Oral Arguments - 1/14/09

On January 14, 2009, the Court heard oral argument in the following cases:

PD-0822-08, Nikolai Ivanov Karenev v. State, a harassment case out of Denton County.

The State's opening argument. (Jeff Van Horn, State Prosecuting Attorney)
Appellant's response. William E. Trantham)
The State's rebuttal. (There wasn't any, but I thought I'd be thorough)

Here, Karenev sent threatening and harassing e-mails to his wife during the pendency of their divorce. The State charged Karenev with sending harassing e-mails and the Fort Worth Court of Appeals upheld Karenev's facial constitutional challenge to the statute. You can read the underlying opinion here.

Judge Cochran seemed hypothetically annoyed with bloggers that criticize the CCA. I sure hope she wasn't talking about me. The State sought to argue that the content of the speech was immaterial so long as the actor engaged in the speech with the specific intent to violate the law. For his part, the Appellant argued the exact opposite extreme. This statute regulated the content of the speech, the Constitution prohibits such regulation, and Appellant wasn't required to object to the constitutionaly of the statute in the trial court.

I think the State's distinction seems to work when you're talking about virtual child porn because the specific intent is to communicate child porn. Thus, the underlying speech that you are emulating wouldn't be protected. But when you're talking about "harassment" you could be talking about threats which wouldn't be protected speech and or you could be talking about Max Cady-sitting-behind-you-at-the-theater-type behavior that wouldn't violate any laws on its own. I don't know. I'll have to wait to see what they come up with, and more importantly, if Judge Cochran refers to Prince Albert in a can or name checks any bloggers critical of the CCA.]

PD-0758-08, Randy Deshawn Collier v. State, a tampering with physical evidence case out of Taylor County.

Appellant's opening argument. (Britt Lindsey)
The State's response. (Patricia K. Dyer).
Appellant's rebuttal. (Again, just being thorough.)

Collier was charged with tampering with physical evidence for chewing up cocaine while a police officer tried to pull Collier over for a traffic violation. The Court granted review to consider whether the evidence was legally and factually sufficient to show Collier had chewed and destroye cocaine and whether the evidentiary value of the evidence was destroyed. You can read the published opinion from the Eastland Court of Appeals here.

Originally, the Court was scheduled to hear Belinda Montoya v. State, but both sides waived oral argument in that case.

Issues Granted - 1/28/09

The Court granted review in the following cases:

Stephen Kendrick Gilbert v. State: The Court granted the defendant’s petition for discretionary review without oral argument in this Brazos County aggravated robbery to consider the following issues:

1. The Court of Appeals failed to consider the law of parties upon determining Appellant was not entitled to a jury charge on the justification of necessity.

2. The Court of Appeals failed to view the evidence in the light most favorable to Appellant's requested change on the justification of necessity.

In a refreshingly short opinion, the Tenth Court of Appeals rejected Gilbert’s claim (in an unpublished memorandum opinion) that he was entitled to an instruction on the defense of necessity. The court of appeals explained that Gilbert was required to admit to the commission of the offense to get the instruction on necessity, but Gilbert denied participating in the offense or even acting as a lookout. No dissenting opinions or behind-the-scenes drama, so that was nice.

[Pretty straightforward, but this line is the one that gives me some pause, “Gilbert even went so far as to testify that he lied to the police when he told them he did commit the offenses.” It’s not a court admission, but it is some evidence of admission of guilt. Is that what the Court’s looking at? This is the only thing that stood out to me, so take it for what it’s worth.]

Frank Trinidad v. State: The Court granted the State’s petition for discretionary review with oral argument in this Atascosa County murder case to consider the following issue:

The Court of Appeals erred in determining that the presence of an alternate juror in jury deliberations was reversible error as the requirement under both the Code of Criminal Procedure and the Texas Constitution for a twelve member jury was violated.

Here, the defendant challenged both the sufficiency of the evidence and the presence of the alternate juror during deliberations, but clearly the CCA is only concerned with the latter. Basically the trial court instructed the alternate juror to go back and deliberate with the rest of the jury but not vote. That way the juror could jump in if one of the others became disabled during deliberations. Trinidad didn’t object to this procedure, but the court of appeals held that the right to a twelve-person jury required an express waiver so his failure to object did not waive the error.

The court noted that the original Article 33.011 required the trial court to dismiss alternate jurors after the jury retired to consider the verdict, but in 2007 that statute was changed to require the alternate juror to stay until a verdict is rendered and, if applicable, punishment is assessed. The court of appeals determined that the trial court erred in ordering the alternate juror to be present during deliberations. The Texas Constitution does not authorize more than twelve jurors, so the only way having the alternate juror present was if the alternate isn’t considered a juror. That, the court reasoned, made the alternate an outside influence under Article 36.22. Moreover, the error was constitutional and harmful as the juror was instructed to actually participate in deliberations. You can read the court of appeals’ published opinion here.

[If we can’t put a camera in there, it doesn’t seem like putting an alternate juror in there is gonna’ work either regardless of whether the juror actually votes. I just don’t see why you have to put the alternate in the jury room for deliberations. If one of the jurors becomes disabled, the alternate can get up to speed if the remaining jurors restart deliberations. But that's just me. Maybe having a different juror for punishment might create a problem, but that juror still heard all the same evidence. I’m not optimistic that the court of appeals will be overturned, but the CCA did grant review, so maybe it’s something more than their desire to put their footprints in the wet cement of this new statute.]

Johnny Adams Jr. v. State: The Court granted the State’s petition for discretionary review with oral argument in these Wilson County aggravated sexual assault cases (here and here are links to the other two cases which much the same information) to consider the following issue:

The Court of Appeals erred in determining that the presence of an alternate juror in jury deliberations was reversible error as the requirement under both the Code of Criminal Procedure and the Texas Constitution for a twelve member jury was violated.

Dude, the same issue in two different cases. I guess I should’ve done more research to find out that the 81st District Court of Atascosa County is also the 81st District Court of Wilson County. The relevant facts to this issue are pretty much identical to those in Trinidad above. The trial court ordered the alternate juror to participate in the deliberations without voting and the defendant did not object. The court of appeals held (and held and held) that this violated the defendant’s right to a jury consisting of only twelve jurors. The court of appeals also held that the error was constitutional in nature and harmful.

[I’m still not optimistic that there will be a different outcome, but maybe the Court will hold that outside influence is waiveable. Maybe the Court thinks the court of appeals framed the issue as an interference with a twelve person jury when it’s just a violation of Article 36.22 and can be waived through a failure to object? I don’t know. Should be interesting to watch.]

State v. Joseph Vital, aka Joseph Votta: The Court granted the State’s petition for discretionary review with oral argument in these Jackson County possession of cocaine, possession of heroin, bail jumping, and failure to appear cases to consider the following issues:

1. Did the court of appeals err in refusing to require the trial court to enter findings of act [sic] and conclusions of law?

2. Did the court of appeals err in concluding that respondent made a proper request for final disposition of charges, as required by Art. 51.14, V.A.C.C.P. to both the prosecuting officer and the appropriate court as is required to invoke the jurisdiction of that act and authorize the trial court to dismiss pending indictments?

3. Did the court of appeals err in concluding that respondent's request for final disposition of charges under a name other than the name under which he is charged is sufficient to give the prosecutor notice of respondent's request?

4. Did the court of appeals err in concluding that a motion filed by respondent seeking dismissal of charges constituted compliance under Article 51.14, V.A.C.C.P. as a request to be returned to the state of texas for final disposition of pending charges?

5. Did the court of appeals err in concluding that the trial court had authority to dismiss cause nos. 97-2-5827 and 97-2-5828 (for bail jumping and failure to appear) under the requirement of Article 51.14 that only causes which were subject to detainers could be dismissed?

This is a State’s appeal of a motion to dismiss the indictments based upon his not having been brought to trial within the limitations period specified in the Interstate Agreement on Detainer’s Act (IADA). In 1996, Joseph Vital picked up a possession of cocaine case and a possession of heroin case. [Don’t you just want to call him Joey Vito or Joey Fingers or Joey Two-Times?] He failed to appear for those charges, so he was indicted in 1997 for failure to appear and bail jumping. While those charges were pending, he was incarcerated in a federal prison in Pennsylvania.

In 2005, the Jackson County Sheriff’s department sent a letter to the Pennsylvania prison advising them to place a detainer on the defendant for outstanding warrants. The detainer was filed in the two PCS cases in favor of the Jackson County Sheriff’s office in 2005. Vital executed a “Request for Final Disposition of Detainer” pursuant to the IADA. 180 days elapsed from Vital’s submission of his IADA paperwork to the District Attorney of Jackson County and Vital filed a motion to dismiss all charges for failure to bring him to trial within the 180 days set out in the IADA. The trial court granted it, and the State appealed.

The court of appeals held (and held and held and held) that Vitel had satisfied his burden to show the paperwork had been received and the State had failed to bring him to trial within the allotted time. The court of appeals rejected the State’s argument that he failed to comply because he used an alias because the State requested the detainer under both his real name and the alias. Additionally, the court of appeals held that the trial court was authorized to dismiss the bail jumping and the failure to appear indictments because the State’s request for the detainer characterized both PCS cases as “(Bond Forfeiture)” cases, so the State clearly showed its intent to prosecute on those offenses as well.

Finally, the court of appeals held that the trial court did not err in making findings of fact and conclusions of law at the request of the State. While the State would be entitled to such findings had this been a motion to suppress, this was a motion to dismiss. The failure to file the findings didn’t force the court of appeals to assume fact or otherwise prevent the State from bringing its appeal. Consequently, the court of appeals upheld the trial court’s ruling.

Today's Opinions - 1/28/09

The Court of Criminal Appeals issued published opinions in the following cases:

Ex parte Frank Garcia Hernandez, Jr. (Keller, P.J.) (6:3) - Here the CCA determined Hernandez wasn't entitled to street time credit when he picked up a robbery conviction while on parole. Because he was convicted of the robbery before his parole was revoked, he was serving a sentence for an offense that made him ineligible for mandatory supervision, and therefore ineligible for street time credit. For a more detailed sumamry, click here.

Anthony Wasylina v. State. (Keller, P.J.)(6:1/2:3) - The CCA remanded for the court of appeals to consider Wasylina's claim that the trial court erroneously instructed the jury on the lesser-included offense of criminally negligent homicide in Wasylina's manslaughter case. The court of appeals should've focused on whether there was any evidence to negate the greater offense of manslaughter instead of evaluating whether the evidence sufficiently established criminally negligent homicide. For a more detailed summary click here.

Steven Sanchez v. State. (Hervey, J.)(8:4/3:0) - Evidence was sufficient to establish that the Promethazine added to Sanchez's codeine had independent medical value even though the State did not calculate the specific quantity of the Promethazine. For a more detailed summary click here.

State v. Milton Dwayne Gobert. (Price, J.) (8:1:0) - The defendant's statement that he didn't want to waive his rights without an attorney unequivocally invoked his Fifth Amendment right to counsel. Just because the statement was conditional, didn't make it equivocal or ambigious. Moreover, the defendant's subsequent assurances that he wanted to talk did not render his initial unequivocal statement ambiguous. For a more detailed summary click here.

Carlos Rivas v. State. (Womack, J.) (9:0) - In a child sexual assault case, the defendant's repeated objections to the admission of the child's statemetns in a SANE nurse's report preserved error. Though the defendant argued that the hearsay amounted to bolstering, the defendant articulated several specific theories as to why the evidence amounted to bolstering. Thus, he preserved error and the court of appeals should have considered the merits of his claim. For a more detailed summary click here.

Case Summary - Ex parte Frank Garcia Hernandez, Jr.

Ex parte Frank Garcia Hernandez, Jr. (Keller, P.J.) (6:3) Here, Hernandez was sentenced to twenty-five years in prison for Unauthorized Use of a Motor Vehicle in 1983. He was released on parole in 1987. In August 2004 he committed a robbery and a parole violator warrant was issued for him at the end of the month. He was convicted in December 2004, and his parole was revoked in January 2005. The begin date for his robbery was August 2004 on account of his pre-trial incarceration. Hernandez argued that he should be entitled to credit for his “street time” while he was on parole. The trial court, however, held he should not because on the day his parole was revoked he was serving a sentence for an offense listed in §508.149(a). Therefore, he was ineligible for credit.

The CCA agreed that Hernandez was not entitled to credit. According to the Court, a person is entitled to credit for time served while released on parole if at the time the revocation warrant was issued the time remaining portion of the sentence was less than the time he spent on parole and he was not a person described in Texas Government Code §508.149(a). The Court noted that everyone agreed Hernandez had established the former, but disagreed that he’d established the latter. According to the Court, eligibility for mandatory supervision is governed by the law in effect at the time of the offense, but eligibility for time credit is governed by the law in effect on the day of revocation. Sure, he could be considered “held” on the UUMV conviction. But, the Court notes Hernandez was “serving a sentence” for robbery regardless of the fact that it occurred after the UUMV. Because he was serving a sentence for an offense that would make him ineligible for mandatory supervision, he was not entitled to street credit. Thus, going by the current statute, Hernandez was “a person described in §508.149(a)” because he was serving a sentence for robbery at the time he was revoked. Judge Keasler wrote a concurring opinion to note that the opinion was entirely consistent with the Court’s unpublished decision in Ex parte Foster.

Judge Johnson dissented in an opinion that Judge Price joined. The dissent would hold that the phrase “is serving a sentence for” refers only to the sentence for which the defendant is seeking time credit, the UUMV in Hernandez’s case. According to Johnson’s reasoning the legislature clearly intended to award non-custodial time credit only to parolees who, when released on mandatory supervision, have convictions for only non-violent offenses. While the phrase “is serving a sentence for” could be subject to two interpretations, reading it the way the majority does encourages gamesmanship-delay on the part of the Board of Pardons and Parole. In this case, had the Board acted on the parole revocation warrant without delay and before the robbery conviction, Hernandez would have been entitled to the street credit. Judge Meyers dissented without an opinion.

Case Summary - Anthony Wasylina v. State

Anthony Wasylina v. State. (Keller, P.J.)(6:1/2:3) Wasylina and his friends went to his rural cabin to ride four-wheelers. While doing so, they met a very intoxicated James Guthrie. Guthrie followed Wasylina and his friends as they rode back to the cabin, but Guthrie went to talk with Wasylina’s neighbor. Guthrie expressed concern that Wasylina and his friends were poachers, engaged in some boorish behavior toward’s Wasylina’s friend’s wife, and left. Later, someone started shooting in their direction from the neighbor’s property. Armed Wasylina (having consumed seven or eight beers worth of liquid courage) went to investigate along with one of his friends. He found Guthrie armed with a bottle of liquor and a gun. An argument ensued. Wasylina pointed his weapon at Guthrie and indicated that Guthrie should not move as Wasylina was going to call the Sheriff. Guthrie lunged at Wasylina and pushed him in the face. The gun went off and the bullet hit Guthrie in the temple, killing him.

The State charged Wasylina with manslaughter. The judge included an instruction on criminally negligent homicide over Wasylina’s objection, and the jury convicted him of the lesser-included offense. The court of appeals was asked to consider whether the trial court erred in submitting the instruction on criminal negligent homicide. Instead, however, the court of appeals ordered an acquittal because, according to the court of appeals, the State hadn’t presented any evidence that Wasylina had acted with criminal negligence because the State had not offered any evidence that Wasylina had failed to perceive the risk of death.

The CCA reversed the court of appeals holding that proof of the greater culpable mental state of recklessness necessarily included proof of the lesser-included offense. The Court noted that evidence may be legally sufficient to support a conviction for a lesser-included offense even though the evidence did not justify the submission of the instruction on that lesser-included offense. The Court of Criminal Appeals remanded the case for consideration of Wasylina’s claim in light of its opinion. [Translation: Go back and consider what evidence negated the greater culpable mental state.]

Judge Price filed a concurring opinion to further clarify that the court of appeals erred in acquitting on the lesser-included offense of criminally negligent homicide just because the jury had acquitted of the greater offense. Price notes that even though the jury acquitted of manslaughter, that didn’t mean the evidence was legally insufficient as that jury might have had a higher threshold for reasonable doubt. The jury’s acquittal of Wasylina for the offense of manslaughter means he cannot be tried again for that offense, but it does not support the court of appeals conclusion that he cannot be re-prosecuted for the lesser offense because, by the court of appeals own admission, the evidence was legally sufficient to establish the greater offense. Judges Johnson and Cochran also concurred to opine that the lesser-included instruction was properly given because there was some evidence that Wasylina had (perhaps out of anger or fear) failed to perceive the risk naturally attendant to standing four or five feet away from an intoxicated, belligerent asshole who also had already demonstrated irrational behavior. [Perhaps he was wearing his Bad Idea jeans.]

Judge Meyers dissented, along with Judges Keasler and Hervey, to opine that the State failed to prove the greater offense of manslaughter (hence the jury’s acquittal of that offense) so it had necessarily failed to present evidence of the lesser-included offense of criminally negligent homicide. The dissent at first insists it is looking at the propriety of including the criminally negligent homicide instruction, but then devolves into a sufficiency analysis without really discussing the facts. Because there was no evidence that Wasylina failed to perceive a risk or that he should have perceived the risk, the evidence was legally insufficient to establish the lesser-included offense. Thus, the instruction should not have been given.

[It sure is nice to know that I’m not the only one who has a hard time figuring out the conceptual differences between manslaughter and criminally negligent homicide. The problem is that theoretically negligence can be a lesser part of recklessness, but it’s really frakkin’ hard to distinguish between perceiving a risk and ignoring it and simply failing to perceive it. Moreover, you can know something while you do it intentionally, but it seems impossible to ignore something you’ve perceived if you’ve failed to perceive it. But putting all the metaphysics aside, this seems like a battle of acquittal v. retrial with a touch of “we want to reward prosecutors that don’t make the case all-or-nothing” thrown in for good measure. Exit question: Does this call into question all those cases where courts have held an instruction on criminal negligent homicide wasn’t warranted?]

Case Summary - Steven Sanchez v. State

Steven Sanchez v. State. (Hervey, J.)(8:4/3:0) Police stopped a car that Sanchez was riding in and the subsequent search revealed a plastic baby bottle beneath Sanchez’s seat. The bottle contained a thick, red, liquid substance with a "mediciney" smell that the officer believed was "liquid codeine."

A chemist who tested the liquid substance in the baby bottle, testified that the total weight of the substance was less than 28 grams and that the substance was "[m]ost likely . . . cough syrups" containing less than "200 milligrams per 100 mil" of codeine (a narcotic) and a nonnarcotic ingredient named Promethazine. The chemist testified that Promethazine is a "typical medicine" that "on its own has a valuable medicinal quality" as a cough suppressant that is usually added to cough syrups. The chemist also testified that he did not quantify the amount of Promethazine that was in the substance.

The State charged and convicted Sanchez of class B possession of a Penalty Group 4 controlled substance. Pursuant to that charge, the State was required to prove that the substance contained codeine in the requisite amount along with “one or more non-narcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone.”

The court of appeals held the evidence was insufficient to support the elemental finding that the Promethazine was in a sufficient proportion to confer on the mixture valuable medical quantities other than those possessed by the codeine itself. At most, the State showed the Promethazine was present, according to the court of appeals, and that didn’t prove the Promethazine conferred valuable medical quantities on the mixture.

The Court reversed, agreeing with the State that the jury could have reasonably inferred that the Promethazine was present in sufficient quantities to confer medical value because the Promethazine had medical value on its own. Under such circumstances, the State was not required to quantify the Promethazine in the substance.

[And since I’ve written it so much already: Promethazine, Promethazine, Promethazine!]

Presiding Judge Keller, along with Judges Womack, Holcomb, and Cochran, concurred to note that the absence of a sufficient portion of the Promethazine would make Sanchez was guilty of the greater offense of straight possession of codeine, a Penalty Group 1 substance. Judge Johnson wrote separately as well to opine that the statute requires the mixture to have enough of a non-narcotic active ingredient that the non-narcotic active ingredient is at a therapeutic level. Johnson regards this requirement as an exception to charging a defendant with felony possession of codeine. If the State charges with felony possession of codeine, the defendant may very well want the amount of Promethazine to be quantified and the failure of the State to prove the amount insufficient might entitle the defendant to a lesser-included instruction for Class B possession. Here, the State didn’t prove the therapeutic levels, but that benefitted the defendant. Judges Cochran and Holcomb joined Judge Johnson’s concurrence.

[So, proving the existence of Promethazine raises the lesser-included offense of Class B possession in a felony offense? Logically the State only has to disprove therapeutic levels, now. That seems like the opposite of what the statute says. Still, the majority’s point that the mere existence of the Promethazine which has therapeutic value independent of the codeine establishes the element cuts through all this craziness very nicely.]

Case Summary - State v. Milton Dewayne Gobert

State v. Milton Dwayne Gobert. (Price, J.) (8:1:0) Gobert was arrested for a parole violation for assault. Police suspected him of murder and sought to question him. The police read him his rights and when they asked if he understood them, he responded “I don't want to give up any right, though, if I don't got no lawyer.” The police repeatedly questioned him about whether he wanted to terminate the interview and Gobert repeatedly indicated he wanted to talk to the police. Gobert confessed to murder, the trial court suppressed the statement, and the State appealed.

[As a preliminary matter, it’s important to note that there was some dispute about whether the defendant actually said the sentence described above or whether it was inaudible. Because the State didn’t point this out until after the court of appeals had agreed with the State’s transcript of Gobert’s conversation with police and because it was a State’s appeal, the State was stuck with this interpretation of what Gobert said on the tape.]

The Court held Gobert’s statement was an unequivocal invocation of his right to counsel. The court of appeals had held that Gobert’s subsequent statements that he wanted to talk to the police suggested that he was willing to proceed without counsel. The Court disagreed noting that Gobert had unequivocally indicated his desire to not give up any right without an attorney. Thus, he was willing to talk to police on the condition that he have an attorney. Just because the statement was conditional did not make it equivocal, ambiguous, or unclear. Moreover, the Court rejected the significance of Gobert’s later agreements to because they could not be used to cast retrospective doubt upon the clarity of the initial request itself. Presiding Judge Keller concurred in the result without an opinion. [It does seem to me that the CCA could’ve just resolved this case by deferring to the trial court’s implicit findings of fact. Perhaps that is what Presiding Judge Keller was thinking, if I could be so presumptuous.]

And for the sake of thoroughness, here’s a link to the dissent authored by Justice Patterson of the Third Court of Appeals.

Case Summary - Carlos Rivas v. State

Carlos Rivas v. State. (Womack, J.) (9:0) The State charged Rivas with five counts of aggravated sexual assault of a child and one count of indecency. A SANE nurse examined the child at a Child Advocacy Center in San Antonio. All the physical examinations resulted in normal findings and the written history described the offense in greater detail than the child did while testifying.

Prior to trial, the defense filed a motion in limine to keep the State from mentioning or alluding to seven different matters, including bolstering testimony and expert testimony of abuse in the absence of physical evidence of abuse. During the trial, Rivas objected several times to the admissibility of the written history alleging that the statement was improper bolstering and that the nurse’s opinion of abuse was improper without physical evidence of abuse.

On appeal, Rivas argued that the admission of the written history based upon the nurse’s interview with the victim amounted to improper bolstering. The court of appeals overruled Rivas’s point of error because he’d failed to preserve it. According to the court of appeals, Rivas’s bolstering objection was a general one and didn’t specify the applicable rule of evidence.

A unanimous Court of Criminal Appeals reversed the court of appeals. Judge Womack, writing for the majority, noted the ambiguity attendant to a general “bolstering” objection because it could refer to several different evidentiary rules. The Court also notes (without adopting or rejecting) the language in Cohn v. State that suggests courts should “abandon” the bolstering objection as a valid method of preserving error.

However, the Court did note several specific objections Rivas made such as the theory that the evidence could not be admitted because the child had not been impeached and that medical records are inadmissible absent physical evidence of abuse. Additionally, Rivas advanced a theory that the nurse’s recounting the victim’s statements would be used as a way of admitting the nurse’s diagnosis or opinion that abuse had occurred. Finally, the CCA rejected the court of appeals’ position that a reference to a specific rule of evidence was required. Given this record, the Court of Criminal Appeals held that Rivas had preserved error and remanded the case to the court of appeals for consideration of the merits of Rivas’s point of error.

Even Homer Nods

I have tremendous respect for the folks over at SCOTUSblog. They provide a lot of insight into the workings over at the United States Supreme Court. And their analysis of the decisions is always surprisingly in-depth considering how fast they are able to post once a case has been handed down. Ideally, I’d like to turn this site into something like SCOTUSblog for Texas, but practical limitations seem to be holding me back. Hell, I’ll even cop to the fact that I’m not as good, smart, or focused as they are. (My avatar is a character from a B-movie, so what'd you expect? I’m clearly starting at the back of the pack.)

But their analysis of the recent decision is Arizona v. Johnson is . . . there’s no other way to say this . . . ass. A. S. S. Ass. This analysis is woefully subpar when compared with SCOTUSblog’s usual excellence in legal analysis. According to SCOTUSblog, this opinion "expands" police power when it does nothing of the sort. The holding allows police to frisk a lawfully detained suspect when the officer has reason to believe the suspect is dangerous and only so long as the police do not use that frisk to detain the suspect any longer than was already necessary to effectuate the purpose of the stop.

Um, that’s Terry v. Ohio.

Terry v. Ohio dealt with a situation where police stopped and frisked two guys who looked like they were casing a jewelry shop for a robbery. The Supreme Court held that the officer could lawfully stop the two guys on less than probable cause. Moreover, the Court held that while the officer had those suspects lawfully detained, the officer could conduct a pat-down only if he had reason to believe the suspects were armed and dangerous.

Arizona v. Johnson dealt with a situation where the police had lawfully stopped and therefore seized everyone (including Johnson who was a passenger). Three officers were involved in the stop, and while the lead officer was getting the driver’s information, another officer questioned Johnson on an unrelated matter. Of course, Johnson had already been lawfully detained pursuant to the valid traffic stop, so no violation there. Indeed, the Court notes that the officer’s questioning during a valid traffic stop is fine so long as the questioning doesn’t extend the duration of the stop.

So, while Johnson was lawfully detained, the officer noted facts that suggested that Johnson might be armed and dangerous. The Court leaves open the possibility that the Arizona Supreme Court can evaluate whether those facts gave the officer sufficient reason to believe that Johnson was armed, but for the sake of the opinion, it’s assumed that the officer had such facts. And that is where the pat down comes in. While the officer had lawfully detained the passenger, the officer had specific reasons to fear the officer was armed and dangerous and the officer conducted a pat-down search for officer safety.

Again, that’s Terry v. Ohio.

Now, if you wanted to argue that Terry v. Ohio was a blatant power grab on the part of the Warren Court, I could go with you. As a matter of policy, I’m okay with police having the ability to protect themselves with a minimally intrusive pat-down for weapons. And I’ve seen enough patrol videos to know that SCOTUS isn’t blowing smoke when they note that traffic stops can be very dangerous for police officers. That said, Terry v. Ohio seemed to give officers the right to conduct such pat downs (however reasonable the policy might be) . . . just because. (SCOTUS did the same power move in Miranda and Strickland and hell, even Marbury v. Madison, so what's one more case among friends.) So, if SCOTUSblog wants to rail against those opinions for expanding power without justification, more power to them. At least that analysis would rise to their usual levels of precision.

But for Arizona v. Johnson, SCOTUSblog decided to sound the alarm about an expansion of police power when the opinion is actually perfectly in line with Terry v. Ohio and all the subsequent opinions in this area. That just didn’t jive with my understanding of the case or its underpinnings, so I felt I had to say something, even if He Kexin is the only one reading. Oh, and in case you doubt my legal analysis (which is pretty understandable actually), here’s a quick check of my work, sort of like all those tricks with the number 9.

Judge Ginsburg wrote the unanimous opinion.

I hate to be cynical, but if this really were an expansion of police power, don’t you think the four “liberal” judges would’ve dissented and decried the dangers of expanding police power? Not even Stevens disagreed with this holding that’s very limited by its own terms. That should tell you something.

Arguably this could be seen as a balancing out of Brendlin v. California from the 2006 term where the Court held that police seize passengers in a car just as they seize the driver. That was an obvious check on police power as the Court recognized that passengers can challenge the legality of the traffic stop and subsequent searches pursuant to those stops. Arizona v. Johnson just recognizes that police have the same stop-and-frisk authority they always have pursuant to legal detention. Or maybe that's not how to view this case. I don't know. But one this is for sure, I would have liked to have seen those great minds over there ponder that question instead of freaking out about an expansion of police power that didn’t actually happen.

First their analysis of Herring and now this? I always admired them for their efforts at objectivity. What can I say? Quandoque bonus dormitat Homerus.

(That last part’s for you Judge Cochran.)

Today's Orders - 1/21/09

The Court dealt with a lot of habeas cases and writs of mandamus, but no published opinions. Also no new issues to consider. Wshew! Things have been hectic for me recently, so I needed a break.

Here's a link to hand down list if you're interested.

If (For Legal Commentators)

Sometimes I wish that Samuel L. Jackson were a legal analyst. Granted, if he were, he probably wouldn't view case law the same way that I do, so he probably wouldn't be on my side. [C'mon, he's Shaft, just because he cares about his brother man doesn't mean he'd ever agree to be the "The Man". But perhaps I'd better hush my mouth even though I am just talking about Shaft.] Still, legal commentators could use someone to yell and curse at them when they freak out about the latest court opinions. I know I could sure use someone to chill my ass out sometimes, and the folks looking at Herring v. United States could apparently us some Sam Jackson in their lives as well.

See, Instapundit Glen Reynolds wrote a critical piece about the opinion because it offends his libertarian sensibilities. Grits for Breakfast is concerned that it will allow officers to go wild and crazy. Even Tom Goldstein (THE Tom Goldstein of SCOTUSblog that I admire so much) has spent some time fretting over how this opinion will be an exclusionary rule benchmark case. Since DJ Mister Senor Love Daddy isn't here to do it, I guess I'll have to be the one to do it (if I may be so presumptuous):

Whoa! Ya'll take a chill!

In case you don't know what this opinion is about, basically, Herring drove up to the Coffee County Sheriff's Department to get something out of his impounded truck. An investigator ran a warrants check on him and found that he had no warrants in Coffee County. However, when the investigator checked with neighboring Dale County, he found that Herring, no stranger to law enforcement, had an active warrant for failure to appear on a felony charge. The investigator called to have the warrant faxed over, and he pulled Herring over as Herring left the impound lot. A search incident to the arrest revealed a gun (which he wasn't supposed to have, being a felon and all) and methamphetamine (which no one really supposed to have).

Problem is, they couldn't pull the warrant because it had been recalled, but the Dale County Sheriff's Department hadn't updated their database. This all happened in 10 to 15 minutes, and by the time the mistake was uncovered, police had already found the gun and drugs on Herring. Everyone agreed that Herring had been arrested without probable cause, but the question became whether the good-faith exception to the warrant requirement applied. In other words, should the evidence be excluded because the erroneous arrest was the result of negligence by the police in another county?

Well, five judges held that it shouldn't be excluded because the Coffee County officers who arrested Herring did nothing improper. Because the exclusionary rule is supposed to be used as a deterence for improper police conduct, the Court essentially saw no reason to apply the exclusionary rule to a situation where police had acted negligently in failing to update their databases in another county. While the exclusionary rule might have some deterrent effect, the deterrence against negligent conduct wouldn't be great enough to justify interfering with the truth-finding function so drastically by excluding such strong inculpatory evidence. Put another way, the exclusionary rule is supposed to deter reckless or deliberate conduct on the part of police, not negligent conduct attenuated from the actual arrest.

Now I've gone out of my way to mention "attenuated" several times because I feel that that word is central to the holding of this case. Let me say it again, AT-TEN-U-A-TED. If Sam Jackson were here, he's probably say, "It's got to be attenuated mutha-f******." There's nothing new about this, it's the same principle that we've been using since Wong Sun v. United States.

Now, Tom Goldstein

Issues Granted - 1/14/09

Jeffrey Daniel Hughen v. State – The CCA granted Hughen’s petition for discretionary review with oral argument in this Fannin County attempted murder case on the following issue:

The court of appeals erred in failing to recognize that this case is controlled by the Sixth Amendment, Brewer v. Williams and Rothgery v. Gillespie Co.

In this case, the Texarkana Court of Appeals upheld the admission of Hughen’s statement even though he’d requested court-appointed counsel at magistration. This case stems from a drunken argument between Hughen and his girlfriend. When he was arrested, he asked for court-appointed counsel. Later that morning, police pulled Hughen out of his cell, read him his Miranda warnings, and got a statement from him. The court of appeals held that Hughen’s request for court-appointed counsel was simply not a request to have counsel assist him during his interrogation by the police.

[It seems like this case will be remanded for reconsideration in light of Pecina v. State. Pecina was the case where the police brought the magistrate to the hospital with them. That case seemed to have even more in the record to establish that the defendant was requesting counsel for trial and not for interrogation by the police, but the CCA still held that statement was taken in violation of the Sixth Amendment. We’ll see. Still, you gotta’ love the court of appeals' opening line, spirit fingers and all, “When anger and alcohol intersect, unfortunate results can ensue.” They should put that in a fortune cookie.]

State v. Robert Leahy Powell – The CCA granted the State’s petition for discretionary review with oral argument in this Tarrant County possession of methamphetamine case on the following issues:

1. Did the court of appeals err by holding that the search and seizure of the locked safe(s) found on Appellee’s premises was not within the scope of the search which was supported by a search warrant based upon probable cause?

2. Did the court of appeals err in concluding that a locked safe(s) could not be seized, notwithstanding it could be reasonably concluded that it was a repository for forged checks and other fruits which were listed to be seized pursuant to a search warrant based upon probable cause?

3. Did the court of appeals err in failing to utilize the correct analytical construct appropriate to items seized and not listed to be seized in a search warrant based upon probable cause and issued pursuant to article 18.021(1), (8), (9) and (12) of the Texas Code of Criminal Procedure?

4. Did the court of appeals implicitly hold the plain view doctrine was inapplicable because the officer executing the search warrant seized “mere evidence,” i.e. the locked safe(s), not listed as an item to be searched or seized in the warrant supported by probable cause?

Here, the State appealed the trial court’s granting of a motion to suppress. The State had gotten a search warrant to search for forged checks. The warrants did not list either safes or drugs as property to be seized despite the fact that the affiant indicated that she had bought a safe with a forged check and brought the safe back to the residence. The officers executing the warrant took two safes back to the police station. They got a locksmith to open one and they found methamphetamine inside. They did not get a second search warrants for the safe.

The court of appeals upheld the trial court’s order because the seizure and subsequent searches of the safes exceeded the scope of the warrant. Furthermore, the court of appeals noted that the trial court did not enter findings of fact and conclusions of law. Therefore, the court was required to infer that the trial court disbelieved the searching officer’s testimony that the incriminating nature of the safes was immediately apparent. Also, the officer did not testify that the safes were found in a place he was authorized to search pursuant to the warrant. Thus, the court held that the trial court could have properly held that the State did not establish that it could lawfully seize the safes pursuant to the plain view doctrine.

Phillip Jason Hall v. State – The CCA granted the State’s petition for review with oral argument in this Johnson County DWI on the following issue:

Did the court of appeals err by holding that the trail court, at a hearing on a motion to suppress evidence, should have conducted a Kelly hearing to determine the scientific reliability of information relied upon by the arresting officer as probable cause for the stop?

This is pretty straightforward. An officer stopped Hall for speeding because his LIDAR device told him that Hall was speeding. The court of appeals held that the trial court abused its discretion in denying the motion to suppress because the State did not establish the scientific reliability of the LIDAR device. Chief Justice Gray dissented without an opinion. [Do the rules of evidence even apply at a motion to suppress hearing? I mean, I thought Granados v. State said they don’t because it’s a preliminary question. Instead of focusing on the reliability or non-reliability of LIDAR, it seems that the court of appeals should’ve considered that question first.]

Jeffrey Rouse v. State – The CCA granted the State’s petition for review with oral argument in this Travis County robbery on the following issues:

1. May an appellate court, in deciding that a plea was entered involuntarily, rely on unsworn allegations made by trial counsel in a document that was faxed to the court coordinator, and later filed with the district clerk, when no fact-finder has evaluated that statement?

2. When a defendant enters an open plea of guilty and the trial court, after admonishing the defendant, accepts the plea and finds the defendant guilty, does the trial court’s subsequent offer of a non-negotiated sentence-settlement constitute judicial coercion or judicial plea-bargaining affecting the voluntariness of the defendant’s guilty plea?

Here, Rouse was charged with aggravated robbery, but he entered an open plea of guilt to robbery. The trial court suggested he would sentence Rouse to ten years in prison and not consider the habitual enhancement provisions. However, if Rouse did not want to do that, the trial court indicated it would have to consider the enhancement provisions. If those were found true, Rouse’s minimum sentence would be twenty-five years in prison. Rouse rejected the judge’s ten-year offer, and the judge immediately assessed Rouse’s punishment at twelve years. Rouse claimed he had been mislead. His attorney faxed a document called a “motion for appeal” to the court coordinator averring that Rouse had been told that he would be able to withdraw his plea if the sentence was not acceptable to Rouse. The court of appeals held that this “motion for appeal” indicated that trial counsel had given Rouse incorrect information about his plea, thereby rendering it involuntary. [This case has snake bite written all over it.]

Eduardo Guerrero v. State – The CCA granted the State’s petition for discretionary review (in both cause numbers) with oral argument in this Bexar County possession and manufacture of methamphetamine case on the following issue:

The court of appeals erred in finding that jeopardy barred the prosecution of manufacturing methamphetamine and possession with intent to deliver methamphetamine on the basis that those offenses were the result of the same original impulse and could not be punished separately. That court’s opinion misconstrues this Court’s opinion in Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003), and the court of appeals’ holding is contrary to the holding in several federal circuit courts on this same vitally important question of state and federal law. See Tex. R. App. P. §66.3(b) & (c).

Guerrero was convicted of possession of methamphetamine, possession of methamphetamine with the intent to deliver, and manufacture of methamphetamine all occurring on the same day. The State agreed that the lesser-included offense of possession of methamphetamine should be vacated, but argued that there was no double jeopardy bar to punishing Guererro for possession and manufacture. The court of appeals disagreed and held that the two convictions violated double jeopardy. Applying the CCA opinion in Lopez v. State, the court reasoned that the legislature did not intend for each step taken towards the single sale of a controlled substance constituted separate offenses.

Today's Opinions - January 14, 2009

The CCA handed down published opinions in the following cases:

In re Jay Edwin Gibson (Per Curiam) - The CCA conditionally granted mandamus to order the clerk to forward a writ up to them because the trial court didn't timely designate the issues of fact. Click here for slightly more in-depth coverage.

Bobby Blake Newton v. State (Per Curiam) - The CCA granted review so it could remand the case for the court of apeals to consider the CCA opinion in Bass v. State. Click here for more. Not much more, mind you, but more.

Justin Amador v. State (Holcomb, J.)(7:1:1) - The CCA reversed a court of appeals that held the trial court should've granted a motion to suppress in a DWI case. The State established that Amador had performed field sobriety tests, but the prosecutor did not elicit how Amador did on those tests. The CCA held the State had established probable cause for the DWI arrest. Click here for more.

Audry Linton v. State (Cochran, J.)(9:1:0) – The CCA held that a deaf defendant in a DWI breath test case was not denied due process because the trial court only appointed her thre interpreters over the course of the proceedings and not an additional deaf-relay interpreter. Click here for more.

Tommy G. Laster v. State (Keasler, J.) (5:4) – In a 5-4 decision, the CCA held that Laster grabbing an eight-year-old girl and pulling her away from her slightly older brother was legally sufficient to establish the intent to commit attempted aggravated kidnapping. Want to know more? Click here.

Case Summary - In re Jay Edwin Gibson

In re Jay Edwin Gibson (Per Curiam) – Gibson filed a writ of habeas corpus, but the trial court didn’t timely designate the contested issues. Consequently, Gibson filed a writ of mandamus to get the district clerk to forward the writ to the CCA. The Court conditionally granted the writ, explaining that when a writ is filed, the State had 15 days to respond and the trial court has 20 days after that to designate issues of fact to be resolved. The statute does not authorize the trial court to extend the time limitations imposed by the statute other than by timely entering an order designating issues. Because everyone agreed that the trial court didn’t do that here, the writ of mandamus was conditionally granted so that the district clerk could forward the writ to the Court. [This appears to clear up some potential confusion from an earlier opinion by the CCA, Ex rel. DeJean v. District Clerk, Dallas County, if that's even the correct style - they keep changing this shit on me. That case made it seem like it was a set time of 35 days from filing, but this one seems to make clear that it's 35 days from the State's receipt of it. I mention this because some prosecutors were concerned about the loose language in DeJean.]

Case Summary - Bobby Blake Newton v. State

Bobby Blake Newton v. State (Per Curiam) – Here, the court of appeals reversed because it held that extraneous offense evidence was inadmissible to rebut a claim of recent fabrication. The Court granted discretionary review so that it could vacate the lower court’s decision and remand for reconsideration in light of Bass v. State.

Here’s the underlying opinion. Here’s the underlying dissent. [This was another one of those bitter fights between Chief Justice Gray, who ultimately won, and the other two members of the court. If you're into that sort of thing.]

Case Summary - Justin Amador v. State

Justin Amador v. State (Holcomb, J.)(7:1:1) – A DPS trooper stopped Amador for speeding in the early morning hours. When asked for his license, Amador responded slower than normal and his speech was mumbled. The trooper smelled the odor of alcohol on Amador’s breath and had him perform the HGN, the walk-and-turn, and the one-leg stand. Based on his performance on these tests, the trooper came to the opinion that Amador was driving while intoxicated and arrested him for DWI.

Amador filed a motion to suppress, and the trial court held a hearing that consisted entirely of testimony from the officer. A videotape of the stop was introduced, and while the officer testified that Amador had performed the field sobriety tests, there was no detail about Amador’s performance of those tests. The trial court denied the motion without entering written findings of fact and conclusions of law. The court of appeals reversed because the tape did not depict the performance of the FSTs and the trooper never testified how Amador did on those tests (or even that he’d failed them). Consequently, the court of appeals held (in its published opinion) that the trial court should’ve granted the motion to suppress because the record was insufficient to establish probable cause.

The CCA reversed the court of appeals and held that the trial court could have found that Amador was speeding late at night, he responded slowly, fumbled through his wallet to get his driver’s license, he smelled of alcohol, he performed field sobriety tests, and after that the trooper arrested him for DWI. From these facts, the trial court could have inferred that Amador ingested a quantity of alcohol that impaired his mental and physical faculties such that he responded slowly and performed less than ideally on the field sobriety tests. The court of appeals erred is focusing upon the performance on the field sobriety tests instead of the totality of the circumstances, and the trial court properly denied the motion to suppress. Judge Johnson concurred in the result and Judge Meyers dissented. Neither wrote an opinion.

[Note that the trial prosecutor kind of dodged a bullet on this one. Also, the lack of findings of fact and conclusions of law required the CCA to infer facts in favor of the trial court’s decision. The result might have been different had the trial court entered specific findings and conclusions.]

Case Summary - Audry Linton v. State

Audry Linton v. State (Cochran, J.)(9:1:0) – The Court of Criminal Appeals held that Linton, who is deaf, received constitutionally sufficient deaf-translation to aid her during her criminal case. Linton rear ended another woman and was subsequently arrested for DWI. She and the officer read the DIC-24, and she gave a breath specimen that showed her blood alcohol content to be .187 and .193. At the motion to suppress, she indicated that she did not understand that she had a right to refuse the breath test. The arresting officer testified that there was difficulty communicating with Linton during the stop, but eventually, he would write notes to her and she would respond orally. During the hearing she would give audible answers to questions that were later translated and even interjected to correct an answer given by the testifying witness.

At the trial, a new defense attorney, a new judge, and new interpreters (one for defense and one for the State) were involved. Prior to trial, the judge called both court appointed translators to the stand to question them. They indicated they were using transliteration instead of sign language because that was what Linton used with them.

On the second day of trial, Linton’s counsel moved for mistrial because Linton was not understanding the proceeding. An expert testified that Linton had a 4th grade reading level, but the DIC-24 is written at a 12th grade reading level while Miranda is written at the 8th grade reading level. Another interpreter was appointed. [Apparently Linton was charged with capital DWI rather than regular DWI.] This interpreter was allowed to not only translate, but break things down to Linton’s level. [You mean there are people that can translate adult language into child language? Where can I get one for me and my sons?]

The jury found Linton guilty.

At the motion for new trial, Linton’s counsel argued that there was no way Linton could understand what was going on in the courtroom. She could “possibly” understand if she had a hearing interpreter, a deaf interpreter, and a table interpreter. [That’s right, they argued that she deserved a new trial because she needed a fourth interpreter.] Linton’s counsel failed to set out specific circumstances in the trial where the translation had broken down.

The court of appeals held in a published opinion that Linton deserved a new trial because the extra interpreter to break down concepts to her was insufficient to provide her with a thorough understanding of the proceedings. Also, the English transliteration did not account for her low level of comprehension of the English language. Thus, the court of appeals held that the trial court erred in not providing Linton with a deaf-relay interpreter.

The CCA reversed, explaining that the federal constitution guarantees Linton the right to understand the proceedings. However, she was not entitled to understand the witness testimony with the precision of a Rhodes scholar or the nuances of a witness’s expression or behavior with the skill of a doctor of psychology. [Ouch.] All that was required was that the trial court take necessary steps to insure minimum understanding.

Here, the record clearly showed that the trial court insured that Linton had a minimum understanding of the proceedings. Linton was able to testify at the motion to suppress hearing and even spontaneously interjected in that proceeding. The stationhouse video shows she was able to communicate with the deputy arresting her. After voir dire, the interpreter indicated he wasn’t having any problem communicating with her. Witnesses familiar with Linton testified that they were able to communicate with Linton in the same way the interpreter was communicating with her. Most importantly, the case JUST A DWI! It wasn’t legally or factually complex and therefore didn’t require extra levels of linguistic competency. While a deaf-relay interpreter might have been the best interpreter for Linton, the record doesn’t indicate the lack of one denied her of due process.

Judge Johnson wrote a concurring opinion to wax rhapsodic about how she’d represented a fair number of deaf clients in her past and to pass on what she’s learned to try and aid practitioners. She also made sure to apologize in advance to the deaf community in case she got anything wrong. Judge Johnson went on to point out that deaf people are just like hearing people except they can’t hear. [The More You Know.] Deaf people don’t want to seem stupid so they may simply nod their heads when they don’t understand something. Yes-or-no questions may mask a lack of understanding, so trial court’s should ask open-ended questions. Finally, Judge Johnson notes that employing an intermediary interpretation may lengthen trials, so it’s understandable for trial courts to be reluctant to use them. [Note: It seems to me that Judge Johnson tried to pull of a Cochran-esque concurrence here with lots of “practical” tips for practitioners. Unfortunately, the opinion lacks precise thinking so it ultimately seems unhelpful, at least to me. Still, she deserves credit for the effort.]

Case Summary - Tommy G. Laster

Tommy G. Laster v. State (Keasler, J.) (5:4) – On a Sunday morning, Laster grabbed an eight-year-old girl, B.T., on the sidewalk of a busy street while she and her ten-year-old brother, R.T. heading home from the store. Laster pulled her away. R.T. pulled his sister back and shoved Laster. A car honked when it drove by a few moments later, and Laster released the girl. Laster gave a written statement to police where he indicated that the voices in his head told him to grab the girl, but he released her when he saw the boy and thought how passing cars might regard his behavior.

The State charged Laster with injury to a child and attempted aggravated kidnapping. The latter charge required the State to prove that Laster specifically intended to secrete B.T. and hold her in a place where she was unlikely to be found. The jury convicted him on both counts, but he only appealed the attempted aggravated kidnapping charge. The court of appeals held that the evidence was sufficient for the jury to infer from the very brazenness of Laster’s conduct that he intended to take B.T. and he only released her when he realized he was likely to get caught.

The CCA upheld the conviction. Writing for a five-judge majority, Judge Keasler explained that the lower court had incorrectly held that circumstantial evidence of intent is reviewed less rigorously in a legal sufficiency analysis. However, there was sufficient evidence in this case to establish the requisite level of intent. To prove attempted aggravated kidnapping, the State had to show Laster had committed an act amounting to more than mere preparation and he did so with the intent to commit aggravated kidnapping. Thus, the State had to prove Laster intended to “abduct” B.T. by secreting her. The State also had to show he intended to do one of six things in order to establish the aggravating element of aggravated kidnapping. The State had to show Laster intended to do one of the following: 1) hold her for ransom; 2) use her as a shield or hostage; 3) facilitate the commission of a felony or the flight after the attempt or commission of a felony; 4) inflict bodily injury or violate or abuse her sexually; 5) terrorize her or a third peson; or 6) interfere with the performance of any governmental or political function. The Court was quick to point out that the State wasn’t required to prove Laster could do any of these things, just that he wanted to accomplish at least one of them.

The CCA held the evidence sufficient because the jury could infer he intended to secrete B.T. even though the offense occurred in public because he attempted to separate her from her brother. While there may have been many other possible explanations for his motives, crediting those other possibilities invaded the role of the fact-finder who was charged with resolving conflicts and ultimately applied the now-discarded “alternative-reasonable-hypothesis” standard.

The CCA also held that the court of appeals had applied the proper factual sufficiency standard. Because Laster presented no evidence, the court of appeals could only evaluate whether the evidence was so weak as to be manifestly unjust. The majority noted that the court of appeals considered all the relevant evidence and specifically addressed each of Laster’s claims that the evidence was factually insufficient. In short, the court of appeals properly deferred to the jury’s inferences and credibility determinations.

Judge Cochran, joined by three other judges, dissented. Judge Cochran argued that there was no evidence to suggest an intent to isolate or commit the aggravating element of the offense. In the dissent’s view, simply grabbing B.T. around the waist was too ambiguous to establish the requisite level of intent. The dissent would reverse and modify the conviction to one of unlawful restraint.

[This was a tough one for me, as I generally regard Judges Keasler and Cochran as two of the best judges on the Court. Judge Keasler’s deference to the jury’s fact finding is wholly consistent with previous case law. However, the majority seems to puts a lot of inferential weight on Laster’s single act of pulling B.T. away. I can see why the dissent remained unconvinced. Still, we’re talking about inferring intent, which is a process that will never lend itself well to clear contours. Drawing the permissible-intent-infernece line where Judge Cochran wants to is ultimately just as arbitrary as drawing it anywhere else.]

A Note To Those Following on Facebook

It was recently brought to my attention that there's like some sort of Blog Network on Facebook that's following this site. I have no idea if someone started that or if it just sprang to life as a sort of a Michael Crichton-esque computer consciousness deep within the Facebook code. If it's the latter and the singularity truly is nigh, then humans should have nothing to fear as seeking out this blog is definitely mostly harmless. But regardless of how it came about . . .

Hello. Thanks for tuning in. If you like what you see, tell your friends. I'd do so myself, but I'm trying very hard to resist Facebook assimilation. (I did create a profile in order to view the network, but I'm trying very hard not to use it.) I've seen how addictive it can be, and trust me, with two blogs now, I don't need another wall to write upon.

So thank you whoever started the network, I'm humbled and flattered. I'll do my best to provide you with information that I hope you will find useful. Of course I started this post because I was like OMG, OMG, OMG, I'm on Facebook! Now that I've done that, I have no idea how to end. I guess I'll just have to stick with an old standby.

Po-tee-weet?

Bastrop Bad Hair

A friend of mine just started his own blog that I highly recommend you check out. This foray into blogging doesn't surprise me in the slightest as this friend of mine is a natural born storyteller. He's lived quite an adventurous life and never fails to amaze me with his insights into the human condition (usually packaged in a story about some unique personality he knows). As I described him to one person, he's like a punk rock version of Atticus Finch telling Mark Twain stories. And he's WAY funnier than I am. If that's not enough incentive to click over to his blog to take a look, well I don't know what is.

Thank you, sir for reminding us that Texas isn't all about the big cities. And I've added the blog to my list.

Here's the blog, titled, as you may have guessed, Bastrop Bad Hair.

Today's Opinions - 1/7/09

No opinions today. No new issues granted.

Oral Arguments - 12/10/08

I don't know if this will work, but here it goes. [The files are all .wma files, and the file storage site is www.box.net, which Blogger.com recommended. I make no guarantees about anything. I only hope pulling them up is more effortless for you than posting them was for me.]

On December 10, 2008 the Court of Criminal Appeals heard oral argument in the following case:

PD-0891-08, Luis Noe Barrios v. State, a capital murder case out of Harris County.

Appellant's opening argument. (Charles Hinton)
The States response. (Dan McCrory)
Appellant's rebuttal.

Ever argue to the jury that they have to decide the greater offense before they consider the lesser? That's the issue in this case. You can read the underlying opinion here.

AP-75,633, Howard Paul Guidry v. State, a capital murder out of Harris County.

Appellant's opening argument. (Terrence Gaiser)
The State's response. (Kevin Keating)
Appellant's rebuttal.

Does the use in one trial of an impermissibly obtained confession that leads to a conviction and the admission by a mitigation expert at punishment that the defendant had admitted the crime to that expert impermissibly taint the State's use of that expert's testimony about the defendant's admission in the re-trial of that case after appellate reversal? Did you find that question hard to follow? You may feel that way about Appellant's argument. Judge Johnson seemed to feel perplexed. This is a death penalty case so there's no underlying opinion.

AP-75,677, Richard Lee Tabler v. State, a capital murder out of Bell County.

Appellant's opening argument. (Karyl Krug)
The State's response. (Bob Odom)
Appellant's rebuttal.

Here, Tabler complained that the prosecutor's argument to the jury that there had to be a nexus between the mitigation evidence and the crime that Tabler had been convicted of for the evidence to be truly mitigating. Moreover, trial counsel was ineffective for failing to object to those arguments. To make matters more interesting, Tabler has also apparently written many letters to his attorney and at least one to the Court asking to waive everything (and essentially be executed as soon as possible). As this is a death penalty case, there is no underlying opinion.

AP-75,706, Douglas Tyrone Armstrong v. State, a capital murder out of Hidalgo County.

Appellant's opening argument. (O. Rene Flores)
The State's response. (Theodore C. Hake)
Appellant's rebuttal.

Armstrong complained that trial counsel was ineffective for failing to bring more mitigation evidence and that the trial court should have granted a continuance to give trial counsel more time to investigate for more mitigation evidence. The Court seems a little concerned about how to frame the issue, as a denied motion for continuance, a denied motion for new trial, or ineffective assistance for failure to investigate. There is no underlying opinoin because this is a death penalty case.

I apologize for the delay, but there are a lot of behind the scenes logistics involved. There will always be delay, but I'll work on shortening it in the future.