Stating The Only Slightly Less Obvious and Happy New Year

The Slightly Less Obvious

As you probably expected, the Court did not issue any published opinions today, though the Court did deny relief in a lot of habeas cases.

Happy New Year

While I hope your 2008 was different, mine pretty much sucked. So, here's to pushing the reset button tomorrow! I hope all the good things from 2008 carry forward you all in 2009 and all the bad things get left behind!

God bless.

Stating The Obvious And Merry Christmas

The Obvious:

No new opinions or issues granted today. I believe the CCA is closed for the holidays.

Merry Christmas:

Merry Christmas to my handful of readers. Thank you for the gift of your attention and your patience. I wish you nothing but the superlative joy of kindness and compassion that marks the Christmas season.

God bless.

Time Article on the Death Penalty in Texas

Time Magazine online has posted an article that purports to answer the question, "Is Texas Changing Its Mind About The Death Penalty?" The answer they arrive at is expected and maybe even accurate. However, I would've liked to have seen at least some effort to get a prosecutor's viewpoint and maybe some discussion of whether media's shaping of the issue has played any role in said mind changing. But I'm used to dealing with disappointment. At least they acknowledged the effect that recent statutory amendments have had on the decrease in death sentences, though I might have lead with that point rather than the idea that the death penalty is no longer "fashionable".

Kennedy vs. The Lie Detector

Okay, so Martinez v. State didn’t come from the Supreme Court as a 5-4 decision with Justice Kennedy as the deciding vote. However, it does seem to represent an implicit acknowledgment by the CCA of Kennedy’s awesome power as . . . The Vote (soon to be a major motion picture based upon the graphic novel by Frank Miller). At least, that’s how I interpret their adoption of Justice Kennedy’s one-judge concurring opinion in Missouri v. Seibert over the plurality opinion authored by Justice Souter. Indeed, how likely is it that the Justice Kennedy would sympathize with an argument from the State that the lower court should NOT have adopted his test for determining whether midstream Miranda warnings were ineffective? But perhaps I’m getting ahead of myself.

I posted a case summary for Martinez v. State earlier, but I’ll briefly recap at the risk of going over the same ground again. [Get it? A little Seibert humor? Yeah, you're right, it's crap.] Police arrested Martinez on a warrant and sought to question him regarding his involvement in a capital murder. He claimed he didn’t recall anything. Police then took him for a polygraph test. Police confronted him with the fact that he “failed” the polygraph test. Police took him to a magistrate. This was the first time he heard his Miranda warnings. [Presumably up until that time he did not know he had the right to remain silent as evidenced by his silence.] Police also read him his Miranda warnings. Then, Martinez revealed that he knew something about the robbery/capital murder, though he claimed he was only a lookout.

A five judge majority of the CCA found the Miranda warnings were ineffective so the trial court should've suppressed the statement. In reaching its decision the CCA applied Missouri v. Seibert. Unfortunately, this requires me to step back even further.

Long story medium, Seibert dealt with a situation where police arrested and questioned a defendant about a murder before reading her her Miranda warnings. She confessed. Twenty minutes later, the police read the defendant her Miranda warnings and she confessed again. The Supreme Court held that the second, warned statement was inadmissible because the Miranda warnings were ineffective. In a plurality opinion authored by Justice Souter, SCOTUS applied an objective, multi-factor test to determine whether it would be reasonable to find that the Miranda warnings properly conveyed to the defendant that he could chose to stop talking even though he had talked earlier. Under the plurality's test, the Court was supposed to consider the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing of the two statements, the continuity of police personnel, and the degree to which the interrogators questions treated the second round as continuous with the first. Unfortunately, applying this multi-factor test presented the CCA with a problem as the record did not contain a lot of detail about the questions and answers from the polygraph test.

Oh yeah, and Martinez didn't actually confess prior to the administration of his Miranda warnings. That was another problem.

Right here the majority should have recognized they were held in thrall by Justice Kennedy's supernatural swing-votedness. Instead of even considering the plurality opinion, the majority simply found Justice Kennedy's one-judge concurring opinion "persuasive" without setting out any justification for following it over the plurality opinion. Sure, when you deal with splintered opinions such as the one in Seibert, the opinion that decides the issue on the narrowest grounds should prevail. But the majority didn't say that.

Moreover, I'm not so sure Justice Kennedy's opinion decides the issue on a narrower ground than the plurality opinion does. Kennedy says it does, but saying it doesn't make it so. Indeed, the fact that he "concurs in judgment" seems to acknowledge that he's coming from a completely different place than Justice Souter.

At bottom, the plurality test is an objective test; Kennedy's is a subjective one. The plurality opinion's goal is to determine whether the warnings were effective while Kennedy wants to see if police are trying to trick the defendant. And of course, none of the factors in the plurality opinion focus upon the subjective intent of the officer while Kennedy's test necessarily does. [And hey, making a test based upon the subjective intent of the officer has worked out so well in the context of the Fourth Amendment, right Whren?]

Sounds like a completely different test to me.

But hey, I'm willing to accept the possibility that my analysis isn't that sophisticated. It's certainly happened before. Problem is, my analysis above is already more sophisticated that the majority's opinion because their silence on the issue was deafening. Even Judge Price acknowledges in his concurring opinion that the majority dodged a potentially dispositive issue by writing "I agree that we do not need to reach the issue of which is controlling, since, in my view, the appellant should prevail under either test." [What really bakes my noodle is pondering whether this makes Judge Price's concurring opinion the narrowest possible holding. It shouldn't be because it broadly adopts both tests, but it's the one vote that pushes the opinion into the majority and shares a common denominator with the majority. Where is the Oracle when I need her?]

Sadly, the majority of the Corpus Christi Court of Appeals actually engaged in a decent analysis of the issue before they determined that the plurality opinion should control. No good deed goes unpunished. The court of appeals noted that Kennedy's opinion wasn't a logical subset of the plurality opinion and that there was no internal rule tethering the plurality and concurrence in judgement. Hell, even frakkin' wikipedia notes that courts across the country are in limbo because no one knows which opinion to apply, and as near as I can tell, that thing is edited by eight-year-olds. [Eight-year-olds, dude.] I don't think it's too much to ask the Court actually explain why Justice Kennedy's opinion was powerful enough for the majority to discard not only the plurality opinion, but also previous tests the Court itself had used. Had they done so I would find it much easier to believe the opinion wasn't about getting to a particular result and hiding behind Kennedy.

See, the majority relied upon Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003) addressed the issue with facts "similar to those presented here" if by "similar to those presented here" the majority means "not alike." Under Jones, the defendant gave an unwarned, oral confession and then, gave a warned, written confession all in the same room in an interview that lasted an hour-and-a-half total. True, Jones initially denied involvment and confessed after police indicated that they had talked to another defendant. But Jones still gave a confession without the benefit of Miranda warnings. The defendant in Martinez did not make his statement until after he'd been given Miranda warnings by both a judge and the police. Up until this year I thought actually getting a neutral magistrate involved provided a significant change in circumstances, but as I've said above, I've been wrong before.

But that's not the kicker. In Jones, the CCA adopted a totality of the circumstances test that looked suspiciously similar to the plurality opinion's test in Seibert. Whatever differences the Jones test has with Seibert, the focus was still the same, whether the second, warned statement demonstrated a voluntary relinquishment of the Fifth Amendment right. [The sad part about Jones is that Judge Cochran did a really good job presaging, as per usual, where the Supreme Court would likely go with the majority opinion. Oddly, she joined the majority in Martinez.] Looking at the analysis in Jones sure makes it look like the plurality opinion in Seibert is closer to the totality of the circumstances test applied by SCOTUS in Oregon v. Elstad than Kennedy's one-judge concurrence was. I would've thought the majority would've at least tried to harmonize its opinion with its own previous decisions, but maybe stare decisis ain't what it used to be, right Sheldon Roberts? Again, behold the power of The Vote. At this point, Justice Kennedy should just stop authoring opinions and write "Kneel before Zod."

Which all brings me back to the lie detector test. Both the majority and Judge Price's concurrence expressed great reservations about the police confronting Martinez with the fact that he failed the polygraph test. This, according to the majority, is the same as getting the defendant to go over the same ground in a written statement that he'd gone over in an unwarned statement. As Inigo Montoya might say, I do not think that means what you think it means. The rationale here is that a defendant who has already confessed is more likely to regard the request for a second confession as perplexing since he's already gone over the material. Moreover, the Miranda warnings aren't as likely to be effective if the police tell a defendant he has a right to remain silent without addressing the previous statement. This is because the defendant is likely to think he has the right to remain silent about everything except what he's already been unsilent about.

In contrast, confronting a defendant with knowledge that he lied on a lie detector test and then taking him before a judge to get his Miranda warnings doesn't obviously send the same messages. Sure, there's the "you got me" feeling, but taking the defendant before a magistrate also conveys the "holy shit, I'd better shut up" feeling. [I appreciate how ridiculous it is that we have to divine potential psychological reactions to hypothetical situations, but that's where Seibert and Martinez seems to leave us.] Unlike the Seibert situation where any barriers to collaboration with the police have already been broken down, in Martinez, the interaction was inherently confrontational. Moreover, there was no reason to believe that the Miranda warnings weren't all encompassing. Having never revealed anything, Martinez wouldn't be worried about previous admissions. If he's worried about the fact that the lie detector results would be admissible, why would he then agree to reveal more information in the subsequent, warned statement?

Now, I do agree with the majority that this looks like a continuous interrogation situation, and I appreciate that the majority wants to discourage ask-first tactics. Maybe Miranda really says the Fifth Amendment right against self-incrimination attaches at the moment of arrest such that a defendant need not even invoke it and only spontaneous admissions by defendants in custody can be used against them. If that's what Miranda says, I'm going to need more of an explanation from the Court. [But then, what else is new.] As it stands now, I fear that in its haste to get to this message, the majority may have skipped some steps and adopted the opinion of one judge without giving any reasoned justification for doing so. There may be legitimate reasons that course of action, but sucking up to Justice Kennedy because he's the swing vote sure isn't one of them.

Issue(s) Granted - 12/17/08

Ricky Tapps v. State. The Court granted Appellant’s petition for discretionary review with oral argument in this unlawful possession of a firearm by a felon case out of Travis County on the following issue:

The court of appeals incorrectly determined that the evidence was legally sufficient to support the conviction. The court of appeals has decided an important question of state and federal constitutional law in a way that conflicts with an applicable decision of the Texas Court of Criminal Appeals; to wit, Campbell v. State, 49 S.W.3d 874 (Tex. Crim. App. 2001)

Here, Tapps was had prior convictions for state jail felony offenses. He argued that the State was required to prove he had been convicted of a regular felony in order to establish that he had been convicted of a “felony” for purposes of Penal Code §46.04. He relied upon Campbell v. State, which held that the terms “felony” and “state jail felony”, as used in Penal Code §12.42, were mutually exclusive. The Austin Court of Appeals held that §46.04 merely refers to a person convicted of a “felony”, and there’s no indication that the legislature intended to treat felonies and state jail felonies differently for purposes of §46.02. [For those of you who are crazy thorough, here’s a link to the dissent in Campbell.]

Hector Rene Galvez v. State. The Court also seems to have granted the State’s petition for discretionary review in this McLennan County aggravated sexual assault case. However, the Court has yet to indicate whether oral argument will be granted and what issues it will be considering. Here’s a link to the underlying opinion and Presiding Judge Gray’s dissent. I’ll update when I know more.

Released Opinions - 12/17/08

The Court issued published opinions in the following cases:

Ex parte Rodney Reed. (Keasler) (7:1/1/1:0) Here, the Court held that Reed had failed to make a threshold showing that he was actually innocent to overcome the procedural bar to addressing his claims that the State had withheld Brady evidence. [More]

Ex parte John Benny Johnson. (Per curiam) Here, the Court awarded time credit to a defendant even though he was "technically" serving a sentence that rendered him ineligible for mandatory supervision at the time his parole was revoked. [More]

Beverly Kirkpatrick v. State. (Johnson) (9:0) Here, the Court held that the State's indictment which merely alleged misdemeanor tampering with a government record vested the district court with felony jurisdiction such that Kirkpatrick was required to object to the indictment prior to trial. [More]

Raul Adam Martinez v. State. (Johnson) (5:1:4) Here, the Court held in this capital murder (life) case that unwarned denials of invovlement and confrontation with a failed polygraph undermined the effectiveness of midstream Miranda warnings, such that a second, warned statement was inadmissible. [More]

Sheldon Roberts v. State. (Johnson) (6:1:1/3) Here, the Court held that the State cannot transfer intent to kill a pregnant mother to the unborn child in a capital murder case based upon murdering more than one individual when the defendant actually kills the pregnant mother, overruling Norris v. State. [More]

Case Summary - Sheldon Roberts v. State

Sheldon Roberts v. State. (Johnson) (6:1:1/3) Roberts and some cohorts invaded a Dallas apartment. They fired several rounds and ultimately killed three people. Roberts was with the men who did the shooting, he helped them break into the apartment, and he helped them conceal and destroy evidence after the fact. During the shooting, Virginia Ramirez ran into a bedroom yelling “Not my baby. Not my baby.” and tried to close the door. She was killed through the door. Virginia was also in the early stages of pregnancy and the baby perished with her. Virginia’s two-year-old daughter Patricia Ramirez was also in the bedroom that Virginia had run into. (A witness found Patricia unharmed and lying on top of her deceased mother.) The State charged Roberts with capital murder for killing both Virginia and another individual, namely Virginia’s unborn child. There was no indication that Roberts (or the shooter) knew that Virginia was pregnant.

Judge Johnson, writing for a six-judge majority, held the evidence was insufficient to establish that Roberts possessed the specific intent to kill the unborn child. The State argued that Virginia screaming “Not my baby” was sufficient evidence to establish knowledge that Virginia was pregnant. Johnson rejected this argument because the statement would apply equally to Virginia protecting her two-year-old daughter Patricia. [And here I thought the alternative reasonable hypothesis standard was dead.]

The State also argued under Norris v. State, 902 S.W.2d 428 (Tex. Crim. App. 1995) that the intent to kill Virginia transferred to the unborn child. The majority rejected this argument as well (and they overruled Norris in the process) because transferred intent applies to a different victim, not more than one. [So would the Court have upheld the capital case if the State had merely charged Roberts with the murder of the unborn child?] The court reformed the judgment to reflect the lesser-included offense of murder as to this victim. [He still has a capital murder conviction as to the other victims.]

Judges Price and Womack concurred to explain why they vote to overrule Norris v. State. The plain language of Penal Code §6.04 does not accommodate the double use of a single intent. Rather, in Price’s opinion, §6.04 allows transfer of intent to different victims, not multiple ones. Consequently, Norris was poorly reasoned and flawed from the outset and should be overruled.

Presiding Judge Keller dissented to explain that the evidence was legally sufficient to establish Roberts’ specific intent to kill two-year-old Patricia and that specific intent transferred to the unborn child. Moreover, this theory of liability was found in the abstract portion of the charge even though it was not contained in the application paragraph. Consequently, Presiding Judge Keller would not address the continued vitality of Norris v. State because the evidence was sufficient.

Judge Hervey, joined by Presiding Judge Keller and Judges Keasler and Meyers, also dissented because the majority overruled Norris without fully demonstrating that the reasoning of the underlying opinion was flawed. Under the majority’s current reading of §6.04 a defendant could intent to kill his wife and also murder multiple bystanders and escape capital murder prosecution. Additionally, a defendant who intends to kill two people could get the death penalty, but a defendant who actually kills three, though he intends to kill one, would not be eligible for the death penalty. Moreover, the Legislature had not acted to change §6.04 since Norris was decided. Thus, Judge Hervey concludes that Norris was not flawed from the outset and the majority presented no compelling reason to depart from the doctrine of stare decisis. [Judge Hervey also specifically calls Judge Johnson out for overruling Norris simply because the court “can” by referring to one of Judge Johnson’s opinions wherein she asked “If the Court can overrule precedent simply by saying it can, what has become of stare decisis? Ouch.]

You can read the underlying, unpublished opinion here.

Case Summary - Beverly Kirkpatrick v. State

Beverly Kirkpatrick v. State. (Johnson) (9:0) The State charged Kirkpatrick in three indictments with multiple counts of forgery under various theories of liability for presenting two letters with forged signatures and the intent that the letters be taken as a government record. Kirkpatrick did not file a motion to quash. Instead, Kirkpatrick moved for directed verdict. As to one count of felony forgery, the trial court granted the motion on the ground that the state had merely alleged misdemeanor forgery, but kept the “tampering with governmental records” cases. On appeal, Kirkpatrick complained that the indictments alleging tampering with a government record merely alleged misdemeanors and the trial court never had subject matter jurisdiction to consider the indictments. The court of appeals agreed and dismissed both indictments for want of jurisdiction. (It also reversed and remanded on the remaining indictment, but the State did not seek discretionary review on that case.)

A unanimous Court reversed the court of appeals. Even though the indictments failed to allege all the elements of felony tampering with a governmental record, there was sufficient notice of the State’s intent to charge felony offenses. The indictment’s return to a felony court put Kirkpatrick on notice that the charging of a felony offense was intended. Also, the heading of the indictment indicated the State had attempted to charge a third degree felony even though it had left out an element necessary to allege a felony. This indictment was an “indictment” sufficient to bestow subject matter jurisdiction on the trial court. Consequently, Kirkpatrick was required to object to any defects of substance in the indictment (like the failure to allege elements necessary to make the offense a felony). Her failure to do so waived error. The court reversed in court of appeals cause numbers 05-06-01274-CR and 05-06-1230-CR. The CCA remanded the later for reconsideration of a remaining issue. Here's the CCA case info for No. 05-06-01230-CR and No. 05-06-01274-CR, if you're interested.

The underlying, unpublished opinion can be found here.

Case Summary - Raul Adam Martinez v. State

Raul Adam Martinez v. State. (Johnson) (5:1:4) Martinez and one of his buddies robbed three men at gunpoint. They shot each man after taking their money. Two of the victims recovered, but one did not. Police arrested Martinez on a pocket warrant and took him to police headquarters where they questioned him about the robbery and murder. They did not read him his Miranda warnings. Martinez did not make any admissions and denied knowing anything about the crime. Police then took Martinez to take a polygraph test. The record does not reflect which questions were asked or what Martinez answered. However, the record does indicate that Martinez “failed” the polygraph examination, and the investigating detectives told Martinez this. After this, police took Martinez to a magistrate who read Martinez his Miranda warnings and his statutory warnings. Upon Martinez’s return to the central holding, police again read Martinez his rights before asking him questions about the offense. At the beginning of the video, Martinez stated that he had become aware of the facts of the crime from the polygrapher. Martinez then admitted he was there during the robbery, but only as a lookout.

Martinez filed a shotgun motion to suppress, which the trial court denied after a hearing featuring the testimony of one detective as the State’s sole witness. The trial court found the detective credible and that Martinez had voluntarily and knowingly waived his right to remain silent. At trial, Martinez renewed his objection and referenced the case of Seibert v. Missouri, which was, at that time, still only a Missouri state case.

On appeal, Martinez argued that the State’s failure to read him his Miranda warnings before the initial interrogation and polygraph examination rendered the later Miranda warnings ineffective and the second statement inadmissible. While the case was pending on appeal, the United States Supreme Court rendered its opinion in Missouri v. Seibert. In Seibert, a five-member majority of the Court held that a second, warned statement taken after an earlier, unwarned statement was inadmissible because the second Miranda warnings were not effective. Unfortunately, the judges could not agree on the rationale. A four judge plurality crafted a multi-factor test to determine whether Miranda warnings delivered midstream could be effective. Justice Kennedy delivered a concurring opinion where he called for a more narrow test that requires suppression whenever two-stage interrogation is done deliberately or in a calculated way to undermine the Miranda warnings. Bless their hearts, the Corpus Christi Court of Appeals applied the plurality opinion’s five-factor test, determined that the statement was admissible, and affirmed the trial court. Justice Yanez filed a dissent applying Kennedy’s rule and arguing for reversal.

Judge Johnson, writing for a five-judge majority, reversed the court of appeal and held that statement should not have been admitted. Finding Kennedy’s reasoning persuasive, the majority determined that the record established that the police had deliberately used a two-stage interrogation technique in a manner calculated to undermine the Miranda warnings given prior to the second statement. The State argued that Martinez had failed to present a sufficient record to support his claim and that unlike Seibert there was nothing in the record to indicate that Martinez had previously made an incriminating statement that rendered the warnings before the second statement ineffective. Johnson rejected this argument because the officers referred to information learned earlier suggesting that there was no break in the interrogation. Moreover, the polygraph test in and of itself poses great concern, according to Johnson, because the officers should have warned Martinez of his right not to take the polygraph or that his answers to it would be inadmissible. This, coupled with references to information learned before the polygraph, likely created a belief in Martinez’s mind that he was compelled to go over the same ground again.

[W.T.F?]

Finally, the majority noted that no curative measures were taken by the State at the beginning of the second interview. There wasn’t a substantial break in time or circumstances between the first and second interview. Police never told him his previous refusals to provide any information were inadmissible because they were not preceded by Miranda warnings. Police never told him he was not obligated to repeat the incriminating information that he did not give. Police didn’t refrain from referring to the previous unwarned denials of culpability, and when they did refer to that, they didn’t tell Martinez he wasn’t obligated to talk about his initial denial of knowledge about the crime. Consequently, the failure to warn Martinez of his Miranda warnings initially and the failure to adopt any curative measures rendered the second statement inadmissible because the midstream Miranda warnings were not effective. The Court remanded to the court of appeals for a harm analysis.

Judge Price concurred to express how he is not entirely unsympathetic to Judge Hervey’s dissent. However, Price opined that the statement should have been suppressed regardless of whether the Court applied the Seibert plurality or Justice Kennedy’s concurrence. Price agreed with the majority’s position that confronting a defendant with a failed lie detector test has the same impact on a defendant as reminding him of his earlier confessions. Thus, the defendant fails to appreciate his right to remain silent under either scenario. Price also agrees that in such circumstances police much adopt curative measures to make sure the midstream Miranda warnings are effective. Because they didn't, in his view, the statement should have been suppressed.

Judge Hervey, joined by Judges Keasler and Meyers as well as Presiding Judge Keller, dissented to note that both Justice Kennedy’s one-judge concurrence and Justice Souter’s plurality opinion contemplate an actual unwarned confession that precedes the warned one. The rationale behind Seibert is that a defendant who has already confessed is not likely to feel like he can remain silent when he’s lead over the same ground. Thus, the dissent would hold this case distinguishable from Seibert because Seibert confessed twice while Martinez’s first confession occurred after he was read his Miranda warnings. Moreover, Martinez did not present a sufficient record to establish that police actually used the “question-first” technique at issue in Seibert or that they did so in a calculated way to undermine Martinez’s Miranda warnings.

[I see four issues with this case off the top of my head. First, does confronting a defendant with a failed polygraph test before reading a defendant his Miranda rights result in the same psychological reaction from an unwarned defendant as reminding a defendant about previous unwarned admissions after reading him his Miranda rights? Second, does taking a defendant before a magistrate for Miranda warnings provide a change in circumstance sufficient to ameliorate the police interrogation? Third, where was the burden breakdown? Was it the State’s failure to prove that Miranda was effective, or was it the defendant’s failure to adequately inform the trial court that the State had to disprove a deliberate two-step interrogation? Finally, is Justice Kennedy’s one-judge concurrence a more narrow holding or a different test altogether? I don’t have the answers right now, but I’ll probably try to find them in a later post.]

Case Summary - Ex parte John Benny Johnson

Ex parte John Benny Johnson. (Per curiam) Johnson was convicted of theft of a car and sentenced to twenty years in prison. He filed a writ to get credit for the six years and four months of his sentence that he spent released on mandatory supervision. He had been released on mandatory supervision until it was revoked when he was convicted of aggravated assault and sentenced to two years. So, the question came up where Johnson was an inmate ineligible for parole under §508.149(a) of the Government Code at the time his parole was revoked. The Parole Division conceded that he was eligible for parole at the time he was revoked even though “technically” he was serving time for the aggravated assault when he was revoked because he’d been arrested on it (and given time credit for it) prior to revocation. The Court held that this interpretation of §508.149 was untenable because the statutes for computing time focus on status at the time of revocation, not the begin date of the sentence that leads to the revocation (he was sentenced on the aggravated assault after revocation). Consequently, the CCA granted relief.

Case Summary - Ex Parte Rodney Reed

Ex parte Rodney Reed. (Keasler) (7:1/1/1:0) Reed was charged and convicted of the capital murder of Stacey Stites. Her partially clothed body was found by the side of a desolate country road. He had been sexually assaulted and strangled to death. Police investigated numerous suspects including Stites’ fiancée, Jimmy Fennell who was the last person to see her alive, and David Lawhon who had previously murdered another woman and bragged about killing Stites. However, DNA excluded both Fennell and Lawhon. Moreover, Lawhon had an alibi. In contrast, repeated DNA evidence could not exclude Reed as the donor of the semen, and he told police that he did not know Stites except from the news.

Reed complained that the State had withheld exculpatory evidence regarding DNA testing of some beer cans found near Stites’ body. The DNA from the can excluded Reed and excluded Stites if the DNA was from a single source. However, it could not exclude Stites if the DNA was a mixture. The results came in during the middle of trial and a copy of the report was not filed with the clerk. However, Lisa Tanner, the prosecutor on the case, testified at the writ hearing that she believed she gave a copy of the report to Reed’s defense team as part of her standard practice. She also pointed to the existence of three (instead of four) copies of the report found in the case file which suggested to her that she’d turned a copy over. Reed claimed he did not get it until the State attached it as an exhibit in response to his original writ of habeas corpus. The trial court adopted the State’s proposed findings and held that the State did not intentionally suppress Brady evidence, but even if the evidence had been turned over, it would not have made a difference because Reed’s own expert had reached the same conclusion reflected in the report.

In his subsequent writ, Reed argued that the State had suppressed 1) the DNA on the beer cans, 2) eyewitness testimony placing Fennell and Stites together the morning of the murder, 3) suspicious statements made by Fennell about the best way to strangle someone, 4) reports from family members that Stites had been seen with a man who was not Reed the morning of the murder, and 5) longstanding information that Fennell and other local officers displayed a pattern of brutality towards suspects. With regard to the testimony that a witness saw Fennell with Stites before the murder, the CCA adopted the trial court’s finding that this testimony had been conveyed to the State after Reed’s trial so the State was not in possession of the evidence prior to or during trial. (Basically, the attorney for the witness told the District Attorney that he had exculpatory evidence, but the District Attorney believed the exchange took place after trial without the name of the witness ever being conveyed.) Similarly, statements Fennell made concerning the use of a belt to strangle someone as a way to avoid fingerprints were not conveyed to the State until after Reed had been tried.

After determining that the evidence Reed pointed to lacked credibility, the Court denied relief on Reed’s Schlup v. Delo claim, which Reed had raised as a gateway for other procedurally barred claims. The Court noted that Reed had already failed to prove he was actually innocent under the more stringent Herrera v. Collins test. Reed argued that two statements given by Robert and Wilma Robbins implicated three unknown white men in a truck in the murder based upon seeing these men near the area where the body was found on the morning that the body was found. However, both the trial court and the Court found that this evidence lacked credibility. Reed also submitted affidavits showing a relationship between Reed and Stites to support his claim that he’d had consensual intercourse with her and that someone else had murdered her. Both the trial court and the Court found this evidence lacked credibility. (Indeed, one of the witnesses that was supposed to exonerate Reed said in an affidavit for the State, “All I ever said was that Robert Reed was a crackhead who raped girls.”) The Court also found evidence submitted by Reed that Lawhon had admitted to murdering Stites to lack credibility particularly because DNA testing excluded him as a possible suspect.

Thus, the Court held that all reliable evidence old and new produced by Reed failed to compel the conclusion that it is more likely than not that a reasonable juror would not have voted to convict. Unlike most gateway innocence claims, Reed’s lacked a cohesive theory of innocence. As the Court explained, “By focusing on a romantic relationship between himself and Stacey as well as pointing to several alternative suspects--Fennell, Lawhon, and some unknown dark-skinned man--the new evidence before the Court fails to tell a complete, rational exculpatory narrative that exonerates Reed.” Because the evidence presented by Reed failed to meet this gateway standard, the Court refused to consider the merits of Reed’s Brady claims.

Presiding Judge Keller wrote a concurring opinion arguing basically that the Court could have resolved the case by simply deferring to the findings of the trial court. Keller acknowledges the case law designating the CCA as the original fact-finder in such cases, but suggests that the language in those cases is largely dicta. Keller also expressed concern with the language that would allow the Court to not defer to the trial court in “rare exception” without setting out what constitutes a rare exception. Judge Price also concurred to disagree with Presiding Judge Keller because it would relegate the CCA to the role of an appellate court when the Texas Constitution and the Legislature has vested the CCA with original jurisdiction over writs. That would be, in Price’s view, an abdication of the Courts’ constitutionally and statutorily assigned authority.

[This is a long, factually detailed opinion, and I've probably skipped over many important details. I had a hard time reading this as it appears the Court considers all the evidence in order to evaluate whether it is credible before diving into the ultimate resolution of whether Reed had made a threshold showing of his innocence. The downside to this approach is that the Court looks like it’s actually evaluating the merits of the underlying claim, rather than merely pointing out that Reed can't make his threshold showing because he relies upon evidence that lacks credibility. So, in that sense Presiding Judge Keller is right, the majority could've provided much less detail and simply deferred to the trial court's factual determinations because they are supported by the record. However, Judge Keasler is pretty smart by detailing all this evidence in this manner because it may protect the case more on federal review. For an opinion that basically holds that the applicant procedurally defaulted on a claim, this one shows a great deal of care and consideration of all the evidence that the defendant presented. I can't help but feel that At least, that’s the way I read it.]

When Judges Get Spirit Fingers

Back in October, the Supreme Court decided not to hear the case of Pennsylvania v. Dulap, a drug bust case. The thing that seemed to catch everyone's attention was not the denial of cert., however, but the way in which Chief Justice Roberts chose to dissent to that denial. He started his dissent with these two paragraphs:

"North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

"Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up thebuyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office."

The Washington Post wrote about how Roberts had channeled his inner Mickey Spillane. The Weekly Standard called him an admirable public servant for it. CNN noted how this isn't the first time he's spiced up his writing. He's even quoted Bob Dylan. How cool is that!

Should it bother me that judges are becoming more "entertaining"? Professor Mary Kate Kearney doesn't seem to think so. She wrote a wonderful and thorough law review article detailing the propriety of judges using poetry in their judicial opinions. She titled it "The Propriety of Poetry in Judicial Opinions". Natch. I wonder if Judge Meyers would agree with Professor Kearney. His recent dissent in Sheppard v. State also reminded me of Chief Justice Roberts' jazz hands even though Meyers was decrying sentationalism on the part of advocates even while practicing it himself.

Still, this push for sensationalism or entertainment or coolness or whatever always kind of bothers me when I read it. I don't know why judges choose to show us glimpses of their artistic or witty side in judicial opinions. Maybe the judges that do so regret choosing law over fiction. (Or did they chose the best of both worlds by being judges?) And it's human to want people to think you're smart or cool, and I'd imagine that once you become a judge, you've pretty much given up any claims on hipness. [Unless you're a judge who can use a quote from Billy Madison to insult a pro se litigant. I still laugh at that line. I'm probably going to hell.]

Obviously, there's an element of bending your skill-set or talent to fit a particular problem. By being more creative, the ideas are communicated more effectively. A well-turned phrase can resonate with the reader. It may help him or her understand a particular issue on multiple levels and make the resolution easier to remember. You certainly win over more audience members that way. A clear, memorable explanation of the law helps breed consistency of interpretation both now and long into the future. So there are certainly positives that come from trying to update to a hipper approach.

Indeed, maybe judges do it to "stay relevant" by emulating the common level of discourse. As much as I love some of Scalia's ripostes and the back-and-forth between the majorities and the dissenters, I can't help but feel, sometimes, that I'm reading a monologue from Countdown with Keith Olberman or a transcript from a debate on Hannity and Colmes (or Hannity and Hannity as the case may now be).

I don't know about you, but I find myself troubled by with what passes for news these days. I'm not exactly psyched about the thought that judicial opinions could be moving that way. Will judges start to revel so much in their cool-witty-hip-cleverness that they risk sacrificing good, well-reasoned opinions for the clever turn of phrase or the unique, obscure reference?

Yes, I appreciate how some might see this as ironic coming from me, the guy who titled his article in reference to Bring It On. [Note the director's restraint in not using the exclamation point in the movie title.] But I'm not a judge. I'm just a blogger. I started this whole gig, at least in part, so that I could find an outlet where I could think and talk about the law in a more relaxed setting. [How unfortunate for you.] In my work, however, I don't stuff my communications with the courts with worthless trivia and snarky commentary. [Hard as that may be to believe.] I sweat whether such tactics are too cute, and I've paid for it on the two occassions that I knowingly pushed the envelope. [Hell, I've even wreslted with that dilemma on this blog. I had to create a separate blog just for my random musings unrelated to law or the Court.]

And at the numerous seminars where judges sit on panels to tell me what they are looking for I've never once heard anything like: "Please be more hip. If you get a chance, pattern your statement of facts after a Mike Hammer story. The books, not the Armand Assante movie or the Stacey Keach TV show. And if you can work in a Bob Dylan quote we'll give you a free T-shirt from our court's gift shop. Shouldn't be that hard, they did it in Battlestar Galactica." If that type of thing damages a lawyer's credibility, doesn't it do twice the damage to the judges?

The way I see it, law is man's attempt to make his will tangible. Formality is a necessary part of that. You can recite an incantation, but you can't cast a spell without holding a wand or waving your arms. I'm not saying we should start throwing dirt at people when we sell houses. [Yes, I've now managed to find a way to refer to both spirit fingers and livery of seizen in one blog post. Where's my free T-shirt?] But being too clever or entertaining can open the writer up to criticism that he or she is not serious. After all, we appoint or elect them to be judges, not clown shoes.

But really, what's the harm? These judges are still excellent writers. Maybe there's an errant comparison to a literary figure or genre instead of boring reliance upon case law. So what? Maybe I'm still scarred from having to interpret Palsgraf v. Long Island Railroad in law school.

And the Big C reminds me that this really is nothing new. Judges faced with the task of conveying important announcements are going to want to rise to the occasion and craft Churchillian prose. That means the more trivial cases are more likely to get a little more of the variety show treatment. Try a new style here. Turn a phrase here. Relate the entire thing to Spider man. It's fun to read and e-mail your lawyer frieds about. Oh and hey, good luck interpreting this new idea "proximate cause".

I guess it's the potential for artistry to replace analysis that concerns me. My fear is that judges may get too clever for their own good. And since get to make their own rules (I'm looking at you Clewis v. State) there's not a lot to keep the egos in check. I find it hard enough to keep my own ego in check, I can't imagine the discipline it must require at those heights.

I don't know. Focusing on the way people say things instead of trying to figure out what they are saying is a sure way to create misunderstanding. I guess I should just shut up and get back to reading opinions.

But one thing's for sure, I can't wait to read an opinion where Judge Cochran find a way to cite to Ludacris.

Issues Granted - 12/10/08

Hernan Arquimides Ramos v. State. The Court granted Appellant's petition for discretionary review with oral argument in this Harris County forgery of a government instrument case. The Court will consider the following issues:

1. Did the court of appeals err in holding that the term government “instrument” in Texas Penal Code §32.21(e)(3) (forgery) is a broad term that encompasses the “government record[s]” in §32.21(e)(2)?

2. Did the court of appeals err in holding that a social security card may properly be a “government record” or a “government instrument” for the purpose of the forgery statute?

3. Did the court of appeals err in holding that the term “instrument” as used in the forgery statute is a word in common use, its meaning clear and well understood by the ordinary person, rather than a term with an acquired technical legal meaning so as to require definition in the jury charge?

Here, Ramos got caught in a sting operation after police learned that he was selling counterfeit social security cards and counterfeit resident alien cards. He sold a counterfeit social security card and a counterfeit resident alien card to a CI. The First Court of Appeals upheld the conviction. Under the forgery statute the State was required to prove that Ramos forged a "writing". If that "writing" is a "government record" or "other instrument issued by a state or national goverment" it's a felony. Ramos argued that "instrument" had to have a narrow reading so as to be different from a "government record" because "instrument" appears in a different subsection than "government record". The court of appeals disagreed, holding that "instrument" is a word of common usage that would include a social security card. Moreover, the "government record" section was added to the statute after the "instrument" section existed, suggesting that "instrument" had a broad meaning.

Ramos also argued that the State had to prove the evil social security card in question was authentic and since the State had only proved Ramos had possessed a fake one, Ramos could not be guilty of forgery. The court disagreed and held that the State had proven that Ramos had altered, made, completed, executed or authenticated the social security card, which purported to be the act of the United States government who did not authorize the act.

Finally, Ramos complained that the trial court should have used the definition of "instrument" found in the Texas Business and Commerce Code in the jury charge rather than submitting the case to the jury without defining "instrument". The court, having already found that "instrument" is a term of common usage, said no definition was required. And, even if it had a technical meaning in the context of the Business and Commerce Code it did not have one in the context of the forgery statute.

[Look, if this isn't forgery, what is? That said, Ramos does make a decent, common-sense point when he notes that "instrument" appears to be a term of art. I can't think of a time when I ever used the term "instrument" to describe something issued by the government. I certainly didn't do so before law school. But if "instrument" can be synonymous with "document", then I guess it does have a common, easily understood meaning.]

You can read the published opinion of the First Court of Appeals here. There were no dissents.

Randall Anthony Garcia v. State. The Court granted Appellant's petition for discretionary review with oral argument in this Harris Couny murder case. The Court will consider the following issues:

1. The court of appeals erred by ruling Appellant had failed to show chain of custody of items still in the custody of the State and its agencies.

2. The court of appeals erred by ruling Appellant had failed to show the evidence he sought to have tested was not previously subjected to DNA testing.

While this is billed as a murder case, it's really a denial of DNA testing appeal. Here, Garcia submitted several affidavits from all the relevant law enforcement agencies that listed what evidence each agency had in its possession. However, the affidavits did not describe the condition of the evidence or whether it had previously tested for DNA. Consequently, the First Court of Appeals held that Garcia had failed to carry his burden to show that the evidence still exists in a condition to be tested. While the affidavits show the present custodians of the evidence they don't show a chain of custody.

[So the State can avoid DNA testing by merely having its agents provide conclusory affidavits? Is that what the CCA's getting at? Or is it that Garcia was supposed to press harder for more details in the affidavit?]

You can read the unpublished opinion from the First Court of Appeals here.

Rudy Gonzales v. State. The Court granted the State's petiion for discretionary review with oral argument in this Jackson County felony DWI. The Court will consider the following issues:

1. Did the court of appeals err in concluding that the evidence was insufficient to sustain respondent’s conviction for driving while intoxicated?

2. Did the court of appeals err in effectively concluding that the written statement of a county judgment effectively overrules an act of the legislature?

3. Did the court of appeals err in concluding that a judgment of the County Court of Colorado County, Texas, which stated that “the Court having heard the information rad and the evidence submitted thereon it is considered and adjudged by the Court that the defendant is guilty as charged in the information” did not contain an adjudication of guilt?

4. Did the court of appeals err in concluding that Respondent’s conviction in the County Court of Colorado County, Texas was unavailable for enhancement purposes because it was not a final conviction?

5. Did the court of appeals err in concluding that it had no authority to reform the judgment to reflect conviction of respondent on a lesser-included offense because the jury charge did not authorize Respondent’s conviction for the lesser-included offense of misdemeanor DWI with one conviction?

6. Did the court of appeals err in ordering a judgment of acquittal in this case?

Wow, six points of error from such a short, unpublished opinion. The State must be pissed. Here, Gonzales committed felony DWI in 2002. He was charged with felony DWI based upon a 1987 DWI conviction and a 2000 DWI conviction. Gonzales was placed on probation in 1987 and his term of probation was set to end in 1989. However, the State filed a motion to revoke and extended the probation to 1991. Gonzales argued that the 1987 DWI was too remote because you count from 1989. The State argued it wasn't too remote becuase Gonzales was discharged from probation in 1991, putting the first DWI within 10 years of the 2000 DWI.

And as if the excruciating stroll down DWI enhancement lane wasn't bad enough, the Corpus Christi Court of Appeals avoided the whole ten-year-rule calculations in Getts v. State by holding that Gonzales was never adjudicated on the 1987 conviction because one paragraph of the judgment said he was adjudicated while the next paragraph said the adjudication was withheld so Gonzales could be put on probation. [By the way, you can put away your calculators, the State gets Getts right, Gonzales doesn't.] So, according to the court of appeals, the State didn't prove the two DWI priors it needed to get into felony court on the third DWI. That's why the court of appeals ordered an acquittal.

[Note: The Corpus Christi Court of Appeals does know that the main case it relies upon, Savant v. State, 535 S.W.2d 190 (Tex. Crim. App. 1978), interpreted a an outdated version of Article 42.01 in holding the judgment void in that case, right? And they've looked at the Dallas Court of Appeals case upholding a conviction based upon a similar DWI prior, right? See Williamson v. State, 46 S.W.3d 463 (Tex. App.--Dallas 1991, no pet.). I see a history lesson in this case's future. Also, given the CCA's recent holding in Haynes v. State, it seems like the aquittal was the appropriate remedy since no lesser for misdemeanor DWI was given to the jury. This would mean the State's fifth and sixth points of error probably won't prevail if the CCA sides with the court of appeals' determination that Gonzales wasn't adjudicated on the 1987 DWI. Not that I found Judge Hervey's reasoning in that Haynes as persuasive as Presiding Judge Keller's and Judge Cochran's dissents, I'm just sayin' is all.]

We Three Opinions - Today's Opinions 12/10/08

Juan Ramon Meza Segundo v. State. (Cochran) (9:0) This is the same capital murder case from about a month ago where Segundo raped and strangled an eleven-year-old girl because that’s what he does. The Court granted Segundo’s motion for rehearing to consider a point of error relating to the introduction of information contained in parole-revocation documents. The Court had previously considered the issue unpreserved because Segundo failed to direct the Court to where the certificates could be found in the record. Consequently, Segundo pointed out that he’d filed a supplemental record containing the certificates, and the Court pointed out he failed to file a supplemental brief noting this. The Court granted his motion for rehearing and rejected his claim that the certificates contained testimonial statements that violated Crawford. The complained-of language in the certificates recited that Appellant “failed to fulfill the terms and conditions of said release, and is therefore not worthy of the trust and confidence placed therein," that he "has violated the conditions of administrative release," and that he was an "administrative release violator.” This language did not violate Crawford because the language was mere “boilerplate” language on a pre-printed form. Unlike situations where such documents contained recitations of facts recounted by officers, these statements set out sterile and routine recitations of official findings. They merely set out that Segundo had violated his parole and he was subject to re-arrest. They had none of the features of a subjective incident report made by a law enforcement officer. These were public records like a record of a conviction, so the statements were non-testimonial. [The Court fails to mention that there’s no way to even attribute the statements to a particular speaker that could be cross-examined, a practical consideration that may have also had something to do with the outcome of the case.]

There is no underlying opinion as this is a death penalty case.

Michael Harvey Sheppard v. State. (Cochran) (7:1:1) Sheppard threatened Arther Schneider with a knife while Schneider and his friend, Emily Miley, were sitting around Sheppard’s trailer doing speed. Schneider (sans friend Emily) called the police to report it and he led Anderson County Deputy Sheriff John Smith to Sheppard’s trailer to investigate. Smith knocked on the door and the first thing he noticed when Sheppard opened the door was the . . . wait for it . . . strong chemical odor coming from inside the trailer. Smith frisked Sheppard and found a large folding knife in Sheppard’s front pocket. Smith also handcuffed Sheppard and told him he was just being detained until he could secure the scene and see if anyone else was inside. As Smith walked through the trailer he saw, in plain view, a clear plastic bag on the dining room table, a purse with some needles in it, and an orange box containing a powdery substance. After Smith was assured there was no one else inside, he released Sheppard from the handcuffs and called the drug task force because he didn’t know anything about meth labs or if this even was a meth lab. Smith asked Sheppard to sign a consent-to- search form, which Sheppard did. The drug task force searched the trailer and found a pitcher containing crushed-up pills and some type of solvent or acetone in it. The officers also found methamphetamine and a variety of methamphetamine-manufacturing materials.

At the suppression hearing, the trial court suppressed the evidence and entered written findings of fact and conclusions of law. The Tyler Court of Appeals disagreed with a number of the trial court’s legal conclusions, but it affirmed the trial court’s ruling in an unpublished opinion. The court of appeals determined that the trial court must not have believed Deputy Smith because the trial court had concluded that Deputy Smith’s pat-down of Sheppard lacked justification.

The Court of Criminal Appeals reversed and held that the objective facts supported Deputy Smith’s temporary detention of Sheppard, the subsequent pat-down search, the protective sweep of the trailer, and the request for consent to search after observing the drug paraphernalia in plain view. According to the majority, both the court of appeals and the trial court mixed up their findings of fact with their conclusions of law. The trial court’s findings were supported by the record, but the conclusions did not flow from them. Based on those findings, Deputy Smith had two different, objective bases for the initial pat-down, namely the weapons allegation and Schneider’s admission of doing speed in Sheppard’s trailer. The Court rejected the court of appeals assertion that the trial court disbelieved Smith because it had determined that Smith’s pat-down lacked justification. According to the Court, this was a legal determination, not a factual one; had the trial court disbelieved the Deputy, it needed to make an express finding of that disbelief. Moreover, the trial court’s finding that Deputy Smith “gave no valid reasons or bases for his concerns” was irrelevant because the objective facts provided justification for Deputy Smith’s actions. Finally, the Court also determined that Sheppard was not “arrested”, even though he’d been handcuffed. He was merely detained. [The Court noted that Article 15.22 of the Code of Criminal Procedure was of no help in determining whether Sheppard was under arrest.] The factual findings the trial court made supported the conclusion that Smith had temporarily detained Sheppard in order to do a protective sweep that ended properly when the need for the sweep was over. Smith’s conduct was reasonable under the Fourth Amendment. Presiding Judge Keller concurred in the result without an opinion.

Judge Meyers dissented because he disagreed with the Court’s characterization of the trial court’s ruling and the Court’s failure to limit its analysis to the issue granted. According to Meyers, the State had postulated “irrelevant grounds in order to persuade a majority of this court into granting review on an issue that seems interesting and important.” The State’s discretionary review sought an evaluation of whether Article 15.22 determines the criteria that governs arrest for the Fourth Amendment, but answering that question did nothing to suggest that the trial court improperly granted the motion to suppress. Had the State asked for review of the question on whether the search was supported by reasonable suspicion, the petition probably wouldn’t have been granted. Judge Meyers ultimately felt that the Court should’ve deferred to the trial court rather than give the State a second chance to admit evidence that was legitimately suppressed. Even though there were facts that would support the frisk and detention, the Court should not have presumed error when there was a legal theory that supported the trial court’s ruling.

[Frankly, I’m a little disappointed in Meyers here as he seems to rail against the litigators for trying to be and succeeding at being persuasive as if persuasiveness is an evil unto itself. However, in making his arguments he acknowledges that the State wouldn’t have gotten the Court’s attention without being persuasive. I appreciate the flash-over-substance argument he seems to be making, but the officer’s conduct here seemed reasonable and constitutional even based upon the facts that the trial court found. While Meyers suggests that there was a legal theory to support the trial court’s decision, he doesn’t really articulate it except to say that the trial court disbelieved the officer. This makes it seem, to me at least, like the prosecutors really had to engage in the very persuasiveness he seems to condemn because the Court isn’t a careful enough body to consider a legitimate issue unless they are part of an appellate shell game. Of course, in his defense, the Article 15.22 part of the opinion does seem like an afterthought.]

Stephen Ruffin v. State. (Cochran) (9:0) Coryell Sheriff’s deputies were dispatched to Ruffin’s rural property after gunshots were reported. A month earlier, Ruffin’s had indicated to Deputy Carol Brown (a friend of the family) that Ruffin’s mental health was deteriorating. Deputy Brown informed the officers of this before she and they were dispatched to the scene. As the officers approached the house, Ruffin yelled from the nearby woods for them to “get out of here.” A lengthy “standoff” followed where Ruffin declared martial law and repeatedly fired at ten different officers from the woods around his house. Fortunately, no one was injured. Finally, SWAT and a police negotiation team arrived. The negotiator got Ruffin to come out. When he did he seemed startled when he saw the police and the patrol cars outside. Ruffin was charged with ten different aggravated assaults against peace officers. [I’ve only provided a link to one case as the opinions are all the same.] He later claimed that he was delusional and he thought he was firing at Muslims. Several lay witnesses testified about Ruffin’s mental status, but the trial court excluded testimony from Ruffin’s psychologist that Ruffin had suffered from deep depression in the months before the standoff that lead to a psychotic state. The trial court excluded the testimony because such testimony was only admissible in a homicide case or where a defendant raises an insanity defense.

The Court of Criminal Appeals unanimously reversed, reaffirming its earlier holding in Jackson v. State, that both lay and expert testimony of a mental disease or defect is admissible to directly rebut a particular mens rea necessary for a charged offense unless it is excluded under a specific evidentiary rule. The Court acknowledged that there is no defense of “diminished capacity”. However, the Court went on to note that both physical and mental diseases or defects can affect a person’s perception of the world such defects may affect his rational understanding of his conduct or his capacity to make moral judgments. For example, a blind person that hears a person trespassing may fire at that person without knowing the person is a police officer. Evidence that the defendant is blind would be relevant to rebut the State’s assertion that the defendant intended to shoot a police officer. Similarly, evidence of a mental defect that makes a defendant see “Muslims” instead of police officers would be admissible to negate the State’s assertion that the defendant intended to fire at police officers. While the Supreme Court recently upheld a ban on “diminished capacity” evidence in Clark v. Arizona, the Court chose to reaffirm the admissibility of such evidence in Texas based on its faith in juries to evaluate such evidence. Here, the trial court erred by applying a blanket ban to the admissibility of Ruffin’s expert testimony even though the testimony was relevant. However, the Court remanded to the Court of Appeals to determine whether the trial court could have excluded the testimony under Rule 403. [I don’t like the opinion, or this rule, particularly after Clark. It seems like it turns the affirmative defense of insanity with a lot of procedural requirements into a regular defense of mental defects with no burden and few procedural requirements. So, is the Court making a policy determination by interpreting the rules of evidence this way, or refraining from doing so by interpreting the rules of evidence this way?]

You can read the underlying opinion here. The Waco Court of Appeals affirmed the trial court and will now consider whether Rule 403 operates to exclude such testimony.

Today's Opinions - 12/3/08

It's writ day, it's writ day.

Not surprisingly after the Thanksgiving Holiday, there are not new published opinions or issues granted. For the sake of completeness, here's a link to today's hand down list.

No, Really, Issues Granted - 11/26/08

Angel Resendez v. State. The Court granted the State's petition for discretinary review with oral argument in this Harris County murder case. Here are the issues:

1. Did Appellant preserve an Article 38.22 claim when he failed to mention Article 38.22 at the suppression hearing and he filed two suppression motions - one that wholly failed to mention Article 38.22 and another one (filed one year earlier by a different attorney) that merely cited Article 38.22 in the rubble of a shotgun objection globally citing numerous authorities?

2. Was Appellant in custody once he admitted shooting Amanda when there was insufficient "other circumstances," per Dowthitt, that would lead a confessing person to believe he was under arrest?

This case has some procedural wrinkles as the State filed for rehearing twice and the court of appeals kept issuing different opinions responding to arguments from the State. (And the State won the suppression hearing in the trial court so the court of appeals is required to consider every possible reason to uphold the trial court's ruling.)

In the substitute majority opinion, the court of appeals reversed and remanded for new trial because, according to the court of appeals, the trial court should've suppressed the defendant's second videotaped statement to police. Put indelicately, this case was kind of jacked up as the trial court took judicial notice of Resendez's testimony in Perez's trial for use in the suppression hearing even though Resendez wasn't represented by counsel during part of the testimony (he was ordered to return to the stand even though counsel wasn't present). The court of appeals also seemed pretty ticked that the police didn't tell Resendez he could leave when Resendez first admitted to shooting Garza in the second interrogation. They collapsed the four factors set out under Dowthitt for determining custody to two. Because Resendez's statment that he shot Garza gave the police probable cause to arrest him and the investigation had focused on him, the court of appeals determined Resendez was in custody at the time of the second statement. Thus, the court held that the statement was inadmissible because Resendez hadn't been given his Miranda (or statutory) warnings while he was questioned and in custody. Judge Frost concurred in the result of the substituted opinion to note that even if Resendez's testimony had been relied upon it still would not change the court's conclusion that Resendez was in custody the moment he admitted to killing Garza.

Cut to May of 2008. The court issued a supplemental opinion on the denial of the State's motion for rehearing. Here, the court considered the State's argument that the Miranda warnings from the first statement (two days earlier) were still in effect. The court agreed that the statement wasn't taken in violation of Miranda, but they were taken in violation of Article 38.22 because the officers didn't recite the warnings on the videotape. As you can guess from the granted issues, Resendez had cited to Article 38.22 in the first of his two motions to suppress, but there it was part of a global objection and Resendez's new attorney filed a second motion and never argued Article 38.22 to the trial court at the suppression hearing. Judge Frost was swayed even further by this argument and wrote a dissenting opinion to argue that the case should be affirmed because Resendez hadn't raised the Article 38.22 complaint to the trial court. After chronicling all this I feel kind of sorry that I don't have any resolution for you. We'll all have to wait to see what the CCA does.

Jonathan James Moore v. State. The Court granted the State's petition for discretionary review without oral argument in this Montague County manufacturing methamphetamine case. Here are the issues:

1. May a complaint that the trial court erred by adding conditions to a plea bargain between the State and the defendant and not "allowing the defendant the opportunity to withdraw his plea" when the trial court assessed a punishment greater than that agreed to by the parties be raised for the first time on appeal?

2. The court of appeals erred by failing to conduct a harm analysis after finding that the trial court erred by adding conditions to a plea bargain between teh State and the defendant and not "allowing the defendant the opportunity to withdraw his plea" when the trial court assessed a punishment greater than that agreed to by the parties.

What you can't tell from the issues is that the defendant skipped town rather than return for sentencing after pleading guilty. The court of appeals reversed noting that this case was very similar to Joshua Moore v. State where the State and the defendant bargained for a remedy when the defendant failed to live up to his end of the plea bargain. [For you legal trivia buffs, the Moore in Joshua Moore v. State was the brother of the Moore in Jonathan Moore v. State. There's no indication that either Moore came from the Iberian Penninsula.] In this case, the State didn't bargain for the possible increase of the penalty in the event that Moore failed to show up for sentencing. So, unlike the Joshua Moore case, here the trial court made its acceptance or rejection of the plea contingent upon an additional, non-negotiated condition, namely showing up for sentencing. In this manner, according to the court of appeals, the trial court injected itself into plea negotiations and this Moore (Jonathan not Joshua) should've been given the opportunity to withdraw his plea. [I have no doubt that the distinction between this Moore and that Moore is a valid one. I won't even be surprised if the CCA draws the same distinction with an opinion that somehow uses phrases like "get it in writing" or "caveat emptor". However, this kind of seems forest-for-the-trees-y. Is showing up for sentencing really an additional condition of a plea bargain? Is that what we've come to that we can't even expect defendant's to show up? Lawyers. Sheesh.]