclosure purposes, defense counsel moved that the trial court strike the test results, arguing that the DNA report was not provided to him in a timely fashion and that he was unable “to defend against it.”  The prosecution argued that defense counsel had prior notice of the anticipated test but that if he needed more time, then he should move for a continuance rather than seeking and obtaining the harsh remedy of exclusion of evidence.  Defense counsel then indicated that he wanted a DNA expert of his own to conduct tests and orally requested a continuance.  He did not ask for sufficient time to write out a motion for continuance as required by Arts. 29.03 and 29.08 CCP.  The trial judge overruled defense counsel’s requests.  Afterward, prior to opening statements by counsel, Appellant changed his plea to guilty and pursuant to a plea bargain agreement, the trial court sentenced Appellant to ten years confinement.  He filed a motion for new trial which was overruled by operation of law.  The trial court certified his right to appeal the denial of his request for a continuance.

In his sole point of error, Appellant argued to the Corpus Christi Court of Appeals that the trial court committed reversible error by denying his oral motion for continuance.  Recognizing that the general rule holds that an oral motion for continuance presents nothing for review, the CC Court found a “due process exception” whereby an accused may appeal the denial of his oral motion for continuance if such denial amounts to a deprivation of due process.  The appeals court concluded that by denying Appellant his right to secure the services of a DNA expert or otherwise challenge the DNA tests, he was deprived of the ability to present a “complete defense.”

The Court of Criminal Appeals flatly holds that there is no “due process exception” to the requirements of Arts. 29.03 and 29.08.  This kind of right to a “complete defense” is no different from the universe of other constitutional rights which may be forfeited as a result of procedural default.  So, the right to a complete defense, much like the right to compulsory process and confrontation, is subject to procedural default.  Appellant forfeited his appellate challenge to the trial court’s denial of his request for a lcontinuance because it failed to comply with the requirements of Articles 29.03 and 29.08.  An unsworn, oral motion for continuance, even when submitted for the most compelling of circumstances, presents nothing for review on appeal. 

NOVEMBER 18, 2009

DEFENDANT WHO IS INELIGIBLE FOR REGULAR ADULT PROBATION IS LIKEWISE INELIGIBLE FOR SHOCK PROBATION AND ANY ORDER OR JUDGMENT GRANTING LATTER IS NULL, VOID AND OF NO EFFECT; STATE MAY APPEAL ORDER AT ANY TIME SINCE THERE CAN BE NO WAIVER OF TRIAL COURT JURISDICTION

State of Texas v. Dunbar, Court of Criminal Appeals, slip op. no. PD-1713-08, November 18, 2009 - Appellee was placed on deferred adjudication for indecency with a child for a period of ten years in 1997.  Just before the expiration of this ten-year period, the State filed its motion to proceed, alleging several violations.  At the hearing on motion, Appellee entered pleas of “true” to five of the motions’s allegations.  The trial court adjudicated her guilty and set her punishment at four year confinement in TDC.  There was not motion for new trial nor appeal.  Three months later, Appellee filed a motion for shock probation.  Two months after that, the trial court granted the motion and placed Appellee on shock supervision for one year.  The State did not file any formal objection to the trial court shock probation order.  Likewise absent is any record of the hearing on the motion to adjudicate or on Appellee’s motion for shock probation.  Thus, there is nothing in the record to indicate the State’s formal position at all, be it one of acquiesence or objection.

On appeal, Appellee argued that the State had waived its right to complain about the trial court’s shock probation order since it failed to file formal objections and therefore failed to preserve the alleged error as required by Rule of Appellate Procedure 33.1  However, the rule does not apply to those requirements that are systematic in nature, making them absolute.  One of those absolute system requirements is jurisdiction.  And if the court has no jurisdiction, it has no power to act in the first place. 

So, what made the given situation concerning the State’s appeal jurisdictional?  In any criminal case, the trial court’s post-judgment jurisdiction extends to that period where a defendant may file a motion for new trial, motion in arrest of judgment or notice of appeal.  This window of time expires in thirty days.  After that, the trial court loses any jurisdiction unless there are exception spelled out by statute or constitution.  One of those exceptions if shock probation.  So, the question is: once the trial court sentenced Appellee on September 5, 2007, did it lawfully acquire jurisdiction over her when it placed her on shock probation on February 14, 2008?  Since no motion for new trial or notice of appeal was filed, the trial court lost jurisdiction thirty days after the setencing in open court, September 5, 2007.  In order to re-acquire jurisdiction, Appellee must be shock probation eligibile.  But she isn’t because she was convicted of indecency with a child, making her ineligible for regular probation as a matter of law.  If she is ineligible for regular probation, she cannot possibly be eligible for shock probation. Ex parte Austin, 746 S.W.2d 226, 229 (Tex.Crim.App. 1988); State v. Posey, slip opinion no. 06-09-00039-CR, Texarkana Court of Appeals, October 20, 2009)  Therefore, the trial court could not “re-acquire” jurisdiction over the case by granting shock probation when it had no authority to do so.  Appellee’s sentence of four years is affirmed, as per the lower appeals court’s decision.   

NOVEMBER 11, 2009

PLEA OF NOT GUILTY TO A CHARGE OF CONSPIRACY MAKES RELEVANT DEFENDANT’S PRIOR CONVICTIONS INVOLVING SAME OR SIMILAR INTENT TO COMMIT

U.S. v. Cockrell, slip op. no. 08-41008, Fifth Circuit Court of Appeals, November 6, 2009 - Appellant was convicted of possession of intent to distribute heroin resulting in bodily injury.  At trial, there was the usual testimony of DEA and narcotics officers as well as the individuals who bought heroin from the Appellant, including two who later became ill after ingesting the heroin they bought from Appellant.  The Government sought permission to introduce Appellant’s prior conviction in its case-in-chief involving his plea to the use of a telephone in furtherance of a drug transaction.  This case had been pled down from an original indictment charging him with possession of heroin with intent to delilver.  Appellant objected under Rules 404(b) and 403.

Held: Where a defendant enters a plea of not guilty in a conspiracy case, then evidence which pertains to a defendant’s state of mind, specifically intent to engage in conduct independent of accident or mistake, is considered relevant.  The relevance of extrinsic act evidence is a function of its similarity to the offense charged.  That being the case, where the prior offense involved the same intent required to prove the charged offense, that prior offense is relevant and the court need only consider whether the requirements of Rule 403 are met.  In this cases, the panel has no trouble determining that the evidence admitted regarding Appellant’s prior conviction did not substantially outweigh the probative nature of the crime.  Therefore, the appeals court cannot conclude that the trial court abused its discretion in admitting the evidence.

OUT-OF-COURT STATEMENTS MADE BY INTERPRETOR TO POLICE OFFICER OR OTHER THIRD PARTY CONCERNING ORIGINAL STATEMENT MADE BY ACCUSED DOES NOT CONSTITUTE HEARSAY IF PROFERRED STATEMENTS AUTHORIZED BY MAKER OR IF INTERPRETOR ACTS AS AGENT OF MAKER

Saavedra v. State, slip op. no. PD-0198-08, Court of Criminal Appeals, November 4, 2009 - Appellant made certain admissions to a police officer through an interpretor.  The police officer was permitted to testify to what the interpretor told him about what Appellant admitted to rather than call the interpretor to the stand.  On appeal, the Dallas Court of Appeals reversed, holding that established law did not permit the introduction of this twice-removed hearsay.  It is of significance that the appeals court’s decision did not discuss relevant evidentiary rules but instead relied upon some fairly old case law which arose from that particular appeals court. 

Notwithstanding the Dallas Court’s own jurisprudence, the Court of Criminal Appeals rejects that court’s adherence to its precedent due to its insufficient homage to Rule 801(e)(2)(c) and (D).  The Court cautions trial courts to make factual findings which analyze whether an interpretor acted as an agent of the accused, whether the statements made by the interpretor were adopted by the accused and to examine the circumstances under which the interpretor was provided.  Then, the trial court will be in a position to determine the relationship between the interpretor and accused.  In so doing, and provided that there is a sufficient evidentiary foundation to support a finding that the interpretor acted as an agent or was otherwise authorized to act on behalf of the accused, then the out-of-court statements delivered by a third party, such as a police officer, are not considered hearsay and are admissible under Rule 801(d)(2)(C) or (D).

OCTOBER 27, 2009

RIGHT TO APPEAL UNDER TRAP 25.2 ON A “CHARGE BARGAIN” PLEA

Kennedy v. State, slip op. no. PD-1318-08, Court of Criminal Appeals, October 21, 2009 - The Austin Court of Appeals held that Appellant had no right of appeal following his open plea to the charge of aggravated assault on a peace officer.  Appellant was originally charged with attempted capital murder and deadly conduct.  He moved to suppress evidence.  Following a hearing on the suppression motion, the trial court granted in part and denied in part.  Following this ruling, Appellant and his lawyer struck a deal where he was allowed to plea to the charge of aggravated assault on a peace officer.  There was no recommendation on punishment.  Upon Appellant’s plea, the State would dismiss the attempted capital murder and deadly conduct allegations.  Further, Appellant would be allowed to appeal the denial of his suppression motion. 

On appeal to the Austin court, although neither party addressed the issue, that court held that Appellant had waived his right to appeal those suppression matters because there was an abundance of evidence in support of the judgment of conviction independent of those matters complained of in the suppression motion.  Appellant argued on PDR that the appeals court was simply using a standard legal sufficiency of evidence test in determining whether Appellant could appeal.  However, the Court of Criminal Appeals holds that the Austin Court and the parties misinterpreted Rule 25.2(a)(2) which governs the right of appeal in a plea bargain case.

  The Court, citing the case of Shankle v. State, 119 S.W.3d 808 (Tex.Crim.App. 2003), deemed the State’s promise to forego prosecution of additional charges against Appellant as matters which pertain to “punishment recommended by the prosecutor and agreed to by the defendant.”  This is so because the agreement to dismiss an existing charge or not to bring an available charge essentially puts a cap on punishment at the maximum sentence for the charge that is not dismissed.  Therefore, this kind of “charge bargain” plea arrangement is controlled by Rule 25.2(a)(2).  Thus, Appellant has the right of appeal under the rule since he preserved the issue by way of pre-trial motion and was granted permission to appeal by the trial court.  The fact that the plea papers showed the case to be an “open plea” does not exempt the appeal from the rule as stated in Rule 25.2(a)(2).  That rule applies to charge-bargain agreements.  Thus, the Austin Court of Appeals was in error in dismissing the appeal for the reasons stated.  Appellant had the right to appeal the trial judge’s ruling denying part of his suppression motionand the Austin Court is ordered to consider the merits of that appeal.

TRIAL COURT MAY RELY ON ANY EVIDENCE IT DEEMS RELEVANT AND RELIABLE IN RULING ON A PRE-TRIAL MATTER, EVEN IF IT INCLUDES UNSWORN HEARSAY

Ford v. State, slip op. no. PD-1753-08, Court of Criminal Appeals, October 21, 2009 - Appellant was charged with possession of marijuana.  He filed a motion to suppress.  At the hearing, the State did not present any live testimony from the arresting officer to establish probable cause to support Appellant’s arrest.  Rather, it submitted an unsworn copy of the officer’s offense report.  Appellant objected to the exhibit as a violation of the hearsay rule, because there was no sponsoring witness and as a violation of his right to confront a witness, citing the Sixth Amendment (Crawford error).  The trial judge overrruled all of Appellant’s objections and stated on the record that it accepted the officer’s observations and assertions as true. 

On appeal, the Texarkana Court of Appeals reversed, holding that the trial court erred in considering the unsworn report because art. 28.01, § 1(6) Code of Criminal Procedure determined the manner and mode of proof that should be considered by the trial court in an evidentiary hearing on a motion to suppress.  Because an unsworn police report does not match up to what the rule identifies as acceptable evidence (pleadings filed in the court, opposing affidavits or oral testimony), then the State in essence presented no evidence in support of any legal justification for the arrest.  On this basis, the Texarkana Court reversed and remanded for new trial.

Because the rules of evidence do not apply to preliminary hearings geared toward determining the admissibility of evidence and secondly, because the Court concludes that the legislature devised a discretionary set of guidelines for trial courts to utlize when making these rulings of law, an unsworn police report, although not required to be accompanied with a sworn affidavit, may be considered by the trial court in ruling on the meirts of a suppression motion.  The bottom line is that the trial court may use its discretion in deciding what type of information it considers appropriate and reliable in making the ruling. 

In the case at bar, the trial court went on record as stating that it as satisfied with the accuracy and truthfulness of the officer’s assertions in the report.  Although the trial judge is not required to believe the information contained in the officer’s report, the document itself is a form of government document and the type of evidence which a trial judge may consider as reliable in a suppression hearing.  This is so even if the report is rank hearsay and not admissible at the criminal trial of the accused.

Art. 28.01 comports with constitutional guarantees because there is nothing in the rule or its history that directs the trial court to consider only those forms of evidence listed under the statute.  Since Appellant did not challenge the reliability or accuracy of the report but only challenged its introduction in the absence of a sponsoring witness, the trial court cannot be said to have abused its discretion in accepting and considering the report.  The Texarkana Court was mistaken in concluding that art. 28.01, § 1,(6) mandates that all information considered by a trial judge must be accompanied by affidavit or testimony.

SEPTEMBER 22, 2009

CONSENT SEARCH UPHELD ON THEORY THAT DEFENDANT’S MOTHER HAD FULL AUTHORITY TO CONSENT TO SEARCH OF RESIDENCE ALTHOUGH DEFENDANT WAS REMOVED FROM SCENE AND HAD NO OPPORTUNITY TO REFUSE CONSENT TO SEARCH

Young v. State, No. 07-08-0309-CR, Amarillo Court of Appeals, September 4, 2009 - Appellant was convicted of burglary of a habitation, enhanced.  He was sentenced to 55 years TDC.  Appellant was under suspicion of having pulled off a slew of burglaries and was afterward placed under surveillance.  Law enforcement surrounded the house he shared with his mother.  When the police knocked on the door and he came outside to see who it was, he was detained and placed in handcuffs immediately.  Appellant was placed in the back of a patrol car and his mother was then contacted by police to come to the house for the purpose of gaining her consent to search throughout the house.  When Appellant’s mother arrived, she gave the requested consent.  While conducting the search, officers found several items that connected Appellant to various burglaries in the Lubbock area. 

Appellant moved to suppress this evidence, arguing that the police removed him from the scene because they knew that he would object to the search and that he would have never given consent in the first place.  Therefore, Appellant reasoned, his implied consent trumped his mother’s, citing the Supreme Court case of Georgia v. Randolph, 547 U.S. 103 (2006) in support.  Randolph holds that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow resident. 

However, the Amarillo Court distinguishes the instant case from Randolph by noting that there was no evidence developed at trial or at the evidentiary hearing which established that the police removed Appellant from the house for the sole purpose of acquiring the mother’s consent in the absence of Appellant.  The court also noted that the officers involved in the search testified that it was their “common practice” to seek consent from the formal owner of a residence and in this case, they believed that the mother was the rightful owner.  They also testified that it was not their practice to seek consent from each household member prior to conducting a search.  Appellant likewise failed to assert his refusal to allow consent while he was in custody prior to the search. 

Relying on the Supreme Court opinion of U.S. v. Matlock, 415 U.S. 164 (1974), the Court holds that a third party’s consent is valid if the facts available to the officers at the time of the search would allow a person of reasonable caution to believe the consenting party had authority over the premises to be searched. see also Brown v. State, 212 S.W.3d 851, 868 (Tex.Ct.App.-Houston [14th Dist.] 2006, pet. ref’d.)  Since Appellant did not argue that his mother’s valid was not consensual or valid and did not prove that the police purposesly removed him to avoid a potential objection to a consensual search, the search is deemed constitutionally permissible.

NO ABUSE OF DISCRETION IN REFUSING ADMISSION OF EVIDENCE REGARDING PRESENCE OF DRUGS IN VICTIM’S VEHICLE OR OF COURT’S DECISION TO ADMIT DEFENDANT’S STATEMENT THAT HE PLANNED TO ROB BANKS AND “GO OUT IN A BLAZE OF GLORY.”

Wachholtz v. State, slip op. no. 07-08-0459-CR, Amarillo Court of Appeals, September 11, 2009 - Appellant was convicted of murder.  By four issues, he complained of either the trial court’s exclusion of evidence or the admission of evidence.  In an opinion that breaks no new ground and essentially rehashes well-established principles of law, the Court reminds the parties that the admission of contested evidence is governed by the tried and true standard of abuse of discretion.  It is important for the daily practitioner to understand that, although the trial court’s discretion is not unbridled and must comport with the law, nonetheless, the decision to admit or refuse evidence carries with it a very, very high level of discretion.  The bottom line comes down to a simple inquiry: would reasonable minds differ about the reasons for the admission or rejection of the evidence.  If they do, the appellate court will not disturb the ruling of the trial judge.  If the decision of the trial judge instead falls outside the zone of reasonable disagreement, then there is an abuse of discretion and potential reversible error may have occurred.  Chief Justice Quinn, author of the opinion, puts it this way:

. . . Circumstances differ from case to case.  And, laws are often drafted to address concepts as opposed to specific situations.  This is no less true when the law involved consists of rules of evidence.  So, the trial judge is regularly called upon to use his judicial acumen and experience in deciding how and when a particular rule applies to a developing situation.  And, that task can be quite daunting since the result may depend upon how a jurist views or interprets those unfolding circumstances.

As illustrated by the rather common optical illusion of the beauty and the hag, whether one perceives the beauty or the hag is influenced by the indicia upon which he focuses. [footnote] For some reason certain viewers are initially drawn to the lines depicting the beauty while others see those presenting the hag.   Neither vision is inaccurate, however, for both lay within the illusion.  The same can be said of many controversies that arise before a trial judge and the resolution of which lies inthe exercise of his discretion.  The indicia a particular judge may focus upon may in fact lead to different, yet equally correct, results.  And, so long as the picture before them allows for either vision or result, neither is wrong. That is the seed underlying the concept of abused discretion for the result need only fall within the zone of reasonable debate given the indicia or circumstances before the court and the manner in which the court perceives them. [citation omitted]

The noteworthy aspect of the opinion comes not from Judge Quinn’s recitation of hornbook law on abuse of discretion but the fact that the highlighted footnote is a reproduction of the optical illusion Quinn references.  I can’t think of another opinion out of this Court over the past twenty-five years which has utilized a graphic display to drive home a legal point.  It’s a nice touch to an otherwise run-of-the-mill opinion.  Oh, and by the way, the Court makes short work of Appellant’s complaints, holding that evidence of drugs in the victim’s car was not relevant to Appellant’s specious claim of self-defense and Appellant’s declaration evidencing his intent to rob and steal before going out in a “blaze of glory” or something like that, even if in error, was harmless given Appellant’s sordid history of motorcycle gang membership, methamphetamine use, boasts of his past prison deeds and his prior assault on his ex-wife.  The jury’s punishment verdict of “double nines” was to be left undisturbed.

SEX-OFFENDER REGULATIONS PROHIBITING “FREQUENT” VISITS TO THOSE AREAS WHERE CHILDREN CONGREGATE MEANS REPEATED VISITS AND THE FACT THAT DEFENDANT VISITED LIBRARY ON ONE OCCASION IS FACTUALLY INSUFFICIENT TO SUSTAIN AFFIRMATIVE FINDING USED TO REVOKE PROBATION.

Griffith v. State, Nos. 07-09-0152-CR & 08-09-0153-CR, Amarillo Court of Appeals, Septembver 11, 2009 - Appellant appeals from the trial court judgments adjudicating him guilty of the offenses of indecency with a child and sentencing him to twenty years in TDC.  The State filed its motion to proceed with adjudication of guilt based on a single violation of probation: a solitary visit to the Lovell Library on January 12, 2008.  The trial court found the allegation to be true.  Appellant argues on appeal that the evidence is factually insufficient because a single, solitary visit to the library does not fall within the ambit of “frequent” visits to places where children congregate.  The Court agrees with Appellant by noting that the common definition of “frequent” encompasses an event that happens more than one time or more than a single occurrence; simple as that. see also Stovall v. State, 683 S.W.2d 891 (Tex.Ct.App.-Ft. Worth 1985, pet. ref’d.)  The Court also cites to the Merriam-Webster’s Collegiate Dictionary 500 (11th ed. 2003).  Let’s put a copy on the judge’s bench and while we’re at it, slip an extra under the prosecutor’s door.  Trial court’s order adjudicating guilt and imposition of the maximum punishment reversed and dismissed.

AS LONG AS RECORD CONTAINS EVIDENCE UPHOLDING INITIAL STOP, DETENTION AND SEARCH, JUDGE’S DENIAL OF SUPPRESSION MOTION WILL BE UPHELD

Stokes v. State, slip op. no. 07-08-0457-CR, Amarillo Court of Appeals, September 14, 2009 - Appellant appealed her conviction and sentence for driving under the influence.  She argued on appeal that the officer lacked reasonable suspicion to stop her vehicle and detain her and therefore, any evidence arising from the stop should be suppressed.  The facts developed at the suppression hearing showed that an Amarillo police officer, Godfrey, responded to a call about a prowler.  When he arrived in the area, he noticed a single moving vehicle in the area and began to follow it.  He lost it at one point, circled back in an effort to relocate the car and in so doing, he drove down a particular street and noticed a parked car whose lights were just cut off as he passed.  He was unsure whether the parked car was the same one he had been following.  As Godfrey drove by, he noticed the taillights of the car flash twice.  He did not see anyone in the car.  Godfrey parked his marked vehicle down the street and continued to observe the targeted car.  A short time later, the car pulled out from the curb.  Godfrey fell in behind, turned on his lgihts and pulled the vehicle over.  His investigation resulted in Appellant, the driver of the car, being charged with DWI.

Appellant’s attorney was able to get the arresting officer to state that although Appellant was illegally parked on the side of the street immediately prior to the stop in question, that was not the reason he stopped her.  Rather, he carried out the traffic stop because the believed the driver may have been an auto burglar who was committing or attempting to commit an offense.  In other words, the officer concluded that Appellant was acting “suspicious.”  The trial court’s findings of fact and conclusions of law stated as much.  Appellant argued that this amorphous concept of “suspicious behavior” did not provide an objective basis for the stop. 

The Court noted that in reviewing the officer’s testimony, it uses an objective standard that disregards any subjective intent of the officer making the stop and instead looks only to whether there is an objective basis to the stop.  As long as an actual violation of the law occurred, law enforcement officers are free to enforce the laws and detain a person for that violation regardless of the officer’s subjective reason for the detention. see Garcia v. State, 827 S.W.2d 937 (Tex.Crim.App. 1992).  Because the record contained some evidence that Appellant’s vehicle was illegally parked and given the conclusion that the arresting officer could have stopped Appellant’s car for that specific violation, the stated reason behind the officer’s actual stop is irrelevant. see Ford v. State, 158 S.W.3d 488, 492-93 (Tex.Crim.App. 2005).  Giving almost total deference to the trial court’s findings on witness credibility and demeanor, the Court concludes that the trial court could have believed that Godfrey witnessed a traffic violation by the improperly parked vehicle.  And the trial court findings and conclusions emphasizing the ”suspicious” nature of Appellant’s behavior are “unnecessary” when an actual violation of the law is observed.  Therefore, the Court concludes that the trial court did not abuse its discretion in finding that the stop in question was reasonable because of the observed traffic violation.  Perhaps Stokes’ attorney, Eric Coats, will take this one up out of principal.

TRIAL COURT’S DUTY TO SET OUT AN ACCURATE CHARGE WHICH APPLIES CORRECT LAW TO THE FACTS OF THE CASE DOES NOT INCLUDE THE DUTY TO CHARGE THE JURY ON A VALID LESSER-INCLUDED OFFENSE; RATHER, THE DECISION TO REQUEST A LESSER-INCLUDED OFFENSE IS A DEFENSIVE ELECTION AND CAN NEVER BE CONSIDERED “LAW OF THE CASE.”

Castellon v. State, slip op. no. 07-08-0461-CR, Amarillo Court of Appeals, September 14, 2009 - Appellant was convicted of aggravated assault with a deadly weapon, namely his car and was sentenced by the jury to 20 years in prison.  On appeal, he argued that the weight and quality of evidence underlying the existence of the valid lesser-included offense of deadly conduct, a misdemeanor, to the indicted charge constituted “law of the case” and mandated its inclusion in the court’s charge, even in the absence of a defensive request that it be placed in the charge. 

The Court holds that even though the trial court does indeed have an absolute sua sponte duty to prepare a charge that accurately sets out law applicable to the specific offense charged, that duty does not translate to a similar duty to instruct a jury sua sponte on all potential defenses or lesser-included offenses.  Those are issues that typically constitute defensive strategy and tactics. Delgado v. State, 235 S.W.3d 244 (Tex.Crim.App. 2007); Posey v. State, 966 S.W.2d 57 (Tex.Crim.App. 1998).  These are issues best left to the defendant and his or her attorney and are not “law of the case” as that term is defined and understood.  Thus, in order to preserve the issue for appellate review, an objection must be made or a special request must be presented to the trial court for a ruling.  Because that did not happen here, the issue was not properly preserved and waived.  Conviction and sentence affirmed. 

AUGUST 7, 2009

TRIAL COURT LACKS AUTHORITY TO ORDER CUMULATION OF SENTENCE MORE THAN 30 DAYS AFTER FAILING TO ORDER ORALLY FROM THE BENCH ANY CUMULATION OF SENTENCES WHEN PRONOUNCING DEFENDANT’S SENTENCE FOR BURGLARY OF A HABITATION

Grays v. State, slip op. no. 14-08-00051-CR, Fourteenth Court of Appeals, July 14, 2009 - Appellant was tried and convicted of burglary of a habitation and sentenced to 13 years in prison.  At the time for formal sentecing in open court, the prosecutor informed the trial court that it was requesting the court to stack the 13-year sentence on top of a sentence that Appellant had received for aggravated sexual assault of a child.  The latter case had been on appeal and only recently had the appeals court affirmed the conviction.  The trial court stated that both the State and defense submit memoranda of law in support of their respective positions regarding cumulation of sentence.  The trial court commenced to sentence Appellant to the jury verdict of 13 years imprisonment.  Over a month later, the State filed a motion to cumulate sentences.  Appellant filed no objections to the State’s motion.  The trial court granted the State’s motion and signed both an order permitting stacking and a judgment which reflected the stacking order well over thirty days after formal sentencing in open court on the burglary conviction.  Appellant did not file a motion for new trial but appealed the trial court’s cumulation order.

Held: Trial court judgment reformed to reflect deletion of the cumulation order.  An appellant need not object in court to the imposition of an improper cumulation order as it is considered to be a void sentence and such error cannot be waived. Laporte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992).  Further, a trial court may cumulate certain sentences pursuant to art. 42.08 C.C.P. but the cumulation order must be done at the time and place where sentence is orally pronounced.  Once a defendant is removed from the courtroom and begins serving his sentence, it is too late to cumulate the sentence just imposed with an earlier one. Ex parte Madding, 70 S.W.3d 131 (Tex.Crim.App. 2002).  A trial court does not have the asuthority to pronounce orally one sentence in the defendant’s presence but enter a different sentence in its written judgment outside of defendasnt’s presence. Id.  Here, the trial court, although given the opportunity to cumulate Appellant’s sentences, did not do so.  Since Appellant began serving the 13-year sentence immediately after sentencing when he was removed from the courtroom, the trial court no longer had the discretion or authority to cumulate his sentences.  Its later attempt more than one month later was void.  And since the terms of the written judgment conflicted with the oral sentence pronounced from the bench, the oral prevails over the written. Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App. 2003).

WHEN MULTIPLE CHARGES INVOLVE SIMILAR CONDUCT AND ARE TRIED TOGETHER, TRIAL COURT MAY NOT ORDER CUMULATION OF ANY OF THE CONVICTIONS

Johnson v. State, slip op. no. 07-08-0428-CR through 07-08-0431-CR, Amarillo Court of Appeals, July 16, 2009 - Appellant entered open pleas of guilty to nine separate acts of public lewdness committed over a period of one year against nine different individuals.  The trial court assessed punishment at one year on each offense.  It suspended the sentence on four of the nine and ordered that the suspended sentences be cumulated with the non-probated sentences.  Appellant appealed, arguing that the trial court’s cumulation order was void.  The State conceded error and agreed to deletion of the cumulation order.

The record showed that all nine charges brought against Appellant arose from the same “criminal transaction.”  When Appellant announced in open court that he intended to enter pleas of guilty to each of the nine informations, the State objected to the consolidation of the cases.  The trial court announced it would defer its ruling until the close of evidence.  All cases were then heard together with all witnesses associated with the nine cases testifying.  At the conclusion of evidence and argument of counsel, the trial court announced that the offenses would not be consolidated and entered the judgments complained of on appeal. 

Under sec. 3.03(a) Penal Code, when multiple offenses arising out of the same criminal episode are consolidated for trial, and the defendant is found guilty of more than one offense, the trial court has no discretion to cumulate the sentence.  If the court calls each case individually, hears evidence on each case before assessing a finding of guilt and pronouncing sentence, then the cases are considered not to be consolidated and thus, the trial court may order cumulation of sentences.  But here, the trial court admonished Appellant on all nine cases, took his pleas to all nine cases at the same time, heard evidence on each case in a unitary proceeding and sentenced Appellant on each case at the same time.  Thus, despite its ruling that the cases would not be consolidated, everything which occurred and all the actions taken by the trial court belie a consolidation of the nine charges.  If it looks like a duck, sounds like a duck, walks like a duck, it is a duck.  And so the appeals court decides.  The trial court abused its discretion by cumulating Appellant’s sentences.  Since the cumulation order is void, it is not necessary to object to same at trial.  The four judgments reflecting cumulation are reformed to show deletion of the cumulation orders and each are to run concurrent.

JULY 14, 2009

POSITIVE BLOODHOUND ALERT ON SCENT SAMPLE, COUPLED WITH DEFENDANT’S ACKNOWLEDGEMENT OF HIS STATUS AS SUSPECT AND JAILHOUSE STATEMENT, LEGALLY SUFFICIENT EVIDENCE TO SUPPORT MURDER CONVICTION

Winfrey v. State, slip op. no. 11-08-00034-CR, Eastland Court of Appeals, June 11, 2009 - Appellant was convicted of murder and sentenced to seventy-five years in prison after the jury found the two prior enhancement paragraphs “true.”  Decedent was bludgeoned to death in his house.  There was very little physical evidence left which pointed to the culprits.  However, the county sheriff received information which implicated Appellant’s grown children in the crime.  The sheriff went to interview Appellant about his children.  During this interview, Appellant denied any knowledge about the murder, denied that his children had been involved in the murder and denied that he had ever been in decedent’s house.  Strangely enough, Appellant also told the Sheriff that he (Appellant) was “the number one suspect.”  The Sheriff also interviewed Appellant’s children and they both denied any involvement in the murder.

Stymied in their investigation, the sheriff’s department decided to do a smell test by taking scent samples from all those considered suspects (Appellant and the members of his family) and then having trained bloodhounds sniff a sample piece of clothing taken from the decedent.  At trial, Deputy Pikett testified that he specialized as a canine handler and that he trained and worked with bloodhounds.  He testified in detail about the training received by his bloodhounds in tracking human scents and performing human scent lineups.  He said he had been certified as an expert on bloodhound trails. 

Pikett then described how the scent lineup worked.  He used two trained bloodhounds and videotaped the procedure for the benefit of the jury.  On multiple occasions, the bloodhounds alerted on the scent sample taken from Appellant.  In addition to the scent line-up, the prosecution presented the testimony of a jailhouse snitch who described a conversation he had with Appellant while the two shared a cell.  In the conversation, Appellant described a weapon which had been taken from the decedent’s house, information that even the police were not aware of.  When law enforcement became aware of these statements, they went back and re-interviewed the decedent’s family members and found out that decedent owned a .22 single shot rifle and a shotgun.  Thereafter, Appellant, in fact, became that “number one suspect.” 

Based on the results of the two scent line-ups, Appellant’s apparent knowledge of information regarding the decedent that the police were not aware of and his own admission that he was the “number one suspect” in a murder which, at the time, the police did not consider him a suspect, the appeals court deems such to be legally and factually sufficient to uphold the jury’s verdict of guilt.

STATE’S NOTICE OF INTENT TO ENHANCE SENTENCE WITH PRIOR CONVICTIONS AFTER ACQUITTAL ON INDICTED CHARGE BUT CONVICTION ON LESSER-INCLUDED DEEMED UNTIMELY, HARMFUL ERROR; CONVICTION REVERSED

Pelache v. State, slip op. no. 13-08-00463-CR, Corpus Christi Court of Appeals, June 26, 2009 - Appellant was indicted for robbery with one enhancement paragraph, a second-degree felony.  Prior to trial, the State offered Appellant a plea bargain consisting of a recommendation of two-years confinement in a state jail in return for Appellant’s plea to theft from person.  Appellant then turned down the offer but only after his own lawyer admonished him about the possible range of punishment (5-99 or life) that he was looking at if convicted.  During his examination at a hearing outside the presence of the jury, Appellant’s trial lawyer also reminded Appellant that if he were convicted, the “Court will consider a range of punishment between 20-30 years.”  Appellant indicated he understood this.  Appellant was acquitted of robbery at trial but convicted of the lesser-included theft from person.  Sentencing was set for three weeks hence.

Six days after the jury verdict, the State served notice on Appellant’s trial lawyer that it intended to enhance punishment with two other felony convictions.  Appellant objected to the new enhancement allegations and requested a setence within the state-jail punishment range.  The trial court overruled Appellant’s objections and sentenced Appellant to twenty years, the maximum sentence which the trial court could have imposed given the two prior convictions.

In Villescas v. State, 189 S.W.3d 290 (Tex.Crim.App. 2006), the Court of Criminal Appeals held that notice of enhancement need only satisfy constitutional safeguards and that there is no set number of days by which the State must give notice to enhance.  However, the Corpus Christi appeals court considered the pronouncement concerning the manner and timing of notice to be dicta and not germane to the central holding in the case.  Therefore, the Court did not feel constrained by Villescas.  Moreover, the Court discounted Villesca’s reliance on the Supreme Court case of Oyler v. Boles, 368 U.S. 448, 452 (1962) in holding that notice is of constitutional rather than statutory dimension by noting that Oyler was a writ proceeding and that the petitioner in Oyler failed to object to the late notice.  Here, the Court placed great emphasis on 1) Appellant’s objection to the late notice and 2) that the State chose to give late notice only after the acquittal on the indicted charge.  The Court found that the State sought to obtain punishment that the jury could not have anticipated in the trial on the primary offense.  Finding a due process violation by equating the late notice with a violation of Appellant’s right to know the nature of the charges brought against him and the consequences of a conviction before jeopardy attaches, the Court reverses and remands for a new punishment hearing where the trial court is prohibited from considering the two “improperly noticed enhancement allegations.”

*Now you talk about balls to the walls.  This Court not only takes the Court of Criminal Appeals to task for its own opinion by designating one of its central holdings as dicta, but it disregards a U.S. Supreme Court case in the same breath.  And one other thing that was interesting.  The CC Court determined that due process was violated when the State gave late notice regarding the enhancement, thus allowing the State to seek punishment that “the jury could not have anticipated in the trial on the indicted offense.”  But this statement is internally inconsistent.  The hearing before the trial court where Appellant rejected the State’s plea bargain indicated that Appellant had already elected for the trial court to impose punishment, not the jury.  What the jury might have anticipated has nothing to do with a due process argument.  Secondly, if anything, Villescas made it clear that the State may elect to give notice of enhancement, even after completion of the guilt-innocence phase of the trial.  It is up to Appellant to establish harm by showing the need for a continuance to contest the enhancement allegations.  I’m not sure that the record will provide support that Appellant did this and that’s exactly what Villescas spoke to.  Whether one terms that language dicta or not, this will surely be taken up via PDR, either by the Cameron County D.A. or the State Prosecuting Attorney.  Stay tuned.

LIMITED EXCEPTION TO “FOUR CORNERS” TEST WHEN CONTESTING SEARCH WARRANTS

Rogers v. State, slip op. 06-08-00133-CR, Texarkana Court of Appeals, June 26, 2009

When reviewing whether the issuing magistrate had a substantial basis for concluding that probable cause existed, an appeals court determination of the sufficiency of a search warrant is limited to the four corners of the affidavit. Oubre v. State, 542 S.W.2d 875, 877 (Tex.Crim.App. 1976); Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App. 1996).  The probable cause affidavit normally cannot be supplemented with additional testimony not contained in the affidavit.  This is usually done with attempts by the State to introduce live testimony from the law enforcement agents involved in the preparation of the warrant.  As such, these attempts to supplement cannot be permitted because of the “four corners” test.

However, two Texas courts of appeals have not begun to permit supplementation pertaining to the desecription of the location to be searched. see Taylor v. State, 974 S.W.2d 851, 857 (Tex.Ct.App.-Houson [14th Dist.] 1998, no pet.); Smith v. State, 962 S.W.2d 178, 182 (Tex.Ct.App.-Houston [1st Dist.] 1998, no pet.). As long as the officer in charge can state that he has an adequate degree of intimate knowlege of the place to be searched, a subject which can be developed at a hearing or on affidavit, then the trial court and the appeals court may consider this supplemental evidence in determining the adequacy of the warrant in question.  So, the Texarkana Court of Appeals now joins in with the two Houston courts in recognizing this limited exception to the “four corners” test. 

JULY 2, 2009

WHEN TRIAL COURT CREATES ITS OWN TERMS TO PRE-EXISTING PLEA BARGAIN BETWEEN STATE AND DEFENDANT AND COURT THEN REJECTS PLEA BARGAIN, DEFENDANT MUST BE GIVEN OPPORTUNITY TO WITHDRAW PLEA OF GUILTY BUT PROPER CONTEMPORANEOUS OBJECTION MUST BE MADE TO PRESERVE ERROR ON APPEAL

Moore v. State, No. PD-1340-08, Court of Criminal Appeals, July 1, 2009 - Appellant entered into a plea bargain with the State for manufacturing methamphatemine.  Upon Appellant’s entry of the plea, the trial court added conditions to the State’s plea bargain, including a requirement that he appear in court for sentencing on a future date.  The trial court also told Appellant that should he fail to honor the additional terms, the court would treat the case as an “open” plea, thus exposing Appellant to the full range of punishment.  When Appellant failed to appear at sentencing, the trial court then converted the plea bargain agreement into an open plea and sentenced him to 40 years confinement.

The only proper role of the trial court in plea bargaining is advising the defendant whether it will follow or reject the agreement.  A defendant must be permitted to withdraw his plea should the trial court refuse to honor an agreement between the parties.  Once the plea bargain is accepted by the trial court, the State is thereby bound by the agreement.  Only the State may offer or withdraw a plea offer.  Only the State and defendant may alter the terms of the agreement.  The trial court commits error if it unilaterally adds un-negotiated terms to the plea bargain agreement.  In some situations, a trial court may conditionally agree to follow a plea bargain agreement but only by delaying the unconditional acceptance or rejection of the agreement until after the condition of acceptance has been fulfilled. see Ortiz v. State, 933 S.W.2d 102, 104 (Tex.Crim.App. 1996).  However, if after the conditional acceptance of a plea bargain the trial court rejects the plea bargain agreement, the defendant must nevertheless be permitted to withdraw his plea.  In the present case, it does not matter whether the trial court created its own terms or expressed its conditional intent to approve, subject to fulfillment of the side agreement reached between Appellant and the trial court.  When the trial court announced that it was not going to honor the original agreement between Appellant and the State, it should have permitted Appellant to withdraw his plea. 

But, Appellant’s 40-year sentence stands because his lawyer failed to make any kind of objection to the court’s side agreement at the time of entry of the plea bargain or during sentencing.  The error complained of here is trial court intrustion into the plea bargain process and thus, is not considered to be systemic and may be not be brought up first time on appeal.  By failing to object that the trial court’s conditions were improper, Appellant failed to preserve error.  Trial court’s judgment and sentence of 40 years is affirmed.  So, when you hear some layman railing about all the cons who got off on the technicality, remind him (or her) of all the thousands doing time because of technicalities.  Just like this one.

STRICT ADHERENCE TO ART. 38.22 REQUIRED FOR ADMISSION OF ORAL CONFESSION OR ORAL STATEMENT

Nguyen v. State, slip opinion no. PD-0888-08, Court of Criminal Appeals, July 1, 2009 - Appellant was stopped while driving vehicle.  His passenger, Sanchez, was the owner and gave oral consent for the officer to search the car.  Methamphetamine was found and Sanchez was informed that he was under arrest for possession of meth since it was found among his possessions.  Appellant was arrested for traffic citations.  Appellant was given cursory Miranda warnings which did not comply with those required under Art. 38.22 since he was not told that he could terminate the interview at any time.  While Appellant and Sanchez were sitting in the back seat of the patrol car and observing the arresting officer’s continued search, Sanchez began to plea with Appellant to take the blame and tell the officer that the methamphatamine was his.  After much back and forth, Appellant called to the officer and made an “admission” that the methamphetamine was indeed his.  The arresting officer then removed Sanchez from the car and told him that he was no longer under arrest for methamphetamine but he was still not free to leave.  A tablet of ectasy was later discovered in the car and once again, Sanchez was placed under arrest for that.  Sanchez again assailed Appellant to take the rap for the ecstasy but this time, Appellant wouldn’t do it. 

Whereas Sanchez was charged with possession of a controlled substance, Appellant was charged with hindering the apprehension of Sanchez through his allegedly false statements wherein he “admitted” to possessing the drugs.  Appellant opted for a bench trial after conclusion of the hearing on his motion to suppress.  He argued that the officer’s admonishments under art. 38.22 were incomplete and that stridct adherence to the statute was necessary for admission of any and all statements made by Appellant.  Appellant also argued that there was no need to examine these admissions under any constitutional mode of analysis since Art. 38.22 is a rule of procedural  admissibility whereas Art. 38.23 governs whether or not certain evidence is excluded when obtained in contravention of legal or constitutional rights.  This means that if Art. 38.22 is not satisfied, then any statement taken in those circumstances is not admissible, absent any indication that it was obtained in violation of any applicable statute or constitutional provision. 

Here, the State argues that a number of exceptions to the rule of Art. 38.22 should be recognized.  Those include statements that are not confessional in nature, do not implicate the accused for the offense prosecuted or constitute an offense.  Noting that a strict reading of Art. 38.22 contain none of these exceptions, the Court will not entertain them for the first time on appeal and specifically when they were not presented or argued to the trial court.  And even if they had, they would be of no avail.  Appellant’s oral statements were inadmissible under Art. 38.22.   

JUNE 21, 2009

DEFENDANT MUST ESTABLISH WITHIN A MOTION FOR NEW TRIAL A REASONABLE PROBABILTY THAT THE OUTCOME OF A TRIAL WOULD HAVE BEEN DIFFERENT BEFORE HE CAN CLAIM ENTITLEMENT TO A HEARING ON SUCH ALLEGATION

Smith v. State, No. PD-0777-08, Court of Criminal Appeals, June 17, 2009 - Appellant entered pleas of true to a pending motion to adjudicate.  The trial court adjudicted Appellant guilty and sentenced him to twenty years in prison.  Appellant then hired new counsel and filed a motion for new trial, claiming that original trial counsel was ineffective for failing to advise him of his right to testify and failing to file medical records with the trial court during the hearing.  The trial court refused to set an evidentiary hearing, noting that Appellant failed to make an adequate showing that the outcome of the hearing would have been different had he testified or tendered medical records.  Appellant’s bald statements that his testimony would have convinced the trial court that the State’s witnesses were lying were conclusory in nature.  The Waco Court of Appeals reversed, holding that the allegations raised in the motion for new trial constituted matters outside the record and therefore, required a hearing to resolve the issues.  The Court of Criminal Appeals reverses the Waco Court of Appeals and establishes a bright-line rule which requires a defendant, when alleging ineffective assistance of counsel, to establish proof which can satisfy both prongs of the Strickland v. Washington test.  A defendant need not be forced to plead all his evidence but he must allege sufficient facts from which the trial court can reasonably conclude both that counsel failed to act as a reasonably competent attorney and that, but for counsel’s failure, there is a reasonable probability that the outcome of his trial would have been different.  In the absence of such pleading, the trial court never abuses its discretion in failing to conduct an evidentiary hearing.

VICTIM ALLOCUTION MAY BE NOT USED AS A BASIS FOR SENTENCING OR RESENTENCING

Johnson v. State, No. PD-1187-07, Court of Criminal Appeals, June 17, 2009 - This case asks a simple question: May a trial court impose a jail sentence as a condition of community supervision immediately after he has heard unsworn, un-cross-examined victim-allocution statements that they want the defendant to go to jail.  Answer: NO. 

In this case, Appellant was tried on two counts of indecency with a child.  He was convicted of one count, acquitted on the other.  The jury recommended probation.  The trial court then followed the recommendation of the jury, placed Appellant on probation but did not impose jail time as a condition of probation.  Afterward, pursuant to Art. 42.03 which permits victim-allocution, both named complainants in the indictments, including the named complainant in the case where the jury acquitted, read statements to the trial court and demanded jail time for the defendant.  The trial court, immediately after receiving these unsworn declarations, then imposed a 180-day jail term on Appellant and ordered him to sell his home. 

In holding that the trial court abused its discretion and imposed a void sentence, the Court, per Judge Cochran, holds that the victim-allocution statute is not ambiguous or difficult to understand.  The victim is to be permitted to address the court after sentencing, not before.  And it is of no moment that the trial court has the ultimate authority to impose county jail time as a condition of probation.  In this case, he did not do that and it is just a little too coincidental that the imposition of the county jail term followed right on the heels of the victim-allocution.  The Court chooses not to call the trial judge, who attempted to justify the additional jail time on the record with self-serving statements, a liar but does note that his actions expose the bench to accusations of impropriety and the appearance of possible influence.  The wording of the relevant statute was designed to innoculate the bench from just such accusations by requiring that sentencing be concluded prior to victim-allocution.  The trial judge erred by violating the express terms of art. 42.03.

JUNE 12, 2009

EVIDENCE THAT APPELLANT HAD EXHIBITED DISREGARD FOR THE CONDITIONS OF HIS STEPBROTHER’S PROBATION WAS RELEVANT AS TO WHETHER APPELLANT WAS DESERVING OF PROBATION FOLLOWING HIS CONVICTION FOR SEXUAL ASSAULT

Worthy v. State, No. 11-07-00194-CR, Eastland Court of Appeals, May 28, 2009 - Appellant and his wife took into their home a niece who other family members complained had been “acting out” and being promiscuous.  Over time and before the complainant reached the age of 17, Appellant and complainant developed a sexual relationship.  From time to time, he would take her over to his stepbrother’s house for sexual trysts.  Appellant testified that his stepbrother had no knowledge of what was going on.  Appellant also acknowledged that during the times that he took the complainant over to his stepbrother’s house, he was aware that his stepbrother was on probation for a sexual offense and that he (the stepbrother) was prohibited from having unsupervised children in his house.  During trial, Appellant pled guilty to the charge of sexual assault and requested probation from the jury.  The State was permitted to introduce evidence concerning his stepbrother’s probation status and the terms of that probation.  Appellant argued that the evidence was not relevant and if so, that its predjucial impact greatly outweighed its materiality.  The Court holds that evidence of Appellant’s disregard for the conditions of his stepbrother’s community supervision and lack of care for the complainant by leaving her unsupervised at the home of the stepbrother was relevant to the issue of whether Appellant could himself follow the rules and conditions of probation should the jury determine that he be placed on community supervision.  Indeed, the Court holds that this evidence was relevant “and highly probative” with respect to the jury’s determination of punishment.  Appellant’s sentence of eight years confinement on two counts of sexual assault affirmed.

OFFICERS LACK CONSENT TO CONDUCT EXTENDED SEARCH OF APARTMENT; SEARCH CANNOT BE JUSTIFIED UNDER “PROTECTIVE SWEEP” OR EXIGENT CIRCUMSTANCES; SUBSEQUENT SEARCH WARRANT BASED ON ILLEGALLY OBTAINED EVIDENCE AND THUS, NOT SUPPORTED BY PROBABLE CAUSE

Valtierra v. State, Nos. 04-08-00236-CR & 04-08-00237-CR, San Antonio Court of Appeals, May 27, 2009 - San Antonio police officers received a tip that a runaway teenager could be located in Appellant’s apartment.  The officers decided to conduct a “”knock and talk” in order to investigate the report.  They did not have a search warrant since they readily agreed that they did not possess probable cause to enter the residence.  The officers testified that when they knocked on the door, they were met by Appellant’s brother who agreed to allow them to enter the apartment.  However, the brother did not agree that he gave officers consent to go down the hallway of the apartment.  This was a hotly contested issue at the suppression hearing.

The officer explained why they were there.  Appellant’s brother told the officers that the runaway was indeed in the apartment and that she was taking a shower.  She would be out momentarily.  The officers testified that they could not hear a shower running and since she did not appear within a few minutes, they became concerned for her welfare.  Within two minutes of entering the apartment, one of the officers walked down the hallway and looked into a bedroom.  Seated on the floor was Appellant and another individual.  According to the officer, he saw both men stuff something under the bed in a hurried fashion.  A subsequent search of the bedroom, after Appellant and the other man were removed, revealed controlled substances. 

At the suppression hearing, three issues became apparent: did the State establish clear and convincing evidence of consent to search the apartment and if not, was the search and seizure of the drugs justified under either the theory of a “protective sweep” or exigent circumstances?  The San Antonio Court holds that the State failed to establish consent since the trial court, in its findings and conclusions, explicitly held that Appellant’s brother did not provide consent for the officers to walk down the hall and look into bedrooms.  Then the inquiry turns on whether the search could be sustained as a protective sweep or justified on the existence of exigent circumstances.

A “protective sweep” is a quick and limited search of a premises, incident to arrest and conducted to protect the safety of police officers.  The Supreme Court has held that the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the arresting officer has a reasonable belief based on specific, articulable facts that the area to be swept harbors an individual who poses a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325 (1990).  The sweep is only permitted when justified by specific, clearly articulable facts that the residence houses a dangerous individual.  Basing its finding on the trial court findings of facts and conclusions of law, the Court finds that the record is bereft of any evidence indicating that there was anyone present in the house who posed a danger to the officers.  Everyone who was located and identified within the house cooperated with the police and there was no evidence pointing toward the existence of any danger whatsoever.  The Court also found that the officer’s proceeding down the hall after the appearance of only one individual, besides Appellant’s brother, belied any suspicion that there were armed or otherwise dangerous persons in the residence.

In order to justify the seizure under the exigent circumstances doctrine, the State was required to establish that the officer’s warrantless entry into the residence was to render emergency aid or assistance to a person who he reasonably believed to be in distress or in need of assistance, to prevent the destruction of evidence or contraband or to protect officers from other suspects or persons whom they reasonably believe to be dangerous.  As can be seen from the review of facts, the officers had no facts in their possession that the teenage runaway was in distress or in need of immediate aid.  All the police officers knew was that she had been seen in the apartment and that she was taking a shower.  The officers didn’t know about any contraband until after entry into Appellant’s bedroom nor could they claim knowledge of armed or dangerous persons on the premises who might threaten fellow officers.  The apartment itself could not be termed as a suspicious place nor was there any evidence that any crime had been committed in the apartment or in the officers’ presence prior to the officer’s proceeding down the hallway and stepping into Appellant’s bedroom.  The record does not support any of the three fact situations which might give rise to a finding of exigent circumstances.  The State did not meet its burden to prove that an officer reasonably concluded exigent circumstances were present.

In conclusion, the record did not provide clear and convincing evidence that Appellant’s brother gave the officers consent to move throughout the apartment and down the hallway, neither officer could provide specific, articulable facts which might justify a protective sweep nor could they identify any specific facts which might have established exigent circumstances.  The order of the trial court denying Appellant’s motion to suppress is reversed and the case is remanded for new trial.

* Case reversed by Court of Criminal Appeals on the issue of consent, Nos. PD-0906-09, PD0907-09, PD-0908-09 and PD-0909-09, May 5, 2010 and remanded to San Antonio Court of Appeals analysis of search and seizure under “protective sweep” doctrine.

JUNE 11, 2009

PARTY ALLEGING JUROR MISCONDUCT MUST REQUEST OPPORTUNITY TO INITIATE JUROR QUESTIONING IN ORDER TO PRESERVE ERROR OF JURY MISCONDUCT

Ocon v. State, No. PD-0297-08, Court of Criminal Appeals, June 3, 2009 - Appellant was charged and tried for aggravated sexual assault of a child.  On the second day of trial, defense counsel overheard one of the jurors talking to a third person over his cell phone while in the men’s room.  The juror spoke negatively about the trial, Appellant and the havoc the trial was having on his schedule.  Defense counsel moved for a mistrial but did not move for a hearing by which the suspect juror could be questioned.  The trial court, obviously troubled by the report of outside communication, instructed the jury on multiple occasions that they were not to communicate with anyone else. 

Juror communications with third parties can run afoul of Article 36.22 which prohibits conversing with a juror about the case on trial.  However, violation of the article does not automatically warrant a mistrial.  A mistrial is a drastic step and requires the trial judge to consider less punitive measures before deciding to declare a mistrial.  This requirement compels the complaining party to develop a record upon which the trial court can make its decision.  This may require a asking for the opportunity to inquire of the jurors regarding the actual communication and its effect upon the jury as a whole.  An appellant who first moves for a mistrial without first requesting a less drastic alternative forfeits appellate review of that class of events which could have been cured by a lesser remedy.  Because defense counsel failed to move for an opportunity to question the jurors and due to his failure to object to the trial court’s aggressive, numerous admonishments, he must have been satisfied with the lesser steps taken by the court.  Moreover, the court held that the facts of alleged juror communication which were established in the record did not rise to a level of egregious violation of art. 36.22 to warrant a mistrial.  Based on the state of the record and in light of the remedies employed by the trial court, there was no abuse of discretion on the part of the trial court in denying Appellant’s motion for mistrial.

AGENCY RELATIONSHIP ESTABLISHED BETWEEN RENTER OF POST OFFICE BOX AT COMMERCIAL MAILING CENTER AND HOST PERMITS THE COMMERCIAL MAIL RECEIVING AGENCY TO CONSENT TO VISUAL OBSERVATION OF MAIL IN POST OFFICE BOX

Gabriel v. State, No. 14-08-00037-CR, Houston Court of Appeals, Fourteenth District, May 21, 2009 - Appellant was implicated in a complex, sophisticated theft prosecution which included the use of various identities and fraudulently obtained credit cards.  He also utilized several post office boxes which he rented out at UPS stores throughout the Houston metropolitan area.  Law enforcement personnal contacted UPS store managers and with the use of their keys, opened Appellant’s post office boxes and made copies of the correspondence inside those boxes.  They did not open the mail.  The information used from these searches were utilized to track down other identifying information on Appellant which was utilized against him at his trial.  He was convicted of first degree theft and sentenced to 45 years in prison.  On appeal, inter alia, he complained that the search of his post office box was in violation of the Fourth Amendment due to the failure of law enforcement to secure a warrant and that no known exception existed to the warrant requirement. 

Following the Fifth Circuit case of U.S. v. Osunegbu, 822 F.2d 472 (5th Cir. 1987), the Houston Court holds that when Appellant signed Form 1583, a document required by the U.S. Postal Service, he designated the UPS store as his agent and as such, the agent may consent to a search of the interior of the post office box.  Therefore, the agency relationship provides the mailing center the authority to consent to a search of its customers’ postal boxes.

INDIGENT DEFENDANT HAS CONSTITUTIONAL RIGHT TO TRANSCRIPTION OF TESTIMONY RECEIVED IN PRIOR PROCEEDING IF THERE EXISTS NEED FOR SAME AND NO ALTERNATIVES EXISTS THAT FULFILL SAME FUNCTION AS IF A TRANSCRIPTION WAS AVAILABLE; TRIAL COURT’S FAILURE TO PROVIDE SAME REVERSIBLE ERROR 

Canales v. State, No. 07-08-0295-CR, Amarillo Court of Appeals, May 29, 2009 - Appellant was tried and convicted of two counts of aggravated assault.  His first trial resulted in the declaration of a mistrial when one of the jurors suffered an injury and could not continue.  When Appellant opted not to proceed with eleven jurors, the trial court was forced to declare a mistrial.  Appellant then moved for a continuance and a transcription of the first day’s testimony.  The State did not oppose this request and made no effort to show that the transcription was unnecessary or otherwise of little value to the Appellant.  It did not attempt to show that there were other avenues available to Appellant that would serve the purpose of a transcript.  The trial court summarily denied both requests because it determined that there was no impeachment value in any of the testimony received during the first day and that defense counsel could easily recall this testimony in any event.  Held: reversed and remanded for new trial.

An indigent defendant has a constitutional right to a transcription of testimony received during a prior trial if there exists a need for it and no alterntaives exist that fulfill the same function. Britt v. North Carolina, 404 U.S. 226 (1971); White v. State, 823 S.W.2d 296 (Tex.Crim.App. 1992); Billie v. State, 605 S.W.2d 558 (Tex.Crim.App. 1980).  The State may rebut this presumption by showing that there are other alternatives available to the defendant which serve the use and purpose of the transcript.  Here, Appellant made the required showing of the need for the prior testimony and the trial court’s declaration that defense counsel should be able to remember the testimony does not fill the void provided by preparation and access to a transcription of the trial testimony.  And it does not matter that the trial took up only one day.  The Court noted that the Court of Criminal Appeals had held that the trial court’s refusal to provide a transcription of only two hours testimony was reversible error in White, 823 S.W.2d at 299-300. 

In assessing harm, the Court is torn between considering whether harm is presumed under the White case or whether a harmless error standard should be employed.  Yet, even under the harmless error test, the Court notes that the requested transcription covered the testimony of six witnesses called by the State and both sides conceded that there were inconsistencies in their testimony.  Concluding that the integrity of the process is called into question, even given the fact that most of the witnesses gave testimony harmful to Appellant, the judgments of conviction are reversed and remanded for new trial.

PROCEEDINGS UNDER THE GOVERNMENT CODE TO RECOVER COURT COSTS AND FEES FROM INMATES’ TRUST ACCOUNTS ARE CIVIL PROCEEDINGS IN NATURE AND DUE PROCESS IS SATISFIED IF THE INMATE RECEIVES NOTICE AND THE OPPORTUNITY TO BE HEARD AFTER THE FUNDS ARE WITHDRAWN

Harrell v. State, No. 07-0806, Texas Supreme Court, June 5, 2009 - This is a case which was appealed out of the Amarillo Court of Appeals in which a TDC inmate challenged the convicting trial court’s order which directed TDC to withdraw money from Appellant’s trust accont to satisfy court costs and court-appointed attorney’s fees.  The Amarillo Court held that there was no mechanism by which a defendant could appeal a withdrawal order and dismissed for lack of jurisdiction.  The Supreme Court holds that the trial court order in question is a civil post-judgment collection action which is distinct from the underlying criminal judgment.  It simply seeks to seize money under the authority of Government Code section 501.014(e) which includes seeking and seizing funds owed as a result of orders for child support, TDHS financial assistance or any other court costs, whether criminal or civil.  Thus, these orders are most substantively civil than criminal.  Insofar as the level of due process the inmate might be entitled to, the Court holds that an inmate is entitled to notice that the court has entered an order and that he should be afforded an opportunity to be heard.  Neither of these occur before the money is withdrawn.  Appellate review should be by appeal as in any other civil post-judgment enforcement action.  

So, this is cold comfort for the inmate.  The trial court does not attempt to make any finding on the record that the indigent defendant is capable to paying the costs.  Rather, the trial court simply enters the order and it’s up to the inmate, without counsel, to challenge the manner of recoupment and the amount.  The Court noted in its opinion that several of the orders of withdrawal sought to seize money greatly in excess of what had been included in the formal judgment.  It’s doubtful whether the mechanism approved within the body of the opinion will be sufficient to ensure accuracy of the amounts sought for seizure.  As I see it, this is just one more contingent event that defense counsel must now anticipate when counseling a client who is surely going to prison, either as the result of a plea bargain or trial.        

MAY 29, 2009

TRIAL COURT COMMITS REVERSIBLE ERROR BY SUBMITTING AN UNINDICTED OFFENSE TO THE JURY, EGREGIOUS ERROR DUE TO CONSTITUTIONAL ENTITLEMENT TO NOTICE OF CHARGES

Woodard v. State, No. 14-08-00288-CR, Houston Court of Appeals (Fourteenth District), May 14, 2009 - Appellant was indicted for murder and case proceeded to trial.  Although Appellant was charged only with murder, the trial court submitted a charge which authorized the jury to convict Appellant of conspiracy to commit aggravated robbery and robbery.  No objection was made to the charge.  The jury acquitted Appellant of murder but convicted him of conspiracy to commit aggravated robbery.  Punishment was set at 29 years confinement.  In a single point of error, Appellant claims that the trial court violated his constitutional right to know the charges brought against him by submitting an offense for the jury’s consideration of which he had not been indicted and which was not a lesser included offense of murder. 

Held: Reversed and remanded.  In order to establish jury charge error, it is necessary to show that there was an actual error in the charge which, due to the fact that no objection was made, caused “egregious harm” to Appellant. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985).  Egregious harm is fundamental error which affects the “very basis of the case” or “deprives the defendant of a valuable right” or “vitally affects his defense at trial.” Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App. 2006). 

Here, the State conceded error since conspiracy to commit aggravated robbery was not included within the indictment.  Due process guarantees a defendant with the right to notice of the charge brought against him. Schmuck v. U.S., 489 U.S. 705 (1989).  Thus, a trial court has no jurisdiction to convict a defendant of an offense for which he has no notice or which is not included within the indictment.  Of course, this rule does not apply to lesser-included offenses.  Therefore, the appeals court is bound to conduct the Hall test in order to determine if conspiracy to commit aggravated robbery is a lesser included offense of murder. See Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007).  This is done by comparing the elements of the exact offense as alleged in the body of the indictment with the elements of conspiracy to commit aggravated robbery.  Because the elements of each are so far apart and each requires a multitude of facts distinct and separate from each other, the first step of the Hall test cannot be satisfied and the analysis stops right there.  Having found error and further determining it to be fundamental due to this being a void judgment, the court finds that Appellant has been deprived of a valuable right.  The conviction and sentence is set aside and cause remanded to the trial court.  Because Appellant cannot be retried for murder due to an acquittal, the State is free to review what evidence exists to determine if he can be prosecuted for any other offense arising out of the operative facts.

TRIAL COURT ORDER SUPPRESSING EVIDENCE SEIZED AS A RESULT OF A WARRANTLESS SEARCH OF APPELLANT’S MOTEL ROOM UPHELD; NO PROBABLE CAUSE TO SUPPORT WARRANTLESS ENTRY INTO ROOM

State v. Hoffman, No. 04-08-00614-CR & 04-08-00615-CR, San Antonio Court of Appeals, May 13, 2009 - Appellant was charged with tampering with evidence and possession of a controlled substance.  The facts showed that the police received information from a C.I. that one Triana was implicated in selling crack cocaine from a motel room.  The C.I. did not have firsthand knowledge of this; rather he was relying on representations of a third party.  The C.I. passed this information on to the police.  Subsequently, Triana was arrested for driving while license suspended and incarcerated in the local hoosegow.  Law enforcement then went to this motel room where Triana stayed.  Triana shared this motel room with Appellant who was an employee of the motel and as part of her compensation, was provided with a motel room.  The investigators asked the manager to assist them in walking up to Appellant’s motel room.  As they approached, they saw Appellant outside of the room, talking to someone.  According to the investigators, when Appellant saw the police, she abruptly went inside her room.  Investigators testified they heard a toilet flushing.  They rushed inside, sans warrant, and saw Appellant standing next to a toilet.  They retrieved a packet of crack cocaine from inside the toilet bowl. 

At the suppression hearing, Appellant argued that the officers did not have probable cause to enter the room under exigent circumstances.  The trial court received evidence and granted the motion to suppress.  The State appealed this order.  On appeal, the State urged that the search was valid because Appellant’s conduct in running into the motel room after she saw the investigators walking up was enough to conclude that some criminal activity was afoot, due to their knowledge that Triana was a known drug user and that the information they had been given indicated that he had been selling drugs out of the motel room.  Secondly, once they heard the toilet flushing, exigent circumstances justified the warrantless entry and seizure. 

A search of a home without a warrant is presumptively invalid. Payton v. New York, 445 U.S. 573 (1980).  However, if police have probable cause and there exists exigent circumstances to make a warrantless entry, there is no Fourth Amendment violation. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2003).  In other words, there has to be probable cause to enter or search the enclosed structure in the first place and then, and only then, sufficient exigent circumstances must exist to permit the intrusion.  The same facts which give rise to determination of probable cause are relevant to determination of exigent circumstances. Parker v. State, 206 S.W.3d 593, 600-01 (Tex.Crim.App. 2006). 

Here, the information that the investigators possessed does not add up to anything that comes close to probable cause.  This was classic double hearsay which came from an uncorroborated source.  The police had no information at all on Appellant or whether she was involved in any criminal activity at all.  Indeed, the investigators, by their own admission, went to the motel to room to ask questions and “nose around.”  They admitted that they did not have sufficient informaton to support a search warrant for the search of Appellant’s room.  Since a residence is provided with greater protection that an automobile or parking lot, the demand for a finding of probable cause cannot be supplanted by the lesser standard of reasonable suspicion, that being suggested by the State.  In support of this holding, the San Antonio Court refers the reader to the case of State v. Steelman, 93 S.W.3d 102 (Tex.Crim.App. 2002) (the odor of burnt marijuana within a residence, coupled with a tip that drug dealing was taking place at the residence, did not establish probable cause to allow officers to enter the premises and conduct a search without a warrant.)  The State, having failed to establish probable cause as a necesssary predicate to warrantless entry, cannot establish that the trial court erred in ordering suppression of the controlled substance.  Trial court order of suppression affirmed.

TRIAL COURT’S FAILURE TO GIVE “MISTAKE OF FACT” INSTRUCTION IN COURT’S CHARGE ERROR BUT DID NOT CAUSE ”ACTUAL” HARM, CONVICTION AFFIRMED

Durden v. State, No. 06-08-00223-CR, Texarkana Court of Appeals, May 15, 2009 - Appellant was indicted for the theft of copper wire.  At trial, his story was that he was walking in a field on his way to a church to do some work when he came upon a wheelbarrow full of copper wire.  Thinking that the folks down at the church could use some of it, he helped himself to the wire and began to push it down the trail.  He met up with a Marshall police officer who suspected that Appellant’s story was unbelievable.  Appellant, who had just recently spent six months in the county jail for theft, was promptly arrested and indicted for theft.  At trial, he requested a mistake of fact defense which would have instructed the jury that should the jury agree with Appellant’s version of events, then his explanation would necessarily negate the intent necessary to constitute theft (intent to deprive the owner permanently) and he should be found not guilty.  The trial court denied Appellant’s request, finding that submission of the requested instruction was nothing more than an “inferential rebuttal” and therefore not justified.  In other words, the jury, having heard all the evidence in the case, did not need this particular instruction since, if they do believe Appellant, will necessarily find that he didn’t have the intent to deprive the owner of the copper wire permanently and therefore, acquit.  Needless to say, after having heard all the evidence, including the fact that Appellant had previously worked for the owner and that the open field where Appellant was stopped and arrested was nowhere near the owner’s business (where the copper came from), the jury convicted Appellant. 

On appeal, the Texarkana Court indeed holds that Appellant’s testimony, although contradictory and hard to accept at times, raised the issue of mistake of fact and justified the submission of the instruction.  It is required by both statute and case law. Texas Penal Code Ann. § 8.02; Egger v. State, 817 S.W.2d 183, 187 (Tex.Ct.App.-El Paso 1991, pet. ref’d.), citing to Willis v. State, 790 S.W.2d 307 (Tex.Crim.App. 1990); Bang v. State, 815 S.W.2d 838 (Tex.Ct.App.-Corpus Christi 1991, no pet.) citing to Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991).  However, when considering the harm, the court looks to all the evidence admitted, argument of counsel and any other relevant information in the record.  The court notes that Appellant was found to have a flashlight in his pocket when arrested and that normally, one does not carry a flashlight in broad daylight going to do charity work at a church.  The owner of the purloined copper testified that the theft occurred at night.  Appellant’s prior conviction didn’t help.  And the arresting officer believed that Appellant tried to avoid him prior to the detention, thus supporting the inference of guilt through flight.  So, the court was faced with what is actually meant by Almanza when it speaks of reversing in the face of “some harm.”  The Texarkana Court equates “some harm” with “actual harm” and in so doing notes that

“the jury was instructed that in order to find Durden [Appellant] guilty, it must find that Durden appropriated property ‘with intent to deprive the owner of the property . . .’  As in Sands [v. State, 64 S.W.3d 488, 496 (Tex.Ct.App.-Texarkana 2001, no pet.)], this requirement allowed the jury to consider whether Durden mistakenly believed that the copper wire was abandoned or he took the property with the intention of depriving the owner of that property.  Durden had his day in court.  The jury heard Durden testify.  His attorney cross-examined the State’s witnesses and presented a vigorous closing argument.  Ultimately, the jury disbelieved Durden’s testimony that he lacked the specific intent to commit this theft.

While in some instances the denial of a proper defensive instruction would cause harm by preventing the defendant from arguing an issue, i.e., self-defense, here, Durden fully argued theat he thought the wire was abandoned and that he had no intent to deprive the owner of the property.  While the trial court did err by denying the mistake of fact instruction, the jury’s verdict inferentially resolved the issue that would have been otherwise required via the requested instruction.  It would require us to mere conjecture to conclude, on this evidentiary record, that Durden suffered any actual harm.  The standard of review to assess jury charge error requires, however, more than mere conjecture.  We conclude Darden suffered no actual harm as a result of the trial court’s error.

There was a vigorous dissent filed by Justice Moseley which I believe has the better measure of the majority opinion.  Justice Moseley points out that the court fails to appreciate the efficiacy and power of having an instruction within the court’s charge and how a defense lawyer can utilize just such an instruction to his client’s benefit by directing the jury to that instruction.  Remember that jurors seize on anything authorized and approved by the judge.  It doesn’t take conjecture to realize the benefit to the defendant when he has a specifically crafted instruction which requiresd the jury to acquit the defendant should they find for the accused on a key factual point.  Secondly, the dissent chides the majority for blindly adhereing to stare decisis (Sand case) when there is no real value in following a case with a questionable holding which was never taken up for further review by the Court of Criminal Appeals.  Let’s hope that Durden’s counsel does exactly that.  This is a case that needs to go up.  What would the court have said had Durden been charged with murder, testified fully to the facts which he believed gave him the right to exercise self-defense and then the court denies the instruction?  Would the court have held that simply because the accused was permitted to testify to his belief in self-defense was reason enough to find no actual harm, particularly when statutory authority and case law requires submission of the requested instruction?  The Texarkana court’s reasoning renders § 8.02 a nullity, something I don’t think the legislature had in mind. 

CONSENT TO PERMIT LAW ENFORCEMENT TO REVIEW NUMBERS IN CELL PHONE LIKEWISE, IN ABSENCE OF EXPRESS LIMITATIONS ON THAT CONSENT, PERMITS FULL SEARCH OF ALL DATA ON CELL PHONE, INCLUDING PHOTOS AND OTHER IMAGES

Lemons v. State, Nos. 12-08-00074 & 12-08-00075-CR, Tyler Court of Appeals, May 13, 2009 - Rather than go into a detailed summary of the case, this appeal stands for the general proposition that even when an individual voluntarily consents to a search, an officer’s authority to perform the search with not without limits. The extent of the search is limited to the scope of the consent given. Florida v. Jimeno, 500 U.S. 248 (1991); May v. State, 582 S.W.2d 848 (Tex.Crim.App. [Panel Op.] 1979).  The standard for measuring the scope of a suspect’s consent for purposes of Fourth Amendment analysis is that of objective reasonableness; that is, what the typical reasonable person would have understood from the exchange between the officer and suspect.  The question if not determined on the basis of subjective intentions of the consenting party or the subjective interpretation of the officer.  It’s really up to the suspect to inform law enforcement that he wants the consensual search to be conducted within set limits.  For example, should the police request to search the interior of a car, it’s up to the suspect to inform the police that his consent does not extend to suitcases, bags or other closed containers. 

In the cases at bar, police had suspicion that Appellant had been alone with a minor and that he may have engaged in sex with the girl.  While being questioned by the police, one of the investigators asked to look at his cell phone and review the numbers Appellant might have called.  Appellant responded by handing his phone to the officer.  After examining the call log, the officer pressed the “camera” button.  He then observed several photos stored in the phone’s memory, one of which was a nude shot of the fourteen-year-old girl he was suspected of having been with.  This photograph formed the basis of one of the two cases (possession of child porno) brought against him.  An objective review of the record convinces the appeals court that Appellant’s relinquishment of the cell phone to the officer was done with “unbridled consent” for the officer to make a full and complete search of the cell phone.  It was up to Appellant to voice some objection to the manner and scope of the search and this he did not do.  Thus, the State proved by clear and convincing evidence that Appellant’s consent given to the officer who searched the contents of the cell phone was done so freely and voluntarily.  

MAY 19, 2009

OFFICER LACKED PROBABLE CAUSE TO ARREST ACCUSED FOR POSSESSION OF A “CLUB” BECAUSE ARTICLE WAS IN REALITY A “TIRE BUDDY” WHICH HAD NOT BEEN MODIFIED AS A WEAPON

State v. Ortiz, No. 13-08-00156-CR, Corpus Christi Court of Appeals, April 23, 2009 - Appellant was charged with possession of cocaine found during a search of his car.  He filed a motion to suppress, alleging that the arresting officer lacked probable cause to arrest him for possession of a club, a prohibited weapon.  At the hearing, the arresting officer testified that he stopped Appellant for having an expired registration sticker.  As he approached the car, Appellant opened the door to get out.  That was when the officer spotted a wooden club stuffed between the door and the driver’s seat.  The officer then arrested Appellant for possession of a prohibited weapon, searched him, placed him in the squad car and commenced to search the vehicle.  That search later turned up the cocaine which formed the basis of the prosecution.  On cross, the officer testified that the club was in reality a “tire buddy,” a device used to thump tires to make sure that they were properly inflated.  He agreed with defense counsel that there has been no alterations to the club nor had it been modified.

Defense counsel argued that since the statute in question (§ 46.01(1) Penal Code) defines a club as an instrument that is specifically designed, made or adapted for the purpose of inflicting serious bodily injury by striking a person with the instrument, and since there was utterly no evidence that the tire buddy in question had ever been modified or adapted in such a way to make it into an instrument whose sole purpose was to inflict serious bodily injury, then the officer could not possibly have had probable cause to arrest Appellant for possession of a prohibited weapon.  The trial court granted the motion to suppress and the State appealed.

In upholding the trial court, the appeals court referred to the case of Meza v. State, 652 S.W.2d 369, 372 (Tex.Crim.App. 1983) which holds that there must be some evidence that a “club” is an instrument that has been specifically designed, made or adapted for the purpose of inflicting serious bodily injury or death in order to survive a legal sufficiency challenge.  The mere inference that Appellant could have used the tire buddy as a deadly weapon is not enough to sustain a finding of a prohibited weapon.  Because the State could produce no evidence to show that the tire buddy in question had ever been specifically designed or adapted to make it into a deadly weapon and taking into consideration that the State’s own witness, the arresting officer, conceded that the tire buddy had undergone no modifications, its own case undermined any finding of probable cause.  Trial court’s order of suppression affirmed.

WARRANTLESS SEARCH OF PROBATIONER’S RESIDENCE, SUPPORTED BY REASONABLE SUSPICION AND AUTHORIZED BY A CONDITION OF PROBATION WAS REASONABLE WITHIN THE MEANING OF THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION

Townes v. State, No. 04-08-00392-CR, San Antonio Court of Appeals, April 22, 2009 - Appellant was indicted for possession of a machine gun.  After Appellant’s motion to suppress was denied, he was permitted to enter into a plea bargain which allowed him to appeal the suppression issue.  This appeal ensued.

Appellant was on misdemeanor probation.  One of the conditions of his probation was that he “shall consent to a search of your person, residence or any vehicle which you operate, occupy or possess at any time by any [probation officer] to determine if you are in compliance with the conditions of community supervision.”  Appellant’s probation officer received information that Appellant may have had drugs and weapons in his residence.  The probation officer agreed with the police to carry out the search.  Police and the probation officer arrived at Appellant’s residence but could not gain access into his rented room because the landlord did not have a key.  Appellant was later located and transported to his apartment.  Although Appellant was not handcuffed, he was not free to leave until the “probation check” was completed.  Appellant was requested to produce the key to his room which he did.  Upon entry into his room and the resulting search, a disassembled machine gun and a revolver were located. 

On appeal, Appellant argued that the State failed to demonstrate probable cause or reasonable suspicion to establish that he possessed contraband in his residence.  He also argued that the State had failed to establish that his consent to provide the key to his apartment was freely and voluntarily given since any consent deriving from his probation agreement was coerced and involuntary.  Lastly, he claimed that the search of his apartment was illegal since it was not conducted for probationary purposes.  He bifurcated these arguments in order to apply them both to the Texas and U.S. Constitutions.  However, due to the fact that appellate counsel confined his substantive analysis to that of the Fourth Amendment only, the appeals court holds that he effectively waived his right to claim that consent was unlawful under Tamez v. State, 534 S.W.2d 690 (Tex.Crim.App. 1976) which held that any consent provided by an accused as a result of a probation agreement to submit to warrantless searches was not given freely or voluntarily.  Thus, this aspect of consent will have to wait for another day.  The appeals court instead turned to the U.S. Supreme Court case of U.S. v. Knights, 534 U.S. 112 (2001). 

In Knights, the Supreme Court held that it did not need to determine if Knights, who was also on probation, had waived any Fourth Amendment rights by accepting probation.  Rather, it decided that under a “totality of circumstances” approach, a warrantless search supported by reasonable suspicion and authorized by a condition of probation was reasonable within the meaning of the Fourth Amendment.  There was no need to make any kind of consent determination. 

Taking its cue from Knights, the San Antonio Court concluded that 1) the information relied upon by law enforcement and the probation department was sufficient for a finding of reasonable suspicion and 2) that the condition of probation which authorized this kind of search was not overbroad and bore a reasonable relationship to the underlying offense.  One of the goals of probation is protection of the public.  Because Knights recognizes that probationers are “more likely than the ordinary citizen to violate the law . . . probationers have even more incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary citizen because probationers are aware that they may be subject to supervision and face revocation of probation and possible incarceration . . .” Knights, 534 U.S. at 120, conditions which authorize these kind of warrantless searches are constitutionally reasonable, permissible and do not violate the Fourth Amendment.

I don’t know if I would term this as a “stealth case” but it comes close.  The San Antonio court did not cite to any other related Texas case which has analyzed the constitutionality of these probation-authorized searches.  Of course, it sidestepped Tamez which would have required it to determine if the probationer’s consent was acquired by clear and convincing evidence as opposed to a preponderance as is required by the Fourth Amendment standard.  Tamez remains good law it appears and the practitioner, should he or she be confronted by a same or similar situation, must remember to raise the Texas constitutional standard both at the trial and appellate level in order to avoid Knight’s unforgiving reach of authority.

HEARSAY STATEMENT ADMITTED UNDER RULE 803(5) AS “RECORDED RECOLLECTION ” PERMITTED BASED ON WITNESS’S INABILITY TO REMEMBER AND HIS ADOPTION OF PRIOR RECORDED STATEMENT

Brown v. State, No. 05-07-01706-CR, Dallas Court of Appeals, April 30, 2009 - This was a cruelty to animal prosecution which took up over 1,000 pages of testimony and involved over 160 exhibits.  Appellant was convicted of having set fire to his dog, a pit bull named “Mercy.”  The facts are not so important that we have to go into them.  Suffice it to say that the four year sentence handed down probably wasn’t enough.  Appellant raised sufficiency points on appeal which were overruled but his complaint involving a violation of Rule 803(5) bears some examination.

Forest Pyle was an acquaintance of Appellant who had given a damaging statement to Animal Control as well as the Dallas County Grand Jury about Appellant’s involvement in the crime.  However, by the time he was called to trial to testify on behalf of the State, he was experiencing memory failure.  When asked specific questions by the State, his stock reply was “Not that I remember” or “Still don’t remember, sir.”  It was at this point that Pyle was instructed to review his prior recorded statements.  When Pyle again stated that the recorded statements failed to jog his memory.  He further acknowledged to making those statements at a time shortly after the incident in question.  The State moved to introduce into read into evidence for all purposes the written statement to Animal Control and his Grand Jury testimony under Rule 803(5), Recorded Recollection.

Rule 803(5) permits a memorandum or record concerning a matter about which the witness once had personal knowledge but now has insufficient recollection to enable a witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect the knowledge correctly.  If admitted, the record or memorandum may be read into evidence before the jury but may not be admitted into evidence unless tendered by an adverse party. 

The trial court noted that Pyle evidenced a complete inability to remember the events of the crime on the day it happened.  It also noted that Pyle’s handwritten statement made to Animal Control was done 12 days after “Mercy” was set on fire by Appellant and that his Grand Jury testimony was given a tad over a month after the incident.  These were sufficiently close in time to the facts of the case to render them reliable.  Thus, it was not error in permitting the State to read into the record the contents of both statements.

MAY 6, 2009

PRESERVATION OF ERROR - WHERE DEFENDANT DESIRES TO ELICIT SUBJECT MATTERS THAT TEND TO IMPEACH A WITNESS’S CHARACTER FOR TRUTHFULNESS, HE IS NOT REQUIRED TO SHOW THAT HIS CROSS-EXAMINATION WOULD AFFIRMATIVELY ESTABLISH FACTS SOUGHT (BIAS, MOTIVE, ILL WILL, ANIMUS)

State v. Holmes, et al; Nos. PD-0453-07 through 0460-07, Court of Criminal Appeals, April 29, 2009 - Appellees were all defendants out of the Harrison County Court At Law facing prosecution for DWI.  The trial court announced that it would not permit cross-examination of the law enforcement officer who administered the Intoxlyzer 5000 due to the fact that it was taking judical notice of the validity of the underlying science of the instrument.  On all but one of the eight cases, defense counsel filed an extensive motion to cross-examine the State’s expert on the operation of the Intoxilyzer 5000.  Included in each motion was a list of eight areas of concern about the internal workings of the machine.  The trial court denied the motions.  In the eighth case invoving a defendant by the name of Woodall, defense counsel dictated a short statement in the record registering his objection to the trial court’s ruling but it was nowhere as detailed or exact as the written objections filed on the other seven cases.  Each defendant was found guilty and appealed.

On appeal, the Texarkana appeals court held that each appellant had preserved error, that complete denial of the right to cross-examine was error, that the right to present a defense is a fundamental element of due process of law and that the violation of this right amounts to constitutional error.  The Texarkana Court also determined that it could not conclude beyond a reasonable doubt that the error did not contribute to the convictions and accordingly, it reversed all eight cases.  The State filed its PDR on each case, alleging that the defendants had failed to properly preserve error by establishing what the substance of the breath-test expert would have been. 

Rule 103(a)(2) limits the scope of issues which may be appealed when evidence is limited or prohibited.  Error may not be predicated on a ruling which excludes evidence unless, inter alia, the substance of the evidence was made known to the court by an offer or was apparent from the context within which questions were asked.  An offer of proof may be in  Q & A form or in the form of a concise statement by counsel.  An offer of proof when submitted within a concise statement by counsel must state the relevance of the evidence unless the relevance is apparent so that the appeals court can determine whether the evidence is relevant and material. 

Often, problems arise when the complaint is made about the “credibility of the witness’s testimony” and the “witness’s credibility.”  The former refers to the substance of the evidence to be presented by the witness, the latter refers to personal characteristics of the witness.  And different preservation rules apply under Rule 103.  Whereas the rule requires a level of specificity detailing the relevance of evidence barred and a description of that evidence, where a defendant desires to elicit those subject matters that impeach the witness’s character for truthfulness (malice, ill will, bias, motive, animus toward the accused), he is not required to show that his cross-examination would necessarily establish the facts sought.  He may simply demonstrate to the trial court that he desires to delve into those areas that touch on the witness’s capacity for truthfulness and that he intends to use those factors to cross-examine the witness. 

On the other hand, under Rule 103, when a party seeks to challenge the crediblity of the witness; in other words, intends to challenge the substance of the witness’s testimony, opinions and conclusions, he must perfect a proper bill and make a statement of what he would prove or introduce some evidence which would establish the basis for his request to impeach. 

The Court finds that defense counsel’s oral recitation in the record was simply not specific enough to establish a proper bill of exception while the written motions to cross-examine adequately fulfilled the requirements of Rule 103. 

A BLANKET WAIVER OF ALL HABEAS CORPUS RELIEF WHEN A DEFENDANT ENTERS INTO A PLEA BARGAIN IS NOT ENFORCEABLE AS TO CLAIMS THAT THE DEFENDANT COULD NOT REASONABLY HAVE KNOWN ABOUT AT THE TIME OF HIS WAIVER

Ex parte Reedy, No. AP-75,862, Court of Criminal Appeals, April 29, 2009 - Applicant pled guilty to capital murder and, pursuant to a plea bargain, was sentenced to life in prison.  The written plea admonishments showed a negotiated plea bargain, waiver of all statutory rights, waiver of appeal and a blanket waiver of the right to file a post-conviction application for writ of habeas corpus.  Applicant did not appeal his plea or sentence but later, filed an art. 11.07 writ of habeas corpus, claiming a number of violations and error.  Among his claims were allegations that his plea was involuntary, that his attorneys coerced him into pleading guilty, he was denied effective assistance of counsel, he was denied his right to appeal and that the indictment was fundamentally defective.  The trial court recommended that all claims be dismissed because of Applicant’s waiver of same at the time of his plea.  The Court of Criminal Appeals set the case for discussion concerning the scope of these waivers that are becoming increasingly popular. 

The Court reiterates a long-standing rule: a defendant, pursuant to a plea bargain, may waive his right to file an application for writ of habeas corpus so long as the waiver is made voluntarily, knowingly and intelligently.  But if the record shows that the defendant is raising claims that he could not have reasonably anticipated or known about, a blanket waiver if not enforceable.  The Court focuses on Applicant’s complaints about his lawyers.  The key here is what exactly did Applicant know of or was aware of at the time of his plea in open court. 

Some claims are predicated on facts that did not exist or were not within the applicant’s knowledge or comprehension, despite due diligence and assistance of counsel.  Claims such as actual innocence based on newly discovered evidence or suppression of material, exculpatory evidence by the State may qualify as such.  Ineffective assistance of counsel often fits this category.  When it comes to these types of claims, it cannot be said that an applicant’s waiver was made knowingly since he was unaware, through no fault of his own, of the existence of these facts.  Therefore, as a general rule, the claim of ineffective assistance of counsel is of such magnitude that it can render a plea of guilty involuntary, especially when facts show inadequate investigation of bad advice upon which the applicant relied.  Thus, the trial court must ascertain and entertain these claims of ineffective assistance of counsel before it can then make the determination of whether applicant was aware of the underlying facts comprising his claim for relief, in addition to ascertaining the actual ineffective assistance claim on the merits. 

So, the hard and fast rule is now this: a waiver of post-conviction habeas corpus relief will not be enforceable to prohibit an applicant from claiming that his guilty plea was involuntary as a result of ineffective assistance of counsel, i.e., that but for counsel’s deficient performance, he would not have pled guilty but would have elected to proceed to trial.

APRIL 21, 2009

EVIDENCE MERITS ENTRAPMENT INSTRUCTION, CASE REVERSED FOR NEW TRIAL

U.S. v. Theagene, No. 08-50160, Fifth Circuit Court of Appeals, April 15, 2009 - Appellant was convicted of one count of bribery of a public official for making cash payments to an IRS revenue officer.  Defendant-Appellee was a medical doctor who fell way behind on his business and personal taxes.  He arranged an installment payment with a revenue officer but failed to keep up with it.  When the IRS sent him notice of enforcement, he again responded with a large $14,000 payment toward the arrearage.  The IRS decided that this response was inadequate and began levying his bank accounts.  After the IRS took this action, Defendant then sent the IRS an unusual package which consisted of a check in the amount of $2,000, a request to lift the levies and $500 in cash with a sticky note that said “token.”  Suspecting that this was an attempt to bribe an IRS agent, the agent in charge instructed Geiger, another revenue officer, to contact Defendant by phone, tape the call and see if Defendant would incriminate himself.  During the phone call, the agent continually turned the conversation around to the $500 payment.  Defendant at first denied that the cash payment was meant to influence the agent but was only a “good faith” payment meant to show his sincerity in getting his tax situation resolved.  Defendant attempted to talk about getting the levies lifted but Geiger continued to vector the conversation to the cash payment and finally asked Defendant if the payment was meant for him.  When Defendant did not come right out and affirm that, Geiger then said that he would just go ahead and keep the money and not apply it to Defendant’s balance.  Geiger then suggested they meet at a restaurant to discuss his taxes and the cash payment more.  Defendant agreed.  Later, Geiger and Defendant agreed that Defendant would pay the agent 10% of the total business tax debt and eventually paid out $16,000 to Geiger in return for the agent’s promise to lift the levies and eliminate his business and personal tax delinquencies.  At trial, Defendant based his defense solely on the theory of entrapment but the trial court refused to instruct the jury on the defense. 

The critical determination in an entrapment defense is whether criminal intent originated with the defendant or with government agents.  The government may not implant in an innocent person’s mind the disposition to commit a criminal act and then induce the commission of the crime so that a prosecution can be had. Entrapment entails a burden shifting construct.  The defendant must first make out a prima facie case that the government’s conduct created a substantial risk of entrapment.  In order to do this, he must show his lack of predisposition to commit the offense and some governmental involvement and inducement more substantial than merely affording an opportunity to commit a crime.  A defendant who meets this burden is entitled to an entrapment defense and then the government shoulders the burden of proving beyond a reasonable doubt that the defendant was disposed to commit the offense before he was first approached by government agents.  In the case of a requested instruction which was tendered to the court, the appeals court views the evidence in the light most favorable to the defendant and then decide whether there was enough evidence presented with respect to predisposition and inducement so as to merit the instruction.

Viewing the evidence in the light most favorable to the defendant, the Court finds that there is sufficient evidence to support his argument that there is a lack of predisposition and governmental inducement.  The Court noted that Defendant never overtly made any mention of a bribe until directly confronted with the suggestion by the revenue agent.  His efforts to remedy his tax situation by paying over $20,000 also mitigated any argument that he was predisposed to commit the crime.  Further, his actions taken to facilitate the resumption of the installment payout, evidenced by his inclusion of a cancelled check, is additional evidence of a lack of predisposition.  This is not to say that there is insufficient evidence that Defendant did not energetically join in with Geiger’s suggestion of a 10% payout in return for the agent’s lifting of levies and cancellation of the outstanding tax balances.  But that is not the test.  Geiger’s statements during the recorded phone conversation and at the restaurant meeting lend credence to Defendant’s argument that he was induced to engage in bribery payments.  Geiger’s admission on cross-examination that he felt that Defendant did not intend to bribe him with the $500 cash payment during the first part of the telephone conversation weighed heavily in the court’s conclusion that Geiger’s persistent, repeated questioning of the purpose of the cash payment weighed heavily against a finding of predisposition.  Defendant consistently told Geiger and other agents to go ahead and apply the $500 to his tax bill, only to be met with Geiger’s continued reference to the cash as a possible cash reward to him.  It was not until Geiger stated that he understood the $500 to be a bribe that Defendant suggested that they meet to discuss his situation.  In light of all the evidence, the government inducement analysis favors allowing the jury to determine whether Defendant was entrapped or not.  Finding reversible error, the court remands for new trial on the merits.

FALSE ACCUSATIONS MADE BY COMPLAINANT IN CHILD SEXUAL ASSAULT CASE ADMISSIBLE AS IMPEACHMENT TO PROVE BIAS AGAINST ACCUSED AND TO SHOW PURPORTED MOTIVE IN MAKING FALSE ACCUSATION

Hammer v. State, No. PD-0786-08, Court of Criminal Appeals, April 8, 2009 - Appellant was prosecuted sexual assault of a child.  The evidence showed that the complainant was a very troubled young girl who had an extensive history with CPS for running away from home and inappropriate relationships with boys.  She was removed from her mother and placed with Appellant, her father.  She testified at trial that on more than one occasion, her father plied her with liquor and had sexual intercourse with her.  Appellant showed at trial that the complainant rebelled against his strict rules and that she didn’t like having to stay at home and obey her father.  She didn’s like his rules which limited her telephone use and the requirement that she get good grades.  She was constantly angry at her father.  There was a lot of fighting that went on.  She knew that Appellant had been to prison before but she denied telling him that she would see to it that he went back to prison.

On cross-examination of the complainant, defense counsel attempted to introduce evidence which established that complainant had told the sexual assault nurse that someone other than Appellant had sexually assaulted her and that she lied about this because she believed her father wanted to prove that she had been having sex with a boy with whom she had run away with previously.  This information was contained in medical records.  The records also showed that complainant was constantly angry at her father.  The records also showed that she had implicated an uncle who abused her at the age of 13.  Defense counsel had a witness who would testify that the complainant had told her that she falsely implicated a third party of having raped her to protect the identity of her boyfriend who Appellant had prohibited her from seeing.  Appellant argued that this evidence was admissible under Rule 412 Rules of Evidence as showing the witness’s bias and credibility.  The trial court refused to permit the complainant to be cross-examined with this evidence nor would he allow the other defense witness from testifying.  He concluded that the evidence ran afoul of the rape-shield rule of Rule 412.

Judge Cochran, writing for a unanimous court, noted that trials involving sexual assault raise particular evidentiary and constitutional concerns because credibilty of both the complainant and defendant are crucial to resolution of ultimate issues of guilt or innocence.  Thus, Rule 403 should be used sparingly to exclude otherwise relevant admissible evidence that might bring to bear on the credibility of the parties to the case.  Under Rule 404(a)(3), a defendant may always offer evidence of truthfulness of any witness and Rule 608 permits a witness’s general character for truthfulness to be shown through either opinion or reputation testimony.  But the witness’s character may not be attacked by the introduction of specific bad acts.  Those bad acts, under Rule 404(b), must have some relevance independent of character conformity. 

Nevertheless, the rules of evidence do permit a witness to be cross-examined on specific acts of conduct when they are used to establish specific bias, self-interest or motive for testifying.  Under Rule 613(b), the opponent must first cross-examine the witness with the circumstances surrounding the bias, interest or motive and, if the witness denies the circumstances or motive, the opponent may introduce extrinsic evidence to prove the bias or motive.  Rule 404(b) permits either party to introduce extraneous evidence to prove motive.  Since the rules expressly permit the introduction of specific acts to prove bias or motive, the Court concludes that they also permit the introduction of a witness’s prior, purportedly false, accusations.  Therefore, if the proponent seeks to introduce this bad act evidence to shed light on the motive of the witness to testify against the defendant and the evidence directly involves circumstances existing between the complainant and defendant, then the evidence is admissible under existing evidentiary rules. 

Thus, the evidence of complainant’s purported false accusation against a third party concerning a rape and her anger against her father, thereby making sense out of the defensive theory that the complainant falsely accused her father of rape so to escape his strict rules, was admissible to prove the complainant’s bias against Appellant and to show her purported motive in falsely accusing him of sexual assault.  Although Rule 613(b) does not contain a specific provision for allowing admission of bias or motive evidence, the rule presumes the right to impeach on this basis since the reason is so obvious.  Furthermore, Rule 412 is properly invoked to permit the introduction of the same evidence since that rule contains a “motive or bias” exception to the bar against evidence of the complainant’s previous sexual conduct (”rape shield law”).  The Court concludes that the trial court abused its discretion in preventing Appellant from cross-examining the complainant about the contents of medical records when Appellant took her to the hospital to be examined for possible sexual abuse, offering those records into evidence if the complainant denies their accuracy and the testimony of the third party who would describe how the complainant told her that her sexual activities were consensual with her boyfriend, that she had false accused an innocent person of same and that all of her mother’s boyfriends had sexually assaulted her (the latter being justified under the ”doctrine of chances” theory).  Case remanded to the appeals court for a harm analysis.

ERRONEOUS EXCLUSION OF PORTIONS OF DISPUTED WITNESS TESTIMONY TO BE READ TO JURY IN RESPONSE TO ART. 36.28 REQUEST; ERROR IN ADMISSION OF CHARACTER CONFORMITY EVIDENCE

Fox v. State, No. 14-08-00004-CR, Fourteenth Court of Appeals, Houston, March 31, 2009 - Appellant was charged with indecency with a child.  While jury was deliberating, the jury indicated that there was a dispute about the complainant’s recollection of what happened during both touching incidents.  The trial court refused to permit defense counsel’s cross-examination of the complainant, replete with contradictory statements, to be read back to the jury.  The trial court allowed only the prosecutor’s direct examination.  The appeals court held that since the jury’s request to hear disuted testimony was not limited to direct examination but rather, to what the witness described, what he saw, where he went, Appellant’s cross-examination proffer was responsive to the jury’s request.  Since credibility was crucial to the jury’s determination of guilt and the cross-examination and its answers were highly probative of Appellant’s culpability, the trial court’s exclusion of this testimony was harmful and justified reversal for new trial.

Appellant also challenged the introduction of Appellant’s cross-dressing and homosexual behavior as a youth.  Suffice it to say that no amount of explanation by the State could possibly justify this evidence as anything other than character assassination evidence.  Because the appeals court finds it to be character conformity evidence with highly prejudicial potential, this is one more basis for reversal.  

APRIL 8, 2009

COUNSEL NOT REQUIRED TO PURSUE EVERY CLAIM OR DEFENSE, REGARDLESS OF MERIT, VIABILITY OR REALISTIC CHANCE OF SUCCESS

Knowles v. Mirzayance, No. 07-1315, U.S. Supreme Court, March 24, 2009 - Appellee was indicted for and tried for capital murder, having stabbed and shot his cousin.  At trial, he entered a plea of not guilty by reason of insanity.  Under California law, the first phase of the trial determines guilt or innocence.  The viability of a defendant’s insanity defense is considered in the second phase.  At the first phase, the guilt-innocence, defense counsel put on significant mental health evidence in an attempt to defeat the theory that the murder was premeditated.  The jury rejected this defense and the expert testimony underlying the defense outright, convicting Appellee.  Trial counsel’s plan was to present the same evidence of Appellee’s struggles with mental illness and couple that with the testimony of his parents who would describe Appellee’s long history of depression and mental illness.  Trial counsel hoped that this would serve dual purposes: address the insanity defense and create mitigating evidence which might spare the client the death penalty.  However, on the eve of trial, the parents informed defense counsel that they did not wish to testify.  Trial counsel, realizing that the jury had already rejected his mental health experts’ testimony and now knowing that he could not rely on the parents’ collective testimony, advised Appellee, after he had consulted with his experienced co-counsel, to withdraw the not guilty by insanity defense (NGI).  Appellee agreed and did so.  He was sentenced to the least severe punishment available to the jury: 25 years to life imprisonment. 

After sentencing, Appellee filed his writ, claiming that trial counsel was ineffective for convincing him to waive his insanity defense and proceed to sentencing without presenting his experts’ testimony.  The California state courts denied his writ but the federal district court and the Ninth Circuit Court of Appeals granted Appellee a new trial, concluding that the lawyer’s advice to abandon the NGI was deficient performance since there was no tactical advantage to doing so and secondly, that Appellee had “nothing to lose” by going forward on the NGI evidence at the NGI phase of the trial.  The Ninth Circuit also pointed out that an experienced trial lawyer would have used more persuasion on the parents when they informed him that they did not desire to testify on behalf of their son.  Esssentially, the Ninth Circuit concluded that defense counsel’s failure to pursue the insanity defense constituted deficient performance because abandonment “secured no actual tactical advantage.”

The Supreme Court, per Justice Thomas, holds that the state courts’ determination that counsel was not deficient was not an “unreasonable application of clearly established Supreme Court law.”  In so holding, the Court points out that the test is not whether the Ninth Circuit or the federal district court disagree with the state court or whether Appellee had “nothing to lose” by going forward with his NGI defense.  It is not an “unreasonable application of Supreme Court authority” simply because a state court declines to apply a rule of law that might be recognized by another court but not yet established by the Supreme Court.  And, the Supreme Court has never recognized anything similar to the “nothing to lose” standard espoused by the Ninth Circuit for evaluating Strickland ineffective assistance claims.  In the absence of any Supreme Court precedence directly on point to a particular claim of ineffective assistance, the Court will apply the Strickland standard as is. 

Under the facts of this case, it was not unreasonable for the state courts to conclude that trial counsel’s advice to forego the NGI defense was anything other than carefully thought out and considered.  As the Supreme Court saw it, the NGI defense was doomed to fail.  The Court has never required defense counsel to pursue every claim or defense, regardless of its merit, viability or realistic chance of success, as long as counsel’s reasons are firmly established in the record and made after throrough investigation of law and facts relevant to plausible options. 

Finally, as to the Ninth Circuit’s observation that defense counsel didn’t “lean hard enough on the parents” in order to persuade them to testify, the Supreme Court notes that “competence does not required an attorney to browbeat a reluctant witness into testifying, especially when the facts suggest that no amount of persuasion would have succeeded,” as the record showed here. 

NEGATIVE VICTIM IMPACT EVIDENCE INADMISSIBLE UNLESS THERE IS RELEVANCE TO CIRCUMSTANCES OF CRIME OR TO DEFENDANT’S BACKGROUND OR CHARACTER

Hayden v. State, No. PD-0860-07, Court of Criminal Appeals, April 8, 2009 - Appellant was convicted of stabbing a fellow homeless person under I-45.  At punishment, she wished to present evidence that decedent was a registered sex offender.  The trial judge refused to permit the introduction of this evidence, either as “negative victim impact” evidence or as rebuttal evidence. 

Held: Trial judge’s decision to bar admission of this evidence was not an abuse of discretion and therefore, the ruling of inadmissibility upheld.  Victim character and victim impact evidence, both good and bad, is admissible at the punishment phase of a trial if the factfinder may rationally attribute the evidence to the accused’s “personal responsibility and moral culpability.”  However, evidence which draws distinctions between the victim and other members of society based on the victim’s worth or morality is usually excludable under Rule 403.  This is true regardless of whether the tendered evidence suggests that the victim was of greater or lesser worth than other members of society.  The rule is best exemplified by the Court’s analysis in Goff v. State, 931 S.W.2d 537, 556 (Tex.Crim.App. 1996).  There, the Court held that evidence of the victim’s homosexuality was inadmissible to show the jury a defensive theory that the defendant did not deserve the death penalty because he had killed a less valuable member of society.  The evidence was simply not relevant to anything that might mitigate the defendant’s punishment, particularly when it was shown that defendant wasn’t even aware that the victim was gay.  As in Goff, because the victim’s status as a regisered sex offender was not relevant to any issue about defendant or the crime itself, it was not an abuse of discretion to prevent its admission before the jury. 

ERRONEOUS CHARGE BUT NO EGREGIOUS ERROR, NO ERROR IN TRIAL COURT’S CONSIDERATION OF OTHERWISE INADMISSIBLE EVIDENCE IN A PRESENTENCE REPORT AND INVITED ERROR BY DEFENSE COUNSEL HARMLESS

Jiminez v. State, No. 04-08-00121-CR, San Antonio Court of Appeals, March 18, 2009 - In an otherwise mill-run case, there are a few issues here worth short discussion.  To begin, Appellant was tried and convicted as a party to a murder.  He raised the affirmative defense of self-defense and defense of third party.  In the court’s charge, the jury was instructed that Appellant was under a duty to retreat in exercising defense of third party.  This requirement is logically inconsistent with the exercise of self-defense of third party and should never be included.  In sum, there is no duty on the defendant’s part to retreat when defending a third party.  However, upon review of various factors in the case (state of evidence, strength of defensive issues, argument of counsel), the appeals court fails to find egregious error and overrules that particular point.

Appellant also complained that the trial court considered improper evidence included within a presentence report.  He objected to the inclusion in the PSI that this was Appellant’s fourth retrial on the charge.  Such evidence is normally inadmissible but the law is well settled that the rules of evidence do not apply to PSIs and the trial court may consider evidence that could not have been introduced at the punishment phase of the trial due to subject matter.  Thus, the trial court did not err in its admission of the PSI or its reliance on same.  Lesson?  Try like hell to avoid a PSI when going to the court on punishment and throw your lot in with the jury.

Finally, Appellant complained about an ”outburst” made by a witness during trial.  For some unfathomable reason, defense counsel called the victim’s mother to the stand.  After defense counsel had concluded direct examination and passed the mother to the State for cross, the following occurred:

Ms. Aguillon:  May I say something?

Defense Counsel:  Sorry, ma’am?

Ms. Aguillon:  Well, I got to say it.  Mr. Jimenez [Appellant] planned the murder.  I’m sorry, but he did.

Trial Court:  The jury will disregard the statement of the mother of the victim who is obviously –

[Defense counsel moves for mistrial which trial court denied.]

The appeals court holds that Appellant failed to make a showing on appeal that the blurted-out statement “interfered with the jury’s verdict” or that the trial court’s prompt instruction to disregard did not remove whatever prejudice or taint caused by the outcry.  But we all know why the Court overruled the point: was defense counsel really that dumb to have called the mother of the murder victim to the stand?

UNOBJECTED-TO JURY CHARGE WHICH INSTRUCTS JURY TO ASSESS BOTH FINE AND IMPRISONMENT CONSTITUTES EGREGIOUS HARM

Quesada v. State, No. 04-07-00615-CR, San Antonio Court of Appeals, March 18, 2009 - Appellant was prosecuted for misdemeanor possession of marijuana, convicted and sentenced to a year confinement, probated for 24 months and a $1,800 fine.  The punishment charge, which was not objected, instructed the jury to assess both fine and imprisonment and, in addition, there had to be a minimum 72-hour term of confinement. 

Here, the charge did not track the correct law which requires that the jury be given the option of assessing the less severe punishment of a fine only or of perhaps only one day in jail rather than a minimum three, but not both.  The failure to instruct correctly on the full punishment range, including the minimum punishment options prescribed by statute, constitutes egregious harm which deprived Appellant of a fair and impartial proceeding.  Cause remanded to trial court for new trial on punishment.  Always pay attention to the specific language of the punishment charge and watch out language that instructs in the conjunctive (”and”) as opposed to the disjunctive (”or”).

MARCH 26, 2009

*SIGNIFICANT DECISION - INTRODUCTION OF EXTRANEOUS OFFENSES HAVING SIMILARITY IN ELEMENTS PERMISSIBLE TO REBUT DEFENSIVE THEORY, EXTRANEOUS OFFENSES ALSO ADMISSIBLE UNDER WIGMORE’S “DOCTRINE OF CHANCES”

De La Paz v. State, Nos. PD-0292-08 & PD-0295-08, Court of Criminal Appeals, March 25, 2009 - Appellant was a City of Dallas narcotics officer who was indicted on two counts - tampering with physical evidence for knowingly making false statements in a police report and aggravated perjury for making the same false statement before a grand jury.  The case has a complicated factual history to it.  Suffice it to say that the gravaman of charges brought against Appellant arose from two statements he made in relation to a “buy-bust” arrest that he and other Dallas PD officers carried out.  An unfortunate suspect was set-up by one of Appellant’s confidential informants with phony drugs and sent in to make the delivery.  There were four officers stationed outside the suspect’s place of business to observe the transaction.  None could testify that they actually saw the C.I. meet face-to-face with the suspect except Appellant.  Even the videotape contradicted Appellant’s version of the transaction.  At trial, Appellant’s defense was that he did not commit perjury nor did he put anything false into a police report.  His explanation was that he was in a better position to see exactly what was going on.  Another part of his defense was that the other witnesses were not being truthful about what transpired.  One of the other police officers testified that he was asked by Appellant to back him up with the claim that they had seen the dope transaction go down (when none had, in fact, ever occurred).  That particular officer had also been indicted for the identical two counts but since he was cooperating with the D.A.’s Office, he was expecting leniency, such as dismissal, once the case against Appellant was concluded.  As to the innocent suspect who was set up, Appellant claimed that he necessarily had to remain consistent in his claims of innocence because he derived a large cash settlement with the city as a result of the incident. 

After Appellant had testified, the State sought to introduce two similar extraneous acts attributable to Appellant.  Both of these incidents involved very similar “buy-busts” where he used the same C.I. and made exact statements; that is, he saw a dope deal go down that no one else saw.  The State argued that due to the tenor of his opening statement where he claimed that all the State’s witnesses were lying and due to the fact that the State had to prove not only the falsity of the statements but that Appellant knew that they were false, then the extraneous offenses were relevant and material to Appellant’s intent and knowledge of falsity.  The trial court permitted the introduction of the two extraneous offenses, Appellant was convicted and sentenced to five years TDC.

On appeal to the appeals court, it reversed the conviction, holding that the misconduct embodied in the two extraneous offenses were not relevant to rebut Appellant’s claim that the other police officer was lying because Appellant did not accuse him of lying until cross-examined by the prosecutor.  As a general rule, the State cannot elicit an alleged defensive issue it then wishes to rebut with extraneous offense evidence.  Second, it held that Appellant’s attack on the other police officer or any other State’s witnesses did not “open the door” and create a defensive issue for extraneous offenses because “allowing extraneous offenses to rebut a challenge to the credibility of the State’s witnesses would totally eviscerate Rule 404(b) and the policies underlying the prohibition against the admission of such evidence.”   The State filed its motion for rehearing in which it argued that it did not elicit or manipulate Appellant into raising any defensive issue.  All it had done was ask him if the other police officer had lied, something that Appellant had alluded to several times in his direct examination while on the stand.  Secondly, it argued that the extraneous acts were admissible under the Doctrine of Chances.  The appeals court denied the motion for rehearing and the Court of Criminal Appeals accepted PDR on two grounds: were the extraneous acts admissible to rebut the implied theory that everybody but Appellant was lying and therefore highlight whether Appellant knew that the statements were false and secondly, were the extraneous offenses admissible under the Doctrine of Chances.

The Court laid out the standard of review which we all know by now.  But it is vital to remember this: as long as the trial court’s ruling is within the so-called “zone of reasonable disagreement,” there is no abuse of discretion and the trial court’s ruling stands.  Secondly, if the trial court’s evidentiary ruling is correct on any theory of the law applicable to the facts of the case, it will not be disturbed even if the trial judge gave the wrong reason for his right ruling.  

In its analysis, the Court held that the recent case of Bass v. State, 270 S.W.3d 57 (Tex.Crim.App. 2008) provided authority in support of the trial court’s admission of the extraneous acts.  In Bass, the Court held that defense counsel’s opening statement itself ”opened the door” to the introduction of extraneous offenses when counsel claimed that defendant was not the kind of guy to commit sexual offenses against children and that he was the “real deal.”  In contrast, the Court noted that the instant case presented an even more compelling example for admission, based upon defense counsel’s exhortations where he claimed that the other police officer’s testimony would be tainted due to his desire to stay out of prison and in reliance on his immunity agreement with the State.  And it important to note that the three witnesses who testified to the “buy-bust” - Appellant, the second police officer and the wrongfully arrested suspect all testified to diametrically opposed versions of what happened.  Someone had to be wrong or worse, lying.  The extraneous offenses were not introduced to show that Appellant was a liar in general; rather, to show that he had documented two other substantially similar fabrications surrounding very similar factual situations.  He claims that he sees a drug deal “go down” that no one else does.  That makes the extraneous offenses admissible in order to rebut Appellant’s claim that everyone else but him is lying about the drug deal.  Remember that the basis of Appellant’s defense is that what he wrote in the offense report was true and what he testified to at his trial was true.  He had no intent to deceive and he did not deceive.  And that defensive posture makes the extraneous offenses admissible under the Doctrine of Chances.

The “doctrine of chances” holds that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.  The rule derives from Wigmore’s Treatise on Evidence.  A good example of how the doctrine operates is as follows:

If A while hunting with B hears a bullet from B’s gun whiz past his head, he is willing to accept B’s bad aim.  This might be a conceivable explanation.  But if shortly afterwards, the same thing happens again, and if on the third occasion A receives B’s bullet in his body, an immediate inference is permissible as a probability if not a certainty and that is that B shot at A deliberately because the chances of an inadvertent shooting on three successive similar occasions are extremely small. 

The doctrine of chances has been applied in various courts in various and sundry fact situations.  For example, the chance that a man innocently collects on his murdered business partner’s insurance decreases significantly when it is learned that he collected on his murdered wife’s insurance policy just three years before. United States v. York, 933 F.2d 1350 (7th Cir. 1991); see also Fox v. State, 115 S.W.3d 550, 559-60 (Tex.Ct.App.-Houston [14th Dist.] 2002, pet. ref’d.) 

In the instant case, Appellant’s defense - “I saw what no one else saw” - becomes significantly less probable when it is learned that he has made the same claim on two other situations involving nearly identical facts.  It may be that Appellant did in fact have a better angle to see the transaction or that simply everybody else is mistaken, but the stark repitition of the claim makes his story “curiouser and curiouser” the more it happens.

“Under the ‘doctrine of chances,’ evidence of such a highly unlikely event being repeated three different times would allow jurors to conclude that it is objectively unlikely that Appellant was correct in his Vega offense report or that he was truthful in his testimony that he saw contact between Alonso [the other police officer] and Vega.  Whether the extraneous-offense evidence was admissible under Rule 404(b) to rebut the assertion of innocent intent is at least subject to reasonable disagreement.  As Auric Goldfinger, the infamous James Bond villain, said, ‘Once is happenstance.  Twice is coincidence.  The third time it’s enemy action.’  Under the ‘doctrine of chances,’ no inference about Appellant’s general character for truthfulness is required.  The fact that Appellant reported three separate ‘I saw what no one else saw’ drug deals decreases the likelihood that Appellant saw any such drug deal and therefore increases the likelihood that he knew that his statement about seeing one between Vega and Alonso was false.”

Finding no abuse of discretion in the admission of the two extraneous acts and no Rule 403 undue prejudice, the appeals court is reversed and the case remanded to that court for consideration of Appellant’s remaining points of error.  Thus, the “doctrine of chances” has now received the stamp of approval from the Court of Criminal Appeals and will serve as the basis for the admission of new, potentially explosive evidence. 

WARRANTLESS SEIZURE OF METHAMPHETAMINE PARAPHERNALIA FROM VEHICLE PERMITTED UNDER AUTOMOBILE EXCEPTION TO WARRANT REQUIREMENT

Keehn v. State, No. PD-0002-08, Court of Criminal Appeals, March 25, 2009 - Police, in their investigation of a home burglary, came upon a car parked in Appellant’s driveway.  Inside the car was equipment which, in the officers’ opinion, was the type used in the production of methamphetamine.  One of the officers who saw the tank entered the vehicle without permission and seized the tank.  It tested positive for ammonia.  Appellant was arrested from within his house and indicted for possession of anyhydrous ammonia with intent to manufacture methamphetamine.  Appellant claimed that the seizure was unlawful because it was without a warrant and there was no emergency or consent.  The State claimed that the seizure could be sustained under the “plain view” doctrine.  The trial court upheld the seizure under “plain view” doctrine, a conclusion adopted by the appeals court.  Appellant argued that even if the “plain view” doctrine could be applied, it simply did not fit the facts because the seizure was done without a warrant into a close space.  The appeals court ultimately held that even if the “plain view” doctrine did not expressly authorize the warrantless entry into the vehicle, the automobile exception to the warrant requirement did.  And this was made part of the appeals court opinion even though the trial court did not base its decision to deny suppression on this specific theory. 

On PDR, Appellant made two arguments; that is, the appeals court erred when it concluded that the warrantless entry into the vehicle was justified under the “plain view” doctrine and two, that the appeals court was incorrect in its application of the automobile exception.  Appellant persuasively argued that the police simply were not justified in entering the van and seizing the tank under the “plain view” doctrine because they had no right to access within the vehicle in the absence of exigent circumstances.  However, the Court did agree with the appeals court when it held that the automobile exception applied.  Under this theory, law enforcement may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband.  There are two justifications for the warrantless seizure: the ready mobility of the car and that the owner has a lessened expectation of privacy in the car since it is subject to pervasive regulation. see California v. Carney, 471 U.S. 386 (1985); Pennsylvania v. Labron, 518 U.S. 938 (1996).  So, the automobile exception gave the officer the right to enter the van and seize the propane tank.  The van was readily mobile and was subject to regulation.  And based on his training and investigative experience concerning the production of methamphetamine, the officer had probable cause to believe that the tank contained anhydrous ammonia.  The seizure of the tank was lawful under the automobile exception to the warrant requirement.  Court of Appeals affirmed.

MARCH 19, 2009

OFFICER EXCEEDS AUTHORITY BY HANDCUFFING SUSPECT DURING TEMPORARY DETENTION AND REACHING INTO HIS POCKET TO RETRIEVE WALLET

Baldwin v. State, No. PD-1630-07, Court of Criminal Appeals, March 11, 2009 - A deputy sheriff was flagged down by a middle-aged woman who told the officer that she had spotted a white male dressed in all black walking around the neighborhood and looking in windows.  The sheriff was familiar with the woman citizen.  She did not recognize the white male as being from the neighborhood.  The deputy did not know if the suspect had been looking into houses from the sidewalk or had been walking up to windows to look within.  The area had experienced a series of burglaries of late and both the officer and the woman were aware of that.  Neither the woman or the officer had any knowledge or facts that the white male was involved in the reported burglaries.  The deputy drove off in the direction given by the woman and a few blocks down the street, he saw a man, later identified as Appellant, walking down the sidewalk.  He was dressed in all black.  At first, when the officer and the male made eye contact, Appellant began to walk at a faster gait.  The deputy got out of his patrol car and walked up to Appellant.  He told Appellant about the citizen’s complaint, asked where he lived and asked for ID.  Rather than respond to the deputy’s questions or provide ID, Appellant asked the officer why he wanted to look at his ID.  According the officer, Appellant was acting nervous, anxious and was looking around.  Based on his past experience and as part of his procedure under similar circumstances, he interpeted this “nervous” behavior as that condcut indicative of assault or flight and as a result, the deputy “feared for his life.”  He handcuffed Appellant for “officer safety” and then asked Appellant where his ID was.  Appellant replied it was in his right pocket.  The deputy considered that answer to be consent for him to reach inside Appellant’s pants pocket to retrieve the ID.  He removed the driver’s license from a clear plastic case and spotted a small, plastic bag filled with white powder which was lodged behind the driver’s license.  The substance field-tested positive for cocaine.  Appellant denied ownership.  He was indicted for possession of a controlled substance.  His pre-trial motion to suppress was denied by the trial court.

On appeal to the appeals court, the trial court’s ruling was affirmed.  The court of appeals found that the circumstances that were relayed to the officer by the citizen and the things observed by the officer when he detained Appellant before handcuffing were sufficient to give rise to reasonable suspicion to detain Appellant for further investigation.  The appeals court also found that the momentary search into Appellant’s pants pocket was a “minimal, necessary and reasonable encroachment upon Appellant’s liberty under the circumstances.” 

On PDR to the Court of Criminal Appeals, that court reverses the appeals court.  In so doing, Judge Keller, writing for a unanimous court, notes that it need not decide whether the deputy carried out an arrest or an investigative detention to decide whether there existed reasonable suspicion to support the investigative detention.  The bottom line is this: there was no valid basis for an arrest and even assuming that there was a valid basis for an investigative detention, there was no corresponding valid basis for reaching into Appellant’s pocket to retrieve his wallet.  In reviewing the facts which were known to the deputy at the moment of his encounter with Appellant, it’s clear that all the officer had was a description of someone who matched a description given by the woman-citizen and that a vague report of some kind of criminal activity had been reported.  But the officer didn’t know if the suspect had actually been looking into windows or looking at houses from the sidewalk or street.  Although Appellant walked at an increased pace when he saw the deputy, acted nervous when being questioned and asked why he should be required to produce his ID, these facts fall far short of constituting the relatively high level of suspicion required to effectuate an arrest, much less a search incident to an arrest.  Arguably, these facts might sustain a finding that the deputy carried out a valid investigative detention.  However, a limited pat-down Terry search is limited to those situations where the circumstances present a threat to officer safety.  Moreover, the patd-down, “plain feel” search is limited to a search of outer clothing for objects “who contour or mass makes its identity immediately apparent” as contraband. see Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993).  For the same reason that the deputy lacked probable cause to arreset, he lacked probable cause to conduct a search for non-weapon contraband.  And even in the different context of an investigative detention, he nevertheless exceeded the scope of a patd-down search by reaching into Appellant’s pocket.  Finally, the court concludes that the deputy’s understanding that Appellant’s answer about where his ID was located was objectively unreasonable and does not serve as consent to a search as was carried out here.

TRIAL COURT LACKED AUTHORITY TO ENTER DEADLY WEAPON FINDING BASED ON IMPLIED JURY FINDING

Kromah v. State, No. 14-08-00412-CR, Houston Court of Appeals [14th District], March 3, 2009 - Appellant was convicted of aggravated robbery and sentenced to 25 years imprisonment.  The trial court entered a deadly weapon finding.  On appeal, Appellant raised factual insufficiency in support of his identity as the assailant and that the trial court lacked authority to enter the deadly weapon finding because the jury failed to make a specific deadly weapon finding as to the use of a deadly weapon.  The Houston appeals court agrees and orders deletion of the deadly weapon finding.

Appellant was charged with having threatened the occupant of a house with a knife in order to get his keys and drive off in the victim’s car.  Witnesses testified that Appellant held a knife to the victim’s throat while demanding the keys.  Appellant was indicted for aggravated robbery.  The indictment alleged the victim’s advanced age as the aggravating element, not the use of the deadly weapon.  Trial was to a jury.  Although the indictment contained allegations that Appellant had used his hands and a knife as deadly weapons, neither of these paragraphs were read to the jury nor was Appellant required to plead to them.  The jury found Appellant guilty as charged in the indictment.  The application paragraph in the court’s charge did not contain a reference to a deadly weapon.  Neither the guilt-innocence or punishment charges contained a special issue for the jury to find the use of a deadly weapon.

The trial court may not enter a deadly weapon finding unless the jury has made an express finding of same. Lafleur v. State, 106 S.W.3d 91, 92 (Tex.Crim.App. 2003).  When the jury’s verdict does not include a finding of guilt “as charged in the indictment,” the trial court may look to the application paragraph for the lesser included offense and whether the application paragraph evidenced the use of a deadly weapon.  If the deadly weapon allegation in that portion of the jury charge matches the deadly weapon allegation in the indictment for the charged offense, then the trial court may enter a deadly weapon finding based on the jury’s verdict on the lesser included offense.  But what the trial court may not do is enter a deadly weapon finding on an implied finding. see Polk v. State, 693 S.W.2d 391 (Tex.Crim.App. 1985.)  In the present case, the jury found Appellant guilty of aggravated robbery “as charged in the indictment,” but its reference to the indictment necessarily encompasses the aggravating element of the victim’s age, not use of a deadly weapon.  None of the application paragraphs referenced the use of a deadly weapon.  Finally, the jury was never requested to enter a finding on a deadly weapon special issue at either stage of the trial.  Therefore, under Polk and its progeny, neither the trial court or an appeals court can conclude that the jury made an express finding on the use of a deadly weapon.  Appellant’s second point of error is sustained.  The trial court is ordered to delete its entry of Appellant’s use of a deadly weapon.

MARCH 6, 2009

FAILURE TO REQUEST ACCOMPLICE WITNESS INSTRUCTION DEFICIENT PERFORMANCE, PREJUDICE TURNS ON WHETHER THERE IS SUBSTANTIAL AMOUNT OF NON-ACCOMPLICE TESTIMONY AND WHETHER THE RECORD REVEALS A RATIONAL BASIS FOR JURY TO REJECT OR DOUBT THAT NON-ACCOMPLICE TESTIMONY

Davis v. State, No. PD-0613-08, Court of Criminal Appeals, February 25, 2009 - Appellant was originally indicted for burglary of a habitation, double enhanced.  At trial, Appellant’s co-defendant, an accomplice as a matter of law, testified on behalf of the State.  Trial counsel failed to request an accomplice witness instruction and the trial court failed to include same on its own initiative.  Appellant filed a motion for new trial and attached to the motion an affidavit from trial counsel admitting to the failure to request an accomplice witness instruction as an oversight and conceding that there was no trial strategy involved.  The trial court refused to hold an evidentiary hearing.  On appeal, Appellant claimed a number of errors, among them the trial court’s failure to include an accomplice witness instruction, ineffective assistance of counsel for counsel’s failure to include the accomplice instruction and an abuse of discretion for failing to afford Appellant an evidentiary hearing on his claim of ineffective assistance of counsel. 

The Amarillo Court of Appeals initially affirmed the conviction but on rehearing, sustained the claim of abuse of discretion and abated the appeal so that Appellant could make a record on his ineffective assistance claim.  The hearing was held at the trial court level.  Both Appellant and the State submitted proposed findings of fact and conclusions of law.  The trial court adopted the State proposed findings and conclusions, among them finding that counsel’s failure to request an accomplice witness instruction was not deficient performance and that even if it was, there was sufficient non-accomplice evidence in the record which connected Appellant to the commission of the crime.  Thus, Appellant failed to establish either prong of the Strickland standard.  In its opinion on rehearing, the Amarillo Court, per Chief Justice Quinn, adopted the trial court’s findings and conclusions in toto.  Appellant filed his PDR, asserting that he had established trial counsel deficient performance and that the Court of Appeals had misconstrued the prejudice prong of the Strickland test by converting it into a simple sufficiency test.  The Court of Criminal Appeals granted the petition.

Held: Conviction affirmed but Court of Appeals and trial court were incorrect about their conclusion concerning deficient performance.  Moreover, the Court disagrees with the appeals court’s reasoning on the prejudice prong.  The failure to request an accomplice witness instruction under these facts was deficient perforance per se, particularly since the successful prosecution of Appellant depended so heavily on the testimony of the co-defendant accomplice.  Further, when determining the question of whether there is a reasonable probablility that, but for counsel’s deficient performance, the result of the guilt stage would have been different will not turn on simply whether the non-accomplice evidence sufficed to connect the defendant to the crime charged or even whether such evidence would itself support the verdict of guilt.  Rather, the question of prejudice will turn on whether there was 1) substantial non-accomplice evidence and 2) whether there is a rational basis upon which the jury could reject, disregard or doubt that evidence.  In this case, the Court holds that Appellant failed to sustain his burden under the prejudice prong when considering the substantial amount of non-accomplice evidence, detailed in the opinion, and the fact that there was no rational basis upon which the jury could have disregarded such evidence.  Thus, the trial court did not abuse its discretion in denying the motion for new trial and the appeals court did not err in upholding the trial court’s denial of that motion for new trial. 

*So, I won a few battles here but lost the war.  I knew that J. Quinn’s cursory sufficiency analysis was flawed and it does appear that the Court adopted a couple of suggestions included within my briefing to the Court in its new prejudice model.  I honestly thought we had a shot at prevailing on the second Strickland prong but I’ll admit there was simply too much non-accomplice evidence. 

FAILURE ON STATE’S PART TO INCLUDE WITHIN THE RECORD COPIES OF WARRANTS OR AFFIDAVITS IN SUPPORT OF DEFENDANT’S ARREST RENDERS THE RECORD INSUFFICIENT TO SUPPORT A WARRANTLESS ARREST, SUPPRESSION ORDERED.

Paulea v. State, No. 14-07-01044-CR, Houston Court of Appeals, February 10, 2009 - A police officer observed an unattended vehicle parked in a lane of traffic.  Appellant, who was across the street, signaled to the officer that the car was his and was about to move it.  The officer treated the incident as a traffic violation and ran the license plates.  The officer learned that someone associated with the car had four outstanding city warrants.  The officer detained Appellant in the patrol car until verification of the warrants could be made.  When the officer learned that the warrants were for Appellant, he was placed under arrest for those warrants.  Appellant could not provide a drivers license.  An inventory of Appellant’s car revealed marijuana and methamphetamine.  Appellant was indicted for felony possession of a controleld substance.  He filed a motion to suppress, alleging that the drugs were seized pursuant to a warrantless search and seizure.  At the hearing, the State did not produce the outstanding warrants.  Instead, the officer testified that parking in a lane of traffic and driving without a license are violations of the law.  The trial court denied the motion to suppress but the appeals court reverses.

When the State seeks to justify an arrest based on warrants, it is incumbent on the State to produce the warrant or warrants and the supporting affidavit to determine probable cause. Garrett v. State, 791 S.W.2d 137, 140 (Tex.Crim.App. 1990).  However, if the warrant is not produced, this is not necessarily fatal.  The question then becomes whether there is sufficient evidence on the record to justify a warrantless arrest. Etheridge v. State, 903 S.W.2d 1, 19 (Tex.Crim.App. 1994). 

At the suppression hearing, the officer’s testimony consisted of hearsay and double hearsay as to the existence of probable cause as contained in the affidavits in support of the traffic warrants.  At most, this evidence simply confirmed the existence of the warrants and that was about it.  Because the State failed to produce the actual warrants for inspection by the trial court, then the arrest based on the authority of the warrants cannot stand unless the State produced sufficient evidence to support a warrantless arrest under Chapter 14 of the Code of Criminal Procedure.  Because the officer’s testimony failed to establish a violation of § 545.363 (driving slowly as to impede traffic) or that of sec. 42.03 Penal Code (obstruction of highway), the appeals court cannot conclude that the sparse evidence in the record provides the necessary factual support to give an officer probable cause to arrest Appellant for violation of either provision of the Traffic Code or Penal Code.  The arrest was unlawful and evidence seized as a result of the search of Appellant’s car should have been ordered suppressed.  Trial court’s judgment is reversed and remanded for new trial.

TRIAL COURT’S REFUSAL TO INSTRUCT JURY TO DISREGARD IMPROPER PROSECUTORIAL CROSS-EXAMINATION OF APPELLANT NECESSITATES REVERSAL

Bowley v. State, No. 07-08-0210-CR, Amarillo Court of Appeals, March 2, 2009 - Appellant was indicted and tried for felony DWI.  He and his counsel did not stipulate to the prior DWIs.  While on the stand during direct examination, Appellant explained to the jury that he committed the underlying DWIs because they had occurred and were true but that he was not guilty of the pending felony.  Clearly, he was attempting to convey to the jury that he owned up to his previous troubles and took his punishment but that he was not guilty of the instant offense, thus hoping to enhance his credibility.  In an effort to discredit him, the State interrogated Appellant about his prior DWIs and then asked him if, in fact, he was pleading not guilty now “because we couldn’t agree on a plea agreement that you preferred.”  Defense counsel immediately objected.  The trial court sustained the objection but refused to instruct the jury to disregard the blatantly improper question. 

In reversing the judgment of the trial court, C.J. Quinn points out it’s  axiomatic that references to plea negotiations are not permitted by reference to specific evidentiary rules as well as being excludable under Rule 403 since its relevance is minimal and unfair prejudice great.  The other problem with the conduct of the trial court is that even though the sustension of an objection to a question like this one may stop the prosecutor in his tracks from asking similar questions, the mere sustaining of the objection, without more corrective actions taken, does nothing to inform the jury that it should not consider the evidence for any purpose whatsoever.  Indeed, in absence of an appropriate prophylactic instruction, jurors are free to consider this kind of question for any purpose they see fit.  Finally, there is the issue of prosecutorial impugnity; that is, whether failure to reverse and remand for new trial would only encourage this kind of conduct on the part of the State.  C.J. Quinn believes that reversal is required in this case since he notes that the State continued to assert at the trial court level as well at the appellate level that this kind of interrogation was permitted to test a defendant’s credibility, in defiance of clear admonishments from the Court of Criminal Appeals that this kind of cross-examination is improper and subject to reversal. see Prystash v. State, 3 S.W.3d 522 (Tex.Crim.App. 1999) and Smith v. State, 898 S.W.2d 838 (Tex.Crim.App. 1995).  The State interjected highly prejudicial information before the jury during the guilt-innocence phase of Appellant’s trial and the trial court held as much.  However, when called upon to do the right thing and instruct the jury to disregard, it failed to do so.  This constitutes harmful error and reversal is required.  Cause remanded for new trial.

FEBRUARY 12, 2009

COMPLAINANT’S POST-OFFENSE THREATS MADE AGAINST THIRD-PARTIES, SIMILAR TO ALLEGATIONS MADE AGAINST DEFENDANT, ARE RELEVANT AND ADMISSIBLE FOR IMPEACHMENT PURPOSES AT TRIAL

Billodeau v. State, No. PD-0969-07, Court of Criminal Appeals, February 11, 2009 - Appellant tried to present evidence at trial which would show that the named complainant in an aggravated sexual assault case made threats, similar to those he made against Appellant, to his neighbors.  These threats against his neighbors were made after the date of the alleged offense but before trial.  The trial court ruled that the impeachment evidence was inadmissible because the statements were made after the date of the alleged offense and because defense counsel was unable to show the judge a case exactly on point. 

The Court holds that even though Rule 608(b) generally prohibits a witness from being impeached with specific acts, the Confrontation Clause sometimes trumps the rule.  The rules of evidence takes this into account with Rule 613(b) which permits impeachment to show bias or interest with certain specific acts.  However, the witness to be impeached must be given the opportunity to admit or deny the event or circumstance.  If the witness denies such, then extrinsic evidence is admissible to show this perceived bias, motive or interest. 

In many sexual assault cases, the only evidence linking the accused to the crime is the testimony of the complainant alone.  Therefore, the credibility of the parties is paramount.  And because possible animus, motive, ill will of a prosecution witness who testifies against a defendant is never considered to be collateral or an irrelevant inquiry, the defendant is entitled to show any relevant fact, with certain restrictions not applicable here, that might tend to establish this ill will, motive, bias, interest or animus toward the accused.  It is immaterial that the acts which give rise to the impeachment evidence occurred after the commission of the offense.  Both periods before and after the indicted incident are to be used to evaluate the complainant’s bias and motive for testifying.  The trial court abused its discretion in denying Appellant the opportunity to pose the key questions to the child complainant about the threats he made against his neighbors.  Because the Court finds that the inability of Appellant to present his defense fully affected a substantial right and is therefore harmful.  Cause remanded to trial court for whole new trial.

TRIAL COURT EMPOWERED TO PLACE A DEFENDANT ON PROBATION, EVEN THOUGH JURY ASSESSES A PRISON SENTENCE OR REJECTS A PROBATION PLEA AND ASSESSES PRISON TIME

Ivey v. State, No. PD-0552-08, Court of Criminal Appeals, February 11, 2009 - In a bit of a twist, it is Appellant who argues that he should not be placed on probation since he did not request it from the jury.  In this case, Appellant was charged with misdemeanor DWI.  He was convicted at a jury trial and elected to go to the jury for punishment.  He specifically waived his right to ask for probation from the jury, opting instead for a jail term and fine only.  The jury sentenced him to 35 days in county jail and a $2,000 fine.  However, the trial judge then suspended imposition of the sentence, placed Appellant on probation for two years and suspended all but $500 of the fine.  The trial judge also imposed a thirty-day jail sentence as a condition of probation, ordered community service and further ordered that Appellant place an interlock device on his car.  Appellant objected and appealed, arguing that the judge’s actions were not permitted by Art. 42.12 of the Code of Criminal Procedure and that the court’s actions interfered with his statutory right to have a jury impose punishment.

The Court engages in a rather detailed review of the history behind current probation law, analysis which is not required here.  However, the Court notes that a reading of the current version of Art. 42.12 makes clear that there is nothing in any of its provisions which expressly prohibit the trial judge from suspending a jury-assessed sentence and imposing community supervision just because the jury assessed punishment and did not recommend probation.  Of course, in the event that the jury were to recommend probation, the court would have been duty bound pursuant to statute, to place Appellant on probation.  Further, prior law expressly did, at one time, permit the trial court to suspend execution of the sentence and place an offender on probation.  Suffice it to say that given the fact that statute expressly provides for the jury’s authority to make a binding recommendation with respect to probation should not be read as diminishing the trial court’s power and authority to grant it, even in the absence of such jury recommendation.  Regardless of whether the jury or a defendant desire to see probation imposed, the trial court’s discretion in the matter is unbridled, subject to certain delineated exceptions (sentence in excess of ten years, deadly weapon finding, offense specifically exempted from consideration of straight probation). 

DOCKET SHEET FINDING SUFFICIENT TO SHOW THAT MOTION FOR NEW TRIAL WAS “PRESENTED” TO TRIAL COURT

Stokes v. State, No. PD-0417-06, Court of Criminal Appeals, February 11, 2009 - Appellant was convicted of felony theft and his lawyer filed a motion for new trial.  No hearing was held on the motion and it was overruled by operation of law.  Appellant appealed the case, arguing that the trial court abused its discretion by not holding an evidentiary hearing on his claims of ineffective assistance of counsel at a new trial hearing.  The appeals court did not reach the merits of this argument, instead ruling that Appellant failed to satisfy the “presentment” requirement. 

Under current law (see Rule 21.6 Rules of Appellate Procedure), a defendant must file his motion for new trial and “present” the motion to the trial court within ten days of filing.  Merely filing the motion is not sufficient alone to establish presentment.  The court must then rule on the merits of the motion within seventy-five days of filing.  If it fails to do so, then the motion is overruled by operation of law.  The purpose of the presentment rule is to put the trial court on notice of the contents of the motion so that it might consider the request for an evidentiary hearing and whether or not to hold a hearing.  But how does the defense lawyer establish “presentment?”  Of course, an order from the trial court will suffice.  But, a blank order form has been held to be insufficient.  It must be something tangible which evidences the judge’s signature or notation on proposed order or by a hearing date set on the docket.  The list provided by case law is not exhaustive but merely suggestive. 

In this case, Appellant relied on a docket sheet entry which indicated that the motion had been brought to the attention of the trial court.  The appeals court held that the mere notation on the docket sheet was not good enough; rather, there had to be something signed or personally notated by the trial judge.  The appeals court also noted that it would not “presume” that notations or comments entered on an official docket sheet were those of the judge.

Here, the Court of Criminal Appeals notes that the docket sheet is a far more reliable indicator of the trial judge’s decisions than a blank order or of notations made on an order form.  It is more likely that only a judge and those authorized to act on his or her behalf would have access to the docket sheet and make entries for the judge.  It is permissible to presume that the notation on the docket sheet gives an accurate account of the disposition of the motion for new trial without the need of a trial judge’s actual signature.  Nowhere is it expressly stated in case law or the applicable rule that a judge’s signature must be present to satisfy the requirement of the rule.  The appeals court drew an incorrect conclusion from its own case law when it held that a judge’s signature is equivalent to a “judge’s notation” in order to satisfy the rule.  Therefore, the docket sheet entry “Motion New Trial presented to court no ruling per judge” was sufficient to show that the motion was indeed presented to the trial court as required by Rule 21.6 Rules of Appellate Procedure.  The judgment of the appeals court is vacated and case remanded to that court for an analysis of Appellant’s claim on the merits.

FEBRUARY 6, 2009

POLICE OFFICER PERMITTED TO CONDUCT “TERRY” PAT-DOWN OF PASSENGER IN VEHICLE STOPPED FOR ORDINARY TRAFFIC VIOLATION IF OFFICER REASONABLY CONCLUDES THAT PASSENGER MIGHT BE ARMED AND DANGEROUS

Arizona v. Johnson, No. 07-1122, U.S. Supreme Court, January 26, 2009 - While patrolling in a Tucson neighborhood, police officers pulled over a vehicle with three occupants.  After determining identities of all three, one of the officers removed the backseat passenger for further questioning concerning gang activity.  The officer also knew from cursory questioning that the passenger had been to prison.  After finding out that the passenger, Appellee, was from a town known to have a Crips gang, she suspected that he might be armed and dangerous.  The pat-down revealed a butt of a gun.  He struggled and was then subdued.  The full-blown search revealed a weapon.  He was charged with felon in possession of a prohibited weapon.  His suppression motion was denied by the trial court but the Arizona Court of Appeals reversed, holding that although Appellee was lawfully seized, the stop later morphed into a consensual encounter and therefore, the officer had no right to conduct the pat-down.  The Arizona Supreme Court denied review.  Held: Terry v. Ohio established that an investigatory stop based on reasonable suspicion of criminal activity can give rise to a pat-down provided the officer can give some articulable facts giving rise to the belief that the suspect might be armed and dangerous.  A limited pat-down is constitutionally permissible.  Traffic stops, brief in detention, are the kind of temporary detentions envisioned by Terry.  In Pennsylvania v. Mimms, 434 U.S. 106, the Court held that once a motorist is lawfully detained for a traffic violation, the officer may order the driver to get out of his vehicle without offending the Fourth Amendment.  The Court further held, citing Terry, that once outside the vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous.  In Maryland v. Wilson, 519 U.S. 408, the Court held that the MImms rule is equally applicable to passengers.  A passenger’s motivation to use violence during a traffic stop to prevent apprehension for a crime more serious than a traffic citation is just as great as that of the driver.  Therefore, as the passenger is already stopped by virtue of the stop of the vehicle, the additional instrusion, vis the limited Terry pat-down is a minimal intrusion permitted by the Constitution.

ERRONEOUS JURY CHARGE IN THAT IT DID NOT INSTRUCT JJRY THAT IT COULD NOT CONSIDER APPELLANT’S CONDUCT BEFORE HIS SEVENTEENTH BIRTHDAY

Taylor v. State, Nos. 01-07-00801-CR, 01-07-00802-CR and 01-07-00803-CR, First Court of Appeals, January 22, 2009 - Appellant was tried on three separate indictments charging him with aggravated sexual assault.  The jury returned guilty verdicts and sentenced him to 70 years on each charge.  Two of the three sentences were cumulated.  The complainant in the cases was five years younger than Appellant.  She testified that the assaults began when she was eight years old and continued for several years after that.  At the age of 16, she made an outcry about the sexual abuse.  She reported that Appellant had begun sexually abusing her when she was in the fifth grade and had stopped abusing her when she was 15.  Appellant was ultimately charged with three offenses of aggravated sexual assault which ocurred in September 2002.  

At trial, the complainant testified to ongoing abuse over the years.  Because of the frequency and duration of the abuse, she could not remember many details of each instance of abuse.  She did describe a few specific details for the jury.  Rather than go into excruciating detail, let’s just say that penetration was committed several different ways.  Judging from the context of her testimony, it was obvious that many of these assaults took place at a time when Appellant was younger than 17.  One one specific occasion, she described a time when Appellant performed oral sex on her in a bathroom.  She recalled she was in the fifth grade.  That would have made Appellant either 15 or 16.  In the court’s charge, no instruction was provided which instructed the jury that it could not consider any acts committed by Appellant before his seventeenth birthday.

On appeal, Appellant argued that the trial court was under a duty, sua sponte, to provide an appropriate instruction to the jury that it could not consider any act committed by Appellant when he was younger than 17 because Penal Code section 8.07 provides that unless the juvenile court waives jurisdiction and certifies a child for prosecution as an adult, ”a person may not be prosecuted for or convicted of any offense committed before reaching the age of 17 years of age,” except for certain applicable offenses not relevant to this analysis. With respect to the juvenile conduct testified to by the complainant, the juvenile court did not waive jurisdiction or certify Appellant for prosecution as an adult.

A distinguishing feature of “law applicable to the case” for which a court has a mandatory duty to instruct the jury is that it is neither discretionary or dependent on either side’s theory of the case or request therefrom.  When a statute requires submission of a portion of the law as a jury instruction, the trial court, sua sponte, must provide that instruction.  A good example of this is application of the accomplice witness rule.  In this context, the Court holds that the language of sec. 8.07 is not permissive but mandatory.  It is a legislatively prescribed jurisdictional requirement applicable to all cases in which culpable conduct may not be committed unless that person has been certified as an adult or was at least 17 at the time of the commission of the offense.  Section 8.07 is not dependent on any defensive theory of the case or on the defendant’s request for inclusion or objection for its omission.  It is ”law applicable to the case.”  Therefore, the trial court erred by failing to instruct the jury that it could not consider Appellant’s acts before his seventeenth birthday.  And even though there was no objection by Appellant’s trial counsel to this omission, the Court finds that the omission of such instruction caused Appellant egregious harm.  Each charge applicable to each indictment failed to prevent the jury from considering and in fact using specific evidence implicating Appellant for conduct committed when he was under the age of 17.  After a full review of all of the evidence in the case, the Court concludes that Appellant was deprived of a fair and impartial trial since it is clear that he was most likely convicted of a crime or crimes for which he could not be held criminally responsible.  The judgments are reversed and causes remanded for whole new trial. 

STATE’S FAILURE TO ESTABLISH REASONABLE BASIS UPON WHICH CONSENT TO SEARCH BEDROOM WAS OBTAINED MANDATES REVERSAL

Hubert v. State, No. 13-08-00093-CR, Corpus Christi Court of Appeals, January 15, 2009 - Appellant was charged with possession of a firearm by a felon.  After his motion to suppress was denied by the trial court, he entered into a plea bargain, preserving his right to appeal the denial of the suppression motion.  At the suppression hearing, a parole officer testified that he received information from Appellant’s grandfather and housemate, Reed, that Appellant, among other things, possessed a weapon. Reed knew that Appellant had been to prison for a felony DWI.  The parole officer caused an arrest warrant to be issued, alleging parole violations.  A deputy constable was given the warrant to serve.  Upon arrival, the constable and other officers were provided consent to search the home and that was the theory of admissibility upon which the State sought to justify the seizure of the weapon.  Testimony showed that although Reed and Appellant jointly owned the house, Reed did not share the bedroom with Appellant.  The door to the bedroom was closed.  Appellant’s girlfriend testified that Appellant’s bedroom door was always closed and Reed was not allowed in Appellant’s bedroom without permission. 

In order to sustain its search without a warrant and by consent, the State was required to show that Reed had actual authority to consent to the search of Appellant’s bedroom or failing that, that officers reasonably believed that Reed had apparent authority to consent to the search.  The State fails on both counts.  Since the evidence was undisputed that Reed had no control over Appellant’s bedroom and Reed even told the officers that he did not share the bedroom with Appellant, Reed did not have actual authority to consent to the search. 

In order to establish apparent authority, law enforcement must show that there were sufficient facts available which would lead a person of reasonable caution to believe that the third party had authority to consent to the search. See Illinois v. Rodriquez, 497 U.S. 177, 188-89 (1990).  If the officers do not learn enough and if the circumstances make it unclear whether the property in question is subject to common authority of the person giving consent, then the warrantless entry without further inquiry is unlawful unless actual authority exists.  If officers reasonably believe that the third party had common authority to provide consent, then a good-faith belief will not invalidate the search.  However, this level of deference is not extended to law enforcement officers who rely upon consent given in ambiguous circumstances or in situations where a reasonable person would inquire further.  Apparent authority doctrine should not be applied too strictly.  However, some inquiry is required and officers are not permitted to accept at face value statements of common authority which defy logic and common sense. Riordan v. State, 905 S.W.2d 765, 771 (Tex.Ct.App.-Austin 1995, no pet.).  In this case, the officers took Appellant out to a patrol car, cuffed him, learned through Reed that he did not share the bedroom with Appellant and thereafter had Reed open the door.  The evidence elicited by the State concerning assumption of apparent authority was ambiguous at best and a reasonable person in the officers’s shoes would have inquired further.  Since the State did not carry its burden of establishing the requisite level of certainty regarding apparent authority and there exised absolutely no evidence of actual authority, the search of Appellant’s bedroom was unreasonable.  Therefore, the trial court’s denial of the suppression motion is reversed and cause is remanded to the trial court for further proceedings.

WHEN DEFENDANT WAIVES HIS RIGHT TO TRIAL BY JURY IN WRITING, IT WILL BE TREATED AS A GENERAL WAIVER OF RIGHT TO JURY TRIAL AND BY SUCH, HE EFFECTIVELY WAIVES THE RIGHT TO HAVE JURY ASSESSMENT OF PUNISHMENT

Edwards v. State, No. 14-07-00477-CR, Fourteeth Court of Appeals, January 8, 2009 - Appellant entered into a plea of guilty to the charge of aggravated assault.  Following a bench trial, he was assessed punishment of 8 years confinement in TDC.  In his sole point of error, Appellant claimed that his general waiver of jury trial, as evidenced in the plea papers, did not constitute a valid waiver of his statutory right to have a jury assess punishment, as guaranteed under Art. 26.14 Code of Criminal Procedure. 

A criminal defendant has no constitutional right to have a jury determine punishment. Barrow v. State, 207 S.W.3d 377 (Tex.Crim.App. 2006).  That valuable right can be removed with a single legislative enactment if it so chooses.  Therefore, the issue here is whether an effective waiver of a defendant’s right to a jury trial also waives a defendant’s Art. 26.14 right to have the jury assess punishment.  Other than two unpublished opinions from the 14th Court of Appeals, there is no authority on the issue nor is there any authority from the Court of Criminal Appeals suggesting that a general waiver of the right to trial by jury also incorporates a waiver of the statutory right to have the jury set punishment.

Art. 26.14 provides that a defendant who enters a plea of guilty or nolo contendre shall have a jury assess punishment unless the defendant, in accordance with Art. 1.13, shall have waived his right to jury trial.  Appellant conceded that he signed an instrument which expressly waived his right to a jury trial.  He also signed an admonishment which stated that he was waiving “all rights given to him by law” and “the right to a jury in this case.”  The waivers and admonishments were approved by all parties.  The Court holds that since Art. 26.14 is unambiguous when it states that a defendant’s general waiver of his right to trial by jury waives not only his right to have the jury determine his guilt or innocence but also his right to have a jury assess punishment, the general waiver executed in writing also included a waiver of jury assessment of punishment.  But cf. Smith v. State, 223 S.W.3d 690 694 (Tex.Ct.App.-Texarkana 2007, no pet.)  In Smith, the Texarkana Court held that a general waiver of jury trial under Art. 1.13 does not necessarily include a waiver of jury assessment of punishment.  In that case, the defendant struck out the specific language which waived his right to jury assessment of punishment.  The Court held that his general waiver of jury trial did not include waiver of jury election to set punishment.  The Houston Court distinguishes Smith from the instant case by pointing out that because Appellant made no similar notation on the plea papers and did not object to the trial court’s proceeding to hear evidence and ultimately set punishment, his waiver of jury trial encompassed both rights. 

The Court holds that Appellant knowingly, intelligently and voluntarily waived his statutory right to have a jury assess punishment.  One would think that having a special statutory waiver, pursuant to Art. 26.14, would be the better practice.  Given the conflict that nevertheless exists between these two courts and the fact that there is no published precedent out of the Court of Criminal Appeals, it looks like this is ripe for a PDR and that Court’s grant of same.  Get the issue settled once and for all.         

FEBRUARY 3, 2009

FEDERAL DISTRICT COURT ENTITLED TO DEPART FROM AND REJECT CRACK-COCAINE GUIDELINES BASED ON POLICY DISAGREEMENT

Speers v. United States, No. 08-5721, U.S. Supreme Court, January 21, 2009 - In a summary remand, the Supreme Court, per curiam, holds that a federal district court is entitled to reject and vary catergorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.  Since the judge has this unique sentencing discretion, he also possesses the power to apply a different ratio which, in his sole judgment, corrects the disparity.  The ability to reduce a typical (”mine-run”) defendant’s sentence necessarily permits adoption of a replacement ratio.  In this particular case, the district court found that the 100:1 ratio created by the Guidelines yielded an excessive sentence in light of the sentencing factors outlined in 18 U.S.C. § 3553(a) and adopted his own ratio of 20:1.  The Eighth Circuit reversed the district court and remanded, noting that the district court was not free to reject categorically the 100:1 quantity ratio (thus determining the base offense level, the starting point for calculation of length of sentence).  The Supreme Court then reversed the Eighth Circuit in light of Kimbrough v. United States (2007) and instructed the Eighth Circuit to reconsider its holding.  It again reversed the district court’s sentencing, once again noting that the district court could not categorically reject the ration set forth by the Guidelines.  Again, the Supreme Court accepted writ of certiorari due to the Eighth Circuit’s difference of opinion with what is set out in Kimbrough.  The Eighth Circuit’s apparent defiant attitude prompted the following exchange between the writer of the per curiam opinion and C.J. Roberts and Justice Alito in dissent.

The dissent says that “Apprendi, Booker, Rita, Gall and Kimbrough have given the lower courts a good deal to digest over a relatively short period.” Post, at 3.  True enough — and we should therefore promptly remove from the menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible.

ONCE A SUSPECT HAS CLEARLY, UNEQUIVOCALLY INVOKED HIS RIGHT TO COUNSEL, NO SUBSEQUENT EXCHANGE WITH THE POLICE CAN SERVE TO UNDERMINE THE CLARITY OF THAT INVOCATION UNLESS THE SUSPECT HAS INITIATED IT HIMSELF

State of Texas v. Gobert, slip opinion no. PD-0202-08, Court of Criminal Appeals, January 28, 2009 - Appellant was arrested for a parole violation and for an assault.  He was later charged with murder.  When he was brought in for questioning, he was afforded his Miranda warnings.  Asked if he understood his rights, Appellant replied that he did and then said: “I don’t want to give up any right, though, if I don’t got no lawyer.”  The police then questioned him further about this invocation of his Sixth Amendment right by.  The police pointed out that he could nevertheless sign the form indicating that he understood his rights and that thereafter, the choice to talk to them was his decision.  The police then began to ask various questions about an assault that Appellant was accused of having engaged in.  At some point into the interrogation, one of the questioning officers brought up Appellant’s statement that he didn’t want to give up any rights if he didn’t have a lawyer. 

“I want to clear up something up, though, because earlier you said you don’t want to give up your right to a lawyer.  I want you - I want you - I want to clear up the fact that you want to talk to us about this.  Okay?  You understand what I’m saying?”  Gobert answered “yeah.”  Scanlon continued: “I want to clear it up.  I mean, that’s - that’s what you want to do, right?”  Gobert answered again: “yeah.”  The interrogation continued for several hours and ultimately resulted in Appellant confessing to the murder of Mei Kernena Cotton. see Gobert v. State, 228 S.W.3d 221 (Tex.Ct.App.-Austin 2007) (Gobert I); Gobert v. State, 244 S.W.3d 861 (Tex.Ct.App.-Austin 2008) (Gobert II).

The trial court ruled that Appellant’s statement constituted an unequivocal invocation of his Fifth Amendment right to counsel during an interrogation and therefore ordered that his confession be suppressed.  The State filed an interlocutory appeal to the Austin Court of Appeals which initially affirmed the trial court’s ruling after conducting a de novo review of the record.  The State then filed a motion for rehearing which was denied.  The State then filed its PDR.  The Austin Court then issued a substituted opinion under Rule 50 in which it reversed course and held that Appellant’s invocation of his Fifth and Sixth Amendment rights were indeed equivocal and therefore the detectives who took Appellant’s confession did not violated any constitutional standard by continuing to question him.  The Court of Criminal Appeals then granted Appellant’s PDR filed in response to the Austin Court’s substituted opinion.

The Sixth Amendment right to counsel is offense-specific whereas the Fifth Amendment right to counsel during police interrogation applies to each and every matter covered during that interrogation.  Among the various constitutional rights that police must advise suspects of is the right to have counsel present.  Once it is invoked, police may not thereafter continue with interrogation unless initiated by the accused himself or counsel is provided. Miranda v. Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451 U.S. 477 (1981).  Not every mention for an attorney triggers invocation of these Fifth Amendment rights.  An ambiguous or equivocal statement with respect to counsel does not require that the police seek clarification or halt the questioning. Davis v. United States, 512 U.S. 452 (1994).  Whether the mention of the desire to have a lawyer present depends on the content of the actual statement and the totality of the surrounding circumstances.  The test is an objective one - the suspect must articulate his desire to have counsel present in a manner which is sufficiently clear that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.  In other words, the court will look to the totality of the circumstances to determine whether a given statement requesting counsel was really a clear invocation of his Fifth Amendment right.  The courts do not look to the totality of the circumstances in order to determine exactly what the suspect meant when he said it.  And that is the weakness in the Austin Court of Appeals analysis.

Although Appellant could have used better English when conveying his desire for counsel, there can be no doubt that he communicated his conditions: he would not give up any right if he didn’t have a lawyer present.  In fact, Appellant made clear that he wasn’t giving up any right in the absence of counsel.  He may have been willing to give up certain enumerated rights - right to silence for example - but only on the unqualified condition that he be first afforded a lawyer with whom he could consult and have present.  A conditional statement does not render it equivocal or ambiguous.  Therefore, to any reasonable person, much less a reasonable police officer, law enforcement was alerted to the fact that if they desired to speak with Appellant further, in any attempt to get him to waive any of his constitutional rights, then they would first have to afford him a lawyer.  So, before they could take advantage of Appellant’s willingness to talk and thereby waive his right to silence, they first had to honor his request for counsel.  This they did not do.  Held: Once a suspect has clearly invoked his right to counsel, no subsequent exchange with the police can serve to undermine the clarity of the invocation.  The only way around this is for the suspect to initiate exchange with the police on his own.  Trial court’s ruling of suppression affirmed, Austin Court of Appeals reversed, case remanded to the trial court for further proceedings.

TRIAL COURT COMMITS REVERSIBLE ERROR IN FAILING TO PERMIT DEFENSE TO RE-OPEN AND PRESENT ADDITIONAL EVIDENCE

Birkholz v. State, Nos. 04-06-00251-CR, 04-06-00252-CR, 04-06-00253-CR, San Antonio Court of Appeals, January 14, 2009 - In the early morning hours of January 3, 2003, witnesses came upon a upended car which was on fire.  Appellant was pulled out from the burning car by bystanders.  The three other occupants, Appellant’s wife, brother and a family friend - died in the ensuing fire.  A blood draw revealed that Appellant had a blood-alcohol content in excess of the legal limit.  A title search of the car revealed Appellant to be the owner of the car.  Appellant was charged and later convicted at trial of three counts of intoxication manslaughter.  On appeal, Appellant complained of the trial court’s failure and refusal to allow him to re-open and present additional evidence.  The San Antonio Court agrees, sustains Appellant’s points and remands for new trial.

The record revealed that no one could directly place Appellant behind the wheel of the car.  The two witness who pulled Appellant out of the car could only state that they pulled him out through the driver’s window.  After Appellant was removed from the car, a sheriff’s deputy smelled alcohol on his person and placed him in a patrol vehicle.  Due to the fact that Appellant’s clothes were still smoking, he was removed from the car and placed on a stretcher for removal to a hospital.  As paramedics began to cut away his clothes and administer a sedative, he became agitated and began to fight with medical personnel.  He shredded his blanket, pulled at his restraining belts and became belligerant with everybody.  Another deputy wanted to question Appellant but was told by the paramedics that he had only a limited amount of time since they were going to sedate Appellant with Versed to continue treatment.  When asked who might have been driving the car, Appellant again denied having been the driver and indicated it might have been his wife.  Due to the sedation of Appellant with Versed and Vecuronium, he lost his memory of the entirety of the night or the accident.  The paramedic testified at trial that administration of Versed can cause someone to experience amnesia and retrograde amnesia.

At trial, the key issue was the identity of the driver.  The State presented evidence that Appellant was driving the car by emphasizing his ownership of he car, his assertion that he was not driving the car even though not directly asked the question at first by the deputy and the location of Bowen’s body (the family friend) in the front passenger seat when the car was turned right side up after the fire was extinguished.  Appellant’s defense was based on the argument that Bowen had been driving.  Appellant showed that he had suffered a leg injury days before the accident and that since he had been on crutches, he was unable to operate a car.  There was testimony that Bowen had been seen driving Appellant’s car days before the accident.  The driver’s seat was pushed too far back for Appellant to have been the driver.  Finally, he presented expert testimony from a accident reconstructionist who explained how the force of the crash could have resulted in Appellant, his wife and Bowen being “sandwiched” in such a way where Appellant was on top and was most accessible to be pulled out through the driver’s window.  Finally, there was evidence that Appellant was a responsible drinker and driver and that Bowen’s legal blood-alcohol level was consistent with his having been tabbed as the designated driver on that fateful night.

During the State’s cross-examination of Appellant’s expert, he was shown a photograph which depicted Bowen after he had been taken out of the car and laid on a stretcher.  The photo, which had been enlarged, showed a fragment of a seat belt draped across his chest.  Pictures of the car after the accident showed seat belt fragments that somehow ended up on the headliner of the car.  During the middle of trial, State investigators went to the impound lot where the car was stored and collected seat belt fragments from the right front headliner of the car.  It was established that the seat belt fragment shown in the photograph on Bowen’s chest was the same fragment removed from the right headliner and brought to court by the State as an exhibit.  The seat belt fragment had one “belt stop button” on it. 

On direct examination, the expert testified that the seat belt fragment found in the right headliner portion of the car was from the right passenger seat belt because of its location in the car.  After introduction of the photograph showing the same seat belt fragment on Bowen’s chest, the State then began to emphasize the connection between the belt in the photo and the expert’s direct testimony that the same seat belt fragment necessarily came from the front seat passenger seat, thus proving that Bowen was the front seat passenger and that Appellant was the driver.  The expert, upon seeing the enhanced photograph showing the seat belt fragment, now stated that he was wrong and that the belt fragment on Bowen’s chest was part of the driver’s seat belt system.  This testimony was the last of the day and both sides then rested on a Friday afternoon.

When court reconvened on Monday morning, Appellant moved to re-open.  Defense counsel explained that he was surprised by the unexpected developments in the case, particularly when the State introduced the enhanced photograph and the recently acquired seat belt fragments from the impound lot.  As a result of additional research, he sought to reopen the case and present photographs of new and used cars of the same model as the one involved in the wreck.  He also sought to introduce a replacement seatbelt for Appellant’s car which showed that the mechanism for the driver’s seat belt had only one belt stop button, consistent with that shown in the Bowen photograph.  The State responded that it would not argue that the seatbelts had two belt stop buttons.  Appellant argued that the issue had already been raised by the State’s cross-examination of the defense expert and that the new evidence was necessary in that it would establish that the belt fragment seen in the Bowen photograph was a one “belt stop” button type and that the driver’s seat belt system had that exact kind of seat belt.  The new evidence showing unequivocal proof of a one “belt stop” button was proof of Appellant’s innocence.  Appellant further argued that this was the critical issue in the case as a result of the State’s cross-examination of the expert, their proffer of the enhanced photo and its last-minute acquisition of seat belt fragments recovered from the car. 

The San Antonio Court, in its review of the tendered exhibits described above, concluded that this was evidence that was not only relevant but would have actually made a difference in the case.  It was not merely cumulative and had the potential of changing the case in the proponent’s favor.  Moreover, the evidence was presented for the trial court’s consideration before final argument.  Because the evidence bore on the central issue in the case - whether Appellant was driving the car involved in the accident, materiality and harm were shown.  Consequently, the trial court abused its discretion when it denied Appellant the right to re-open.  The trial court’s judgment of conviction is reversed and the causes are remanded for whole new trial.

JANUARY 16, 2009

LEGAL SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE OF INTENT MUST BE REVIEWED WITH THE SAME SCRUTINY AS OTHER ELEMENTS OF AN OFFENSE

Laster v. State, slip op. no. PD-1276-07, Court of Criminal Appeals, January 14, 2009 - Appellant was convicted of attempted aggravated kidnapping and claimed on appeal to the Ft. Worth Court of Appeals that the court had conducted an incorrect legal sufficiency review when it stated that circumstantial evidence of intent is reviewed less rigorously than any other element of an offense.  In so doing, the Ft. Worth Court held that when Appellant pulled on the arm of the eight-year old complainant while her brother pulled on his sister’s other arm, the jury could have reasonably inferred that the very brazenness and public nature of Appellant’s actions (occurring out of the blue and in full view of several people) could lead a reasonable jury to conclude that Appellant intended to take the child and secrete her somewhere else, particularly since his written confession suggested that voices within his head told him to “get her, get her.”  Justice Dauphinot of the Ft. Worth Court dissented, noting that there was no evidence at all that Appellant intended to take the complainant anywhere and that there were multiple, reasonable explanations for why Appellant grabbed the child.  For example, he might have wanted her bicycle or desired to sexually assault her right there on the sidewalk, as unpleasant as that sounds. 

On review from Appellant’s PDR, the Court of Criminal Appeals concludes that the language from the majority opinion of the Ft. Worth Court was incorrect when it harkened back to the kind of sufficiency analysis conducted on circumstantial evidence cases and disavowed any kind of sufficiency review which would weigh competing, reasonable explanations which might explain the conduct in question.  As such, that kind of review attempts to revive the old “reasonable hypothesis” construct which was struck down by Geesa v. State, 820 S.W.2d 154, 156 (Tex.Crim.App. 1991).  Any distinction between circumstantial evidence of intent and other elements was rendered obsolete when the reasonable hypothesis test was abandoned.  Reviewing courts and juries no longer have to deal with the task of excluding every reasonable hypothesis other than the defendant’s guilt.  Under the current standard of review, there is now no reason to treat the circumstantial evidence underlying a defendant’s intent any differently than circumstantial evidence of any other element of a given offense. 

Therefore, a jury could reasonably infer from the evidence which showed Appellant trying to pull the eight-year old girl one way while her brother screamed and tried to prevent this was sufficient to allow a jury to infer reasonably that Appellant intended to hold or secrete the victim in a place where she was unlikely to be found.  Justice Cochran, like Justice Dauphinot, dissents on the basis that this scant evidence only permits the fact finder to speculate about what Appellant intended.  She, like Judge Dauphinot, lists the various scenarios which might explain Appellant’s conduct.  However, the majority opinion, authored by Judge Keasler, scolds the dissenter as a “super-juror, ready and willing to nullify the unanimous verdict of twelve individuals.” 

FAILURE TO TRY DEFENDANT WITHIN 120 DAYS AFTER EXTRADITION FROM OTHER JURISDICTION REQUIRES DISMISSAL OF CAPITAL MURDER INDICTMENT WITH PREJUDICE UNDER INTERSTATE AGREEMENT ON DETAINERS

Ex parte Oscar Roy Doster, slip opinion 10-08-00276-CR, Waco Court of Appeals, December 31, 2008 - Appellant was extradicted from Alabama to Freestone County to stand trial for capital murder.  Because the State was the demanding party, it had 120 days to try Appellant after his arrival in the receiving state.  The remedy for failure to do is extreme - dismissal with prejudice.  Appellant was arraigned on the capital murder and given a trial date which was well outside the 120-day period.  Appellant’s counsel, although not having specifically objected to the setting of this trial date, filed a motion requesting trial within the 120-day period to comply with the IAD.  The State responded that Appellant had waived his right to complain about the 120-day period by not objecting to the trial date set at the arraignment and questioned whether the IAD even applied to the case.  It requested additional time to research the issue.  After the 120-day period elapsed, Appellant’s counsel filed a motion to dismiss which the trial court denied.  Following that, Appellant filed a pre-trial application for writ of habeas corpus, asserting that the failure to try him within the 120-day period violated the IAD, triggered dismissal with prejudice and requested that the appeals court stay proceedings in the trial court until the issue was resolved on appeal. 

The Court noted that the decision to grant a motion to dismiss an untried indictment under the IAD is a question of federal law and federal interpretation.  The Court will use federal law to interpret the Act.  The Court also notes that the Act is quite specific about the circumstances underlying methods by which to toll the applicable period and that none of them fit here.  Even if Appellant had initially agreed to a trial setting outside the 120-day period, he was free to withdraw that agreement and demand trial within the statutory period as long as his decision did not prejudice the State or attempt to manipulate the system.  Appellant made his demand under the IAD while there was adequate time to commence a trial within the 120-day period and the State did not demonstrate good cause for the delay nor show that the setting after the 120-day period was reasonable or necessary.  The trial court’s order of denial of the motion to dismiss is reversed with instructions to enter an order of dismissal.  Appellant is further ordered to be returned to Alabama without delay.

*Note: On rehearing, the Waco Court reversed itself and held that since Appellant was extradicted by executive order, pursuant to Art. 51.13, Uniform Criminal Extradition Act, Code of Criminal Procedure and that no evidence existed in the record to establish that he had been brought to Texas under the authority of the Interstate Agreement on Detainers, then the IAD did not apply to his case.  Therefore, the original opinion of the Waco Court is withdrawn and the trial court’s order denying habeas relief is affirmed.  Take note that the original opinion was handed down by Justice Vance, one of the better scholars on the appeals court bench.  However, upon his retirement on December 31, 2008, it didn’t take long for Justice Gray to rustle up a new panel which promptly granted the State’s motion for rehearing and deny habeas relief.  I could write volumes on Chief Justice Gray.  I’ll just say that it must have been hell for Justice Vance over the past several years working alongside someone like Judge Gray.  If the judge’s personality is anything like his prose or the antipathy he exudes toward the defense bar, I extend my sympathies for defense counsel who work that court on a regular basis. see Ex parte Doster, No. 10-08-00276-CR, February 4, 2009

USE OF FABRICATED FORENSIC REPORT TAINTS CONFESSION, SUPPRESSION ORDERED

Wilson v. State, slip op. no. 04-07-00737-CR, San Antonio Court of Appeals, December 17, 2008 - Appellant was charged with capital murder.  After denial of his motion to suppress, he entered into a plea bargain where he pled to murder and was sentenced to 28 years confinement.  He preserves his suppression issue for review.  Appellant was arrested on numerous misdemeanor warrants.  While at the police station, he was interrogated about a murder.  The detective who conducted the interview admitted at the suppression hearing that he fabricated a forensic report which falsely showed that Appellant’s fingerprints were on the murder weapon.  The detective knew that there were no prints at all on the weapon and further, admitted to creating the document with the intention that Appellant consider the document to be real and confess to the shooting.  By these actions, the officer violated sec. 37.09 of the Penal Code which rendered the confession inadmissible under art. 38.23, independent of federal law.  Since the record shows that the creation of the bogus forensic report was a causal connection between the violation of the law and Appellant’s resulting confession, suppression was required.  There was simply no dispute that the false forensic report was the “turning point” in the interrogation.  Due to the lack of any intervening events between the brazen, illegal act of the detective and the execution of the confession, the taint of the illegality could not be attentuated.  The trial court’s denial of the suppression motion is reversed and the cause remanded for new trial.

SIGNALING INTENT TO TURN EVEN WHILE IN TURNING LANE IS REQUIRED BY TRANSPORTATION CODE AND CAN PROVIDE LEGITIMATE BASIS FOR TRAFFIC STOP

Wehring v. State, slip op. no. 06-08-00102-CR, Texarkana Court of Appeals, December 31, 2008 - Appellant was charged with DWI.  He alleged that the traffic stop which led to his subsequent arrest was invalid; i.e., that his failure to signal his intention to turn in a turn-only lane was not considered a violation of the Transportation Code.  His suppression motion was denied.  Thus, the sole issue is whether Sec. 545.104, Transportation Code, requires a driver to continuously signal his or her intent for no less than the last 100 feet before the turn, even when pulling into a turn-only lane.  Held: A plain reading of the statute in question requires a driver to use a turn signal in such a circumstance.  Thus, the traffic stop was proper and the judgment of the trial court in denying the motion to suppress is affirmed.

DECEMBER 24, 2008

“MIDSTREAM” MIRANDA WARNINGS INADMISSIBLE UNLESS POLICE TAKE CURATIVE MEASURES TO ENSURE THAT A KNOWING, VOLUNTARY WAIVER OF CONSTITUTIONAL RIGHTS

Martinez v. State, slip opinion no. PD-1917-06, Court of Criminal Appeals, Decemer 17, 2008 - Appellant was taken into custody for investigation of capital murder.  Law enforcement did not give him Miranda warnings at the time that Appellant was taken into custody.  He was questioned at the police station without Miranda warnings and made incriminating statements.  He was then given a polygraph and prior to this, was not provided admonishments about his not having to submit to the lie detector test.  A magistrate gave Appellant Miranda warnings only after his initial interview with police and after the lie detector test, the latter which he was told he “failed” by law enforcement.  The Court finds that this two-step interrogation technique was used in a manner calculated to undermine the Miranda warnings, citing the U.S. Supreme Court case Missouri v. Sibert, 542 U.S. 600 (2004). 

Because law enforcement’s decision to administer “midstream” warnings like these was determined to be “conscious,” the Court examines the flow of events which surround the taking of both incriminating statements.  Here, Appellant was in constant custody of law enforcement for an entire day as he was ferried back and forth from the police station to a polygraph examiner, to the magistrate and then back to the police station.  There were no intervening events which have constituted a “substantial break” in the circumstances leading to the unwarned confession.  Examples of the kind of curative measures that might render this kind of confession admissible are 1) substantial breaks in time and circumstances between the unwarned statements and the Miranda warnings, 2) explaining to the accused that unwarned statements made while in custody are likely inadmissible, 3) informing a suspect that although he might have made previously incriminating statements, he is not obligated to repeat those statements at a later session with the police, 4) compelling the interrogating officer from referring to the earlier, inadmissible statement during subsequent questioning and 5) informing the accused that he is not obligated to discuss the contents of the earlier statement during later questioning. 

Law enforcement has the obligation to apply curative measures like those above at the beginning of the second interview.  Failing to take these curative measures are not likely “to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.”  In this case, law enforcement did not apprise Appellant of his Miranda warnings when they began custodial interrogation and failed to apply any curative measures in order to ameliorate the harm caused by the failure to administer Miranda warnings.  Appellant’s uncounseled statements as well as his second, videotaped confession are deemed inadmissible.  Case is reversed and remanded to appeals court for harm analysis.

“TRANSFERRED INTENT” DOCTRINE NOT AVAILABLE TO CHARGE CAPITAL MURDER BASED ON UNINTENDED DEATH OF UNBORN CHILD

Roberts v. State, slip opinion no. PD-1054-07, Court of Criminal Appeals, December 17, 2008 - Appellant was charged with capital murder by two separate indictments.  One alleged the death of a pregnant woman and her embryo and the other alleged multiple deaths in the same criminal transaction.  A jury convicted Appellant of both capital murders under the two indictments.  Because the State did not seek the death penalty, Appellant was assessed a life sentence. 

The pregnant woman was shot and killed during a home invasion.  Appellant was among several assailants who fired into a room where the pregnant woman was located.  The indictment in question charged that Appellant intentionally and knowingly caused the death of the pregnant woman by shooting her with a deadly weapon and that during the same criminal transaction, intentionally and knowingly caused the death of another individual, that being the unborn child, of the woman.  The evidence was undisputed that Appellant did not know that the woman was pregnant. 

On appeal, Appellant argued sufficiency of evidence to prove that he knowingly and intentionally caused the death of the embryo since he did not know that the woman was pregnant and secondly, that the jury charge was defective because it did not alleged the necessary culpable mental state to render his conduct punishable under law.  In other words, the law required that the State prove that he had a specific intent to cause the death of the unborn child and the doctrine of “transferred intent” cannot serve to provide the necessary specific intent to kill the embryo by showing that he had specific intent to kill the mother. 

The court’s charge permitted the jury to convict if it found that Appellant meant to kill the mother and that his actions caused the death of the unborn child, all under the transferred intent doctrine.  The Court points out that murder is a result-oriented offense, meaning that the accused must be aware that his conduct is reasonably certain to cause the result.  Thus, due process requires that the State prove beyond a reasonable doubt that Appellant possessed the necessary culpable mental state with respect to the death of the unborn child, regardless of any intent to kill the mother.  There must be a discrete “specific intent to kill” as to each death listed in the indictment.  In the case of two deaths such as this, due process does not pemit the use of transferred intent to charge capital murder based on the death of an unintended victim as that would require using a single intent to kill to support the requirement of two intentional and knowing deaths.  While § 6.04 Penal Code permits the use of transferred intent if a different person is harmed, such use is not authorized if the intended victim is also killed, as that would permit one intent to kill to support more than one death.  Because the case of Norris v. State, 902 S.W.2d 428 (Tex.Crim.App. 1995) seems to permit the intent to cause one intentional death to support two deaths, one intentional and knowing, the other unintentional, it is overruled.  Held:  Transferred intent may be used as to a second death to support a charge of capital murder that alleges the deaths of more than one individual during the same criminal transaction only if there is proof of intent to kill the same number of persons who actually died.

ERROR IN SUBMITTING LESSER INCLUDED OFFENSE AT STATE’S REQUEST

Grey v. State, slip opinion no. 03-07-00610-CR, Austin Court of Appeals, November 14, 2008 - Appellant was tried for aggravated assault but the jury convicted him of misdemeanor assault.  The trial court assessed punishment at one year county jail.  Appellant claimed error in the inclusion of the lesser included offense of assault at the State’s request over his objection. 

The facts were not in dispute.  Appellant and his estranged girlfriend got into a fight.  She told police that he held her up against the wall and used his hands to strike her about her face and body.  She also accused him of using a necklace she was wearing to choke her.  Although Appellant did not testify, his written statement was introduced into evidence.  In the statement, he described how she hit him in the face and how he used his hands to grab her around the throat to “control her” and then began to strike her in the face with his hands “in the exact manner she continued to assault me.”  According to the statement, she staggered back a few steps after he hit her four to six times. 

The indictment alleged that Appellant knowingly, intentionally and recklessly caused bodily injury to Heather Dukes [the girlfriend] by using a deadly weapon, the defendant’s hand, which in the manner of its use or intended use was capable of causing serious bodily injury, by strangling said Heather Dukes with the defendant’s hand.  During the court’s charge, the State requested a lesser included misdemeanor assault charge be included which permitted the jury to convict if it found that Appellant caused bodily injury but did not use his hand as a deadly weapon by strangling Heather Dukes. 

A two-pronged test must be met before a jury may be charged on a lesser included offense: 1) the lesser offense must be included within the proof necessary to establish the greater offense for which the defendant is on trial and 2) there must be some evidence in the record that would permit the jury to find rationally that the defendant is actually guilty of the lesser offense. see Hampton v. State, 165 S.W.3d 691, 693-94 (Tex.Crim.App. 2005).  Here, misdemeanor assault is clearly subsumed within proof necessary to prove aggravated assault.  So, the issue boils down to whether there is evidence in the record that would permit a rational finding that Appellant strangled his girlfriend with his hands but did not use or intend to use his hand in a manner capable of causing death or serious bodily injury.  The Court finds that there is none to support such a finding.

The Court notes that there is no evidence to suggest that Appellant used his hands in any way inconsistent with it being a deadly weapon.  Use of a deadly weapon does not require that death or serious bodily injury actually be inflicted or even intended by the actor.  All that is required is some proof that the actor intends to use an object that is capable of causing death or inflicting serious bodily injury.  In his statement to the police, Appellant admitted that he used his hands to apply pressure to the “pulse points” in Duke’s neck with the intent to make her dizzy so he could knock her off balance.  Appellant accomplished this purpose.  Dukes testified that Appellant choked her until she became unconscious.  And Appellant’s claim that he used his hands in self-defense does not raise an issue of whether or not he used his hands as a deadly weapon.  All a claim of self-defense does is provide a legally-sanctioned excuse to engage in what otherwise is prohibited behavior.  Self-defense admits to the charged offense but provides justification for the act.  It does not shed light on the issue of whether the actor used or did not use his hands as a deadly weapon. 

There being no evidence in the record which would support a rational finding that Appellant did or did not use his hands as a deadly weapon, the trial court erred in charging the jury on misdemeanor assault.  Because he objected to the inclusion of the lesser included offense, he satisfies the “some harm” standard.  That being the case, and because Appellant was implicitly acquitted of the more serious charge of aggravated assault by the jury’s verdict of assault, the case is reversed and remanded for new trial on assault only. 

ERRONEOUS EXCLUSION OF EXPERT TESTIMONY REGARDING ACCUSED’S FEAR OF IMMINENT HARM

In the Matter of E.C.L., slip opinion no. 14-06-01106-CV, Houston Court of Appeals, Fourteenth District, December 11, 2008 - Appellant E.C.L. was charged with delinquent conduct for fatally shooting his father.  He was found to have engaged in such conduct and assessed punishment at ten years confinement in TYC with a possible transfer to TDC.  Appellant raised multiple issues on appeal but his point regarding the trial court’s refusal to allow a psychologist to testify to the child’s state of mind as it pertained to the necessity to act as he did requires reversal.

Appellant was the child of a very tumultuous marriage.  The opinion catalogs a lamentable history of violence between the father and mother.  The father was also abusive toward Appellant.  There were allegations of sexual abuse as well.  There was documentary evidence of the police having been called out to some 20 times to respond to allegations of all kinds of domestic violence.  Appellant began to see a procession of mental health care providers.  Some were psychiatrists and some were psychologists.  By the time of the homicide, the mother and father had divorced.  They shared custody of Appellant and his younger brother.  Finally, on one of the days when the father was to pick up both of the boys, Appellant shot him with his mother’s gun kept in the house. 

At trial, Appellant’s attorney attempted to introduce the expert testimony of a psychologist who would testify that Appellant suffered from battered-child syndrome and that he believed his conduct in shooting his father [albeit in the back] was immediately necessary to avoid imminent harm.  Specifically, the expert was prepared to state that 1) Appellant’s mental condition and state of mind was such at the time he shot his father that he reasonably believed he was justified in using force or deadly force to protect himself or his brother against the unlawful acts of his father; 2) at the time he shot his father, Appellant did not believe he could retreat and 3) at the time of the shooting, Appellant believed his conduct was immediately necessary to avoid imminent harm. 

Ordinarily, the accused is the only source of evidence of his or her state of mind at the time of the offense.  But, art. 38.36(b) Code of Criminal Procedure authorizes admission of “relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense” if the defendant had been the victim of family violence and if the defendant raised the issue of self-defense or defense of another.  The reference to expert testimony in art. 38.36(b) is a codification of Fielder v. State, 756 S.W.2d 309 (Tex.Crim.App. 1988).  In Fielder, the Court of Criminal Appeals held that expert testimony about the psychological effects of marital abuse is relevant to a defendant’s claim of self-defense because the expert testimony could assist the jury in its decision concerning whether the defendant reasonably believed that deadly force was immediately necessary.  The Court further found that expert testimony was relevant because the average lay person “has no basis for understanding the conduct of a woman who endures an abusive relationship.” Id at 321.  Here, under compelling facts, the Houston Court extends the rationale of Fielder to a setting where the juvenile son of an abusive father kills and claims self-defense.  The proferred testimony was directly relevant to the child’s belief that his actions were immediately necessary to avoid the harm he had suffered at the hands of the father over a period of years.  Not only did the trial court refuse to permit the expert to testify, it also refused to charge the jury on the child’s requested justification defenses (self-defense and third party self-defense).  Appellant has shown the high relevance of the proferred testimony and explained harm by showing that the jury was not provided with appropriate instructions which might have resulted in an acquittal had they been provided the opportunity to consider the child’s conduct in the context of the justification defenses.  Cause reversed and remanded for new trial.

What’s interesting is that the Code now permits a form of what we have commonly referred to as an “imperfect self-defense,” much ballyhooed in the Menendez brothers trial out in California some years back.   

DECEMBER 10, 2008

LAY AND EXPERT TESTIMONY OF A MENTAL DISEASE OR DEFECT THAT DIRECTLY REBUTS A PARTICULAR MENS REA NECESSARY TO PROVE THE COMMISSION OF A CHARGED OFFENSE IS RELEVANT AND ADMISSIBLE UNLESS EXCLUDED UNDER OTHER SPECIFIC AUTHORITY

Ruffin v. State, slip opinion nos. PD-1482-07 through PD-1489-07, Court of Criminal Appeals, December 10, 2008 - Appellant was proven by proper and admissible testimony to be delusional and seemingly psychotic in the time leading up to his having fired at several law enforcement officers who came out to his property out in the country.  His defense contended that he was so delusional, that in his own mind he thought he was firing at Muslims, not the police.  The trial judge excluded the testimony of a psychologist about the existence and severity of Appellant’s mental illness and delusions, ruling that such testimony would be admissible only if Appellant was raising the insanity defense and even if it was admissible in the absence of an insanity defense, it was limited to use in murder trials only.  The appeals court held that even if the trial judge had been in error about such testimony being relevant and admissible only when insanity is raised, the proferred testimony was nonetheless not admissible because the Court’s prior case, Jackson v. State, 160 S.W.3d 568 (Tex.Crim.App. 2005), limited its use to murder cases only.  The Court of Criminal Appeals holds that both the trial court and the appeals court are wrong.

Insanity is the only “diminished responsibility” defense allowed under state law.  It works the same as a “diminished capacity” defense in that it addresses the state and severity of a defendant’s mental illness or defect which renders him unable to tell the difference between right and the wrongfulness of his act. The Texas Legislature has seen fit not to enact any other affirmative defense, other than insanity, based on mental illness, defect or abnormality.  Other similar defenses that one hears so much about in other jurisdictions simply do not exist in Texas.

But that does not mean that evidence of impairment as a result of mental disease or defect is not relevant or probative if it relates to the ability of the accused to harbor the necessary special intent that must be proven by the State as part of its case-in-chief.  Such is the case with the offenses brought against Appellant, for the State had to prove that he knew the people he was shooting at were police officers.  The Court re-affirms Jackson v. State and holds explicitly that, depending on the facts, expert testimony concerning the existence and severity of a mental disease or defect may indeed be admissible and relevant in resolution of an issue about whether the accused had the capacity to form the necessary state of mind required before the jury can convict on the charged offense.  The Court states that it has “confidence that our juries and judges are sufficiently sophisticated to evaluate expert mental-disease testimony in the context of rebutting mens rea just as they are in evaluating an insanity or mental retardation claim.”  Other rules may be in place to bar such testimony should the record show that the probative value is outweighed by its prejudical content or that the expert providing the opinion is not sufficiently qualified under Rules 703-705.

PERSON WHO IS HANDCUFFED TEMPORARILY AND DETAINED BUT LATER RELEASED IS NOT ”ARRESTED” FOR PURPOSES OF FOURTH AMENDMENT ANALYSIS

State v. Sheppard, slip opinion nos. PD-793-07 & 794-07, Court of Criminal Appeals, December 10, 2008 - Deputy Smith received information about a possible domestic disturbance.  He drove to an address provided where he met up with a witness, Schneider, who told the deputy that he had been sitting around with Appellant, “doing some speed,” when Appellant produced a large knife and threatened Schneider with it.  Schneider also mentioned that there was female present at the time but he didn’s know where she was now.  Deputy Smith drove to Appellant’s house where the alleged altercation took place, and knocked on the front door.  Appellant answered the door.  The Deputy testified that he smelled an overwhelming odor of chemicals.  He wasn’t sure that it was methamphetamine because he wasn’t familiar with the smell nor did he knowing anything about the meth trade.  He explained why he had been called out, told Appellant about the complaint made by Schneider and explained that the would do a pat-down of Appellant’s exterior.  The Terry search revealed a large knife.  Smith took the knife from Appellant and then told him that he would place cuffs on him temporarily for “officer safety.”  He then did a brief protective sweep of Appellant’s home, looking for the female described by Schneider.  The deputy did the walk-through because he was concerned that there might be a “wounded or dead female in the house.”  While walking through the house, the deputy saw in plain view evidence consistent with the possession and manufacture of methamphetamine.  When the deputy finished, he went back outside and took the cuffs off of Appellant.  He then contacted the drug task force to inform them of his observations and requested that they come to the scene.  He then read Appellant his Miranda warnings and acquired his consent to search the residence.  The search which followed turned up methamphetamine and evidence of manufacuring of the drug. 

Appellant filed a motion to suppress, arguing that the officer did not have specific articulable facts to conduct the Terry “pat-down,” that he had no grounds to enter the house under the emergency doctrine and that the consent acquired was tainted by the illegal arrest and the circumstances between the illegal arrest and acquisition of consent did not attentuate the initial taint of the illegal arrest.  The appeals court upheld the trial court although it disagreed with many of the trial court’s legal conclusions.  Although the appeals court found that the circumstances surrounding the encounter between Appellant and Smith objectively supported the pat-down search and protective sweep, it reasoned that the trial court must have disbelieved the officer to have come to the conclusion that there did not exist specific, articulable facts to justify the Terry search.  In this, the appeals court was in error.

The Court of Criminal Appeals holds that the mere cuffing of the Appellant by the deputy did not change the essential character of the detention.  In other words, the temporary cuffing of Appellant did not detract nor add to the ultimate conclusion that Smith carried out a limited detention under the authority of Terry.  On this, the trial court was wrong, even though his findings of fact are accorded great deference.  In other words, the trial court got the facts right but the conclusions wrong.  And appeals courts are not bound by the legal conclusions reached by the trial court.  Because the objective facts supported the appropriateness of Deputy Smith’s action, the trial court erred in its conclusion of law that the pat down was without justification and illegal.

The case highlights the importance of drafting fact-specific, precise findings of facts and conclusions of law and secondly, knowing how to classify each.  In order for the legal conclusions of the trial court to withstand appellate muster, there must be corresponding facts findings, supported by the record, to back them up. 

DEFENSIVE USE OF EXTRANEOUS OFFENSES; SHOWING THE VICTIM’S BAD ACTS TO PROVE THAT HE WAS INITIAL AGGRESSOR

Dudzik v. State, slip opinion no. 10-07-00091-CR, Waco Court of Appeals, November 26, 2008 - Appellant got into a fight with a bouncer at a topless bar and ended up stabbing the man in the process.  At trial, Appellant produced a witness who was prepared to testify to a similar incident where the same victim initiated the fight and attacked the witness.  Appellant had already testified that the victim provoked the assault and that he used his knife in self-defense.  The trial court ruled the witness’s testimony inadmissible.  Held: trial court committed error in excluding the testimony but it was harmless.

Evidence of the victim’s violent character is relevant to support a claim that the victim was the first aggressor, even if the defendant is unaware of the victim’s violent character. Rule 404(b), Mozon v. State, 991 S.W.2d 841, 846 (Tex.Crim.App. 1999).  For this theory to apply, the defendant must produce some evidence of actual aggression wielded by the victim at the time of the offense. Currie v. State, 692 S.W.2d 95 (Tex.Crim.App.1985).  However, because the evidence on the issue of viable self-defense is so weak as to be non-existent, admission of the incident in question would not have had forceful persuasive impact nor would it have rendered the State’s case any less compelling.  Error acknowledged but conviction affirmed nonetheless because of error’s harmlessness.

DECEMBER 1, 2008

INSTRUCTION PERMITTING JURY TO CONSIDER FACT THAT DEFENDANT REFUSED TO SUBMIT TO BREATH TEST IMPROPER

Bartlett v. State, slip opinion no. 1461-07, Court of Criminal Appeals, November 26, 2008 - At Defendant’s trial, the trial court, over the objection of Appellant, gave the jury an instruction in the court’s charge which informed the jury that Appellant had refused a breath test and that it is a fact which may be considered by the jury in light of all other facts in deciding guilt and innocence.  Appellant argued that the instruction was a comment on the weight of the evidence since it highlighted something to the exclusion of all other evidentiary particulars admitted at trial. 

The Court pointed out that there are but a few situations where the trial court is permitted to single out an item of evidence in jury instructions without signaling to the jury an impermissible view of the weight of evidence.  One of those, for example, is the instruction that accomplice testimony must be corroborated by other evidence tending to connect the defendant to the commission of the crime.  Under some fact scenarios, a statutory presumption can arise from the occurrence of specific facts and the jury is so instructed.  But these are instructions specifically guided by relevant statute.  But a judicial instruction which singles out a particular piece of evidence risks impinging on the independence of the jury in its historic role as the trier of facts.  Although the Transportation Code permits the admission into evidence of a refusal to submit to a breath test, nowhere does statute or other law permit the jury to attach special weight to such refusal.  And the law does not permit any kind of presumption of consciousness of guilt to attach should the defendant refuse a breath test. The trial court has no justification for tendering the kind of instruction condemned here since the rule admitting the refusal into evidence does not take into account the jury’s role as ultimate factual arbiter at trial.  Any jury instruction informing the jury that it may consider evidence of a refusal to take a breath test constitutes an impermissible comment on the weight of the evidence.  Cause is remanded to the appeals court for a harm analysis.

WHEN DETERMINING LEGAL SUFFICIENCY OF THE USE OF A DEADLY WEAPON, THE FOCUS IS ON THE WEAPON’S CAPABILITY TO INFLICT DEATH OR SERIOUS BODILY INJURY

Tucker v. State, No. PD-0742-07, Court of Criminal Appeals, November 26, 2008 - When an appellate court is reviewing the legal sufficiency of whether or not the record supports the jury’s finding that there was the use of a deadly weapon, the State is not required to show that the “use or intended use causes death or serious bodily injury” but that the “use or intended use is capable of causing death or serious bodily injury.”  Even without expert testimony or a description of the weapon, the injuries suffered by the victim can be, by themselves, sufficient to support a finding of the use of a deadly weapon.  In this case, the fact that the victim sustained a stab wound that went all the way through her arm was sufficient to permit the jury to infer that the weapon, whatever it was, was clearly capable of inflicting serious bodily injury. 

NOVEMBER 18, 2008

PRE-TRIAL WRIT OF HABEAS CORPUS ERRONEOUSLY DENIED, RETRIAL BARRED BY DOUBLE JEOPARDY

Garza v. State, slip opinion no. 01-07-00740-CR, Houston Court of Appeals, First District, October 30, 2008 - Appellant proceeded to trial on his misdemeanor DWI.  A jury was empaneled and sworn in to hear the case.  It was released and instructed to return to begin hearing evidence the next day.  The next day, before any evidence was presented, the trial court was informed that one of the jurors had had a “cardiac event” which prevented him from reporting for duty.  The court reset the case two days later.  When the parties reconvened two days later, the bailiff informed the judge that the downed juror was still in the hospital.  He communicated his desire to continue as a juror but his doctor wouldn’t release him until further tests were taken.  The soonest these tests could be conducted would be the next week.  The State moved for a mistrial to which Appellant objected.  Appellant argued that there was no manifest necessity for a mistrial and requested a continuance to the next week in order to give the stricken juror time to return to court and participate in the trial.  The trial court reset the trial date but left open the State’s request for a mistrial.  Later, that same day, the judge met with the lawyers.  Here, they learned that of the remaining five juros, three were immediately available, one would be available for all of the coming week except for two days toward the end of the week.  The fifth could not be located at that exact moment.  After learning of these developments, the trial court sua sponte declared a mistrial, citing his misgiving of making the remaining jurors return the next week to try the case or whether the ill juror would ever recover.  Appellant objected to the declaration of the mistrial and noted that the case could be tried in one day, that it was a “one witness trial,” and that since only one juror was incapacited, Appellant was willing to proceed with five jurors to hear the case and get it resolved.  The State withdrew its motion for mistrial.  The trial court confirmed its mistrial declaration.

Before the beginning of the second trial, Appellant filed his plea in double jeopardy.  The trial court denied relief and Appellant took the issue up on appeal.  The rule is simple: when a mistrial is declared over the defendant’s objection, retrial is barred by the double jeopardy clause unless there was manifest necessity for the mistrial.  In this case, the Houston appellate court failed to find any manifest necessity.  To find manifest necessity, the trial couirt cannot make token reference to the various alternatives available to it before declaring a mistrial.  What is required is that the trial court make  careful and deliberate consideration of all less drastic alternatives that balance the defendant’s interest in having the trial conclude in a single proceeding with society’s interest in a fair trial designated to end in just judgments. Brown v. State, 907 S.W.2d 835, 840 (Tex.Crim.App. 1995).  The trial court must always implicitly or explicitly choose the least drastic alternative to granting the mistrial; otherwise, the trial court abuses its discretion. Ex parte Little, 887 S.W.2d 62, 65 (Tex.Crim.App. 1994).

Here, the less drastic alternative was clear.  Appellant agreed to proceed with five jurors as opposed to six.  Since the statutory right for a defendant’s waiver of a jury carries with it the corresponding right to agree to a trial by jury composed of less than six men, the court abused its discretion when it declared the mistrial. See Mackey v. State, 68 Tex.Crim. 539, 151 S.W. 802, 803 (1912); Schulman v. State, 173 S.W. 1195 (Tex.Crim.App. 1915). 

BURGLARY CONVICTION REVERSED AND REMANDED WITH INSTRUCTION TO ENTER JUDGMENT OF ACQUITTAL

Ivey v. State, slip opinion no. 07-08-0079-CR, Amarillo Court of Appeals, November 17, 2008 - Appellant was convicted of burglary of a habitation, enhanced with two prior felony convictions.  He was sentenced to life in prison.  On appeal, he claims that the evidence is legally insufficient to sustain the verdict of guilt.  The Amarillo Court agrees, noting that the record is woefully inadequate to prove identity.  In this case, the individual inside the home heard a noise and saw the door knob turn from inside his bedroom.  When he opened the door, the intruder had his back turned.  The occupant never saw the intruder’s face.  He described the intruder by height and body build.  About an hour after the reported burglary, a white pick-up was seen slowly driving by the house just burgled.  The pick-up’s lights were turned off.  When the driver saw the police, he speeded up and drove away.  Police gave chase.  The pick-up was abandoned with the doors locked and the motor running.  Information gathered from within the pickup identified Appellant as the probable driver.  Police went to Appellant’s address where they were met by him in boxer shorts.  He told the police that he had been “dead asleep.”  He was cuffed and taken back to the burgled residence where the occupant was asked to identify him.  Although he was clear that he could not identify him by face, Appellant was very similar in build to the man he saw inside the house.  This was the only evidence presented on the issue of identity. 

In reversing the judgment of conviction, the court noted that there was probably sufficient evidence to show that Appellant was the driver of the pick-up and that there was sufficient similarities between Appellant’s general appearance and the physical description provided by the home occupant.  But this is far short of what is required to place Appellant inside the home as the burglary. 

“Many people would closely fit such a general description, and the State’s burden was greater.  It was obliged to prove beyond a reasonable doubt that appellant was the burglar Hall saw.  The evidence of appellant’s description, location, flight and deception show appellant may have been the burglar, and are consistent with his identity as the burglar.  But inferring from the State’s evidence that appellant was the person Hall encountered in his residence required the jury to go beyond deducing a logical consequence from established facts and enter the realm of speculation.

                                                    Slip opinion at p. 9-10.

Conviction set aside, trial court’s judgment reversed and ordered to render a judgment of acquittal.  Opinion authored by Justice Campbell; appellate lawyer Rick Wardroup out of Lubbock.

NOVEMBER 11, 2008

NO REQUIREMENT THAT TRIAL COURT ADMONISH DEFENDANT THAT SENTENCE MAY BE STACKED ON TOP OF ANOTHER, CONSECUTIVE SENTENCE HELD TO BE COLLATERAL RATHER THAN DIRECT CONSEQUENCE OF PLEADING GUILTY

McGrew v. State, slip opinion no. 13-07-00610-CR, Corpus Christi Court of Appeals, October 23, 2008 - Appellant was indicted for evading detention with a vehicle, enhanced with six prior felony convictions.  He was sentenced to sixteen years after entering an open plea to the charge.  On appeal, he claimed that his plea was not voluntarily or knowingly made because the trial court did not admonish him about the possibility that it would stack the instant sentence on top of his pending parole revocation.  

The Corpus Christi court recognizes that this is a case of first impression in that appellant is not claiming that the trial court abused its discretion in actually stacking the sentence but that it should have warned him prior to entering his plea.  A guilty plea is considered voluntary if the defendant is made aware of the direct consequences of his plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex.Crim.App. 1999).  Direct consequences are those that are definite and largely or completely automatic.  The trial court is required to advise a defendant of direct consequences that are punitive in nature of specifically identified in law. Mitschke v. State, 129 S.W.3d 130, 135-36 (Tex.Crim.App. 2004).  A consequence is “collateral” where imposition of a result lies within the discretion of the court whether to impose it or where imposition of a result is controlled by an agency or body outside the control of the trial court.  

Following the lead of several federal courts, the Corpus Christi court holds that imposition of consecutive sentences is not a direct consequence but rather, collateral and a plea is not rendered involutary by the trial court’s failure to warn of such a possibility.  Trial courts have broad discretion to order stacked sentences and therefore, imposition of such sentences is not automatic and not definite.

*Hopefully, appellant’s counsel will take this up on PDR, given the increased incidence of consecutive sentencing and in many cases, the mandatory imposition of stacked sentences.  Hopefully, should the Court of Criminal Appeals take the PDR, it will address the issue in terms of due process in light of the notice requirement.   

NOVEMBER 4, 2008

LEGAL INSUFFICIENCY OF DEADLY WEAPON FINDING

Cantrell v. State, slip opinion no. 07-07-00472-CR, Amarillo Court of Appeals, October 29, 2008 - Appellant was convicted of the felony offense of driving while intoxicated.  The jury also found that Appellant used a deadly weapon, his car, during the commission of the offense.  Appellant raised three issues but the one of interest here in his claim that the evidence was legally insufficient to support the jury’s affirmative finding that Appellant’s car was used as a deadly weapon.

To establish proof that a car is a deadly weapon, the State must establish that it meets the requirements of a deadly weapon.  There must be evidence in the record to show that the car was actually used as a weapon and that other people were placed in jeopardy as a result.  This danger must be real and not just hypothetical. Ex parte Jones, 957 S.W.2d 849, 851 (Tex.Crim.App. 1997); Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003).  In its review of the available evidence, the Court, per Justice Hancock, noted that there was only moderate traffic on the highway at the time that Appellant operated his vehicle.  There was no evidence or testimony from the arresting officer that Appellant had driven in an unsafe manner during the period that he followed Appellant.  There were no other witnesses who testified to any unsafe operation of the car.  Although the two officers who testified stated that someone who drives a car while intoxicated exposes the public to risk, this merely amounts to hypothetical risk, not actual risk.  Likewise, the Court noted that in the absence of any evidence that Appellant actually operated his car in an unsafe manner or actually threatened other motorists, then the evidence presents nothing more than “hypothetical risk.” see Cates v. State, 102 S.W.3d at 738.  Thus, the evidence is legally insufficient to support the jury’s affirmative finding.  The judgment is reformed to delete the deadly weapon finding. 

USE OF PRIOR DWI CONVICTIONS MORE THAN TEN YEARS OLD TO ELEVATE CASE TO FELONY DOES NOT VIOLATE EX POST FACTO PROHIBITION OF BOTH THE U.S. AND TEXAS CONSTITUTIONS

Sepeda v. State, slip opinion no. 07-07-00315-CR, Amarillo Court of Appeals, October 15, 2008 - Appellant was indicted for felony DWI, “enhanced” with two misdemeanor DWIs.  The indictment also included two prior felony convictions which elevated Appellant’s potential punishment to that of the habitual offender range, 25 to 99 years or life in prison.  A jury found him guilty and found both enhancement paragraphs “true.”  It assessed punishment at 50 years in prison.  On appeal, Appellant claimed that permitting the State to use two prior DWI misdemeanor convictions which were older than ten years to elevate the present DWI to a felony violated the prohibition against ex post facto laws under the U.S. and Texas Constitutions.

The record showed that the two misdemeanor DWIs dated back to 1991 and 1993.  Thus, they were indeed older than ten years.  Appellant’s objection was that the use of these two misdemeanor DWI convictions subjected him to an ex post facto law as the prior DWI statute, article 6701l of the Texas Revised Statutes, had a 10 year limitation on the use of prior convictions.  This provision was recodified in the same form in 1993 and placed under section 49.09 of the Penal Code.  It existed in this form until September, 2001.

The lead case on the present ex post facto law is Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000).  The Carmell analysis takes into consideraiton four types of ex post facto violations.  These four catergories are recognized by the Court of Criminal Appeals as well as the U.S. Supreme Court: 1) laws that make an action done before the passing of the law, and which was innocent when done, criminal and punishes such behavior; 2) every law that aggravates a crime or makes it greater than it was when committed; 3) every law that changes the punishment and inflicts a greater punishment thna the law applied to the crime allowed when it was committed and 4) every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. Carmell, 529 U.S. at 522; Grimes v. State, 807 S.W.2d 582, 584 (Tex.Crim.App. 1991).  When an appeals court engages in an ex post facto analysis, its focus is on whether the statute in question assigns a more severe criminal or penal consequence to an act than did the law in place when the act occurred. Grimes, supra at 587.

Both federal and state courts have previously held that use of a conviction that occurred before enactment of an enhancement statute does not violate the prohibition against ex post facto laws because the punishment is for a new crime only but is more onerous because the defendant is a habitual offender. Shaw v. State, 529 S.W.2d 75, 76 (Tex.Crim.App. 1975).  And, the use of a person’s prior convictions that could not have been used to elevate the driving while intoxicated charge to a felony at the time they were originally committed has been addressed by a number of courts of appeals around the state.  All have held that the application that Appellant complains of here is not in violation of the prohibition against ex post facto laws. 

At the time that Appellant was previously convicted, the statute in question had a provision that the window of use for prior convictions was 10 years.  But, since the actual punishment for the underlying offense has not changed but rather, punishment has been increased because of the recidivist nature of Appellant’s conduct, there is no ex post facto violation. Shaw at 76.  The trial court did not abuse its discretion in overrruling Appellant’s objection to evidence of the prior DWI convictions or to their use in the court’s charge because it properly followed existing, binding legal principles.

OCTOBER 30, 2008

HEARSAY STATEMENTS OF THERAPISTS AND COUNSELORS ARE ADMISSIBLE UNDER RULE 803 (4) RULES OF EVIDENCE PROVIDED THAT PROPONENT ESTABLISHES THAT DECLARANT IS AWARE THAT STATEMENTS ARE MADE FOR PURPOSES OF TREATMENT AND DIAGNOSIS AND THAT STATEMENTS PERTAINING TO IDENTITY OF PERPETRATOR WERE IMPORTANT TO THE EFFICACY OF TREATMENT

Taylor v. State, slip opinion no. PD-1370-07, Court of Criminal Appeals, October 29, 2008 - Appellant was convicted of aggravated sexual assault of a child.  The evidence against Appellant consisted of that of the victim and a licensed counselor who had been seeing the victim for several months after the incident.  There was no forensic evidence to corroborate the victim’s testimony.  At trial, Appellant’s counsel objected to the testimony of the counselor which summarized what the victim had told him as improper hearsay testimony.  The Court of Appeals held that the counselor’s testimony was admissible under Rule 803(4) under the hearsay exception which allows statements made for purposes of medical diagnosis and treatment.  The Court of Criminal Appeals granted Appellant’s PDR to examaine whether the hearsay exception of Rule 803(4) should apply to counselors and therapists in sex abuse cases. 

The Court recongizes that there is a split of authority among various courts of appeals.  The Waco and Houston courts have generally allowed this type of hearsay evidence while Austin Court of Appeals employs a much stricter test for admission of similar evidence.  see Burns v. State, 122 S.W.3d 434 (Tex.Ct.App.-Houston [1st Dist.] 2003, pet. ref’d.) (psychologist); Gohring v. State, 967 S.W.2d 459 (Tex.Ct.App.-Beaumont 1998, no pet.) (therapists); Wilder v. State, 111 S.W.3d 249 (Tex.Ct.App.-Texarkana 2003, pet. ref’d.) (licensed professional counselor); Puderbaugh v. State, 31 S.W.3d 683 (Tex.Ct.App.-Beaumont 2000, pet. ref’d.) (social worker); but see Moore v. State, 82 S.W.3d 399 (Tex.Ct.App.-Austin 2002, pet. ref’d.); Jones v. State, 92 S.W.3d 619 (Tex.Ct.App.-Austin 2002, no pet.); Perez v. State, 113 S.W.3d 819 (Tex.Ct.App.-Austin 2003, no pet.).  The Court also engages in an exhaustive review of relevant federal case law which addresses the identical issue. 

Taking the split of authority among the various courts of appeals into consideration and relying on one specific case out of the Eighth Circuit Court of Appeals, United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), the Court fashions a two-part test which the proponent of this kind of hearsay evidence must establish in order to meet the admissibility standard of reliability.  The proponent (State) must make the record reflect that truth-telling was a vital component of the particular course of therapy or treatment involved and two, that is is readily apparent that the child-declarant was aware that this was the case.  Moreover, any statement which necessarily identifies the defendant as the perpetrator must be shown to be pertinent to the specific plan of treatment being sought by the counselor or therapist.  The more time that passes between the alleged act of sexual abuse and the making of statements which implicate the defendant, the less obvious it is that these kind of hearsay statements are pertinent to treatment.  So, the proponent of this type of hearsay evidence will have to make a record to show that it was important to the efficacy of the treatment that the mental-health professional know the identity of the perpetrator.

WHEN SIXTH AMENDMENT RIGHT TO COUNSEL ATTACHES AND DEFENDANT REQUESTS COUNSEL, LAW ENFORCEMENT MAY NOT INTERROGATE DEFENDANT UNLESS DEFENDANT INITIATES CONTACT AND VOLUNTARILY WAIVES HIS SIXTH AMENDMENT RIGHT

Pecina v. State, slip opinion no. PD-1159-07, Court of Criminal Appeals, October 29, 2008 - Appellant was found by police bleeding on the floor of his apartment.  His wife was also found on the floor, also bleeding from stab wounds.  Appellant was taken to the hospital for treatment.  His wife died there at the scene.  Police, believing that Appellant was responsible for the death of his wife, arrived at the hospital with a warrant for his arrest.  A justice of the peace was summoned to arraign Appellant.  The JP also translated for the police.  The magistrat testified that she read him Appellant his rights in the hospital room with the police present.  He indicated that he understood his rights and desired to have a lawyer appointed.  The JP began to fill out the paperwork. She then asked him if he wanted to speak to the police.  He replied “yes.”  She did not indicate that he wanted counsel present during the questioning.  She also testified that Appellant never told her that he wanted to talk to the police.  Appellant was once again advised of his Miranda rights and he signed the form.  One of the detectives wrote in Spanish on the side of the waiver form “I asked for a lawyer, but I also wanted to speak with the Arlington police.”  He then gave a tape-recorded confession.

Appellant moved to suppress the confession, arguing that once he indicated his desire for counsel at his hospital-room arraignment, in the absence of clear evidence that he initiated further contact with the police, his Sixth Amendment right attached and any further police contact was illegal.  The trial court denied the motion to suppress as did the Ft. Worth Court of Appeals.  The Ft. Worth Court decided the case on two theories - that Appellant waived his Fifth Amendment by failing to invoke it and that he waived his Sixth Amendment right to counsel by ”re-initiating” contact with the police. 

The Court, after examination of the relevant Supreme Court cases on the issue [see Edwards v. Arizona, 451 U.S. 477 (1980) and Michigan v. Jackson, 475 U.S. 625 (1985)] holds that law enforcement cannot initiate contact with a defendant who has requested counsel at an arraignment and then request a waiver of that right for the purpose of interrogation.  Moreover, the Court disagrees with the reading of the record when it comes to whether or not Appellant actually initiated contact with the police.  The Court, after examining the record on its own, concludes that Appellant’s affirmative response to the magistrate’s inquiry about whether he wanted to talk to the police does not indicate that Appellant initiated contact or opened dialog with law enforcement.  The magistrate testified that Appellant never told her that he desired to talk to the police.  Just as in Edwards v. Arizona, the State showed only that Appellant responded to further police-initiated questioning.  Thus, Appellant’s waiver of his right to counsel, after his assertion of the same right at his arraignment in view of police initiation, is invalid.  There was no evidence of Appellant’s initiation as required by Edwards bright-line rule.  The court of appeals erred in holding that Appellant initiated contact with the police and waived his previously invoked right to counsel.  Case is reversed and remanded to the appeals court for a harm analysis.

EXCLUSIONARY RULE NOT AVAILABLE TO ONE WHO CHOOSES TO ACT ILLEGALLY TO AN UNLAWFUL ACT BY A STATE AGENT

State v. Iduarte, slip opinion no. PD-1341-07, Court of Criminal Appeals, October 29, 2008 - Ft. Worth police were called out to a domestic disturbance involving Appellant, his wife and a third party.  Appellee was upset with his wife when the police arrived.  The two officers who showed up testified that they had received a “shots fired” alert.  The three were separated.  The wife wanted Appellee to give her the keys to the pickup that she had been driving.  Appellee at first denied knowing where they were to one of the officers but then suggested that they were in his apartment.  Appellee told the officer that there was no electricity in the apartment so the officer used a flashlight to look for them.  No keys were found.  The officer repeatedly questioned Appellee about whether he had a gun.  Appellee denied that he owned a weapon.  During this exchange, the officer believed that Appellee was intoxicated.  As they left the apartment, the officer noticed an empty pistol holster near the entrance to the apartment.  Again, the officer confronted Appellee about ownership of a weapon.  Appellee became very agitated and began clinching his fist.  The officer then told Appellee that he planned on arresting him for public intoxication but did not put any restraints on Appellant.  At this point, Appellee turned around, walked back up the stairs leading to the apartment and according to the officer, yelled “You want a gun?  I will show you the gun.”  Appellee then ran from the officer into the apartment.  The officer followed him inside.  As he shone the flashlight on Appellee, he saw Appellee reach over a chair and straighten up with a revolver in his hand.  He heard the hammer cock, saw Appellee turn toward him, point it at the officer’s face.  The officer testified that he dropped to his stomach and shot Appellee twice in the stomach.  In contrast, the second officer, who also witnessed the shooting, testified that Appellee put the gun to his head and threatened to shoot himself.

At the pretrial hearing, Appellee claimed that his constitutional rights were violated because the police had no probable cause to enter his apartment.  Secondly, he argued that the police created their own exigent circumstances to enter and that their conduct caused the shooting itself.  The trial court agreed with Appellee and held that the officer’s second entry circumvented the law and the Constitution by creating his own exigent circumstance.  The Court of Appeals reversed the trial court’s ruling, holding that even if the officer had engaged in some kind of illegal activity, Appellee chose to engage in his own illegal activity (alleged assault on the police officer) and that this was independent of any violation of the Fourth Amendment. 

The Court affirms the judgment of the appeals court and find that although the officer’s actions may have overstepped the limits of his authority, such a violation does not justify a subsequent assault by Appellee.  In other words, the evidence underlying the alleged assault on the officer was acquired independently and was not causally connected to the officer’s supposedly illegal entry.  Here, evidence of the charged offense did not exist before the officer’s challenged actions because the charged offense had not yet occurred.  Therefore, the exclusionary rule simply does not apply to an event that is not causally connected to any unlawful entry.  And whether or not Appellee actually pointed the gun at the officer or himself is an issue for the jury and not the court and this cannot form the basis of a finding that evidence connected with the indicted offense must be suppressed.     

OCTOBER 22, 2008

MULTIPLE PUNISHMENTS FOR FELONY MURDER AND AGGRAVATED ROBBERY PROHIBITED WHEN AGGRAVATED ROBBERY IS “SUBSUMED” BY FELONY MURDER COUNT

Littrell v. State, slip opinion no. PD-1555-07, Court of Criminal Appeals, October 15, 2008 - In a single jury trial, Appellant was tried and convicted on two counts of felony murder and aggravated robbery.  The Amarillo Court of Appeals held that convicting and punishing Appellant for both offenses did not offend the Fifth Amendment prohibition against double jeopardy.  The Court of Criminal Appeals, in a rare move, granted a petition for discretionary review on its own motion to examine the Amarillo Court’s holding.  Held: reversed.

Appellant was charged in a multi-count indictment with felony murder and aggravated robbery involving the same victim.  Briefly, the facts showed that Appellant and a prostitute went out at night looking for a way to raise money to buy crack cocaine.  The prostitute knew of a prior “john” she had serviced earlier that night and suggested that they go to his motel room where they could “jack” him and steal his money.  When the prostitute knocked on the victim’s motel door and he opened it up, Appellant forced his way into the room.  The victim, who was much larger than Appellant, fought with him.  Appellant fled the room and the victim followed.  Appellant then turned around and shot the victim to death with a small caliber handgun. 

The first count of the indictment charged Appellant with felony murder, alleging that he committed an act clearly dangerous to human life in flight following the commission of aggravated robbery, to wit: discharging a firearm in the direction of the victim and causing his death.  The second count charged Appellant with the underlying aggravated robbery.  Appellant argued on appeal to the Amarillo Court of Appeals that the two prison sentences assessed violated the Fifth Amendment prohibition against double jeopardy.  The Amarillo Court, per J. Quinn, quickly disposed of the argument by noting that since aggravated robbery required proof of different elements from felony murder, there was no violation of the Fifth Amendment.  The Court found this analysis to be flawed.

The Double Jeopardy Clause of the Fifth Amendment was designed to protect an accused from a second prosecution following an acquittal or previous conviction or to protect an accused from being punished more than once for the same offense.  The present case involves multiple punishments stemming from a single prosecution.  In multiple prosecution cases, two offenses may be the same if one offense stands in relation to the other as a lesser-included offense or if the two offenses are defined under distinct statutory provisions and the legislature made clear that only one punishment was intended.

The State’s theory of felony murder in Count One rested on the argument that Appellant’s commission of an act which was clearly dangerous to human life occurred during the commission of or in flight from the act of aggravated robbery.  Proof of Count One clearly required proof of the underlying aggravated robbery.  In other words, perfection of proof under Count One necessarily required the State to prove up aggravated robbery as a constituent element of its case-in-chief.  Count Two alleged the predicate aggravated robbery and successful proof of that count required no more evidence than what was presented to the jury under Count One.  Count Two was clearly subsumed under Count One and therefore constitutes a lesser-included offense of Count One, both as a matter of state law and for double-jeopard purposes. 

Had Appellant been charged under Sec. 19.02(b)(1), aggravated robbery would not have constituted a lesser included offense because murder under that theory would only have required that Appellant knowingly or intentionally caused the death of the complainant and would not have required proof of an aggravated robbery. But the manner in which the State pled the murder required it to prove all elements of aggravated robbery.  And because there is no evidence in the murder statute that the Legislature intended for multiple punishments to be assessed when someone is prosecuted under the felony murder provision of Sec. 19 of the Penal Code, Count Two alleging aggravated robbery must be considered to be a lesser-included offense of felony murder as pled in the indictment. 

Appellant’s double jeopardy rights were violated by the multiple punishments.  The proper remedy is to set aside the count of conviction with the less severe punishment.  Since the court of appeals had the authority to modify the trial court’s judgment and set aside the conviction and sentence for the aggravated robbery and affirm the conviction and sentence for felony murder, that is exactly the judgment entered by the Court of Criminal Appeals. 

OUT-OF-COURT DECLARATION OF NON-TESTIFYING CO-DEFENDANT MAY BE ADMITTED TO IMPEACH OTHER OUT-OF-COURT DECLARATION OF SAME NON-TESTIFYING CO-DEFENDANT, NO CRAWFORD VIOLATION

Hernandez v. State, slip opinion no. POD-1879-06, Court of Criminal Appeals, October 15, 2008 - The trial court admitted into evidence a co-defendant’s testimonial statement for the express purpose of impeaching another out-of-court statement of that same co-defendant.  Where the defense used a jailhouse informant to relate statements made by Appellant’s co-defendant which maximized her involvement and minimized Appellant’s culpability in a murder, the State called a police detective who was permitted to read extracts from the co-defendant’s written statement given to law enforcement which contradicted the jailhouse informant’s testimony and maximized Appellant’s involvement.  Although the Court held that the statement read by the police detective was clearly testimonial, as defined by Crawford v. Washington, 541 U.S. 36 (2004), it was offered for the nonhearsay purpose of impeaching the credibility of its sponsor and therefore, not violative of Crawford.  When Appellant called the declarant-co-defendant to testify, through the jailhouse informant, the declarant’s credibility was placed in issue.  Under Rule 806, in conjunction with Rule 613(a) of the Texas Rules of Evidence, the State was then permitted to impeach the declarant’s credibility by introducing prior inconsistent statements. 

The record reflects that the statement which the detective read to the jury was redacted to illustrate only those statements which were inconsistent with the statements attributed to her by the jailhouse informants.  Before allowing the detective to read the statement, the jury was instructed that it could not consider the statements contained therein as evidence of guilt but rather only as impeaching evidence.  Therefore, the co-defendant’s out-of-court, testimonial statement made to the police officer was properly admitted, not to prove the truth of the matter asserted - that Appellant was guilty of the crime of murder - but rather for the nonhearsay purpose of impeaching the co-defendant’s credibility.  It did not implicate Appellant’s confrontation rights under Crawford and was admissible under Crawford.

TRIAL COURT COMMITS REVERSIBLE ERROR IN ADMITTING INTO EVIDENCE AND CONSIDERING AN UNSWORN COPY OF AN OFFENSE REPORT IN LIEU OF LIVE TESTIMONY OR AFFIDAVIT FROM ARRESTING OFFICER AT SUPPRESSION HEARING

Ford v. State, slip opinion no. 06-08-00046-CR, Texarkana Court of Appeals, October 1, 2008 - Appellant was charged with misdemeanor possession of marijuana.  He moved to suppress admission of the contraband.  At the hearing, the trial court permitted the State to introduce into evidence an unsigned, undated copy of the offense report in place of any live testimony from the arresting officer or a sworn affidavit from the officer.  The trial court denied the motion to suppress and stated on the record that it was basing its decision solely on the information contained in the offense report.

The Court notes that trial courts may resolve issues at suppression hearings based on live testimony or upon affidavits.  Although the rules of evidence normally do not attach to pre-trial evidentiary hearings, the legislature has specifically authorized how trial courts may decide issues before trial. see art. 28.01(6) Code of Criminal Procedure.  To conduct these hearings properly, trial courts must admit only evidence that is supported by affidavit or sworn live testimony.  And whereas hearsay can be admitted at these kind of hearings, the trial court in this case did not receive any testimony from any State’s witnesses through which hearsay evidence could have been properly admitted.  Instead, the State pinned its hopes on unsworn documentary evidence. 

A trial court is permitted to rule on a suppression hearing based on the motion itself, competing affidavits or live testimony. State v. Brunner, 917 S.W.2d 103, 105 (Tex.Ct.App. San Antonio 1996, pet. ref’d.).  Because the State failed to supplement the record with any sworn affidavit or sworn testimony (it neglected to cross-examine Appellant when he completed his live testimony) and because an affidavit or sworn live testimony is statutorily required for the suppression hearing, the trial court erred in applying the unsworn, unsigned and undated offense report to the law in this case.  Once the law officer’s unsworn, undated and unsigned report is removed from consideration in the record, there remains no evidence in the appellate record to support the trial court’s legal conclusions that the officer’s search of Appellant’s truck was permissible under an exception to the Fourth Amendment.  Therefore, the trial court erred in overruling Appellant’s motion to suppress.  The trial court’s judgment is reversed and remanded for further proceedings consistent with the opinion.

Query: May the State now go back and supplement the record with live testimony and/or a sworn affidavit from the arresting officer to rebut Appellant’s live testimony?  Remember that the ruling does not find that there was a per se violation of the Fourth Amendment; just that there is an insufficient record to uphold the trial court’s ruling that the search was lawful.  Most likely, given the specific language of the opinion, the State will probably get a second crack. 

PAROLE CONDITIONS; SEX OFFENDER CONDITIONS MAY BE APPLIED TO PAROLEE EVEN WITHOUT “REPORTABLE” OFFENSE OF CONVICTION

Ex parte Campbell, slip opinion no. AP-75,838, Court of Criminal Appeals, October 15, 2008 - Applicant filed his writ of habeas corpus alleging denial of due process because the Parole Board had amended his parole by placing sex offender conditions upon his release, even though he had never before been convicted of a reportable offense as listed under the Sex Offender Registration Statute.  He had been convicted at one time of indecent exposure but this is not a “reportable” offense since it takes two convictions to put it in the “reportable” catagory.  The trial court convened a hearing and recommened that he be granted relief, finding a violation of due process in subjecting Applicant to a myriad of sex offender conditions.  The Court denies habeas relief and holds that sec. 508.225 Code of Criminal Procedure (Sex Offender Registration Statute) does not preclude the use of child safety zones in circumstances other than a reportable offense.  More importantly, sec. 508.221 C.C.P. confers broad general authority on a parole panel to impose conditions of parole or mandatory supervision.  The authority of the parole panel is made consistent with the authority that a trial court has to impose conditions on a defendant placed on probation under 42.12 C.C.P.  Indecent exposure is a sex offense and a person who commits indecent exposure is specifically identified as a “sex offender” by article 42.12, section 11.  Under that section, a trial court is required to impose sex offender conditions for one who commits indecent exposure against a child.  Given the general authority granted to a parole panel to impose any condition of probation permitted by art. 42.12, it is illogical to prohibit imposition of child safety zones as a condition of parole for a first-time indecent exposure offense when it would be required as a condition of probation under art. 42.12.  The express grant of authority to impose child safety zones for one class of offender as listed in sec. 508.225 C.C.P. does not override a parole panel’s general authority to impose the same condition on other classes of offenders. 

This was a close 5/4 decision and the minority, composed of Price, Johnson, Meyers and Holcomb, issued a blistering dissent which pointed out that what is specifically included within a particular statute (persons, things, consequences, classes) will specifically exclude from consideraton all others.  In other words, if a first time violation of indecent exposure is specifically excluded from those offenses considered to be “reportable,” and therefore not subject to a child safety zone restriction, then it is logically excluded from a parole panel’s consideration as well. 

OCTOBER 14, 2008

FAILURE TO CHARGE JURY ON ACCOMPLICE AS A MATTER OF FACT RESULTS IN REVERSAL AND REMAND

Biera v. State, slip opinion no. 07-06-0335-CR, Amarillo Court of Appeals, October 13, 2008 - Appellant was tried and convicted of aggravated robbery and subsequently sentenced to 60 years TDC.  On appeal, he claimed that the trial court committed reversible error by failing to instruct the jury that one of the witnesses for the State should be classified as an accomplice as a matter of fact and that the jury should have been given the opportunity to pass on her credibility in that context.  The Amarillo Court agrees and in a succinct opinion written by Justice Campbell, reverses and remands for new trial.

The record showed that a Whataburger in Lubbock was robbed by two men in skis masks, armed with guns.  No one could positively ID either of the robbers.  One unspent .380 cartridge was recovered but could not be hooked up with any guns connected to Appellant.  One print was lifted from the scene but it too could not be linked to Appellant.  The evidence also showed and the jury was permitted to hear about a number of extraneous offenses which involved Appellant and the people who lived at this apartment.  The State introduced and argued that much of this evidence - methamphetamine use, use of stolen credit cards and the like - was relevant to Appellant’s need to commit the robbery in question.  When one of the guests at Appellant’s apartment was arrested for stealing credit cards, she told the police what she knew about Appellant and his cohart, Morado, about the Whataburger robbery.  As a result, Appellant was listed as a suspect in that robbery.  They were later arrested and indicted for the Whataburger robbery.  Morado cut a deal and took 20 years and later testified against Appellant at trial.  Another guest at Appellant’s apartment, Yzaguirre, also testified and it was her testimony that formed the basis of Appellant’s complaint on appeal.  Yzaguirre testified that Appellant instructed her to go out and buy two pull-over masks similar to what the robbers wore during the Whataburger robbery.  She feigned ignorance about her knowledge that Appellant would use the masks to carry out the robbery.  The defense stressed Yzaguirre’s knowledge of all the extraneous offenses going on at Appellant’s apartment and her involvement in those, arguing that she knew full well what the purpose of the masks were and that she had knowledge of the pending robbery.

Once an accomplice testifies, it is for the jury to determine if the testimony is sufficiently corroborated.  Of course, it is axiomatic that a conviction cannot be sustained on the testimony of an accomplice as a matter of law alone.  There must be sufficient, independent corroborating evidence tending to connect the accused to the commission of the offense.  If the witness is an accomplice as a matter of law, then the court must instruct the jury accordingly.  But if the parties present conflicting or unclear evidence on whether the witness can clearly be labeled an accomplice as a matter of law, then the jury must determine, upon proper instruction, whether the witness is an accomplice as a matter of fact. Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App. 2006); Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998).  Appellant’s attorney’s request that the trial court instruct the jury that Yzaguirre should be treated as an accomplice as a matter of fact preserved the issue and the Court analyzed the state of evidence to determine if, indeed, Yzaguirre was that. 

Justice Campbell’s opinion noted that the State argued the extraneous offenses (use of methamphetamine, use of stolen credit cards) was rampant and that all occupants of the apartment engaged in this behavior.  It also argued that the Whataburger robbery was necessary so all could continue to use methamphetamine.  Since only one person had gainful employment (Vargas), they all benefitted from the robbery.  And Yzaguirre herself admitted that she went to several stores in the area to find the pull-over masks, even cancelling her attendance at a relative’s birthday party to find the masks.  Justice Campbell concluded that the jury was free to believe Yzaguirre was an innocent dupe, tricked into buying the masks for Appelland and her husband, Morado, or that she knew what they were up to and assisted them in in the robbery.  Omitting the accomplice as a matter of fact instruction was error. 

When analyzing charge error, the test is whether Appellant suffered “some” harm from the omission of the instruction. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)(op. on rehearing).  Cases involving preserved charge error are to be affirmed only if no harm has occurred.  Airline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986).  Here, by eliminating the accomplice testimony and focusing solely on the non-accomplice evidence, the record is simply too thin to justify a finding of no harm.  Because no one could actually identify Appellant as the robber and the lack of prints or guns which could connect him to the robbery, the Court was left with the discovery of two masks in a bag which purportedly belonged to Appellant.  However,the record also disclosed that it could not be said that all items found in the bag could be tied only to Appellant.  Because the available evidence does not fulfill the purpose of the missing accomplice as a matter of fact instruction as it relates to Yzaguirre, the Court cannot say that its absence if harmless.  Appellant suffered some harm from its omission and thus, the case is reversed and remanded to the trial court for whole new trial on the merits. 

OCTOBER 13, 2008

JUDGMENT ORDERING PAYMENT OF RESTITUTION TO THIRD PARTY WHO WAS NOT NAMED IN ORIGINAL INDICTMENT MODIFIED AND RESTITUTION ORDER DELETED

Reasor v. State, slip opinion 04-07-00442-CR, San Antonio Court of Appeals, September 24, 2008 - Appellant was on ten years deferred adjudication for possession of cocaine.  Eventually, the State filed its motion to proceed and alleged several grounds of revocation, among them allegations that he had damaged the rent house he was living in and had written “hot checks” to the landlord.  At the hearing, he pled true to two technical violations but contested the allegations surrounding his stormy relationship with the landlord.  Although the evidence was sharply contested as to whether Appellant actually committed criminal mischief as charged in the motion to revoke or whether he actually wrote “hot checks,” the appeals court nevertheless affirmed the adjudication order since he pled true to two technical violations.  However, the Court deleted the gigantic restitution order entered by the trial court.  At the conclusion of the revocation hearing, the State requested that the court order that the landlord and another third party who had obtained a civil judgment against Appellant for some home improvement work that he did not complete.  The trial court entered an order of restitution in the princely amount of $15,000.  Although Appellant’s attorney did not object at the hearing, complaints regarding restitution orders may be raised for the first time in a motion for new trial and on appeal.

The trial court may impose restitution only for the victim of the offense for which the defendant was convicted. Martin v. State, 874 S.W.2d 674, 677 (Tex.Crim.App. 1994).  Because the landlord and judgment creditor were not named victims of Reasor’s cocaine possession conviction, the trial court’s order requiring restitution payment to both as a condition of Appellant’s parole was an abuse of discretion.  See Campbell v. State, 5 S.W.3d 693, 697 (Tex.Crim.App. 1999).  The appropriate remedy in light of this error is deletion of the restitution order from the judgment of the trial court.

EVIDENCE LEGALLY INSUFFICIENT TO SUPPORT CONVICTION FOR CONSTRUCTIVE DELIVERY OF COCAINE

Stephens v. State, slip opinion no. 06-08-00022-CR, Texarkana Court of Appeals, September 26, 2008 - Appellant was indicted for the constructive delivery of cocaine only.  There was no alternative pleading that Appellant actually delivered cocaine even though the State could have easily done so.  The facts revealed that Appellant, a known crack dealer, delivered ten grams of crack to a confidential informant (Lewis) who then delivered the dope to a deputy sheriff who was waiting in the wings.

A legal sufficiency challenge is analyzed under the hypothetically correct charge. Gharbi v. State, 131 S.W.3d 481, 483 (Tex.Crim.App. 2003).  The hypothetically correct charge may not modify the indictment allegations in such a way as to allege an offense different from the offense alleged in the indictment. Gollihar v. State, 46 S.W.3d 243, 255 n. 20 (Tex.Crim.App. 2001).  Thus, the hypothetically correct charge may not convert a constructive delivery charge into one that allows conviction for actual delivery.

The law permits three kinds of delivery - actual, constructive and offer to sale.  The indictment must specify what kind of delivery the State intends to rely upon to obtain conviction.  The State may alleged multiple methods of delivery in the indictment.  An actual delivery involves the manual delivery of controlled substance from the transferor to the transferee or to the transferee’s agent or to someone identified in law with the transferee. Heberling v. State, 834 S.W.2d 350, 354 (Tex.Crim.App. 1992).  A transferee’s agent can be an undercover officer-buyer’s agent or representative, such as a confidential informant. Id. 

A constructive delivery requires transfer of the controlled substance either belonging to an individual or under his control by some other person or agency at the insistence or direction of the individual accused of such constructive transfer.  Some appeals courts have held that constructive transfer requires the transferor to have actual knowledge of the ultimate transferee. see, e.g. Daniels v. State, 754 S.W.2d 214, 221-22 (Tex.Crim.App. 1988); Sheffield v. State, 623 S.W.2d 403, 405 (Tex.Crim.App. [Panel Op.] 1981); Hart v. State, 15 S.W.3d 117, 119 (Tex.Ct.App.-Texarkana 2000, pet. ref’d.).  Other courts have held that this element need not be proved.  The Court of Criminal Appeals made this point in its recent case of Sims v. State, 117 S.W.3d 267 (Tex.Crim.App. 2003) when it held that “when the transferee alleged is not the immediate transferee, then for the evidence to be sufficient, the defendant must have contemplated that there would in fact be a third party transferee.” Id., quoting Daniels, 754 S.W.2d at 221-22.  So, a conviction for constructive delivery of a controlled substance requires some proof that the defendant-transferor was “at least aware of the exisence of an ultimate transferee” before it may be concluded that he made the delivery through a third party. see Marable v. State, 990 S.W.2d 421 (Tex.Ct.App.-Texarkana 1999), aff’d, 85 S.W.3d 287, 291 (Tex.Crim.App. 2002).

Applying these principles to the facts of the case, the Court concluded, reluctantly, that the evidence was insufficient as a matter of law.  Appellant sold six or seven rocks to the C.I.  The ultimate transferee, the Panola County Sheriff’s Deputy, testified that a purchase price of $1,000 indicated that the buyer was a mid-level drug courier who could be expected to sell the drugs to ultimate users.  However, the evidence in this case showed that the C.I paid Appellant only $275 for the rocks in question.  When asked on cross whether the amount purchased was consistent with personal use, the deputy simply replied that “ten grams is a pretty good amount.”  The C.I. (Lewis) himself testified that he earlier had purchased six rocks of crack cocaine for only $100 and that this was for personal use only.  Lewis never testified that he informed Appellant that he intended to deliver or sell the drugs to anyone else, strongly suggesting to Appellant that Lewis was an end-user.  Finally, the State produced no evidence which showed, much less suggested, that Appellant believed that Lewis would deliver the drugs to a third party or that he personally directed Lewis to do the same.  There was no evidence to suggest that Appellant knew or should have known that Lewis was an intermediary or agent of law enforcement or any other third party recipient. 

Absent specific evidence to support the conclusion that Appellant knew a subsequent delivery would be made by the C.I. to the deputy or anyone else, the evidence in this case under this particular indictment (alleging only constructive delivery) was legally insufficient.  While there was sufficient evidence to show an actual delivery to Lewis, the Court was duty bound to reverse the trial court judgment of conviction and render a judgment of acquittal.

OCTOBER 7, 2008

HEARSAY STATEMENTS THAT ARE DIRECTLY AGAINST THE SPEAKER’S PENAL INTEREST, INCLUDING “BLAME-SHARING” STATEMENTS, ARE ADMISSIBLE UNDER TEXAS RULE OF EVIDENCE 803(24); SELF-EXCULPATROY STATEMENTS THAT SHIFT BLAME MUST BE EXCLUDED.

Walter v. State, slip opinion no. PD1929-06, Court of Criminal Appeals, October 1, 2008 - Appellant was tried and convicted for the capital murder of three employees of the Outback Steakhouse in Texarkana.  During the trial, Roderick Henson testified about a conversation he had with his brother, Markel, Appellant’s co-defendant.  Markel’s statements to his brother implicated both himself and Appellant but shifted most of the blame onto Appellant, including the assertion that Appellant was solely responsible for the shooting of the three victims.  The judge admitted all of the statements under the hearsay exception for statements against penal interest because they implicated him in a capital murder. 

The court of appeals affirmed the conviction and overruled Appellant’s hearsay objections to the conversation, finding that the record provided significant corroboration indicating a degree of trustworthiness to Markel’s statements to his brother.  The Court of Criminal Appeals granted review to determine whether the entire conversation was admissible as a statement against interest under Rule 803(24) or whether only those specific portions which actually implicated Markel’s penal interest should have been admitted.  The Court holds that only those specific references which implicated Markel alone or with Appellant are admissible.  Those statements which attempt to shift culpability to Appellant must be excluded.  As the Court adroitly put it: this new rule requires trial courts to separate the dross of blame-shifting statements from the gold of self-inculpatory and blame-sharing statements, admitting only the latter.

Although the general prohibition against hearsay arises from the harm caused by statements made after deliberation and thought, not subject to the “crucible of cross-examination,” many hearsay statements are permitted, particularly those statements made under conditions that militate against deliberation and planned thought.  Many exception permit statements made under stressful conditions or which are spontaneous.  Some exceptions permit statements made in the course of documentation.  These situations do not lend themselves to charges of fabrication.  However, the exception for statements made against penal interest takes on a different theory of admissibility.  It stems from a commonsense notion that people normally do not say things that subject them to criminal prosecution or condemnation unless they are true. 

This rule requires that the trial court utilize a two-step process to determine if the statement is admissible under Rule 803(24). First, the court must determine if the statement subjects the declarant to criminal liability and  whether the declarant realized, when he uttered the statement, that by doing so, he exposed himself to criminal liability.  Secondly, the court must determine if there are sufficient corroborating circumstances that clearly indicate the trustworthiness of the statement.  These statements against penal interest usually take on three forms: 1) those that expose the declarant to criminal liability; 2) those that expose both the declarant and another to criminal liability (sharing the blame) and 3) those that inculpate both but attempt to shift blame by minimizing the speaker’s culpability and maximize the other’s.

The Court, after having reviewed the various approaches advocated by legal scholars and appellate courts (state and federal), adopts that construct employed by the Supreme Court and informally adopted in two Texas cases, Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App. 1999) and Guidry v. State, 9 S.W.3d 133 (Tex.Crim.App. 1999).  Those statements that are directly against the declarant’s interest and collateral “blame-sharing” statements may be admissible under Rule 803(24), if corroborating circumstances “clearly indicate” their trustworthiness.  “Blame-shifting” statements that minimize the speaker’s culpability are not, absent extraordinary circumstances, admissible under this newly constructed rule. 

Therefore, the trial court must be called upon to parse a self-inculpatory statement and weed out those discrete, specific assertions that are self-exculpatory or shift blame on to someone else.  In the words of Judge Cochran, “the gold of self-incriminating words cannot carry with it the dross of self-exculpatory ones.”  The case is reversed and remanded to the appeals court for a harm analysis.

But note: in the post-Crawford world, all of a co-defendant’s custodial statements, unlike the case here, may be completely inadmissible and excludable under the Confrontation Clause unless the defendant on trial had the opportunity to cross-examine the declarant.

SEPTEMBER 12, 2008

OPENING STATEMENT MAY OPEN THE DOOR TO ADMISSION OF EXTRANEOUS OFFENSES

Bass v. State, slip opinion no. PD-0494/95-07, Court of Criminal Appeals, September 10, 2008 - Appellant was convicted of two counts of indecency with a child.  The State’s case relied primarily upon the testimony of the complainant and evidence of two similar accusations of indecency involving two other minor girls on church property.  The appeals court reversed, holding that the admission of the two extraneous offenses which occurred on church property was in error.  After the State made its opening statement, defense counsel made his and referred to the complainant’s allegations as “pure fantasy” and “pure fabrication.”  The defense went even further, emphasizing Appellant’s reputation as a pastor and his squeaky clean character.  The complainant testified that she initially made her outcry involving Appellant back in 1994 but no one believed her so no charges were made.  Then when she heard about her cousin having been allegedly abused by Appellant, she came forward again some ten years later.  After she completed her testimony, the State presented the two other girls who described molestation at the hands of Appellant in 1995 and 2000.  Defense counsel’s objections were vague but did point out that the extraneous offenses were not relevant to any contested issue in the case and that they did not fit any known exception to the prohibition of character-conformity evidence.  The trial court gave an oral limiting instruction at the time of the extraneous offense introduction.  In the defense case-in-chief, Appellant presented reputation and opinion testimony as to the lack of complainant’s truthfulness as well as reputation and opinion testimony as to his good character.  He took the stand and wholly denied commission of the offenses.

The appeals court reversed, holding that the extraneous offense evidence might have been admissible to rebut a “frame-up” or “retaliation” defense but not one of “fabrication.”  On PDR, the State argued that it really doesn’t make any difference whether one refers to Appellant’s defense as one of fabrication, frame-up or retaliation.  As long as the extraneous offenses tend to show that the charges made are not fabricated, i.e. if the State can show that a defendant has committed similar sexual assaults against unrelated and unconnected children, an affirmative defense allegation that the victim fabricated her claims is less likely to be true.  Thus, by showing that the victim’s allegations are less likely to be fabricated, the evidence directly rebuts the defensive claims and has logical relevance aside from character conformity. 

The Court of Criminal Appeals agrees and further holds that a defense opening statement opens the door to the admission of extraneous offense evidence, like that admitted in this case.  See also Powell v. State, 63 S.W.3d 435 (Tex.Crim.App. 2001); see also Daggett v. State, 187 S.W.3d 444 (Tex.Crim.App. 2005) (holding that a defendant’s sweeping direct examination disavowing any sexual misconduct with minors opened the door to admission of extraneous offense evidence of his sexual misconduct with another minor to rebut this sweeping denial.)  Case law simply makes no distinction between defenses of “fabrication,” “frame-up” or “retaliation.”  And not only was the extraneous offense evidence relevant to rebut this fabrication defense, it was also relevant in order to rebut the character evidence Appellant presented to the jury, emphasizing that he was a “real deal” and a “genuine” pastor. 

Of some interest was the Court’s concluding observation in footnote 9 where it declined to address the last theory of relevancy promoted by the State: that of the “doctrine of chances.”  This is a fascinating theory of admissibility behind the admission of extraneous offenses and a good discussion can be found in Casey v. State, 215 S.W.3d 870 (Tex.Crim.App. 2007); Martin v. State, 173 S.W.3d 463 (Tex.Crim.App. 2005); Robbins v. State, 88 S.W.3d 256 (Tex.Crim.App. 2002); Russell v. State, 113 S.W.3d 530 (Tex.Ct.App.-Ft. Worth, no pet.).  The Court chose not to address this theory of admissibility, reserving that for another day.  However, the case cited above are worth reading, especially the Russell case out of the Ft. Worth appeals court.  Therefore, the trial court did not abuse its discretion by admitting the two extraneous offenses.

WHEN POLICE ENTER A RESIDENCE IN RESPONSE TO A CALL FROM NEIGHBORS AND LAW ENFORCEMENT CONDUCT AN “OPEN DOOR CALL,” MEANING THEY WALKED INTO THE HOUSE TO CHECK ON THE RESIDENT’S WELL-BEING, ANY CONTRABAND SEEN IN PLAIN VIEW MAY BE SEIZED

Shepard v. State, slip opinion no. PD-1551-07, Court of Criminal Appeals, September 10, 2008 - Police responded to a call from Appellant’s neighbors who were concerned that his front door was left open.  The neighbor told the police that she worried that Appellant might be the victim of a break-in.   The police entered the house pursuant to what they called an “open door call,” meaning that the situation could indicate a burglary or that some occupant cuold be hurt.  The officers called into the house and when they received not answer, they entered with guns drawn.  They looked in closets but not any drawers.  They checked all areas where someone might be hiding or hidden.  During this sweep, they notice some marijuana and a bong in plain view.  They seized the marijuana and when Appellant showed up at the house, he admitted to the police that the marijuana was his.  On appeal from the denial of his suppression motion, the appeals court held that the emergency doctrine justified the search.  On PDR, Appellant argued that the “open door call” did not justify the warrantless seizure of the contraband. 

The Fourth Amendment does not bar the police from making warrantless entries and seizures when they reasonably believe that a person is in need of immediate aid.  Any search of this tenor must be strictly circumscribed by the exigencies which justify its initiation. If the search is justified under the emergency doctrine, then the police may seize any evidence that is in plain view during the course of their legitimate emergency activities, such as the “protective sweep” search that occurred here.  As long as the facts known to the police at the time that they initiate the entry and sweep are reasonable for them to believe that the entry is necessary to preserve or protect life or to avoid serious injury, then the fourth Amendment does not require that the police ignore the presence of contraband.  Seizure upheld as reasonable under the emergency doctrine.

RESTITUTION ORDER MUST BE SUPPORTED BY EVIDENCE THAT PROVIDES A REASONABLE BASIS FOR ESTIMATING THE LOSS TO THE VICTIM OR THE VICTIM’S ESTATE

Barrera v. State, slip opinion no. PD-1642-07, Court of Criminal Appeals, September 10, 2008 - The trial court ordered Appellant to pay the funeral expenses to the victim’s estate in light of no evidence presented on the record to estimate the loss.  The appeals court held that this was in error in light of the requirements of Art. 42.037(a),(c),(d) & (k), even though trial counsel did not object to the entry of the restitution order.   The appeals court also held that the proper remedy in light of a lack of factual foundation was to delete the restitution order.  The Court of Criminal Appeals reverses the appeals court, holding that the propert remedy is to reverse and remand for a new restitution hearing where the State can present evidence in support of the request for restitution.  The Court notes that Appellant did not object to the lawfulness of the restitution order so that issue was not before it. 

TRIAL COURT’S FAILURE TO CONSIDER FULL RANGE OF PUNISHMENT IMPLICATES FUNDAMENTAL RIGHT TO AN IMPARTIAL JUDGE WHICH IS AN ABSOLUTE REQUIREMENT THAT CANNOT BE WAIVED BY FAILURE TO OBJECT

Hernandez v. State, slip opinion 13-07-00733-CR, Corpus Christi Court of Appeals, August 28, 2008 - Appellant was prosecuted for robbery, enhanced with one prior.  He was sentened to 24 years in prison.  On appeal, inter alia, he argued that the trial judge denied him due process by failing to consider the full range of punishment when he determined Appellant’s punishment.  In support, Appellant pointed to the comments made by the trial court during pre-trial hearings.  There, Appellant was informed by the trial judge that any offender who had served a set number of years in prison will receive at least double that if convicted in his court.  “Whatever the highest one you have, I double.  Okay? . . . Ask the other prisoners in jail, they will tell you.  Anything else?”  At the punishment hearing, the prosecutor, obviously cognizant of the judge’s “formula,” urged a sentence of twenty-four years since Appellant’s prior conviction was for 12 years.  The judge sentenced Appellant to 24 years in prison. 

In holding that every defendant has a fundamental right to an impartial judge, the Court also held that an impartial judge is an absolute requirement. 

We find that a defendant has an absolute right to an impartial judge not only when guilty and innocence are at issue, but also when punishment is an issue.  Guided by Judge Keasler’s concurence in Blue v. State [41 S.W.3d 129, 129-30 (Tex.Crim.App. 2000)(plurality opinion)] and the First Court of Appeals’ reasoning in Jaenicke v. State, [109 S.W.3d 793, 796 (Tex.Ct.App.-Houston [1st Dist.] 2003, pet. ref’d.)], we further find that a defendant may complain for the first time on appeal about a trial court’s refusal (i.e., lack of impartiality) to consider the full range of punishment - so long as the trial judge’s conduct is so egregious as to deem the judge biased on the matter of punishment. [citation omitted]  In the instant case, the trial judge’s bias and partiality stemmed from her strict adherence to an ill-conceived mathematical formula that was meant to formulate a punishment that satisfied the interests of justice.  No mathematical formula, however, can ever intelligently satisfy those interests.

The judgment of conviction for robbery is affirmed but the punishment verdict is reversed and remanded for a new trial on punishment.

SEPTEMBER 10, 2008

POLICE OFFICER’S HONEST BUT MISTAKEN UNDERSTANDING OF TRAFFIC LAW WHICH PROMPTS INVESTIGATIVE DETENTION IS NOT EXCEPTION TO REASONABLE SUSPICION REQUIREMENT

Fowler v. State, slip op. no. 02-06-00183-CR, Ft. Worth Court of Appeals, August 14, 2008 - There are two primary questions present in this appeal: 1) Does a police officer have probable cause or reasonable suspicion for a traffic stop when the officer observes the tires of the defendant’s car cross over into an adjacent same-direction lane by a tire’s width a single time when there is no other traffic in the area and 2) does a police officer’s honest but mistaken understanding of traffic law which underscores the stop serve to establish reasonable suspicion to effectuate the stop?  The Ft. Worth Court of Appeals answers a resounding NO to both inquiries.

As can be gleaned from the question posed above, the arresting officer testified at the suppression hearing in Appellant’s DWI prosecution that the sole reason he stopped him was that Appellant’s vehicle was observed cross over the white line of the outside lane, approximately a tire’s width, once.  Appellant’s tire then “drifted over” and touched the white line two more times.  This occurred in a one-block length and there was no other traffic around Appellant or heading his way when it happened.  The officer made the stop based on this alone, believing that what he observed constituted a violation of the Transportation Code, section 545.060(a), “failure to maintain single lane.”  However, the Court readily points out that a violation of sec. 545.060(a) prohibits movement from a lane of traffic unless that movement can be made safely.  The officer believed that Appellant’s movement without signaling a lane change was sufficient to constitute a violation of the statute.  However, analysis of the relevant statute persuades the Ft. Worth Court that a vehicle’s slow drift until two of its tires crossed into another same-direction lane, at an hour when there were few other cars about, does not give rise to a reasonable suspicion of criminal activity because the State presented no evidence that the driver’s failure to drive in a single lane was unsafe or dangerous.  The Court also notes that several other appeals courts have reached the same conclusion under similar facts; e.g. State v. Huddleston, 164 S.W.3d 711 (Tex.Ct.App.-Austin 2005, no pet.); Eichler v. State, 117 S.W.3d 897 (Tex.Ct.App.-Houston [14th Dist.] 2003, no pet.); Bass v. State, 64 S.W.3d 646 (Tex.Ct.App.-Texarkana 2001, pet. ref’d.); Corbin v. State, 33 S.W.3d 90 (Tex.Ct.App.-Texarkana 2000), rev’d on other grounds, 85 S.W.3d 272 (Tex.Crim.App. 2002); State v. Cerny, 28 S.W.3d 796 (Tex.Ct.App.-Corpus Christi 2000, no pet.); State v. Arriaga, 5 S.W.3d 804 (Tex.Ct.App.-San Antonio 1999, pet. ref’d.); State v. Tarvin, 972 S.W.2d 910 (Tex.Ct.App.-Waco 1998, pet. ref’d.).

Likewise, the Court disposed of the State’s argument that reasonable suspicion was established as a result of the officer’s honest, sincere belief that the driver had violated a traffic law.  An officer’s reasonable suspicion of an alleged traffic violation cannot be based on a mistaken understanding of traffic laws. United States v. Granado, 302 F.3d 421 (5th Cir. 2002); Goudeau v. State, 209 S.W.3d 713 (Tex.Ct.App.-Houston [14th Dist.] 2006, no pet.).  Thus, the officer’s misunderstanding that section 545.060(a) requires only crossing of the lane line, regardless of whether it is unsafe or dangerous to do so, will not support a reasonable suspicion.  Because reasonable suspicion cannot be established in support of the stop, much less probable cause, the trial court was in error in failing to suppress video, statements and the results of the chemical tests for intoxication.  The cause is reversed and remanded for further proceedings.

RELIANCE ON TWO CONFIDENTIAL INFORMANT TIPS WITHOUT ANY INDICIA OF RELIABILITY, AN ABANDONED PROPERTY SEARCH AND “CRIMINAL HISTORIES” OF THE OCCUPANTS OF A RESIDENCE DOES NOT PROVIDE PROBABLE CAUSE FOR THE ISSUANCE OF SEARCH WARRANT

State of Texas v. Dickson, slip opinion nos. 05-07-01542-CR & 05-07-01543-CR, Dallas Court of Appeals, August 21, 2008 - The State appealed an order granting Appellee her motion to suppress the seizure of marijuana and hydrocodone.  The four corners of the search warrant affidavit showed that the two “informants” that the affiant relied upon were two minors who alleged that they had “received” drugs from the occupants of the subject residence six days prior to the issuance of the warrant and that one had heard about an “online chat” between Appellee’s mother and a third-party that she would be coming into possession of muchrooms in a “few days.”  The officer also stated that on the day that he secured the warrant, he conducted an abandoned property search which consisted of going through what he represented was Appellee trash and finding within marijuana paraphernalia and marijuana stems.  Finally, the officer stated that the individuals who had the same names as members of Appellee’s family and who lived in the residence had “criminal histories” for possession of marijuana.

In concluding that the trial court’s granting of the suppression motion was not an abuse of discretion, the Court noted that unnamed, minor informants with no history of reliability, coupled with the absence of any explanation within the body of the affidavit as to why they should be deemed reliable, does nothing to provide probable cause to the magistrate.  Moreover, there is nothing in the information provided by the minor informants which would lead a magistrate to conclude that controlled substances would be found in the residence six days after the statements attributed to Appellee’s mother. Secondly, an abandoned property search is of little use because the affidavit did not indicate just how long the trash had been exposed to the public or who might have had access to the trash.  Lastly, criminal histories cannot provide a basis for finding probable cause to believe that controlled substances might be found in the subject residence.  Order of suppression affirmed.

DENIAL OF ORAL, UNSWORN MOTION FOR CONTINUANCE CONSTITUTES A DENIAL OF DUE PROCESS

Anderson v. State, slip opinion no. 13-07-00099-CR, Corpus Christi Court of Appeals, August 14, 2008 - Appellant was indicted for aggravated sexual assault of a child.  A trial date was set but it was postponed so the State could obtain the results of DNA testing.  However, the State did not submit samples for DNA testing until less than two weeks prior to trial.  Four days before trial, the lab found a DNA match to Appellant’s DNA in the sample but the official result was not communicated to the State or to the defense until the day of trial, August 21.  Before trial commenced, Appellant’s attorney argued that the “last minute” notice constituted surprise.  He orally moved for a continuance of at least one month to evaluate the methodology used in the DNA match test.  The attorney also argued that he needed additional time to prepare to meet the State’s evidence by way of consultation with an expert of his own choosing and for eventual cross-examination of the State’s DNA expert.  The trial court denied the continance.  As a result, Appellant entered a plea of guilty but preserved his complaint directed toward the trial court’s denial of his continuance request. 

Generally, the decision to grant or deny a continuance is within the sound discretion of the trial court.  And the general rule is that an oral or unsworn motion for continuance preserved nothing for review.  But Texas courts have recognized an exception to this general rule when the denial of an oral motion for continuance would amount to a deprivation of due process. See Munoz v. State, 24 S.W.3d 427 (Tex.Ct.App.-Corpus Christi 2001, no pet.); Deaton v. State, 948 S.W.2d 371 (Tex.Ct.App.-Beaumont 1997, no pet.); Petrick v. State, 832 S.W.2d 767 (Tex.Ct.App.-Houston [1st Dist.] 1992, pet. ref’d.); O’Rarden v. State, 777 S.W.2d 455 (Tex.Ct.App.-Dallas 1989, pet. ref’d.).  The review of an oral, unsworn motion to continuance which alleges violation of due process, such as the need to conduct DNA testing and to prepare for cross-examination of a DNA expert, is conducted pursuant to an abuse of discretion standard.

Here, Appellant’s attorney established specific prejudice by the denial of the continuance.  He was unable to discuss the report with the author-chemist of the actual DNA report, unable to cross-examine effectively the chemist, unable to conduct additional testing and unable to obtain another expert to opine on the State’s expert handiwork.  In order to have a meaningful opportunity to present a complete defense, Appellant’s attorney should have been permitted time to evaluate the DNA evidence independently and to prepare for eventual cross-examination of the chemist who would be testifying against his client.  In essence, Appellant’s confrontation rights were severely compromised.  The trial court abused its discretion in denying Appellant’s oral motion for continuance.  Cause is reversed and remanded for new trial.

ANONYMOUS TIP BY UNNAMED INFORMANT OF UNDISCLOSED RELIABILITY, STANDING ALONE, DOES NOT ESTABLISHE REQUISITE LEVEL OF REASONABLE SUSPICION NECESSARY TO JUSTIFY AN INVESTIGATIVE DETENTION

Smith v. State, slip opinion no. 12-07-00214-CR, Tyler Court of Appeals, September 3, 2008 - A detective received an anonymous telephone call to his office about Appellant.  The calleer stated that a white male wearing a T-shirt with numerous tattoos down both arms was in a bar called Clicks Billiards and he was carrying a handgun.  The detective and two other officers entered the pool hall and proceeded to the bar area where they saw an individual who matched the general description provided by the anonymous tipster.  The detective asked the person, later identified as Appellant, if he would mind talking to him.  Appellant agreed and the detective asked if he would walk toward him.  The detective instructed Appellant to place his hands on the table in front of him for “officer safety” and when Appellant complied, the detective put his hands on Appellant’s wrists to make sure that he had “control of him.”  When asked if he had a gun, Appellant replied “yes.”  At this point, Appellant was cuffed and detained even though the detective continued to insist that Appellant was not under arrest.  After the gun on Appellant’s person was seized, he was then placed under formal arrest.

In his sole issue on appeal, Appellant argued that the trial court erred in denying his motion to suppress because his detention, the seizure of the weapon and his subsequent statements made to the detective were illegally obtained absent reasonable suspicion to conduct the investigate detention which ultimately led to the seizure of the handgun.  Held: trial court’s denial of suppression motion reversed, handgun and oral statements ordered suppressed.

A tip by an unnamed informant of undisclosed reliability may justify the initiation of an investigation but standing alone, it cannot provide the requisite leval of reasonable suspicion that criminal activity is afoot, thus justifying a temporary detention and patdown.  There must be some further indicia of reliability from the informant from which the police officer may conclude that the tip is reliable and a detention is justified.  Here, the anonymous tip justified the initiation of the investigation and the detective was entitled to talk to Appellant.  However, because no one observed Appellant engage in any criminal or suspicious behavior, without anything else to enhance or corroborate the anonymous tipster’s reliability, the officer was not justified in placing his hands on Appellant’s wrists and limiting his movement.  This was in essence an illegal detention and came before he asked Appellant if he was carrying a weapon.  The consensual encounter became a forced detention before the detective was able to corroborate the anonymous tipster’s report that Appellant had a gun.  Thus, the statement that he was carrying a gun and the gun itself were illegally obtained. see Florida v. J.L., 529 U.S. 266, 269-70 (2000).  The consent to search given by Appellant was not valid because it came about directly on the heels of the illegal detention. Viveros v. State, 828 S.W.2d 2, 3 (Tex.Crim.App. 1992).

SEPTEMBER 8, 2008

ALTERNATE JUROR’S PRESENCE ON JURY VIOLATES TEXAS CONSTITUTION, CONSTITUTIONAL ERROR RESULTS IN REVERSAL

Adams v. State, slip op. no. 04-07-00643-CR, 00644-CR & 00645-CR, San Antonio Court of Appeals, July 30, 2008 - Appellant was convicted of three counts of aggravated sexual assault of a child and sentenced to twenty-five years in prison.  On appeal, in a single point of error, he argued that the alternate juror’s presence and apparent participation in jury deliberations violated his constitutional right to have a twelve member jury decide his case as guaranteed by the Texas Constitution.  The State replied that Appellant had failed to preserve his complaint as is required under Rule 33.1(a) Texas Rules of Appellate Procedure and secondly, any error in allowing the alternate in the jury room was harmless. 

To begin, it is worth discussing the preservation argument made by the State.  Rule 33.1(a) requires a timely, specific objection and a ruling by the trial court in order to preserve a complaint on appeal.  Yet an objection is not required in every instance.  The Court of Criminal Appeals has identified three categories of rules or rights: 1) systemic or absolute rights; 2) waivable rights and 3) forfeitable rights.  Rule 33.1(a) does not apply to the first two categories and a violation of those rights may be raised for the first time on apopeal. 

A systemic requirement is a law that the trial court has the duty to follow even if the parties desire otherwise.  They are rights about which a litigant has no choice and are independent of the litigant’s wishes.  The implementation of these absolute rights and prohibitions are absolute and not optional.  They can be neither waived or forfeited.  Waivable rights are rights that a judge has an independent duty to implement absent an effective waiver by the defendant.  These rights are so fundamental to the proper administration of the process that they do not easily vanish.  There must be apparent and obvious waiver of those rights.  Forfeitable rights are those rules that are optional at the request of the defendant.  Rule 33.1(a) applies to these rights and they comprise the vast majority of error raised on appeal.  They are forfeited absent a timely request which is denied or timely objection.

Appellant argued that a defendant’s right to a twelve-member jury is a waivable right under the Texas Constitution and that for a defendant to give up that right, the waiver must be knowing, intelligent and done so with sufficient awareness of the circumstances and consequences. Here, there is no record of any knowing, intelligent or written waiver by Appellant that a jury comprised of thirteen could decide his case.  He also pointed out that whereas the U.S. Constitution does not spell out a specific number of jurors rquired for a felony trial, the Texas Constitution does.  Art. V, Section 13 provides, as well as art. 33.01 of the Code of Criminal Procedure, that the jury shall consist of twelve qualified jurors. 

The Court agrees with Appellant and holds that the right to a twelve-person jury is fundamental to the proper functioning of the adversary process and it cannot be extinguished by inaction alone.  There must be an express waiver.  Thus, trial counsel’s failure to object is not fatal and the error can be raised for the first time on appeal.  It is a waivable-only right.

Noting that a twelve-person jury is a fundamental right under the Texas Constitution, the Court also notes that there is no constitutional or statutory exceptions for more than twelve jurors although there is statutory authority for selecting an alternate juror and permitting the alternate juror to ”stay” until “the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment.”  see art. 33.011, C.C.P., enacted and put into effect September 1, 2007. 

The State argued that art. 33.011 permitted the participation of the alternate juror but a review of the legislative history does not bear this out; rather, the explicit purpose of the newly drafted legislation was to keep the alternate juror available for use should one of the regular jurors become disabled and defendant refuses to proceed with eleven jurors.  Thus, if the alternate juror is not considered a true juror, then his or her participation is deemed an “outside influence,” something prohibited by art. 36.22.  The trial court erred in directing the alternate juror to participate in jury deliberations.  And because the error is of constitutional import, the appeals court is unable to state that the participation of the alternate did not contribute to the conviction or punishment.  Reversed and remanded for new trial.

*** Look for the State’s PDR on this one.  

AUGUST 17, 2008

OFFICERS’ FAILURE TO FOLLOW DEPARTMENTAL POLICY IN INVENTORY OF DEFENDANT’S VEHICLE VOIDS THE INVENTORY SEARCH AND JUSTIFIES SUPPRESSION OF CONTROLLED SUBSTANCES SEIZED PURSUANT TO SAID SEARCH

State v. Stauder, slip opinion no. 11-07-00375-CR, Eastland Court  of  Appeals, July 31, 2008 - Appellant claimed that Lamesa Police Department officers’ failure to follow departmental policy regarding the execution of an inventory search revealed the stated inventory to be a ruse for an unlawful, warrantless search.  Trial court agreed and ordered suppression of controlled substances.  State appealed.  Held: order of suppression affirmed.

Appellant was originally arrested for failure to wear a seat belt.  During the stop, the registration to the vehicle was noted to be altered and thus, fictitious.  Appellant was placed under arrest and his vehicle impounded.  During the inventory search, officers conducted a full-blown search of the interior of the pickup and all boxes and containers within.  They also used a canine during the “inventory.”  Officers failed to execute an inventory form and the Lamesa Chief of Police testified that by failing to complete the inventory form, the officers failed to follow departmental policy.  The trial court ruled that the drugs and handgun seized during the warrantless search lacked validity as an inventory based on the officers’ failure to abide by departmental policy.  Moreover, the trial  court concluded that the search  was conducted without probable cause and in violation to any other exception to the warrant requirement  under the Texas and Federal Constitution. 

An inventory search is justified so that an owner’s property can be safeguarded.  It also protects the police against charges of tampering with property belonging to  the accused.  An inventory search is permissible so long as it is not a ruse to rummage through the belongings of the accused.  During an inventory, police may open closed containers so long as they do so in accordance with standardized procedures.  The Court of Criminal Appeals has long held that, to be constitutional, an inventory search must not deviate from police departmental procedure and the State may satisfy that burden by showing that the inventory policy exists and that the policy was followed. see Moberg v. State, 810 S.W.2d 190 (Tex.Crim.App. 1991).  When the police failed to follow this policy, the State cannot sustain its burden of proof in order to show the constitutionality of the inventory seizure.  And, the search of the closed containers does not extend to those found in the bed of the pickup.  The trial court did not err in determining that the inventory was merely a ruse for a warrantless search.

*Note: experienced practitioners here in Amarillo and Canyon surely recognize Appellant’s name.  Stauder is a frequent flier on both the Potter and Randall County dockets.  Anybody who has done serious defense work has had the opportunity to have represented, at some time, Thomas Joseph Stauder.  Looks like finally, a case went his way; even the blind hog finds a truffle.

FAILURE TO PROVE RELIABILITY OF LIDAR DEVICE, PRE-TRIAL MOTION TO SUPPRESS IN DWI PROSECUTION SHOULD HAVE BEEN GRANTED

Hall v. State, slip opinion no. 10-07-00213-CR, Waco Court of  Appeals, July 30, 2008 - Appellant contended that State failed to prove the validity and reliability of LIDAR device which DPS trooper used as sole basis of his stop of Appellant. 

Here, Appellant argued that LIDAR is novel scientific evidence.  Once a scientific principle is accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert/Kelly hearings, subsequent courts may take judicial notice of the scientific validity of that theory.  No further Kelly hearings or required.  But where the evidence is based on novel scientific theory or principles, then trial courts must conduct full-blown “gatekeeping” hearings under Kelly.

During the pre-trial suppression hearing, the State argued that LIDAR “is a laser device and it’s been admissible by statute in every court in this state without any predicate to its admissibility.”  The only problem was that the State failed to cite to a single relevant statute or case where LIDAR had been held to be valid, reliable or established within the legal or scientific communities.  The parties did not cite to any Texas case holding that LIDAR, admittedly different from RADAR, confirming its reliability or admissibility.  Therefore, the Waco Court holds that LIDAR is novel scientific theory and as such, it was imcumbent on the State to establish the underlying scientific theory, a valid technique for LIDAR’s application and proof that the technique was in fact properly applied.  Because the State failed to prove the reliability of LIDAR technology which the officer relied upon to determine that Appellant was speeding, the trial court abused its discretion in denying the motion to suppress.  Reversed and remanded for new trial.

AUGUST 1, 2008

CITIZEN’S TIP SUFFICIENT TO PROVIDE PROBABLE CAUSE FOR DWI STOP

Martinez v. State, slip opinion no. 07-07-00187-CR, Amarillo Court of Appeals, July 28, 2008 - Appellant pled guilty to felony DWI, preserving his contention that the trial court erred in not granting his motion to suppress.  He posited two grounds: Cochran County deputy sheriffs exceeded their authority when they detained him in Bailey County and a citizen’s cell phone tip was insufficient to provide probable cause to stop and detain.

Cochran County sheriff deputies received a call from their dispatcher alerting them to a possible drunk driver.  The dispatcher informed them that he had received a call from a motorist following the suspect.  The caller described the car make, color, direction being driven and details of reckless driving.  The deputies drove to the area described and spotted a car matching the citizen’s description.  The car drifted over into their lane of traffic and then off onto the shoulder of the road.  The deputies fell in behind and eventually pulled the car over.  Upon approaching the driver, they both smelled alcohol on his breath.  At this point, the citizen who had called in the report then drove up.  He identified himself, gave his phone number, address and driver’s license number.  He told the officers had had been following the driver the entire time.  The deputies determined that they were in Bailey County so they contacted Bailey County and a deputy was dispatched where Appellant was placed under arrest for felony DWI.

Held: Denial of Appellant’s motion to suppress affirmed.  An officer who is outside his jurisdiction may arrest without a warrant any person who commits an offense within the officer’s presence or view.  The officer may likewise make a Terry stop outside his jurisdiction.  The arresting or detaining officer must make every effort to contact an officer within the jurisdiction to take custody of the person arrrested.  The factual basis for the traffic stop or detention giving rise to the Terry stop need not arise solely from the officer’s personal observation.  It may be supplied by information from another person such as an informant or a citizen informant.  As a general rules, a known citizen informant is regarded as more trustworthy than an unnamed, anonymous informant.  This is particularly true when unsolicited information regarding a crime in progress is provided by a citizen who has no relationship with the police, provides detailed information and makes himself accountable by providing contact information to the police.  An officer is permitted to rely upon such information to reasonably conclude that a temporary detention is justified. see Brother v. State, 166 S.W.3d 255, 258 (Tex.Crim.App. 2005). 

This is exactly what occurred here. The citizen’s detailed tip indicating that Appellant was driving recklessly, possibly intoxicated, was corroborated by Appellant’s traffic violations observed by the Cochran County deputies which led to reasonable suspicion that Appellant was intoxicated.

RECENT AMENDMENT TO DWI STATUTE PERMITTING USE OF PRIOR DWI CONVICTIONS MORE THAN 10 YEARS OLD TO ENHANCE MISDEMEANOR DWI TO FELONY NOT VIOLATIVE OF EX POST FACTO PROHIBITION

Crocker v. State, slip opinion no. 12-07-00413-CR, Tyler Court of Appeals, July 16, 2008 - Appellant was charged and pled guilty to felony DWI.  He preserved his challenge to the indictment via motion to quash, arguing that the use of prior DWIs which were older than ten years violated the federal and state prohibition of ex post facto laws.  Held: Conviction affirmed, denial of motion to quash affirmed. 

Whereas old law did not provide for the enhancement use of DWI convictions of more than ten years before the commission of the offense for which a defendant is being tried, a 2005 amendment now provides that any DWI conviction, whenever it occurred, may be used to invoke felony jurisdiction and increase punishment. § 49.09(b)(2) Penal Code.  Appellant claimed that by permitting these old DWI convictions (from the years 1992 and 1993) to be used as enhancements changed the punishment and inflicted a greater punishment than the law annexed to the crime when it was committed.

Appellant argued that his situation was much like the defendant in Scott v. State, 55 S.W.3d 593 (Tex.Crim.App. 2001) who complained that his deferred adjudication for an indecency of a child charge could not be used to enhance his subsequent commission of another sex offense so that automatic punishment was life.  The Court of Criminal Appeals agreed with Scott because at the time that Scott pled and received deferred adjudication, the statute provided that a discharged deferred adjudication would not be considered a conviction except in certain circumstances, none of which involved the use of a deferred adjudication to enhance a subsequent offense.  However, in this case, the “former ten-year rule was not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at tht time.” see State v. Pieper, 231 S.W.3d 9, 15 (Tex.Ct.App.-Houston [14th Dist.] 2007, no pet.) (emphasis added).  The Tyler Court of Appeals adopts the reasoning of the Pieper Court and concludes that the 2005 changes do not increase Appellant’s punishment for his prior convictions and do not constitute an ex post facto law. 

JULY 28, 2008

NO APPEAL FROM ALLEGATION OF VOID PLEA, LACK OF JURISDICTION

Mercer v. State, slip opinion no. 01-06-00807-CR, Houston Court of Appeals, First District, July 10, 2008 - Appellant was indicted for aggravated robbery.  She entered into a plea bargain by pleading guilty before a Fort Bend County associate judge who accepted her plea and set her punishment at 10 years deferred adjudication.  Appellant signed a waiver of new trial and appeal.  The associate judge made findings of fact and conclusions of law which were ratified by the presiding district court judge. After being placed on deferred, she filed a pro se motion for new trial.  She was appointed counsel who filed an amended motion for new trial, arguing that Appellant was denied due process by now having a district court hear and receive her plea as guaranteed by Art. V, Texas Constitution.  The district court denied the motion for new trial.  On appeal, Appellant argued that the district court abused its discertion in denying the motion by failing to vacate the associate judge’s entry of the deferred adjudicaktion order because he lacked jurisdiction to make any determinations in her felony case.

Even though Appellant’s appeal appeared to be based on the denial of the motion for newt trial, what she was really complaining of is her being placed on deferred adjudication in the first place.  The law is quite clear: in a plea bargain case where the punishment does not exceed the State’s recommendation and is agreed to by a defendant, the defendant may only appeal 1) those matters raised by written motion and ruled on before trial and 2) after getting the trial court’s permission to appeal. See Tex. Rules of App. Proc. 25.2(a)(2).  In the context of a plea bargain for deferred adjudication, Rule 25.2(a)(2) restricts the defendant’s appeal rights only when there is an appeal from the placement on deferred adjudication pursuant to the original plea. Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex.Crim.App. 2006).  The appeal must be dismissed for lack of jurisdiction if the record does not include a certification indicating that the defendant has the right of appeal granted by the trial court. Tex.R.App.Proc. 25.2(d).

Because Appellant agreed to the terms of a negotiated plea bargain and the trial court sentenced Appellant pursuant to those terms, she does not satisfy the terms of Rule 25.2(a)(2) and has not right of appeal.  The appeal must be dismissed without further action.  This rigid rule of Rule 25.2(a)(2) even applies to claims that the trial court was without jurisdiction in the absence of a pre-trial order addressing the merits.  There must be permission to appeal as evinced by the certification of right to appeal. Chavez v. State, 183 S.W.3d 675, 680 (Tex.Crim.App. 2006).  The requirements of Rule 25.2(a)(2) likewise apply to claims of involuntary pleas. Cooper v. State, 45 S.W.3d 77 (Tex.Crim.App. 2001).  The appeal is dismissed for lack of jurisdiction.

RIGHT TO WITHDRAW PLEA WHEN TRIAL COURT ANNOUNCED INTENTION TO IMPOSE GREATER PUNISHMENT THAN THAT NEGOTIATED WITH PROSECUTION WHEN DECISION TO INCREASE PUNISHMENT BASED ON TERMS SET BY TRIAL COURT.

Moore v. State, slip opinion no. 02-06-00125-CR, Ft. Worth Court of Appeals, July 10, 2008 - May a trial court impose a senence in excess of a plea-bargained punishment without allowing the defendant to withdraw his plea when the defendant fails to return to the court for sentencing after pleading guilty?  Because the plea bargain negotiated between Appellant and the State did not include an agreement which would convert the plea into an “open plea” if Appellant failed to appear for sentencing, the trial court was under a duty to pemit the plea to be withdrawn.  Held: case reversed and remanded for new trial.

Once a plea bargain is reached between the State and a defendant, the trial court must approve the terms of he agreement.  The contractual nature of the plea agreement does not become binding until the trial court accepts the agreement.  When the plea agreement is finalized and the trial court binds itself to the terms, both the defendant and the prosecutor are entitled to the benfits of the agreement.  Ordinarily, when one side fails to abide by the plea agreement, two remedies are available.  One, the defendant may elect to withdraw the plea or two, specific performance may be demanded. 

The trial court’s role in the negotiation process is to either approve or reject the agreement.  The trial court exceeds its authority under art. 26.13 C.C.P. when it inserts additional, non-negotiated terms in the agreement and then makes acceptance or rejection of the plea bargain contingent on whether or not the defendant complies with the additional, non-negotiated terms.

In this case, the trial court, at the time it accepted Appellant’s guilty plea, announced that it would consider Appellant’s plea to be an “open plea” if he failed to show up for sentencing.  Appellant and the State did not agree that Appellant’s failure to appear would convert his plea to an open plea and free the trial court to impose any sentence within the applicable punishment rasnge.  The trial court erroneously injected itself into plea negotiations between Appelland and the State and exceeded its authority under the terms of art. 26.13.  Accordingly, when the trial court announced its intention to impose a higher sentence at the sentencing hearing based on Appellant’s failure to appear at a previously scheduled hearing, Appellant should have been afforded the right to withdraw his plea of guilty.

JULY 20, 2008

REFUSAL TO CHARGE JURY ON DEFENSE OF NECESSITY, REVERSIBLE ERROR

Wood v. State, slip opinion no. 04-07-00372-CR, San Antonio Court of Appeals, July 2, 2008 - Appellant lived with decedent and their 3-year old son.  Decedent assaulted Appellant because of her affair with Martin Gutierrez.  Decedent was arrested for this assault and placed in jail.  Appellant also obtained a restraining order against Decedent.  However, she never signed off on the restraining order since he was in jail and posed no threat.  Once he got out though, things were as before.  He moved back in the house and Appellant resumed her affair with Gutierrez.  One night, Appellant and Gutierrez were out together and drove back to Appellant’s home in Gutierrez’s pick-up.  Appellant was driving.  Appellant parked the pick-up down the street from her home.  As they were talking, Decedent ran up from behind the pick-up, opened the driver’s door and attempted to forcibly pull Appellant out of the vehicle.  Due to the darkness and no street light illumination, Appellant was unable to tell who it was.  She  put the pick-up in drive and moved forward with the attacker still hanging on to her.  Decedent eventually let go and was run over by the rear tire of the pick-up.  He later died from these injuries.  Appellant, not knowing whether she even ran over anyone or who, stoppped at Gutierrez’s boss’s home and expressed her misgivings.  The boss drove over to the scene of the incident and saw emergency personnel present.  Appellant later called the authorities and turned herself over.  She was indicted for manslaughter and failure to stop and render aid.  After a jury trial, she was convicted of both offenses and sentenced to 20 years on the manslaughter charge and 5 years on the failure to stop and render aid count. 

On appeal, Appellant claimed that the trial court’s failure to charge on the defense of necessity was reversible error.  Held: Reversed and remanded.  The defense of necessity is available to justify criminal conduct if the defendant reasonably believes that conduct is immediately necessary to avoid immnent harm and the urgency of avoiding that harm clearly outweighs the harm sought to be prevented by the law proscribing the conduct.  “Immiment harm” requires  an emergency situation where a split-second decision is necessary to avoid some harm.  The defendant must admit to the offense charged and must present some evidence that the commission of the offense was justified by other facts. 

Here, enough evidence was raised either through Appellant’s videotaped statement or through cross-examination of State’s witnesses (Appellant did not testify) that she had good reason to fear being pulled out of the vehicle and suffering a life-threatneing beating.  While there was some evidence to show that Appellant wasn’t sure that the attacker was her boyfriend-lover, she still had reason to fear a serious assault.  Whoever grabbed her did so with enough force that it left bruises on her arm and shoulder.  The struggle tore the stitching on her shirt.  Moreover, there was testimony from other witnesses that the area where the incident occurred was known as a high-crime area, replete with drug users and gang members.  The  newspaper delivery man who discovered the body wouldn’t even get out of his vehicle for fear that the presence of the body in the roadway was merely a ruse to get him to stop so that confederates waiting nearby could attack and rob him.  The evidence that the decedent had previously attacked Appellant was also relevant in determining whether Appellant’s actions in driving forward were reasonable. 

In determining whether the harm sought to be avoided clearly outweighed the harm proscribed by law, the Court noted that the State presented no evidence that the decedent did not intend to harm Appellant, regardless of the district attorney’s comments that he “would not blame a spouse for beating the living daylights out of an unfaithful partner.”  [Would this have justified reversal on jury argument?]  Given the circumstances of the attack and the history between the two, Appellant’s split-second decision to drive away clearly outweighed the option of allowing the attacker to pull her from the truck and possibly suffer life-threatening injuries. Based on the trial court’s decision not to permit the jury to decide the case on all the facts, the jury had no choice but to convivct Appellant of manslaughter.  Thus, there is some harm to Appellant calculated to injure her rights to have the jury pass upon her necessity defense.

FAILURE OF TRIAL COURT TO ADMONISH DEFENDANT REGARDING SEX OFFENDER REGISTRATION REQUIREMENT NO LONGER A GROUND FOR SETTING ASIDE A CONVICTION, SENTENCE OR PLEA

James v. State, slip opinion no. 03-07-00487-CR,  Austin Court of Appeals, July 2, 2008 - Appellant claimed that the trial court’s total failure to admonish him about sex offender reporting requirements rendered his plea involuntary.  Appellant entered an open plea to two counts of aggravated sexual assault of a child and elected to go to the jury for punishment.  He was sentenced to two life terms.  The State conceded that Appellant was not admonished at all but noted that recent amendments to article 26.13(h) expressly provides that the failure of the trial court to admonish a defendant regarding the reporting requirements will not provide the basis for setting aside a conviction, sentence or plea.  This amendment went into effect September 1, 2005.  Since it was undisputed that Appellant’s plea was entered in July of 2007, his complaint about the failure of the trial court to admonish is governed by the recent amendment to art. 26.13(h).  The Austin Court of Appeals notes that only one other appeals court has addressed the recent amendment (see Standifer v. State, No. 05-06-00078-CR, Dallas Court of Appeals, Oct. 30, 2006) and that court held that a similar argument failed in light of the recent amendment.  Amended art. 26.13(h) now forecloses any relief that could have previously been obtained as a result of the trial court’s failure to admonish about sex offender reporting requirements.

MULTIPLE CONVICTIONS FOR FAILING TO REGISTER NOT ALLOWED WHEN BASED ON SINGLE FAILURE TO REPORT CHANGE OF ADDRESS

Villanueva v. State, slip opinion no. 03-05-00191-CR, Austin Court of Appeals, July 2, 2008, opinion on rehearing - Appellant was a parolee who was required to register as a sex offender.  Upon his release on parole, he was under instructions to take the bus to Austin where he would be met by his parole officer and taken to a halfway house.  Appellant never showed up and never presented himself to the  Austin Police Department to report either a change of address or intent to reside in a temporary residence.  This omission occurred in May of 2004.  He was charged for the months of May, June, July, August, September and October.  He was found guilty on all six counts and sentenced to 45 years confinement on each.  Held: evidence sufficient for first count relating to the original failure to report in May of 2004 but insufficient as to the subsequent months.  The record contains no evidence that Appellant moved every month between May and October and nothing in arts. 62.051 or 62.055 Code of Criminal Procedure supports the  State’s argument that new offenses may be alleged for the same action on a monthly basis.  If the State is allowed to charge defendants under chapter 62 as they did in this case, nothing would stop the State from charging defendants for every week or every day that passes without a required registration.  The statutes in question allow the prosecution to charge a defendant for the offense of failing to register when there is evidence that the conditions precedent requiring new registration are proved with sufficient evidence.  Therefore, the evidence is sufficient  to support the conviction and sentence of 45 years for the first count (May 2004) but insufficient to support the other five convictions.  The judgment of conviction is reformed to reflect a single conviction and sentence of 45 years on count I and deleting the judgments on counts II through VI.

FORGERY OF A WRITING IS NOT A LESSER-INCLUDED OFFENSE OF FELONY MAKING A FALSE STATEMENT TO OBTAIN CREDIT; DEFENDANT HAS RIGHT TO REQUEST THAT HE BE ALLOWED TO WITHDRAW HIS ORIGINAL PLEA TO LESSER-INCLUDED AND PROCEED TO TRIAL ON FELONY

Murray v. State, slip opinion no 14-06-01035-CR, Houston [14th] Court of Appeals, June 26, 2008 - Appellant was originally charged with felony offense of making a false statement to obtain credit but then agreed to plead to misdemeanor offense of forgery of a writing in return for a recommended sentence of six months in county jail.  After plea, Appellant filed a motion to withdraw his plea, arguing that the misdemeanor forgery of a writing was not a lesser included offense of false statement to obtain credit and that he should be permitted to withdraw plea.  Trial court, over Appellant’s objections, refused to allow the plea to be withdrawn and sentenced Appellant  to six months.  Held: reversed and remanded for whole new trial.  Under the authority of Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007) all analyses of whether a particular offense if a lesser included offense of the indicted crime will be performed by simply looking to the indictment.  There will  be no reference to the court’s charge or evidence presented to the fact-finder.  Unless the lesser included offense can be subsumed under that evidence needed to convict under the original indicted offense, then there can be no finding of a lesser-included offense.  The determination is a question of law and does not depend on the evidence produced at trial.  Because forgery of a writing requires elements of proof different from making a false statement to obtain credit, it is not a lesser included offense.  Appellant had the right to insist that his plea be withdrawn and he is  not estopped from doing so.  This is because prior to sentencing, he put the trial court on notice that there was error and he continued to object up until actual sentencing.  The case is reversed and remanded so that Appellant can answer to the charge of felony making false statement to obtain credit.

*Note  - two things pop up in my mind.  One, this is another good example of the  old adage: be careful what you ask for because you just might get it.  Appellant had a pretty decent deal here with a misdemeanor.  Of course, I don’t know exactly what his criminal background looks like but if it’s not pristine and the State has just enough evidence, who knows what may happen.  If convicted and  sentenced to the penitentiary, that misdemeanor looks better and better.  Second, every practitioner needs to read the Hall case and how the Court of Criminal Appeals will now examine and  analyze lesser-included offenses.  It’s an important case.  Read and digest it because lesser-included issues continue to pop up at trial on a frequent basis.  One  has to know when to request one and when to  oppose one, particularly if the State is the party requesting inclusion of a lesser-included offense and you think it’s not warranted.  Courts are now freely finding error and harm to the defendant in just such situations.  Be alert.

 JULY 10, 2008

FORFEITURE BY WRONGDOING EXCEPTION TO CONFRONTATION CLAUSE LIMITED TO CASES WHERE DEFENDANT INTENDS TO PREVENT TESTIMONY BY WITNESS

Giles v. California, Slip opinion no. 07-6053, U.S. Supreme Court, June 25, 2008 - At defendant’s murder trial, trial court admitted statements of murder victim which were made to police officer responding to domestic violence call.  While defendasnt’s appeal was pending, Supreme Court handed down Crawford v. Washington, 541 U.S. 36 which held that Sixth Amendment’s Confrontation Clause gives defendants right to cross-examine witness who gives testimony against them but recognized certain exceptions, one of them being founded on the doctrine of forfeiture by wrongdoing.  The California Supreme Court concluded that the trial court did not err by admitting the out-of-court statements because the defendant had forfeitured his right to exercise cross-examination by his own misconduct in that he murdered the complainant. 

The Supreme Court reverses and remands.  The Court noted that old case law and treatises indicate that the forfeiture rule was employed only in those situations where the defendant engaged in conduct designed to prevent the witness from testifying.  The manner in which the forfeiture rule was applied makes plain that unconfronted testimony will not be admitted without a showing that the defendant intended to prevent a witness from testifying.  The view that the forfeiture exception is limited in this manner is supported by modern authorities such as Fed. Rule of Evidence 804(b)(6) which codifies the forfeiture doctrine.  Here, the state courts did not consider defendant’s intent which they found not relevant under its analysis.  The California courts are free to consider intent on remand.

RIGHT TO COUNSEL BEGINS WITH INITIAL APPEARANCE UNDER ARTICLE 15.17 TEXAS CODE OF CRIMINAL PROCEDURE

Rothgery v. Gillespie County, Texas, slip opinion no. 07-440, U.S. Supreme Court, June 23, 2008 - Defendant was arrested for being a felon in possession of a weapon.  The arresting authorities made a mistake in its identification of defendant as a convicted felon.  The defendant was then taken before a magistrate as required under art. 15.17 CCP for arraignment.  At this hearing, a probable cause determination was made, bail was set and the defendant was apprised of the nature of the charges brought against him.  Defendant was committed to jail and he subsequently made bond.  He did not have sufficient funds to hire counsel so he made several oral and written requests for appointment of counsel.  They all went unheeded.  Defendant was later indicted and rearrested.  His bail was increased and jailed because he could not make bond.  Defendant was then appointed counsel who was successful in getting the charges dismissed once he was able to show the prosecutors that they had the wrong man. 

Defendant then brought action under 42 USC § 1983 against Gillespie County claiming that had the county appointed him a lawyer at the initial arraignment, he would not have had to go through the process of being indicted, having his bond raised and being jailed.  He also argued that the county’s policy of denying him the right to counsel at the probable cause hearing, held under the auspices of art. 15.17, violated the Sixth Amendment right to counsel.  The federal district court granted the county a summary judgment and the Fifth Circuit affirmed.  The Fifth Circuit affirmed and noted that it was bound by its own precedent which held that an accused was not entitled to counsel at an art. 15.17 hearing because the “relevant prosecutors” were not aware of the hearing nor did they participate in it.  Moreover, the prosecution was not involved in defendant’s arrest or appearance at the hearing.  Held: vacated and remanded. 

A criminal defendant’s initial appearance where the accused learns of the nature of the charges brought against him and his liberty is subject to restriction marks the initiation of the adversary judicial proceedings which, in turn, trigger the basic protections of the Sixth Amendment.  Therefore, the right to counsel attaches at this discrete point in time.  Attachment of the right to counsel is not dependent on whether or not a prosecutor is required to attend the hearing or proceeding.  Texas’s article 15.17 marks the point of attachment with a state obligation to provide counsel to those who cannot affford one.  Thus, the state is under the obligation to provide counsel within a reasonable amount of time once the request for assistance is made.  The overwhelming consensus of practice among the states and the federal courts recognize that this right to counsel arises at this criticial stage as is illustrated in the Texas art. 15.17 hearing.  Texas is in the distinct minority among those states that do not recognize the attachment of the Sixth Amendment right to counsel at this stage of proceedings.   To sum up, when an accusation is filed with a judicial officer and the government’s commitment to prosecute sufficiently concrete so as to prompt an arraignment and restrictions on liberty, the right to counsel has attached under the Sixth Amendment.

CHARACTER EVIDENCE IN FORM OF OPINION WHICH IS BASED ON A SINGLE ENCOUNTER WITH LAW ENFORCEMENT THAT CONSTITUTES AN EXTRANEOUS OFFENSE IS ADMISSIBLE AT PUNISHMENT PHASE UNDER ART. 37.07 C.C.P.

Sims v. State, slip opinion no. PD-1575-07, Court of Criminal Appeals, July 2, 2008 - Appellant and victim had long-standing dispute which lasted for several days.  It eventually culminated in Appellant stabbing the victim with a knife.  At trial, Appellant filed a motion for probation.  During the punishment phase, the State called one of the police officers to give an opinion as to Appellant’s propensity to tell the truth.  He based his opinion on a single incident where he interviewed Appellant concerning her problems with the victim.  He determined that she had made a series of false reports to the police concerning the victim who was her boyfriend.  The officer was then asked to give an opinion on Appellant’s truthfulness.  Appellant objected and based opposition on the fact that the officer’s opinion was based not on personal knowledge of Appellant’s character but on a single incident which amounted to an extraneous offense.  Therefore, the officer’s opinion was not really a true opinion since it merely relayed the possible commission of a separate act of misconduct.  The court of appeals ruled that the testimony was permissible.  Held: Affirmed. 

The Court of Criminal Appeals first pointed out that there are distinct differences between opinion testimony at the guilt-innocence phase of the trial and punishment.  Rules 404 and 405 will control admissibility of opinion testimony at the guilt-innocence phase of the trial.  Specific acts of misconduct are generally inadmissible at this point unless such evidence is needed to cross examine a defensive character witness or when a person’s character is an essential element of a charge, claim or defense.  Secondly, specific acts of misconduct are generally inadmissible unless they can be shown to have some special significance separate and apart from the suggestion that the actor has a propensity to act in accordance with the specific acts.  Hence, the well-known rules as they apply to extraneous offenses come into play as is codified under Rule 404(b).  But, those considerations go out the window when determining what is admissible under Art. 37.07 which governs punishment evidence. 

This rule permits admission of any and all evidence which the trial court “deems relevant to sentencing.”  This decision to admit or not admit is governed by the abuse of discretion standard.  The legislature has determined that “relevant evidence” includes, but is not limited to, character evidence, reputation evidence, specific acts of misconduct.  Because there are no discrete factual issues that have to be resolved at the punishment phase, then the traditional definition of “relevant” does not apply at the punishment phase.  What is “relevant” to a punishment determination is that which will assist the fact finder in deciding an appropriate sentence.  And when the defendant applies for probation, the trial court may reasonably deem any character trait that pertains to the defendant’s suitability for probation as “relevant.”  Thus, even a person’s one-time encounter with the defendant can provide the necessary basis for an opinion on character such as truthfulness. 

It is important to distinguish between opinion testimony here and reputation testimony, the latter which requires a finding of communal reliability, i.e., that the person giving the reputation opinion must base his opinion on a sufficient number of contacts with others in the community about the defendant before being allowed to share that reputation opinion with the jury.  Opinion testimony is not so limited since it goes to the specific testifier’s perception of the person in question.  So, character evidence in the form of opinion testimony and extraneous offense testimony may be admissible at trial, even if the opinion testimony is based on facts derived from the commission of an extraneous offense.

ESCAPE FROM CUSTODY NOT SHOWN WHEN SUBJECT PULLS AWAY FROM OFFICER’S GRASP AND RUNS BEFORE BEING PLACED IN CUSTODY; EVIDENCE INSUFFICIENT AS A MATTER OF LAW UNDER ESCAPE PROSECUTION

Warner v. State, slip opinion no. PD-1644-06, Court of Criminal Appeals, July 2, 2008 - A deputy sheriff was informed that Appellant had a blue warrant for a parole violation. The deputy found Appellant among a group of people standing in front of a residence.  The deputy told Appellant that he needed to talk to him.  Appellant walked over to the patrol car where the deputy backed up Appellant against the car.  The deputy placed his hands on Appellant’s arms and told him he was under arrest.  When the deputy took his right hand off of Appellant’s arms and reached for his cuffs, keeping his left hand on Appellant’s wrist, Appellant struggled and broke free from the deputy’s hold.  Appellant ran into the woods and got away.  Appellant was prosecuted for escape from custody and convicted. 

The Houston Fourteenth Court of Appeals reversed Appellant’s escape conviction, holding that the evidence was legally insufficient.  That court reasoned that in order to be convicted of escape, one has to be initially in custody and that fact that the deputy was grasping Appellant’s arm while telling him he was under arrest was insufficient to meet the test announced in Medford v. State, 13 S.W.3d 769 (Tex.Crim.App. 2000).  In reaching this result, the court of appeals construed the term “custody” in the context of the escape statute, sec. 38.06 Penal Code, in accordance with Medford which held that an arrest is complete only “when a person’s liberty of movement is successfully restricted or restrained, whether this is accomplished by an officer’s physical force or the suspect’s submission to the officer’s authority.”  Reasoning that an escape can only occur when the officer has “successfully” restrained the suspect under the logic of Medford, the appeals court concluded that a person may not be convicted of escape only by prying loose from the officer’s grasp before being taken into custody.  Held: Judgment of appeals court affirmed and Medford affirmed. 

The Court of Criminal Appeals noted that the term “arrest” is a technical term possessing a long history and that principles of construction require that it be given its technical meaning.  It would be inappropriate if jurors arbitrarily applied their own personal definitions of arrest.  The Medford Court held that in recognition of the technical meaning applied to terms like “arrest” and “custody,” for purposes of the escape statute, an arrest is complete when “a person’s liberty of movement is successfully restricted or restrained,” and this is so whether it is brought about by force or submission.  An escape can occur only after an officer has successfully restrained or restricted a suspect, or, in other words, when the officer’s grasp has amounted to an arrest.  To hold otherwise would be ignore the distinctions the legislature has made between the offense of escape and the offenses of evading arrest or resisting arrest.  In upholding Medford, the Court of Criminal Appeals affirms the Fourteenth Court of Appeals and its judgment that the evidence is legally insufficient to sustain the conviction for escape.

JUNE 30, 2008

STATE NOT ALLOWED TO APPEAL TRIAL COURT FINDING THAT ENHANCEMENT PARAGRAPH NOT PROVEN, APPEAL DISMISSED FOR WANT OF JURISDICTION

Aguilar v. State, slip opinion no. 01-06-00172-CR, Houston Court of Appeals [1st Dist.], June 12, 2008 - Appellant was convicted of burglary of a building, double enhanced.  The trial court ruled that the second enhancement was not supported by sufficient proof because of a variance between the date alleged in the body of the indictment and the date shown in the pen packet.  The trial court then found the first enhancement paragraph true and assessed punishment at two years confinement and a fine of $5,000.  The State filed its notice of appeal and argued that the State abused its discretion by finding the second enhancement paragraph not true.  The State failed to cite to any statutory authority that gives it a right of appeal since it has no constitutional authority to do so. State v. Moreno, 807 S.W.2d 327 (Tex.Crim.App. 1991); United States v. Sanges, 144 U.S. 310 (1892).  In the absence of any citation to authority, the Court refers to Art. 44.01(a)(1) of the Code of Criminal Procedure which provides that the state may appeal an order of a criminal court which dismisses an indictment, information or complaint.  On its face, art. 44.01(a)(1) deals solely with the dismissal of charging instruments.  In order to shoehorn the trial court’s finding of “not true” on the enhancement paragraph, the State argues that the order is, in essence, an order of dismissal of the enhancement paragraph.  However, the trial court’s finding of “not true” does not dismiss an enhancement paragraph but rather, is an finding which concludes that the State failed to carrry its burden of proof on the enhancement paragraph.  Because art. 44.01(a)(1) does not provide authority for an appeal from a finding of “not true” on an enhancement, the appeals court had no jurisdiction over the State’s appeal.

FUNDAMENTAL ERROR, FAILURE TO ENTER PLEA TO INDICTMENT, VOID JUDGMENT

Ford v. State, slip opinion no. 07-07-0224-CR, Amarillo Court of Appeals, June 24, 2008 - Appellant was charged in five indictments ranging from burglary of a habitation to forgery.  Four of the five indictments were for burglary of a habitation.  All were life-enhanced by Appellant’s numerous prior convictions.  The indictment which forms the basis of the present appeal contained three separate burglaries, pled in separate counts.  Each count was enhanced with two prior felony convictions.  Appellant entered his open pleas to all indictments (if you can believe that) with no recommendation.  He was admonished on all cases and was promptly sentenced to life in prison on all the burglaries and twenty years (the max) on the forgery.  On appeal, Appellant raised two points of error on the subject burglary: the State’s evidence presented during his plea proceeding was factually insufficient and that his multiple life sentences were disproportionate.  But before the Court could reach either of these arguments, it had to address an issue sua sponte, that of structural error - Appellant had failed altogether to enter a plea to the subject indictment.  It is black letter law that a plea must be entered in every criminal case for issue to join.  There can be no valid waivers of constitutional or statutory rights without this plea.  Without a plea, jeopardy does not attach.  If a defendant does not enter a plea, then he cannot be lawfully convicted of that plea.  Therefore, the judgment rendered by the trial court is a nullity and is absolutely void because the trial court lacked authority to render a judgment in the absence of a plea.  Appellant’s other four convictions and life sentences are affirmed but this one is reversed and remanded for new trial.   

JUNE 29, 2008

DISQUALIFICATION OF TRIAL JUDGE, VOID JUDGMENT

Whitehead v. State, slip opinion no. PD-0713-07, Court of Criminal Appeals, June 25, 2008 - Appellant pled guilty before the trial court on the offense of indecency with a child.  He was placed on probation for four years.  However, in due time, a motion to revoke was filed.  At the hearing, Tucker, a probation officer and Keith, a therapist were called as witnesses.  At the conclusion of the hearing, the trial court revoked Appellant’s probation and sentenced him to four years TDC.  While awaiting transfer to TDC, Appellant wrote a letter to his girlfriend and expressed his desire to kill the trial judge, Tucker and Keith, their respective families and pets and “rape their women and children in front of them.  That will teach them!”  The letter was intercepted and turned over to the D.A.’s Office. Appellant was indicted for the felony offense of retaliation.  The indictment listed Tucker, the probation officer, as the lone victim. 

The case proceeded to trial before the same judge who was named in the letter.  The letter was introduced into evidence which named the judge.  The judge’s name was specifically mentioned a number of times during the trial. Appellant was found guilty and sentenced to fifteen years.  On appeal, Appellant raised for the first time that the judgment was void due to the trial judge’s disqualification under Art. 30.01 of the Code of Criminal Procedure.  On direct appeal, the State conceded that Appellant could raise the trial judge’s disqualification for the first time on appeal and that any judgment flowing from a disqualified judge is void but asserted that since the trial judge was not named in the indictment, then there was no violation of the statute in question.  The Eastland Court of Appeals agreed with the State, reasoning that a trial judge is disqualified only if he is named in the indictment. 

In Appellant’s PDR, he claimed that the appeals court interpreted Art. 30.01 too narrowly and that the trial judge was indeed an injured party, as that term is defined by the relevant statute, even though he was not named in the indictment.  Appellant also argued that the statute in question was drafted to address those special circumstances where the public might think that a judge is too close to the incident in question.  When the incident in question is viewed in its entirety, there can be no doubt that the judge was a victim even though not named in the indictment.  If the Court does not take into account the intent of the statute, then the state can easily thwart the purpose of maintaining judicial integrity through “artful pleading.” 

The Court, recognizing the clear purpose of the statute, also notes that the statute is susceptible to two interpretations as advanced by both Appellant and the State.  But the Court was also quick to point out that if a judge could be excluded from disqualification simply because he is not named in the indictment, then the statute could have simply included “only those judge so named in the indictment” as being subject to disqualification.  But a fair reading of the statute can lead a reasonable person to conclude that a judge, in any particular criminal prosecution, “may be the party injured” if the evidence shows that he was among the defendant’s victims in the criminal episode involved.  Because the evidence adduced at trial showed that the trial judge was one of Appellant’s victims in the transaction at issue (Appellant’s letter threatending several), such that a reasonable person would harbor doubts as to his impartiality, the trial judge was statutorily disqualified from presiding at Appellant’s trial and the resulting judgment of conviction is void. 

“EXCITED UTTERANCE” MADE AND ADMITTED PURSUANT TO TEXAS RULE OF EVIDENCE 803(2) NEED NOT BE RELATED TO THE SAME EVENT WHICH CAUSED THE DECLARANT’S EXCITEMENT

McCarty v. State, slip opinion no. PD-1139-07, Court of Criminal Appeals, June 25, 2008 - Appellant was convicted of aggravated sexual assault and complained on appeal that the “excited utterances” of the victim, made under circumstances independent of the sexual assaults so alleged, were not true excited utterances because the event producing the excited utterance must be the event about which the utterance is made.  But the Court disagrees and notes that Appellant’s argument confuse the “excited utterance” hearsay exception with Rule 803(1), the present-sense-impression exception to the hearsay rule.  The present-sense-impression statement is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.  The “excited utterance” exception is broader than the present-sense-impression exception.  Pre-code cases dating back to the early 70’s support the reasoning that Rule 803(2) is interpreted more broadly. see Tezeno v. State, 484 S.W.2d 374 (Tex.Crim.App. 1972) and Sellers v. State, 588 S.W.2d 915 (Tex.Crim.App. 1979).

REVERSIBLE ERROR ON THE PART OF THE COURT OF APPEALS WHEN IT AFFIRMS A CONVICTION UNDER A THEORY THAT WAS NOT SUBMITTED TO THE JURY IN THE COURT’S CHARGE

Wooley v. State, slip opinion no. PD-0861-07, Court of Criminal Appeals, June 25, 2008 - Appellant was indicted for murder.  In the court’s charge, the jury was instructed, erroneously it turned out, that Appellant could not be convicted as a party to the homicide unless the other party who he aided and abetted was actually named in the indictment.  Only one other identified party was included in the charge even though there were several other unnamed actors who took a part in the gang-related shooting.  The Houston appeals court pointed out that the evidence clearly showed that there was ample evidence in support of the theory that Appellant aided several unnamed parties in the shooting and affirmed the conviction based on the sufficiency of evidence, thereby rendering harmless the error identified in the court’s charge.  However, the Due Process Clause of the Fifth Amendment prevents an appellate court from affirming convictions on grounds that were not submitted to the jury. see Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997) (measuring sufficiency of evidence by virtue of the “hypothetically correct jury charge); also see Dunn v. U.S., 442 U.S. 100 (1979); Santellan v. Cockrell, 271 F.3d 190 (5th Cir. 2001).  Because this type of error affects the underlying integrity of the process and thus is considered to be “structural,” it is immune from a harmless-error harm analysis.  The judgment of the appeals court is reversed and remanded to that court for consideration of Appellant’s other points of error.

DOUBLE JEOPARDY VIOLATION, FAILURE OF TRIAL COURT TO CONSIDER LESS DRASTIC ALTERNATIVES

Ex parte Jason Wayne Hunter, slip opinion no. 06-08-00041-CR, Texarkana Court of Appeals - On the first day of Appellant’s trial for aggravated sexual assault, during the questioning of the second witness, it came to light that one of the jurors had served on the first grand jury which had indicted Appellant.  That particular indictment was dismissed and a second grand jury returend the subject indictment made the basis of the ongoing prosecution.  The trial court, sua sponte, removed the jury and expressed his concerns.  It then asked for the position of the State.  The prosecutor did not wish to move for a declaration of a mistrial.  Appellant and his counsel likewise did not move for a mistrial and made clear that Appellant desire his case to be heard by twelve jurors.  He would not agree to proceed with eleven.  The trial court did not call in the juror but elected to declare a mistrial based on manifest necessity.  Before the second prosecution could commence, Appellant filed his pre-trial writ of habeas corpus, seeking to prevent a retrial based on violation of his right to be free from a second trial.  He made no record at the trial court level nor did he argue with any specificity that there existed no manifest necessity to justify the declaration of a mistrial.  Instead, the appeals court assumed the duty.

The Texarkana Court noted that the suspect juror was not automatically disqualified but rather, was challengeable.  But no one bothered to lodge a formal objection against her on the record.  Therefore, the challenge to the juror was waived.  However, the trial judge mistakenly believed that the juror was disqualified.  He had no authority to disqualify such a juror without express consent from both parties.  Therefore, the record shows that one of the available less drastic alternatives to the declaration of a mistrial would have been to continue with the questionable juror.  It then would have been up to the Appellant to either lodge his objection or consent to continued trial.  Because the record clearly shows a less drastic alternative, then case law and circumstances prohibit a second trial. see Ex parte Fierro, 79 S.W.3d 54, 56 (Tex.Crim.App. 2002).  A trial court’s sua sponte, erroneous dismissal of a juror is not an event which can supply manifest necessity for a mistrial. 

JUNE 20, 2008

MEDICAL RECORDS OTHERWISE ADMISSIBLE UNDER RULE 803(4) MAY BE INADMISSIBLE UNDER CRAWFORD

De La Paz v. State, slip. opinion no. PD-1168-07, Court of Criminal Appeals, June 18, 2008 - Appellant was charged with two counts of aggravated sexual assault.  At trial, the State moved to admit certain medical records concerning the minor complainant in which a social worker and two nurses discussed their conversations with the complainant and her implication of Appellant as having sexually assaulted her.  Appellant objected under the authority of Crawford v. Washington, arguing that admission violated his Sixth Amendment right to confrontation.  The State countered that the record extracts were admissible under Rule of Evidence 803(4), the medical diagnosis exception to the hearsay rule.  It made no effort to establish the admissility of the records under the Confrontation Clause.  The Corpus Christi court of appeals held that the hearsay statements did not meet the definition of testimonial statements as defined and explained in Crawford since they were not submitted as accurate statements but rather, proof that the girl implicated her father (Appellant) as the perpetrator.  On Appellant’s PDR, the Court of Criminal Appeals reverses, limiting its holding to this: once Appellant made his objection based on Crawford error, the burden shifted to the State to establish admissibility under the Confrontation Clause.  It was obligated to show that the medical records introduced did not contain testimonial hearsay statements or that the notes did contain testimonial hearsay statements that were nonetheless admissible under Crawford.  This it failed to do.  Because the State did not carry its burden, it was error for the trial court to have admitted the statements.  The case was then remanded to the appeals court to conduct a harm analysis. 

*Note: What is ominous about this opinion is what it does not say.  In other words, the Court noted that the issue of whether a statement may be testimonial if made to a non-governmental employee has not yet been resolved by the Supreme Court.  The Court chose to leave the question open and one has to wonder why.  It makes sense to proceed to answer this question of law for the benefit of the criminal bar and the bench.  The issue will surely come up again.  Why not address it head-on and get it resolved?  Secondly, the State argued on PDR that Appellant had forfeited his standing to complain of Crawford error.  See Gonzales v. State, 195 S.W.3d 114 (Tex.Crim.App. 2006).  Forfeiture doctrine is unforgiving and from what I have read, can be shoehorned into many fact scenarios.  Like extraneous offenses, it hurts when applied.  The Court refused to consider this forfeiture analysis because the State had neglected to raise it at trial or at the appeals court level.  I suppose we’ll be seeing it asserted with increased vigor in future case.  Get ready.

*Note: on remand, the Eastland Court of Appeals held that the error was harmless beyond a reasonable doubt and affirmed the conviction. see De La Paz v. State, No. 11-06-00146-CR, Eleventh Court of Appeals, February 5, 2009.

FAILURE TO PROVE PRIOR CONVICTION PLED FOR ENHANCEMENT PURPOSES IS NOT AMENABLE TO A HARMLESS ERROR ANALYSIS

Jordan v. State, slip opinion no. PD-973-06, Court of Criminal Appeals, June 18, 2008 - The Fort Worth Court of Appeals held that the State’s failure to prove up the time sequence necessary to establish Appellant’s status as a habitual offender was not the kind of error that could be subjected to a harmless error analysis and remanded Appellant’s life sentence to the trial court for a new punishment hearing.  On retrial, Appellant was once again found by the jury to be a habitual offender and sentenced to 99 years.  This time, the Ft. Worth court again found the evidence insufficient on the issue of exactly when Appellant committed the second prior felony, declared the error to be “structural” and sent it back for another punishment hearing.  The State filed its PDR, framing the issue as one which called for the Court to determine, for the first time, whether failure to prove up habitual offender sequence, pled for enhancement purposes, is structural error, immune from any kind of harm analysis. 

Held: A harmless error analysis should not be undertaken when the State fails to meet its burden of proof.  When a defendant pleads “not true” to an enhancement allegation, the State is bound by statute to prove the finality of that conviction, as well as identity, by the same burden of proof as pertains to the elements of the offense.  The factfinder engages in a deductive, discrete fact-finding process to determine whether the State has proven what it pled.  Like a sufficiency review on the elements of a crime, if it is shown there is insufficiency of evidence, the case is not subjected to any kind of harm analysis but rather, is simply remanded for new trial or an acquittal is ordered, as the case may be.  The same logic applies to enhancement allegations.  Therefore, when the State fails to establish the habitual offender status, such a deficiency will never be considered harmless. 

*Side note: back in the “good, old days,” I remember when the Court of Criminal Appeals used to consider a defendant’s habitual offender status as akin to element of a crime.  What this used to mean was that whenever the State failed to present sufficient evidence to prove up the two priors, jeopardy attached and the defendant could not be prosecuted at his second trial as a habitual offender.  That was a nice benefit, particularly for the defendant who wouldn’t be looking at the minimum 25 years.  But in 1998, the Supreme Court handed down Monge v. California, 524 U.S. 721, which held that when a reviewing court determines that the State’s evidence fails to show an enhancement allegation is true, the Double Jeopardy Clause does not bar the use of the enhancement conviction on retrial for punishment.  That put the kabosh on a nice quirk in our state jursiprudence. 

Secondly, there’s a valuable lesson to be learned here.  In the Jordan case, the defendant refused to plead true to any of his priors because the alert defense lawyer figured out that the out-of-state pen packs were a hopeless mess and didn’t provide for the date on which the defendant’s second conviction was committed.  In my experience, I can’t think of a time when any of my enhanced clients ever pled ”true.”  I just don’t believe in it and this Jordan case certainly shows why it’s best to err, if at all, on the side of safety and make the State prove them up.  You just never know.

“NOT GUILTY ” PLEA TO INDICTMENT IN FELONY THEFT CASE OPENS DOOR TO EXTRANEOUS THEFT OFFENSES OF SIMILAR NATURE

Daugherty v. State, slip opinion no. 01-07-00292-CR, Houston Court of Appeals [1st Dist.], June 5, 2008 - Appellant was indicted and tried for felony theft.  He, along with a confederate, preyed on elderly women, promising to do extensive home remodeling work but never performing any work.  The State introduced the testimony of two other elderly women who described similar transactions where they contracted with Appellant and received no services in return.  Appellant’s counsel objected under Rule 404(b).  The State argued that Appellant’s plea of ”not guilty” made the issues of his knowledge and intent relevant.  It also referred to Sec. 31.03(c)(1) Penal Code which holds that “evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty.”  Thus, Appellant’s Rules 403 and 404 argument aren’t even considered since the trial court’s reason for admitting the evidence of the extraneous transactions were based on Sec. 31.03 P.C. 

SEIZURE OF SAFES OUTSIDE THE SCOPE OF THE WARRANT, TRIAL COURT’S ORDER OF SUPPRESSION UPHELD BY APPEALS COURT

State v. Powell, slip opinion no. 02-05-00477-CR, Ft. Worth Court of Appeals, June 5, 2008 - Although the law enforcement officer’s affidavit submitted in support of the search warrant made specific reference to a lone safe which might have contained contraband, the actual warrant failed to include a “safe” or “safes” as items to be seized.  At the suppression hearing, the trial court considered the testimony of the officer who prepared the affidavit and warrant.  Rejecting his stated belief that he knew that the safe contained contraband (methamphetamine was discovered in both safes), the trial court determined that the seizure of the safes was clearly outside the scope of the warrant and that the “plain view” doctrine was not applicable as an exception to the necessisty of a valid warrant.  There were no written findings of facts or conclusions of law and therefore, according to the applicable standard of review, the trial judge’s determination of credibility was practically unassailable on appellate review. 

RULE 107 (OPTIONAL COMPLETENESS) JUSTIFIES INTRODUCTION OF CPS VIDEOTAPE AFTER DEFENSE COUNSEL’S CROSS EXAMINATION OF POLICE OFFICER

Mick v. State, slip opinion no. 06-07-00004-CR, Texarkana Court of Appeals, June 2, 2008 - Appellant was indicted on multiple counts of aggravated sexual assault and indecency with a child.  During defense counsel’s cross examination of a detective, he referred to the CPS videotape of the minor complainant in an effort to get the detective to confirm that the child made several contradictory statements at that time when compared with her live testimony before the jury.  The detective had observed the CPS interview and was familiar with the contents of the interview.  However, the detective never directly answered defense counsel’s questions with an acknowledgement of inconsistent statements.  After completion of the detective’s testimony, the State moved to introduce the entire videotape, arguing that the defense cross examination had laid an incomplete, incorrect impression in front of the jury.  The trial court admitted the tape over Appellant’s objection.

Held: Trial court’s decision to admit the tape was not outside the zone of reasonable disagreement, that being the applicable standard of review.  Rule 107 is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter opened up by the adverse party. see Walters v. State, 247 S.W.3d 204 (Tex.Crim.App. 2007).  It is designed to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation or writing.  The rule will not permit the introduction of similar, but inadmissible, evidence unless it is necessary to explain properly admitted evidence.  The rule is not invoked by the mere reference to a document, conversation or act.

Here, admission of the entire tape was justifed because defense counsel engaged in extensive questioning about the complainant’s statements during the interview.  The questions left the possibility of the jury’s receiving a false impression from hearing only part of the conversation, with perhaps some statements taken out of context.  Thirdly, the videotape was necessary for the conversation to be understood fully.  Because the thrust of defense counsel’s questioning was designed to show that the complainant had been coached ”after the fact” and the detective refused to acknowledge this conclusion as well as actual contradictory statements, admission of the entire tape was necessary for the jury to sort out the conflict in testimony.    

JUNE 10, 2008

SIXTH AMENDMENT RIGHT TO COUNSEL DOES NOT PREVENT A DEFENDANT FROM UNILATERALLY WAIVING HIS RIGHT TO COUNSEL AS LONG AS IT IS HE WHO INITIATES THE COMMUNICATION WITH LAW ENFORCEMENT

Maldonado v. State, slip op. no. PD-1552-07, Court of Criminal Appeals, June 4, 2008 - Appellee was indicted for indecency with a child and incarcerated.  On the first day of his incarceration, he made written request for appointment of counsel.  Five days later, a police officer went to the county jail to interview Appellee about the case.  The officer was presumably unaware of appointment of counsel.  There was no dispute that the officer’s purpose in going out to the jail was to obtain a confession from Appellee.  The officer introduced himself but before he could begin asking questions about the incident, Appellee handed the officer a handwritten note which indicated his desire to give his side of the story.  Appellee was then transported down to the cop shop where he eventually provided a written confession.  While recognizing that law enforcement may not initiate contact with a suspect or defendant who has already secured counsel, law enforcement may validly initiate communications and seek a waiver of counsel after the defendant’s right to counsel has attached when the defendant has not yet invoked his right to counsel and is not yet represented by counsel.  Taking that one step further, the Court also confirmed that the Sixth Amendment does not prevent a defendant from unilaterally waiving his Sixth Amendment right to counsel as long as it is the defendant who actually waives his right in some affirmative manner.  The key to determining what is the difference between police conduct designed to elicit incriminating responses and a clear waiver on a defendant’s part is to focus on police conduct which is designed to obtain incriminating statements.  A defendant, in order to show this kind of Sixth Amendment violation, must demonstrate that the police and/or their agents took some action, beyond merely listening, that was designed deliberately to elicit imcriminating remarks. In this case, the Court examines the officer who approached the Appellee and analyze his conduct.  What the court concludes is that the officer, although fully intent on trying to get Appellee to provide an inclulpatory statement, did not do anything at the inception of the meeting to induce Appellant to make any kind of statement at all.  If the officer had had the time to communicate his intent to talk to Appellee to try to elicit incriminating remarks, then the exclusionary rule of Michigan v. Jackson, 451 U.S. 477 (1981) would kick in.  But in this case, the officer did not have the opportunity to do anything like ask questions or engage in behavior designed to elicit incriminating responses (see Rhode Island v. Innis, 446 U.S. 291 (1980).  Appellee spoke up before any of this happened and therefore, he initiated communication and unilaterally waived his Sixth Amendment right to counsel.

EXPERT TESTIMONY CONCERNING SCIENTIFIC TESTS CONDUCTED BY ANOTHER EXPERT DOES NOT VIOLATE CRAWFORD 

Blaylock v. State, slip op. no. 06-07-00090-CR, Texarkana Court of Appeals, May 14, 2008; Campos v. State, slip op. no. 14-07-00014-CR, Houston Court of Appeals [14th Dist.], May 27, 2008 - As long as a testifying expert can apply his own scientific knowledge and expertise to the materials he is provided by the one who conducted the actual examination or analysis (such as drug analysis or the preparation of an autopsy protocol), and does not merely “read from the notes” of another expert, then Crawford does not apply.  And since the expert is cross-examined by counsel, there is no defineable denial of confrontation.  An exception may arise if reports in question contain statements which might express personal opinions regarding guilt or causation, then those might be regarded as testimonial and thus, subject to the strictures of Crawford.  But as long as the expert’s testimony is limited to that scientific, objective information contained in the report and defense counsel is permitted to cross-examine, then there is no denial of the Sixth Amendment right to confrontation.

MAY 29, 2008

OFFENSIVE USE OF COLLATERAL ESTOPPEL; NEED FOR MOVANT TO ESTABLISH THAT TRIAL COURT MADE FACT-FINDING ADVERSE TO STATE ON A FACT ELEMENTAL TO SUBSEQUENT PROSECUTION; MOVANT FAILS TO OBTAIN NECESSARY FACT-FINDING

State v Getman, slip opinion no. 03-07-00306-CR, Austin Court of Appeals, May 1, 2008 - Appellee was convicted of theft in Nueces County and put on probation for five years.  He later transferred down to Travis County where he got himself indicted for aggravated assault.  The Nueces County D.A. filed a motion to revoke, alleging a number of technical violations, the aggravated assault out of Travis County and the failure to report the aggravated assault arrest to the probation officer. 

At the hearing, the trial court heard evidence from the State’s only witness, the Nueces County probation officer and from Appellee’s wife.  The probation officer testified that Appellee had told her that he was having a hard time making his probation payments because his wife had recently given birth.  She testified to Appellee’s failure to report his arrest on the Travis County aggravated assault case.  She also described watching a video of the assault which occurred on the set of a reality show being taped in Austin.  She admitted that she didn’t know anything about the fight between the Appellee and a cast member of the reality show and expressed ignorance about whether the victim might have provoked the fight or whether Appellee was justified in his claim of self-defense.  Appellee’s wife testified to the financial difficulties she and her husband incurred as the result of the birth of their baby.  She testified that he would benefit from anger-management classes.  At the conclusion of the hearing, the prosecutor announced that he was confident that he had proven at least two of the allegations, “if not certainly all of them.”  He did not object to keeping Appellee on probation but urged that he be made to attend anger management classes.  Defense counsel argued that the State’s allegations pertaining to technical violations may have been proven up by the probation officer but that the assault was not proven, regardless of the videotape described by the probation officer.  The trial court then announced his ruling by way of oral findings.  The judge found that Appellee did everything he could to pay on his financial obligations while on probation but special circumstances prevented him from doing so.  Therefore, he found that Appellee had not violated that portion of his probation.  He then turned to the alleged aggravated assault.  He found that Appellee had failed to report his arrest, “not whether you were found guilty or not.  I’m not interested in that right now, just that you were arrested, and there’s nothing to contradict that.  So the only thing I have is that you have been arrested . . . you didn’t report as you were ordered to do so before.  Therefore, the court finds that you violated the terms and conditions of your probation.”  Appellee was continued on probation, ordered to spend 30 days in county jail and attend anger-management classes.  The court then added this:

Mr. Getman, you need to get your life together.  You got a child you got to worry about.  I don’t know the situation was about the altercation.  It’s possible that you could have been defending yourself.  It’s a possibility you could have been the wong person.  The fact is you were arrested, and you failed to report.

Appellee then subsequently filed a motion to dismiss in Travis County, citing the doctrine of collateral estoppel and arguing that the Nueces County District Court had effectively found that he was innocent of the aggravated assault after a full and complete proceeding where the State was represented by counsel.  The State had failed to prove up the assault by a mere preponderance of the evidence standard of proof, thereby precluding the prosecution in Travis County on double jeopardy grounds.  At the hearing on the collateral estoppel motion to dismiss, the reporter’s record from the Nueces County hearing was introduced along with limited testimony from Appellee.  The Travis County District Court then granted the motion to dismiss and filed a nine-page order containing what it termed findings of facts and conclusions of law.  The State appealed the order.

In order to determine whether collateral estoppel bars a subsequent prosectution, the court must make two determinations: 1) exactly what facts were necessarily decided in the first proceeding and 2) whether those necessarily facts constitute essential elements of the offense which is the subject of the second trial.  The fact or point in issue must have been determined in the first proceeding.  The entire record from the first proceeding is examined.  The question is not whether there is a possibility that an ultimate fact was determined adversely to the prosecution; rather, the outcome of the earlier proceeding must necessarily have been grounded on the very issue that the movant seeks to preclude from consideration in the second trial. See Ex parte Taylor, 101 S.W.3d 434, 440 (Tex.Crim.App.2002); Ladner v. State, 780 S.W.2d 247, 254 (Tex.Crim.App. 1989).  It is the defendant’s burden to demonstrate that the factual issue he seeks to foreclose from relitigation was actually and conclusively decided in the first proceeding. Guajardo v. State, 109 S.W.3d 456, 460 (Tex.Crim.App. 2003). 

The Court of Criminal Appeals has held that a probation revocation hearing can be the basis for raising a plea of collateral estoppel jeopardy.  See Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App. 1986).  For collateral estoppel to apply, there must be 1) a specific fact-finding by the trial court at the probation revocation hearing that illustrates the basis for the trial court’s decision; see Wafer v. State, 58 S.W.3d 138, 141 (Tex.Ct.App.-Amarillo 2001, no pet.); and 2) that fact-finding must be adverse to the State on a fact elemental to the subsequent prosecution. Id at 141.

Turning to the facts before it, the Austin Court noted that the trial judge in the Nueces County hearing made two distinct findings: one, he found that Appellee had not wilfully or intentionally failed to pay his probation-mandated fees and two, that he failed to report his arrest to the probation officer.  That was the basis of his decision to keep Appellee on probation, order the thirty-day incarceration and order the anger-management classes.  Regarding the aggravated assault out of Travis County, the court simply noted that it “wasn’t interested in that right now,” that it did not know what the situation was about and that it was a “possibility” that Appellee could have been defending himself or that he could have been misidentified.  This is not a finding of fact regarding the aggravated assault.  Rather, it was a refusal to make a finding.  Even though language in Tarver talked about how an adverse finding to the State could be implicit as opposed to explicit, it nevertheless must be clear from the record and free from ambiguity.  And it was Appellee’s burden to demonstrate that the finding he wishes to preclude from litigation was conclusively resolved against the State at the first hearing.  According to the Austin Court, a reasonable and realistic review of the record from the probation revocation hearing demonstrates merely that the trial court declined to decide whether Appellee committed the aggravated assault.  On the record, Appellee did not meet his burden as required under the Tarver and Guajardo cases, that is, that the Nueces County court made a specific finding that he did not commit the aggravated assault or that the commission of the aggravated assault was not proved.  This failure to secure the required finding is fatal to Appellee’s claim of collateral estoppel. See Tarver, 725 S.W.2d at 200.  Trial court’s order granting the motion to dismiss reversed and cause remanded to trial court.

SCOPE OF ART. 38.37 EXPANDED TO INCLUDE EXTRANEOUS ACTS OF THIRD PARTIES

Sanders v. State, slip opinion no. 2007-00198-CR, Ft. Worth Court of Appeals, May 8, 2008 - The Ft. Worth Court of Appeals has ruled that Art. 38.37 C.C.P. which permits the State to introduce extraneous acts, other crimes and wrongs committed by the defendant against a child under the age of seventeen who is the victim of the alleged offense as it bears on the defendant’s state of mind and the relationship between the child and defendant also necessarily allows the State to introduce acts committed by a third party against the victim.  In this case, the facts showed that Appellant’s long-standing history of abuse committed against the victim also included his using her a “currency” in lieu of paying his drug dealer for narcotics.  The victim described how Appellant instructed her to go to his drug dealer’s home where she was sexually abused by him.  This was done, according to the State’s theory, so that Appellant could settle up with his drug supplier.  This act was ruled to be relevant and material to understanding the relationship between the victim and defendant and to demonstrate that Appellant saw sex with the victim as a tradeable good.  

  MAY 20, 2008

THE DISTINCTION BETWEEN A CITIZEN-POLICE “ENCOUNTER” AND A CITIZEN-POLICE “DETENTION”

State v. Garcia-Cantu, slip opinion nos. PD-0936-07 & PD-0937-07, Court of Criminal Appeals, May 7, 2008 - Appellee was originally charged with misdemeanor possession of marijuana and UCW.  At the motion to suppress hearing, both the State and defense agreed that the only issue to be litigated was whether the facts supported the finding of the trial court that a detention occurred and whether that detention was based on specific, articulable facts giving rise to reasonable suspicion that some kind of criminal activity was afoot. 

The arresting officer testified that he was on regular patrol when he spotted a car parked at the end of a public street.  The street dead-ended into some high grass and weeds.  There were two houses on the right and railroad tracks on the left.  The officer decided to check out the vehicle and as he drove up to the parked car, he spotted up on the car with his spotlight.  The officer claimed that the area was a high-crime area but did not dispute the defense documentary evidence showing a paucity of arrest having been made in the area.  According to the trial court’s conclusions, the officer used an authoratative, commanding voice and demeanor while questioning the occupants and “brooked no disagreement into his official investigation.”  The time was 4:00 a.m.  The officer also parked his patrol car about ten feet behind and to the left of the Appellee’s truck.  The testimony, photographs and video from the officer’s patrol car all confirmed that the officer essentially “boxed in” Appellee’s car, preventing him from voluntarily leaving.  As the officer approached the vehicle, he shined a flashlight into the interior of the car and demanded to know what the driver was doing in the area.  The officer’s questioning was more in the nature of an official command rather than a friendly request.  Or so the trial court implicitly concluded.  The officer then demanded that both the driver and the female occupant produce identification.  He then flashed his light into Appellee’s eyes to “check out for signs of intoxication.”  When asked what his business was in the area, Appellee answered that he was there to visit a friend that lived there on the right side of the street.  The video confirms that Appellee’s friend exited his house and walked up to the area where both the officer and Appellee were.

The trial court’s questioning can best be described as skeptical of the officer’s truthfulness and candor.  The judge was particularly insistent on trying to get the officer to concede that there was no way that Appellee could have voluntarily left the scene in his vehicle, contrary to the position taken by the State.  In this regard, the State argued that the encounter between the officer and Appellee and strictly consensual and voluntary and that no coercion was involved.  The trial court concluded otherwise and specifically held that the shining of the spotlight on Appellee’s car and the manner in which the officer parked his car, preventing Appellee’s exit, effectively consituted a detention and that the detention was not supported by any specific, articulable facts.  The trial court did not enter any written findings of facts or conclusions of law but these findings were easily discernable from the record.  The trial court further ordered that the marijuana and weapon be suppressed as respresenting fruits of the illegal detention and resulting search.  On appeal, the Beaumont Court of Appeals held that the mere use of a spotlight was insufficient to amount to a Fourth Amendment detention.  The Court reversed the trial court’s order of suppression, specifically holding that the trial court abused its discretion in finding that the use of the spotlight amounted to a detention. see State v. Cantu-Garcia, 225 S.W.3d 820 (Tex.Ct.App.-Beaumont 2007).  The Court of Criminal Appeals granted the PDR to determine whether the officer’s actions outlined above constituted a detention requiring reasonable suspicion under the “totality of the circumstances” test as articulated in Florida v. Bostick, 501 U.S. 429 (1991).  The Court concludes that the officer’s actions indeed constituted a detention, thus triggering Fourth Amendment protections.  In so doing, it reverses the Beaumont Court of Appeals and affirms the suppression order of the trial court.

As the Supreme Court has aptly noted, “encounters between citizens and police officers are incredibly rich in diversity.  They run the gamut from “wholly friendly exchanges of pleasantries” to “hostile confrontations of armed men, involving arrests, injuries or loss of life.”  Given this wide diversity of police-citizen interaction, not every encounter between the two is subject to Fourt Amendment scrutiny.  It is only when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen,” will courts conclude that a Fourth Amendment “seizure” has occurred.  Such a seizure occurs when, “taking into account all of the circumstances surrounding the encounter, the police conduct would have “communicated to a reasonable person that he was not a liberty to ignore the police presence and go about his business.” . . .

Police officers are free as any other citizen to knock on someone’s door and ask to talk to them, to approach citizens on the street or in their cars and to ask for information or their cooperation.  Police officers may be as aggressive as the pushy Fuller-brush man at the front door, the insistent panhandler on the street, or the grimacing street-corner car-windown squeegee man.  All of these social interactions may involve embarassment and inconvenience, but they do not involve official coercion.  It is only when the police officer “engages in conduct which a reasonable person would view as threatening or offensive even if performed by another private citizen,’ does such an encounter became a seizure.  It is the display of official authority and the implication that this authority cannot be ignored, avoided or terminated, that results in a Fourth Amendment seizure.  At bottom, the issue is whether the surroundings and the words or actions of the officer and his associates communicate the messae of “We Who Must Be Obeyed.”

                                                        Pages 9 & 11 of slip opinion

The Court then examines each factor which must be analyzed under the Bostick “totality of the circumstances” test in order to determine whether a Fourth Amendment detention has occurred.  The Court breaks down this review into distinct parts: the initial encounter between the citizen and the officer while the citizen is in a parked car, the lateness of the hour, the use of a spotlight or flashing lights when encountering a citizen, the manner in which the officer parks behind the suspect vehicle and whether it can be said to have “boxed in” the car and finally, the specific language and tone of voice used by the officer during the encounter.  Each of these specific factors is discussed in full and what’s more, Judge Cochran provides each factor with a detailed footnote, replete with reported cases from across the country from state and federal jurisdictions, analyzing the specific factor discussed.  It’s treasure trove of case law.

By viewing the entire situation in its totality, rather than simply focusing on one aspect of the case as the Beaumont Court did (holding that the use of a spotlight does not implicate a Fourth Amendment detention), the Court holds that the conclusions reached by the trial court were fully supported by the record and that the Beaumont court failed to afford proper deference to the trial court’s findings.  In sum, given the officer’s actions in shining the spotlight on Appellee’s car, given his authoritative commands to Appellee and his passenger and his manner of parking behind Appellee’s car and thereby making is very difficult, if not impossible, to back out and leave the area, a reasonable person in Appellee’s position would not have felt free to leave or terminate the encounter with the officer.  The totality of circumstances support the trial court’s conclusion that Appellee was detained by the officer.

OFFENSES DISPOSED OF PURSUANT TO § 12.45 PENAL CODE ARE NOT AVAILABLE FOR IMPEACHMENT UNDER RULE OF EVIDENCE 609.

Lopez v. State, slip opinion nos. PD-1124-07 & PD-1125-07, Court of Criminal Appeals, May 14, 2008 - Appellant entered into a plea bargain where the prosecution agreed to dispose of two pending drug cases against Appellant by having him admit guilt and have the trial court take the cases into consideration on the issue of sentencing on the primary offense.  By doing this, both parties were following the dictates of § 12.45 Penal Code.  At a later trial, the State was permitted to impeach Appellant with documentary proof of these two extraneous offenses which had been dismissed with prejudice, as permitted under § 12.45.  Over Appellant’s objection, he was effectively impeached with cross-examination of the two offenses.  On appeal, Appellant argued that use of offense disposed of under § 12.45 are unavailable for impeachment under Rule 609(a) since a common-sense, straighforward reading of the rule requires proof that the crime be a conviction.  Since the rule’s use of the term “conviction” is unambiguous and clear and further, since the accepted definition of conviction means that the actor has been adjudged “guilty,” it stands to reason that there must likewise be a judgment of guilt for the crime in question.  Since those offense handled under § 12.45 simply do not require nor permit a judgment of guilt, then they cannot be “final convictions” which are required under Rule 609(a).  Finally, the Court pointed out that offense may not be disposed of under the auspices of § 12.45 unless the State consents.  If the State wishes to use these extraneous offenses as a prior conviction, then it has one more option at its disposal: it may indict the offender and seek a conviction on the merits.  Held: Extraneous offenses under § 12.45 may not be used for impeachment purposes under Rule of Evidence 609(a). 

*Note: Presiding Judge Keller authored the unanimous opinion of the Court. 

MAY 6, 2008

SEEKING HABEAS CORPUS RELIEF FROM AN ORDER OR JUDGMENT OF CONVICTION ORDERING COMMUNITY SUPERVISION

Villanueva v. State, No. PD-1836-06, Court of Criminal Appeals, April 30, 2008 - In 2003, the Legislature enacted Art. 11.072, titled “Procedure in Community Supervision Case.”  It establishes the procedure for a writ of habeas corpus in a felony or misdemeanor case in which an applicant seeks relief from an order or judgment of conviction ordering community supervision.  It must be filed with the district clerk of the county where the community supervision was imposed.  It permits a person who is serving probation or who has completed probation to challenge the order granting probation on the basis of its “legal validity.” 

A challenge to the “legal validity” includes an attack on the conviction for which the probation was imposed or the conditions of probation.  The writ issues automatically by operation of law.  If the State files an answer, the trial court must enter a written order granting or denying relief no later than 60 days after the date that the State’s answer is filed.  If the trial court determines that from the face of the application or documents attached that applicant is “manifestly entitled to no relief,” the court shall enter an order denying the writ as frivolous.  Applicants are also permitted to file subsequent applications but must meet the identical test set out in Art. 11.07, Section 4 and Art. 11.071, Section 5. 

The significance of this opinion is recognition that Art. 11.072 was intended by the Legislature to provide the exclusive means by which the district courts exercise their original habeas jurisdiction under Art. V, Section 8 of the Texas Constitution involving persons who are serving probation or who have completed their probation.  And whereas old law was quite clear on there being no right of appeal if the trial court refused to “issue the writ,” the new amendment makes clear that the writ now issues automatically and thus, regardless of the finding by the trial court that the writ is frivolous or not, the applicant has a right of appeal directly to the court of appeals.

So, for the practitioner, he or she should be sufficiently educated on the mechanics of Art. 11.072 insofar as it gives a probationer a means of challenging what may be questionable probation conditions, a common problem that arises with a client who has been placed on probation. 

STANDARD OF REVIEW WHEN DETERMINING SUFFICIENCY OF CORROBORATING, NON-COVERT AGENT EVIDENCE ”TENDING TO CONNECT” THE DEFENDANT TO OFFENSE OF POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVER

Malone v. State, No. PD-1647-06, Court of Criminal Appeals, May 6, 2008 - Appellant was the subject of a drug investigation where the lead narcotics officer employed the use of two laymen to make controlled buys of crack cocaine from Appellant.  The agent met with the two informants, gave them $1,000 and provided them with a tape recorder to tape the transaction with Appellant.  He frisked them both down prior to sending them into Appellant’s house and then followed them to the residence.  He watched them enter Appellant’s residence in his company.  All three went into the house.  Appellant, according to the informants, took an hour and a half to cook the crack and then gave it to both for the $1,000.  The agent then met up with the two informants, retrieved the tape recorder and collected the crack “cookies.”  They no longer had the $1,000.  At trial, the jury heard the tape and the testimony of both informants.  One of the two informants narrated the progress of the tape played before the jury.  The jury found Appellant guilty and assessed punishment at 25 years TDC. 

On appeal, the Fourteenth Court of Appeals reversed and ordered a judgment of acquittal based on legal insufficiency of evidence.  Utilizing the standard of review taken directly from Art. 38.14 and applying it to Art. 38.141, the court pointed out that no only was an informant the only witness who was able to identify Appellant’s voice on the tape, he was the only individual to describe what happened on the tape.  The court also noted that although the evidence offered by the State showed Appellant was present at the scene of the crime, it was not sufficient to corroborate the informant’s testimony “absent . . . other suspicious circumstances” that would tend to connect Appellant to the offense.  The Court of Criminal Appeals granted review on several grounds but the germane point here is that the Court reaffirmed the accepted standard of review applicable to those accomplice cases tried under Art. 38.14.

Lower courts have thus far applied the standard set out in those cases which analyzed sufficiency under the accomplice-witness rule provided in Art. 38.14, C.C.P. See: Simmons v. State, 205 S.W.3d 65 (Tex.Ct.App.-Fort Worth 2006, no pet.); Dennis v. State, 151 S.W.3d 745 (Tex.Ct.App.-Amarillo 2004, pet. ref’d.) (per curiam); Brown v. State, 159 S.W.3d 703 (Tex.Ct.App.-Texarkana 2004, pet. ref’d.); Jefferson v. State, 99 S.W.3d 790 (Tex.Ct.App.-Eastland 2003, pet. ref’d.); Young v. State, 95 S.W.3d 448 (Tex.Ct.App.-Houston [1st Dist.] 2002, pet. ref’d.); Cantelon v. State, 85 S.W.3d 457 (Tex.Ct.App.-Austin 2002, no pet.)  Following this trend among the lower courts and recognizing that Articles 38.14 and 38.141 have a similar purpose which is to ensure that the jury does not consider the testimony of an accomplice or covert agent “unless it finds that the witness is telling the truth and that other evidence corroborates the discredited witness’s testimony,”

“[t]herefore, we hold that the standard for evaluating sufficiency of the evidence for corroboration under the accomplice-witness rule applies when evaluating sufficiency of the evidence for corroboration under the covert-agent rule.  Accordingly, when weighing the sufficiency of corroborating evidence under Art. 38.141(a), a reviewing court must exclude the testimony of the covert agent from consideration and examine the remaining evidence (i.e., non-covert agent evidence) to determine whether there is evidence that tends to connect the defendant to the commission of the offense.”

Turning to the sufficiency of the non-convert agent evidence, the Court has no problem in determining that there is an abundance of evidence tending to connect Appellant to the delivery of the crack.  Remember that the corroborating evidence need not rise to the level of proof beyond a reasonable doubt.  It is enough that it, when viewed in conjunction other suspicion circumstances and a defendant’s presence at the scene of a crime, it tends to merely connect the defendant to the offense.  Here, the tape recording of the drug transaction is given great weight as well as the strong circumstantial evidence of suspicious activity on the part of Appellant.  Rather than focusing on the narrative of the informant regarding the recorded surveillance tape, it was up to the jury to determine the identity of the speakers and from this, the jury was in a better position than the appeals court to identify Appellant as the person who told the two informants “to come in and wait” while he “put it together” and who later told both of them that “Y’all going to be ‘Cooked to customer satisfaction.’” 

Yes, indeed, Appellant had definitely been cooked to the Court’s satisfaction.  Case is remanded to the appeals court for consideration of Appellant’s other points of error.

ONE-HALF OF RECORDED TELEPHONE CONVERSATION BETWEEN ARRESTEE AND FRIEND IN POLICE INTERROGATION ROOM NOT A WIRE COMMUNICATION AND ANY RECORDING MERELY MEMORIALIZES WHAT COULD BE SEEN AND HEARD IN THE INTERVIEW ROOM

Moseley v. State, No. PD-479-07, Court of Criminal Appeals, April 30, 2008 - Appellant was arrested for suspicion of murder after he was found driving around in the murder victim’s car with her body in the trunk.  Appellant was taken to the cop shop and questioned in an interrogation room.  During a haitus in the interrogation, Appellant was permitted to use the phone there in the room.  A DVD monitor and recorder is set up to record interrogations.  It is a pin-hole camera and can only record the portion of the room where the actual interrogation is taking place.  If someone uses the phone, only the words spoken by the person in the room while on the phone are recorded.  There are signs in the room stating that the interviews are subject to being recorded.  While talking on the phone, Appellant can be heard admitting the offense to the person on the other end of the line and requesting help in setting up an alibi. 

At trial, Appellant argued that the interception of his phone call was illegal because it constituted an interception of a wire communication in violation of Tex. Penal Code § 16.02 and that the conversation was thereafter inadmissible under Art. 18.20, § 2(a)(1).  The trial court denied his suppression motion, he was convicted and sentenced to life in prison.  On direct appeal to the Amarillo Court of Appeals, that court held that the phone call did not constitute a “wire communication” nor were Appellant’s statements made over the phone an “oral communication” as defined by Texas Penal Code § 16.02 because there was no expectation that the communication would not be intercepted.  Because the appeals court found that Appellant’s words were neither a wire communication nor an oral communication, it declined to decide whether the recording of Appellant’s side of the telephone conversation was an “interception” of a wire or oral communication for purposes of § 16.02 Penal Code.

The Court looks to the case of United States v. Carroll, 332 F.Supp. 1299 (D.D.C. 1971) which involved “the overhearing of a person talking in an adjacent hotel room whose statements to others in the room and over the telephone were recorded on a tape recorder as the voice was picked up coming through a closed connecting door.”  The district court there held that the mere overhearing and recording of one end of a telephone conversation without actual interception of a communication passing through the wires was not intended to be included within the definition of the term “wire communication.” Id. at 1301.  The Court also referred to the case of People v. Suttle, 90 Cal. App. 3d. 572 (CalCt.App. 1979) which held that the tape recording of one-half of a telephone conversation of a jail inmate’s call to his mother was not “intercepted” and thus not an interception of a wire communication. 

Therefore, the Court holds that words that are spoken into a telephone receiver that can also be heard in the area surrounding the speaker without electronic assistance are not “wire communications” as defined by Art. 18.20, § 1(1).  A recording of those words merely memorializes what can be heard in the interrogation room.  Because Appellant’s words “escaped” into the area surrounding Appellant and that these words could be overheard without resort to any interception of a wire communication, the Amarillo Court of Appeals did not err in determining that Appellant’s telephone conversation was not a wire communication.  Judgment of the court of appeals and Appellant’s life sentence affirmed.

TERMS OF COMMUNITY SUPERVISION DO NOT TAKE EFFECT UNTIL THE JUDGMENT IS FINAL AND APPELLATE MANDATE HAS ISSUED

Humphries v. State, No. 04-07-00857-CR, San Antonio Court of Appeals, April 9, 2008 - Appellant was indicted on two counts of indecency with a child.  One count alleged indecency by contact and the other by exposure.  The jury acquitted Humphrey of the contact count but convicted him of indecency by exposure.  It sentenced him to three years in prison, probated for three.  The trial court placed Appellant on community supervision for three years.  Following that, Appellant filed his notice of appeal.  The next day, the trial court held a hearing to set up the terms of community supervision.  These terms included, inter alia, that Appellant move from his established residence no later than October 5, 2008 since his house was located within 1,000 feet of a school.  At the conclusion of the hearing, over Appellant’s objections, the trial court ordered that the terms commence immediately. 

Appellant filed a motion for emergency relief pending appeal, seeking an order staying the trial court’s order imposing the conditions of probation until the judgment is final.  At the inception, the State challenged the jurisdiction of the appeals court to consider Appellant’s emergency motio for relief.  Since Appellant lawfully invoked the appeals court jurisdiction by filing the notice of appeal, the court also has the power to issue such orders necessary to allow Appellant to pursue his appeal.  And one of the main rules attaching to the Court’s jurisdiction upon the filing of the notice of appeal is the expiration of the trial court’s own jurisdiction in the matter. 

As to the merits of Appellant’s request for emergency relief, the appeals court had no trouble in finding the trial court’s order to be contrary to long-standing, existing authority which holds that an appeal from a criminal judgment suspends enforcement of that judgment until such time that the judgment becomes final and the appellate mandate has issued.  This rule applies to any and all conditions that might be placed on that judgment or order imposing probation.  The only exception to this general rule is that a defendant must nevertheless register as a sex offender pending appeal. See Art. 62.002(b) C.C.P. 

The State argued that immediate imposition of the terms of the probation was necessary to ensure “the safety of the public” and that Appellant should be required to seek and apply for an appeal bond pursuant to Art. 44.04(c) C.C.P. if he wishes to stay enforcement of the probation conditions.  But the appeals court points out that Appellant is presently out on his initial appearance bond and the sureties remain bound on that bond until the term of probation commences.  Now here’s the key language in the court’s opinion that doesn’t auger well for Appellant: “Because the trial court retains authority over the conditions and amount of bail, the safety of the public is adequately protected.” 

Appellant’s motion for emegency relief is granted and the trial court’s order of immediate enforcement of the probation terms is stayed.  But boy, can you imagine the size of the new bond that trial court set within minutes of receiving the copy of this ruling?  They’re (the trial court and the State) are going to make this guy’s life utter hell for the next three years if they have anything to say about it.  How dare this jury give him probation and even worse, how dare him appeal the case?  And what’s also troubling about the actions taken by the trial court is that the judge is a former appellate judge, having spent six years on the very appeals court that issued the subject ruling.  He knows better.

TWLEVE-YEAR DELAY BETWEEN INDICTMENT AND ARREST OF APPELLANT VIOLATED HIS CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

Orand, aka Bondurant v. State, No. 02-06-00394-CR, Fort Worth Court of Appeals, April 10, 2008 - The caption above pretty much tells the story about why this case was eventually tossed by the Ft. Worth Court of Appeals.  The opinion itself doesn’t plow any new ground.  It does discuss those factors enumerated in the seminal case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1972) that must be evaluated when determining a claim of speedy trial violation: (1) whether the delay was uncommonly long; (2) whether the government or the defendant is more to blame for the delay; (3) whether in due course the defendant asserted his right to a speedy trial and (4) whether the defendant suffered any prejudice.

The trial court held a hearing on Appellant’s motion to dismiss for failure to afford speedy trial.  That court found that all factors preponderated against the government and in favor of Appellant but nonetheless denied the motion to dismiss because of Appellant’s failure to prove up ”real prejudice.” 

Turning to the only real issue in the case - that being prejudice - the appeals court noted that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown.  The possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence is the most serious interest that the right to speedy trial protects because the inability of a defendant to adequately prepare his case skews the fairness of the entire system. See Doggett v. U.S., 505 U.S. 647, 654, 112 S.Ct. 2686, 2692 (1992).  The Doggett Court went on to explain:

When the government’s negligence thus causes delay six times as long as that generally sufficient to trigger judicial review . . . and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled to relief.

                                                                Id., 112 S.Ct. at 2694.

Taking Dogget as their lead, the appeals court notes that Appellant cannot even remember where he was at the time of the specific offense and therefore he is at a distinct disadvantage in locating witnesses who might be able to testify as to his true whereabouts.  Due to the lapse of time, he has been deprived of his ability to effectively cross-examine State’s witnesses because again, given the passage of time, any word uttered or fact provided by a prosecution witness is simply unassailable. 

“Although [Appellant] points to no specific affirmative evidence of particularized prejudice, the extreme and excessive length of the delay here presumptively compromised the reliability of his trial in ways that neither party can prove or even identify. [citation omitted] And the presumption of prejudice intensified and grew with each passing year of delay. [citation omitted] The State’s argument that the case boiled down to a he-said, she-said scenario may be correct, but it does not persuasively rebut the mushrooming presumption of prejudice because it is undeniable that the excessive delay between Appellant’s indictment and his arrest forever precluded him from proving that what he said was true and what she said was not.

A proper balancing of the Barker factors clearly predominates in favor of Appellant.  His right to a speedy trial under the Sixth Amendment to the U.S. Constitution was violated.  The trial court’s judgment is reversed and a judgment of acquittal is rendered. 

For limited comedy relief, I also include the trial court’s comments made from the bench during the hearing on the speedy trial dismissal motion.  In finding that the State was both negligent and failed to exercise due diligence in locating Appellant in his Oklahoma hometown and bringing him to trial, the judge stated for the record:

“I don’t recall any reason whatsoever given that they didn’t go and arrest the guy that would make sense to any half-ass reasonable person.  They just didn’t try to go get him.  He lived in Springer, Oklahoma for ten years.  Springer, Oklahoma ain’t got dip people in it.  They called his mother up there before he was indicted.  He lived with his mother.”

TRIAL COURT INTERVENTION INTO VOIR DIRE TO CORRECT MISSTATEMENTS OF LAW OR TO PREVENT IMPROPER COMMITMENT QUESTIONS POSED BY COUNSEL

Kennedy v. State, No. 11-06-00223-CR, Eastland Court of Appeals, April 10, 2008 - Appellant was indicted for and convicted of sexually assaulting his four-year-old daughter.  He complained on appeal that the trial court erred in rehabilitating certain veniremembers who had initially stated that they could not consider probation in an aggravated sexual assault case.  The record showed that the panel was initially questioned on their ability to consider probation in an aggravated sexual assault case.  Then defense counsel informed the panel that the State would have to prove each element of the indictment against his client and that included proving that he raped his own four-year old daughter.  This brought on a flood of challenges for cause as many of the veniremen, now having been informed as to the identity of the victim, stated they were absolutely unwilling to consider probation.  The trial court asked one particular venireperson why he had changed his opinion about probation and his answer was that once defense counsel “got it in our face,” he changed his mind.  The trial court then “correctly” phrased the ultimate consideration question without reference to the identity of the victim to all members of the panel.  Both sides agreed on seventeen challenges but the trial court denied Appellant’s challenges to four others.  Defense counsel asked for four additiional peremptory strikes, stating that he used four of his alloted ten strikes on four venirepersons who had initially disqualified themselves but were rehabiliated by the trial court.  Appellant also objected to the trial court’s “intervention” through rehabilitation after they indicated that they could not consider the full range of punishment.  He did not claim that they were not properly rehabilitated.

The Court holds that the quesion posed by defense counsel was an improper commitment question since it sought to commit a prospective juror to resolve or to refrain from resolving an issue a certain way after learning a particular fact. See Standefer v. State, 59 S.W.3d 177 (Tex.Ct.App. 2001).  Since the identity of the victim is not an essential element of the crime Appellant was charged with, it injected an additional fact into qualifying a prospective juror.  And just because a juror states that he or she will not consider probation in a case in which the defendant’s daughter is the victim does not mean that he is nevertheless disqualified as a juror in an appropriate case of aggravated sexual assault.  The identity of the victim may take on relevance at the punishment phase of the trial but it is not an element of the offense as determined by the Legislature. 

Thus, the question posed by the defense lawyer was an improper commitment question and the trial court was well within its discretion and power to “intervene” and properly rehabilitate a “confused” venireperson.  Moreover, any challenge for cause to the four identified venirepersons was without merit. 

APRIL 30, 2008

PLAIN ERROR, IMPERMISSIBLE BOLSTERING BY PROSECUTOR DURING FINAL ARGUMENT

United States v. Gracia, No. 07-40245, Fifth Circuit Court of Appeals, March 31, 2008 - Appellant was a passenger in a car being driven across the border between Matamoros and Brownsville by a older female friend.  The car contained 50 kilograms of cocaine hidden in a false floor.  Both the female driver and Appellant were taken into separate rooms where they were interrogated.  Appellant denied and continued to deny his involvement in the transaction.  He did admit to receiving $1,000 in payment for accompanying the female across the border.  Not satisfied that he was telling the truth, the agents involved brought in the female, Valenzuela-Montoya, who implored Appellant to tell the truth.  According to the agents, Appellant was “moved” by Valenzuela’s visit and proceeded to tell the agents about the identity of the man who put the shipment of cocaine together and where it was to be transported.  The agents neither obtained a written statement from Appellant or recorded his story.  They did seize $1,000 from the person of Valenzuela. 

Appellant was thereafter indicted on multiple counts of conspiracy to possess with intent to distribute cocaine as well as conspiracy to import cocaine and actual importation.  He proceeded to jury trial where the jury returned verdicts of guilty on all counts.  His defense at trial was that the agents were not being entirely truthful regarding their testimony that Appellant has “confessed” to being a party to the drug shipment and that he had provided details of the smuggling operation. 

On appeal, Appellant contended that prosecutorial misconduct permeated the trial and particularly, when the prosecutor made personal comments to the jury regarding the believability of the agents’ testimony.  Appellant’s counsel did not object to these statements so the Court examines the complaints on the “plain error” standard.  This means that Appellant must show that (1) there is error; (2) it is plain and (3) it affected his substantial rights.  Even if he satisfies this three-pronged test, the Court is still free to disregard the error unless the plain error seriously affected the integrity, fairness or public reputation of the judicial proceeding.  Finding that the prosecutor’s comments did just that, the Court reverses and remands for new trial.

In this comments, the prosecutor called the agents “very, very credible” witnesses and further, implored the jury to consider whether they thought that an agent “who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia” and whether the agents “would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury.”  Other comments made by the same prosecutor, all of which were made in rapid succession of each other, asked the jury to believe the agents because they were law enforcement officials and that to acquit Appellant, the jury would have to believe that the agents “got out of bed” on the day they arrested Appellant and decided that this was the “day they were going to start a conspiracy to wrongfully convict Mr. Gracia.”

The Court holds that all four statements were plain error and run afoul of the hard and fast rule in federal court that the prosecutor may not express his belief or his opinion as to the truth or falsity of any testimony of a witness or of the guilt of a defendant.  The Goverment may not cloak a witness in its “protective mantle.”  Indeed, it is impermissible per se for a prosecutor to offer personal assurances to the jury that government witnesses are telling the truth or to tell the jury that law enforcement witnesses should be believed simply because they are doing their job. 

By concluding that the prosecutor’s statements were clear and obvious and therefore, constituted plain error, the Court must then determine if they affected Appellant’s substantial rights.  In so doing, the Court makes note that the agents’ testimony was the only evidence linking him to the crime.  Since the Court must analyze the strength of the government’s case against Appellant, it finds that aside from the agents’ testimony, there is none. The government could not establish any nexus between Appellant and the drugs or the sophisticated, hidden compartment in the vehicle owned and driven by Valenzuela.  There was no proof that Appellant was even aware of the compartment and it is reasonable to conclude that it would not have been apparent to an unknowing passenger.  Money was seized from Valenzuela and not Appellant.  And the fact that Appellant did not show surprise when informed of the presence of cocaine in the vehicle does not infer guilty knowledge.  No doubt the government would be arguing that had Appellant shown surprise, that too would be an indicator of guilty knowledge as opposed to his lack of emotion.  The Court will place no weight on attribution of guilt from any number of opposite factors.  The reality of the case is that Appellant’s conviction turned solely on the jury’s evaluation of the agents who interviewed Appellant at the border crossing.  Absent the jury’s crediting the agents with believability, Appellant could not have been found guilty beyond a reasonable doubt on the paucity of other evidence.  The prosecutor’s statements constituted plain reversible error which seriously affected the integrity, fairness and public reputation of Appellant’s judicial proceeding.  The conviction is reversed and remanded for whole new trial.

SUPPRESSION OF PHYSICAL EVIDENCE NOT REQUIRED AS A RESULT OF FAILURE TO GIVE MIRANDA WARNINGS

In the Matter of H.V., Texas Supreme Court, No. 06-0005, April 12, 2008 - This appeal arises from the trial court’s suppression of a juvenile’s written statement and the weapon allegedly used by him in a homicide.  The case deals with two issues primarily: whether the child clearly invoked his right to counsel prior to his giving a statement to the police and whether suppression of the statement and the murder weapon was proper.  The Court holds that the juvenile’s request to the magistrate that he (the child) wanted to contact his mother so she could hire a lawyer was a clearly sufficient request for counsel.  Given this and the magistrate’s and law enforcement’s failure to scrupulously honor the child’s request for counsel, suppression of the written statement was justified.  However, the trial court’s suppression of the handgun is reversed.  Taking lead from a plurality opinion of the Supreme Court, United States v. Patane, 542 U.S. 630 (2004) and the Court of Criminal Appeals’ opinion in Baker v. State, 956 S.W.2d 19, 23-24 (Tex.Crim.App. 1997), the Court that in the absence of actual coercion of a confession from the suspect, the “fruits of the poisonous tree” doctrine does not require suppression when a Miranda violation has occurred.

45 MINUTE DELAY FROM TIME OF STOP TO “FREE AIR” DOG SNIFF NOT UNREASONABLE DETENTION FOLLOWING TRAFFIC STOP AND REQUEST FOR CONSENT TO SEARCH

Love v. State, No. 06-07-00147-CR, Texarkana Court of Appeals, April 4, 2008 - Love was stopped on Hwy. 59 in Marion County which is near Jefferson, Texas.  He was stopped for speeding.  During the course of the stop, and while the trooper was checking license, insurance and running the Appellant’s name for wants and warrants, Appellant gave contradictory statements about the purpose of his trip.  Appellant also stated that he was planning on staying only two days in Monroe, Louisiana; however, he had several pieces of luggage which, according to the trooper, was inconsistent with a short stay.  After his suspicions were sufficiently aroused, the trooper requested consent to search which Appellant refused.  The trooper attempted to locate a drug dog but when the DPS dog was unavailable, he made contact with the Sheriff’s Department in adjoining Harrison County and a dog was then provided in a short 25 minutes.  A free air sniff led to the seizure of 93 pounds of marijuana. 

On appeal, Appellant maintained that the intervention of forty-five minutes from the initial traffic stop to the time of the free-air search by the drug dog was too long and that the detention was unwarranted.  Rather than state well-established law governing the legality of the initial stop (which Appellant did not contest) and the need to articulate those factors which might give rise to suspicion that “criminal activity might be afoot,” it is important to examine the reasonableness of the duration of the detention and determine whether law enforcement diligently pursued its investigation which was likely to dispel or confirm these Terry suspicions.  Appellate scrutiny requires the reviewing court to judge the reasons behind any delay in the detention and whether there are legitimate law enforcement purposes served by any delay. 

The Court breaks down the stop into two parts.  The first part was the initial stop, the questioning of Appellant, radio confirmation of information provided by Appellant to the trooper, the second questioning of Appellant by the trooper which gave rise to his suspicions and the request to search via consent.  This consumed twenty-five minutes and is judged not to be unreasonable.  As a result of the information gleaned from his cursory investigation, the Court holds that the trooper had specific, articulable facts which indicated that Appellant might be involved in drug trafficking (inconsistent stories, diversion from stated route to destination, luggage, nervousness of Appellant, lying to trooper about the number of drug convictions which he had).  The next period is the twenty minutes it took for the trooper to find a drug dog.  Rather than criticize the trooper for taking the time to locate the drug dog from Harrison County, the Court commends the officer for doing so “expeditiously.”  Finding that the trooper’s success in finding the drug dog so quickly is sufficient to establish that he carried out his pending investigation, including deployment of the drug dog, diligently.  Finding no error in the trial court’s denial of Appellant’s motion to suppress, the conviction is affirmed. 

The important point to be made here is that the amalgam of factors which led to the trooper’s articulable facts did not carry much probative force - the nervousness, driving a rent car, lots of luggage.  However, his lying to the officer about his criminal history was the one which tilted those otherwise ambiguous factors in favor of continued detention.  Appellate courts, including the Amarillo Court, place great weight on any attempt of the offender to mislead law enforcement during the initial stages of these traffic stops. 

SEARCH WARRANT WHICH PERMITS SEARCH OF ANY AND ALL VEHICLES OWNED OR CONTROLLED BY SUBJECT OF WARRANT WHICH ARE “LOCATED ON THE PROPERTY NAMED” IS SUFFICIENT TO UPHOLD SEARCH OF APPELLANT’S CAR ON MOTEL PARKING LOT

Hudspeth v. State, No. 03-07-00269-CR, Austin Court of Appeals, March 19, 2008 - Appellant’s motel room was the subject of a search warrant.  The warrant also included the vehicles controlled by Appellant that were on the premises of the “suspected place” to be searched.  As the search was underway, keys to Appellant’s vehicle were seized by law enforcement.  Appellant confirmed his ownership of the car in question.  Crack cocaine was found under the driver’s seat.  Appellant filed his suppression motion and conceded the validity of the search warrant for the motel room.  But he argued that the motel parking lot was a common area and that there was no way to know which of the cars in the lot belonged to Appellant.  So the issue was whether the inclusion of the language pertaining to searches of any vehicles “owned or operated” by Appellant located on the property named in the warrant was sufficient to justify the entry into Appellant’s car on the motel parking lot.  The Austin court holds that it was.

The Court makes note of the legion of federal cases which hold that searches of vehicles “on premises” have consistently been upheld where the search warrant did not reference any vehicles to be searched but authorized search of the “premises.”  A search of a particularized location or residence also permits the search of vehicles owned or controlled by the owner of and found on the premises. United States v. Freeman, 685 F.2d 942, 955 (5th Cir. 1982)  Morover, the Court of Criminal Appeals has also visited the same issue in Hughes v. State, 843 S.W.2d 591 (Tex.Crim.App. 1992).  There the Court held that the scope of a search warrant was not exceeded by the search of vehicles on the premises and that the probable cause showing with respect to the premises in general was sufficient to establish probable cause for the search of the vehicles. Id. at 595.  Therefore, since Appellant confirmed his ownership and control of the subject vehicle to law enforcement at the time of the execution of the warrant and Hughes justifies the search of vehicles attendant to an otherwise sufficient warrant against which Appellant lodged no objection, the Court concludes that the trial court had a clear record before it to conclude that the issuing magistrate had before him sufficient probable cause, as contained in the four corners of the warrant affidavit, to issue the warrant.  Trial court’s denial of Appellant’s motion to suppress affirmed. 

APRIL 7, 2008

LESSER INCLUDED OFFENSES, APPELLATE  INEFFECTIVE ASSISTANCE OF COUNSEL ON FAILURE TO RAISE LEGITIMATE ISSUE ON DIRECT APPEAL

Ex parte Dianna Marin, slip no. AP-75,719, Court of Criminal Appeals, April 2, 2008 - Applicant sought relief on two grounds - one in which she alleged error in trial court’s charging the jury on the offense of conspiracy to commit murder as a lesser-included offense of murder and her appellate counsel’s refusal and failure to raise the same issue on direct appeal.  Applicant was originally indicted for murder only.  The State’s theory was that she hired a third-party to carry out the murder of her husband.  The prosecution rested primarily on the testimony of this accomplice as a matter of law who cut his own deal with the State and testified against Applicant.  At the close of all evidence, the trial court conducted a charge conference where the court made it known that it wanted to charge the jury on conspiracy to commit murder.  Applicant’s trial lawyer vigorously objected, pointing out that the recent case law on the subject did not allow for inclusion of conspiracy to commit murder as a lesser included since it could not pass the Blockburger test.  He also pointed out that recent precedent would not allow the inclusion of the conspiracy count based on the force of Hall v. State, 225 S.W.3d 524, 527-28 (Tex.Crim.App. 2007).  In Hall, the Court held that even though a given lesser included offense might be appropriate under the specific facts of a given case, unless the manner of its commission was specifically pled within the body of the indictment, then it (the lesser included offense) will generally not be available for purposes of inclusion in the court’s charge.  Taking its cue from the U.S. Supreme Court in Schmuck v. United States, 489 U.S. 705 (1989), the Court pointed out that to hold otherwise would run afoul of due process notice requirements by making it impossible to know before trial what lesser included offenses are included within the indictment, yet making it possible at the end of the trial to convict for any offense that was incidentally shown by the evidence presented. 

Applicant was convicted of conspiracy to commit murder and sentenced to 12 years prison.  On direct appeal, she directly implored her appellate counsel to raise the error of having the court’s charge contain the lesser included offense of conspiracy to commit murder.  She, as well as her trial lawyer, provided the appellate lawyer with the current case law and argument supporting their position.  Appellate counsel consciously and deliberately refused to raise the lesser-included issue, relying on other frivolous or otherwise non-meritorious points of error.  Applicant’s conviction was affirmed by the San Antonio Court of Appeals and her PDR refused. 

Under the Strickland test as applied to appellate counsel ineffectiveness, the moving party must show that counsel’s performance was deficient and that this deficiency caused prejudice - in this case, that but for counsel’s failure to raise the lesser-included offense issue, she would have prevailed on appeal.  Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome. 

In finding appellate counsel’s performance deficient, the Court noted that the law has been clear since as early as 1995 that the Court focused on the statutory elements of the lesser and greater offenses in question as opposed to that which is solely developed at trial.  Therefore, in light of this developing law, Applicant’s challenge to the trial court’s inclusion of the conspiracy to commit murder offense in the court’s charge raised a very strong issue on appeal on which she was quite likely to prevail upon.  However, appellate counsel deliberately ignored Applicant’s request to have that issue raised and, as shown by his own affidavit filed in Applicant’s writ proceeding, chose to raise issues which, in his own opinion, were frivolous or without merit.  That being so, counsel should have filed an Anders brief and requested to withdraw so other counsel could have pursued the only real issue in the case - the lesser included offense of conspiracy to commit murder.  And if counsel had heeded his client’s advice, he would have researched the issue and discovered that the Court had decided, once and for all, that the statutory approach to the issue of lesser included offenses would have established that the trial court’s action in including the conspiracy count in the charge was clear error.  See Hall, 225 S.W.3d at 535. Raising the ground would have resulted in a reversal and remand.  Thus, Applicant clearly established deficient performance and prejudice. 

What’s even more interesting about the case is appellate counsel’s obstinate refusal to raise the issue.  Applicant had everything to gain and nothing to lose by litigating the issue.  Remember that the jury was charged on murder, conspiracy to commit murder and solicitation to commit murder.  The jury was also specifically instructed that if the jury was not persuaded beyond a reasonable doubt, or it had a reasonable doubt thereof, concerning Applicant’s guilt under the murder theory, then and only then would it then consider the lesser included offenses of conspiracy and solicitation.  Therefore, the jury’s guilty verdict on the conspiracy count was an implied acquittal of murder.  Applicant is protected against any further prosecution for murder as a result of this implied acquittal, even though the jury should have never received for consideration the lesser included offense of conspiracy to commit murder or solicitation to commit murder.  It really boggles the mind to understand appellate counsel’s refusal to raise the issue. 

UNLAWFUL CUMULATION ORDER DOES NOT AMOUNT TO “REVERSIBLE ERROR” UNDER ART. 44.29 RULES OF APPELLATE PROCEDURE; APPELLATE COURT MAY ENTER DELETION ORDER

Beedy v. State, slip opinion nos. PD-1224-06 & PD-1225-06, Court of Criminal Appeals, April 2, 2008 - The court of appeals held that the trial court’s order ”stacking” Appellant’s ten-year deferred adjudication order on top of his twelve year sentence was improper, directed that the cumulation order be stricken and that the deferred adjudication begin to run concurrent with the twelve-year sentence.  The history underlying the two sentences is interesting and worth a short discussion to understand better why the State so desperately wanted to get this case sent back to the trial court.

Appellant entered an open plea to two indecency with a child offenses and also pled “true” to an enhancement for a prior conviction of sexual assault of a child.  The trial court sentenced him to 12 years confinement in TDC on count one and then placed him on deferred adjudication for ten years with the community supervision to commence once he discharged from his twelve-year sentence.  The State argued that the proper remedy was to remand the case back to the trial court because to do otherwise “penalizes” a judge for making a mistake and strips the trial judge of his or her discretion “to fashion a