Today's Opinions - 7/1/09

Today the CCA handed down what should be the last of its big hand downs until September. There are still two scheduled dates where PDR dispositions will be handed down this summer (I couldn't pin the clerk down on whether this meant published opinions or not), but it looks like the Court's summer break has started. In other words, after today, it's mostly writs. So today, the CCA issued opinions in the following cases:

AP-74,466, Gregory Russeau v. State: The CCA upheld Russeau's Smith County death sentence after a remand for a new punishment hearing. The Court addressed nineteen issues, and specifically held the evidence was sufficient for a juror to find future danger. Click here for a more detailed summary.

PD-0239-08, Belinda Montoya v. State: A unanimous Court held that the defendant feeling depressed and her moments of impairment because of her long history of drug use that had resulted in terminal end-stage liver disease did not raise a bona fide doubt about the defendant's competence to stand trial. There was no recent severe mental illness, moderate retardation, truly bizarre acts, or anything that indicated the defendant was unable to understand the proceedings. Click here for a more detailed summary.

PD-088808, Thai Ngoc Nguyen v. State: In a 5-4 decision, the CCA held that the trial court should've suppressed the defendant's oral statement claiming ownership of his friend's drugs because the State didn't comply with 38.22. Interestingly, the defendant was charged with hinderance of prosecution not possession, so the statement wasn't really even a confession. Johnson dissented along with Judge Cochra, Judge Holcomb, and . . . Presiding Judge Keller? Click here for a more detailed summary and analysis.

PD-0971-08, Eric Sakil v. State: The CCA held that the trial court did not err in including a voluntary intoxication instruction in the jury charge of the defendant's assault case. The defendant had introduced evidence of his history of drug use and its deleterious effects on his mental health, but he claimed he was not intoxicated on the date of the offense. Click here for a more detailed summary.

PD-1149-08, Ernest Murray Moore v. State: The court of appeals had reversed for the denial of a Batson challenge. Here, the CCA dismissed the State's petition for discretionary review as improvidently granted. Because this case really has nothing to it, I'm not going to do a separate summary post. Instead, click here for a link to my summary when the issue was granted if you're interested.

PD-134008, Johnathan James Moore v. State: The CCA upheld the trial court's turning a defendant's plea into an open plea of guilty when the defendant violated conditions imposed on him by the trial court after his plea and before sentencing. The defendant failed to object to the new conditions and the sentencing hearing, and he never asked to withdraw his plea so error wasn't preserved. Click here for a more detailed summary.

PD-1530-08, Robert Lee Menefee v. State: The CCA held that the evidence was insufficient to support the defendant's guilty plea to possession of cocaine because there was a typo in the plea paperwork that resulted in the absence of the word "possess". Judge Womack concurred. Judge Cochran concurred. Presiding Judge Keller dissented, along with Judges Keasler and Hervey, because the defendant may not have had the right to appeal. Click here for a more detailed summary.

PD-0356-09, Steven Douglas Freeman v. State: Here, the defendant requested a "spoliation" instruction regarding the fact that the videotape of his DWI stop was missing. The court of appeals addressed the issue on state constitutional grounds based on its decision in Pena v. State. Ultimately, the court of appeals held that such an instruction was not required. However, the CCA reversed Pena v. State, and the CCA reversed and remanded Freeman as well for consideration of whether error had even been preserved on the defendant's state constitutional claim. [Here's a link to the court of appeals opinion. And here's a link to my summary of Pena. There's no additional post summarizing the opinion because there's really no need.]

Case Summary - Gregory Russeau v. State

A jury found Gregory Russeau guilty of capital murder of James Syverston in 2002. Russeau beat the 75-year-old Syverston to death in his Tyler auto repair garage. The jury answered the special issues in such a way that the trial court was required to sentence him to death. In 2005, the CCA affirmed Russeau's conviction, but reversed as to punishment because the State had introduced jail records that contained narrative descriptions of Russeau's jail infractions. The jury again answered the special issues against him, and the trial court again sentenced him to death. As with other death penalty cases, Russeau raises several points of error that I'll break down into different groups. Ultimately, the CCA affirmed in an opinion authored by Judge Holcomb and joined by six of the other judges. Judge Johnson joined most of the opinion, but concurred on the issue of future dangerousness. Judge Keasler also concurred. Neither wrote an opinion.

Sufficiency of the evidence to support his conviction. Russeau again challenged the sufficiency of the evidence to support his conviction, but because he was limited to the issues on remand, the CCA rejected those points of error.

Sufficiency of the evidence to establish future dangerousness. The State called 62 witnesses at punishment, including six prison guards to testify to the events contained in the jail summaries that got him the remand in the first place. [How's that Crawford objection to the jail records working out for you, now?] He called one witness. The evidence showed that Russeau committed repeated burglaries and thefts; he abused crack; he burglarized James Syverston's auto repair shop and crushed Syverston's skull with a blunt instrument; and he committed serious infractions while in jail. Two psychiatrists and one psychologist all testified that they believed Russeau would be a future danger. Looking at this evidence in a light most favorable to the verdict, the CCA held that the evidence was sufficient to support the finding of future dangerousness. Judge Johnson did not join the majority opinion on this issue, choosing to concur without an opinion.

Wording of the jury instructions. Russeau challenged the lack of a definition for the following words or phrases in the special issue instructions:

Probability - The Court held this term was not statutorily defined and presumed that jurors would give it it's normal meaning.
Criminal acts of violence - The Court held this is not unconstitutionally vague and need not be defined for the jury.
Militates - The Court held that this does not need a definition. Also, the Court rejected his claim that the term should've been limited to preclude consideration of prohibited factors such as race or sex because he never requested that limiting instruction.
Continuing threat to society - The Court held that the jury is presumed to understand the phrase without further instruction.

Jury instruction complaints to separate future dangerousness from mitigation. Basically, in four different points, Russeau complained that the jury should have been instructed in ways to water down the future dangerousness instruction and separate consideration of that evidence from the mitigation evidence. He complained that the jury should have only considered future dangerous evidence that might increase the defendant's moral blameworthiness. He also complained that the jury should have been instructed that a finding of guilt in the first phase of the trial did not foreclose consideration of mitigation evidence. He complained that there should have been an instruction that there's no presumption of death and the mitigation issue should be considered independently. Finally, he complained that the jury had not been given a vehicle to return a life sentence where the future dangerousness evidence was bad, but not so bad that it warranted a death sentence. The Court rejected all these arguments noting that they met the requirements of Article 37.071. [At some point there will be a case on point for every word in the punishment charge of a death penalty case.]

Grand jury consideration of facts necessary for a death sentence. The Court rejected this claim again, having done so in the previous case. This time, Russeau argued it under state law grounds, but he failed to preserve error.

Daubert hearing. The Court rejected Russeau's complaint that the trial court failed to conduct a Daubert hearing on the qualifications of the State's experts. The trial court had held that hearing during the first trial, and Russeau admitted that there was nothing new to add. More importantly, he failed to even request the hearing.

Rejected on original submission. The Court again rejected Russeau's claim that the jury should not have been instructed that at least ten jurors had to answer the first two special issues in the negative and the third issue in the positive. The Court also rejected Russeau's complaint that the jurors should have been informed that a single holdout will result in an automatic life sentence. Both issues had previously been decided against Russeau.

As mentioned above, Judge Johnson joined the majority and concurred only on the sufficiency of the future dangerousness issue. Judge Keasler concurred. Neither wrote an opinion. Because it's a death penalty case there is no underlying opinion. Here's a link to the CCA case information if you're interested.

Case Summary - Belinda Montoya v. State

Belinda Montoya plead guilty to possession of cocaine and was sentenced to fourteen months in a state jail facility. Montoya complained that the trial court should have sua sponte inquire into her competency to stand trial. See, she had cirrhosis and Hepatitis C because of her history of drug and alcohol abuse and had six months to a year to live. She took a lot of medication for this that made her act like a kid, get drowsy, weak, forgetful, delusional, and depressed. She also had a prior forgery conviction. Originally, the court of appeals reversed and remanded in an unpublished opinion, but that opinion was withdrawn when the court of appeals granted rehearing. The court of appeals abated and remanded for a competency inquiry because the evidence demonstrated recent severe mental illness, moderate mental retardation, and truly bizarre behavior meriting a competency inquiry. [Here's a link to the court of appeals' case info if you're interested.]

A unanimous Court of Criminal Appeals reversed. Judge Meyers, writing for the Court, explained that the bona fide doubt standard is still the proper standard for determining when a trial court is required to conduct a competency inquiry sua sponte. [Because one italicized latin phrase isn't enough for that sentence.] In other words, a trial court must conduct a competency inquiry when the quantum of evidence raises a bona fide doubt in the trial court's mind that the defendant either a) doesn't have a sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding; or b) lacks a rational as well as factual understanding of the proceedings against the person.

Anyway, according to the CCA, the court of appeals got the standard right, but they got the evidence wrong. The probem with the analysis, the Court explained, was that the court of appeals failed to give proper deference to the trial court. The court of appeals took instances of the defendant's confusion and isolation and out of context when a review of the entire record showed that those moments of confusion were immediately and easily rectified. Montoya's own recounting of the specific details of her medical history and substance abuse as well as her acknowledgement that she could live longer if she took care of herself suggested a present ability to understand the proceedings. Simply put, the court of appeals looked at evidence of past impairment and isolated instances of momentary confusion during the hearing to require the competency inquiry.

[This last line from the opinion provides a nice counterpoint to the competency standard. It's present inability and a significant lack of understanding rather than past impairment and isolated instances of confusion. Here's a link to the CCA case info if you're interested.]

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A commentor suggested that the CCA gave short shrift to the amendments to the competency statute, so I did a little research on the issue cause that's just the kind of guy I am. [Thank you for pointing that out.] The Court does note in its opinion that the former competency statute had been repealed and replaced by Chapter 46B, a move designed to streamline the process and ensure consistency in its application across the state. Hey, don't take my word for it, here's a link to the bill analysis, and another link to the bill look up page on the Texas Legislature Online in case you want to look at all the different versions of the bill that passed and the corresponding bill analyses. And here's a link to the report from the 16-member task force, headed by the bill's author, detailing what steps should be taken. While I couldn't easily find a copy of the old text, but here's an opinion from the CCA that does set it out. And finally, here's a link to the enrolled bill summary that seems to refer to the initial competency determination in the same language as the old statute. All of these things point to the fact that the changes in the law were designed to make the law in this area easier to understand and apply.

However, what I took from looking at these different things was that the legislature didn't really have a problem with trial court's discretion in making the initial competency determination. The only mention of how trial courts make competency determinations was simply to make sure that trial courts actually keep their discretion to appoint evaluators. [In contrast, the legislature focused partially on beefing up evaluators in the jail, presumably to make sure that trial courts and litigants had more access to better quality information.] Of course, one of the big and most helpful changes was doing away with unnecessary jury trials when everyone agreed that a defendant was incompetent, and make sure better competency evaluations were done at the jail. I did not find anything that suggested that the 16-member task force, or the legislature, thought that the bona fide doubt standard used by courts of appeals to determine if the trial court had abused its discretion in requesting an evaluation impermissibly limited trial court discretion to make competency determination. Neither did I find that the legislature thought the standard was unworkable, or that it needed to be changed because it was too high. I don't really see a functional difference between the old or the new standard that might call the use of the bona fide doubt standard into question, but maybe there's something out there that I missed. If so, I'm sorry. In short, it doesn't seem to me that the CCA was off the mark for keeping the existing standard, an incredibly low one frankly, particularly when there was no real guidance on what was wrong with it or what they should change it to. And I don't really see how the Court was out to screw with defendants in this case, particularly considering that Judge Meyers is hardly a prosecutorial idealogue. But, it would have been nice if they had taken the time to put all that in the opinion as they probably would've done a better job than I have here.]

Case Summary - Thai Ngoc Nguyen v. State

A police officer stopped Thai Nguyen for traffic violations. The passenger, Brian Sanchez, owned the car and gave the police consent to search after both guys gave conflicting stories. The officer arrested Sanchez when he found methamphetamine in Sanchez's bag. Sanchez, of course, said it belonged to Nguyen. The officer placed Sanchez in the back of the patrol car, and then arrested Nguyen, presumably for traffic violations. As the officer read Nguyen his rights under Miranda and article 38.22, Nguyen invoked his right to counsel. The officer clarified that Nguyen wanted an attorney, and stopped talking to him without finishing the warnings.

The officer put Nguyen in the back seat of the patrol car with Sanchez. A microphone and recording device surreptitiously recorded their conversation. Sanchez pleaded with Nguyen to take responsibility for the drugs. After a few minutes, Nguyen agreed and called the officers (another officer had arrived) to the car. They did not hear him. Both Nguyen and Sanchez called for the officers, and finally the officer returned.

The officer specifically told Nguyen that he wasn't going to ask him a question, but he informed Nguyen of the charges Sanchez and he were facing. Nguyen claimed the drugs, and cried about it. Police found more drugs they attributed to Sanchez, so both were arrested.

Here's the kicker. The State charged Nguyen with hindering Sanchez's apprehension based upon his false confession rather than drug possession. At the bench trial, Nguyen claimed that the statement was taken in violation of his right to counsel and the oral statement was inadmissible because the officer never told Nguyen of his right to terminate the interview as required by Article. 38.22, section 3(a).

The court of appeals reversed in an unpublished opinion. Noting that the parties did not dispute custody, the court held that the officer's statement to Nguyen "Do you not understand what I'm saying? If you want to tell me that that's your meth, then tell me that's your stuff. Other than that, it's his." subjected him to interrogation. Then, based solely on the statute, the court held that the complete warnings weren't given so the audiotaped statement was inadmissible. [Here's a link to the court of appeals case info if you're interested.]

In a 5-4 decision, the Court of Criminal Appeals affirmed. Judge Keasler, writing for the majority, first set out the three issues involved. First, he makes clear that this is a pure statutory issue under article 38.22. Second, he dispenses with the argument that evidence of a crime that occurs after the illegality, in this case the failure to read the warnings, should not be suppressed under article 38.23. He notes that this case was decided entirely under article 38.22 which is a procedural evidentiary rule independent of the state exclusionary rule. There is no exception in article 38.22 that allows for the admission of statements that themselves constitute a crime.

Third, he dismisses the State's claim that Nguyen was not "in custody" in light of Herrera v. State for the offense of hindering. A person is in custody when he is formally arrested, as Nguyen was here. Herrera dealt with a situation where an inmate is in the custody of the government in a jail, prison, or similar institution but not otherwise under formal arrest [cough, cough, Herrera had been formally arrested on an outstanding warrant, cough, cough]. So, Nguyen was "in custody" for purposes of article 38.22.

Finally, the Court rejected the argument that article 38.22 only applies to statements offered for their truth. The Court categorizes this type of statement as "New Crime" admissions, taking a cue from Professor LaFave. Basically, if a defendant during questioning commits another crime, like bribing the officer, it doesn't make sense to extend Miranda protections to that statement because excluding such statements doesn't further the goals of Miranda. However, this, says the majority, is a 38.22 case, not a Miranda case, and there is no exception listed in section 5 that would exempt a statement that might be an independent verbal act from he warning requirement. The majority even quotes section 5 that exempts certain types of statements from the warning requirements, such as statements that are the res gestae of the arrest or offense. Based on the forgoing, the Court holds that the express language of article 38.22 does not include an exception for statements that are not confessional in nature, do not implicate the accused for the offense prosecuted, or constitute an offense. [Here's a link to the CCA case info if you're interested.]

Judge Johnson wrote a dissenting opinion that Judge Cochran, Judge Holcomb, and Presiding Judge Keller joined. According to the dissent, the statement was not the product of custodial interrogation. Nguyen was undeniably in custody and he invoked his right to counsel, but he reinitiated contact. His first statement that the drugs were his satisfied the hindering apprehension and it was not the product of custodial interrogation, neither were the next four iterations of the statement.

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Well, I've gone back and forth over what to say. I do think it's useful to point out that I think Keasler's distinction between this case and Herrera is pretty weak. When exactly is being held in jail not associated with formal arrest? I get what he's doing, and I certainly understand it. He wants to limit the scope of Herrara. But he kind of has to rewrite history to do it. Herrera was arrested on a warrant and held in jail when the police questioned him about a different offense, so I don't see how he was held in jail but not under formal arrest. He probably would've been better off noting the details we had about Nguyen's restricted movement that we didn't have in Herrera. Unless we're going to overrule Herrera, that is, in which case, they needed to say that that's what they're intending to do.

I do wonder whether the res gestae exception would apply here, but I can understand if they determine that it doesn't. Over time the phrase has been slammed for the confusion it's created, and I think because of that confusion it's become more and more synonymous with "excited utterance". Such a circumstance certainly doesn't apply here. However, the original latin means "things done" and if you look back at its origins it's supposed to be for situations where the transaction speaks through the person. This suggests to me that it was not meant to be a reliability of the statement question (which is the cornerstone of why we let in "excited utterances"), it was because the statement itself is a verbal act. There's some support for this theory under "res gestae", albeit minimal, in a case called Ramos v. State. The Court subsequently retreated from the "verbal act" theory of res gestae and went more in line with "excited utterance", but it does seem a little silly to me that a statement that can be a product of inquiry from police might be exempt from the article 38.22 requirements just because it's basically admissible hearsay. The facts under this case are pretty unique, and if the "verbal act" theory of res gestae doesn't work here, then I guess there's not much point of having a res gestae exception in the first place. This Court has given us a few history lessons explaining arcane and confusing doctrines in the past, I sure would've liked it if they'd considered that, even if they ultimately dismiss it. You know, before saying this doesn't fit in any exception. But what do I know, I thought there was an independent illegality argument to be made.

It's hard for me to say all this because of all the Judges Keasler's my fave, but even Homer nods.

Case Summary - Eric Sakil v. State

Eric Sakil got into a heated argument with his wife over the paternity of one of their children. When you start there, there's really no where to go but down. At one point his wife locked him out of the apartment, but he forced the door open. This hit his wife in the face. She called 911 and hinted at Sakil's prior drug use, but insisted that he was not intoxicated. The State charged Sakil with domestic violence assault enhanced with a prior assault on a family member.

At trial, a psychiatrist testified to Sakil's prescription drug use and prior drug and alcohol abuse. Sakil encouraged the disclosure of this information and suggested a link between the past drug use and Sakil's symptoms on the date of the offense, namely hyperstimulation, paranoia, and hypervigilance. So, the trial court instructed the jury on voluntary intoxication over Sakil's objection. The court of appeals reversed, holding that there was no evidence of intoxication and it harmed Sakil because it placed the burden on him to show he wasn't intoxicated. [Here's a link to the court of appeals case info.]

A unanimous Court of Criminal Appeals reversed the court of appeals and affirmed the trial court. Judge Meyers, clearly having watched Jason Lezak winning the 400 relay for Michael Phelps and the rest of the American swim team on YouTube, wrote his second unanimous opinion on the day. According to Meyers, there was sufficient evidence, cultivated by Sakil, in fact, that might suggest to a jury that intoxication somehow excused Sakil's conduct. Moreover, he disagreed with the court of appeals holding that the voluntary intoxication instruction relieved the State of proving the requisite mental state. If anything the instruction reaffirms the mental-state requirements rather than deletes them. [Here's a link to the CCA case info if you're interested.]

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While I'm a little concerned that this is basing the need for an instruction upon the inference of evidence rather than actual evidence, that's kind of the concern in a lot of close jury instruction cases. Clearly, though, this is the right result as the defendant seemed to put the issue in play only to complain that there was no issue.

Case Summary - Johnathan James Moore v. State

Johnathan Moore, brother to Joshua Moore, pleaded guilty to manufacturing methamphetamine pursuant to a plea bargain. At the time of the plea, the trial court asked if sentencing was supposed to take place at a later date. The trial court offered to postpone sentencing on the condition that Moore agree to appear for sentencing and if he failed to do so, he'd face an open plea. The trial court admonished Moore on the consequences of failing to appear and facing an open plea. Moore agreed to the court's terms.

As you'd expect, Moore failed to appear for sentencing. The trial court sentenced him to 40 years pursuant to his open plea (the original deal was for 28 years). He appealed to complain that he should've been allowed to withdraw his plea, and the court of appeals reversed in a published opinion because the trial court injected itself into the plea bargain process. [Here's a link to the court of appeals case info if you're interested.]

The Court of Criminal Appeals reversed the court of appeals and affirmed the trial court. Judge Johnson, writing for a five-judge majority, ultimately held that Moore had failed to preserve error on his claim because he did not object to the terms imposed on him by the trial court or move to withdraw his plea when the trial court at sentencing. The Court noted that the only proper role for a trial court in plea bargaining was advising whether it will follow or reject the bargain. However, it did not decide whether the deal in this case was a modification of the plea bargain agreement or a conditional acceptance of the agreement based upon a side agreement with the defendant. According to the majority, when the judge sentenced the defendant pursuant to his open plea, Moore should have been allowed to withdraw his plea. But again, he didn't try to, so he failed to preserve error, so all's well that ends well. Judges Price and Womack concurred without an opinon. Judges Keasler and Hervey dissented without an opinon. [Here's a link to the CCA case info if you're interested.]

Case Summary - Robert Lee Menefee v. State

Robert Menefee pleaded guilty to possession of cocaine with intent to deliver and entered the usual stipulations. Unfortunately, the written stipulation did not include the word "possess", so the guilty plea was only supported with a sworn statement that Menefee "did then and there with intent to deliver a controlled substance, namely cocaine, . . . " Menefee complained on appeal that the evidence was insufficient to support his plea in contravention of article 1.15 of the Code of Criminal Procedure. In an unpublished opinion, the court of appeals upheld the plea, noting that Menefee's sworn responses during the plea colloquy provided sufficient support for his guilty plea. One judge dissented (it's at the end of the majority opinion) on the ground that the defective stipulation was only an entry of the guilty plea itself and not supportive evidence of the plea. [Here's a link to the court of appeals case info if you're interested.]

The Court of Criminal Appeals reversed because Menefee's sworn plea of guilty during the plea colloquy could not serve to substantiate the guilty plea. Judge Price, writing for the six-judge majority, noted that the substantiation requirement for pleas is not required by the federal constitution, but rather from a Texas statute, article 1.15. The Court then analyzes several cases to determine whether an oral plea of guilt can substantiate the guilty plea. The cases that the court of appeals relied upon seemed to suggest so, but they failed to account for an earlier case, Drain v. State, that held otherwise. Consequently, the Court overruled those cases, Cooper v. State and Craven v. State, and held that a defendant's sworn affirmation in response to judicial questioning that he is pleading guilty does not constitute a judicial confession. The Court remanded the case for further consideration of the State's claim that the evidence at the subsequent sentencing hearing also provided support for the plea.

Judge Womack filed a concurring opinion, joined by Judge Cochran, to basically lament the ridiculousness of this requirement because it now only protects a defendant who could not be proven guilty, but will plead guilty without stipulating or judicially confessing. He also noted that the State failed to introduce real or stipulated evidence or ask Menefee to confess. Judge Cochran filed her own concurring opinion to embrace the horror. She also noted that this was trial error and it was hard to imagine how this affected Menefee's substantial rights. Presiding Judge Keller dissented, along with Judges Keasler and Hervey, to suggest that the petition should have been dismissed as improvidently granted because Menefee may not have had a right to appeal because the case was a plea bargain case. [Here's a link to the CCA case info if you're interested.]

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This case is such a bite-in-the-ass. The defendant wants to plead guilty. He reads over the paper work. Swears to his guilty plea, and reaffirms it in front of the trial court. The Constitution doesn't require anything more. The Tyler court of appeals affirms in an unpublished opinion based upon cases from the CCA that support their position. And the CCA takes discretionary review to not only reverse this case, but overrule their previous cases because they weren't developed? I know, I know, they're right about the statute, and the law is the law. It doesn't make it any less of a bite in the ass. Still, it does provide a good cautionary tale about checking plea paperwork. I wonder if you could change your plea forms to include an affirmative waiver of the substantiation requirement since it's not even constitutional. That way it never changes even though the judicial confession portion does.

Quirky appellate fact: It looks like this defendant actually testified in the trial against Gregory Russeau in 2003, the same Gregory Russeau whose opinion also came out today. Just something weird I noticed.