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The CCA issued a number of unpublished habeas corpus opinions that you can check out here.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

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No published opinions today. Just denials and dismissals of habeas corpus.

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Issues Granted

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The CCA granted discretionary review without oral argument (on petition by the State) in the following cases:

Mark De La Paz v. State - Aggravated Perjury/Tampering With Physical Evidence (Dallas County)

Issue: WHEN A POLICE OFFICER CHARGED WITH PERJURY AND FALSIFYING POLICE REPORTS TESTIFIED AT HIS TRIAL AND ADMITS MAKING THE ALLEGED PERJURED STATEMENTS BUT DENIED THEIR FALSITY AND KNOWLEDGE OF THEIR FALSITY, DOES THE TRIAL COURT ACT WITHIN ITS DISCRETION IN ADMITTING NEARLY IDENTICAL EXTRANEOUS ACTS OF PERJURY TO PROVE THE OFFICER, IN FACT, KNEW THE STATEMENTS TO BE FALSE?

You can read the underlying opinion here.

[Note: Stop being stubborn Dallas Court of Appeals, change your website.]

Gerald Smith v. State - Sexual Assault (McClennan County)

Issue: WHEN THE BASIS OF A MOTION FOR NEW TRIAL IS INEFFECTIVE ASSISTANCE OF COUNSEL, MUST THE MOVANT ESTABLISH A REASONABLE PROBABILITY THAT THE OUTCOME WOULD HAVE BEEN DIFFERENT IN ORDER TO DEMONSTRATE REASONABLE GROUNDS FOR THE GRANTING OF RELIEF?

You an read the underlying opinion here.

Michael Martin v. State - Failure to Comply With Sex Offender Registration (Wood County)

Issue: THE COURT OF APPEALS APPLIED AN IMPROPER STANDARD OF REVIEW AND/OR MISREAD THE RECORD WHEN IT DETERMINED THAT THE EVIDENCE WAS FACTUALLY INSUFFICIENT.

You can read the underlying opinion here.

[Note: The CCA only granted review on one of Martin's grounds for review.]

David Weir v. State received discretionary review, but the Court forgot to list the issue. In its place, the Court apparently listed Rene Gonzalez v. State, even though the case information indicates discrectionary review was refused.

Here's the Issue, though I can't guarantee which case will claim it:

WHETHER A DEFENDANT HAS THE RIGHT TO A TRANSCRIPTION OF PRIOR TESTIMONY BEFORE TRIAL, FOR HIS ATTORNEY'S EXAMINATION, BEFORE TRIAL, AS A DISCOVERY DEVICE IN PREPARATION FOR TRIAL, AND AS A TOOL AT THE TRIAL ITSELF FOR THE IMPEACHMENT OF PROSECUTION WITNESSES.

You can read the underlying opinion on Weir here, and on Gonzalez here. [Note: From glancing at the opinion in Gonzalez, it appears the issue applies to Gonzalez.]

Update 9/16/08: The CCA has corrected the issues list to properly reflect that it granted discretionary review in Weir. Here's the issue:

THE OPINION OF THE THIRD COURT OF APPEALS IN THIS CASE CONFLICTS WITH THE DECISIONS OF TWO OTHER COURTS OF APPEAL ON THE SAME ISSUE. THAT ISSUE IS WHETHER OR NOT THE ASSESSMENT OF COURT COSTS IS PART OF THE PUNISHMENT AND SENTENCING THAT MUST BE INCLUDED IN THE ORAL PRONOUNCEMENT OF SENTENCE IN ORDER TO BE INCLUDED IN THE WRITTEN JUDGMENT OF THE TRIAL COURT.

The CCA granted discretionary review with oral argument (on petition by the Appellant) in the following cases:

Randy Collier v. State - Tampering With Physical Evidence (Taylor County)

Issues:

1. WAS THE EVIDENCE LEGALLY AND FACTUALLY SUFFICIENT TO SHOW THAT THE PETITIONER CHEWED AND DESTROYED COCAINE?

2. EVEN IF THE PETITIONER CHEWED THE COCAINE, WAS THE EVIDENTIARY VALUE DESTROYED AS WITHIN THE MEANING OF THE STATUTE?

You can read the underlying opinon here.

Luis Barrios v. State - Capital Murder (Harris County)

Issue: WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT THE “ACQUITTAL FIRST” INSTRUCTION IN THE COURT’S CHARGE WOULD ALLOW THE JURY TO CONSIDER THE LESSER OFFENSE OF ROBBERY BEFORE UNANIMOUSLY DECIDING TO ACQUIT OF THE GREATER OFFENSE OF CAPITAL MURDER?

You can read the underlying opinion here.

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Today's Opinions

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They're back! And rehearing was denied on De La Paz, ouch.

Today, the CCA issued the following published opinions:

Curtis Bass v. State. In an indecency with a child case, the CCA reversed the 14th court of appeals holding that the trial court erred in admitting extraneous offense evidence that Bass, a pastor, had previously molested two other girls on church property. You can read the underlying opinion here. [Note: There are two cases for this defendant, so if you're really jonesing for the repetition, here's the other Bass, in pdf no less.]

Rodger Grissam v. State. The CCA remanded the case to consider sufficiency under a theory of burglary contained in the jury charge, but not in the application paragraph. Judge Meyers wrote a dissenting opinion. You can read the underlying opinion here.

Sergio Barrera v. State. The CCA held that deletion of a restitution order is not proper where the state fails to put on restitution evidence. Instead, the court of appeals is supposed to remand for a restitution hearing. You can read the underlying opinion here.

Johnny Abbott v. State. CCA held that a court of appeals lacks jurisdiction to consider an appeal from a post-judgement motion that seeks to force a trial judge in applying time credit to jail time that must be served as part of community supervision. Judge Holcomb filed a concurring opinion. You can read the underlying opinion here.

Robert Shepherd v. State. The CCA affirmed the court of appeals holding that upheld the seizure of contraband under the emergency doctrine. Officers saw the contraband in plain view after entering the defendant's open front door in response to a neighbor's emergency call that the defendant's front door had been left open. Here are links to the underlying majority and dissenting opinions.

Christopher Tita v. State. The CCA held that the trial court should have dismissed the indictment because it failed to allege tollings facts for the statute of limitations. But the Court stopped short of holding that the evidence was insufficient to prove tolling because the defendant never requested a statute of limitations instruction (so the State wasn't required to prove it). The Court remanded for a harm analysis. You can read the underlying opinion here.

The granted issues aren't up, yet. I'll update when they are.

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Today's Orders

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No new orders today, at least not at 9:00 a.m. I don't know what I was thinking. I had gotten it in my head they'd start up today, instead of next week. Silly rabbit. I'll update again at the end of the day, just to be thorough.

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