The Court granted the State's petition for discretionary review in two cases, Angel Resendez v. State and Jonathan Moore v. State, but the issues aren't posted, and I don't anticipate them being posted today as it's Thanksgiving. I'll update this post when they are posted.
Again, Happy Thanksgiving.
Update 12/01/08: I'm still unable to pull up a list for issues other than those granted on November 19th. I contacted the Court but did not receive any new information. I will update when I get new info.
Thursday, November 27, 2008
Wednesday, November 26, 2008
Today's Other Opinions - 11/26/08
And here are the, non-death penalty opinions released today:
Ex parte Nolan Harrell Webb. Here, Webb lost his murder appeal and the court of appeals issued a mandate. Webb filed a writ of habeas corpus for an out-of-time PDR and got it. The CCA later refused discretionary review of the out-of-time petition filed by Webb. Webb filed a subsequent writ, but the clerk said it was premature because a second mandate had not issued (though the first had not been withdrawn). A unanimous court held the conviction was timely because the mandate granting the out-of-time petition merely made the first mandate “dormant” until the discretionary review process ran its course. Unfortunately for Webb, the Court also denied relief because Webb’s claims of prosecutorial misconduct should’ve been raised on direct appeal.
Marcus Tucker v. State. Tucker got into a physical fight with his business partner. Tucker was known to carry a two-inch folding knife. When police arrived after the fight, they observed the victim’s shirt was soaked in blood. The victim had a puncture wound to the back of her neck near her spine and a through and through laceration in her arm (meaning that whether Tucker had used to stab her had gone all the way through her arm). The victim testified she didn’t see Tucker use anything other than his fists during the fight, but the officer on the scene said the injuries were inconsistent with fists. The weapon was not collected. Judge Charlie Baird, sitting by assignment, had held the evidence was legally insufficient to show that Tucker had used or exhibited a deadly weapon. He accomplished this failing to take account of all the relevant facts, namely the stab wound that went all the way through the victim’s arm.
Presiding Judge Keller reversed. In a unanimous opinion, the CCA held that the evidence was sufficient to establish that Tucker had used a deadly weapon. Even though the unidentified object had not actually caused serious bodily injury, the nature of the injuries themselves suggested that the object had been used in a manner capable of causing death or serious bodily injury. The Court explained that the through-and-through wound could’ve severed a major blood vessel or nerve. The injury to the back of the neck caused a great deal of pain and given the location of the wound carried the potential of causing paralysis. Finally, both officers agreed that whatever weapon was used it was capable of causing serious bodily injury or death. Judge Baird’s focus on the lack of detail about the weapon failed to account for the possibility that the nature of the object could be inferred from the injuries themselves. Thus, the CCA sent the case back for consideration of the remaining issues.
Arthur Lee Williams v. State. Williams was riding in a car with his buddy Darrell Fields who stopped the car on the wrong side of the road in front of a known crack house. An officer saw this and pulled up behind the car. As the officer approached, he saw Williams move his hands around his waistband. This caused the officer to suspect that Williams had a weapon. The officer performed a pat-down on Williams. During the pat-down a crack pipe hit the ground and Williams stomped on it. The jury convicted Williams of tampering with evidence. The court of appeals affirmed in an unpublished opinion, holding (among other things) that the evidence was legally sufficient to establish that Williams had “destroyed” the crack pipe and that he did so knowing that the pipe was evidence in a criminal investigation that was in progress.
The CCA affirmed the court of appeals opinion, Judge Meyers, writing for the majority, explained that the evidence established that Williams knew he was being investigated. Williams argued, based upon Pannell v. State, that he did not “know” the crack pipe was evidence because he was being investigated for weapons and the crack pipe wouldn’t be evidence in that investigation. The majority rejected the argument because Pannell incorrectly adds a requirement that a defendant know that the thing destroyed was evidence in the investigation as it existed at the time of the destruction. This isn’t supported by the statute; all the State had to show was that Williams knew he was being investigated and that he intended to destroy the evidence to impair its availability as evidence in that investigation. While the State did allege that the investigation was a “weapons” investigation in the indictment, the majority noted in the infamous “footnote 2” that such language was surplusage. [Note: Looks like Pannell isn’t good law any more, but it sure would’ve been nice of the Court to come out and say so.]
Also, the evidence was legally sufficient to show that Williams actually “destroyed” the evidence. True, the State offered up the tragic and broken remnants of the object that had once valiantly served as a pipe of crack. But the State wasn’t required to prove that Williams had crushed the pipe into oblivion. The CCA noted that the court of appeals relied heavily that the evidentiary value of the pipe had been lessened because Williams pipe-stomp had rendered it unrecognizable as a crack pipe. It was ruined and rendered useless, so Williams had “destroyed” it sufficiently to bring his conduct within the prohibitions of the tampering statute.
Judge Womack wrote a short concurrence to note that “destroying” and “altering” may be different things, they are not mutually exclusive. It was all very Zen. Presiding Judge Keller joined, but not as to footnote 2. Footnote 2 intimates that the type of investigation is not legally essential and therefore doesn’t have to be listed in the charging instrument. However, it also goes on to hold that there was not a fatal variance between the proof and the charging instrument because the State proved that the evidence was collected during a “weapons” investigation. P.J. Keller did not explain why she did not join this part of the opinion, so this footnote remains a little perplexing. Judges Price and Cochran concurred in the judgment without an opinion. Judge Johnson dissented without an opinion.
Roy Bob Bartlett v. State. Bartlett was stopped for speeding. The officer suspected intoxication. Bartlett, having been through this rodeo before, refused to take a breath test without his attorney (as if the attorney would really let him take the breath test). He was charged with felony DWI. At the trial, the court charged the jury that it was permitted to consider Bartlett’s refusal to submit to a breath test. The first paragraph said the State can introduce this evidence. The second paragraph described generally what each side wanted the jury to infer from the refusal evidence; the State wants the jury to infer guilt, the defense wants the jury to not infer guilt. The third paragraph said the evidence, standing alone wasn’t sufficient to establish guilt, but it could be considered by the jury. The charge ended with a statement explaining that the significance of the refusal is for the jury to determine. The court of appeals affirmed (in an unpublished memorandum opinion), relying upon cases such as Bright v. State, 865 S.W.2d. 135, 137 (Tex. App.—Corpus Christi 1993, pet. ref’d.) and Finley v. State, 809 S.W.2d. 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d.) that had held similar instructions permissible where the jury was instructed not to rely solely on the refusal evidence.
The CCA reversed because the instruction singled out a particular piece of evidence for consideration. Unlike the statutorily required instructions like an accomplice witness instruction or a presumption instruction, this instruction singled out a piece of evidence for special attention when no statute required refusal evidence to be given particular weight or special consideration. True, the Transportation Code makes the evidence admissible, but it doesn’t attach any weight to it. This type of statute does not authorize a jury instruction. Because the trial court singled out this type of evidence it had the potential to obliquely or indirectly convey some sort of judicial opinion on the weight of the evidence by singling it out and inviting the jury to pay attention to it.
Judge Johnson concurred to say that the first paragraph of the instruction was fine because it properly set out the law, but the second two paragraphs were comments on the evidence. This kind of flew in the face of the majority's rationale, but the vote was so overwhelming, it doesn't really matter. Judge Hervey dissented to say that the instruction was neutral and gave no indication of what weight to give the refusal evidence. It is “comment on the weight of the evidence” after all.
Ex parte Nolan Harrell Webb. Here, Webb lost his murder appeal and the court of appeals issued a mandate. Webb filed a writ of habeas corpus for an out-of-time PDR and got it. The CCA later refused discretionary review of the out-of-time petition filed by Webb. Webb filed a subsequent writ, but the clerk said it was premature because a second mandate had not issued (though the first had not been withdrawn). A unanimous court held the conviction was timely because the mandate granting the out-of-time petition merely made the first mandate “dormant” until the discretionary review process ran its course. Unfortunately for Webb, the Court also denied relief because Webb’s claims of prosecutorial misconduct should’ve been raised on direct appeal.
Marcus Tucker v. State. Tucker got into a physical fight with his business partner. Tucker was known to carry a two-inch folding knife. When police arrived after the fight, they observed the victim’s shirt was soaked in blood. The victim had a puncture wound to the back of her neck near her spine and a through and through laceration in her arm (meaning that whether Tucker had used to stab her had gone all the way through her arm). The victim testified she didn’t see Tucker use anything other than his fists during the fight, but the officer on the scene said the injuries were inconsistent with fists. The weapon was not collected. Judge Charlie Baird, sitting by assignment, had held the evidence was legally insufficient to show that Tucker had used or exhibited a deadly weapon. He accomplished this failing to take account of all the relevant facts, namely the stab wound that went all the way through the victim’s arm.
Presiding Judge Keller reversed. In a unanimous opinion, the CCA held that the evidence was sufficient to establish that Tucker had used a deadly weapon. Even though the unidentified object had not actually caused serious bodily injury, the nature of the injuries themselves suggested that the object had been used in a manner capable of causing death or serious bodily injury. The Court explained that the through-and-through wound could’ve severed a major blood vessel or nerve. The injury to the back of the neck caused a great deal of pain and given the location of the wound carried the potential of causing paralysis. Finally, both officers agreed that whatever weapon was used it was capable of causing serious bodily injury or death. Judge Baird’s focus on the lack of detail about the weapon failed to account for the possibility that the nature of the object could be inferred from the injuries themselves. Thus, the CCA sent the case back for consideration of the remaining issues.
Arthur Lee Williams v. State. Williams was riding in a car with his buddy Darrell Fields who stopped the car on the wrong side of the road in front of a known crack house. An officer saw this and pulled up behind the car. As the officer approached, he saw Williams move his hands around his waistband. This caused the officer to suspect that Williams had a weapon. The officer performed a pat-down on Williams. During the pat-down a crack pipe hit the ground and Williams stomped on it. The jury convicted Williams of tampering with evidence. The court of appeals affirmed in an unpublished opinion, holding (among other things) that the evidence was legally sufficient to establish that Williams had “destroyed” the crack pipe and that he did so knowing that the pipe was evidence in a criminal investigation that was in progress.
The CCA affirmed the court of appeals opinion, Judge Meyers, writing for the majority, explained that the evidence established that Williams knew he was being investigated. Williams argued, based upon Pannell v. State, that he did not “know” the crack pipe was evidence because he was being investigated for weapons and the crack pipe wouldn’t be evidence in that investigation. The majority rejected the argument because Pannell incorrectly adds a requirement that a defendant know that the thing destroyed was evidence in the investigation as it existed at the time of the destruction. This isn’t supported by the statute; all the State had to show was that Williams knew he was being investigated and that he intended to destroy the evidence to impair its availability as evidence in that investigation. While the State did allege that the investigation was a “weapons” investigation in the indictment, the majority noted in the infamous “footnote 2” that such language was surplusage. [Note: Looks like Pannell isn’t good law any more, but it sure would’ve been nice of the Court to come out and say so.]
Also, the evidence was legally sufficient to show that Williams actually “destroyed” the evidence. True, the State offered up the tragic and broken remnants of the object that had once valiantly served as a pipe of crack. But the State wasn’t required to prove that Williams had crushed the pipe into oblivion. The CCA noted that the court of appeals relied heavily that the evidentiary value of the pipe had been lessened because Williams pipe-stomp had rendered it unrecognizable as a crack pipe. It was ruined and rendered useless, so Williams had “destroyed” it sufficiently to bring his conduct within the prohibitions of the tampering statute.
Judge Womack wrote a short concurrence to note that “destroying” and “altering” may be different things, they are not mutually exclusive. It was all very Zen. Presiding Judge Keller joined, but not as to footnote 2. Footnote 2 intimates that the type of investigation is not legally essential and therefore doesn’t have to be listed in the charging instrument. However, it also goes on to hold that there was not a fatal variance between the proof and the charging instrument because the State proved that the evidence was collected during a “weapons” investigation. P.J. Keller did not explain why she did not join this part of the opinion, so this footnote remains a little perplexing. Judges Price and Cochran concurred in the judgment without an opinion. Judge Johnson dissented without an opinion.
Roy Bob Bartlett v. State. Bartlett was stopped for speeding. The officer suspected intoxication. Bartlett, having been through this rodeo before, refused to take a breath test without his attorney (as if the attorney would really let him take the breath test). He was charged with felony DWI. At the trial, the court charged the jury that it was permitted to consider Bartlett’s refusal to submit to a breath test. The first paragraph said the State can introduce this evidence. The second paragraph described generally what each side wanted the jury to infer from the refusal evidence; the State wants the jury to infer guilt, the defense wants the jury to not infer guilt. The third paragraph said the evidence, standing alone wasn’t sufficient to establish guilt, but it could be considered by the jury. The charge ended with a statement explaining that the significance of the refusal is for the jury to determine. The court of appeals affirmed (in an unpublished memorandum opinion), relying upon cases such as Bright v. State, 865 S.W.2d. 135, 137 (Tex. App.—Corpus Christi 1993, pet. ref’d.) and Finley v. State, 809 S.W.2d. 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d.) that had held similar instructions permissible where the jury was instructed not to rely solely on the refusal evidence.
The CCA reversed because the instruction singled out a particular piece of evidence for consideration. Unlike the statutorily required instructions like an accomplice witness instruction or a presumption instruction, this instruction singled out a piece of evidence for special attention when no statute required refusal evidence to be given particular weight or special consideration. True, the Transportation Code makes the evidence admissible, but it doesn’t attach any weight to it. This type of statute does not authorize a jury instruction. Because the trial court singled out this type of evidence it had the potential to obliquely or indirectly convey some sort of judicial opinion on the weight of the evidence by singling it out and inviting the jury to pay attention to it.
Judge Johnson concurred to say that the first paragraph of the instruction was fine because it properly set out the law, but the second two paragraphs were comments on the evidence. This kind of flew in the face of the majority's rationale, but the vote was so overwhelming, it doesn't really matter. Judge Hervey dissented to say that the instruction was neutral and gave no indication of what weight to give the refusal evidence. It is “comment on the weight of the evidence” after all.
Today's Death Penalty Opinion - 11/26/08
Because these opinions usually end up so long with all their new fangled points of error, I've decided to start doing a separate post for published death penalty opinions when they are handed down. Here's the one from today:
Clifton Williams v. State. Williams beat, stabbed, and choked a 93-year-old woman after breaking into her house with the intent to commit numerous felonies (burglary, robbery, arson). Then, he put her body on the bed and set it on fire. A jury considered the typical special issues and another special, special issue on mental retardation. Williams received a death sentence. He brought six points of error, one big issue and five baby ones.
Mental Retardation – The Court held the evidence was legally sufficient to show that Williams wasn’t mentally retarded. The Court had the opportunity to dodge the issue entirely because Williams provided one record citation in his statement of facts when the relevant testimony could be found over seven different volumes of a reporter’s records. However, the Court decided to sift through the record and consider the merits of the claim, moral hazard be damned. The Court noted that Williams committed the murder, tried to destroy the evidence by setting fire to the victim’s bed, disposed of the murder weapon, destroyed the clothes he was wearing, lied to his family and police about his involvement, and then tried to frame a friend of his minimizing his own participation.
Williams made passing and above-average grades until he dropped out of school in the 12th grade. Williams claimed he was socially promoted. He became a disciplinary problem at around 15, which made his family think he was retarded, though he never got his IQ checked prior to his 18th birthday. He did take special needs classes, but that’s not the same thing as special education. [Duh, needs is like a totally different word than education.] He even got a job working at Kentucky Fried Chicken, handling the cash register and fixing food. [Is it just me, or does it seem like the ability to get a job at a fast-food restaurant is becoming the lynchpin of rebuttals to mental retardation claims?]
The various experts performed their respective retarded or not-retarded incantations before the jury. The first defense expert had evaluated (and approved) Williams for social security benefits and said Williams was mildly mentally retarded with a 63 score (at 19) and maybe even schizophrenic. The expert did admit though that tests showing Williams was working at a fourth-grade education level was contradicted by his ability to get good grades into high school. Another defense expert said Williams showed deficits in adaptive functioning. And another that put Williams IQ at 65. The State presented an expert who opined that Williams wasn’t mentally retarded, noting that his teachers never regarded him as mentally retarded. The State’s expert gave Williams five different tests and all placed Williams’ IQ at above 70 and acknowledged that Williams may have deficits in adaptive behavior, but they were not significant deficits.
The Court determined that the jury rationally rejected Williams mental retardation claim after hearing the testimony of various experts as well as the testimony of teachers, family members, counselors, and mental health providers. [Really? That’s a job? Providing mental health?] Specifically, the jury could’ve rejected Williams’ first expert (who determined Williams was mildly retarded before Williams committed the offense) because his evaluation was based upon incomplete and inaccurate information.
The Court also rejected Williams claim that the trial court denied his jury instruction on mental retardation when he never requested it. The charge did give a definition of “assessment of intelligence” in its special issue, but the Court held that the instructions (as a whole) given on the special issue weren’t inconsistent with the AAMR definition of mental retardation. Judge Womack concurred on this point alone noting that the Court wasn’t considering the issue of whether this instruction set for the law and didn’t summarize or discuss the facts. He also included an ellipses at the end of his quote from the statutory section instead of ending his opinion with “I’m just sayin’,” which probably wouldn’t’ve been very judgey.
Admission of Defendant’s Statements - The Court rejected a claim that Williams statements to the trial court without Miranda warnings should not have been introduced. During the punishment phase of the trial, the State called a jailor to testify that Williams possessed a razor in jail and had threatened to “kill his goddamn self.” Williams said “shit”, and the trial court lost hers. As the trial court upbraided Williams about decorum in the court (outside the presence of the jury), Williams indicated that he didn’t say he was going to kill himself, he said this wasn’t going to look cute. Yes, it was so important for him to point out that the jailer was lying he completely lost sight of the fact that he admitted to having the razor while calling out the officer on the lie. The State introduced this testimony after Williams attorney suggested through cross-examination that Williams never had the razor. The Court held that even if Williams were “in custody”, a statement in open court and in the presence of Williams attorney was not the product of “interrogation” such that it would invoke the protections of Miranda. [Note, under Berry v. State, this is only evidence that he would harm himself and not evidence that he would be a future danger to other prisoners, so I don’t know what all the fuss is about.]
Attacking Over Shoulders of Counsel – Here, the prosecution argued in closing that both prosecutors trying the case had come either from a poor household or a troubled childhood, but that upbringing did not cause either prosecutor to commit capital murder. These comments were specifically directed at discrediting the claims by the defense expert that Williams’ troubled childhood mitigated against the death penalty. Counsel objected, the trial court instructed the jury to disregard, but denied the mistrial. This wasn’t striking at Williams over the shoulders of counsel, and the references to matters outside the record, though unpreserved, had been cured by the trial court’s general instruction to disregard.
Sufficiency of Future Dangerousness – The Court held the evidence was sufficient to establish that Williams was a future danger. He committed a brutal crime, had a criminal history, albeit for benign property crimes, he misbehaved in jail, possessed a razor, and two experts opined he was a future danger.
Previously Rejected Claims – The CCA still holds that a defendant isn’t entitled to a residual doubt instruction and the defendant’s family shouldn’t be entitled to testify about the impact the execution will have on them.
Clifton Williams v. State. Williams beat, stabbed, and choked a 93-year-old woman after breaking into her house with the intent to commit numerous felonies (burglary, robbery, arson). Then, he put her body on the bed and set it on fire. A jury considered the typical special issues and another special, special issue on mental retardation. Williams received a death sentence. He brought six points of error, one big issue and five baby ones.
Mental Retardation – The Court held the evidence was legally sufficient to show that Williams wasn’t mentally retarded. The Court had the opportunity to dodge the issue entirely because Williams provided one record citation in his statement of facts when the relevant testimony could be found over seven different volumes of a reporter’s records. However, the Court decided to sift through the record and consider the merits of the claim, moral hazard be damned. The Court noted that Williams committed the murder, tried to destroy the evidence by setting fire to the victim’s bed, disposed of the murder weapon, destroyed the clothes he was wearing, lied to his family and police about his involvement, and then tried to frame a friend of his minimizing his own participation.
Williams made passing and above-average grades until he dropped out of school in the 12th grade. Williams claimed he was socially promoted. He became a disciplinary problem at around 15, which made his family think he was retarded, though he never got his IQ checked prior to his 18th birthday. He did take special needs classes, but that’s not the same thing as special education. [Duh, needs is like a totally different word than education.] He even got a job working at Kentucky Fried Chicken, handling the cash register and fixing food. [Is it just me, or does it seem like the ability to get a job at a fast-food restaurant is becoming the lynchpin of rebuttals to mental retardation claims?]
The various experts performed their respective retarded or not-retarded incantations before the jury. The first defense expert had evaluated (and approved) Williams for social security benefits and said Williams was mildly mentally retarded with a 63 score (at 19) and maybe even schizophrenic. The expert did admit though that tests showing Williams was working at a fourth-grade education level was contradicted by his ability to get good grades into high school. Another defense expert said Williams showed deficits in adaptive functioning. And another that put Williams IQ at 65. The State presented an expert who opined that Williams wasn’t mentally retarded, noting that his teachers never regarded him as mentally retarded. The State’s expert gave Williams five different tests and all placed Williams’ IQ at above 70 and acknowledged that Williams may have deficits in adaptive behavior, but they were not significant deficits.
The Court determined that the jury rationally rejected Williams mental retardation claim after hearing the testimony of various experts as well as the testimony of teachers, family members, counselors, and mental health providers. [Really? That’s a job? Providing mental health?] Specifically, the jury could’ve rejected Williams’ first expert (who determined Williams was mildly retarded before Williams committed the offense) because his evaluation was based upon incomplete and inaccurate information.
The Court also rejected Williams claim that the trial court denied his jury instruction on mental retardation when he never requested it. The charge did give a definition of “assessment of intelligence” in its special issue, but the Court held that the instructions (as a whole) given on the special issue weren’t inconsistent with the AAMR definition of mental retardation. Judge Womack concurred on this point alone noting that the Court wasn’t considering the issue of whether this instruction set for the law and didn’t summarize or discuss the facts. He also included an ellipses at the end of his quote from the statutory section instead of ending his opinion with “I’m just sayin’,” which probably wouldn’t’ve been very judgey.
Admission of Defendant’s Statements - The Court rejected a claim that Williams statements to the trial court without Miranda warnings should not have been introduced. During the punishment phase of the trial, the State called a jailor to testify that Williams possessed a razor in jail and had threatened to “kill his goddamn self.” Williams said “shit”, and the trial court lost hers. As the trial court upbraided Williams about decorum in the court (outside the presence of the jury), Williams indicated that he didn’t say he was going to kill himself, he said this wasn’t going to look cute. Yes, it was so important for him to point out that the jailer was lying he completely lost sight of the fact that he admitted to having the razor while calling out the officer on the lie. The State introduced this testimony after Williams attorney suggested through cross-examination that Williams never had the razor. The Court held that even if Williams were “in custody”, a statement in open court and in the presence of Williams attorney was not the product of “interrogation” such that it would invoke the protections of Miranda. [Note, under Berry v. State, this is only evidence that he would harm himself and not evidence that he would be a future danger to other prisoners, so I don’t know what all the fuss is about.]
Attacking Over Shoulders of Counsel – Here, the prosecution argued in closing that both prosecutors trying the case had come either from a poor household or a troubled childhood, but that upbringing did not cause either prosecutor to commit capital murder. These comments were specifically directed at discrediting the claims by the defense expert that Williams’ troubled childhood mitigated against the death penalty. Counsel objected, the trial court instructed the jury to disregard, but denied the mistrial. This wasn’t striking at Williams over the shoulders of counsel, and the references to matters outside the record, though unpreserved, had been cured by the trial court’s general instruction to disregard.
Sufficiency of Future Dangerousness – The Court held the evidence was sufficient to establish that Williams was a future danger. He committed a brutal crime, had a criminal history, albeit for benign property crimes, he misbehaved in jail, possessed a razor, and two experts opined he was a future danger.
Previously Rejected Claims – The CCA still holds that a defendant isn’t entitled to a residual doubt instruction and the defendant’s family shouldn’t be entitled to testify about the impact the execution will have on them.
Tuesday, November 25, 2008
The Thanksgiving Episode
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Well, as even My Own Worst Enemy has managed a "Thanksgiving" show, I felt it only appropriate to make a special post in honor of the looming holiday. You may have guessed by my tone that I do not like Thanksgiving. I have nothing against giving thanks. I try to do it as often as I can. But the whole getting together to eat turkey with relatives is not my idea of fun. Every year I wish that the Wampanoag had been ranchers instead of farmers so that the Pilgrims could've eaten steak instead of turkey. And when did the Puritans throw hanging-out-with-distant-unwelcome-relatives into that tradition? I thought the long and hard winter had thinnned out the herd. Couldn't they have been just as thankful to finally be rid of creepy Uncle Todd?
But I come to bury Caesar, not praise him. Wait a minute. Strike that, reverse it. On we go.
Seriously, I thought it only fitting to post a list of what I'm thankful for in anticipation of Thanksgiving. And while I can't name names, or even be sure that the people who I am thankful for would read this, that's never really stopped me before. I guess it's like leaving a lucky penny on the ground. You gotta' figure someone will pick it up and maybe that person will go on to have an incredibly lucky day. Even if you don't get to see them have it or share in their Lottery winnings.
First and foremost I'm thankful for my wife and kids. My kids make me feel dorky and dumb, but my wife still makes me feel funny and smart, so it all balances out. I have many more things I could say, but I'll say that to them.
I am thankful for my extended family who always give me and my family more than I really want them to. And I have to fight with them when I want to return the favor. But without their help, there is no way my wife and I could make it.
I am thankful for my friends. They make me laugh. They make me think. They listen to me. Even when I rant and rave. And they politely shoo me away when they've had enough. But they always keep their doors open to me, a fact that continues to amaze me. I only hope that I return the favor enough to merit a place on their own Thanksgiving lists.
I am thankful for my job. A wise man once told me "jobs are dear", and he couldn't be more right about that in these difficult economic times. But I've been truly blessed in this regard. I not only get paid to do something I love to do, I also work with some incredibly smart and talented people. Not a week goes by that I'm not humbled by some insight into criminal law made by one of my co-workers. If they'd stop shooing me out of their offices, I'd tell them so.
I am thankful for my boss. He's generous with his praise and precise in his advice. He knows everything, but he always manages to make me feel like my points are insightful or inspired and my questions are important. I'm pretty sure the only person who could beat him in a debate or argument is his wife.
I am thankful for the people at TDCAA. I'm sure they take a lot of heat because they can't be all things to all prosecutors, but they sure try hard and come pretty close. They turn out great books and put on great seminars. Some speaker at a TDCAA seminar always inspires me to do a better job. I may not actually do a better job, but at least I return to work inspired to do so. And I get to meet so many prosecutors from all over the State. Texas is big, but it sure doesn't seem like it when you meet someone from the other side of the state that's already handled your exact problem three different ways.
I am thankful for the Texas Court of Criminal Appeals, for reasons I've stated in previous posts.
I am thankful for other criminal law bloggers. Texas criminal law is interesting stuff, and I'm glad we have so many folks out there keeping up the conversation. Had there not been a Grits or a Life at the HCCJC, I wouldn't have gotten started.
I am thankful for defense attorneys. Whatever I say will betray a patronizing naivete that belies my sincerity. So, I'll just say, thank you for holding up your end of the fight. I probably don't truly appreciate the sacrifices you make, and I won't insult you by trying to pretend that I do. I'll leave it at a simple thank you.
And I'm thankful for John Bradley. That's right. District Attorney of Williamson County, John Bradley. The only blogger without a blog. I figured he's the only person I could call out by name. Without a DA as outspoken and engaged in the tough debates across Texas, I'd never be able to write this blog. True, he can sound like Adam Schiff when dispensing advice. But he puts himself out there, and he's smart and articulate enough to credibly answer the tough questions (and parry the trick ones). With him out there, it is easier for other prosecutors to do so as well. He's so ubiquitous that you tend to forget that he probably takes a lot more heat then he receives praise or thanks. [Although, he may be getting some form of stipend from Apple Computers, so maybe it's not entirely altruistic.] So, I thought I'd wind down my Thanksgiving post with a special thanks to him. Thank you Mr. Bradley, for all you do. I couldn't do it. I'm glad you took it upon yourself.
But no, that's not quite the end. I'd like to close by thanking my readers for dropping in from time to time. As Steve Martin once said of his audience, "without you, I'd only be myself." Thank you for the privilege of letting me bend your ear. I hope that you have many reasons big and small to be thankful this holiday season, and I hope you share your thanks with those who gave you cause for it. Have a safe and happy Thanksgiving.
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Well, as even My Own Worst Enemy has managed a "Thanksgiving" show, I felt it only appropriate to make a special post in honor of the looming holiday. You may have guessed by my tone that I do not like Thanksgiving. I have nothing against giving thanks. I try to do it as often as I can. But the whole getting together to eat turkey with relatives is not my idea of fun. Every year I wish that the Wampanoag had been ranchers instead of farmers so that the Pilgrims could've eaten steak instead of turkey. And when did the Puritans throw hanging-out-with-distant-unwelcome-relatives into that tradition? I thought the long and hard winter had thinnned out the herd. Couldn't they have been just as thankful to finally be rid of creepy Uncle Todd?
But I come to bury Caesar, not praise him. Wait a minute. Strike that, reverse it. On we go.
Seriously, I thought it only fitting to post a list of what I'm thankful for in anticipation of Thanksgiving. And while I can't name names, or even be sure that the people who I am thankful for would read this, that's never really stopped me before. I guess it's like leaving a lucky penny on the ground. You gotta' figure someone will pick it up and maybe that person will go on to have an incredibly lucky day. Even if you don't get to see them have it or share in their Lottery winnings.
First and foremost I'm thankful for my wife and kids. My kids make me feel dorky and dumb, but my wife still makes me feel funny and smart, so it all balances out. I have many more things I could say, but I'll say that to them.
I am thankful for my extended family who always give me and my family more than I really want them to. And I have to fight with them when I want to return the favor. But without their help, there is no way my wife and I could make it.
I am thankful for my friends. They make me laugh. They make me think. They listen to me. Even when I rant and rave. And they politely shoo me away when they've had enough. But they always keep their doors open to me, a fact that continues to amaze me. I only hope that I return the favor enough to merit a place on their own Thanksgiving lists.
I am thankful for my job. A wise man once told me "jobs are dear", and he couldn't be more right about that in these difficult economic times. But I've been truly blessed in this regard. I not only get paid to do something I love to do, I also work with some incredibly smart and talented people. Not a week goes by that I'm not humbled by some insight into criminal law made by one of my co-workers. If they'd stop shooing me out of their offices, I'd tell them so.
I am thankful for my boss. He's generous with his praise and precise in his advice. He knows everything, but he always manages to make me feel like my points are insightful or inspired and my questions are important. I'm pretty sure the only person who could beat him in a debate or argument is his wife.
I am thankful for the people at TDCAA. I'm sure they take a lot of heat because they can't be all things to all prosecutors, but they sure try hard and come pretty close. They turn out great books and put on great seminars. Some speaker at a TDCAA seminar always inspires me to do a better job. I may not actually do a better job, but at least I return to work inspired to do so. And I get to meet so many prosecutors from all over the State. Texas is big, but it sure doesn't seem like it when you meet someone from the other side of the state that's already handled your exact problem three different ways.
I am thankful for the Texas Court of Criminal Appeals, for reasons I've stated in previous posts.
I am thankful for other criminal law bloggers. Texas criminal law is interesting stuff, and I'm glad we have so many folks out there keeping up the conversation. Had there not been a Grits or a Life at the HCCJC, I wouldn't have gotten started.
I am thankful for defense attorneys. Whatever I say will betray a patronizing naivete that belies my sincerity. So, I'll just say, thank you for holding up your end of the fight. I probably don't truly appreciate the sacrifices you make, and I won't insult you by trying to pretend that I do. I'll leave it at a simple thank you.
And I'm thankful for John Bradley. That's right. District Attorney of Williamson County, John Bradley. The only blogger without a blog. I figured he's the only person I could call out by name. Without a DA as outspoken and engaged in the tough debates across Texas, I'd never be able to write this blog. True, he can sound like Adam Schiff when dispensing advice. But he puts himself out there, and he's smart and articulate enough to credibly answer the tough questions (and parry the trick ones). With him out there, it is easier for other prosecutors to do so as well. He's so ubiquitous that you tend to forget that he probably takes a lot more heat then he receives praise or thanks. [Although, he may be getting some form of stipend from Apple Computers, so maybe it's not entirely altruistic.] So, I thought I'd wind down my Thanksgiving post with a special thanks to him. Thank you Mr. Bradley, for all you do. I couldn't do it. I'm glad you took it upon yourself.
But no, that's not quite the end. I'd like to close by thanking my readers for dropping in from time to time. As Steve Martin once said of his audience, "without you, I'd only be myself." Thank you for the privilege of letting me bend your ear. I hope that you have many reasons big and small to be thankful this holiday season, and I hope you share your thanks with those who gave you cause for it. Have a safe and happy Thanksgiving.
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Labels:
grits for breakfast,
John Bradley,
Thanksgiving
Wednesday, November 19, 2008
Issues Granted - 11/19/08
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Christopher Irby v. State. The CCA granted Irby’s petition for discretionary review with oral argument in this Dallas County sexual assault of a child case. Here’s the issue:
The Dallas Court of Appeals affirmed in an unpublished opinion. It’s a fairly sordid case that details how Irby performed oral sex on a sixteen-year-old boy, at first after getting the boy drunk, and then on later occasions after offering to pay the boy for the privilege of doing so. Irby made a number of challenges, but the one that the CCA took centered on the trial court’s denial of Irby’s right to cross-examine the victim. As you can see above, Irby sought to cross-examine the victim regarding his juvenile deferred adjudication status for aggravated assault based on the perennial Davis v. Alaska. The court of appeals affirmed the denial because it felt there was no causal relationship between the victim’s status as a probationer and his testimony at trial. He may have had a “vulnerable relationship” with the State, but there was nothing else to indicate potential bias in his testimony. No dissenting opinions.
Thai Ngoc Nguyen v. State. The CCA granted the State’s petition for discretionary review without oral argument in this Dallas County hindering apprehension case. Here are the issues:
The Dallas Court of Appeals reversed and remanded in an unpublished opinion based the erroneous admission of Nguyen’s surreptitiously recorded audio statement. Police stopped Nguyen on traffic offenses. Nguyen was driving a car owned by the passenger, Sanchez. Sanchez agreed to a search of the car and the police found methamphetamine. Police arrested Sanchez, who denied the drugs were his. Police also arrested Nguyen on the traffic offenses and started reading him his rights. Nguyen interrupted stating he wanted a lawyer, and the officer placed him in the backseat of the patrol car with Sanchez without completing his recitation of his statutory warnings. Sanchez immediately began pleading with Nguyen to take the blame for the drugs. Nguyen was hesitant at first, but both men yelled for the officer to come over to the patrol car. The officer said he couldn’t talk to them and went back to Sanchez’s car. They called for the officer again. During this second interlude, Sanchez repeatedly denied the drugs were his, and Nguyen agreed but did not claim ownership. Officer Johnson responded: “Well, you can tell me that all night long. You already told me that you wanted an attorney. I'm not going to ask you any questions about that. If you want to tell me that's your stuff, then tell me that's your stuff.” Again, Nguyen responded that “it's not his.” Finally, Officer Johnson told Nguyen, “Do you not understand what I'm saying? If you, if you want to tell me that that's your meth, then tell me that's your stuff. Other than that, it's his.” Nguyen responded, “Honestly, I don't want to, but it's mine. Okay?” Another search of the car revealed some ecstasy in a compartment containing Sanchez’s wallet. Nguyen was not charged with possession of methamphetamine, he was charged with hindering arrest for claiming the methamphetamine was his. The court of appeals held that the statement should have been suppressed because Nguyen’s statements were not taken in strict compliance with the warning requirements of article 38.22. The officer’s statements were clearly designed to elicit an incriminating response. Even though Nguyen initiated the conversation, he was nevertheless subjected to interrogation while in custody. He was therefore entitled to the protections of Miranda and article 38.22. No dissenting opinions. [Interesting case, and not just because it involves a surreptitious video of defendants in the back seat of a patrol car. The State isn’t offering the statements as a confession but as the criminal act itself. It wouldn’t be suppressed as evidence under Article 38.23 because it’s an illegal act that occurs after the police illegality a la State v. Mayorga. However, the court of appeals suppressed it under Article 38.22. I have no idea what it means, but I thought it was interesting.]
Eric Sakil v. State. The CCA granted the State’s petition for discretionary review without oral argument in this El Paso County domestic violence assault case. Here are the issues:
The El Paso Court of Appeals reversed and remanded because the trial court put a voluntary intoxication definition in the jury charge. Basically, Sakil and his wife got into a fight over the paternity of one of their kids and she locked him out of the house. When he broke the door down to get back in, a piece of the broken door cut her face. Sakil had a history of substance abuse, but he had been in jail for a week prior to the assault. The victim had also stated on the 911 call that Sakil was not intoxicated. However, the trial court included the instruction sua sponte because there was evidence that Sakil had been exhibiting symptoms around the time of the offense that suggested he had started using speed again. And because the abstract definition placed a burden on Sakil to show he wasn’t intoxicated, the error was harmful. [Really, the last question nails it. How was he harmed by an abstract definition when there wasn’t any evidence of intoxication and no one argued that he was intoxicated? I mean really, if the defendant is objecting to the inclusion of the charge because there was no evidence of intoxication, how can he argue to the jury that he didn’t form the requisite mental state because he was intoxicated? In order to make that argument there’d have to be some evidence of . . . wait for it . . . intoxication.]
Brunshae Steadman v. State. The CCA granted the State’s petition for discretionary review without oral argument in this aggravated sexual assault case from Coryell County. Here is the issue:
Yeah, that sounds about like the Waco Court of Appeals. This case involved two separate cases of aggravated sexual assault, one alleging penetration with a finger and the other alleging penetration with a sexual organ. The Waco Court of Appeals affirmed the conviction based upon penetration with a finger, but held the evidence factually insufficient to establish penetration with a sexual organ and reversed. According to the court, the victim only said the defendant placed his penis on her vagina, and the irritation to the hymen and her contracting gonorrhea was apparently as consistent with touching as it was with penetration. Chief Justice Gray concurred with the opinion affirming the digital penetration, but dissented with the portion of the opinion holding the evidence of sexual organ penetration factually insufficient. No opinion, just a note. [Note: The State Prosecuting Attorney filed the PDR in this one. The fact that the CCA granted discretionary review on a factual sufficiency case (to redefine or clarify the standard of review for factual sufficiency . . . again) does not bode well for Steadman. Note 2: The CCA’s website lists the underlying cause number as 01-07-00105-CR, but the correct court of appeals cause number is 10-07-00105-CR as the case belongs to the Tenth Court of Appeals. This shouldn’t affect my dear readers who can access the correct info through the thoughtfully provided hyperlinks.]
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Christopher Irby v. State. The CCA granted Irby’s petition for discretionary review with oral argument in this Dallas County sexual assault of a child case. Here’s the issue:
Whether the court of appeals properly applied the Sixth Amendment, as interpreted by the United States Supreme Court, to the question of whether the trial court’s refusal to permit the victim to be cross-examined about a case for which he was on probation violated Appellant’s constitutional rights to confrontation.
The Dallas Court of Appeals affirmed in an unpublished opinion. It’s a fairly sordid case that details how Irby performed oral sex on a sixteen-year-old boy, at first after getting the boy drunk, and then on later occasions after offering to pay the boy for the privilege of doing so. Irby made a number of challenges, but the one that the CCA took centered on the trial court’s denial of Irby’s right to cross-examine the victim. As you can see above, Irby sought to cross-examine the victim regarding his juvenile deferred adjudication status for aggravated assault based on the perennial Davis v. Alaska. The court of appeals affirmed the denial because it felt there was no causal relationship between the victim’s status as a probationer and his testimony at trial. He may have had a “vulnerable relationship” with the State, but there was nothing else to indicate potential bias in his testimony. No dissenting opinions.
Thai Ngoc Nguyen v. State. The CCA granted the State’s petition for discretionary review without oral argument in this Dallas County hindering apprehension case. Here are the issues:
1. Did the alleged violation of Article 38.22 render a subsequent confession to a different crime inadmissible?
2. Did the court of appeals apply the proper standard of review for a motion to suppress?
The Dallas Court of Appeals reversed and remanded in an unpublished opinion based the erroneous admission of Nguyen’s surreptitiously recorded audio statement. Police stopped Nguyen on traffic offenses. Nguyen was driving a car owned by the passenger, Sanchez. Sanchez agreed to a search of the car and the police found methamphetamine. Police arrested Sanchez, who denied the drugs were his. Police also arrested Nguyen on the traffic offenses and started reading him his rights. Nguyen interrupted stating he wanted a lawyer, and the officer placed him in the backseat of the patrol car with Sanchez without completing his recitation of his statutory warnings. Sanchez immediately began pleading with Nguyen to take the blame for the drugs. Nguyen was hesitant at first, but both men yelled for the officer to come over to the patrol car. The officer said he couldn’t talk to them and went back to Sanchez’s car. They called for the officer again. During this second interlude, Sanchez repeatedly denied the drugs were his, and Nguyen agreed but did not claim ownership. Officer Johnson responded: “Well, you can tell me that all night long. You already told me that you wanted an attorney. I'm not going to ask you any questions about that. If you want to tell me that's your stuff, then tell me that's your stuff.” Again, Nguyen responded that “it's not his.” Finally, Officer Johnson told Nguyen, “Do you not understand what I'm saying? If you, if you want to tell me that that's your meth, then tell me that's your stuff. Other than that, it's his.” Nguyen responded, “Honestly, I don't want to, but it's mine. Okay?” Another search of the car revealed some ecstasy in a compartment containing Sanchez’s wallet. Nguyen was not charged with possession of methamphetamine, he was charged with hindering arrest for claiming the methamphetamine was his. The court of appeals held that the statement should have been suppressed because Nguyen’s statements were not taken in strict compliance with the warning requirements of article 38.22. The officer’s statements were clearly designed to elicit an incriminating response. Even though Nguyen initiated the conversation, he was nevertheless subjected to interrogation while in custody. He was therefore entitled to the protections of Miranda and article 38.22. No dissenting opinions. [Interesting case, and not just because it involves a surreptitious video of defendants in the back seat of a patrol car. The State isn’t offering the statements as a confession but as the criminal act itself. It wouldn’t be suppressed as evidence under Article 38.23 because it’s an illegal act that occurs after the police illegality a la State v. Mayorga. However, the court of appeals suppressed it under Article 38.22. I have no idea what it means, but I thought it was interesting.]
Eric Sakil v. State. The CCA granted the State’s petition for discretionary review without oral argument in this El Paso County domestic violence assault case. Here are the issues:
1. Does a trial court err by submitting a jury charge that voluntary intoxication is not a defense to prosecution when the evidence at trial does not affirmatively show that the defendant was intoxicated?
2. Did the court of appeals err by holding that there was no evidence from any source that might lead a jury to conclude that the defendant’s intoxication somehow excused his actions?
3. Does a trial court’s submission of a jury charge that voluntary intoxication is not a defense to prosecution “create a presumption that an intoxicated person has the requisite mental state, thus relieving the State of proving the elements of the offense?”
4. Did the submission of an inapplicable, superfluous jury instruction cause some harm to Appellant?
The El Paso Court of Appeals reversed and remanded because the trial court put a voluntary intoxication definition in the jury charge. Basically, Sakil and his wife got into a fight over the paternity of one of their kids and she locked him out of the house. When he broke the door down to get back in, a piece of the broken door cut her face. Sakil had a history of substance abuse, but he had been in jail for a week prior to the assault. The victim had also stated on the 911 call that Sakil was not intoxicated. However, the trial court included the instruction sua sponte because there was evidence that Sakil had been exhibiting symptoms around the time of the offense that suggested he had started using speed again. And because the abstract definition placed a burden on Sakil to show he wasn’t intoxicated, the error was harmful. [Really, the last question nails it. How was he harmed by an abstract definition when there wasn’t any evidence of intoxication and no one argued that he was intoxicated? I mean really, if the defendant is objecting to the inclusion of the charge because there was no evidence of intoxication, how can he argue to the jury that he didn’t form the requisite mental state because he was intoxicated? In order to make that argument there’d have to be some evidence of . . . wait for it . . . intoxication.]
Brunshae Steadman v. State. The CCA granted the State’s petition for discretionary review without oral argument in this aggravated sexual assault case from Coryell County. Here is the issue:
The court of appeals erred in cherry-picking the appellate record for evidence that was consistent with a finding of factual insufficiency, rather than considering all the evidence, both express and inferential, in a neutral light. Discretinary review is warranted because the court of appeals decided an important point of state law that is in conflict with applicable decisions of this Court, and that calls for the exercise of this Court’s supervisory power. See, TEX. R. APP. P. 66.3(C) AND (F).
Yeah, that sounds about like the Waco Court of Appeals. This case involved two separate cases of aggravated sexual assault, one alleging penetration with a finger and the other alleging penetration with a sexual organ. The Waco Court of Appeals affirmed the conviction based upon penetration with a finger, but held the evidence factually insufficient to establish penetration with a sexual organ and reversed. According to the court, the victim only said the defendant placed his penis on her vagina, and the irritation to the hymen and her contracting gonorrhea was apparently as consistent with touching as it was with penetration. Chief Justice Gray concurred with the opinion affirming the digital penetration, but dissented with the portion of the opinion holding the evidence of sexual organ penetration factually insufficient. No opinion, just a note. [Note: The State Prosecuting Attorney filed the PDR in this one. The fact that the CCA granted discretionary review on a factual sufficiency case (to redefine or clarify the standard of review for factual sufficiency . . . again) does not bode well for Steadman. Note 2: The CCA’s website lists the underlying cause number as 01-07-00105-CR, but the correct court of appeals cause number is 10-07-00105-CR as the case belongs to the Tenth Court of Appeals. This shouldn’t affect my dear readers who can access the correct info through the thoughtfully provided hyperlinks.]
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This Is For My Homies
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Okay, maybe we aren't homies in the strictest sense of the word, but I wanted to give a shout out to two bloggers that have recognized me on their blog.
Don Cruse, an appellate lawyer in Austin, maintains a blog for the other court of last resort in Texas, the Supreme Court of Texas. It's called the Supreme Court of Texas blog and you can find it at www.scotxblog.com. Of course, he got started on his blog long before I got started on mine, but I didn't know it until I searched law blogs at justia.com and saw that he'd done a post about my site. So, I felt I should return the favor. If you ever find yourself dabbling in civil law, it's a great resource, so check it out. [I've also included a link to his site on my blog list.]
Another blog that many of my regular readers probably already know about is maintained by A Harris County Lawyer. The site is one of the few prosecutor blogs in Texas, and I was motivated by his example. It's called Life at the Harris County Criminal Justice Center and you can find it at www.harriscountycriminaljustice.blogspot.com. AHCL was kind enough to post information about my blog when I requested it, and frankly, it's a pretty popular blog, so I didn't figure my posting about AHCL's site would be nearly as magnanimous coming from a nobody like mysef. However, on the off-chance that one or two people wandered in here unaware of AHCL's site and you'll like a behind the scenes glimpse at the Harris County DA's office, it's worth the jump. It's very entertaining (and even touching and inspiring at times). I've had a link to AHCL's site since this site's inception.
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Okay, maybe we aren't homies in the strictest sense of the word, but I wanted to give a shout out to two bloggers that have recognized me on their blog.
Don Cruse, an appellate lawyer in Austin, maintains a blog for the other court of last resort in Texas, the Supreme Court of Texas. It's called the Supreme Court of Texas blog and you can find it at www.scotxblog.com. Of course, he got started on his blog long before I got started on mine, but I didn't know it until I searched law blogs at justia.com and saw that he'd done a post about my site. So, I felt I should return the favor. If you ever find yourself dabbling in civil law, it's a great resource, so check it out. [I've also included a link to his site on my blog list.]
Another blog that many of my regular readers probably already know about is maintained by A Harris County Lawyer. The site is one of the few prosecutor blogs in Texas, and I was motivated by his example. It's called Life at the Harris County Criminal Justice Center and you can find it at www.harriscountycriminaljustice.blogspot.com. AHCL was kind enough to post information about my blog when I requested it, and frankly, it's a pretty popular blog, so I didn't figure my posting about AHCL's site would be nearly as magnanimous coming from a nobody like mysef. However, on the off-chance that one or two people wandered in here unaware of AHCL's site and you'll like a behind the scenes glimpse at the Harris County DA's office, it's worth the jump. It's very entertaining (and even touching and inspiring at times). I've had a link to AHCL's site since this site's inception.
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Labels:
bloggers,
other sites
Obligatory Dude-Got-A-Stay Post
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I went back and forth on posting something on this last night, but decided to wait for the order to come up. It did this morning, so here's the post.
In a 5-4, per curiam, unpublished opinion, the CCA granted a stay of execution in Ex parte Cathey. Follow the hyperlink for the opinion. (I looked for the original opinions on the direct appeal and the writ, but they are so old that I couldn't access them from the website.) Cathey got the stay because he claims he's mentally retarded and he wants a hearing to prove it. Four judges would've dismissed the application (Keller, P.J., and Meyers, Keasler, Hervey, JJ.)
Interestingly, the Court sent it back for a hearing with instructions for a specific inquiry into the "Flynn effect". Here are the questions they want considered by the trial court at the hearing:
(1) the scientific validity and reliability of the "Flynn effect";
(2) whether clinical practitioners who are ordinarily called upon to diagnose mental retardation for purposes outside of the criminal justice system use and apply the "Flynn effect" to I.Q. test results when making their particularized diagnoses of mental retardation;
(3) whether the application of the "Flynn effect" to individual test results is generally accepted scientific procedure in the pertinent professional community outside of the criminal justice system; and
(4) the known or potential "error rate" of the "Flynn effect" as it applies to a specific I.Q. test result.
I don't profess to be an expert on the Flynn effect (other than knowing it has nothing to do with Tron - and for those who followed the link, how scary is a TronWiki site?). As I understand it, I.Q. tests are re-normalized every so often and defense attorneys try to use evidence that a given test is either due for an oil change or almost due for one to argue that a borderline test should actually be read as a below 70. I don't know enough about it to credibly discount this application of effect. Are we getting smarter, or are we just getting more and more adept at taking standardized tests? I don't know. Perhaps, I should just lump it all as "psycho babble" as smarter men than me have done.
This one resulted in kind of a late ruling, which makes me a little sad for Rule 08-101.
And if you want some links to news stories here you go.
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I went back and forth on posting something on this last night, but decided to wait for the order to come up. It did this morning, so here's the post.
In a 5-4, per curiam, unpublished opinion, the CCA granted a stay of execution in Ex parte Cathey. Follow the hyperlink for the opinion. (I looked for the original opinions on the direct appeal and the writ, but they are so old that I couldn't access them from the website.) Cathey got the stay because he claims he's mentally retarded and he wants a hearing to prove it. Four judges would've dismissed the application (Keller, P.J., and Meyers, Keasler, Hervey, JJ.)
Interestingly, the Court sent it back for a hearing with instructions for a specific inquiry into the "Flynn effect". Here are the questions they want considered by the trial court at the hearing:
(1) the scientific validity and reliability of the "Flynn effect";
(2) whether clinical practitioners who are ordinarily called upon to diagnose mental retardation for purposes outside of the criminal justice system use and apply the "Flynn effect" to I.Q. test results when making their particularized diagnoses of mental retardation;
(3) whether the application of the "Flynn effect" to individual test results is generally accepted scientific procedure in the pertinent professional community outside of the criminal justice system; and
(4) the known or potential "error rate" of the "Flynn effect" as it applies to a specific I.Q. test result.
I don't profess to be an expert on the Flynn effect (other than knowing it has nothing to do with Tron - and for those who followed the link, how scary is a TronWiki site?). As I understand it, I.Q. tests are re-normalized every so often and defense attorneys try to use evidence that a given test is either due for an oil change or almost due for one to argue that a borderline test should actually be read as a below 70. I don't know enough about it to credibly discount this application of effect. Are we getting smarter, or are we just getting more and more adept at taking standardized tests? I don't know. Perhaps, I should just lump it all as "psycho babble" as smarter men than me have done.
This one resulted in kind of a late ruling, which makes me a little sad for Rule 08-101.
And if you want some links to news stories here you go.
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Wednesday, November 12, 2008
Today's Orders and Issues
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I called to verify, no opinions, orders, or issues granted this Wednesday.
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I called to verify, no opinions, orders, or issues granted this Wednesday.
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Labels:
hand down list,
no new issues,
no orders,
unpublished only
Friday, November 7, 2008
GlenRothgery, Glen Ross
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Second prize is a set of steak knives.
Obviously, Rothgery v. Gillespie County makes me think of Mamet's Glengary Glen Ross because the name sounds familiar. There's a "Gary" in both, and "Roth" is close to "Roth", so what if they're in the wrong order. But the more I think about it, they're similar in another way. Glengary Glen Ross is a stirring play that I've always felt sounds more important than it ultimately is. The dialogue is great, but who cares about Shelly Levine, the ostensible main character. Does he change anything/himself in the play? Us? (I know, who am I to critique the significance of the great David Mamet? Good, bad, I'm the guy with the blog.)
And THAT's what reminds me of Rothgery, REALLY reminds me of Rothgery, the sneaking suspicion I'm looking at a small case dressed up like a big one. The case feels like it should have more of an impact that it actually does. I mean, you instinctively want to divide confession cases into pre- and post-Rothgery piles, until you realize that Rothgery probably didn't change anything. Did SCOTUS just give us a set of steak knives? [Note, I don't mean to be disrespectful of Mr. Mamet as I'm sure he can kick my ass. I'm just drawing an oblique analogy.]
Just to recap, police arrested Walter Rothgery and charged him with felon in possession of a firearm based upon erroneous criminal history information. At his Article 15.17 hearing, a magistrate determined probable cause, informed Rothgery of the charges against him and his right to an attorney, and set his bail. In other words, he was magistrated. Rothgery requested appointed counsel, but waived counsel when he was told it might hold up his getting bail. He was released on bail without the appointment of counsel. Several months later, a grand jury indicted Rothgery and he was re-arrested and given a higher bail. Counsel was appointed; counsel got the bail reduced; and counsel assembled the paperwork to establish that Rothgery had never before been convicted of a felony. He filed a §1983 action claiming he was prejudiced by Gillespie County's failure to appoint counsel without unnecessary delay. The Fifth Circuit got rid of the case on the ground that Rothgery's Sixth Amendment right to counsel hadn't attached, yet.
SCOTUS (after a long and winding appellate road) ultimately determined that the Article 15.17 hearing was essentially an initial appearance like in Michigan v. Jackson, and Rothgery's Sixth Amendment right to counsel had attached. SCOTUS specifically didn't want to suggest an opinion on whether Rothgery was actually entitled to have an attorney at the Article 15.17 hearing or whether he was prejudiced by the delayed appointment. Rather, SCOTUS seemed to be trying to craft the narrowest possible opinion despite the potential build up to the decision. Given this limited holding, what does this opinion mean going forward?
Well, it would seem that the request for appointment of counsel at the Article 15.17 hearing would invoke the Sixth Amendment right to counsel. But, we kind of already knew that in Texas. We definitely knew that if a defendant is appointed counsel at such a hearing, the State can't interfere with that relationship unless the defendant initiates contact. Conversely, if the defendant doesn't request an attorney at that Article 15.17 hearing, the State can question him even if he's been indicted, just so long as he's willing to talk to the police. And finally, if the defendant invokes the Sixth Amendment right at an Article 15.17 hearing (or another type of initial appearance), a mere waiver of his rights pursuant to being read his Miranda warnings only waives the Fifth Amendment rights, not those under the Sixth.
So, nothing's changed, right?
Well, Pecina v. State seems to make clear that there's absolutely no wiggle room once a defendant requests an appointment, even if the invocation may be ambiguous to the magistrate. This does go a step further than Rothgery, which only dealt with the attachment of the right. This case seems to fall between Michigan v. Jackson dealt with police initiating contact at arraignment where the invocation of the right was unequivocal and Patterson v. Illinois where the right wasn't even invoked. (It's definitely short of Brewer v. Williams where the police interfered with an established attorney-client relationship.)
The Fort Worth court of appeals affirmed in the underlying opinion by framing the issue as the defendant voluntarily re-initiated contact with the police. Citing to essentially dicta in Patterson v. Illinois and the holding in Holloway v. State, the court of appeals noted that once the relationship is established, it can't be interfered with without counsel present.
The CCA agreed with the lower court that the right had attached, but held that Pecina did not initiate contact with police. The police went over there to speak with him at arraignment. His conduct was passive, responding to questioning rather than affirmatively seeking a discussion with police (as the defendant in State v. Maldonado had). Regardless of the clarifying questions by the magistrate, this case seems to expand previous case law to cover interference with a still forming attorney-client relationship.
So I don't know, maybe Pecina is like Rothgery in that both seem like they are saying something when they aren't doing anything but following existing law. Maybe it's my desire for a different result that makes me see an expansion that may not actually exist. While I'm troubled by the idea (as apparently Presiding Judge Keller is as well) that this case may suggest a neutral magistrate can't ask clarifying questions, characterizing Pecina's responses as unambiguous does appear to necessitate the outcome reached by the Court. Unfortunately for the State, there's no set of steakknives for second place.
But regardless of whether Rothgery affects a change in the law, after Pecina it seems clear that police question at their peril defendants who have asked for appointment of counsel at magistration. Both cases provide police with extra incentive to complete their investigation prior to arraignment and try to get non-custodial statements from defendants. It sidesteps Fifth and Sixth Amendment issues pretty nicely.
At least that hasn't changed.
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Second prize is a set of steak knives.
Obviously, Rothgery v. Gillespie County makes me think of Mamet's Glengary Glen Ross because the name sounds familiar. There's a "Gary" in both, and "Roth" is close to "Roth", so what if they're in the wrong order. But the more I think about it, they're similar in another way. Glengary Glen Ross is a stirring play that I've always felt sounds more important than it ultimately is. The dialogue is great, but who cares about Shelly Levine, the ostensible main character. Does he change anything/himself in the play? Us? (I know, who am I to critique the significance of the great David Mamet? Good, bad, I'm the guy with the blog.)
And THAT's what reminds me of Rothgery, REALLY reminds me of Rothgery, the sneaking suspicion I'm looking at a small case dressed up like a big one. The case feels like it should have more of an impact that it actually does. I mean, you instinctively want to divide confession cases into pre- and post-Rothgery piles, until you realize that Rothgery probably didn't change anything. Did SCOTUS just give us a set of steak knives? [Note, I don't mean to be disrespectful of Mr. Mamet as I'm sure he can kick my ass. I'm just drawing an oblique analogy.]
Just to recap, police arrested Walter Rothgery and charged him with felon in possession of a firearm based upon erroneous criminal history information. At his Article 15.17 hearing, a magistrate determined probable cause, informed Rothgery of the charges against him and his right to an attorney, and set his bail. In other words, he was magistrated. Rothgery requested appointed counsel, but waived counsel when he was told it might hold up his getting bail. He was released on bail without the appointment of counsel. Several months later, a grand jury indicted Rothgery and he was re-arrested and given a higher bail. Counsel was appointed; counsel got the bail reduced; and counsel assembled the paperwork to establish that Rothgery had never before been convicted of a felony. He filed a §1983 action claiming he was prejudiced by Gillespie County's failure to appoint counsel without unnecessary delay. The Fifth Circuit got rid of the case on the ground that Rothgery's Sixth Amendment right to counsel hadn't attached, yet.
SCOTUS (after a long and winding appellate road) ultimately determined that the Article 15.17 hearing was essentially an initial appearance like in Michigan v. Jackson, and Rothgery's Sixth Amendment right to counsel had attached. SCOTUS specifically didn't want to suggest an opinion on whether Rothgery was actually entitled to have an attorney at the Article 15.17 hearing or whether he was prejudiced by the delayed appointment. Rather, SCOTUS seemed to be trying to craft the narrowest possible opinion despite the potential build up to the decision. Given this limited holding, what does this opinion mean going forward?
Well, it would seem that the request for appointment of counsel at the Article 15.17 hearing would invoke the Sixth Amendment right to counsel. But, we kind of already knew that in Texas. We definitely knew that if a defendant is appointed counsel at such a hearing, the State can't interfere with that relationship unless the defendant initiates contact. Conversely, if the defendant doesn't request an attorney at that Article 15.17 hearing, the State can question him even if he's been indicted, just so long as he's willing to talk to the police. And finally, if the defendant invokes the Sixth Amendment right at an Article 15.17 hearing (or another type of initial appearance), a mere waiver of his rights pursuant to being read his Miranda warnings only waives the Fifth Amendment rights, not those under the Sixth.
So, nothing's changed, right?
Well, Pecina v. State seems to make clear that there's absolutely no wiggle room once a defendant requests an appointment, even if the invocation may be ambiguous to the magistrate. This does go a step further than Rothgery, which only dealt with the attachment of the right. This case seems to fall between Michigan v. Jackson dealt with police initiating contact at arraignment where the invocation of the right was unequivocal and Patterson v. Illinois where the right wasn't even invoked. (It's definitely short of Brewer v. Williams where the police interfered with an established attorney-client relationship.)
The Fort Worth court of appeals affirmed in the underlying opinion by framing the issue as the defendant voluntarily re-initiated contact with the police. Citing to essentially dicta in Patterson v. Illinois and the holding in Holloway v. State, the court of appeals noted that once the relationship is established, it can't be interfered with without counsel present.
The CCA agreed with the lower court that the right had attached, but held that Pecina did not initiate contact with police. The police went over there to speak with him at arraignment. His conduct was passive, responding to questioning rather than affirmatively seeking a discussion with police (as the defendant in State v. Maldonado had). Regardless of the clarifying questions by the magistrate, this case seems to expand previous case law to cover interference with a still forming attorney-client relationship.
So I don't know, maybe Pecina is like Rothgery in that both seem like they are saying something when they aren't doing anything but following existing law. Maybe it's my desire for a different result that makes me see an expansion that may not actually exist. While I'm troubled by the idea (as apparently Presiding Judge Keller is as well) that this case may suggest a neutral magistrate can't ask clarifying questions, characterizing Pecina's responses as unambiguous does appear to necessitate the outcome reached by the Court. Unfortunately for the State, there's no set of steakknives for second place.
But regardless of whether Rothgery affects a change in the law, after Pecina it seems clear that police question at their peril defendants who have asked for appointment of counsel at magistration. Both cases provide police with extra incentive to complete their investigation prior to arraignment and try to get non-custodial statements from defendants. It sidesteps Fifth and Sixth Amendment issues pretty nicely.
At least that hasn't changed.
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Issues Granted - 11/5/08
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Oralia Gollihar v. State. The CCA granted Gollihar’s petition for discretionary review without oral argument in this Bandera County tampering with a governmental record case. Here’s the issue:
You can read the underlying opinion here. This was a State’s appeal from the trial court’s order quashing the indictment in a case where the defendant appears to have presented a tampered with insurance card. The trial court granted the motion to quash specifically because (as you might have guessed) it felt that a police officer can’t be defrauded in a tampering case. The court of appeals rejected the expected in pari materia argument comparing tampering with presenting a false insurance card because tampering requires intent to defraud and both offenses have different penalties. [At first glance, I’d be like “gulp” upon seeing that the CCA had granted this without oral argument. But, this is typical of the type of hobgoblin charging dilemma the Court likes to reach down for. And it will require the use of grammar. So, maybe it’s still to earlier to tell if the Court’s really saying something by taking this case.]
Raymond Murray v. State. The CCA also granted the State’s petition for discretionary review with oral argument in this Harris County forgery case. Here are the issues:
You can read the underlying opinion here. Murray was charged by indictment with the felony offense of false statement to obtain credit, but through plea-bargain negotiation, he agreed to plead to misdemeanor forgery. He plead guilty, avoided a trial, but then, before the court could enter the judgment on the agreement, Murray sought to withdraw his plea because he believed the judgment would be void as forgery is not a lesser-included offense of false statement to obtain credit. The trial court disagreed and denied the motion. The court of appeals applied the cognate-pleading approach set out in Hall v. State and determined that misdemeanor forgery was not a lesser-included offense of false statement to obtain credit. The court also held that Murray wasn’t stopped from complaining about the plea because the trial court enforced the judgment over objection, and Murray didn’t get a benefit from the plea bargain that he’d objected to. [This is a straight up policy question for the CCA, do they want to allow greater or lesser flexibility for parties to craft plea bargain agreements. Frankly, the State could probably have crafted a question like “Cough, cough, cognate pleadings and plea bargains, cough, cough” and this would’ve been granted. The Court's had some big cases on both plea bargains recently and the ink's still kind of wet (kind of) on the cognate-pleading doctrine. But the ADA handling it in the court of appeals did an excellent job of focusing the issues in the case to specifically target the case for the CCA. Pretty nifty appellate work here by Don Rogers of Harris County.]
You can also read Presiding Judge Keller's dissent to Hall here. (Note, she seems to lean towards estoppel in her dissent.) You can read Judge Hervey's dissent (joined by Presiding Judge Keller and Judge Keasler) to Hall here.
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Oralia Gollihar v. State. The CCA granted Gollihar’s petition for discretionary review without oral argument in this Bandera County tampering with a governmental record case. Here’s the issue:
The court of appeals erred when it found that a police officer could be another and harmed as defined by the Texas Penal Code Ann. §37.10, tampering with a governmental document.
You can read the underlying opinion here. This was a State’s appeal from the trial court’s order quashing the indictment in a case where the defendant appears to have presented a tampered with insurance card. The trial court granted the motion to quash specifically because (as you might have guessed) it felt that a police officer can’t be defrauded in a tampering case. The court of appeals rejected the expected in pari materia argument comparing tampering with presenting a false insurance card because tampering requires intent to defraud and both offenses have different penalties. [At first glance, I’d be like “gulp” upon seeing that the CCA had granted this without oral argument. But, this is typical of the type of hobgoblin charging dilemma the Court likes to reach down for. And it will require the use of grammar. So, maybe it’s still to earlier to tell if the Court’s really saying something by taking this case.]
Raymond Murray v. State. The CCA also granted the State’s petition for discretionary review with oral argument in this Harris County forgery case. Here are the issues:
1. Did the court of appeals err by applying the cognate-pleading test, which is applicable only in a contested jury trial, to determine whether the offense of misdemeanor forgery is a lesser offense of the charged offense of making a false statement to obtain credit for which a district court can lawfully convict in a plea-bargained guilty plea proceeding such as this case?
2. Did the court of appeals err by failing to hold Appellant stopped from complaining that the trial court’s judgment is void because his plea bargained conviction for misdemeanor forgery is not a lesser-included offense of the charged offense where he sought and requested that conviction?
You can read the underlying opinion here. Murray was charged by indictment with the felony offense of false statement to obtain credit, but through plea-bargain negotiation, he agreed to plead to misdemeanor forgery. He plead guilty, avoided a trial, but then, before the court could enter the judgment on the agreement, Murray sought to withdraw his plea because he believed the judgment would be void as forgery is not a lesser-included offense of false statement to obtain credit. The trial court disagreed and denied the motion. The court of appeals applied the cognate-pleading approach set out in Hall v. State and determined that misdemeanor forgery was not a lesser-included offense of false statement to obtain credit. The court also held that Murray wasn’t stopped from complaining about the plea because the trial court enforced the judgment over objection, and Murray didn’t get a benefit from the plea bargain that he’d objected to. [This is a straight up policy question for the CCA, do they want to allow greater or lesser flexibility for parties to craft plea bargain agreements. Frankly, the State could probably have crafted a question like “Cough, cough, cognate pleadings and plea bargains, cough, cough” and this would’ve been granted. The Court's had some big cases on both plea bargains recently and the ink's still kind of wet (kind of) on the cognate-pleading doctrine. But the ADA handling it in the court of appeals did an excellent job of focusing the issues in the case to specifically target the case for the CCA. Pretty nifty appellate work here by Don Rogers of Harris County.]
You can also read Presiding Judge Keller's dissent to Hall here. (Note, she seems to lean towards estoppel in her dissent.) You can read Judge Hervey's dissent (joined by Presiding Judge Keller and Judge Keasler) to Hall here.
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Issue Granted - 10/29/08
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Here's sort of the post-script to the epic hand down of October 29th. A Tales of the Beetle Bard edition, if you will.
Jason Hunter v. State. The Court granted the State’s petition for discretionary review with oral argument in this Titus County aggravated sexual assault case on the following issue:
The underlying case can be found here. This is a pre-trial habeas corpus case where Hunter is claiming prosecution is barred by double jeopardy. The trial court declared a mistrial when, after the trial had begun, the trial court discovered that one of the jurors had sat on the grand jury that had reviewed the case now on trial. Hunter complained that there was no manifest necessity to declare a mistrial as an alternate juror could’ve been seated. On appeal, Hunter also complained that the trial court could’ve suggested that the case proceed with eleven jurors (despite the fact that Hunter had apparently refused consent to proceed to trial with eleven jurors). [Kudos to David Colley for getting PDR granted after the court of appeals reversed.]
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Here's sort of the post-script to the epic hand down of October 29th. A Tales of the Beetle Bard edition, if you will.
Jason Hunter v. State. The Court granted the State’s petition for discretionary review with oral argument in this Titus County aggravated sexual assault case on the following issue:
The court of appeals erred by broadening The Court of Criminal Appeals’ holding in Fierro, to apply to a double jeopardy bar where a juror was dismissed on presumed bias for the benefit of the defendant, the defendant failed to object to the dismissal of a challengeable juror and the defendant refused to consent to trial with eleven jurors thereafter.
The underlying case can be found here. This is a pre-trial habeas corpus case where Hunter is claiming prosecution is barred by double jeopardy. The trial court declared a mistrial when, after the trial had begun, the trial court discovered that one of the jurors had sat on the grand jury that had reviewed the case now on trial. Hunter complained that there was no manifest necessity to declare a mistrial as an alternate juror could’ve been seated. On appeal, Hunter also complained that the trial court could’ve suggested that the case proceed with eleven jurors (despite the fact that Hunter had apparently refused consent to proceed to trial with eleven jurors). [Kudos to David Colley for getting PDR granted after the court of appeals reversed.]
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Labels:
double jeopardy,
issues granted,
manifest necessity,
mistrial
More Cowbell: Hand Down List of Arabia, Part II
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In re Matt Johnson. Here, the CCA dismissed a writ of mandamus filed by the Judge of the 54th District Court in McClennan County. The judge had ordered TDCJ to take funds out of Steven Goad’s inmate trust-fund account to cover the court costs of his convictions. Section 501.014(e) of the Government Code allows such an order, but the Tenth Court of Appeals held that such an order was “void” because it violated the due process guarantees of notice and the right to be heard. They granted a writ of mandamus filed by the defendant against the judge.
Johnson took his case to the CCA who wrestled whether this type of case fell within the Court’s “criminal law matter” jurisdiction. Judge Price, joined by Judges Womack, Johnson, Keasler, Hervey, and Cochran, held that it doesn’t and dismissed the application for want of jurisdiction. See, the statute in question isn’t really a criminal statute because it’s found in the Government Code and it deals primarily with recovery for civil judgments (though it can apply to criminal cases). While the CCA can consider statutes that are “so closely related” to criminal matters under the criminal law matter jurisdiction, this case was more of a civil law matter that happens to stem from a criminal judgment. More importantly, the Texas Supreme Court has already granted a petition for review in a similar case dealing with this issue, so Johnson must take his case across the hall. Presiding Judge Keller, joined by Judges Meyers and Holcomb, dissented because court costs assessed in criminal prosecutions have long been associated with criminal law. Though the mechanism for enforcement of the order is in the government code, the order itself was authorized by the Code of Criminal Procedure.
[Though it was technically an original proceeding in the CCA, you can read the Tenth Court of Appeals’ case here. Exit question: If it’s a civil question, does the Tenth Court have to change their cause number from a CR case to a CV case? Do the civil rules now apply?]
Michael Reed v. State. Michael Reed got into a wrestling match with his twin brother Christopher Reed over the installation of a deadbolt lock on a bedroom door to a home they shared. [No word on whether they have a sister named Elizabeth.] At one point in the argument, Michael drew his work weapon (he was a security guard) and ended up firing into the hallway wall. A jury convicted him of both deadly conduct and misdemeanor assault. The court of appeals reversed, holding that the evidence was legally insufficient to support the deadly conduct conviction because the evidence showed the defendant was inside the home when he fired his gun “in the direction of” a habitation. Judge Johnson, joined by Judges Womack, Price, Meyers, and Cochran, affirmed the court of appeals because the deadly conduct statute is unambiguous and the phrase “at or in the direction of” contemplates that the actor is outside of a habitation when he or she fires “at or in the direction of” . . . it.
Judge Cochran concurred in an opinion designed to highlight her love of grammar and literature, getting practically Whitman-esque in her meditations on the meaning of the tiny word “at”. For example, Judge Cochran notes that “at” can’t include “inside” because in the wording of the statute it bears the same spatial relationship with “individual” which means you could be prosecuted for firing a weapon inside an individual. Somehow this all relates to Richard III and Jack the Giant, but I’m too dumb to figure it out. [I always thought Jack was the guy with the beanstalk.] Judge Cochran does note that if the State had wanted to, it could have prosecuted the case as deadly conduct for recklessly placing another in imminent danger of serious bodily injury without ever having to use the word “at”. Judge Keller concurred without an opinion, and Judges Keasler, Hervey, and Holcomb dissented to themselves.
You can read the underlying opinion here. You can read Presiding Justice Gray’s dissent here, and his dissent on the denial of the motion for rehearing here. As much as I love to read opinions by both Judge Cochran and Judge Gray, I cannot resist noting that if her concurrence seems like it is written under the influence of Chablis, his are surely products of LSD and peyote, respectively. What better endorsement do you need to follow the links?
Robert Walker Fischer v. State. This case upholds the admission of circumstantial evidence that Fischer had stolen a single-shot, .22 caliber Cricket rifle he later used to kill his 69-year-old aunt. Prior to trial, the State indicated it wanted to introduce evidence that the rifle had gone missing and that Fischer, the assistant manager of the Wal-Mart from which the murder weapon went missing, but there were also 16 other employees with access to the gun locker that had housed the murder weapon.
At a preliminary hearing to admit evidence that Fischer had access to the murder weapon, Fischer objected that merely showing Fischer had access to the gun (along with 16 other employees) did not prove beyond a reasonable doubt that Fischer had committed the extraneous offense of theft of a gun. However, the trial court admitted the evidence, and at trial the State introduced additional evidence that there was no sign of forced entry at the murder scene and the other 16 employees did not know Fischer’s aunt or have any motive to rob and kill her. The State also admitted evidence that three days before the murder the victim expressed uneasiness about Fischer and she had previously told him he’d never get another thing from her. The court of appeals had essentially held that because the proffer was insufficient, the later evidence could not be used to support the admission of the testimony. The majority reversed, holding that this was a preliminary inquiry under Rule 104 of the Rules of Evidence and the rule allows for the admission of evidence subject to connecting up the relevancy of the testimony later in the trial. Because the State proved beyond a reasonable doubt that Fischer had shot his aunt with the stolen gun, it stood to reason that the State has provided enough evidence during the trial to prove beyond a reasonable doubt that Fischer had stolen the gun.
Judges Cochran and Johnson concurred only to note that Harrell v. State (the case that originally required proof beyond a reasonable doubt prior to the admission of the extraneous offense) should be overruled. According to Cochran, the relevancy threshold is low, and Harrell was wrong to require the State to prove up extraneous offenses beyond a reasonable doubt. Judge Price concurred in part and dissented in part because the court of appeals should have considered all the evidence (not just the preliminary proffer) when deciding whether the evidence was properly admitted. However, he dissented because he didn’t think the evidence proved up the theft beyond a reasonable doubt. As much as I’d like to get rid of the Harrell rule, I personally liked Judge Womack’s concurrence best. Both he, and Judge Meyers, were like, “how the hell is showing Fischer’s access to the murder weapon an extraneous offense”? Except not in those words, of course.
Here’s the underlying opinion for your viewing pleasure. And you can look here for the dissenting opinion as well as here for the dissent to the denial of en banc reconsideration.
State v. Jorge R. Iduarte. This case basically reaffirms the proposition that a defendant cannot react illegally to police misconduct and then suppress evidence of that illegal reaction because of the police misconduct. Here, police responded to a complaint that shots had been fired at an apartment complex. The police got there and saw Iduarte, his wife, and another man who appeared to be arguing. Ms. Iduarte said she’d been assaulted and wanted the keys to the truck, so Mr. Iduarte agreed to go with an officer up to the apartment to get the keys. Halfway up the stairs, Iduarte bolted. The officer found Iduarte in the apartment, but he appeared to be unarmed. However, on the way back out of the apartment, the officer noticed an empty gun case. Back outside the officer repeatedly asked the intoxicated Iduarte about the gun and Iduarte finally ran back into the apartment and pulled the gun on the officer who had chased after him. The officer dropped to his knee and shot Iduarte twice in the abdomen. The trial court granted a pre-trial motion to suppress because the second entry into the apartment was illegal and Iduarte’s pointing of the gun was the fruit of the poisonous tree. The court of appeals reversed.
The CCA held that even if the officer’s second entry into the apartment was illegal, that did not justify the independent illegal act on the part of Iduarte, namely pointing the gun at the officer. Iduarte also argued that the trial court had found the officer’s testimony that Iduarte had pointed the gun at him to lack credibility. Therefore, the court of appeals failed to apply the proper level of deference to the trial court’s findings of fact. The majority noted that the credibility of the officer might be suspect, but the existence of the grand jury indictment suggested some evidence that this crime had been committed, and a motion to suppress hearing can’t be a mini-trial to have the trial court pass on the sufficiency of the evidence. Judges Keasler and Hervey concurred without an opinion.
And speaking of opinions, you can read the underlying one here.
Alfredo Pecina v. State. Pecina stabbed his wife and then himself. His wife’s sister found them and called the police. Pecina was arraigned at the hospital. The magistrate told him in Spanish that the police wanted to speak with him and he nodded or said yes. Then, the magistrate read him his rights and asked if he wanted an appointed attorney. Pecina said yes. The magistrate asked him if he wanted to speak with the officers. Pecina said yes. Pecina also signed an Adult Warning Form, and a Spanish-speaking detective wrote on the form “I asked for a lawyer, but I also wanted to speak with the Arlington police.” At the suppression hearing, the magistrate testified that she had asked Pecina if he still wanted to talk to the police, and he said yes. The trial court overruled the motion to suppress and found that Pecina wanted to talk to the police even though he asked for a lawyer and he had waived his rights.
Judge Meyers, writing for an eight-judge majority, reversed the trial court. First, the majority rejected the argument that the ambiguous request for appointed counsel was essentially an invocation of the Sixth Amendment right to counsel at trial, and not an invocation of the Fifth Amendment right to have counsel present during interrogation. The Court reasoned that the Supreme Court had already rejected this argument in Michigan v. Jackson. Second, the Sixth Amendment had been triggered by arraignment in light of SCOTUS’s recent decision in Rothgery v. Gillespie County, and the request for appointed counsel at that hearing had invoked the Sixth Amendment rights. And finally, because Pecina didn’t initiate contact with the police, the statement was taken in violation of his Fifth and Sixth Amendment rights. Presiding Judge Keller dissented on the ground that the initial request for counsel was a limited one that did not cover interrogation.
[This is just me, but I kind of feel like Meyers is treating this process like it’s only police trying to interrogate the guy, and he’s not even factoring in that a neutral magistrate is involved. I mean, this isn’t police beating a confession out of a defendant in a back room, it’s a neutral magistrate trying to understand conflicting answers from a defendant. If it had just been the police, I could see how the exclusionary rule furthers the policy of preventing future police misconduct, but it wasn’t just the police. These guys were careful and they brought a judge with them. Moral of the story: once a defendant requests appointed counsel he can only waive his Sixth Amendment right when his attorney is present. That’s the only independent, intervening thing that can overcome the initial invocation. And they MEAN it. Seems to me the Court should’ve taken a step back before looking at this one.]
If you’d like to check out the unpublished underlying opinion you can do so here. [Really? Unpublished? Were they just that keen to apply Rothgery to something?]
Rashik Ali Taylor v. State. Taylor sexually assaulted a young girl, J.B. He was a friend of J.B.’s drug-addicted, prostitute mother. At the trial, the State introduced testimony from J.B., and also from a licensed professional counselor, Denise Volet, who had been counseling J.B. for several months after the sexual assault had come to light. Taylor had objected to Volet’s testimony as hearsay, and the State had responded that the statements of J.B. to Volet were made for purposes of a medical diagnosis and therefore admissible.
The majority detailed federal and state case law on this hearsay exception and determined that the inquiry into admissibility requires the trial court to determine 1) if the declarant made the statement for the purpose of treatment, 2) the declarant was aware that proper diagnosis and treatment depends upon veracity, and 3) the statement itself is pertinent to a proper diagnosis and treatement. There is not, however, a requirement that the witness recounting the hearsay statement have some particular medical qualifications. The concern is whether the circumstances suggest that the patient’s selfish motive for truthfulness can be trusted. So, the fact that Volet wasn’t a doctor or a psychologist (or supervised one) did not make J.B.’s statements to her necessarily inadmissible. Thus, the proponent of the evidence must show that telling the truth was vital and also that the declarant knew it was vital.
In this case, the Court held that the trial court erroneously admitted the testimony because the identity of the perpetrator was not pertinent to proper treatment and diagnosis because Taylor was a stranger to the child. The Court also held that nothing in the record established that J.B. was aware that truthfulness about the identity of her assailant was important to the efficacy of the treatment. However, the admission of this testimony was harmless. The extra testimony had slight effect because J.B. had consistently told the same story repeatedly to various different agencies and Volet testified that J.B. had shown the signs and symptoms of a child that had been sexually abused.
Judge Womack concurred, along with Judges Keller, Keasler, and Hervey. Womack disagreed with the majority’s conclusion that it is natural to presume a patient understands better the need to be truthful when dealing with a physical injury than when the patient deals with a mental one. According to the concurrence, patients are more likely to be aware of the need for truth when dealing with a mental health issue, as patients don’t even have to be conscious when being treated for a physical ailment. [Frankly, I don’t think you can logically argue that one type of patient relationship is more prone to self-interested veracity than another. I guess the close-to-even split among the judges on this aspect of the opinion proves my point.]
You can read the underlying opinion here and the underlying concurring opinion here. And here's a picture taken at the exact moment that Justice Jennings' ego exploded upon his realization that the CCA had adopted his concurrence. [I believe the photo was taken from a safe location in La Grange, but I can't be sure.]
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In re Matt Johnson. Here, the CCA dismissed a writ of mandamus filed by the Judge of the 54th District Court in McClennan County. The judge had ordered TDCJ to take funds out of Steven Goad’s inmate trust-fund account to cover the court costs of his convictions. Section 501.014(e) of the Government Code allows such an order, but the Tenth Court of Appeals held that such an order was “void” because it violated the due process guarantees of notice and the right to be heard. They granted a writ of mandamus filed by the defendant against the judge.
Johnson took his case to the CCA who wrestled whether this type of case fell within the Court’s “criminal law matter” jurisdiction. Judge Price, joined by Judges Womack, Johnson, Keasler, Hervey, and Cochran, held that it doesn’t and dismissed the application for want of jurisdiction. See, the statute in question isn’t really a criminal statute because it’s found in the Government Code and it deals primarily with recovery for civil judgments (though it can apply to criminal cases). While the CCA can consider statutes that are “so closely related” to criminal matters under the criminal law matter jurisdiction, this case was more of a civil law matter that happens to stem from a criminal judgment. More importantly, the Texas Supreme Court has already granted a petition for review in a similar case dealing with this issue, so Johnson must take his case across the hall. Presiding Judge Keller, joined by Judges Meyers and Holcomb, dissented because court costs assessed in criminal prosecutions have long been associated with criminal law. Though the mechanism for enforcement of the order is in the government code, the order itself was authorized by the Code of Criminal Procedure.
[Though it was technically an original proceeding in the CCA, you can read the Tenth Court of Appeals’ case here. Exit question: If it’s a civil question, does the Tenth Court have to change their cause number from a CR case to a CV case? Do the civil rules now apply?]
Michael Reed v. State. Michael Reed got into a wrestling match with his twin brother Christopher Reed over the installation of a deadbolt lock on a bedroom door to a home they shared. [No word on whether they have a sister named Elizabeth.] At one point in the argument, Michael drew his work weapon (he was a security guard) and ended up firing into the hallway wall. A jury convicted him of both deadly conduct and misdemeanor assault. The court of appeals reversed, holding that the evidence was legally insufficient to support the deadly conduct conviction because the evidence showed the defendant was inside the home when he fired his gun “in the direction of” a habitation. Judge Johnson, joined by Judges Womack, Price, Meyers, and Cochran, affirmed the court of appeals because the deadly conduct statute is unambiguous and the phrase “at or in the direction of” contemplates that the actor is outside of a habitation when he or she fires “at or in the direction of” . . . it.
Judge Cochran concurred in an opinion designed to highlight her love of grammar and literature, getting practically Whitman-esque in her meditations on the meaning of the tiny word “at”. For example, Judge Cochran notes that “at” can’t include “inside” because in the wording of the statute it bears the same spatial relationship with “individual” which means you could be prosecuted for firing a weapon inside an individual. Somehow this all relates to Richard III and Jack the Giant, but I’m too dumb to figure it out. [I always thought Jack was the guy with the beanstalk.] Judge Cochran does note that if the State had wanted to, it could have prosecuted the case as deadly conduct for recklessly placing another in imminent danger of serious bodily injury without ever having to use the word “at”. Judge Keller concurred without an opinion, and Judges Keasler, Hervey, and Holcomb dissented to themselves.
You can read the underlying opinion here. You can read Presiding Justice Gray’s dissent here, and his dissent on the denial of the motion for rehearing here. As much as I love to read opinions by both Judge Cochran and Judge Gray, I cannot resist noting that if her concurrence seems like it is written under the influence of Chablis, his are surely products of LSD and peyote, respectively. What better endorsement do you need to follow the links?
Robert Walker Fischer v. State. This case upholds the admission of circumstantial evidence that Fischer had stolen a single-shot, .22 caliber Cricket rifle he later used to kill his 69-year-old aunt. Prior to trial, the State indicated it wanted to introduce evidence that the rifle had gone missing and that Fischer, the assistant manager of the Wal-Mart from which the murder weapon went missing, but there were also 16 other employees with access to the gun locker that had housed the murder weapon.
At a preliminary hearing to admit evidence that Fischer had access to the murder weapon, Fischer objected that merely showing Fischer had access to the gun (along with 16 other employees) did not prove beyond a reasonable doubt that Fischer had committed the extraneous offense of theft of a gun. However, the trial court admitted the evidence, and at trial the State introduced additional evidence that there was no sign of forced entry at the murder scene and the other 16 employees did not know Fischer’s aunt or have any motive to rob and kill her. The State also admitted evidence that three days before the murder the victim expressed uneasiness about Fischer and she had previously told him he’d never get another thing from her. The court of appeals had essentially held that because the proffer was insufficient, the later evidence could not be used to support the admission of the testimony. The majority reversed, holding that this was a preliminary inquiry under Rule 104 of the Rules of Evidence and the rule allows for the admission of evidence subject to connecting up the relevancy of the testimony later in the trial. Because the State proved beyond a reasonable doubt that Fischer had shot his aunt with the stolen gun, it stood to reason that the State has provided enough evidence during the trial to prove beyond a reasonable doubt that Fischer had stolen the gun.
Judges Cochran and Johnson concurred only to note that Harrell v. State (the case that originally required proof beyond a reasonable doubt prior to the admission of the extraneous offense) should be overruled. According to Cochran, the relevancy threshold is low, and Harrell was wrong to require the State to prove up extraneous offenses beyond a reasonable doubt. Judge Price concurred in part and dissented in part because the court of appeals should have considered all the evidence (not just the preliminary proffer) when deciding whether the evidence was properly admitted. However, he dissented because he didn’t think the evidence proved up the theft beyond a reasonable doubt. As much as I’d like to get rid of the Harrell rule, I personally liked Judge Womack’s concurrence best. Both he, and Judge Meyers, were like, “how the hell is showing Fischer’s access to the murder weapon an extraneous offense”? Except not in those words, of course.
Here’s the underlying opinion for your viewing pleasure. And you can look here for the dissenting opinion as well as here for the dissent to the denial of en banc reconsideration.
State v. Jorge R. Iduarte. This case basically reaffirms the proposition that a defendant cannot react illegally to police misconduct and then suppress evidence of that illegal reaction because of the police misconduct. Here, police responded to a complaint that shots had been fired at an apartment complex. The police got there and saw Iduarte, his wife, and another man who appeared to be arguing. Ms. Iduarte said she’d been assaulted and wanted the keys to the truck, so Mr. Iduarte agreed to go with an officer up to the apartment to get the keys. Halfway up the stairs, Iduarte bolted. The officer found Iduarte in the apartment, but he appeared to be unarmed. However, on the way back out of the apartment, the officer noticed an empty gun case. Back outside the officer repeatedly asked the intoxicated Iduarte about the gun and Iduarte finally ran back into the apartment and pulled the gun on the officer who had chased after him. The officer dropped to his knee and shot Iduarte twice in the abdomen. The trial court granted a pre-trial motion to suppress because the second entry into the apartment was illegal and Iduarte’s pointing of the gun was the fruit of the poisonous tree. The court of appeals reversed.
The CCA held that even if the officer’s second entry into the apartment was illegal, that did not justify the independent illegal act on the part of Iduarte, namely pointing the gun at the officer. Iduarte also argued that the trial court had found the officer’s testimony that Iduarte had pointed the gun at him to lack credibility. Therefore, the court of appeals failed to apply the proper level of deference to the trial court’s findings of fact. The majority noted that the credibility of the officer might be suspect, but the existence of the grand jury indictment suggested some evidence that this crime had been committed, and a motion to suppress hearing can’t be a mini-trial to have the trial court pass on the sufficiency of the evidence. Judges Keasler and Hervey concurred without an opinion.
And speaking of opinions, you can read the underlying one here.
Alfredo Pecina v. State. Pecina stabbed his wife and then himself. His wife’s sister found them and called the police. Pecina was arraigned at the hospital. The magistrate told him in Spanish that the police wanted to speak with him and he nodded or said yes. Then, the magistrate read him his rights and asked if he wanted an appointed attorney. Pecina said yes. The magistrate asked him if he wanted to speak with the officers. Pecina said yes. Pecina also signed an Adult Warning Form, and a Spanish-speaking detective wrote on the form “I asked for a lawyer, but I also wanted to speak with the Arlington police.” At the suppression hearing, the magistrate testified that she had asked Pecina if he still wanted to talk to the police, and he said yes. The trial court overruled the motion to suppress and found that Pecina wanted to talk to the police even though he asked for a lawyer and he had waived his rights.
Judge Meyers, writing for an eight-judge majority, reversed the trial court. First, the majority rejected the argument that the ambiguous request for appointed counsel was essentially an invocation of the Sixth Amendment right to counsel at trial, and not an invocation of the Fifth Amendment right to have counsel present during interrogation. The Court reasoned that the Supreme Court had already rejected this argument in Michigan v. Jackson. Second, the Sixth Amendment had been triggered by arraignment in light of SCOTUS’s recent decision in Rothgery v. Gillespie County, and the request for appointed counsel at that hearing had invoked the Sixth Amendment rights. And finally, because Pecina didn’t initiate contact with the police, the statement was taken in violation of his Fifth and Sixth Amendment rights. Presiding Judge Keller dissented on the ground that the initial request for counsel was a limited one that did not cover interrogation.
[This is just me, but I kind of feel like Meyers is treating this process like it’s only police trying to interrogate the guy, and he’s not even factoring in that a neutral magistrate is involved. I mean, this isn’t police beating a confession out of a defendant in a back room, it’s a neutral magistrate trying to understand conflicting answers from a defendant. If it had just been the police, I could see how the exclusionary rule furthers the policy of preventing future police misconduct, but it wasn’t just the police. These guys were careful and they brought a judge with them. Moral of the story: once a defendant requests appointed counsel he can only waive his Sixth Amendment right when his attorney is present. That’s the only independent, intervening thing that can overcome the initial invocation. And they MEAN it. Seems to me the Court should’ve taken a step back before looking at this one.]
If you’d like to check out the unpublished underlying opinion you can do so here. [Really? Unpublished? Were they just that keen to apply Rothgery to something?]
Rashik Ali Taylor v. State. Taylor sexually assaulted a young girl, J.B. He was a friend of J.B.’s drug-addicted, prostitute mother. At the trial, the State introduced testimony from J.B., and also from a licensed professional counselor, Denise Volet, who had been counseling J.B. for several months after the sexual assault had come to light. Taylor had objected to Volet’s testimony as hearsay, and the State had responded that the statements of J.B. to Volet were made for purposes of a medical diagnosis and therefore admissible.
The majority detailed federal and state case law on this hearsay exception and determined that the inquiry into admissibility requires the trial court to determine 1) if the declarant made the statement for the purpose of treatment, 2) the declarant was aware that proper diagnosis and treatment depends upon veracity, and 3) the statement itself is pertinent to a proper diagnosis and treatement. There is not, however, a requirement that the witness recounting the hearsay statement have some particular medical qualifications. The concern is whether the circumstances suggest that the patient’s selfish motive for truthfulness can be trusted. So, the fact that Volet wasn’t a doctor or a psychologist (or supervised one) did not make J.B.’s statements to her necessarily inadmissible. Thus, the proponent of the evidence must show that telling the truth was vital and also that the declarant knew it was vital.
In this case, the Court held that the trial court erroneously admitted the testimony because the identity of the perpetrator was not pertinent to proper treatment and diagnosis because Taylor was a stranger to the child. The Court also held that nothing in the record established that J.B. was aware that truthfulness about the identity of her assailant was important to the efficacy of the treatment. However, the admission of this testimony was harmless. The extra testimony had slight effect because J.B. had consistently told the same story repeatedly to various different agencies and Volet testified that J.B. had shown the signs and symptoms of a child that had been sexually abused.
Judge Womack concurred, along with Judges Keller, Keasler, and Hervey. Womack disagreed with the majority’s conclusion that it is natural to presume a patient understands better the need to be truthful when dealing with a physical injury than when the patient deals with a mental one. According to the concurrence, patients are more likely to be aware of the need for truth when dealing with a mental health issue, as patients don’t even have to be conscious when being treated for a physical ailment. [Frankly, I don’t think you can logically argue that one type of patient relationship is more prone to self-interested veracity than another. I guess the close-to-even split among the judges on this aspect of the opinion proves my point.]
You can read the underlying opinion here and the underlying concurring opinion here. And here's a picture taken at the exact moment that Justice Jennings' ego exploded upon his realization that the CCA had adopted his concurrence. [I believe the photo was taken from a safe location in La Grange, but I can't be sure.]
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Thursday, November 6, 2008
Hand Down List of Arabia, Part I
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I apologize for my absence. I've been . . . It's personal, I'll leave it at that. Though it's probably stale at this point, here's the first part of the October 29th opinions.
Joe Luna v. State. Twenty-five points of error. Oy vey! Well, it’s a death penalty case, so what did I expect. And, as per usual, there’s really only like eight issues, but they splinter out like Nicholas Cage’s two-minute glimpses of the future in Next. Here, the defendant plead guilty to strangling Michael Andrade during a burglary/robbery/arson. Because there are so many points, I’ll try to bullet them out.
Unitary proceeding: According to Luna, the unitary proceeding upon his plea of guilty forced the jury to find the defendant guilty in close proximity to the special issues. Judge Price, writing for a unanimous majority, basically said, the defendant isn’t entitled to a bifurcated proceeding.
Competency: Luna complained about a lack of a formal competency inquiry, but the trial court repeatedly and throughout the trial admonished Luna and inquired as to his understanding of the proceedings. True, he testified against the advice of counsel, and he agreed to the seating of an alternate juror. But the defense attorney expressed his belief that Luna was competent.
Jury Unanimity: The State plead capital murder in a single count indictment with three separate paragraphs that Luna had committed capital murder during a a) burglary; b) robbery; and c) arson. These were alternate ways of committing the same offense, so the jury charge properly considered them in the disjunctive, contrary to Luna’s arguments.
Standing and consent: The Court rejected Luna’s claims that the trial court should have suppressed evidence seized from an apartment where he’d been staying “on and off” because even if Luna had standing to contest the issue as an “overnight guest” the person he was staying with gave consent to search.
Extraneous Victim Impact Testimony: Luna complained of testimony presented from two victims of Luna’s extraneous burglaries. The Court rejected these complaints because the complaint directed at one victim’s testimony wasn’t preserved, and the testimony of the other victim only related to that victim’s fear during the robbery. Thus, it wasn’t impermissible victim impact testimony.
Closing Argument on Mitigation: The Court rejected the argument that a defendant should be allowed to close the arguments on mitigation. Again.
Same Old Constitutional Challenges to the Death Penalty: All rejected as previously decided.
[Still unresolved in death penalty jurisprudence: Whether the defense attorney was ineffective for failing to argue that the defendant has a right to control every aspect of the prosecution's case.]
Failure to Give Meaningful Effect to Mitigation Evidence Jury Issue: Luna complained that the jury charge conflated the future dangerousness issue with the mitigation issue. The Court has already rejected the same argument in Scheanette v. State, and did so in this case.
Suggestive ID in An Extraneous Robbery: Here, Luna moved pre-trial to exclude the in-court identification of a victim in an extraneous aggravated robbery. There were conflicts in testimony regarding the manner in which the detective showed the defendant the different photo spreads. Luna also complained that the detective told the witness that he’d “gotten the right guy” after the victim identified the defendant. However, the victim had given a detailed description of the defendant beforehand, particularly of a tattoo on the back of Luna’s head, so the Court held it was unlikely that the suggestiveness of the statement influenced the in-court identification. Judge Hervey, joined by Judges Womack and Johnson, wrote a separate concurrence to express displeasure at the identification procedure, but also to note that resolving facts in favor of the trial court’s ruling necessitated the overruling of Luna’s claim. Judge Hervey also noted that any error was harmless because Luna himself admitted to committing the robbery when he took the stand. Why no one led with this tidbit of information is beyond me.
No underlying opinion as appeal of a death penalty is automatic to the CCA.
Juan Ramon Meza Segundo v. State. Juan Segundo raped and strangled 11-year-old, Vanessa Villa in 1985, but the case didn’t move forward until 2005 when a routine CODIS run elicited a match of Segundo’s DNA to sperm taken from the victim’s vagina. As with the first capital murder case, there were many points of error.
Extraneous Rape and Murder During Guilt: Segundo complained that the trial court erroneously admitted evidence that Segundo had raped and murdered another woman in 1995 under a modus operandi theory. Rather than go the gumshoe route with references to “M.O.”, Judge Cochran instead explained that “signature” extraneous offenses can be proven by one unusual “Mark of Zorro” trait, or they can be proven by the accretion of a large number of small, but similar, details. In this case, Segundo’s DNA found in two unrelated victims was Segundo’s “Z”. [Did she really just equate semen with the Mark of Zorro on someone’s forehead?] So, the trial court did not abuse its discretion in admitting the extraneous offense to prove identity.
Judge Price concurred, along with Judges Meyers and Holcomb because the relevance question wasn’t as close, in his view, as the Rule 403 question. Judge Price opined showing previous rapes that ended in murder tended to suggest the defendant had murdered the victim in this case, but the DNA evidence only tends to establish sexual assault. However, because Segundo made both the sexual assault and the murder aspects of the case contested issues, the trial court did not abuse its discretion in admitting this extraneous offense evidence.
Lesser-Included Offense Instructions: Segundo also complained that he was entitled to instructions on murder and aggravated assault because the semen could have been in the victim’s vagina for up to 72 hours before the actual murder. [This argument, suggested during the defense’s cross-examination of a State’s witness, put identity in issue such that the State could introduce one of Segundo’s other rapes. Bravo.] This only raised “a theoretical possibility”, however, and the physical evidence showed that the rape and murder had occurred at much the same time.
Limitations of Jury Questioning: Segundo also complained that he only got to try to rehabilitate . . . I mean question a prospective juror for twelve pages (to the State’s nineteen) before the trial court granted the State’s challenge for cause. The Court noted that the juror was certain and adamant that she understood the law and her oath but she would not answer the special issues in a way that would result in the death penalty. The trial court did not abuse its discretion in limiting the number of times the juror had to repeat herself. The Court also affirmed the trial court’s decision to grant challenges for cause on two vacillating jurors.
Evidentiary Issues: First, the majority held that the defendant forfeited a Crawford challenge to parole revocation documents by failing to make sure the parole revocation documents made it into the appellate record. Second, and more significantly, the majority upheld the warrantless seizure of the defendant’s blood sample taken pursuant to the Texas mandatory DNA statute. The majority noted that all 50 states and the federal government have adopted DNA collection and database storage statutes. These statutes are similar to the ones in Texas. Though the taking of the blood was clearly a search, the court nevertheless held the search was reasonable based upon a rationale similar to the one in cases dealing with searches of felons on parole like Samson v. California. The Court reasoned that government’s interest in collecting the evidence outweighed the minimal intrusion of the parolees privacy interest. The Court also rejected Segundo’s complaint that the DNA statute unconstitutionally maintains his CODIS profile even after he completes his term. Sure, the retained information could be abused. But, the search complied with the Fourth Amendment so the storage of the obtained information doesn’t give rise to a separate constitutional claim.
Segundo also complained that the results of the blood tests should be excluded because the State never established that the person taking the sample was qualified to do so under the statute. Section 411.146 of the Government Code lists nurses as one type of person qualified to take blood for such DNA tests. Segundo said the woman who took his blood “looked like a nurse” and she listed an abbreviation for a local university health center on the blood sample card. That was enough to support the trial court’s implicit finding that she was qualified. The Court also rejected Segundo's claim that the nurse’s statement that Segundo would “be here longer” warranted exclusion of the blood test results.
The majority also held that the trial court did not err in excluding “alternative perpetrator evidence” by excluding hearsay statements regarding a possible suspect because testimony came in about that possible suspect elsewhere.
Standard Death Penalty Issues: State’s still not required to disprove mitigation beyond a reasonable doubt. State’s still not required to show that the grand jury found probable cause on the three special issues. Trial court can still instruct the jury to determine a probability of future dangerousness beyond a reasonable doubt. Instructing the jurors that they “shall consider mitigating evidence that a juror might regard as reducing the defendant’s moral blameworthiness” doesn’t confuse the jurors into thinking that they all have to be unanimous on which particular piece of evidence was mitigating. And finally, the challenge to the lethal injection protocols was not ripe for review because the needle was not nigh.
No underlying opinion as . . . see above.
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I apologize for my absence. I've been . . . It's personal, I'll leave it at that. Though it's probably stale at this point, here's the first part of the October 29th opinions.
Joe Luna v. State. Twenty-five points of error. Oy vey! Well, it’s a death penalty case, so what did I expect. And, as per usual, there’s really only like eight issues, but they splinter out like Nicholas Cage’s two-minute glimpses of the future in Next. Here, the defendant plead guilty to strangling Michael Andrade during a burglary/robbery/arson. Because there are so many points, I’ll try to bullet them out.
Unitary proceeding: According to Luna, the unitary proceeding upon his plea of guilty forced the jury to find the defendant guilty in close proximity to the special issues. Judge Price, writing for a unanimous majority, basically said, the defendant isn’t entitled to a bifurcated proceeding.
Competency: Luna complained about a lack of a formal competency inquiry, but the trial court repeatedly and throughout the trial admonished Luna and inquired as to his understanding of the proceedings. True, he testified against the advice of counsel, and he agreed to the seating of an alternate juror. But the defense attorney expressed his belief that Luna was competent.
Jury Unanimity: The State plead capital murder in a single count indictment with three separate paragraphs that Luna had committed capital murder during a a) burglary; b) robbery; and c) arson. These were alternate ways of committing the same offense, so the jury charge properly considered them in the disjunctive, contrary to Luna’s arguments.
Standing and consent: The Court rejected Luna’s claims that the trial court should have suppressed evidence seized from an apartment where he’d been staying “on and off” because even if Luna had standing to contest the issue as an “overnight guest” the person he was staying with gave consent to search.
Extraneous Victim Impact Testimony: Luna complained of testimony presented from two victims of Luna’s extraneous burglaries. The Court rejected these complaints because the complaint directed at one victim’s testimony wasn’t preserved, and the testimony of the other victim only related to that victim’s fear during the robbery. Thus, it wasn’t impermissible victim impact testimony.
Closing Argument on Mitigation: The Court rejected the argument that a defendant should be allowed to close the arguments on mitigation. Again.
Same Old Constitutional Challenges to the Death Penalty: All rejected as previously decided.
[Still unresolved in death penalty jurisprudence: Whether the defense attorney was ineffective for failing to argue that the defendant has a right to control every aspect of the prosecution's case.]
Failure to Give Meaningful Effect to Mitigation Evidence Jury Issue: Luna complained that the jury charge conflated the future dangerousness issue with the mitigation issue. The Court has already rejected the same argument in Scheanette v. State, and did so in this case.
Suggestive ID in An Extraneous Robbery: Here, Luna moved pre-trial to exclude the in-court identification of a victim in an extraneous aggravated robbery. There were conflicts in testimony regarding the manner in which the detective showed the defendant the different photo spreads. Luna also complained that the detective told the witness that he’d “gotten the right guy” after the victim identified the defendant. However, the victim had given a detailed description of the defendant beforehand, particularly of a tattoo on the back of Luna’s head, so the Court held it was unlikely that the suggestiveness of the statement influenced the in-court identification. Judge Hervey, joined by Judges Womack and Johnson, wrote a separate concurrence to express displeasure at the identification procedure, but also to note that resolving facts in favor of the trial court’s ruling necessitated the overruling of Luna’s claim. Judge Hervey also noted that any error was harmless because Luna himself admitted to committing the robbery when he took the stand. Why no one led with this tidbit of information is beyond me.
No underlying opinion as appeal of a death penalty is automatic to the CCA.
Juan Ramon Meza Segundo v. State. Juan Segundo raped and strangled 11-year-old, Vanessa Villa in 1985, but the case didn’t move forward until 2005 when a routine CODIS run elicited a match of Segundo’s DNA to sperm taken from the victim’s vagina. As with the first capital murder case, there were many points of error.
Extraneous Rape and Murder During Guilt: Segundo complained that the trial court erroneously admitted evidence that Segundo had raped and murdered another woman in 1995 under a modus operandi theory. Rather than go the gumshoe route with references to “M.O.”, Judge Cochran instead explained that “signature” extraneous offenses can be proven by one unusual “Mark of Zorro” trait, or they can be proven by the accretion of a large number of small, but similar, details. In this case, Segundo’s DNA found in two unrelated victims was Segundo’s “Z”. [Did she really just equate semen with the Mark of Zorro on someone’s forehead?] So, the trial court did not abuse its discretion in admitting the extraneous offense to prove identity.
Judge Price concurred, along with Judges Meyers and Holcomb because the relevance question wasn’t as close, in his view, as the Rule 403 question. Judge Price opined showing previous rapes that ended in murder tended to suggest the defendant had murdered the victim in this case, but the DNA evidence only tends to establish sexual assault. However, because Segundo made both the sexual assault and the murder aspects of the case contested issues, the trial court did not abuse its discretion in admitting this extraneous offense evidence.
Lesser-Included Offense Instructions: Segundo also complained that he was entitled to instructions on murder and aggravated assault because the semen could have been in the victim’s vagina for up to 72 hours before the actual murder. [This argument, suggested during the defense’s cross-examination of a State’s witness, put identity in issue such that the State could introduce one of Segundo’s other rapes. Bravo.] This only raised “a theoretical possibility”, however, and the physical evidence showed that the rape and murder had occurred at much the same time.
Limitations of Jury Questioning: Segundo also complained that he only got to try to rehabilitate . . . I mean question a prospective juror for twelve pages (to the State’s nineteen) before the trial court granted the State’s challenge for cause. The Court noted that the juror was certain and adamant that she understood the law and her oath but she would not answer the special issues in a way that would result in the death penalty. The trial court did not abuse its discretion in limiting the number of times the juror had to repeat herself. The Court also affirmed the trial court’s decision to grant challenges for cause on two vacillating jurors.
Evidentiary Issues: First, the majority held that the defendant forfeited a Crawford challenge to parole revocation documents by failing to make sure the parole revocation documents made it into the appellate record. Second, and more significantly, the majority upheld the warrantless seizure of the defendant’s blood sample taken pursuant to the Texas mandatory DNA statute. The majority noted that all 50 states and the federal government have adopted DNA collection and database storage statutes. These statutes are similar to the ones in Texas. Though the taking of the blood was clearly a search, the court nevertheless held the search was reasonable based upon a rationale similar to the one in cases dealing with searches of felons on parole like Samson v. California. The Court reasoned that government’s interest in collecting the evidence outweighed the minimal intrusion of the parolees privacy interest. The Court also rejected Segundo’s complaint that the DNA statute unconstitutionally maintains his CODIS profile even after he completes his term. Sure, the retained information could be abused. But, the search complied with the Fourth Amendment so the storage of the obtained information doesn’t give rise to a separate constitutional claim.
Segundo also complained that the results of the blood tests should be excluded because the State never established that the person taking the sample was qualified to do so under the statute. Section 411.146 of the Government Code lists nurses as one type of person qualified to take blood for such DNA tests. Segundo said the woman who took his blood “looked like a nurse” and she listed an abbreviation for a local university health center on the blood sample card. That was enough to support the trial court’s implicit finding that she was qualified. The Court also rejected Segundo's claim that the nurse’s statement that Segundo would “be here longer” warranted exclusion of the blood test results.
The majority also held that the trial court did not err in excluding “alternative perpetrator evidence” by excluding hearsay statements regarding a possible suspect because testimony came in about that possible suspect elsewhere.
Standard Death Penalty Issues: State’s still not required to disprove mitigation beyond a reasonable doubt. State’s still not required to show that the grand jury found probable cause on the three special issues. Trial court can still instruct the jury to determine a probability of future dangerousness beyond a reasonable doubt. Instructing the jurors that they “shall consider mitigating evidence that a juror might regard as reducing the defendant’s moral blameworthiness” doesn’t confuse the jurors into thinking that they all have to be unanimous on which particular piece of evidence was mitigating. And finally, the challenge to the lethal injection protocols was not ripe for review because the needle was not nigh.
No underlying opinion as . . . see above.
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