Today's Opinions

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The CCA issued a number of unpublished habeas corpus opinions that you can check out here.

The CCA also issued two published opinions.

Alfred Dewayne Brown v. State. The Court affirmed this death penalty case stemming from an aggravated robbery of a check-cashing business. The Court considered and rejected four issues, well, really three because two were lumped together. First, the Court held that there was sufficient evidence to corroborate the testimony of Brown's accomplice. Brown complained that the only corroboration came from his girlfriend who was a perjurer and a drug abuser (because lying isn't inflammatory enough anymore). Sure she lied to the grand jury, but that's only because Brown told her to. Moreover, other witnesses either placed him at the scene or nearby shortly before or after the robbery. Second, the Court rejected Brown's complaints about his denial of a jury shuffle because he asked for the shuffle after the individual voir dire was over. Finally, the Court considered Brown's claim that the prosecutor attacked the defendant over the shoulders of defense counsel. The prosecutor argued during closing (in response to tactics used by defense counsel during cross-examination and statements made during closing argument) that, "If I had done just a smidgen of what [defense co-counsel] Ms. Muldrow said, I should not only be fired, but I should be indicted. So what she did to you was she lied." The Court held that the prosecutor's arguments were responsive to the arguments and tactics of defense counsel, but the prosecutor had also gone into matters outside the record in that response such that the argument was improper. However, the Court ultimately held the argument was harmless because the statements were clearly directed at defense counsel not the defendant. And the evidence of guilt made the conviction certain. There was no underlying opinion as this was a direct appeal.

Arsenio Carlos Clarke v. State. Here, the Court held that a defendant preserved error on his claim that the prosecutor had deceived the trial court during punishment by allowing evidence of a false extraneous offense in the PSI. The prosecution did not object when Clarke enlarged his complaint in the hearing on the motion for new trial even though it amounted to an impermissible oral amendment of his original motion for new trial. Moreover, the fact that Clarke never cited to the constitutional basis for the claim didn't matter because it was merely support for his claim, and unlike a certain Confrontation Clause preservation of error case that shall remain nameless, citing to a constitutional provision did not provide a new ground for relief. Rather, it merely gussied up the claim that Brown brought to the trial court's attention. Presiding Judge Keller filed a dissenting opinion joined by Judge Keasler and Hervey arguing that Clarke had not preserved error because the claim amounted to an untimely amendment of the motion for new trial. [Moral of the story, object to any new grounds raised 30 days after the motion is filed!] Here are links to the underlying majority opinion, and the underlying dissenting opinion. (Curse you judges sitting by assignment!)

Updated at 6:51 p.m.: The Court also granted discretionary review with oral argument in Anne Elizabeth Murphy v. State. The Court will consider the following issues:

1. IN THIS NON-DEATH CAPITAL MURDER CASE THE APPELLANT'S CONSTITUTIONAL CLAIM THAT SHE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW WAS PRESERVED FOR APPELLATE REVIEW WHEN THE TRIAL COURT REFUSED TO ADVISE THE VENIRE THAT MS. MURPHY WOULD BE SENTENCED WITHOUT PAROLE IF CONVICTED OF CAPITAL MURDER WHEN REQUESTED BY TRIAL COUNSEL AS MANDATED BY TEX. PEN. CODE. ANN. § 12.31(b) AND THEN PROHIBITED COUNSEL FROM DOING SO EVEN THOUGH HE FAILED TO PROVIDE THE COURT WITH A PARTICULARIZED QUESTION ON THE ISSUE PURSUANT TO SELLS V. STATE, 121 S.W.3d 748 (Tex. Crim. App. 2003).

2. BECAUSE THE TRIAL COURT DECLINED TO ADVISE THE APPELLANT'S VENIRE THAT SHE WOULD BE SENTENCED TO LIFE WITHOUT PAROLE AS MANDATED BY TEX. PEN. CODE ANN. § 12.31(b) AND THEN PROHIBITED HER ATTORNEY FROM DOING SO DURING VOIR DIRE, MS. MURPHY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW ON THIS ISSUE DURING VOIR DIRE AND THE HARM SHE SUFFERED SHOULD BE ASSESSED UNDER TEX. R. APP. P. 44.2(a).

3. BECAUSE THE PURPOSE OF TEX. PEN CODE ANN. §12.31(b) IS ITS OWN CLEARLY STATED MANDATE THAT THE VENIRE IN A NON-DEATH CAPITAL MURDER CASE SHALL KNOW THE GUILTY DEFENDANT WILL RECEIVE A SENTENCE OF LIFE WITHOUT PAROLE, AND REVIEW OF THE HARM CAUSED BY THE TRIAL COURT'S MULTIPLE FAILURES TO SO INFORM THE APPELLANT'S JURY SHOULD BE CONDUCTED IN LIGHT OF THAT STATED PURPOSE UNDER TEX. R. APP. P. 44.2(b).

Here's the underlying opinion.

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