Wednesday, June 2, 2010

Today's Opinions (or lack thereof) - 6/2/10

The CCA handed down a number of orders denying habeas corpus relief and a few unpublished opinions. Still no Dobbs.

Wednesday, May 26, 2010

Fist Full of Meyers - Today's Opinions - 5/26/10

The CCA handed down orders and opinions in a number of cases. They handed down published opinions, featuring Judge Meyers prominently, in the following cases:

PD-0493-09, Douglas Michael Hubert v. State: Hubert lived with his grandfather. In this possession of a firearm by a felon case, the CCA held that Hubert's grandfather had actual authority to give consent to police officers to search Hubert's room. They sidestepped the issue of whether Hubert's grandfather had apparent authority to consent to the search of the room. Here's a link to the majority opinion. Here's a link to Judge Meyer's dissent. And here's a link to the court of appeals opinion and case info.

PD-0512-09, Julian Kuciemba v. State: The CCA held that there was sufficient circumstantial evidence that Kuciemba, found intoxicated and injured after a single-car rollover accident where he totally failed to hit the breaks, was intoxicated at the time of driving. Here's a link to the majority opinion. Here's a link to Judge Meyer's dissent. Here's a link to the court of appeals opinion and case info.

PD-0560-09, Oscar Perez v. State: The CCA held that while trial counsel failed to interview witnesses for a possible alibi for Perez. However, the failure to investigate did not prejudice Perez because the alibi witness gave a vague affidavit that did not foreclose Perez's ability to commit the offense. Here's a link to Judge Meyer's majority opinion (joined by all). Here's a link to the court of appeals majority opinion, dissenting opinion, and case info.

Note, there was also a published habeas case, but I haven't been able to pull it up yet. Will add it as soon as I'm able.

Case Summary - Douglas Michael Hubert v. State

Douglas Hubert was on parole and living with his grandfather when his grandfather called Hubert's parole officer to report that Hubert had violated numerous conditions of his parole, including possessing a firearm. Hubert's parole officer got a blue warrant for Hubert's arrest, and two officers went to execute it. They found Hubert on the porch and arrested him.

Hubert's grandfather also gave the officers consent to search Hubert's room. Hubert's bedroom door was closed, but not locked. Additionally, the grandfather told the police that he did not sleep in Hubert's room. However, he opened the door for the officers, and as far as the officers knew, the house belonged to the grandfather. Inside they found weapons and ammunition, which lead to a charge of possession of a firearm by a felon.

At the motion to suppress hearing, Hubert testified that he and his grandfather were co-owners of the house. Hubert's fiancee testified that the grandfather was not allowed to enter the room without express permission because he was excluded from Hubert's bedroom. She also testified that Hubert and his grandfather co-owned the house. Hubert tried to introduce a deed that purported to show that Hubert and his grandfather co-owned the house, but the State objected and the deed was not introduced. The trial court denied the motion to suppress.

The court of appeals reversed in a published opinion. According to the court, the legal property interest was not dispositive, but there was no evidence of common authority presented by the State. The officer's testimony showed that only Hubert (and sometimes his fiancee) slept in the room and the door was closed. This did not show that the grandfather had actual authority to consent to the search of Hubert's room. (Here's a link to the court of appeals case info if you're interested.)

The CCA reversed the court of appeals and held that Hubert's granddad did have authority to consent to the search of Hubert's room. Presiding Judge Price, joined by Judges Womack,Johnson, Keasler, Hervey, Holcomb, Cochran, and Presiding Judge Keller, explained that a third party can consent to a search to the detriment of another's privacy if there is mutual use of property by people generally having joint access or control for most purposes. Moreover, the majority rejected view held by several courts that there is a presumption that an occupant exercises sole control over his own bedroom and has no joint access to others' bedrooms. Rather than apply such a presumption, the Court simply looked at the facts of the case in a light most favorable to the trial court's ruling. As the majority saw it, Hubert, lacking any proprietary interest or even possessory right other than by the grace of his grandfather, assumed the risk that his grandfather might permit the search of any area of the house including Hubert's bedroom. The Court declined to consider whether the officers also had apparent authority to consent to the search of the bedroom.

Judge Meyers dissented. According to the dissent, this case was like Vennus v. State where the defense excluded evidence that justified the officer's conduct only to complain later that the record did not support the officer's conduct. Here, the State prevented Hubert from introducing evidence that he had a proprietary interest in the house, so they should not be allowed to argue that the court of appeals because there was nothing showing that Hubert's grandfather lacked authority to consent. [Here's a link to the CCA case information if you're interested.]

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Why didn't they just get a search warrant? I mean seriously. Anyway, that's neither here nor there. Meyers' dissent does hit upon the discomforting feeling that the State is adding by subtracting, and that's kind of why I would rather they had decided the case on apparent authority grounds. But I do think his analogy is not as direct as he thinks. In Vennus, the State had to prove reasonable suspicion and the defense objected to prevent the evidence from coming in. Then on appeal, the defense wanted to complain about a lack of evidence the defense had caused. Here, the State wasn't trying to rely upon something it had tried to keep out. The defense was trying to rely upon something the State had kept out. A distinction without a difference? Maybe. But it's not the direct analogy that Meyers makes it out to be. Perhaps the defense should've argued on appeal that the trial court erred by keeping it out, but in any event the error on appeal wasn't invited by the State. Of course, the whole goose-gander thing always gets me confused, so if you shake me enough I might change my mind.

As for the majority, seems pretty thin on actual authority, though it does seem that the trial court could've reasonably concluded that the defendant was staying in the residence by the grace of his grandfather. Even if he were a co-owner of the residence, that kind of cuts both ways. Sure he has a property interest, but it also shows joint ownership. Proprietary interest isn't the deciding factor, and the majority's reliance upon that kind of hints that there wasn't much evidence on common use of the bedroom. All this makes me wonder how bad the "apparent authority" argument would have been if the Court felt the need to find "actual authority" to avoid that inquiry.

Case Summary - Julian Kuciemba v. State

Police found Julian Kuciemba behind the steering wheel, injured and intoxicated after a one-car rollover accident. The deputy who arrived on the scene found Kuciemba's truck in a ditch with its roof partially crushed. Kuciemba had cuts on his forehead with blood running down his face. He smelled of alcohol and was unsteady on his feet. His eyes were glassy and bloodshot, he had difficulty standing, and his speech was slurred. He claimed he had fallen asleep. No skid marks were found on the roadway indicating Kuciemba did not brake before the rollover. His blood alcohol level was over twice the legal limit.

The court of appeals reversed, holding that the evidence was legally insufficient to show that Kuciemba was intoxicated at the time he was driving. The time of the accident wasn't established, and the State did not put on any evidence of Kuciemba's driving before the accident or to establish how soon afterwards the deputy arrived on the scene. According to the court of appeals, the evidence supported a finding that Kuciemba was intoxicated at the accident scene not that he was intoxicated while driving. [Here's a link to the court of appeals case information if you are interested.]

The CCA reversed, holding that the evidence circumstantially established that Kuciemba had been driving while intoxicated. Presiding Judge Keller, joined by everyone except Judge Meyers, explained that being intoxicated at the scene of a traffic accident where the actor was a driver is some evidence that intoxication caused the accident, and the inference is stronger when it's a one-car collision with an inanimate object. Additionally, the fresh cuts, Kuciemba's presence behind the wheel, his total failure to break, and his high blood-alcohol content supported the inference that Kuciemba was recently involved in the accident or that he had been intoxicated for quite awhile. And oh yeah, The Supreme Court of Nebraska would've reached the same holding, so there. [Here's a link to the CCA case information if you are interested.]

Judge Meyers dissented because he agreed with the court of appeals that there was neither direct or circumstantial evidence to establish the necessary temporal link between Kuciemba's driving and his intoxication. All the evidence showed Judge Meyers was that Kuciemba did not operate his car in a safe manner and that he was intoxicated at the accident scene.

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Perhaps you've heard the advice that people dispense at bars about what to do when you're in a DWI accident. You know, they say if you get in an accident you should immediately chug some liquor. Well, this opinion is the opinion affirming your conviction you will likely get should you engage in such foolish behavior. I wonder if Meyers is still, perhaps on a subconscious level, looking at this from an exclusion of every reasonable hypothesis standard of review. Is he thinking this case is one where the defendant really wasn't drunk until after the accident when he decided to chug some liquor (that was never found) out of remorse? Or was there a phantom driver who pulled the defendant into the driver's seat out of his own sense of guilt before fleeing the scene in his drunken state? Look, all of the facts in this case raise the inference that the defendant was driving while intoxicated. Of course, you could also come up with other hypothetical situations like the ones I mentioned above. Under the old standard Judge Meyers could be forgiven for allowing such possibilities enter his mental calculus. But now it's up to the jury to decide on competing theories of the case, and if they determine that the former scenario is more likely than the later hypothesis, then that's their call. Under the new standard, Judge Meyers is just wrong. Of course, he didn't have to rely upon a case from Nebraska to make his point, so maybe I'm the one who's messed up.

P.S.-Nothing on this blog should be construed as any type of advice.

Case Summary - Oscar Perez, Jr. v. State

Oscar Perez, along with an accomplice, broke into the home of a young woman and her thirteen-year-old son. She was able to identify the accomplice, and the boy was able to identify Perez. According to the boy, Perez pointed a knife at the boy while his cohort trashed everything and demanded money. A jury convicted Perez of aggravated robbery, and defense counsel withdrew on the date of the judgment.

Perez filed a motion for new trial alleging ineffective assistance of counsel. Perez claimed that the defense failed to do a proper investigation. The court-appointed investigator listed four people that defense counsel could've called as witnesses. One of the witnesses lived in a two-bedroom apartment with seven other people including Perez. She would've testified that she slept on the floor next to the couch Perez slept on. She would've testified that "we went to bed about 10:00" and she was certain that Perez was sleeping on the couch every night during the time the robbery occurred. The only evidence of the time of the robbery came from the mother (who said it was around 8:00 p.m.) and her son (who said it was around 10:00 p.m.). The trial court denied the motion for new trial.

The court of appeals affirmed. While trial counsel's failure to investigate fell below prevailing professional norms, the majority still held that Perez had not been prejudiced by trial counsel's deficient performance. The "alibi" witness had not provided a specific date or event, so her testimony did not directly conflict with the testimony provided by the State. Justice Frost dissented because the testimony from the uninvestigated witnesses could've established an alibi defense for the jury to consider. [Here's a link to the court of appeals case information if you are interested.]

The CCA affirmed. Writing for a unanimous court, Judge Meyers explained pretty much as the court of appeals had that the alibi witness did not really provide an alibi or make it impossible for the defendant to commit the crime. The witness's affidavit was unclear about whether "we went to bed" meant she and Perez or just her and her child, and simply was not the game-changer Perez wished it to be. After viewing the evidence the State presented compared to what the defense failed to present, there was no reasonable probability sufficient to undermine confidence in the outcome. [Here's a link to the CCA case information if you're interested.]

* * * * *

I wonder if this means alibi witnesses in motions for new trial will be required to testify in such a manner that it was impossible for the defendant to commit the offense. I suppose a little more information from the witness might have helped Perez carry his burden to show that he was prejudiced by trial counsel's performance. Had there been live testimony But after finding himself in a minority of one twice today, he pulled out a unanimous majority.

Wednesday, March 3, 2010

Today's Opinions - 3/3/10

Today the CCA handed down published opinions in the following cases:

PD-1205-08, State v. Robert Leahy Powell: The CCA upheld the seizure of two safes that were not described in a search warrant even though the scope of the warrant would have necessarily authorized a search inside the safes for forged checks. While the warrant didn’t specifically list the safes as property to be seized, the safes were described in the warrant affidavit. Judge Womack concurred along with Judges Johnson and Cochran, but declined to join Part II of the majority’s opinion which contained dicta regarding the applicability of the federal exclusionary rule. Judge Price, dissented to take issue with the determination that the affidavit actually contained enough reference to the seized safes to warrant the seizure, and to criticize the majority’s discussion of the federal exclusionary rule in Part II of the opinion. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.

PD-0307-09, Ronald Lee Wilson v. State: The CCA held that a police officer’s use of a fabricated fingerprint report in violation of §37.09 of the Penal Code to persuade a defendant to confess requires the suppression of a suspect’s confession under the Texas exclusionary rule found in Article 38.23. Judge Meyers dissented because he did not think the officer violated §37.09 because the defendant’s confession to the offense meant the report was not really fabricated. Bless his heart. Judge Keasler, joined by Judge Hervey and Presiding Judge Keller, dissented because the Wilson had failed to argue a violation of §37.09 at the trial court, so the error was not properly preserved. Finally, Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, dissented because the officer’s violation of §37.09 did not violate any of Wilson’s personal rights so he had no standing to complain. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.

PD-1780-08, Pamela Shareka Langham v. State: The CCA held that admission of hearsay statements from a confidential informant that a police officer used to get a search warrant violated the Confrontation Clause. Presiding Judge Keller, joined by Judges Keasler and Hervey, dissented because she did not believe the statements provided great, incriminating detail and that the CCA should have performed the harm analysis itself rather than remand the case. Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, also dissented because the out-of-court statements were not “testimonial” because they referred to conduct for which the defendant was never charged. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.

PD-1137-09, Ex parte Levi Alexas King: In light of its recent decision in Ex parte Doster, the CCA dismissed this appeal of a pre-trial writ of habeas corpus because pre-trial habeas is not the appropriate vehicle to consider a denial of a motion to dismiss based upon a violation of the Interstate Agreement on Detainers. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. No additional summary will follow.

PD-0245-09 & PD-0246-09, Safety National Casualty Corp v. State: Based on a historical evaluation of Article 44.44 and the Court’s own history, the CCA held that the civil filing fee statutes do not apply to bond-forfeiture cases so the appellant does not have to pay them in bond-forfeiture cases on appeal. Presiding Judge Keller, joined by Judge Johnson, concurred to add that in 1879 the original statute for appealing bond forfeitures did not contemplate filing fees. Judge Meyers also concurred to note the distinction between court rules (which come from an entity that has no revenue generating or taxing authority) and statues (which come from an entity that does). Judge Holcomb, along with Judge Womack, dissented to argue that civil filing fees are appropriate in bond forfeiture appeals. Here’s a link to the court of appeals case information, and here’s another one. Here’s a link to the court of appeals opinion, and here’s a copy of it.

Case Summary - Robert Leahy Powell v. State

Police developed information that Robert Leahy Powell and another person named Leia McGee were making forged checks in their home. The detective prepared an affidavit for a search warrant that included information that Powell and McGee’s house contained materials for making forged checks and that Powell and McGee had given forged checks to a friend to purchase a safe at Home Depot that was kept at the home. The affidavit also contained information that Powell and McGee had drugs in their house as well. The form of the affidavit also had a section that described the property “concealed and kept in violation of the laws of Texas.” This section of the affidavit listed among other things “checks and materials to make forged checks, but did not list the safes. The police executed the warrant and seized the two safes so that a locksmith could drill out the safes the next day. The police found methamphetamine in one of the safes, and the State charged Powell with possession of methamphetamine.

Powell filed a motion to suppress arguing that the State could’ve searched the safes at the scene pursuant to the warrant, taking them to another location amounted to a seizure outside the scope of the warrant. While courts have recognized that police may take some items from the scene that are not listed in the warrant in those circumstances where it is too difficult to perform a search at the scene, the State did not argue this at the trial level. The trial court suppressed the evidence and the State appealed, and the court of appeals affirmed. [Here’s a link to the court of appeals case information if you are interested.]

The CCA reversed, holding that the reference in the affidavit to the safe purchased with the forged check was sufficient to authorize the seizure of both safes. Judge Hervey, joined by Judges Keasler, Womack, Meyers, Holcomb, Cochran, Johnson, and Presiding Judge Keller, explained that the reference to the safe in the warrant was specific enough to prevent the police from engaging in a general search of the premises. Judge Hervey, joined only by Judges Keasler, Meyers, Holcomb, and Presiding Judge Keller, also went on to opine (in Part II of the opinion) that the “massive” remedy of exclusion of the evidence of the methamphetamine was not required in this case because ultimately only Powell’s possessory interests in his safe was violated, not his privacy interests.

Judge Womack, joined by Judges Johnson and Cochran, concurred with the opinion to the extent that it held the safe was properly described in the warrant, but declined to join them regarding their discussion of the federal exclusionary rule. Judge Price dissented because he felt that the reference to the safe was not sufficient enough to actually describe the safe to be seized. According to Price, it was not a sufficient description because it wasn’t even enough to tell the police which of the two safes to seize, it was not a sufficient description. Moreover, Price not have even reached the question of whether the exclusionary rule should apply because the majority had held that the seizure was authorized by the warrant making the issue of the application of the exclusionary rule irrelevant. Judges Womack, Johnson, and Cochran, also would not reach the issue of the applicability of the exclusionary rule for the very same reasons. [Here’s a link to the CCA case information if you’re interested.]

Commentary: The State really dodged a bullet with this one. They clearly wanted to hold that the difficulty with opening a safe created an exigent circumstance that would’ve allowed them to remove the safe to another location to search it. But the State never argued it, and as the appealing party, that really put the State in a bad position. Moreover, the State conceded that the property was not adequately described in the warrant. Fortunately for the State, the CCA did not accept this concession. Frankly, I would’ve been hard pressed to criticize them had they taken those opportunities to simply affirm. Well, except for the fact that Illinois v. Gates does make clear that you aren’t supposed to read search warrants in a hyper-technical fashion. There’s a strong presumption in favor of warrants, so the fact that police took their evidence to a neutral magistrate before conducting a search certainly deserved some consideration. And Powell did not have any privacy interest in the inside of the safe because the warrant would’ve allowed them to search inside it for the forged checks. So really the argument is more about form than substance. There’s a mention of a safe in one place but not in the specific place in the affidavit that lists what items are supposed to be at the location. I suppose that’s why eight judges had no problem upholding this search.

A wise friend of mine has pointed out that this case appears to be a kissing cousin of State v. Matthew Ryan Dobbs. [Here’s a link to the post when the issue was granted.] I don’t know why these two cases weren’t decided at the same time as both were State’s appeals from searches based on warrants where the search may have exceeded the scope of the warrant. I suppose the resolution of Powell suggests why they weren’t decided together. The CCA ultimately didn’t think that the seizure in Powell exceeded the scope of the warrant because the safes were described in the warrant. In Dobbs, however, the Court may be tinkering with the plain view exception to the warrant requirement. I suppose that both cases could be seen as searches that exceed the scope of the warrant, but then Dobbs doesn’t really need to address the issue of whether White v. State is still good law. [Note, the issue in Dobbs is essentially whether there’s still a requirement that it be immediately apparent on sight that contraband is contraband for police to be able to seize when they find it in plain view.] Exit question: Does that mean Powell helps or hurts Dobbs?