Case Summary - State v. Ernesto Moreno

The State charged Ernesto Moreno with possession of cocaine. After jury selection, defense counsel sought a hearing on a motion to suppress Moreno's statements. The State informed the trial court that the officer was not there, but he was on his way. The trial court ruled the statement was inadmissible. According to the trial court, the officer was under subpoena, so his absence indicated (to the trial court) the officer's lack of interest.

The trial proceeded apace. I've always wanted to say that. During the testimony of the State's third witness, the trial court called the attorneys up to the bench to accuse the prosecution of stalling to wait for the officer, but the State needed to stop wasting the trial court's or the jury's time. The State then called the officer who was not in the courtroom, but on the second floor and on his way up. The trial court gave the State thirty seconds, which came and went. No officer. The trial court asked if the State rested, and the State replied "No."

Defense counsel then moved for directed verdict, arguing that the State had not met every element. The judge excused the jury and asked the State to respond. The State responded that it was 2:55 and the officer was waiting outside and ready to testify. The trial court said that the officer had been subpoenaed for 1:30. The trial court granted the motion. The State argued that it had met all the elements, but the trial court remained dubitante. A few days later, the trial court signed an order granting the motion for directed verdict and dismissed the case with prejudice.

The court of appeals dismissed the State's appeal for lack of jurisdiction. The court of appeals acknowledged that the State can appeal the dismissal of an indictment, it cannot appeal a judgment of acquittal. Because this was a judgment of acquittal, the State lacked the authority to appeal under the statute.

The CCA affirmed, holding that the trial court intended to grant an acquittal and therefore the State could not appeal the trial court's order. Judge Keasler, writing for an eight-judge majority, explained that an acquittal represents a ruling that amounts to a resolution of the case, correct or not. A dismissal, on the other hand, does not involve a final determination on guilt or innocence. Here, the trial court purported to hold that the elements of the offense had not been met, and that looks a lot more like an acquittal than a dismissal. Moreover, the United States Supreme Court had held, in Fong Foo v. United States, a spare, but factually analogous case, that the State can't appeal a motion for directed verdict even when the trial court totally oversteps its authority by granting it because that would violate the Double Jeopardy clause. The Court rejected the State's argument that the directed verdict was not an official "fact-finding" because the trial court is not authorized by statute to make a fact-finding when the defendant has selected a jury to decide his culpability. The Court distinguished Ex parte George (where the trial court entered a judgment of acquittal when the State would not consent to a jury waiver) by noting that the case was not about Double Jeopardy because jeopardy had not attached. However, at the end, the Court notes that the State failed to preserve the argument that a trial court lacks the authority to grant a directed verdict. So, despite how unacceptable and inexcusable the trial court's actions may have been, even an erroneous acquittal bars further prosecution.

Judge Holcomb dissented. While he agreed that the trial court has the authority to grant a directed verdict, he would regard this as a defense requested mistrial. The majority rejected this argument as well because Moreno did not request and the trial court did not grant a mistrial in form or substance. [In other words, I mean it when I say this was an acquittal. An acquittal is an acquittal is an acquittal. It is what it is.] Also, Moreno did not invite the error. Well, he did invite the error. He just wasn't the one complaining about it on appeal, so the doctrine of invited error would not prevent Moreno from arguing that the State lacked authority to appeal an order that the trial court should not have rendered.

Here's a link to the CCA case info. Here's a link to the court of appeals case info. Here's a link to the oral arguments. And here's my post when the CCA granted discretionary review. And here's a link to a song about Tania. Not Tanya Dohoney (hence the spellidge), but Patty Hearst's urban guerrilla namesake, but it's still a song about a Tania, even if not the Tania.

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And so it goes. It was an interesting argument, but you had to totally expect this from former district judge Keasler. And this kind of holding as well. It's an acquittal because the trial court says it is. While he seems to imply that the State could raise the issue if the State preserves error in the trial court, with an 8-1 holding and the dissent agreeing that the trial court has the authority to grant a directed verdict, I'm not going to hold my breath waiting for this argument to succeed. And perhaps they implicitly rejected the argument anyway just by rejecting the State's argument that the trial court could only grant a dismissal because statutorily it had no authority to act as a fact-finder once the defendant chose the jury. Although, the acquittal in Fong Foo was much more clear cut because the trial court didn't enter the acquittal, he ordered the jury to do it. Maybe that distinction matters. Maybe it doesn't. It sure looks like the CCA doesn't think it matters.