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Mick Jones (maybe even Bic Runga) would be right at home with all this talk of stays.
Yesterday, the Court denied Gregory Wright's subsequent writ in an unpublished opinion. They also dismissed a subseuqent writ as an abuse of writ and denied the stay of execution.
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Wednesday, October 29, 2008
Stay of Execution Granted
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Bobby Wayne Woods got his stay of execution granted last Thursday in an unpublished (and nondescript) order.
He's claiming he's mentally retarded.
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Bobby Wayne Woods got his stay of execution granted last Thursday in an unpublished (and nondescript) order.
He's claiming he's mentally retarded.
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Wednesday, October 22, 2008
Today's Orders - Habeas Day
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The Court did not grant or deny discretionary review in any cases today. The Court also did not issue any published opinions. The Court did, however, deny and dismiss a number of applications for writs of habeas corpus. The Court also held three applications for writs of mandamus in abeyance in unpublished orders.
You can jump to the hand down list here.
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The Court did not grant or deny discretionary review in any cases today. The Court also did not issue any published opinions. The Court did, however, deny and dismiss a number of applications for writs of habeas corpus. The Court also held three applications for writs of mandamus in abeyance in unpublished orders.
You can jump to the hand down list here.
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Labels:
hand down list,
no new issues,
unpublished only
Wednesday, October 15, 2008
Issue Granted
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Ernest Murry Moore, Jr. v. State. The Court granted the State’s petition for discretionary review without oral argument in this Harris County capital murder case on the following issue:
The First Court of Appeals erred in holding that the trial court was required to find that the trial prosecutor engaged in purposeful racial discrimination when she exercised a peremptory challenge against Carol Harris, prospective juror #16.
The underlying opinion can be found here. Here, the prosecutor inartfully said that she struck a juror “not just based on his skin color”, but the court of appeals ultimately upheld the denial of the Batson challenge dealing with that juror. However, the court came back to that phrase in reference to prospective juror #16. (Note the phrase can be read to mean both that skin color was considered and that skin color was not considered -- not just based upon his skin color vs. not "just based upon his skin color".) This, plus the prosecutor’s statement that she had stricken another juror similarly situated to juror #16 when she hadn’t and the lack of questions to the juror was enough for the court of appeals to overturn the denial of the Batson challenge. And, even if the CCA reverses the court of appeals, there are still a whole bunch of jurors that the court of appeals has yet to go through. Exit questions: We don't inquire into pretext stops anymore because it was an unworkable standard, why do we do it with peremptory challenges? And secondly, would forcing some of these judges to actually pick a jury as an advocate clear up any of these cases?
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Ernest Murry Moore, Jr. v. State. The Court granted the State’s petition for discretionary review without oral argument in this Harris County capital murder case on the following issue:
The First Court of Appeals erred in holding that the trial court was required to find that the trial prosecutor engaged in purposeful racial discrimination when she exercised a peremptory challenge against Carol Harris, prospective juror #16.
The underlying opinion can be found here. Here, the prosecutor inartfully said that she struck a juror “not just based on his skin color”, but the court of appeals ultimately upheld the denial of the Batson challenge dealing with that juror. However, the court came back to that phrase in reference to prospective juror #16. (Note the phrase can be read to mean both that skin color was considered and that skin color was not considered -- not just based upon his skin color vs. not "just based upon his skin color".) This, plus the prosecutor’s statement that she had stricken another juror similarly situated to juror #16 when she hadn’t and the lack of questions to the juror was enough for the court of appeals to overturn the denial of the Batson challenge. And, even if the CCA reverses the court of appeals, there are still a whole bunch of jurors that the court of appeals has yet to go through. Exit questions: We don't inquire into pretext stops anymore because it was an unworkable standard, why do we do it with peremptory challenges? And secondly, would forcing some of these judges to actually pick a jury as an advocate clear up any of these cases?
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Labels:
Batson,
issues granted
Today's Opinions
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So, the CCA granted unpublished habeas relief, as per usual, and you can scroll through to find that here.
The Court also issued three published opinions.
Ex parte Craig Ronald Campbell. Presiding Judge Keller filed a majority opinion joined by Judges Hervey, Keasler, Womack and Cochran. Judge Cochran filed a concurring opinion joined by Judge Womack. Judge Price filed a dissenting opinion joined by Judges Meyers, Johnson, and Holcomb.
In 1992, Campbell plead guilty to burglary of a building as a habitual offender and received a thirty-five year prison sentence. In addition to his prior felonies he had a misdemeanor indecent exposure for exposing himself to four children. He also had an assault case where he forced his way into a sixty-year-old woman’s home, tried to spread her legs apart and moved towards her genitals. When Campbell got out on parole in 2006, the parole board included a sex offender evaluation requirement to his parole as well as a child safety zone restriction as a condition of his parole. Campbell visited his father’s house which also happened to be in a child safety zone, and his parole was revoked for failure to avoid child safety zones. On habeas corpus, the District Court recommended that Campbell be released without sex offender conditions because he had never before had a “reportable” sexual offense.
The majority first examined Coleman v. Dretke, a case where a defendant on parole for burglary committed a sexual assault, but pled to a misdemeanor assault went to prison without a “reportable” offense. The majority understood Coleman to explain that sex offender conditions that implicate a liberty interest and deviate significantly from typical mandatory release conditions cannot be placed upon a defendant as a condition of parole without an appropriate hearing to determine whether the defendant is a threat to society due to lack of sexual control. With that understanding, the majority notes that the parole board is authorized by statute to impose child safety zone restrictions on 3g offenses and that nothing in that statute prohibits such restrictions on offenses other than 3g offenses. The legislature has specifically precluded an orchiectomy as a condition for release. Because it specifically prohibited that, the lack of a prohibition elsewhere undermines the implied limitation of child safety zone restrictions to only 3g offenses. Finally, the majority notes that the parole board notified Campbell that they were considering imposing sex offender restrictions on his parole and gave him the opportunity to submit information in response. He didn’t. True, he didn’t get an opportunity to respond to the sex offender evaluation report, but parolees aren’t entitled to respond to all the bad evidence the parole may have received.
Judge Cochran’s concurrence (joined by Judge Womack) questioned the wisdom of the parole board’s decision in this matter, but noted that it had given the minimal due process protections. Neither Cochran nor Womack would send Campbell back to prison for taking a hot shower at his dad’s house, which happened to be located near a child care facility, but they both opined that the parole board’s actions were authorized by law. So they also voted to deny relief, and identified themselves as two swing votes on the Court.
Judge Price dissented, along with Judges Meyers, Holcomb, and Johnson. Price examined both Chapter 508 and Article 42.12 to determine whether the parole board had the broad discretion to impose such restrictions. Price and the dissent look at those provisions as granting authority to impose restrictions and without specific authority in other instances, the parole board can’t impose those restrictions elsewhere. Pulling out his Latin again, Price explained, Expressio unius est exlusio alterius. Or, the mention of one thing excludes the other. The legislature said the parole board can impose such restrictions on 3g offenses, according to the dissent, and allowing the parole board to do so in other instances amounts to presuming the legislature says something it didn’t.
[There was no underlying opinion on this case.]
Maria Del Carmen Hernandez v. State. Judge Womack wrote for a unanimous court. The Court held that impeaching a co-defendant’s out-of-court statement with another out-of-court statement by that defendant does not violate Crawford v. Washington.
Hernandez, along with Cassandra Leffew and Dolores Rodriguez kidnapped and murdered Robert Fernandez, the father of Hernandez’s youngest son, after Leffew accused Fernandez of assaulting her daughter. The three women had met at a woman’s shelter, and Hernandez had moved in with Leffew. Leffew drugged Fernandez with alcohol and prescription drugs to get him to confess to assaulting her child. Fernandez maintained his innocence and eventually passed out. The three women tied his hands and feet and put him in the trunk of the car. They dropped Leffew off at her home and Hernandez and Rodriguez went to Rodriguez’s house.
According to Hernandez, Rodriguez told her to smother Fernandez by putting a bag of his head. When that did not work, Rodriguez strangled Fernandez with pantyhose and drove away with the body. [Insert reference to Desperate Houswives or Diabolique here if you really want to flex your videostore clerk cred.] Hernandez called two inmate who claimed that Leffew had talked to them and taken credit for the murder, exonerating Hernandez. On rebuttal, the State sought to introduce portions of Leffew’s statement to police that it was Hernandez that strangled Fernandez under Rule 806, which allows the impeachment of hearsay with other hearsay.
The majority held that though this statement was clearly testimonial under Crawford and Davis v. Washington, it was not offered for the truth of the matter asserted. In Crawford, the majority notes, the Supreme Court expressed approval its prior decision Tennessee v. Street, which held that use of testimonial statements for purposes other than the truth of the matter asserted does not violate the Confrontation Clause. Here, the statement was redacted to include only those portions of Leffew’s police statement that were inconsistent with the hearsay offered by Hernandez. According to the majority, Leffew’s prior statement was not offered for the truth of the matter asserted and the jury could have looked at the two inconsistent statements and discounted both of them. [So, in light of this, does responding to a Crawford objection by saying "not for the truth of the matter asserted" satisfy the State's responsive burden under De La Paz?]
You can check out the underlying opinion here. [The link may be busted, so I’ll check back.]
Jared Littrell v. State. Judge Price wrote the majority opinion joined by Judges Meyers, Holcomb, Johnson, Womack, Cochran, Keasler, and Hervey. Presiding Judge Keller dissented.
Jared Littrell was tried for both felony murder and aggravated robbery against the same victim on the same date. Count One charged him with felony murder for committing an act clearly dangerous to human life (namely attempted aggravated robbery) and then causing that death. Count Two charged him with the aggravated robbery from Count One. The majority held that this violated double jeopardy because the aggravated robbery in Count Two was a lesser-included offense of felony murder in Count One. [The Court also notes that had Jared been charged in Count One of murder, aggravated robbery would not have been a lesser-included offense and therefore would not have violated double jeopardy.] The Court set aside the aggravated robbery because it was the lesser sentence and affirmed the felony murder.
Presiding Judge Keller dissented. According to the dissent, the State only had to prove murder in the course of attempting aggravated robbery in Count One. In contrast, the State did not have to prove a murder to prove up the aggravated robbery in Count Two. Thus, both Counts had different elements that needed to be proven, so felony murder and aggravated robbery were not the same offense under the Blockburger test. [True, the State plead both completed and attempted robbery as different ways of committing felony murder in Count One, but Littrell procedurally defaulted on that by not objecting to both theories being submitted to the jury.]
You can check out the unpublished memorandum opinion from the intermediate court of appeals here. [There were several other issues, but this one was the only one the CCA was interested in.]
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So, the CCA granted unpublished habeas relief, as per usual, and you can scroll through to find that here.
The Court also issued three published opinions.
Ex parte Craig Ronald Campbell. Presiding Judge Keller filed a majority opinion joined by Judges Hervey, Keasler, Womack and Cochran. Judge Cochran filed a concurring opinion joined by Judge Womack. Judge Price filed a dissenting opinion joined by Judges Meyers, Johnson, and Holcomb.
In 1992, Campbell plead guilty to burglary of a building as a habitual offender and received a thirty-five year prison sentence. In addition to his prior felonies he had a misdemeanor indecent exposure for exposing himself to four children. He also had an assault case where he forced his way into a sixty-year-old woman’s home, tried to spread her legs apart and moved towards her genitals. When Campbell got out on parole in 2006, the parole board included a sex offender evaluation requirement to his parole as well as a child safety zone restriction as a condition of his parole. Campbell visited his father’s house which also happened to be in a child safety zone, and his parole was revoked for failure to avoid child safety zones. On habeas corpus, the District Court recommended that Campbell be released without sex offender conditions because he had never before had a “reportable” sexual offense.
The majority first examined Coleman v. Dretke, a case where a defendant on parole for burglary committed a sexual assault, but pled to a misdemeanor assault went to prison without a “reportable” offense. The majority understood Coleman to explain that sex offender conditions that implicate a liberty interest and deviate significantly from typical mandatory release conditions cannot be placed upon a defendant as a condition of parole without an appropriate hearing to determine whether the defendant is a threat to society due to lack of sexual control. With that understanding, the majority notes that the parole board is authorized by statute to impose child safety zone restrictions on 3g offenses and that nothing in that statute prohibits such restrictions on offenses other than 3g offenses. The legislature has specifically precluded an orchiectomy as a condition for release. Because it specifically prohibited that, the lack of a prohibition elsewhere undermines the implied limitation of child safety zone restrictions to only 3g offenses. Finally, the majority notes that the parole board notified Campbell that they were considering imposing sex offender restrictions on his parole and gave him the opportunity to submit information in response. He didn’t. True, he didn’t get an opportunity to respond to the sex offender evaluation report, but parolees aren’t entitled to respond to all the bad evidence the parole may have received.
Judge Cochran’s concurrence (joined by Judge Womack) questioned the wisdom of the parole board’s decision in this matter, but noted that it had given the minimal due process protections. Neither Cochran nor Womack would send Campbell back to prison for taking a hot shower at his dad’s house, which happened to be located near a child care facility, but they both opined that the parole board’s actions were authorized by law. So they also voted to deny relief, and identified themselves as two swing votes on the Court.
Judge Price dissented, along with Judges Meyers, Holcomb, and Johnson. Price examined both Chapter 508 and Article 42.12 to determine whether the parole board had the broad discretion to impose such restrictions. Price and the dissent look at those provisions as granting authority to impose restrictions and without specific authority in other instances, the parole board can’t impose those restrictions elsewhere. Pulling out his Latin again, Price explained, Expressio unius est exlusio alterius. Or, the mention of one thing excludes the other. The legislature said the parole board can impose such restrictions on 3g offenses, according to the dissent, and allowing the parole board to do so in other instances amounts to presuming the legislature says something it didn’t.
[There was no underlying opinion on this case.]
Maria Del Carmen Hernandez v. State. Judge Womack wrote for a unanimous court. The Court held that impeaching a co-defendant’s out-of-court statement with another out-of-court statement by that defendant does not violate Crawford v. Washington.
Hernandez, along with Cassandra Leffew and Dolores Rodriguez kidnapped and murdered Robert Fernandez, the father of Hernandez’s youngest son, after Leffew accused Fernandez of assaulting her daughter. The three women had met at a woman’s shelter, and Hernandez had moved in with Leffew. Leffew drugged Fernandez with alcohol and prescription drugs to get him to confess to assaulting her child. Fernandez maintained his innocence and eventually passed out. The three women tied his hands and feet and put him in the trunk of the car. They dropped Leffew off at her home and Hernandez and Rodriguez went to Rodriguez’s house.
According to Hernandez, Rodriguez told her to smother Fernandez by putting a bag of his head. When that did not work, Rodriguez strangled Fernandez with pantyhose and drove away with the body. [Insert reference to Desperate Houswives or Diabolique here if you really want to flex your videostore clerk cred.] Hernandez called two inmate who claimed that Leffew had talked to them and taken credit for the murder, exonerating Hernandez. On rebuttal, the State sought to introduce portions of Leffew’s statement to police that it was Hernandez that strangled Fernandez under Rule 806, which allows the impeachment of hearsay with other hearsay.
The majority held that though this statement was clearly testimonial under Crawford and Davis v. Washington, it was not offered for the truth of the matter asserted. In Crawford, the majority notes, the Supreme Court expressed approval its prior decision Tennessee v. Street, which held that use of testimonial statements for purposes other than the truth of the matter asserted does not violate the Confrontation Clause. Here, the statement was redacted to include only those portions of Leffew’s police statement that were inconsistent with the hearsay offered by Hernandez. According to the majority, Leffew’s prior statement was not offered for the truth of the matter asserted and the jury could have looked at the two inconsistent statements and discounted both of them. [So, in light of this, does responding to a Crawford objection by saying "not for the truth of the matter asserted" satisfy the State's responsive burden under De La Paz?]
You can check out the underlying opinion here. [The link may be busted, so I’ll check back.]
Jared Littrell v. State. Judge Price wrote the majority opinion joined by Judges Meyers, Holcomb, Johnson, Womack, Cochran, Keasler, and Hervey. Presiding Judge Keller dissented.
Jared Littrell was tried for both felony murder and aggravated robbery against the same victim on the same date. Count One charged him with felony murder for committing an act clearly dangerous to human life (namely attempted aggravated robbery) and then causing that death. Count Two charged him with the aggravated robbery from Count One. The majority held that this violated double jeopardy because the aggravated robbery in Count Two was a lesser-included offense of felony murder in Count One. [The Court also notes that had Jared been charged in Count One of murder, aggravated robbery would not have been a lesser-included offense and therefore would not have violated double jeopardy.] The Court set aside the aggravated robbery because it was the lesser sentence and affirmed the felony murder.
Presiding Judge Keller dissented. According to the dissent, the State only had to prove murder in the course of attempting aggravated robbery in Count One. In contrast, the State did not have to prove a murder to prove up the aggravated robbery in Count Two. Thus, both Counts had different elements that needed to be proven, so felony murder and aggravated robbery were not the same offense under the Blockburger test. [True, the State plead both completed and attempted robbery as different ways of committing felony murder in Count One, but Littrell procedurally defaulted on that by not objecting to both theories being submitted to the jury.]
You can check out the unpublished memorandum opinion from the intermediate court of appeals here. [There were several other issues, but this one was the only one the CCA was interested in.]
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Thursday, October 9, 2008
Back to School?
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Even before Judge Price’s diabolical . . . diorama . . . dianetics . . . debutante . . . fuck it . . . concurring opinion in Landrian, I had my own doubts about the “eighth-grade grammar test” being used to determine whether a statute sets out different offenses or different ways of committing the same offense. Of course, I also used to think the clouds were following me when I ran home from school so irrational fears are nothing new to me. I understand that relying upon grammar rules is necessary when dealing with statutory interpretation. But I worry that something that was originally just supposed to be a catchy title for a “rule of thumb” could end up as a doctrine unto itself, not unlike “affirmative links”. Hell, there's already been a concurring opinion written specifically to correct a lower court's grammar without regard for divining the intent of the statute. Maybe I'm not totally paranoid.
This “rule of thumb” first appeared in the credit card abuse case in Ngo v. State. (And no, "rule of thumb" didn't originate with wife-beating, though I'm a little surprised that Judge Cochran used the phrase without explaining its origins in a footnote.) There, the question was whether credit card abuse contained several different offenses or multiple ways of committing the same offense. In footnote 24, the Court noted that “a handy, though not definitive rule of thumb is to look at the statutory verb defining the criminal act.” The following year, the Court considered Ngo in Jefferson v. State. There, the Court was faced with a jury unanimity issue in the context of injury to a child. Judge Cochran wrote separately to agree with the majority and to opine that “the resolution of cases of this nature may not be intuitively obvious to the discerning reader, except perhaps to one's eighth-grade English teacher who is accustomed to parsing sentences and diagramming adverbial phrases.” Then, a year later, Stuhler v. State comes out and refers again to this “general rule of thumb” for determining legislative intent in the context of jury unanimity in the context of injury to a child. Thus, the majority adopted the “eighth-grade grammar test”, and through the looking glass we go.
After Stuhler, the Court decided Pizzo v. State, holding that diagramming the sentence structure of the indecency of the child statute suggested that touching genitals is a different offense than touching breasts. But there, Judge Price (along with Judge Cochran) noted in a concurrence that this rule of thumb will not work invariably in every scenario to uncover the legislative intent of the statute. He reiterated this point in his concurring opinion yesterday in Landrian.
So what good is it? If it won’t work invariably, why make it a full-fledged methodology unto itself? Why not simply allow grammar to be one consideration in the overall goal of determining legislative intent? I guess my concern is that lower courts will mechanistically apply these grammar rules to the exclusion of other things that we typically rely upon to determine legislative intent. Section 312.012 of the Government Code . . . AH-CHOO! Cough, cough, cough . . . sorry, that one was a little dusty . . . where was I? Section 312.012 seems to recognize that the legislature is going to screw up on grammar sometimes by noting that a grammatical error won’t vitiate a law. I know that that’s really dealing with outright challenges to law and not interpretation of it. So maybe this section suggests the legislature recognizes its own failing and wants courts to be able to rewrite their words to make it make sense. Federalists be damned.
And who is the audience for this rule? Generally, the advantage for a rule of thumb is practicality. But Bryan Garner has made a pretty decent living demonstrating that most lawyers (despite their extensive education) don't understand technical grammar. Trial lawyers talk to people more often than they write. At the risk of being presumptuous, the trial lawyer who relishes sentence structure is more likely the exception rather than the rule. And what about trial judges? How often do they have to produce written material? Seems like they would be as rusty on their eighth-grade grammar as the rest of us. So if it's really designed to help appellate types, how does this rule help us get out of a jam when we're trying to work around a potential jury unanimity problem in a jury charge? Still, my response to actually having to understand and properly use the tools of my trade, however uncomfortable that may be to me, can't be "Grammar bad."
And really, what’s the harm? Is it really likely that there would be grammatical reading of a statute that would conflict with prior case law or that statute's legislative history. As mentioned above, I can’t be against grammar. (Otherwise we'd have to prosecute by math.) We reflexively have to go through our basic knowledge of grammar every time we read a statute. And if that’s the case, is the “eighth-grade grammar test” anything really new? Sure, it's very thingy for conjuring up the specific image of the eighth grade classroom, but the "eighth-grade" part of the test is really window dressing. I don’t know. Perhaps the analogy is the "affirmative links" doctrine is weak, but that was another non-definitive test that the CCA may be retreating from in favor of a more inclusive, logical-force-of-all-the evidence type of analysis. Maybe that’s where this eighth-grade grammar test will go, too.
I sure hope so. My grammar sucks.
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Even before Judge Price’s diabolical . . . diorama . . . dianetics . . . debutante . . . fuck it . . . concurring opinion in Landrian, I had my own doubts about the “eighth-grade grammar test” being used to determine whether a statute sets out different offenses or different ways of committing the same offense. Of course, I also used to think the clouds were following me when I ran home from school so irrational fears are nothing new to me. I understand that relying upon grammar rules is necessary when dealing with statutory interpretation. But I worry that something that was originally just supposed to be a catchy title for a “rule of thumb” could end up as a doctrine unto itself, not unlike “affirmative links”. Hell, there's already been a concurring opinion written specifically to correct a lower court's grammar without regard for divining the intent of the statute. Maybe I'm not totally paranoid.
This “rule of thumb” first appeared in the credit card abuse case in Ngo v. State. (And no, "rule of thumb" didn't originate with wife-beating, though I'm a little surprised that Judge Cochran used the phrase without explaining its origins in a footnote.) There, the question was whether credit card abuse contained several different offenses or multiple ways of committing the same offense. In footnote 24, the Court noted that “a handy, though not definitive rule of thumb is to look at the statutory verb defining the criminal act.” The following year, the Court considered Ngo in Jefferson v. State. There, the Court was faced with a jury unanimity issue in the context of injury to a child. Judge Cochran wrote separately to agree with the majority and to opine that “the resolution of cases of this nature may not be intuitively obvious to the discerning reader, except perhaps to one's eighth-grade English teacher who is accustomed to parsing sentences and diagramming adverbial phrases.” Then, a year later, Stuhler v. State comes out and refers again to this “general rule of thumb” for determining legislative intent in the context of jury unanimity in the context of injury to a child. Thus, the majority adopted the “eighth-grade grammar test”, and through the looking glass we go.
After Stuhler, the Court decided Pizzo v. State, holding that diagramming the sentence structure of the indecency of the child statute suggested that touching genitals is a different offense than touching breasts. But there, Judge Price (along with Judge Cochran) noted in a concurrence that this rule of thumb will not work invariably in every scenario to uncover the legislative intent of the statute. He reiterated this point in his concurring opinion yesterday in Landrian.
So what good is it? If it won’t work invariably, why make it a full-fledged methodology unto itself? Why not simply allow grammar to be one consideration in the overall goal of determining legislative intent? I guess my concern is that lower courts will mechanistically apply these grammar rules to the exclusion of other things that we typically rely upon to determine legislative intent. Section 312.012 of the Government Code . . . AH-CHOO! Cough, cough, cough . . . sorry, that one was a little dusty . . . where was I? Section 312.012 seems to recognize that the legislature is going to screw up on grammar sometimes by noting that a grammatical error won’t vitiate a law. I know that that’s really dealing with outright challenges to law and not interpretation of it. So maybe this section suggests the legislature recognizes its own failing and wants courts to be able to rewrite their words to make it make sense. Federalists be damned.
And who is the audience for this rule? Generally, the advantage for a rule of thumb is practicality. But Bryan Garner has made a pretty decent living demonstrating that most lawyers (despite their extensive education) don't understand technical grammar. Trial lawyers talk to people more often than they write. At the risk of being presumptuous, the trial lawyer who relishes sentence structure is more likely the exception rather than the rule. And what about trial judges? How often do they have to produce written material? Seems like they would be as rusty on their eighth-grade grammar as the rest of us. So if it's really designed to help appellate types, how does this rule help us get out of a jam when we're trying to work around a potential jury unanimity problem in a jury charge? Still, my response to actually having to understand and properly use the tools of my trade, however uncomfortable that may be to me, can't be "Grammar bad."
And really, what’s the harm? Is it really likely that there would be grammatical reading of a statute that would conflict with prior case law or that statute's legislative history. As mentioned above, I can’t be against grammar. (Otherwise we'd have to prosecute by math.) We reflexively have to go through our basic knowledge of grammar every time we read a statute. And if that’s the case, is the “eighth-grade grammar test” anything really new? Sure, it's very thingy for conjuring up the specific image of the eighth grade classroom, but the "eighth-grade" part of the test is really window dressing. I don’t know. Perhaps the analogy is the "affirmative links" doctrine is weak, but that was another non-definitive test that the CCA may be retreating from in favor of a more inclusive, logical-force-of-all-the evidence type of analysis. Maybe that’s where this eighth-grade grammar test will go, too.
I sure hope so. My grammar sucks.
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Wednesday, October 8, 2008
Issue Granted - Rorschach Edition
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The Court granted discretionary review in only one case today. State v. Thomas Varkonyi. This was originally a State's appeal of a trial court's granting a motion for new trial in a criminal solicitation of a child case out of El Paso County. The State prevailed on appeal, but the Appellee, Thomas Varkonyi petitioned the court. The Court granted review with oral argument on the following issues:
1. The court of appeals erroneously concluded that the granting of a new trial was an abuse of discretion because the petitioner did not list sufficient grounds to support the motion for new trial, alleging only that the motion was brought “in the interest of justice”
2. The court of appeals erroneously concluded that the granting of a new trial was an abuse of discretion because the trial court’s in-court, oral recollection of the jury’s misconduct and the trial attorney’s ineffectiveness was incompetent evidence.
So is he saying the court of appeals was wrong because the petitioner didn't list sufficient grounds, or is he just saying that the trial court granted the motion because he didn't list sufficient grounds and the court of appeals erred in reversing? I know it's the latter, but it did make me question for a moment what the Court was actually granting.
Anyway, you can read the underlying opinion here. Personally, I think this should be an interesting case as it should squarely resolve whether a defendant can avoid carrying his burden on an ineffective assistance claim by merely alleging that granting a new trial is "in the interest of justice". However, it does fill me with a wee bit of dread that the CCA agreed to take a look at this unpublished opinion.
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The Court granted discretionary review in only one case today. State v. Thomas Varkonyi. This was originally a State's appeal of a trial court's granting a motion for new trial in a criminal solicitation of a child case out of El Paso County. The State prevailed on appeal, but the Appellee, Thomas Varkonyi petitioned the court. The Court granted review with oral argument on the following issues:
1. The court of appeals erroneously concluded that the granting of a new trial was an abuse of discretion because the petitioner did not list sufficient grounds to support the motion for new trial, alleging only that the motion was brought “in the interest of justice”
2. The court of appeals erroneously concluded that the granting of a new trial was an abuse of discretion because the trial court’s in-court, oral recollection of the jury’s misconduct and the trial attorney’s ineffectiveness was incompetent evidence.
So is he saying the court of appeals was wrong because the petitioner didn't list sufficient grounds, or is he just saying that the trial court granted the motion because he didn't list sufficient grounds and the court of appeals erred in reversing? I know it's the latter, but it did make me question for a moment what the Court was actually granting.
Anyway, you can read the underlying opinion here. Personally, I think this should be an interesting case as it should squarely resolve whether a defendant can avoid carrying his burden on an ineffective assistance claim by merely alleging that granting a new trial is "in the interest of justice". However, it does fill me with a wee bit of dread that the CCA agreed to take a look at this unpublished opinion.
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Today's Eighth-Grade Grammar Homework
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The CCA issued two unanimous and unpublished opinions upholding two death penalty cases, Andre Thomas v. State and James Bigby v. State. The Court also granted unpublished habeas relief in various cases which you can check out for yourself here.
The Court also issued a published opinion in the following case:
Carlos Landrian v. State. Luis Brizuela went to a company Christmas party hosted by Landrian’s boss. As the party ended, Landrian and a drunk "party-crasher" got into a fight outside. Glass from a broken bottle that appellant threw at or in Mr. Brizuela's direction hit him and caused Mr. Brizuela to lose his left eye. Landrian was charged with the aggravated assault of Luis Brizuela by either (1) intentionally or knowingly causing bodily injury by using a deadly weapon, a bottle, or (2) recklessly causing serious bodily injury by throwing a bottle in his direction. The jury was charged in the disjunctive, and it returned a general verdict. The First Court of Appeals held that the trial judge erred because he did not require the jury to reach a unanimous verdict on whether appellant intentionally or knowingly caused bodily injury by using the bottle as a deadly weapon or whether he recklessly caused serious bodily injury by throwing the bottle in Mr. Brizuela's direction.
The CCA reversed the court of appeals, holding that the gravamen of aggravated assault is merely “causing bodily injury”. Juries do not have to be unanimous on aggravating factors such as using a deadly weapon or causing “serious” bodily injury. The CCA notes that the type of conduct required to cause the bodily injury is inconsequential; what matters is that the conduct (whatever it may be) is done with the required culpability to effect the result the legislature has specified. Then, the CCA applied the “eighth-grade grammar test,” (Will this rule have to be adjusted to a tenth grade grammar test later to account for declines in our education system?). Under this test, Landrian (noun) caused (the verb) a bodily injury (direct object) to one person, Mr. Brizuela. Landrian argued that aggravated assault is really two distinct offenses, namely causing serious bodily injury or causing bodily injury while using a deadly weapon. But here, the CCA notes, there was only one injury that could’ve been accomplished either by taking out Brizuela’s eye (serious bodily injury) or using a broken bottle (a deadly weapon). Regardless of which version of the facts the jury believed, there was only one criminal act, blinding Brizuela’s eye with a beer bottle.
Judge Womack concurred, along with Keasler and Keller noting that there was no possibility of a non-unanimous verdict (or, applying my own Orwellian-bastard grammar test, the jury returned an “animous” verdict). Womack’s concurrence noted it is impossible to inflict serious bodily injury without using a deadly weapon as the Court had held in Blount v. State. (A little hidden, self-five for Judge Womack, there.) Judge Price also authored a concurring opinion, joined by Judge Meyers because the Court reached the right result, but he wanted to write a dubitante opinion to express his reservations about whether the use of the “eighth-grade grammar test” worked in this case. (Because relying on an obscure type of legal opinion is SO much better than a kitschy "rule of thumb" posing as a legal doctrine.)
Here's the court of appeals opinion, in case you're interested.
I'll post the granted issue(s) later today.
Exit question: Does Section 312.012 of the Texas Government Code create problems for this test, or is the test a logical extension of the statute?
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The CCA issued two unanimous and unpublished opinions upholding two death penalty cases, Andre Thomas v. State and James Bigby v. State. The Court also granted unpublished habeas relief in various cases which you can check out for yourself here.
The Court also issued a published opinion in the following case:
Carlos Landrian v. State. Luis Brizuela went to a company Christmas party hosted by Landrian’s boss. As the party ended, Landrian and a drunk "party-crasher" got into a fight outside. Glass from a broken bottle that appellant threw at or in Mr. Brizuela's direction hit him and caused Mr. Brizuela to lose his left eye. Landrian was charged with the aggravated assault of Luis Brizuela by either (1) intentionally or knowingly causing bodily injury by using a deadly weapon, a bottle, or (2) recklessly causing serious bodily injury by throwing a bottle in his direction. The jury was charged in the disjunctive, and it returned a general verdict. The First Court of Appeals held that the trial judge erred because he did not require the jury to reach a unanimous verdict on whether appellant intentionally or knowingly caused bodily injury by using the bottle as a deadly weapon or whether he recklessly caused serious bodily injury by throwing the bottle in Mr. Brizuela's direction.
The CCA reversed the court of appeals, holding that the gravamen of aggravated assault is merely “causing bodily injury”. Juries do not have to be unanimous on aggravating factors such as using a deadly weapon or causing “serious” bodily injury. The CCA notes that the type of conduct required to cause the bodily injury is inconsequential; what matters is that the conduct (whatever it may be) is done with the required culpability to effect the result the legislature has specified. Then, the CCA applied the “eighth-grade grammar test,” (Will this rule have to be adjusted to a tenth grade grammar test later to account for declines in our education system?). Under this test, Landrian (noun) caused (the verb) a bodily injury (direct object) to one person, Mr. Brizuela. Landrian argued that aggravated assault is really two distinct offenses, namely causing serious bodily injury or causing bodily injury while using a deadly weapon. But here, the CCA notes, there was only one injury that could’ve been accomplished either by taking out Brizuela’s eye (serious bodily injury) or using a broken bottle (a deadly weapon). Regardless of which version of the facts the jury believed, there was only one criminal act, blinding Brizuela’s eye with a beer bottle.
Judge Womack concurred, along with Keasler and Keller noting that there was no possibility of a non-unanimous verdict (or, applying my own Orwellian-bastard grammar test, the jury returned an “animous” verdict). Womack’s concurrence noted it is impossible to inflict serious bodily injury without using a deadly weapon as the Court had held in Blount v. State. (A little hidden, self-five for Judge Womack, there.) Judge Price also authored a concurring opinion, joined by Judge Meyers because the Court reached the right result, but he wanted to write a dubitante opinion to express his reservations about whether the use of the “eighth-grade grammar test” worked in this case. (Because relying on an obscure type of legal opinion is SO much better than a kitschy "rule of thumb" posing as a legal doctrine.)
Here's the court of appeals opinion, in case you're interested.
I'll post the granted issue(s) later today.
Exit question: Does Section 312.012 of the Texas Government Code create problems for this test, or is the test a logical extension of the statute?
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Wednesday, October 1, 2008
Kennedy vs. The Rehearing
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No surprise here. SCOTUS has denied Louisiana's petition for rehearing in Kennedy v. Louisiana. As most expected, they chose instead to modify the original opinion by dropping a footnote in the majority opinion and making slight modifications to the dissent. Another opponent laid low by Justice Kennedy's power. Interestingly, Kennedy explained its denial of rehearing by essentially saying that Coker doesn't mention the application of the death penalty to rape in military context, either, so this doesn't really change anything. I'm not terribly persuaded.
Perhaps more interestingly, Justice Scalia and Chief Justice Roberts went along with the denial.
SCOTUSblog has some reportage on it. It also has some analysis of the impact (if any) this denial has on the death penalty calculus in general.
Ed Whelan has a post on the Bench Memos blog for the National Review Online that includes part of Scalia's explanation for why he supported the denial. It's an entertaining read. But if you want to read all of Scalia's response, here's a link to the full monty.
And in other unsurprising news, the IGF thinks the Chinese gymnasts are old enough to keep their medals.
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No surprise here. SCOTUS has denied Louisiana's petition for rehearing in Kennedy v. Louisiana. As most expected, they chose instead to modify the original opinion by dropping a footnote in the majority opinion and making slight modifications to the dissent. Another opponent laid low by Justice Kennedy's power. Interestingly, Kennedy explained its denial of rehearing by essentially saying that Coker doesn't mention the application of the death penalty to rape in military context, either, so this doesn't really change anything. I'm not terribly persuaded.
Perhaps more interestingly, Justice Scalia and Chief Justice Roberts went along with the denial.
SCOTUSblog has some reportage on it. It also has some analysis of the impact (if any) this denial has on the death penalty calculus in general.
Ed Whelan has a post on the Bench Memos blog for the National Review Online that includes part of Scalia's explanation for why he supported the denial. It's an entertaining read. But if you want to read all of Scalia's response, here's a link to the full monty.
And in other unsurprising news, the IGF thinks the Chinese gymnasts are old enough to keep their medals.
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Labels:
child rape,
death penalty,
Kennedy v. Louisiana
Issues Granted
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The Court granted discretionary review with oral argument in the following case:
Joe Salazar v. State. The Court granted the defendant's petition for discretionary review in this is a burglary of a building case from Potter County. Here's the very Zen-like issue:
Does a habitation inherently give notice that entry is forbidden?
You can read the underlying opinion here.
The Court granted discretionary review without oral argument in the following cases:
Murray Hammer v. State. The Court granted the defendant's petition for discretionary review in this indecency with a child case from Wilson County. Here's the issue:
1. The court of appeals incorretly determined an important issue of state and federal law by deciding that the trial court did not abuse its discretion by excluding impeachment evidence of complainant's previous false allegations of sexual assault and such exclusion violated petitioner's rights under the Confrontation Clause of the United States Constitution. The court of appeals opinion is in direct contradiction with the First Court of Appeals in its decision in Thomas v. State, 669 S.W.2d 420 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd.), in that the Fourth Court finds the allegations which complainant fabricated are dissimilar to the offense which petitioner is charged.
You can read the underlying memorandum opinion here.
Noel Villarreal v. State. The Court granted Villarreal's discretionary review in this Tarrant County violation of a protective order case. Here are the issues:
1. Is the evidence legally insufficient to prove beyond a reasoanble doubt that Noel Villarreal committed an act of family violence in violation of the subject protective order when the complained of conduct, if true, constitutes only "dating violence," and the protective order's definition of "family violence" excludes "dating violence?"
2. Is the evidence factually insufficient to prove beyond a reasonable doubt that Noel Villarreal committed an act of family violence in violation of the subject protective order when the complained of conduct, if true, constitutes only "dating violence," and the protective order's definition of "family violence" excludes "dating violence?"
3. Did the trial court err by including instructions in the court's charge that addressed "dating violence" and "dating relationship"?
You can read the underlying (and unpublished) memorandum opinion here.
Jimmy Simmons v. State. The Court granted the State's petition for discretionary review in this Milam County aggravated robbery case. Here's the issue:
The court of appeals erred in analyzing the quantum of evidence necessary to corroborate accomplice witness testimony under Tex. Code Crim Proc Ann. 38.14 as whether the corroboration could just as rationally be equated with innocence as it could with guilt, rather than whether a rational juror could find that the corroborating evidence tended to connect the Appellant to the offense charged, as is illuminated in the dissenting opinion. Discretionary review is warranted because the Justices disagreed on a material question of law that was necessary to that Court's decision. See, Tex. R. App. P. 66.3(e).
Here's the underlying, unpublished, memorandum opinion here. And here's the unpublished dissent.
.
The Court granted discretionary review with oral argument in the following case:
Joe Salazar v. State. The Court granted the defendant's petition for discretionary review in this is a burglary of a building case from Potter County. Here's the very Zen-like issue:
Does a habitation inherently give notice that entry is forbidden?
You can read the underlying opinion here.
The Court granted discretionary review without oral argument in the following cases:
Murray Hammer v. State. The Court granted the defendant's petition for discretionary review in this indecency with a child case from Wilson County. Here's the issue:
1. The court of appeals incorretly determined an important issue of state and federal law by deciding that the trial court did not abuse its discretion by excluding impeachment evidence of complainant's previous false allegations of sexual assault and such exclusion violated petitioner's rights under the Confrontation Clause of the United States Constitution. The court of appeals opinion is in direct contradiction with the First Court of Appeals in its decision in Thomas v. State, 669 S.W.2d 420 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd.), in that the Fourth Court finds the allegations which complainant fabricated are dissimilar to the offense which petitioner is charged.
You can read the underlying memorandum opinion here.
Noel Villarreal v. State. The Court granted Villarreal's discretionary review in this Tarrant County violation of a protective order case. Here are the issues:
1. Is the evidence legally insufficient to prove beyond a reasoanble doubt that Noel Villarreal committed an act of family violence in violation of the subject protective order when the complained of conduct, if true, constitutes only "dating violence," and the protective order's definition of "family violence" excludes "dating violence?"
2. Is the evidence factually insufficient to prove beyond a reasonable doubt that Noel Villarreal committed an act of family violence in violation of the subject protective order when the complained of conduct, if true, constitutes only "dating violence," and the protective order's definition of "family violence" excludes "dating violence?"
3. Did the trial court err by including instructions in the court's charge that addressed "dating violence" and "dating relationship"?
You can read the underlying (and unpublished) memorandum opinion here.
Jimmy Simmons v. State. The Court granted the State's petition for discretionary review in this Milam County aggravated robbery case. Here's the issue:
The court of appeals erred in analyzing the quantum of evidence necessary to corroborate accomplice witness testimony under Tex. Code Crim Proc Ann. 38.14 as whether the corroboration could just as rationally be equated with innocence as it could with guilt, rather than whether a rational juror could find that the corroborating evidence tended to connect the Appellant to the offense charged, as is illuminated in the dissenting opinion. Discretionary review is warranted because the Justices disagreed on a material question of law that was necessary to that Court's decision. See, Tex. R. App. P. 66.3(e).
Here's the underlying, unpublished, memorandum opinion here. And here's the unpublished dissent.
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Labels:
hand down list,
issues granted
Today's Opinions
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The Court granted non-published habeas relief in several cases. You can sort through those at your leisure here.
The Court also handed down several published opinions.
Nicholas Klein v. State. In a 5-4 decision, the CCA reversed the Fort Worth court of appeals in an aggravated sexual assault of a child case. The State charged Klein with eight counts stemming from four specific instances in which Klein sexually assaulted his daughter using his finger and tongue. The lower court had acquitted on six of the eight counts and remanded on the final two. There were two issues. First, the majority (led by Judge Hervey and joined by Judges Keasler, Keller, Holcomb, and Meyers) held that there was legally sufficient evidence that Klein had sexually assaulted his daughter while his mother was at a Monday night dance class during a six week period. The concurring and dissenting opinion by Judge Price (and joined by Womack, Cochran, and Johnson) seems to suggest that everyone regards the evidence as at least minimally legally sufficient.
Second, the majority held that the trial court properly admitted outcry statements as prior consistent statements after the complainant recanted on the stand. Essentially, the complainant admitted to being sexually assaulted on direct, but getting her to say it required some pointed questions. On cross, she recanted, and the State sought to use the prior statements to bolster its case. The majority held that this was proper to address the claim that the victim had only admitted to the sexual assault through trickery in the prosecution's questioning. Judge Cochran's dissent (joined by Judges Price, Womack, and Johnson) argued that her recantation during cross-examination did not merit introduction of the prior consistent statements because the defense position had not been that the complainant fabricated the testimony, just that she was confused. The majority disagreed and explained that recent fabrication does not require a showing that the fabricated statement was compelled by a bad motive. [Exit question: Does this mean the State can get prior consistent statements in by impeaching its own witnesses?] You can read the underlying opinion here(though there may be problems with the hyperlink).
Aaron Vega v. State. The majority sent the case back to the lower court to consider whether the evidence was factually sufficient to establish Vega as aparty under Penal Code section 7.02(b). Vega helped plan and aggravated robbery, but he didn't directly participate in it. During the armed robbery, Robert Cantu was killed. The jury charge included language regarding party liability under 7.02(a) and 7.02(b), but the application paragraph erroneously applied 7.02(a) party liability to the facts. The majority held that the court of appeals erroneously failed to consider 7.02(b) party liability under the hypothetically correct jury charge standard set out in Wooley. You can read the underlying majority opinion in Vega here, the underlying dissenting opinion here.
Robert Huffman v. State. The majority held that the various methods of committing the offense of failure to stop and render aid can be put in the disjunctive in the jury charge because they are different ways of committing the same offense. The Court explained that failure to stop and render aid is a circumstances type of offense (as opposed to a conduct- or result-oriented one) so the culpable mental state must apply to the circumstances. Thus, a defendant must know there's an accident and know that victims suffered an injury. Therefore, "failing to stop", "failing to remain", and "failing to return" are three different ways to commit the same offense. Four judges wrote individual concurring opinions. Judge Meyers agreed that there are not three different offenses, but disagreed that there are three different ways to commit the same offense. In his mind, there's failure to stop and the failure to remain and failure to return are defenses. Moreover, in this case, the defendant failed to stop so there was no evidence to support the charge that he failed to remain or failed to return. Judge Cochran wrote separately to correct the lower court's grammar. Judge Womack agreed with Judge Meyers that there were theories of liability presented to the jury that were not raised by the evidence and with Judge Cochran's opinion. Judge Johnson joined Judge Cochran's opinion, but also noted that remaining at the scene requires more than simply being present, it also requires exchanging information. You can read the underlying opinion here. [Kudos to Kevin Yeary!]
Stephon Walter v. State. The majority held that a trial court errs in admitting a narrative statement that includes portions that are against the declarants penal interest. Walter and Markel Henson robbed an Outback Steakhouse and killed three people during the robbery. The State called Robert Henson to talk about a conversation that he'd had with his brother, Markel. During that conversation, Markel implicated himself in the robbery-murders, but he also shifted blame for the murder to Walter. The majority held essentially that "blame-sharing" statements are admissible, but "blame-shifting" statements are not. Only statements made by Markel against Markel's penal interest were admissible, and the trial court should not have introduced the other statements. Or, to put it in Cochranese - admit the gold, exclude the dross. Judge Hervey (along with Judges Keasler and Keller) wrote a dissenting opinion to state that they would allow "blame-shifting" statements in so long as they are supported by corroborating circumstances. You can read the underlying opinion here.
I'll include a separate post on the issues granted when I can pull them up.
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The Court granted non-published habeas relief in several cases. You can sort through those at your leisure here.
The Court also handed down several published opinions.
Nicholas Klein v. State. In a 5-4 decision, the CCA reversed the Fort Worth court of appeals in an aggravated sexual assault of a child case. The State charged Klein with eight counts stemming from four specific instances in which Klein sexually assaulted his daughter using his finger and tongue. The lower court had acquitted on six of the eight counts and remanded on the final two. There were two issues. First, the majority (led by Judge Hervey and joined by Judges Keasler, Keller, Holcomb, and Meyers) held that there was legally sufficient evidence that Klein had sexually assaulted his daughter while his mother was at a Monday night dance class during a six week period. The concurring and dissenting opinion by Judge Price (and joined by Womack, Cochran, and Johnson) seems to suggest that everyone regards the evidence as at least minimally legally sufficient.
Second, the majority held that the trial court properly admitted outcry statements as prior consistent statements after the complainant recanted on the stand. Essentially, the complainant admitted to being sexually assaulted on direct, but getting her to say it required some pointed questions. On cross, she recanted, and the State sought to use the prior statements to bolster its case. The majority held that this was proper to address the claim that the victim had only admitted to the sexual assault through trickery in the prosecution's questioning. Judge Cochran's dissent (joined by Judges Price, Womack, and Johnson) argued that her recantation during cross-examination did not merit introduction of the prior consistent statements because the defense position had not been that the complainant fabricated the testimony, just that she was confused. The majority disagreed and explained that recent fabrication does not require a showing that the fabricated statement was compelled by a bad motive. [Exit question: Does this mean the State can get prior consistent statements in by impeaching its own witnesses?] You can read the underlying opinion here(though there may be problems with the hyperlink).
Aaron Vega v. State. The majority sent the case back to the lower court to consider whether the evidence was factually sufficient to establish Vega as aparty under Penal Code section 7.02(b). Vega helped plan and aggravated robbery, but he didn't directly participate in it. During the armed robbery, Robert Cantu was killed. The jury charge included language regarding party liability under 7.02(a) and 7.02(b), but the application paragraph erroneously applied 7.02(a) party liability to the facts. The majority held that the court of appeals erroneously failed to consider 7.02(b) party liability under the hypothetically correct jury charge standard set out in Wooley. You can read the underlying majority opinion in Vega here, the underlying dissenting opinion here.
Robert Huffman v. State. The majority held that the various methods of committing the offense of failure to stop and render aid can be put in the disjunctive in the jury charge because they are different ways of committing the same offense. The Court explained that failure to stop and render aid is a circumstances type of offense (as opposed to a conduct- or result-oriented one) so the culpable mental state must apply to the circumstances. Thus, a defendant must know there's an accident and know that victims suffered an injury. Therefore, "failing to stop", "failing to remain", and "failing to return" are three different ways to commit the same offense. Four judges wrote individual concurring opinions. Judge Meyers agreed that there are not three different offenses, but disagreed that there are three different ways to commit the same offense. In his mind, there's failure to stop and the failure to remain and failure to return are defenses. Moreover, in this case, the defendant failed to stop so there was no evidence to support the charge that he failed to remain or failed to return. Judge Cochran wrote separately to correct the lower court's grammar. Judge Womack agreed with Judge Meyers that there were theories of liability presented to the jury that were not raised by the evidence and with Judge Cochran's opinion. Judge Johnson joined Judge Cochran's opinion, but also noted that remaining at the scene requires more than simply being present, it also requires exchanging information. You can read the underlying opinion here. [Kudos to Kevin Yeary!]
Stephon Walter v. State. The majority held that a trial court errs in admitting a narrative statement that includes portions that are against the declarants penal interest. Walter and Markel Henson robbed an Outback Steakhouse and killed three people during the robbery. The State called Robert Henson to talk about a conversation that he'd had with his brother, Markel. During that conversation, Markel implicated himself in the robbery-murders, but he also shifted blame for the murder to Walter. The majority held essentially that "blame-sharing" statements are admissible, but "blame-shifting" statements are not. Only statements made by Markel against Markel's penal interest were admissible, and the trial court should not have introduced the other statements. Or, to put it in Cochranese - admit the gold, exclude the dross. Judge Hervey (along with Judges Keasler and Keller) wrote a dissenting opinion to state that they would allow "blame-shifting" statements in so long as they are supported by corroborating circumstances. You can read the underlying opinion here.
I'll include a separate post on the issues granted when I can pull them up.
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Labels:
hand down list,
publish,
published opinions,
today's opinions
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