Saturday, February 28, 2009

Oral Arguments - 2/4/09

On February 4, 2009, the CCA heard oral argument in the following cases:

AP-75,654, Thomas Bartlett Whitaker v. State, a capital murder out of Fort Bend County.

Appellant's opening argument. (Jimmy Phillips, Jr.)
The State's response. (Kristen Moore)
Appellant's rebuttal.

This was a death penalty case, so there was no underlying opinion.

PD-091-08, State v. Michael Joseph Rhine, a violation of the clean air act case out of Denton County.

Appellant's opening argument. (Richard Gladden)
The State's response. (Andrea R. Simmons)
Amicus Attorney argument. (Phillip A. Lionberger, TECQ)
Appellant's rebuttal.

The CCA granted review on the following issue:

Whether the Penal offense with which petitioner is charged rests upon an unconstitutional delegation of legislative authority in violation of the separation of powers principle guaranteed by Article II, Section 1 of the Texas Constitution.

You can read the underying opinion here. This is kind of interesting in that we have an amicus attorney from the Texas Commission on Environmental Quality that requested the opportunity to be heard. Gosh, I kind of wish TABC would take the same type of hands-on approach to their cases.

PD-0821-08, State v. Ernesto Moreno, an unlawful possession of cocaine case out of Nueces County.

The State's opening argument. (Douglas K. Norman)
Appellant's response. (Luis Garcia)
The State's rebuttal.

The CCA granted review and oral argument on the following issues:

1. Whether the trial court's action in purporting to grant a directed verdict, before the State rested its case while its key witness was waiting to testify just outside the courtroom, amounted instead to an improper dismissal of the indictment, which is properly appealable by the State?

2. Whether the trial court even has the underlying authority to grant a directed verdict?

You can read the underlying opinion here. Seems like this will come down to whether this was a mistrial or a dismissal.

[Enjoy, Tanya.]

Thursday, February 26, 2009

Issues Granted - 2/25/09

The Court granted review in the following cases:

Michael Patrick Kennedy v. State: The CCA granted the defendant’s petition for discretionary review without oral argument in this aggravated assault on a police officer case from Comal County on the following issues:

The court of appeals erred in holding that appellant waived the right to appeal the trial court’s rulings on his motion to suppress.

For a summary of the underlying case, click here.

Danny Wayne Grammer v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this Johnson County aggravated sexual assault/indecency with a child case on the following issue:

Whether the court of appeals erred in overruling appellant’s challenge to the trial court's failure to hold a separate punishment hearing as required by V.A.C.C.P. Art 37.07(3) and Art. 42.12(5)(b), in that the court did not hear the initial plea and failed to conduct a presentence investigation or allow for the presentation of evidence in mitigation of punishment.

For a summary of the underlying case, click here.

Robert Lee Menefee v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this Smith County possession of a controlled substance with the intent to deliver case on the following issue:

The court of appeals, in affirming the trial court judgment allowed a conviction not supported by the evidence in the case.

For a summary of the underlying case, click here.

Daniel P. Pfeiffer v. State: The CCA granted the defendant’s petition for discretionary review without oral argument in this Bexar County assault on a public servant case on the following issue:

The court of appeals erred in finding the appellant failed to preserve error and that there was sufficient evidence to support the trial court’s judgment [awarding $11,620 of restitution].

For a summary of the underlying case, click here.

Issue Granted - When Does A Plea Waive Error?

Michael Patrick Kennedy v. State: The CCA granted the defendant’s petition for discretionary review without oral argument in this aggravated assault on a police officer case from Comal County on the following issues:

The court of appeals erred in holding that appellant waived the right to appeal the trial court’s rulings on his motion to suppress.

Here, Kennedy got stopped for speeding and during the traffic stop ended up shooting at the officer. The officer shot back, of course, and hit Kennedy three times while escaping injury himself. While Kennedy was charged with attempted capital murder a Texas Ranger got a search warrant and seized items from Travis Bickle’s, er, I mean, Kennedy’s arsenal, er, I mean home.

Kennedy filed a motion to suppress alleging a lack of probable cause, staleness, lack of credibility of the sources of information, and seizure of items outside the scope of the warrant. The trial court denied the motion to suppress and Kennedy pleaded guilty, though he agreed to leave the punishment range open (so it wasn’t a plea bargain). Both Kennedy and the State were under the impression that he could appeal the denial of the motion to suppress.

Little did they know, the court of appeals thought otherwise. The Third Court of Appeals held that Kennedy had waived his right to appeal the district court’s ruling on the motion to suppress. According to the court of appeals, a guilty plea waives the right to appeal only when the judgment of guilt was rendered independent of, and is not supported by the error. The court of appeals took this rule from the CCA opinion in Young v. State, which abrogated the Helms rule that required a defendant to persist in a plea of “Not Guilty” or else waive all non-jurisdictional defects.

The court of appeals went on to explain that courts generally seem to hold that a judgment of guilt is not independent of the erroneous denial of the motion to suppress where there’s some nexus between the error and guilt. So, a drug possession case is often able to appeal after a plea of guilty because the seized evidence constitutes an element of the crime, but in this case, the seized evidence had no bearing on the elements of the offense.

[The equities seem to favor Kennedy here as pretty much everyone thought he should be able to appeal the issue. Everyone except the court of appeals, that is. Maybe the Third Court is actually just trying to force the issue and see if the CCA will retreat further from Young. I don’t know. I’m not feeling particularly smart, insightful, or clever this morning. And my magic 8-ball’s broken.]

Issue Granted - Objection Required For Separate Punishment Hearing?

Danny Wayne Grammer v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this Johnson County aggravated sexual assault/indecency with a child case on the following issue:

Whether the court of appeals erred in overruling appellant’s challenge to the trial court's failure to hold a separate punishment hearing as required by V.A.C.C.P. Art 37.07(3) and Art. 42.12(5)(b), in that the court did not hear the initial plea and failed to conduct a presentence investigation or allow for the presentation of evidence in mitigation of punishment.

Here, Grammer violated his conditions of deferred adjudication probation. He was adjudicated and sentenced to sixty years in prison. He raised a number of issues, but, as seen above, the CCA is only interested in his claim that he was denied a separate punishment hearing after he was adjudicated.

The court of appeals held (in a published opinion) that Grammer had the opportunity to present his punishment evidence despite the lack of a separate punishment hearing. While he did present some evidence to mitigate against the probation condition violations, he did not present any to mitigate against the underlying offense. [A fact that doubtlessly became painfully obvious to him after he was sentenced to sixty years in prison.] The court of appeals noted that nothing in the record indicates that the trial court prevented Grammer from presenting punishment evidence or that he objected to not having been afforded the opportunity to present punishment evidence.

[The court of appeals relies upon Vidaurri v. State to support its position, but that five judge majority no longer exists. Also, Judge Womack concurred to express his concern that this case does damage to the stringent waiver requirements usually reserved for waivable rights. Judge Johnson concurred, and Judges Keller and Keasler dissented, but no one really focused on failure-to-preserve-error-on-the-lack-of-punishment issue. Instead, they focused on whether a plea bargain agreement for deferred adjudication limits the right of appeal under Rule 25.2—Johnson says it doesn’t, the K’s say it does. Looks like the CCA wants to clear all this up.]

Issue Granted - Can Oral Plea Correct Deficient Stipulations?

Robert Lee Menefee v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this Smith County possession of a controlled substance with the intent to deliver case on the following issue:

The court of appeals, in affirming the trial court judgment allowed a conviction not supported by the evidence in the case.

Menefee entered an open plea of guilt and filled out the usual stipulations of evidence to support the plea. Problem is, the stipulations failed to include the word “possess”. The court of appeals held (in an unpublished opinion) that the evidence was sufficient to support the guilty plea because Menefee orally plead guilty to the charges in the indictment. That oral plea provided evidence on the element of possession, and the stipulation of evidence satisfied the remaining elements. Because Menefee’s oral plea was admitted into evidence along with the stipulations, there was sufficient evidence to support the conviction.

[Right result, but logically begs the question. If your plea can provide evidence of guilt, why do you need other evidence to support it? Clever argument by Menefee’s appellate attorney, though. Too clever? One thing is for sure, we’ll get some language telling practitioners to READ THE DAMN PLEA PAPERWORK!]

Issue Granted - Insufficient Evidence To Support Restitution?

Daniel P. Pfeiffer v. State: The CCA granted the defendant’s petition for discretionary review without oral argument in this Bexar County assault on a public servant case on the following issue:

The court of appeals erred in finding the appellant failed to preserve error and that there was sufficient evidence to support the trial court’s judgment [awarding $11,620 of restitution].

Pfeiffer was placed on regular probation for assault on a public servant. While on probation, he got into an argument with his neighbors over a fence. [You can practically hear the reference to Frost's Mending Wall being written into the opinion.] Pfeiffer started removing some of his neighbors fence. Criminal mischief charges and probation revocation ensued.

After revoking Pfeiffer’s probation, the trial court ordered Pfeiffer to pay restitution to his neighbor. Pfeiffer complained on appeal that restitution to his neighbor should not be imposed on him because his neighbor was not the victim of the underlying offense, assault on a public servant. He also complained that there was no factual basis for the restitution award.

The court of appeals held (in an unpublished opinion) that Pfeiffer waived any objection about the imposition of restitution upon him by not objecting at the time. Thus, he couldn’t complain on appeal that he shouldn’t have to pay restitution to his neighbor because his neighbor wasn’t the proper victim.

The court of appeals also held that documents in the record established the cost of damages and attorney’s fees. While the trial court said at the time of the hearing that restitution would be awarded and needed to be determined, apparently the documents establishing restitution were not entered into the record. The court of appeals reasoned that a PSI can be used to set the amount of restitution without it being introduced as evidence, so the other restitution documents can do so as well.

[The court of appeals relied upon the CCA’s opinion in Idowu v. State to hold that Pfeiffer had not preserved error on the imposition of restitution. Judge Price concurred in that case to note that the majority held that Idowu had failed to preserve error and then considered the merits of his claim. I don’t know what any of this means, but I felt I should point it out.]

Wednesday, February 25, 2009

Today's Opinions - 2/25/09

The Court rejected a motion for rehearing on In re Matt Johnson the mandamus case where the trial court ordered TDCJ to take funds out the defendant's trust account to pay court costs). [At the risk of being presumptuous, I covered the case here.]

The Court issued one published opinion in the following case:

Donny Kevin Davis v. State - The Court affirmed that Davis had not been prejudiced by his trial counsel's failure to request a jury instruction on accomplice witness testimony, but made clear that the proper prejudice analysis requires an examination of both non-accomplice witness testimony and whether the jury had any rational reason to disregard it. For a more detailed summary, click here.

Case Summary - Donny Davis v. State

Donny Kevin Davis v. State. Davis and his buddy Justin Schimpf broke into an Amarillo apartment and stole a Playstation 2. [No, not a Playstation 3, a Playstation 2. I’m pretty sure they dispense these from machines at the local supermarket.] They later pawned it. Several people, including the owner of the burglarized apartment saw Davis lurking around the apartment complex with Justin. However, Davis admitted to the police that he had been in the area, but that he’d met up with Justin who asked Davis to go with him to pawn a Playstation 2.

Justin testified against Davis, and despite the fact that he was obviously an accomplice, trial counsel did not request an accomplice witness instruction. The trial court did not instruct on accomplice witness testimony on its own. Davis was convicted and (because of his two prior felonies) was sentenced to 67 years in prison. [Not Wii prison, real prison.]

Davis filed a motion for new trial alleging ineffective assistance of counsel for failing to request the instruction. Trial counsel filled out an affidavit admitting that his failure to request the instruction was not trial strategy. In the first opinion, the court of appeals held that the denial of the instruction was not egregious because sufficient non-accomplice evidence connected Davis to the crime. However, the court abated (in an unpublished opinion) for a hearing on the motion for new trial.

At the hearing, the trial court held that the failure to request the instruction was not part of strategy, but given the state of the evidence and the totality of the representation trial counsel had not rendered deficient performance. Additionally, the trial court held that no reasonable probability existed that the outcome would have been different had the instruction been included because of the totality of the evidence. The court of appeals affirmed (again in an unpublished opinion) the denial of the motion for new trial because the evidence independent of the accomplice testimony sufficiently connected Davis to the crime and provided, by itself, a sufficient basis upon which a jury could find him guilty beyond a reasonable doubt.

The Court of Criminal Appeals affirmed the court of appeals opinion because Davis failed to establish prejudice. Judge Holcomb, writing for an eight-judge majority, made clear that trial counsel’s representation was objectively deficient, thereby disagreeing with the trial court’s holding to the contrary. Then, the Court turned to the larger question of how to evaluate prejudice from the lack of a jury instruction on accomplice witness testimony.

According to the Court, the State presented a significant amount of non-accomplice testimony to implicate Davis, and there was no rational basis on which the jury could have doubted or disregarded that evidence. The court of appeals appears to have focused solely upon the whether evidence was legally sufficient without the accomplice testimony. [A a rookie mistake, perhaps?] According to the CCA, the proper analysis should focus upon 1) whether there is a “substantial” amount of non-accomplice evidence, and 2) whether the record reveals any rational basis on which the jury could have doubted or disregarded that evidence. Judge Keasler concurred in the result, without an opinion.

[This would seem to suggest that analysis of an ineffective assistance claim for failure to request a 38.22 instruction under Oursbourn will not just focus upon the evidence of guilt, but also on the quality of the evidence of involuntariness. Not an earth-shattering revelation on my part, to be sure, but I did feel I should point it out.]

Tuesday, February 24, 2009

The Texas Criminal Justice Integrity Unit

Gritsforbreakfast has posted the 2008 Annual Report by the Texas Criminal Justice Integrity Unit. The formation of this unit was spearheaded by Judge Hervey from the CCA. Generally, I'm leary of any time a court takes the lead on such overt policy making, but if they're expected to run for office, I guess these kinds of pro-active things are to be expected as part and parcel of the political game.

Perhaps that's why it's not posted on the Court's website. I don't know. It would be nice to have some centralized place to go to for this information. You can follow the link to get Grits's analysis of the report. Thanks for covering it, sir.

Monday, February 23, 2009

Oral Arguments, Yay or Nay?

Please bear with me as I should have the audio for the oral arguments in February soon. I've gotten some comments from some of the participants in those arguments expressing their reluctance to have any future argument featuring them broadcast for all to hear. I've actually had it done to me, so I understand their sense of anxiety. But personally, I figured I'd have to suck it up if my foolishness (or lack of skill) might help someone. As with everything else on this blog, I could be wrong.

Does anyone find it useful? Does anyone care?

Friday, February 20, 2009

The Die Is Cast

Yesterday the State Commission on Judicial conduct instituted removal proceedings for Presiding Judge Sharon Keller. Mark Bennett has a link to the allegations here. [You’d think it’d be up on the State Commission on Judicial Conduct’s website, but you’d be wrong.]

Prior to the release of the pleadings, I have viewed news reports of facts with skepticism because I pretty much view all news reports with skepticism. I don’t think that’s unreasonable given that the political motivations of the people reporting (and accusing) are so closely tied to the accusations. It’s hard not to talk about this case without supporting your positions with value assumptions derived from your view of the death penalty. Those that oppose the death penalty look at this story and see the fact that Michael Richard was executed after his claim wasn’t heard, for example, but not at the fact that his complaint was meritless and possibly even dilatory. Those that support the death penalty look at the history of brinksmanship on the part of the attorneys filing the stay as evidence that deadlines should be more strictly enforced, but they don't look at the fact that Presiding Judge Keller may have violated the Court’s own rules. And I don’t think I’m wrong in my belief that those reporting and complaining have let those value assumptions bleed into the reportage.

But, that misses the point, right? She violated the Court’s own rules, those supporting removal might say. And, if these allegations are true, it’s not a question about whether she did something wrong, it’s a question of how wrong it was.

It does seem odd to me that CCA counsel called her to ask her about keeping the clerk's office open when such a big deal is made that EVERYONE knew not only that a motion was coming, but also that if one was filed, it was to be heard by Judge Johnson. Why isn't he calling one of the judges that was sticking around? Why call the off-campus judge? Does this mean Judge Keller has ranking administrative authority over the court clerk? If so how is she violating the rules when it's her call to make to close the clerk's office? But looking back, it’s very easy to see and say that she should’ve given the other members of the Court a heads up. I imagine that she’d certainly make that referral, if she could go back.

And shouldn't some effort be made to account for the fact that ANY decision in a death penalty case results in public criticism? So much of the pleadings focus upon newspaper reactions to the event as negative, but they don't account for the fact that newspapers already have a negative view of the CCA simply because it continues to uphold death penalty cases (particularly the national media). Does this event cast the CCA in an appreciably worse light, or does it merely reinforce the negative feelings already held by the press? Of course, Presiding Judge Keller surely can't relish the thought of arguing that she didn't bring the CCA into disrepute because it was that way when she found it.

Moreover, the court of public opinion will NEVER be sympathetic to a procedural default rule where the death penalty is concerned. These rules are absolutely necessary for any court to be able to function, particularly in a death penalty case. The defendnt has every incentive to continue to come up with substantive complaints, without procedural defaults (like deadlines) he could delay the case into infinity, turning a death sentence into a de facto sentence to life in prison. But the existence of a procedural default rule means that at some point, someone's feet will have to be held to the fire. At some point, the courthouse will have to be closed. Good luck trying to get the press to make or accept that argument.

So, we're left with the question, does this one-time failure to make that referral mean Presiding Judge Keller should be removed?

Again, the death penalty aspect of the case comes into play. If this were a DWI, it’s obvious that Judge Keller would get a slap on the wrist, if that. But death is different, right? So, let's put it in the context of the death penalty. If Judge Keller had granted an extension that another judge had opposed, would anyone be trying to remove her? Still an "activist" judge. Still violating the Court's own rules.

But the defendant was executed.

Here is where one of the classic tactics of those who do not support the death penalty becomes most evident. Instead of focusing on the fact that the defendant in this case was presenting a meritless, last-minute claim (that didn’t even seek to absolve his guilt), the discussion limits consideration of any of the defendant’s characteristics that might differentiate him from other law abiding citizens. He becomes a member of the category of human being instead of the guy who raped and murdered Paula Dixon (and instead of the guy who raped and murdered Paula Dixon and tried, at the last minute, to game the system with a meritless claim designed merely to delay the proceedings). That way the public will fear the government’s conduct rather than the defendant’s.

Hey, I’m not knocking the tactic, it clearly works. If I were an advocate for Richard or against Keller, I’d probably do the same thing. If they can do this to Richard, they can do it to you, too! [Despite the fact that you would probably never break into someone’s house, steal her belongings, rape her, and put a bullet in her head as the culmination of your life of crime. This could happen to you!]

But if we’re really trying to separate complaints about Judge Keller's actions from complaints about the death penalty itself, shouldn’t we focus on the conduct alone? Conversely, if we're going to consider the fact that Richard was executed, shouldn't we also consider the potential merit of his claims and the timing of them?

No, no one is going to do that. No one is going to try. Instead of trying to place Judge Keller’s conduct in the context of other judicial mistakes, the focus will never veer from the fact that Michael Richard was executed. This is a death penalty case, after all, and “we close at 5” is bad optics. [I know, it’s a mixed metaphor, but you get my point.] Judge Keller can reasonably point to numerous judges that act outside of their authority to the extreme prejudice of one party or another. Those judges may have been reprimanded, admonished, and even censured, but they probably weren’t removed. Indeed, if this conduct in this case is grounds for removal, we might as well tack removal proceedings onto every writ of mandamus. Typically, judges have to commit a crime to be removed, not an error in judgment while acting in an offical capacity. If being a "knucklehead" is grounds for removal, there are a lot of judges that should sleep poorly tonight.

And that is the tragedy of the situation, as I see it. [I mean that in the classic Greek tragedy, Agamemnon-walking-on-the-carpets sense.] Judge Keller has a keen intellect. I always marvel at how she can see multiple layers of any legal issue. Whenever I read one of her opinions, I come away confident in my own intellectual limitations. So with all that whiz-bang intelligence, she had to know how this would play out (if the facts are as claimed). She had to know that this would give her critics and anti-death penalty opponents the perfect cause célèbre for her undoing. She also had to appreciate that the scandal that would erupt would allow those who hate her to paint the entire court with a broad brush dipped in their venom for her.

And she had to appreciate that THIS Court has to take special care to maintain credibility on the death penalty. Didn’t she see The Thin Blue Line? It may be unjustified that the CCA has to jump through hoops that Oklahoma, Florida, or California doesn't because everyone in the country looks down on Texas (and I don’t mean geographically) for no reason but their own sense of regional superiority, but good luck getting an audience to listen to you vent your righteous indignation on that point. For better or worse, that’s the environment in which Presiding Judge Keller finds herself.

So, either this brilliant judge is really that thoughtless and callous, or there's more going on here. I like her and respect her, so I'd like to believe the latter. But if there's not something else going on, I don't think removal by the commission or the Supreme Court is appropriate. Let the voters decide.

Ultimately, though, the result of this removal proceeding doesn’t really matter. We’ve seen this story enough times in the recent past. Some of them are still playing out now. We’re in Roger Clemens, A-Rod, O.J., Clinton, Bush, Blagovich territory now. If Judge Keller stays, every criticism of the Court will have a footnote that links to the result of this proceeding (along with some claim that “justice was not served” or that she or the Court lacks legitimacy). If she goes, the CCA will have to work extra hard to remove the radioactive fallout. We’re talking Silkwood shower hard. Personally, I think the former has greater potential for minimizing toxicity, though I can see why others would regard the latter situation with optimism. But in the meantime, the media attention as this drags on will probably do more to discredit the Texas judiciary than Presiding Judge Keller's initial conduct. Anarchists rejoice!

“There’s no going back,” the Joker said to Batman in The Dark Knight. “You’ve changed things.” For better or worse, the mere initiation of the removal proceedings has changed things. The die is cast.

Wednesday, February 18, 2009

Today's Opinions and Issues - 2/18/09


The CCA did not issue any new published opinions today. Nor did it grant any new issues for review. I needed the break. (And apparently so did they.)

Here's a link to the hand down list for the intellectually curious among you.

Tuesday, February 17, 2009

Obligatory P.J. Faces Impeachment Post

I came across this article in the Star-Telegram and felt that I should post the link. Apparently, Representative Lon Burnman filed a resolution calling for Presiding Judge Keller's impeachment when the State Commission on Judicial Conduct decided not to act on those complaints back in 2007 over the Michael Richard case. This is not surprising after Baze v. Rees held that claims challenging the lethal injection protocols, the same claim Richard wanted to make, lacked merit. Grits is, of course, giddy with anticiation. [Gotta' love poll with separate choices for Impeachment and Disbarment like being licensed isn't a qualification for the position. The fact that it's second runner-up in results says something about the voting sample, I think.]

ACSblog also has a post on it as well. [I love how ACSblog reaches the conclusion that public confidence in the Texas judiciary is at a "titanic low" because the Chief Justice of the Texas Supreme Court doesn't want to have to run for re-election.]

Thursday, February 12, 2009

Issues Granted - 2/11/09

The Court granted review in the following three cases:

Wesley Charles Joseph v. State: The Court granted the defendant's petition for discretionary review with oral argument in this Bexar County murder case on the following issue:

The court of appeals erred in affirming the trial court’s denial of the motion to suppress Mr. Joseph’s statement, because Mr. Joseph did not make a knowing, intelligent and voluntary waiver of his rights under TEX. CODE CRIM. PROC. Art. 38.22 and Miranda v. Arizona.

Here, the defendant was charged with stabbing a homeless man at a homeless shelter. [The record is silent on whether he also found a way to kick a three-legged dog or steal candy from a baby.] The police took a statement from him and advised him of his rights. Joseph signed the card acknowledging his rights and that they were read to him. The problem, according to Joseph, is that nothing on the card indicates that he also waived those rights and agreed to talk to the police. The court of appeals held, in an unpublished opinion, that the fact that Joseph acknowledged his rights and continued to give a statement was strong evidence that he knowingly waived his rights. [Apprently, the CCA isn't as persuaded. Or maybe they want to put their feet in some more wet cement. There's been alot of that going around.]

Roger Eugene Mansfield v. State: The Court granted the defendant's petition for discretionary review with oral argument in this Harris County aggravated assault case on the following issue:

The court of appeals has held that the trial court did not abuse its discretion in refusing to permit a father to testify that his son, the appellant, had never before been placed on community supervision, thus forcing appellant to take the stand to establish probation eligibility.

The issue granted is pretty self explanatory. Here, the defendant sought to call his son to prove up probation, but the trial court excluded the testimony because the son had not always lived with his father. Therefore, he lacked personal knowledge of whether the defendant had or had not previously been convicted of a felony. The court of appeals upheld the exclusion of the testimony in an unpublished opinion. While Mansfield argued on appeal that the son's lay opinion could have rendered the testimony admissible, he did not make that argument at trial and therefore did not preserve error on the exclusion of the evidence. Neither did Mansfield argue to the trial court that excluding the evidence prevented him from presenting his defense. [Seems like the CCA wants to address the merits of the issue even though the court of appeals didn't want to.]

Ross Layton Ford v. State: The Court granted the State's petition for discretionary review with oral argument in this Fannin County possession of a controlled substance case on the following issues:

1. May a court of appeals decide an issue based on an argument that was not made in the trial court?

2. May a trial court base its ruling on an unsworn police report offered into evidence at a pre-trial suppression hearing?

Here, police seized marijuana from Ford's truck pursuant to a warrantless search. At the motion to suppress hearing, the State called no witnesses. Instead, the State merely introduced the offier's offense report. The court of appeals reversed because the sole basis for denying the motion to suppress was the officer's unsworn offense report. [While it's easy to get sidetracked on whether Granados v. State really extends to this extreme, the real issuse for the court of appeals was whether the trial court can ultimately consider a motion to suppress on an unsworn report by an officer. Sure the trial court can consider the motion on affidavits under Article 28.01, but here there wasn't even a sponsoring witnesess. So really, the issue is whether there's a sponsoring witness requirement, which, if there were, would seem to stem from a rule of evidence, which Granados v. State says doesn't apply here. So, maybe it really is about Granados, after all.]

Yesterday's Opinions - 2/11/09

Yesterday, the CCA issued published opinions in the following four cases:

Gregory Earl Pollard v. State - Here, the CCA held that evidence of Pollard's 1986 murder conviction was inadmissible to show the victim's state of mind in a retaliation case. Here's a link to a more detailed summary.

Forrest Lee Stokes v. State - The CCA held that an unsigned docket notation was sufficient to satisfy the presentment requirement for motions for new trial. Here's a link to a more detailed summary.

David Clyde Billodeau v. State - Here, the CCA held that Billodeau should've been allowed to question the complainant in an aggravated sexual assault of a child case about threats to falsely accuse his neighbors of molesting him even though the threats ocurred after the charged offense. Here's a link to a more detailed summary.

Mark William Ivey v. State - The CCA held that a trial court can give a defendant probation even though the defendant doen't ask for probation and the jury doesn't recommend it. Here's a link to a more detailed summary.

Case Summary - Gregory Earl Pollard v. State

Gregory Earl Pollard v. State. Pollard was charged with retaliation against Christopher Kirk who had given a statement to police implicating Pollard in an aggravated sexual assault case. After Kirk gave a statement to police he recanted because Pollard had threatened to hurt him or have a biker named “Wolf” hurt him. Kirk testified that he believed Pollard would carry out his threat. However, Kirk did not testify that his knowledge of Pollard’s “violent past” (which included a 1986 murder conviction) contributed to his fear of Pollard. Kirk also did not testify that Pollard’s past contributed to his recanting of his statement to police or caused Kirk to be more likely to believe that Pollard would carry out his threat.

The court of appeals held that the prior murder conviction was an extraneous offense, inadmissible beyond character conformity. The intermediate court of appeals rejected the State’s contention that the evidence of the twenty-year-old murder conviction showed Pollard had threatened Kirk because Pollard was afraid of returning to prison. The State never elicited any testimony to support this theory beyond evidence of the prior conviction. The court also rejected the State’s argument that the prior conviction showed Kirk that Pollard was capable of carrying out the threat. Under this theory, the State argued that Kirk’s fear of Pollard (due in part to the knowledge that Pollard had murdered before) motivated Kirk to change his story. The court of appeals held that because Kirk’s state of mind was not an element of the offense of retaliation and it didn’t help the jury understand the offense of retaliation. Finding the erroneous admission of the extraneous offense harmful, the court of appeals reversed.

The State asked the CCA to reverse the court of appeals and hold that the evidence of what Pollard had told Kirk about the prior murder was relevant to Kirk’s state of mind. If this evidence were admissible it would render the admission of the prior conviction harmless because the same information would have come in through another source. The CCA explained that if a defendant says “I’ve killed before, I’ll do it again” could very well be relevant in a retaliation case when the statement comes after a threat to kill a potential witness such as Kirk. However, in this case, there wasn’t any evidence that Pollard had ever said something to the effect of “I’ve killed before, I’ll do it again.” While Kirk testified that he knew Pollard had killed someone, the evidence was presented as a fact that Pollard had actually killed someone and not merely to show the effect of the knowledge that Pollard had killed someone had upon Kirk. This made the evidence that Pollard had killed a man somewhat free-wheeling and unconnected to anything of real consequence in this case. The evidence, standing alone, that Pollard had killed someone wasn’t relevant, and even if Kirk’s knowledge that Pollard had killed someone had any marginal relevance, it would not have changed the outcome of the court of appeals harm analysis. Eight judges joined the majority. Judge Price concurred without an opinion.

Case Summary - Forrest Lee Stokes v. State

Forrest Lee Stokes v. State. A jury convicted Stokes of felony theft and Stokes timely filed a motion for new trial alleging ineffective assistance of counsel. No hearing was held on the motion and it was overruled by operation of law. The only evidence that the motion had been “presented” to the trial court (a pre-requisite to complaining about the denial of a hearing) was a notation on the trial court’s docket sheet “Motion New Trial presented to court not ruling per judge”. The court of appeals held that Stokes had failed to meet the threshold showing of presentment so he could not complain about the denial of a hearing on his motion for new trial. The court reasoned that the docket notation was unsigned and gave no indication that they were signed by the judge. Therefore, the trial court did not abuse its discretion in declining to hold a hearing on the motion.

A unanimous CCA held that the docket notation in Stokes was sufficient to show presentment. While the Court had given some indication in Carranza v. State, that a notation in the case file (in Carranza it was a judge’s note on the motion itself) must be a “judge’s notation” to establish presentment, in this opinion, the Court made clear that an unsigned docket notation qualifies as such a notation. The CCA also rejected the State’s contention that disturbing the court of appeals opinion meant interfering with the court of appeals factual determination that the docket notation was not reliable. According to the CCA, the court of appeals was not making a factual determination regarding the reliability of the docket notation, but rather a procedural requirement subject to modification by the rule-making power of the Court.

[This is not surprising. There's really nothing wrong with this opinion. Not that I don't empathize with the State for making the argument, but even they had to know where this was headed. Clearly, the trial court knew about the motion, and that's really all the presentment requirement is about.]

Case Summary - David Clyde Billodeau v. State

David Clyde Billodeau v. State. Here, Billodeau was charged with aggravated sexual assault. He had been injured in a bicycle accident and stayed in the home of J.B., the then-eight-year-old complainant, to recuperate. At one point, Billodeau gave J.B. a gift of two remote controlled cars. When J.B.’s mother told him he could not accept the gifts, he flew into a rage (he had been diagnosed with ADD and bi-polar disorder the year before) and threw the cars at Billodeau.

After Billodeau moved out of the house, J.B. made outcry to a neighbor that Billodeau had taken J.B. to a motel and sexually assaulted him. (Though factually this looked like it happened several months later, J.B. testified that he thought he told made outcry to his neighbor the very next day.) Doctors found no sign of trauma, but that wasn’t uncommon. CPS removed J.B. and his sister from the home (which J.B. had wanted to avoid – he had previously been molested by someone else as had his sister, making it look as though his parents were failing to protect him), and he returned from CPS custody 11 months later even more prone to fits of rage.

At trial, Billodeau sought to question J.B. about threats he had made to his neighbors, the Klines, after the sexual assault had occurred. J.B. had threatened to call CPS and falsely report that the Klines had molested him. (As a side note, when Mrs. Kline told J.B. that he didn’t know what “molesting means” he provided her with an accurate definition, presumably arrived at after being run through the CPS and criminal justice system.) J.B. also threatened Mrs. Kline’s son in the same manner when he got angry with him. J.B. denied making these threats outside the presence of the jury, and the trial court refused the defense request to question J.B. about the threats because they had happened after the sexual assault. This prevented Billodeau from calling the Klines to impeach J.B.’s denials about the threats. They did, however, testify that they were familiar with J.B.’s reputation for truthfulness and it was bad.

The court of appeals upheld the exclusion of the evidence. The court reasoned that the remoteness in time and the dissimilarity between the false accusations and those leveled at Billodeau rendered the probative value of the evidence low. Moreover, the danger of unfair prejudice was high. Justice Terry Jennings dissented because he felt that the this evidence went to the core of the reliability of the complainant’s credibility, and that the exclusion of the evidence was a constitutional violation.

The CCA unanimously held that Billodeau should have been allowed to question J.B. about his threats against the Klines even though they took place after the sexual assault in question. Judge Johnson, writing for the majority distinguished this case from Lopez v. State by noting that there the false accusations were against a mother for physical abuse, but here J.B.’s threats against the Klines concerned the same subject matter as the instant case--molestation. While the Court acknowledged that Rule 608 prevented impeachment with specific bad acts, the majority noted that the Confrontation Clause may require admission of evidence that Rule 608 would otherwise bar. Additionally, the Court set out Rule 613, which allows a witness to be impeached with extrinsic evidence to show bias or interest.

The Court explained that the court of appeals erroneously focused upon the fact that the false allegations occurred after the charged offense under a theory that J.B.’s credibility was only important at the time of the report to the police. The Court rejected any suggestion that Billodeau was required to show the false threats occurred before the charged offense. The Court noted that the evidence showed that J.B. when angry about perceived injustices threatened the Klines. Similarly, this might have helped the jury determine whether J.B. had falsely accused Billodeau as vengeance for the remote-controlled car incident.

The Court also held that the error was non-constitutional, but that it had affected a substantial right. [The Court doesn’t consider the fact that the Klines did testify that J.B.’s reputation for honesty was bad, but does it matter?]

* * * * *

I’m sorry, this is seems like some shoddy work here on the part of the unanimous majority. Don’t get me wrong, I can get to the idea that false threats made after the offense could be relevant. But the way the court gets there is weak.

First, the CCA gives a head fake to the Confrontation Clause. I can understand how the Constitution can require the admission of otherwise inadmissible evidence, and in a case like this, maybe I could go with that. But the Court doesn’t go with that. Instead, they base the entire opinion the rules of evidence. Did they mean to give the State a way to introduce potentially dissimilar extraneous offense evidence against a defendant, too? It reads to me like the Court invoked the Confrontation Clause as a way to use the import of the Constitution to distract from the weak evidentiary analysis. Which brings me to point number two.

Having locked itself into a Rule 613 analysis, the Court was forced to stretch to find bias or motive in order to force the admission of the testimony from the Klines. The later threats (a year later, in fact), showed J.B. impulsively making his false accusations directly to the people he was going to falsely accuse immediately after his “perceived injustice”. With regard to J.B.’s statements to police about Billodeau there seems to be some conflict in the record on whether it happened the next day or months later (trial court resolution of facts, anyone?). But, taking J.B. at his word, the report was outcry to another neighbor about Appellant, not directly to Appellant, and certainly not to the police.

This is a key difference. J.B. did not attempt to capitalize on his accusations against Billodeau the way that he did in his false accusations against the Klines. Moreover, his rage was directed at the people he perceived had treated him unjustly. For these threats to be consistent with the car-throwing incident, J.B. would have had to throw the cars at his mother (the person who had made him return the gifts). The threats against the Klines seemed to show the impulsivity the CCA describes, but the outcry to J.B.’s neighbor just . . . doesn’t. So if the subject matter of the false accusation is the only similarity, doesn’t that look like character conformity? Once a false accuser, always a false accuser?

Ironically, it seems that the CCA was in such a rush to hold that false threats after the charged offense can be admissible that it fell into the same tunnel vision it accused the court of appeals of having. The CCA just says these two things are similar because they both deal with molestation, but as mentioned above, there are some things that suggest the false threats after the charged offense convey completely different information than J.B.’s outcry. Even if they ultimately discounted those differences, the CCA should have done a more rigorous analysis regarding just how identical (or different as the case may be) the false allegations were to the charged offense.

I know, I know, let it all in and let the jury sort it out. Oddly, this is an opinion that I’m not upset about the result, I’m upset about the way they get there. From a purely evidentiary standpoint I can see how conduct after the charged offense could be relevant, but in this case, the relevancy analysis seemed like pretty weak tea to me. And, to be fair, Judge Johnson showed judicial restraint in relegating the interference with a right to present a defense to error affecting a substantial right. She could’ve gone much bigger, and down the road, a constitutional error finding would have given me fits. So, I guess I can’t be too upset.

Case Summary - Mark William Ivey v. State

Mark William Ivey v. State. Ivey committed misdemeanor DWI. He elected to go to the jury for punishment. He did not fill out the paperwork for probation, thereby making it impossible for the jury to recommend probation. The jury sentenced him to thirty-five days in jail. After conferring with the jury informally, the judge placed Ivey on probation. Ivey appealed on the ground that the trial judge lacked the authority to suspend any sentence the jury assessed. The court of appeals held that the trial court had the authority to suspend the sentence under §3 of Article 42.12 of the Texas Code of Criminal Procedure. One judge dissented at the court of appeals.

A majority of the CCA agreed with the court of appeals and held that a trial court has the authority to place an eligible defendant on probation even when the jury doesn’t recommend it. Judge Price, writing for the majority, noted that the statute gives the trial court broad discretion to suspend the imposition of sentence when it is the best interest of justice, the public, and the defendant, to do so. The trial court must suspend a sentence when a jury recommends it, and a jury may recommend suspension of sentence even in circumstances where the judge may not. There are also several limitations on when a jury can suspend a sentence, like when a defendant has previously been convicted of a felony.

The majority rejected the argument that Ivey’s election to have the jury assess his sentence did not encroach upon his right to jury sentencing because probation isn’t part of the sentence. Then, the majority considered whether §3(a) of Article 42.12 authorizes the trial judge to suspend sentence regardless of whether the judge or jury assessed punishment. Nothing expressly prohibits the trial judge from doing so. Moreover, the majority distinguished Whitehead v. State, 286 S.W.2d 947 (Tex. Crim. App. 1956), which had held that prior to the enactment of the Code of Criminal Procedure in 1965, the trial court could not grant probation when the jury did not recommend it. According to the majority, Whitehead did not construe the predecessor of Article 42.12, but instead the first Suspended Sentence Law, which the Court characterized as not authorizing a true form of probation.

Then, in 1965, the Code of Criminal Procedure was enacted with a provision that expressly authorized a judge to grant probation regardless of the jury recommendation. The majority interprets this as the first adult-probation statute that authorized the jury to suspend sentence. Given that this statute also authorized the judge to grant probation regardless of the jury recommendation, the majority concluded that the Legislature added the provision to prevent courts from interpreting this probation statute the way the Suspended Sentence Law had been before it was repealed.

From there the majority explained away the legislature’s amendments to Article 42.12 that eroded and eventually removed §3(c), the specific provision that authorized the judge to grant probation over the jury’s recommendation. According to the majority, the legislature intended no change to the law when it removed that section because it had been in use for twenty-eight years and there was no longer any danger that Article 42.12 would be misinterpreted by courts as limiting a judge's ability to grant probation.

To summarize: First, all those previous cases saying a judge had no right to suspend sentence were not considering real probation statutes. Second, the first real probation statute authorized a judge to suspend sentence despite a jury recommendation because the judge had always been able to do so. Third, the fact that the legislature got rid of provisions that allowed the judge to suspend a sentence against the wishes of the jury were just a legislative skin tag.

Or here’s a thought: A judge no longer has the authority to suspend a sentence when a jury doesn’t recommend it.

Presiding Judge Keller dissented along with Judges Cochran and Holcomb joined. Keller argued that the two separate sections dealing with judge and jury recommended community supervision address the general authority of the judge and the jury to assess community supervision respectively. Moreover, the defendant’s unambiguous right to have the jury assess punishment isn’t trumped by the community supervision statute. A judge that overrides the jury’s punishment verdict in contradiction of the defendant’s wishes has overridden his election of the one who assesses punishment. Finally, there’s no ambiguity in the statute as it exists now. It doesn’t lead to absurd results. Resorting to legislative history is completely unnecessary.

Judge Holcomb also dissented to note that the probation terms were much harsher than the defendant’s jail sentence. Thus, Judge Holcomb expressed concern that the majority holding could give rise to a situation where a jury could sentence a defendant to a minimum punishment, but the judge could assess a harsh probation. This, according to Judge Holcomb is an absurd result the Legislature could not possibly have intended. Judge Holcomb also expressed concern that there appeared to be a cause-and-effect relationship with the sentence and the trial court’s ex parte communication with the jury. This seemed, to Judge Holcomb as a potential violation of due process of law to place the defendant on community supervision after an ex parte communication between the trial court and the jury.

Thursday, February 5, 2009

Prayers for Justice Ginsberg

I saw this news item and felt I should note it. From the Associated Press via

WASHINTTON (AP) - Supreme Court Justice Ruth Bader Ginsburg has undergone surgery for pancreatic cancer, apparently at an early stage.

The court said the 75-year-old Ginsburg had the surgery Thursday at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon. Dr. Murray Brennan. This was according to a release issued by the court.

You can read more here.

She's certainly not my favorite Justice (or my least favorite for that matter), but that's no reason not to send out wishes for her to quickly recover from the surgery. I also hope her family can feel comforted in what is surely a scary time for them.

Wednesday, February 4, 2009

Today's Opinions - 2/4/09 (Updated)

The CCA issued two published opinions today in the following cases:

Daniel Layton v. State. The CCA held that the defendant's own admissions that he'd taken Xanax and Valium and the officer's statement that it probably wasn't good to drink "on top of that" were irrelevant to the issue of alcohol intoxication without evidence to extrapolate the effect of the drugs on the alcohol consumption.

If you'd like to read a more detailed summary, click here.

Ex parte Kevin Rowe. The CCA awarded Rowe credit on his prison sentence for the time Rowe spent serving probation on another charge because TDCJ had erroneously failed to pick him up to get him to start serving his prison sentence.

If you'd like to read a more detailed summary click here.

Case Summary - Layton v. State

Daniel Layton v. State. The facts here are pretty simple. A police officer “stopped” Layton’s car at 4 a.m. because the car was stopped over the crosswalk at a stop light with the front of the car protruding into the intersection. The entire stop was videotaped.

On the videotape, the officer asked Layton if Layton was taking any medication because it was a predicate for performing the HGN (10 bucks someone tries to throw out the HGN because the officer failed to ask this question in response to this case). Layton admitted to taking Xanax generally, though denied taking it on that day. He also admitted to taking Valium at 2 p.m. The officer indicated to Latyon that it was probably not a good idea to have been drinking “on top” of taking these drugs. Finally, Layton admitted to being “buzzed”, but denied being intoxicated.

The State charged Layton with driving while intoxicated by the introduction of alcohol. At trial Layton objected to the admission of the defendant’s own statements because they were scientifically unreliable without extrapolation evidence showing the effect of the drugs on Layton.

The court of appeals upheld the admission of the defendant’s statements. The State did not offer the statements to show intoxication and never referred to them in closing argument. Moreover, Rule 403 didn’t apply because the State never offered the statements as probative evidence of intoxication. [Hunh?] Finally, the court of appeals refused to consider the argument that the defendant’s statement that he’d been taking Xanax and Valium amounted to an unsubstantiated opinion about the medications because Layton had failed to preserve that issue. Justice Jennings dissented to this portion of the opinion, arguing that Layton had preserved error regarding the scientific reliability of his own statements.

In a near unanimous opinion, the CCA held that Layton had preserved error regarding all evidence referencing Layton’s use of Xanax and Valium, specifically that the State hadn’t proven the accuracy and reliability of Layton’s statements and its relevance to whether Layton was intoxicated by alcohol. The Court first held that the evidence was simply irrelevant because the definition of “intoxication” in the jury charge related only to intoxication by alcohol and the State had failed to put on any evidence that Layton’s use of Xanax and Valium had a synergistic effect on Layton’s use of alcohol.

Then, the Court went on consider Layton’s argument that reason the evidence was inadmissible was because it was scientifically unreliable. The Court noted that there was no evidence of the dosage taken, the exact times of ingestion, or the half-life of the drug in the human body. Considering the length of time (12 hours) between ingestion and arrest, a lay juror was not in a position to determine whether Layton’s drug use would have an effect on Layton’s intoxication. Thus, without expert testimony to provide the foundation required to admit scientific evidence the testimony was not shown to be relevant.

Judge Womack dissented because the defendant’s statements were not scientific evidence. No judges joined him. I empathized with his loneliness.

It does seem almost forest-for-the-trees weird to me to consider that a defendant’s statements or admissions couldn’t be introduced against him because they amounted to scientifically unreliable statements. What does this do to the admissibility of the HGN? Isn't this the type of information the officer is allowed to rely upon (the presence or absence of drug take-age) in reaching his HGN opinion? Isn't that admissible under Rule 703 and 705?

Does this apply to the admissibility of drugs found in the car? And why not just say the statements weren’t relevant because the jury charge only defined intoxication by the introduction of alcohol and this tended to show intoxication by drugs? At first I thought that might be a distinguishing point, but now I wonder. After State v. Barbernell the State only has to plead “intoxication”, so the State’s charging instrument isn’t going to make the evidence obviously irrelevant. Is this the shot across the bow for the State to let them know that if they want to start prosecuting DWI by combination they'd better have some evidentiary support?

I appreciate that the officer's statements about the drug use could be construed as a scientific opinion, but that doesn't explain why the defendant's statements have to be excluded. And does this open the door for a similar "conditional relevance" arguments for other admissions by a defendant? What about breath test results? I thought under Stewart it would be a piece of the puzzle and any concerns about extrapolation after a long time (or synergy in this case) would be properly relegated to Rule 403. If this opinion wasn't meant to call Stewart into question (which it surely wasn't), I wish they'd have said that.

I don't know. Something doesn't seem right about this case to me, but I can't put my finger on it so maybe I just don't like the result. And I can’t get too bunched up because the Xanax and Valium use is essentially an admission of an extraneous offense given the limitations of the charging instrument. Had Layton admitted during his DWI stop to eating human flesh before drinking that wouldn’t be admissible, so I guess taking Valium and Xanax shouldn’t be either. Still, I wish the CCA hadn’t bitten off on the extrapolation argument as it does seem pretty Erdman-perniciousy. But what can you do? That’s the Court's prerogative, and it doesn’t make me question their validity as a judicial entity just because I might’ve gone a different way.

Case Summary - Ex parte Kevin Rowe

Ex parte Kevin Rowe. Here, the CCA awarded Rowe credit for time that he'd served on probation when he should have been in TDCJ custody because TDCJ erroneously failed to pick him up to serve his prison sentence.

Rowe was sentenced in 2006. He was sent to Georgia to answer for other crimes. He was placed on probation there. In 2007, his Georgia probation was transfered to Texas. While on probation, TDCJ contacted Rowe's probation officer to tell him that Rowe still had prison time left to do. TDCJ said they call back to let the probation officer know when Rowe needed to report. TDCJ was never heard from again. Rowe did everything right on probation.

TDCJ issued a premature release warrant for Rowe. Despite the fact that TDCJ knew where Rowe was, TDCJ did nothing to collect him. Rowe wasn't arrested on the warrant until 2008 when he went to renew his driver's license. TDCJ sought to deny him the credit for the time when he was out based on Ex parte Hale.

Judge Keasler, writing a per curiam opinion, awarded Rowe credit for the time he served while he was erroneously released. [Oops! I thought "Per Curiam" was supposed to be annonymous. Looks like they're still fixing the hand-down list.] Judge Curiam explained that Hale dealt with an erroneous release case where the defendant had stacked sentences. He was released on one because TDCJ had not received the commitment papers for the second sentence. While out he discharged his first sentence, but violated the conditions of his release on the second. Because his sentences were stacked, he received credit for the first discharged sentence, but not the second. Had he discharged the second sentence while on release without violating his conditions of release, he would've been given credit for the entire stacked sentence.

Ultimately, the Court adhered to its longstanding rule that if a defendant is erroneously release through no fault of his own, he should get credit for that time. Because Rowe had not violated the conditions of his supervised release he should not be penalized for following the same rules that would have been in place had he been properly released from custody.

[I know I should be more focused when I look at these time credit cases, but some days it's REALLY hard. I can only imagine how the CCA, TDCJ, and the inmates feel locked in this perpetual, Bergman-esque dance.]

Issues Granted - 2/4/09

The Court granted review in the following cases:

David Anderson Lee, II v. State: The Court granted the State’s petition for discretionary review with oral argument in this Galveston County aggravated sexual assault case on the following issues:

1. Whether a court of appeals has decided an important question of state law that conflicts with the decision of the court of criminal appeals. [Is a written motion an absolute requirement to preserve error on a claim of improper denial of a motion for continuance]

2. Whether the decision of the court of appeals conflicts with another court of appeals on the same issue.

In this case, the State revealed to the defendant right before his late August trial that it intended to introduce DNA evidence. The case had previously been reset for the State to conduct DNA testing of the victim’s swimsuit in April, but the State didn’t send the suit off until the beginning of August. The State communicated to the defense that DPS had determined the swimsuit had a useable sample, but it wasn’t until right before trial that the State informed Lee that the sample matched him.

Lee moved for continuance orally (yeah, I said it). He wanted a month, the visiting judge wanted to give him a day. Prior to opening statements, Lee plead guilty, but filed a motion for new trial based upon the denied continuance. The motion was overruled by operation of law

The court of appeals reversed and ordered a new trial in a published opinion. Noting that generally an oral motion for continuance isn’t sufficient to preserve error regarding the denial of a continuance, the court of appeals nevertheless held that due process allowed a consideration of Lee’s claim. Moreover, the denial of the continuance interfered with Lee’s ability to confront the witnesses against him because he did not have an opportunity to independently evaluate the DNA evidence or prepare for cross-examination of the chemist. No one dissented.

[In a few recent opinions the CCA has tried to relax the rules on preservation of error. But, this opinion does seem to openly defy the statutory provision that requires a motion for continuance to be in writing. And, in several other recent opinions this Court has gotten into very scholarly debates about deadlines, so they do take formality very seriously. Is the aura of DNA evidence becoming powerful enough to overcome statutory requirements? I guess we’ll see.]

Pamela Shareka Langham v. State: The Court granted the defendant’s petition for discretionary review with oral argument in this Taylor County possession of cocaine case on the following issue:

The court of appeals erred in determining that hearsay statements from the confidential informant that implicated appellant in drug dealing from the house in question were not testimonial, and were further not harmful.

Here, police used a confidential informant to get a search warrant to search a residence for drugs. When police executed the warrant, police found Langham (and cocaine) in the residence along with several other folks. The detective testified over objection that the confidential informant had given him information that people in the residence were running a crack distribution center and that there were drugs there. The detective also related that the confidential informant described someone like Langham at the residence.
In a published opinion, the court of appeals held that the statements by the confidential informant were non-testimonial. Here, the court of appeals reasoned, the statements made by the confidential informant were not given to prove events of the past in a criminal prosecution in relation to those past events. The confidential informant was not bearing testimony. The confidential informant was not making a solemn declaration or affirmation made for the purpose of establishing or proving some fact necessary to the criminal prosecution in this case. The primary purpose in making the statement was not to get or give testimony or its functional equivalent. The confidential informant was not acting as a witness. There was no emergency, but the lack of an emergency doesn’t make a statement testimonial under Davis v. Washington if the statements are made by someone not acting as a witness. Here, the primary purpose behind the statements of the confidential informant was not to provide testimony but to provide information to Detective Smith in order that he could obtain a search warrant.

[I supposed this will tell us what the CCA thinks "bearing witness" means.]