The Court of Criminal Appeals handed down published opinions in the following cases:
PD-0292-08 & PD-0295-08, Mark De La Paz v. State (& Mark De La Paz v. State) (Cochran, J.)(8:0): This case arose out of the Dallas County “fake drug scandal” where De La Paz was ultimately charged with tampering with physical evidence for knowingly making a false statement in an offense report and aggravated perjury for making those same false statements under oath. The CCA held, in a nigh unto unanimous opinion, that the State could introduce De La Paz's participation in other fake drug buys as extraneous offense evidence under "the doctrine of chances". [Click here for a more detailed summary.]
PD-0002-08, Darrell Jay Keehn v. State (Keasler, J.)(8:1:0): Here, police were able to enter a van parked in a driveway based not on the plain view doctrine, but upon the automobile exception in this, Keehn’s possession of anhydrous ammonia with intent to make meth, case. [Click here for a more detailed summary.]
Wednesday, March 25, 2009
Case Summary - Mark De La Paz v. State
This case arose out of the Dallas County “fake drug scandal” where De La Paz was ultimately charged with tampering with physical evidence for knowingly making a false statement in an offense report and aggravated perjury for making those same false statements under oath. Specifically, De La Paz’s conduct flowed from his involvement in the wrongful arrest of Jose Vega. Roberto Gonzalez and De La Paz’s confidential informant, Daniel Alonso, manufactured twenty-two, one-kilo packages of pool chalk and then planted them in a Cadillac parked in a garage where Jose Vega worked.
The next day, Gonzalez and Alonso met with De La Paz and another officer to arrange a “buy-bust” deal. During the deal De La Paz acted as “moving surveillance”. Gonzalez and Alonso drove to the garage. Alonso got out and went back into the garage where Vega was working. He later walked back out. At the meet-up place after the deal, Alonso gave De La Paz two of the fake kilos. De La Paz called in a report that Alonso had just purchased two kilos and that there were more in a Cadillac parked outside the garage.
Both in his offense report, and under oath at his previous trial, De La Paz testified that he and his partner drove by the garage and observed Alonso come in contact with Vega. No one else witnessed the contact. When the case came under scrutiny, De La Paz asked his partner to lie that they had actually seen the contact.
De La Paz argued at trial that he had not lied because he’d actually seen the contact, and presented a demonstration to show that his angle was different than the angle of the surveillance camera. However, the State, on rebuttal, introduced evidence of two other “buy-bust” deals that De La Paz had participated in as extraneous offense evidence to rebut the defensive theory that everyone else was lying and De La Paz was telling the truth. This other evidence demonstrated that De La Paz had previously said he’d seen an exchange or contact between the informant and the subject under investigation. The argued that De La Paz had lied in each of these instances.
The court of appeals reversed the tampering case and the perjury case because the extraneous offense evidence was not relevant to a fact of consequence. (Here are links to the court of appeals case info for the tampering and perjury cases.) The court of appeals held that De La Paz only asserted that he had seen the contact, not that others were lying when they said they did not.
Judge Cochran writing for an ostensibly unanimous court (Presiding Judge Keller did not participate), reversed the court of appeals in both the tampering and perjury cases. [Here are links to the CCA case info on the tampering and perjury cases.] As in Bass v. State, the defense had opened the door to the admission of the extraneous offense testimony in opening statement by attacking De La Paz’s partner, one of the State’s star witnesses. While Herrera himself testified that he was cooperating with police in the hopes of getting a lighter sentence, Appellant also directly accused Herrera and Vega of being liars during his own cross-examination. Because reasonable people could disagree as to whether the defendant opened the door or the State did, the trial court did not err in admitting the evidence.
Moreover, Wigmore’s “doctrine of chances” also provided a theory of admissibility. Highly unusual events are unlikely to repeat themselves. De La Paz had reported on three separate occasions that he saw what no one else saw decreases the likelihood that De La Paz saw any such drug deal.
[Did it just become easier to impeach police officers with their prior cases?]
Finally, the admission of the evidence did not run afoul of Rule 403. While officer’s setting up innocent people carried with it the potential to influence the jury in an emotional way, the accuracy of De La Paz’s statements was a hotly contested issue. The extraneous acts had high probative value, and the circumstantial nature of proving the intent to defraud made the State’s need for the evidence great. [A mention of the limiting instruction as a way to minimize prejudice might have also been helpful here, but you can’t have everything.]
The next day, Gonzalez and Alonso met with De La Paz and another officer to arrange a “buy-bust” deal. During the deal De La Paz acted as “moving surveillance”. Gonzalez and Alonso drove to the garage. Alonso got out and went back into the garage where Vega was working. He later walked back out. At the meet-up place after the deal, Alonso gave De La Paz two of the fake kilos. De La Paz called in a report that Alonso had just purchased two kilos and that there were more in a Cadillac parked outside the garage.
Both in his offense report, and under oath at his previous trial, De La Paz testified that he and his partner drove by the garage and observed Alonso come in contact with Vega. No one else witnessed the contact. When the case came under scrutiny, De La Paz asked his partner to lie that they had actually seen the contact.
De La Paz argued at trial that he had not lied because he’d actually seen the contact, and presented a demonstration to show that his angle was different than the angle of the surveillance camera. However, the State, on rebuttal, introduced evidence of two other “buy-bust” deals that De La Paz had participated in as extraneous offense evidence to rebut the defensive theory that everyone else was lying and De La Paz was telling the truth. This other evidence demonstrated that De La Paz had previously said he’d seen an exchange or contact between the informant and the subject under investigation. The argued that De La Paz had lied in each of these instances.
The court of appeals reversed the tampering case and the perjury case because the extraneous offense evidence was not relevant to a fact of consequence. (Here are links to the court of appeals case info for the tampering and perjury cases.) The court of appeals held that De La Paz only asserted that he had seen the contact, not that others were lying when they said they did not.
Judge Cochran writing for an ostensibly unanimous court (Presiding Judge Keller did not participate), reversed the court of appeals in both the tampering and perjury cases. [Here are links to the CCA case info on the tampering and perjury cases.] As in Bass v. State, the defense had opened the door to the admission of the extraneous offense testimony in opening statement by attacking De La Paz’s partner, one of the State’s star witnesses. While Herrera himself testified that he was cooperating with police in the hopes of getting a lighter sentence, Appellant also directly accused Herrera and Vega of being liars during his own cross-examination. Because reasonable people could disagree as to whether the defendant opened the door or the State did, the trial court did not err in admitting the evidence.
Moreover, Wigmore’s “doctrine of chances” also provided a theory of admissibility. Highly unusual events are unlikely to repeat themselves. De La Paz had reported on three separate occasions that he saw what no one else saw decreases the likelihood that De La Paz saw any such drug deal.
[Did it just become easier to impeach police officers with their prior cases?]
Finally, the admission of the evidence did not run afoul of Rule 403. While officer’s setting up innocent people carried with it the potential to influence the jury in an emotional way, the accuracy of De La Paz’s statements was a hotly contested issue. The extraneous acts had high probative value, and the circumstantial nature of proving the intent to defraud made the State’s need for the evidence great. [A mention of the limiting instruction as a way to minimize prejudice might have also been helpful here, but you can’t have everything.]
Case Summary - Darrell Jay Keehn v. State
The CCA held that police were able to enter a van parked in a driveway based on the automobile exception in this, Keehn’s possession of anhydrous ammonia with intent to make meth, case. [Or PAAWIMM for those of you who want an acronym.] Here, an officer was investigating a theft near Keehn’s house. When he arrived, a male and a female ran to the back of the house and a few minutes later, a minivan left. Keehn and his girlfriend lived at the house.
The officer kept coming around the house to look for the minivan. One day when the saw it parked in the driveway, he decided to ask the residents about the theft. On his way to the front door, he saw a propane tank through the windows of the van. The “cutting of the tank” had a bluish-green discoloration that indicated to the officer that the tank contained the dreaded anhydrous ammonia. He knocked on the door feverishly and heard some rustling around inside. When no one came to the door at his earnest knocking, he took his bloody, swollen, and ultimately ineffectual knuckles back to his car to request assistance.
More officers arrived with their knuckles including some knuckles from the Drug Task Force. This time, Keehn answered the door, presumably he succumbed to the massive influx of digits (or he was listening to Men at Work and Rockwell and he couldn’t take it anymore). He let the police in and they asked about the theft.
An officer with the Drug Task Force went out to look in the windows of the van after talking with Keehn. He also saw the tank, and the discoloration. In his opinion the tank contained anhydrous ammonia, so he went in the van, got it out and tested it for ammonia. Sure enough, ammonia.
Keehn first stated that the van didn’t belong to him, but his friend had tried to sell it to him. The trial court denied Keehn’s motion to suppress and held that the police were justified in seizing the tank because they had seen it in plain view. The court of appeals affirmed because it was immediately apparent that the tank constituted evidence of a crime based on the narcotic’s officer’s training and experience. Alternatively, the court of appeals held that the search was justified under the automobile exception. [Here’s a link to the court of appeals case information.]
The CCA affirmed the court of appeals, but not for the reasons they were expecting. The CCA held that the court of appeals correctly affirmed the denial of the motion to suppress, but erred in basing that upholding upon the plain view doctrine. According to the Court, the officer did not have a right to access the tank inside the van, therefore the plain view doctrine did not authorize entry. [The implication here is that the tank was plainly viewed and immediately apparent as evidence of a crime, though the Court doesn’t explicitly say that. The later finding of probable cause, however, supports that implication.]
However, under the automobile exception, the narcotics officer could enter the van because it was readily mobile, subject to regulation, and the officer had probable cause to believe the tank contained anhydrous ammonia. The Court rejected Keehn’s narrow reading of the Supreme Court case, Carney v. California, which upheld a search of a mobile home. [Oops, I mean California v. Carney, or Balifornia v. Barney, if SCOTUS were gang members.] There, SCOTUS found significant the fact that the mobile home hadn’t been parked at a place “regularly used for residential purposes.”
The CCA distinguished Carney by essentially noting that we care about where a mobile home is parked because that might indicate that the vehicle is being used as a residence rather than a vehicle. In this case, the minivan raised no such concern even though it was parked at a place “regularly used for residential purposes”. Judge Holcomb concurred without an opinion. You can read the CCA case info here.
[Nothing much to add. Judge Keasler is still The Man.]
The officer kept coming around the house to look for the minivan. One day when the saw it parked in the driveway, he decided to ask the residents about the theft. On his way to the front door, he saw a propane tank through the windows of the van. The “cutting of the tank” had a bluish-green discoloration that indicated to the officer that the tank contained the dreaded anhydrous ammonia. He knocked on the door feverishly and heard some rustling around inside. When no one came to the door at his earnest knocking, he took his bloody, swollen, and ultimately ineffectual knuckles back to his car to request assistance.
More officers arrived with their knuckles including some knuckles from the Drug Task Force. This time, Keehn answered the door, presumably he succumbed to the massive influx of digits (or he was listening to Men at Work and Rockwell and he couldn’t take it anymore). He let the police in and they asked about the theft.
An officer with the Drug Task Force went out to look in the windows of the van after talking with Keehn. He also saw the tank, and the discoloration. In his opinion the tank contained anhydrous ammonia, so he went in the van, got it out and tested it for ammonia. Sure enough, ammonia.
Keehn first stated that the van didn’t belong to him, but his friend had tried to sell it to him. The trial court denied Keehn’s motion to suppress and held that the police were justified in seizing the tank because they had seen it in plain view. The court of appeals affirmed because it was immediately apparent that the tank constituted evidence of a crime based on the narcotic’s officer’s training and experience. Alternatively, the court of appeals held that the search was justified under the automobile exception. [Here’s a link to the court of appeals case information.]
The CCA affirmed the court of appeals, but not for the reasons they were expecting. The CCA held that the court of appeals correctly affirmed the denial of the motion to suppress, but erred in basing that upholding upon the plain view doctrine. According to the Court, the officer did not have a right to access the tank inside the van, therefore the plain view doctrine did not authorize entry. [The implication here is that the tank was plainly viewed and immediately apparent as evidence of a crime, though the Court doesn’t explicitly say that. The later finding of probable cause, however, supports that implication.]
However, under the automobile exception, the narcotics officer could enter the van because it was readily mobile, subject to regulation, and the officer had probable cause to believe the tank contained anhydrous ammonia. The Court rejected Keehn’s narrow reading of the Supreme Court case, Carney v. California, which upheld a search of a mobile home. [Oops, I mean California v. Carney, or Balifornia v. Barney, if SCOTUS were gang members.] There, SCOTUS found significant the fact that the mobile home hadn’t been parked at a place “regularly used for residential purposes.”
The CCA distinguished Carney by essentially noting that we care about where a mobile home is parked because that might indicate that the vehicle is being used as a residence rather than a vehicle. In this case, the minivan raised no such concern even though it was parked at a place “regularly used for residential purposes”. Judge Holcomb concurred without an opinion. You can read the CCA case info here.
[Nothing much to add. Judge Keasler is still The Man.]
Issues Granted - 3/25/09
No, I hadn't forgotten. On March 25, 2009, the Court granted review on the following issues:
PD-1761-08, Alvin Mike Garza v. State: The Court granted the State's petition for discretionary review without oral argument in this Hale County attempted aggravated assault case on the following issues:
For a summary of and links to the underlying case, click here.
PD-0137-09, Steven Carl Grey v. State: The Court granted the State's petition for review without oral argument in this Hays County assault case on the following issue:
For a summary of and links to the underlying case, click here.
PD-0265-09, Vickey Lashun Tolbert v. State: The Court granted the State's petition for discretionary review with oral argument in this Dallas County capital murder on the following issue:
For a summary of and links to the underlying case, click here.
PD-1761-08, Alvin Mike Garza v. State: The Court granted the State's petition for discretionary review without oral argument in this Hale County attempted aggravated assault case on the following issues:
1. May a court of appeals, through unassigned error, raise an issue that an Appellant would be precluded from raising on appeal?
2. Did the information filed in conjunction with Appellant's waiver of indictment permit a conviction for the felony offense to which Appellant pled and stipulated his guilt when the information facially alleged a misdemeanor?
3. Should error be assigned and briefing ordered before a court of appeals may reverse a conviction based on error not raised by the parties, even when a novel constitutional issue is not involved?
For a summary of and links to the underlying case, click here.
PD-0137-09, Steven Carl Grey v. State: The Court granted the State's petition for review without oral argument in this Hays County assault case on the following issue:
Arevalo v. State should be overruled.
For a summary of and links to the underlying case, click here.
PD-0265-09, Vickey Lashun Tolbert v. State: The Court granted the State's petition for discretionary review with oral argument in this Dallas County capital murder on the following issue:
Criminal jury charges contain "law applicable to the case," and often "defensive issues." To obtain review on appeal, complaints involving "law applicable to the case" need not be preserved at trial but "defensive issues" must be preserved. Did the Fifth Court of Appeals wrongly hold that where a defendant states "no objection" to the proposed charge and then complains on appeal about the omission of a lesser-included offense instruction, the Almanza standard applies? (Vi r.r. at 64).
For a summary of and links to the underlying case, click here.
Labels:
issues granted
Issue Granted - Garza v. State
The Court granted the State's petition for discretionary review without oral argument in this Hale County attempted aggravated assault case on the following issues:
Alvin Garza plead guilty to attempted aggravated assault in felony court in exchange for probation. He was revoked. The court of appeal reversed because the face of a the charging instrument (an information) only alleged that Garza was guilty of attempting to cause bodily injury rather than attempting to cause serious bodily injury. However, the stipulations and waivers included with the plea include allegations that Garza attempted to cause serious bodily injury. So, because the information only authorized a conviction for a misdemeanor, Garza's sentence was greater than allowed, and the court of appeals remanded for further proceedings such as considering whether the trial court even had jurisdiction over the misdemeanor.
Here's the court of appeals case info.
[In Kirkpatrick v. State, the CCA has already held that jurisdiction was invoked by the State filing something in felony court, so long as what was filed put the defense on notice of an intent to file the felony. Here's my summary. True, this was an information, not an indictment, but I'm sure there are other things in the record (like the stipulation) that indicates the defendant was on notice that the State intended to charge a felony. Also, the Court noted in Kirkpatrick that the defendant needs to object to those flaws to waive them. I suspect the Court is fixing up an estoppel burger, with some of that language from Trejo on the side, but we'll have to wait and see.]
1. May a court of appeals, through unassigned error, raise an issue that an Appellant would be precluded from raising on appeal?
2. Did the information filed in conjunction with Appellant's waiver of indictment permit a conviction for the felony offense to which Appellant pled and stipulated his guilt when the information facially alleged a misdemeanor?
3. Should error be assigned and briefing ordered before a court of appeals may reverse a conviction based on error not raised by the parties, even when a novel constitutional issue is not involved?
Alvin Garza plead guilty to attempted aggravated assault in felony court in exchange for probation. He was revoked. The court of appeal reversed because the face of a the charging instrument (an information) only alleged that Garza was guilty of attempting to cause bodily injury rather than attempting to cause serious bodily injury. However, the stipulations and waivers included with the plea include allegations that Garza attempted to cause serious bodily injury. So, because the information only authorized a conviction for a misdemeanor, Garza's sentence was greater than allowed, and the court of appeals remanded for further proceedings such as considering whether the trial court even had jurisdiction over the misdemeanor.
Here's the court of appeals case info.
[In Kirkpatrick v. State, the CCA has already held that jurisdiction was invoked by the State filing something in felony court, so long as what was filed put the defense on notice of an intent to file the felony. Here's my summary. True, this was an information, not an indictment, but I'm sure there are other things in the record (like the stipulation) that indicates the defendant was on notice that the State intended to charge a felony. Also, the Court noted in Kirkpatrick that the defendant needs to object to those flaws to waive them. I suspect the Court is fixing up an estoppel burger, with some of that language from Trejo on the side, but we'll have to wait and see.]
Labels:
estoppel,
subject-matter jurisdiction,
waiver
Issue Granted - Tolbert v. State
The Court granted the State's petition for discretionary review with oral argument in this Dallas County capital murder on the following issue:
As you can probably tell from the issue presented, the State charged Tolbert with capital murder, but did not request a lesser-included offense instruction on murder (or object to the lack of one). However, on appeal, Tolbert complained that lesser-included offense instructions are "the law applicable to the case" and therefore do not require an objection or a request.
The court of appeals, in an unpublished opinion, reversed because the defendant told a friend that she had just gotten mad and started stabbing the victim. This, coupled with the fact that a gold necklace wasn't taken from the murder scene made murder a valid rational alternative to the offense of capital murder, according to the court of appeals. Tolbert never requested the lesser, but the State did request one. The trial court denied the request. For all these reasons, the court of appeals held that the trial court should've included the instruction and the failure to do so amounted to egregious harm.
Here's a link to the court of appeals case info.
[It seems that in light of Trejo, the answer to the issue will be that lesser-includes are "the law applicable to the case" and that the failure to so instruct will lead to a consideration of harm under Almanza. I mean, if a conviction on an unrequested lesser results in consideration of egregious harm, the failure to instruct seems to follow, right? Right? I hate one-sided doctrines.]
Criminal jury charges contain "law applicable to the case," and often "defensive issues." To obtain review on appeal, complaints involving "law applicable to the case" need not be preserved at trial but "defensive issues" must be preserved. Did the Fifth Court of Appeals wrongly hold that where a defendant states "no objection" to the proposed charge and then complains on appeal about the omission of a lesser-included offense instruction, the Almanza standard applies? (Vi r.r. at 64).
As you can probably tell from the issue presented, the State charged Tolbert with capital murder, but did not request a lesser-included offense instruction on murder (or object to the lack of one). However, on appeal, Tolbert complained that lesser-included offense instructions are "the law applicable to the case" and therefore do not require an objection or a request.
The court of appeals, in an unpublished opinion, reversed because the defendant told a friend that she had just gotten mad and started stabbing the victim. This, coupled with the fact that a gold necklace wasn't taken from the murder scene made murder a valid rational alternative to the offense of capital murder, according to the court of appeals. Tolbert never requested the lesser, but the State did request one. The trial court denied the request. For all these reasons, the court of appeals held that the trial court should've included the instruction and the failure to do so amounted to egregious harm.
Here's a link to the court of appeals case info.
[It seems that in light of Trejo, the answer to the issue will be that lesser-includes are "the law applicable to the case" and that the failure to so instruct will lead to a consideration of harm under Almanza. I mean, if a conviction on an unrequested lesser results in consideration of egregious harm, the failure to instruct seems to follow, right? Right? I hate one-sided doctrines.]
Labels:
jury charge harm,
lesser-included offense
Issue Granted - Grey v. State
The Court granted the State's petition for review without oral argument in this Hays County assault case on the following issue:
Grey was charged with aggravated assault by strangling Heather Dukes. Specifically, the indictment alleged that he caused bodily injury, but this misdemeanor assault was aggravated by his use of his hand as a deadly weapon. The jury charge authorized the jury to convict him of the lesser-included offense of misdemeanor assault if they just wanted to compromise and convict him of something. I mean, if they did not believe he used his hand as a deadly weapon. And while you'd think this was going to be another Hall v. State case, it's really about whether there was any evidence to suggest that Grey did not use his hand as a deadly weapon. The court of appeals held there was not. (In a published opinion.)
According to the court of appeals, Grey's statement indicated he used his hand to put pressure on the pulse points in Duke's neck with the intent to make her dizzy so she would be knocked off balance. [Thank you WWE for your enduring contribution to criminal law.] The paramedic testified that this manner of choking could cause death from asphyxiation in three to four minutes. And whie Grey's complaint about the lesser-incuded wasn't that the evidence didn't raise it, the court of appeals held it was enough to suggest he was opposed to it being in the charge.
So what's this about Arevalo v. State? [Sorry, I can't link to the Arevalo opinion.] Well, the court of apeals cites to it, but doesn't really discuss it. This case applied the "valid rational alternative" requirement of lesser-included offenses even when the State requests them. In otherwords, if the State requests a lesser (as in this case) the State feels it should not have to show hat there's some evidence negating the greater offense. The rationale argued in Arevalo was that not requiring the lesser to be a valid rational alternatie invited the jury to return a compromise or unwarranted verdict (which is kind of what they did in this case). The dissenters in that case argued that the two-pronged test for lessers came out of federal law and only applied to situations when the trial court must instruct on a lesser. But that doesn't mean the state statute does not authorize the inclusion of lessers even in situations where the trial court isn't authorized to do so. In short, the "guilty only" aspect of the test is the minimum, not the maximum.
Of course, getting rid of the second prong would certainly make it harder to keep out lessers in those really difficult case. Is the State sure it wants to do that?
Here's a link to the court of appeals case info.
Arevalo v. State should be overruled.
Grey was charged with aggravated assault by strangling Heather Dukes. Specifically, the indictment alleged that he caused bodily injury, but this misdemeanor assault was aggravated by his use of his hand as a deadly weapon. The jury charge authorized the jury to convict him of the lesser-included offense of misdemeanor assault if they just wanted to compromise and convict him of something. I mean, if they did not believe he used his hand as a deadly weapon. And while you'd think this was going to be another Hall v. State case, it's really about whether there was any evidence to suggest that Grey did not use his hand as a deadly weapon. The court of appeals held there was not. (In a published opinion.)
According to the court of appeals, Grey's statement indicated he used his hand to put pressure on the pulse points in Duke's neck with the intent to make her dizzy so she would be knocked off balance. [Thank you WWE for your enduring contribution to criminal law.] The paramedic testified that this manner of choking could cause death from asphyxiation in three to four minutes. And whie Grey's complaint about the lesser-incuded wasn't that the evidence didn't raise it, the court of appeals held it was enough to suggest he was opposed to it being in the charge.
So what's this about Arevalo v. State? [Sorry, I can't link to the Arevalo opinion.] Well, the court of apeals cites to it, but doesn't really discuss it. This case applied the "valid rational alternative" requirement of lesser-included offenses even when the State requests them. In otherwords, if the State requests a lesser (as in this case) the State feels it should not have to show hat there's some evidence negating the greater offense. The rationale argued in Arevalo was that not requiring the lesser to be a valid rational alternatie invited the jury to return a compromise or unwarranted verdict (which is kind of what they did in this case). The dissenters in that case argued that the two-pronged test for lessers came out of federal law and only applied to situations when the trial court must instruct on a lesser. But that doesn't mean the state statute does not authorize the inclusion of lessers even in situations where the trial court isn't authorized to do so. In short, the "guilty only" aspect of the test is the minimum, not the maximum.
Of course, getting rid of the second prong would certainly make it harder to keep out lessers in those really difficult case. Is the State sure it wants to do that?
Here's a link to the court of appeals case info.
Labels:
lesser-included offense
Friday, March 20, 2009
Issues Granted - 3/18/09
On March 18, 2009, The Court granted review in the following four cases:
PD-1323-08, Christopher Garfias v. State: The Court granted the defendant’s petition for discretionary review without oral argument in this Tarrant County aggravated robbery/aggravated assault case on the following issues:
For a detailed summary of the underlying case click here.
PD-0039-09, State v. Harvill Gene Blackshere: The Court granted the defendant’s petition for discretionary review without oral argument in this Brown County possession of a controlled substance case on the following issue:
For a detailed summary of the underlying case click here.
PD-1611-08, Gabriel Lemell Prudholm v. State: The Court granted the State’s petition for discretionary review with oral argument in this Harris County compelling prostitution and sexual assault of a child case to consider the following issues:
For a detailed summary of the underlying case click here.
PD-0147-09, Timothy K. Evans v. State: The Court granted the State’s petition for discretionary review without oral argument in this Bexar County aggravated sexual assault/indecency with a child case to consider the following issue:
PD-1323-08, Christopher Garfias v. State: The Court granted the defendant’s petition for discretionary review without oral argument in this Tarrant County aggravated robbery/aggravated assault case on the following issues:
1. In this one criminal transaction, the jury cannot have convicted Appellant of both aggravated robbery and aggravated assault and the Court of Appeals erred because it should have vacated the aggravated assault conviction, the lesser of the two.
2. The jury’s convicting Appellant of these two offenses violated his constitutional rights under the Fifth Amendment Due Process Clause, the protection “against multiple punishments for the same offense.”
For a detailed summary of the underlying case click here.
PD-0039-09, State v. Harvill Gene Blackshere: The Court granted the defendant’s petition for discretionary review without oral argument in this Brown County possession of a controlled substance case on the following issue:
Whether the Court of Appeals had any jurisdiction to hear the States [sic] Appeal.
For a detailed summary of the underlying case click here.
PD-1611-08, Gabriel Lemell Prudholm v. State: The Court granted the State’s petition for discretionary review with oral argument in this Harris County compelling prostitution and sexual assault of a child case to consider the following issues:
1. The Court of Appeals erred in holding the elements of the California offense of sexual battery are not "substantially similar" to the elements of an offense listed in former section 12.42(c)(2)(B)(i)-(iv) of the Texas Penal Code.
2. Consequentially, the Court of Appeals further erred in holding the trial court erred in submitting the enhancement paragraph in the charge and in charging the jury on the mandatory life sentence.
For a detailed summary of the underlying case click here.
PD-0147-09, Timothy K. Evans v. State: The Court granted the State’s petition for discretionary review without oral argument in this Bexar County aggravated sexual assault/indecency with a child case to consider the following issue:
Have the holdings of Cunningham v. State, 726 S.W.2d 151 (Tex.Cr.App. 1987), and Ochoa v. State, 982 S.W.2d 904 (Tex.Cr.App. 1998), been undermined by the Court’s subsequent decision in Hall v. State, 225 S.W.3d 524 (Tex.Cr.App. 2007)?For a detailed summary of the underlying case click here.
Labels:
issues granted
Issue Granted - Christopher Garfias v. State
The Court granted the defendant’s petition for discretionary review without oral argument in this Tarrant County aggravated robbery/aggravated assault case on the following issues:
Here, Garfias and a buddy planned to rob a gas station. They didn’t take anything, but Garfias did shoot the clerk four times, critically injuring him. The State charged him with aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon. In an unpublished opinion, the court of appeals affirmed both convictions because each conviction required proof of an element that the other did not. The aggravated robbery required proof of a threat during a theft. The aggravated assault required proof that Garfias actually caused bodily injury. Here’s the underlying case info, if you’re curious.
[Is aggravated assault NOT a lesser-included offense of aggravated robbery because you alleged bodily injury in the former and threat in the latter? And après Schmidt I, we know that you can threaten injury by causing it. But maybe I’m wrong to put those two together.]
1. In this one criminal transaction, the jury cannot have convicted Appellant of both aggravated robbery and aggravated assault and the Court of Appeals erred because it should have vacated the aggravated assault conviction, the lesser of the two.
2. The jury’s convicting Appellant of these two offenses violated his constitutional rights under the Fifth Amendment Due Process Clause, the protection “against multiple punishments for the same offense.”
Here, Garfias and a buddy planned to rob a gas station. They didn’t take anything, but Garfias did shoot the clerk four times, critically injuring him. The State charged him with aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon. In an unpublished opinion, the court of appeals affirmed both convictions because each conviction required proof of an element that the other did not. The aggravated robbery required proof of a threat during a theft. The aggravated assault required proof that Garfias actually caused bodily injury. Here’s the underlying case info, if you’re curious.
[Is aggravated assault NOT a lesser-included offense of aggravated robbery because you alleged bodily injury in the former and threat in the latter? And après Schmidt I, we know that you can threaten injury by causing it. But maybe I’m wrong to put those two together.]
Issue Granted - State v. Harvill Blackshere
The Court granted the defendant’s petition for discretionary review without oral argument in this Brown County possession of a controlled substance case on the following issue:
In this PCS case, the trial court granted a motion to suppress all the evidence during trial, discharged the jury, declared a mistrial, and dismissed the case. So you can see why the defendant is challenging the jurisdiction of the court of appeals to consider the State’s appeal. Basically, police saw a fight brewing in a parking lot and they went over to figure out what was going on. They discovered methamphetamine in a car near the seat where Blackshere had been sitting, which led to his indictment for possession of a controlled substance. The drugs were collected, sent to Abeline for testing, and returned.
Then the drugs disappeared.
Blackshere filed a motion for continuance on the day of trial seeking to research the missing evidence matter, but the trial court denied that. He also filed a motion to suppress, and the trial court carried it with trial. The trial court ultimately suppressed the evidence, finding that Blackshere had proven bad faith, which was surprising because one of the guys in charge of the evidence locker had pleaded guilty in federal court to a charge of conspiracy to distribute, you guessed it, methamphetamine. The trial court dismissed the jury and the case. The State appealed.
The court of appeals reversed in an unpublished opinion holding that Blackshere had failed to show that the missing evidence was exculpatory. The drugs had already been tested, and Blackshere had never asked for independent testing. Moreover, even if the custodian had stolen the drugs, this didn’t amount to a showing that the State destroyed the evidence with an eye towards harming the defendant. The court of appeals never addressed the issue of jurisdiction. Here’s the case info for the court of appeal case if you’re interested.
[Um, I really hate to say this, but Article 44.01 of the Texas Code of Criminal Procedure allows appeals of motions to suppress before jeopardy attaches. Looks like it had already attached here.]
Whether the Court of Appeals had any jurisdiction to hear the States [sic] Appeal.
In this PCS case, the trial court granted a motion to suppress all the evidence during trial, discharged the jury, declared a mistrial, and dismissed the case. So you can see why the defendant is challenging the jurisdiction of the court of appeals to consider the State’s appeal. Basically, police saw a fight brewing in a parking lot and they went over to figure out what was going on. They discovered methamphetamine in a car near the seat where Blackshere had been sitting, which led to his indictment for possession of a controlled substance. The drugs were collected, sent to Abeline for testing, and returned.
Then the drugs disappeared.
Blackshere filed a motion for continuance on the day of trial seeking to research the missing evidence matter, but the trial court denied that. He also filed a motion to suppress, and the trial court carried it with trial. The trial court ultimately suppressed the evidence, finding that Blackshere had proven bad faith, which was surprising because one of the guys in charge of the evidence locker had pleaded guilty in federal court to a charge of conspiracy to distribute, you guessed it, methamphetamine. The trial court dismissed the jury and the case. The State appealed.
The court of appeals reversed in an unpublished opinion holding that Blackshere had failed to show that the missing evidence was exculpatory. The drugs had already been tested, and Blackshere had never asked for independent testing. Moreover, even if the custodian had stolen the drugs, this didn’t amount to a showing that the State destroyed the evidence with an eye towards harming the defendant. The court of appeals never addressed the issue of jurisdiction. Here’s the case info for the court of appeal case if you’re interested.
[Um, I really hate to say this, but Article 44.01 of the Texas Code of Criminal Procedure allows appeals of motions to suppress before jeopardy attaches. Looks like it had already attached here.]
Issue Granted - Gabriel Lemell Prudholm v. State
The Court granted the State’s petition for discretionary review with oral argument in this Harris County compelling prostitution and sexual assault of a child case to consider the following issues:
Prudholm was charged with compelling prostitution and sexual assault of a child for pimping out a fourteen-year-old girl and allowing a partner of his do it in California. Basically, the girl was living in Phoenix and fell in with Prudholm’s partner who later took her to California. Later, police contacted Prudholm and he called his partner to have her sent back. The girl later allowed Prudholm to be her pimp when she became upset with Prudholm’s partner. Prudholm treated the girl as you’d expect a pimp to treat a prostitute and had sex with her many times.
The State enhanced Prudholm with one of his prior California convictions for sexual battery to trigger a mandatory life sentence. The court of appeals held (in a published opinion) that the California prior was not substantially similar to the offenses listed the former version of Penal Code §12.42. Those offenses included harassment by a persons in corrections facilities, harassment of a public servant, sexual assault, aggravated sexual assault, and prohibited sexual conduct. It also included aggravated kidnapping provided the kidnapping was done with the intent to violate or abuse the victim sexually.
[There appears to be a typo in the opinion as it first lists an offense under §21.11 (indecency with a child) as being one of the offenses that the out-of-state conviction must be substantially similar to, but then the opinion goes on to identify §22.11 (harassment by persons in a correctional facility; harassment of a public servant) as one of the offenses that the out-of-state conviction. Since neither the State or the court of appeals ever compare the California conviction to indecency with a child, I can only assume it’s an insignificant typo. At least, I hope it’s an insignificant typo as that might be kind of embarrassing everyone overlooked something that might alter the analysis.]
Basically, the California crime of sexual battery is the touching of any person’s sexual organ, anus, groin, buttocks (or a woman’s breast) against the will of the person touched and for the purpose of sexual arousal or gratification while that touched person is unlawfully restrained. According to the court of appeals this may be similar to two different offenses listed in §12.42, namely sexual assault and aggravated kidnapping, but only if you combine elements from both of those offenses. Penal Code §12.42(c)(2)(B) requires similarity to an offense listed, not similarity to the elements of multiple offenses contained in that section. For example, sexual battery doesn’t require penetration, but sexual assault does. [Presumably indecency with a child also isn’t substantially similar to sexual battery because the former doesn’t require restraint and the latter doesn’t require an age limit.] Because the California battery addresses less severe conduct with less severe penalties and does not contain elements found in a single listed offense, the trial court improperly submitted the enhancement paragraph to the jury. Thus, the court of appeals reversed the sexual assault of a child conviction and remanded the case for a new punishment hearing.
Justice Keyes dissented because she saw no significant difference between sexual battery and aggravated kidnapping. Additionally, excluding a defendant's conviction under an out-of-state law that parallels more than one Texas offense listed in section 12.42(c)(2)(B)(i)-(iv), rather than one and one only, is, in her opinion, absurd and contrary to the purpose of the statute. And, based on the CCA opinion in Griffith v. State, 116 S.W.3d 782 (Tex. Crim. App. 2003), a literal interpretation of §12.42 is contrary to the legislature’s intent to punish repeat sex offenders more harshly. Here’s the court of appeals case info if you’re interested.
1. The Court of Appeals erred in holding the elements of the California offense of sexual battery are not "substantially similar" to the elements of an offense listed in former section 12.42(c)(2)(B)(i)-(iv) of the Texas Penal Code.
2. Consequentially, the Court of Appeals further erred in holding the trial court erred in submitting the enhancement paragraph in the charge and in charging the jury on the mandatory life sentence.
Prudholm was charged with compelling prostitution and sexual assault of a child for pimping out a fourteen-year-old girl and allowing a partner of his do it in California. Basically, the girl was living in Phoenix and fell in with Prudholm’s partner who later took her to California. Later, police contacted Prudholm and he called his partner to have her sent back. The girl later allowed Prudholm to be her pimp when she became upset with Prudholm’s partner. Prudholm treated the girl as you’d expect a pimp to treat a prostitute and had sex with her many times.
The State enhanced Prudholm with one of his prior California convictions for sexual battery to trigger a mandatory life sentence. The court of appeals held (in a published opinion) that the California prior was not substantially similar to the offenses listed the former version of Penal Code §12.42. Those offenses included harassment by a persons in corrections facilities, harassment of a public servant, sexual assault, aggravated sexual assault, and prohibited sexual conduct. It also included aggravated kidnapping provided the kidnapping was done with the intent to violate or abuse the victim sexually.
[There appears to be a typo in the opinion as it first lists an offense under §21.11 (indecency with a child) as being one of the offenses that the out-of-state conviction must be substantially similar to, but then the opinion goes on to identify §22.11 (harassment by persons in a correctional facility; harassment of a public servant) as one of the offenses that the out-of-state conviction. Since neither the State or the court of appeals ever compare the California conviction to indecency with a child, I can only assume it’s an insignificant typo. At least, I hope it’s an insignificant typo as that might be kind of embarrassing everyone overlooked something that might alter the analysis.]
Basically, the California crime of sexual battery is the touching of any person’s sexual organ, anus, groin, buttocks (or a woman’s breast) against the will of the person touched and for the purpose of sexual arousal or gratification while that touched person is unlawfully restrained. According to the court of appeals this may be similar to two different offenses listed in §12.42, namely sexual assault and aggravated kidnapping, but only if you combine elements from both of those offenses. Penal Code §12.42(c)(2)(B) requires similarity to an offense listed, not similarity to the elements of multiple offenses contained in that section. For example, sexual battery doesn’t require penetration, but sexual assault does. [Presumably indecency with a child also isn’t substantially similar to sexual battery because the former doesn’t require restraint and the latter doesn’t require an age limit.] Because the California battery addresses less severe conduct with less severe penalties and does not contain elements found in a single listed offense, the trial court improperly submitted the enhancement paragraph to the jury. Thus, the court of appeals reversed the sexual assault of a child conviction and remanded the case for a new punishment hearing.
Justice Keyes dissented because she saw no significant difference between sexual battery and aggravated kidnapping. Additionally, excluding a defendant's conviction under an out-of-state law that parallels more than one Texas offense listed in section 12.42(c)(2)(B)(i)-(iv), rather than one and one only, is, in her opinion, absurd and contrary to the purpose of the statute. And, based on the CCA opinion in Griffith v. State, 116 S.W.3d 782 (Tex. Crim. App. 2003), a literal interpretation of §12.42 is contrary to the legislature’s intent to punish repeat sex offenders more harshly. Here’s the court of appeals case info if you’re interested.
Issue Granted - Timothy K. Evans v. State
The Court granted the State’s petition for discretionary review without oral argument in this Bexar County aggravated sexual assault/indecency with a child case to consider the following issue:
[F**k if I know.]
The victim, a twelve-year-old boy got permission to stay overnight at his friend’s house after a party. Evans, who had been at the same party, came home with the group staying at the house and also spent the night. He was drunk. The victim, who slept on the couch, awoke to Evans teeth on his “private”. Another boy witnessed Evans massaging the victim’s shoulders and kissing the victim’s head, but did not witness any sexual contact. When the owner of the house confronted Evans about it the next day, Evans said he couldn’t believe he’d done it, he couldn’t remember, he wasn’t gay, and he was sorry. He was charged with one count of aggravated sexual assault and one count of indecency with a child arising from the same incident.
The court of appeals held in an unpublished opinion that the conviction for both offenses violated double jeopardy. Relying upon the Court’s decisions in Ochoa v. State and Littrell v. State, the court of appeals explained that Evans had been subjected to multiple punishments from the same prosecution. While the witness repeatedly left and came back to the room to see what was going on without getting caught, he did not see the actual sexual conduct. The only evidence of sexual conduct came from the victim, and that was one incident. Thus, Evans’ double jeopardy rights were violated because the jury was allowed to convict him of two offenses for the same fact scenario. No one cited to Hall v. State. Here’s a link to the court of appeals case info if you’re interested.
[I thought Hall v. State was an analysis of a state statute on how to determine whether or not a lesser-included offense instruction is appropriate, not a double jeopardy analysis. But maybe I’m missing something. And boy with this, Raymond Murray, and the recent decision in Schmidt, Hall is starting to look a lot more complicated.]
Have the holdings of Cunningham v. State, 726 S.W.2d 151 (Tex.Cr.App. 1987), and Ochoa v. State, 982 S.W.2d 904 (Tex.Cr.App. 1998), been undermined by the Court’s subsequent decision in Hall v. State, 225 S.W.3d 524 (Tex.Cr.App. 2007)?
[F**k if I know.]
The victim, a twelve-year-old boy got permission to stay overnight at his friend’s house after a party. Evans, who had been at the same party, came home with the group staying at the house and also spent the night. He was drunk. The victim, who slept on the couch, awoke to Evans teeth on his “private”. Another boy witnessed Evans massaging the victim’s shoulders and kissing the victim’s head, but did not witness any sexual contact. When the owner of the house confronted Evans about it the next day, Evans said he couldn’t believe he’d done it, he couldn’t remember, he wasn’t gay, and he was sorry. He was charged with one count of aggravated sexual assault and one count of indecency with a child arising from the same incident.
The court of appeals held in an unpublished opinion that the conviction for both offenses violated double jeopardy. Relying upon the Court’s decisions in Ochoa v. State and Littrell v. State, the court of appeals explained that Evans had been subjected to multiple punishments from the same prosecution. While the witness repeatedly left and came back to the room to see what was going on without getting caught, he did not see the actual sexual conduct. The only evidence of sexual conduct came from the victim, and that was one incident. Thus, Evans’ double jeopardy rights were violated because the jury was allowed to convict him of two offenses for the same fact scenario. No one cited to Hall v. State. Here’s a link to the court of appeals case info if you’re interested.
[I thought Hall v. State was an analysis of a state statute on how to determine whether or not a lesser-included offense instruction is appropriate, not a double jeopardy analysis. But maybe I’m missing something. And boy with this, Raymond Murray, and the recent decision in Schmidt, Hall is starting to look a lot more complicated.]
Wednesday, March 18, 2009
Speaking Of F**ked Up
A friend of mine once turned to me and uttered that phrase at a 10,000 Maniacs concert when Natalie Merchant came out on stage to sing "You Happy Puppet" wearing a Godzilla-sized puppet-head. This isn't a post about that concert, and I've already posted on the published opinions today, so this must be about that unpublished opinion where the CCA denied habeas corpus relief in that death penalty case upon which so many folks have been reporting. And since, that's what this post is about, I thought the phrase would be appropriate in this, my obligatory dude-who-eats-his-own-eyeball-is-still-going-to-be-executed, post.
Let's stop and ponder that shall we. I know this is a great case for high-minded debate, but come on. The guy stabbed his wife and kids with three separate knives, cut out their hearts (well, he cut out his wife's lung thinking it was her heart) and took them home in his pockets. Later, after reading the Bible, he plucked his own eye out. He ate his other eye a few months ago.
Speaking of f**ked up.
See how it works there? Perfect. Okay, now that I've gotten that out of my system, I do think there are some things that bear mentioning. Bear? Bare? F**k it.
First things first, I'm actually kind of disappointed that they didn't publish this opinion. It's very circumspect. It defers to the trial court's factual findings and doesn't elaborate. It's not like the denial of relief itself isn't going to get a lot of attention. The eyeball eating guy's crazy, but not insane. The story practically writes itself. Why not just own it? There's nothing wrong with the decision unless you disagree with the result, but it's a death penalty case so what else is new. Besides no one dissented, so you know it was thoroughly considered if even Judge Price (he of the scathing dissents in Chi and Alba) didn't dissent. Of course, publishing the opinion could be seen as a step towards limiting the CCA's habeas factual jurisdiction, so perhaps that's why they didn't want to publish it.
Second, Judge Cochran deserves some credit here for taking the time to do some heavy lifting for the Court by setting out everything in her concurring opinion. [This is what the papers have been relying upon so heavily.] One thing that Judge Cochran does (that seems to be lost in the reportage) is set out that Thomas was well represented through trial, appeal, and the post-conviction writ process. These insanity issues were litigated first before a jury and later before a trial court in the post-conviction writ. You can look at it cynically as blame-sharing or even blame-shifting, but the law is designed to defer to the fact finders because a conviction by jury is entitled to respect, particularly in difficult cases, and the CCA was correct to defer in this instance.
Third, Judge Cochran's opinion also reveals that there was counter evidence upon which the jury and the trial court could rely to make their decision. Not only did he have mental problems, but some experts believed they were brought on by his voluntary substance abuse. I know, I know, no drugs in prison. But unlike mental retardation where the defendant's moral culpability is lessened because he can't help being retarded, here there seems to be some evidence that Thomas may have caused the psychosis through his drug use. And nowhere on appeal has Thomas himself argued that the evidence of his insanity is so overwhelming that he did not know his conduct was wrong. It's a close case, that's when deferring to the jury is most important.
But perhaps in federal court this becomes the mental illness corollary to the sleeping lawyer case. The eye-plucking case. There's definitely room for outrage. How can you say the dude who eats his own eyes is NOT legally insane, right? Still the problem with Burdine was that it prevented the jury from being able to make an informed decision because there was a breakdown in the adversarial process. Here, it looks like the jury (and later the district court) had a great deal of information to consider before making a decision. That and SCOTUS seems scared of trying to tackle mental illness in the context of the death penalty, if Panetti v. Quarterman is any indication. [And who can blame them, psychology can be so slippery it's never going to be as simple as differentiating between drug-induced psychosis and the Twinkie defense.]
So, maybe we are left in the exact place Judge Cochran suggested, bemoaning the fact that those around Thomas knew he was mentally ill and this tragedy could have been prevented. Maybe we increase funding for services for the mentally ill, or draft procedures to try and catch these folks before it happens. As she points out in her opinion, we do have to balance that with his liberty interests as well. But that seems a lot like a job for the legislature, not the courts.
Now if the Courts had done the legislature's job? Speaking of f**ked up.
And in other unpublished famous case news. Clara Harris lost in her Rule 79.2 bid to get the Court to reconsider her writ on its own. Still no word on what types of cases merit the rare use of Rule 79.2, but it's nice to see some restraint. Judicial humility seemed to be the word of the day, and I'm certainly cool with that.
Let's stop and ponder that shall we. I know this is a great case for high-minded debate, but come on. The guy stabbed his wife and kids with three separate knives, cut out their hearts (well, he cut out his wife's lung thinking it was her heart) and took them home in his pockets. Later, after reading the Bible, he plucked his own eye out. He ate his other eye a few months ago.
Speaking of f**ked up.
See how it works there? Perfect. Okay, now that I've gotten that out of my system, I do think there are some things that bear mentioning. Bear? Bare? F**k it.
First things first, I'm actually kind of disappointed that they didn't publish this opinion. It's very circumspect. It defers to the trial court's factual findings and doesn't elaborate. It's not like the denial of relief itself isn't going to get a lot of attention. The eyeball eating guy's crazy, but not insane. The story practically writes itself. Why not just own it? There's nothing wrong with the decision unless you disagree with the result, but it's a death penalty case so what else is new. Besides no one dissented, so you know it was thoroughly considered if even Judge Price (he of the scathing dissents in Chi and Alba) didn't dissent. Of course, publishing the opinion could be seen as a step towards limiting the CCA's habeas factual jurisdiction, so perhaps that's why they didn't want to publish it.
Second, Judge Cochran deserves some credit here for taking the time to do some heavy lifting for the Court by setting out everything in her concurring opinion. [This is what the papers have been relying upon so heavily.] One thing that Judge Cochran does (that seems to be lost in the reportage) is set out that Thomas was well represented through trial, appeal, and the post-conviction writ process. These insanity issues were litigated first before a jury and later before a trial court in the post-conviction writ. You can look at it cynically as blame-sharing or even blame-shifting, but the law is designed to defer to the fact finders because a conviction by jury is entitled to respect, particularly in difficult cases, and the CCA was correct to defer in this instance.
Third, Judge Cochran's opinion also reveals that there was counter evidence upon which the jury and the trial court could rely to make their decision. Not only did he have mental problems, but some experts believed they were brought on by his voluntary substance abuse. I know, I know, no drugs in prison. But unlike mental retardation where the defendant's moral culpability is lessened because he can't help being retarded, here there seems to be some evidence that Thomas may have caused the psychosis through his drug use. And nowhere on appeal has Thomas himself argued that the evidence of his insanity is so overwhelming that he did not know his conduct was wrong. It's a close case, that's when deferring to the jury is most important.
But perhaps in federal court this becomes the mental illness corollary to the sleeping lawyer case. The eye-plucking case. There's definitely room for outrage. How can you say the dude who eats his own eyes is NOT legally insane, right? Still the problem with Burdine was that it prevented the jury from being able to make an informed decision because there was a breakdown in the adversarial process. Here, it looks like the jury (and later the district court) had a great deal of information to consider before making a decision. That and SCOTUS seems scared of trying to tackle mental illness in the context of the death penalty, if Panetti v. Quarterman is any indication. [And who can blame them, psychology can be so slippery it's never going to be as simple as differentiating between drug-induced psychosis and the Twinkie defense.]
So, maybe we are left in the exact place Judge Cochran suggested, bemoaning the fact that those around Thomas knew he was mentally ill and this tragedy could have been prevented. Maybe we increase funding for services for the mentally ill, or draft procedures to try and catch these folks before it happens. As she points out in her opinion, we do have to balance that with his liberty interests as well. But that seems a lot like a job for the legislature, not the courts.
Now if the Courts had done the legislature's job? Speaking of f**ked up.
And in other unpublished famous case news. Clara Harris lost in her Rule 79.2 bid to get the Court to reconsider her writ on its own. Still no word on what types of cases merit the rare use of Rule 79.2, but it's nice to see some restraint. Judicial humility seemed to be the word of the day, and I'm certainly cool with that.
Today's Opinions - 3/18/09
Only one published opinion today (and even that was a re-imagining of a previous case).
PD-0873-07 & PD-0874-07, Beverly Kirkpatrick v. State. (Johnson, J.)(9:0) Here, the Court held that the State's indictment which merely alleged misdemeanor tampering with a government record vested the district court with felony jurisdiction such that Kirkpatrick was required to object to the indictment prior to trial. The CCA withdrew its opinion from December 17, 2008 and replaced it with a new one in both cause numbers here and here (it's the same opinion in both).
The only thing that's changed in the new opinion is that the original opinions forgot to remand court of appeals cause number 05-06-01230-CR back to the court of appeals for consideration of a remaining issue. This new opinion orders that remand. Otherwise it's the same opinion, and you can read a more detailed summary here.
It is also interesting to note that the CCA dismissed as improvidently granted, PD-0587-08, State v. Thomas L. Varkonyi in an unpublished opinion. Oral argument was granted in this case, and you can listen to that here. Also, here's my post from when the CCA decided to grant review, meager though it is. [I was really hoping for a published case on this issue, but c'est la vie. En rose, even.]
PD-0873-07 & PD-0874-07, Beverly Kirkpatrick v. State. (Johnson, J.)(9:0) Here, the Court held that the State's indictment which merely alleged misdemeanor tampering with a government record vested the district court with felony jurisdiction such that Kirkpatrick was required to object to the indictment prior to trial. The CCA withdrew its opinion from December 17, 2008 and replaced it with a new one in both cause numbers here and here (it's the same opinion in both).
The only thing that's changed in the new opinion is that the original opinions forgot to remand court of appeals cause number 05-06-01230-CR back to the court of appeals for consideration of a remaining issue. This new opinion orders that remand. Otherwise it's the same opinion, and you can read a more detailed summary here.
It is also interesting to note that the CCA dismissed as improvidently granted, PD-0587-08, State v. Thomas L. Varkonyi in an unpublished opinion. Oral argument was granted in this case, and you can listen to that here. Also, here's my post from when the CCA decided to grant review, meager though it is. [I was really hoping for a published case on this issue, but c'est la vie. En rose, even.]
Friday, March 13, 2009
Issues Granted - 3/13/09
The Court granted review in two cases, but really only one was left pending:
PD-0059-09, State v. Aguilar: The CCA granted discretionary review and remanded the case (in an unpublished opinion) for the statutorily required findings of facts and conclusions of law on the voluntariness of the defendant’s confession. Here’s the link to the underlying case, and the case info, on this murder out of Nueces County.
PD-1713-08, State v. Wendy R. Dunbar: The CCA granted the defendant’s petition for discretionary review without oral argument in this indecency with a child case out of Montgomery County on the following issue:
Here, Dunbar was placed on deferred adjudication for indecency with a child in June 1997 for ten years. In April 2007, the State moved for adjudication. In September 2007, the trial court convicted Dunbar and sentenced her to incarceration for four years. In December 2007, she moved for shock probation, and in February, the judge shocked her and the State appealed.
[I’m not a big fan of prosecutorial lingo, but I must admit I have a soft spot for the unique verbs like “shock” for placing on shock probation or “shrink” for psychological evaluation or even “magistrating” for having a magistrate read a defendant his or her rights. In contrast, lingo like “habitching” leaves me cold, but that’s probably because I’m not cool enough to be able to pull it off.]
The court of appeals first held that the State had appealed a motion that modified the judgment, and therefore the appeal should not be dismissed for lack of jurisdiction. Then, the court rejected Dunbar’s argument that the State had failed to preserve error. Though it’s not in the opinion, the issue granted suggests the argument is the State failed to object at the time shock probation was imposed. According to the court of appeals, the trial court’s authority to act in a particular case at a particular time is a systemic requirement not subject to procedural default. Finally, the court of appeals held that because of Dunbar’s status as a 3(g) offender, she was not eligible for shock probation and the trial court lacked jurisdiction to grant it. [Here’s a link to the underlying case info.]
[Frankly don’t know what to make of why they would grant this as the opinion seems pretty tight. However, it does make me suspicious that the court of appeals did not even mention what Dunbar’s argument was that the State had failed to preserve error, particularly when that’s featured so prominently in the only issue granted. The CCA has gone out of its way to spell out just what steps a defendant must go through to appeal problems with his plea on a deferred adjudication, perhaps this is a spelling lesson for the State in the making. Still, it seems pretty clear that the trial court did something it had no authority to do; not just an abuse of discretion, no authority. But they can be procedural wonks at times, regardless of the merits of the underlying claim, so it's probably safer just to put the tea leaves away and wait for what happens next.]
PD-0059-09, State v. Aguilar: The CCA granted discretionary review and remanded the case (in an unpublished opinion) for the statutorily required findings of facts and conclusions of law on the voluntariness of the defendant’s confession. Here’s the link to the underlying case, and the case info, on this murder out of Nueces County.
PD-1713-08, State v. Wendy R. Dunbar: The CCA granted the defendant’s petition for discretionary review without oral argument in this indecency with a child case out of Montgomery County on the following issue:
Did the Court of Appeals err in holding that the State did not waive their right to appeal by not objecting to the trial court placing the petitioner on probation at the time the court ordered shock probation?
Here, Dunbar was placed on deferred adjudication for indecency with a child in June 1997 for ten years. In April 2007, the State moved for adjudication. In September 2007, the trial court convicted Dunbar and sentenced her to incarceration for four years. In December 2007, she moved for shock probation, and in February, the judge shocked her and the State appealed.
[I’m not a big fan of prosecutorial lingo, but I must admit I have a soft spot for the unique verbs like “shock” for placing on shock probation or “shrink” for psychological evaluation or even “magistrating” for having a magistrate read a defendant his or her rights. In contrast, lingo like “habitching” leaves me cold, but that’s probably because I’m not cool enough to be able to pull it off.]
The court of appeals first held that the State had appealed a motion that modified the judgment, and therefore the appeal should not be dismissed for lack of jurisdiction. Then, the court rejected Dunbar’s argument that the State had failed to preserve error. Though it’s not in the opinion, the issue granted suggests the argument is the State failed to object at the time shock probation was imposed. According to the court of appeals, the trial court’s authority to act in a particular case at a particular time is a systemic requirement not subject to procedural default. Finally, the court of appeals held that because of Dunbar’s status as a 3(g) offender, she was not eligible for shock probation and the trial court lacked jurisdiction to grant it. [Here’s a link to the underlying case info.]
[Frankly don’t know what to make of why they would grant this as the opinion seems pretty tight. However, it does make me suspicious that the court of appeals did not even mention what Dunbar’s argument was that the State had failed to preserve error, particularly when that’s featured so prominently in the only issue granted. The CCA has gone out of its way to spell out just what steps a defendant must go through to appeal problems with his plea on a deferred adjudication, perhaps this is a spelling lesson for the State in the making. Still, it seems pretty clear that the trial court did something it had no authority to do; not just an abuse of discretion, no authority. But they can be procedural wonks at times, regardless of the merits of the underlying claim, so it's probably safer just to put the tea leaves away and wait for what happens next.]
Thursday, March 12, 2009
Yesterday's Opinions - 3/11/09
You'll have to forgive me for posting a day late, but something came up. Yesterday, the CCA issued three published opinions in the following cases:
PD-0076-08, Antonio Schmidt v. State: Here, the CCA affirmed the lower court's determination that Schmidt should've gotten lesser included offense instructions for assault by threat and assault by bodily injury in this retaliation case out of Hale County. [Click here for a more detailed case summary.]
PD-0616-08, David Eugene Weir v. State: The CCA held that court costs are not punitive and therefore they don't have to be orally pronounced at sentencing to be put in the written judgment in this Bell County burglary case. [Click here for a more detailed case summary.]
PD-1630-07, Jeremy Wayne Baldwin v. State: The CCA held that a police officer's search of Baldwin's pocket for his ID after detaining him for suspicion of burglary was unreasonable. The cocaine the officer found in Baldwin's wallet should have been suppressed in this Harris County possession of a controlled substance case. [Click here for a more detailed case summary.]
PD-0076-08, Antonio Schmidt v. State: Here, the CCA affirmed the lower court's determination that Schmidt should've gotten lesser included offense instructions for assault by threat and assault by bodily injury in this retaliation case out of Hale County. [Click here for a more detailed case summary.]
PD-0616-08, David Eugene Weir v. State: The CCA held that court costs are not punitive and therefore they don't have to be orally pronounced at sentencing to be put in the written judgment in this Bell County burglary case. [Click here for a more detailed case summary.]
PD-1630-07, Jeremy Wayne Baldwin v. State: The CCA held that a police officer's search of Baldwin's pocket for his ID after detaining him for suspicion of burglary was unreasonable. The cocaine the officer found in Baldwin's wallet should have been suppressed in this Harris County possession of a controlled substance case. [Click here for a more detailed case summary.]
Labels:
hand down list,
published opinions
Case Summary - Antonio Schmidt v. State
Schmidt struck his girlfriend, Kimberly Lee after he found out that she’d given a statement about some stuff that happened in Dallas. As he tried to explain to her, “I’m probably going to have to do time because of you.” Schmidt struck the victim during a prolonged attack that included, yelling, cursing, grabbing, pushing, kicking, dragging, and punching. A jury found Schmidt guilty of retaliation for threatening to harm the victim “by an unlawful act, to wit: striking”.
[Love the defense here – he hit her because they have a stormy relationship not because of her statement to police. Sort of inevitable assault. He would’ve done it anyway because he’s a dick; he’s just not a vengeful one.]
The court of appeals reversed the first time for insufficient evidence because the indictment alleged that Schmidt had threatened to harm by actually striking the victim, and it was impossible to threaten to harm by inflicting the actual threatened harm. This charging instrument was kind of like a Magic Eye picture because it could be read either as threatening by striking or threatening to strike. [I’m kind of surprised this didn’t prompt an opinion devoted to the evils of the phrase “to wit”, but I digress.] In its first opinion, the court of appeals read it as saying that the state had to prove that the strike was the threat.
A unanimous Court of Criminal Appeals reversed them in Schmidt I (I love it when a criminal case becomes a successful franchise). The evidence that Schmidt, among other things, had stricken/strucken/struck the victim during the prolonged attack was sufficient to prove that he threatened to harm her.
On remand, the court of appeals reversed again (Schmidt II), this time because the trial court denied the defendant’s request for the lesser-included offenses of assault by causing bodily injury and assault by threat. [Oh yeah, we argued that you could actually threaten harm by causing it, you mean we were supposed to instruct the jury on that, too?] Based on the indictment, and kind of looking at the facts in spite of Hall’s prohibition against doing so, the court of appeals held that the misdemeanor assaults were lesser included offenses and that there was some proof to negate the greater offense of retaliation. [Here’s the case info for the court of appeals case.]
In another unanimous opinion, the CCA affirmed the court of appeals opinion that that Schmidt should’ve gotten instructions on the lesser-included offenses of assault by causing bodily injury and assault by threat. The Court rejected the State’s argument that the indictment only required the State to prove a threat and not a strike. The State had pretty much taken the position from trial through Schmidt I that you could threaten harm by either threatening to strike or by actually striking, so they were judicially estopped from arguing that the indictment only meant threaten to strike. Thus, the court of appeals got it right that assault by threat and assault by bodily injury were lesser-included offenses based upon the indictment.
The CCA also rejected the argument that the “striking” portion of the indictment was surplusage because the State only had to prove that Schmidt had threatened the person, not the content of the threat or whether the threat was carried out. This, according to the CCA, would amount to a strict-statutory approach, rather than the cognate-pleadings approach. Moreover, the CCA says it’s not surplusage under Doyle v. State, so take that Bembridge scholars! Finally, applying the surplusage rule would make it difficult to do the lesser-included analysis before trial, and surplusage jurisprudence is more appropriate for sufficiency analysis anyway.
[Hunh? Is this another backdoor undermining of the hypothetically correct jury charge, like in Wooley? And where in the hell was the eighth grade grammar test? Murder is a result oriented offense and retaliation is . . . what? I don’t know. Perhaps it would’ve been better to just say, notice is notice is notice. If it’s not surplusage it’s required, and that means the state had to prove “by striking”. All the rest just confuses me, but what else is new. But Doyle seems kind of old to rely upon for what should or should not go into an indictment for purposes of notice. I mean, haven’t some things changed since 1983?]
Oh yeah, and on the second prong, the victim said the defendant never mentioned her statement to the police while he was beating her. That combined with the fact that Schmidt and the victim had also gotten into a fight over another girl provided enough evidence to make assault by threat and assault by bodily injury a valid rational alternative to retaliation.
[Love the defense here – he hit her because they have a stormy relationship not because of her statement to police. Sort of inevitable assault. He would’ve done it anyway because he’s a dick; he’s just not a vengeful one.]
The court of appeals reversed the first time for insufficient evidence because the indictment alleged that Schmidt had threatened to harm by actually striking the victim, and it was impossible to threaten to harm by inflicting the actual threatened harm. This charging instrument was kind of like a Magic Eye picture because it could be read either as threatening by striking or threatening to strike. [I’m kind of surprised this didn’t prompt an opinion devoted to the evils of the phrase “to wit”, but I digress.] In its first opinion, the court of appeals read it as saying that the state had to prove that the strike was the threat.
A unanimous Court of Criminal Appeals reversed them in Schmidt I (I love it when a criminal case becomes a successful franchise). The evidence that Schmidt, among other things, had stricken/strucken/struck the victim during the prolonged attack was sufficient to prove that he threatened to harm her.
On remand, the court of appeals reversed again (Schmidt II), this time because the trial court denied the defendant’s request for the lesser-included offenses of assault by causing bodily injury and assault by threat. [Oh yeah, we argued that you could actually threaten harm by causing it, you mean we were supposed to instruct the jury on that, too?] Based on the indictment, and kind of looking at the facts in spite of Hall’s prohibition against doing so, the court of appeals held that the misdemeanor assaults were lesser included offenses and that there was some proof to negate the greater offense of retaliation. [Here’s the case info for the court of appeals case.]
In another unanimous opinion, the CCA affirmed the court of appeals opinion that that Schmidt should’ve gotten instructions on the lesser-included offenses of assault by causing bodily injury and assault by threat. The Court rejected the State’s argument that the indictment only required the State to prove a threat and not a strike. The State had pretty much taken the position from trial through Schmidt I that you could threaten harm by either threatening to strike or by actually striking, so they were judicially estopped from arguing that the indictment only meant threaten to strike. Thus, the court of appeals got it right that assault by threat and assault by bodily injury were lesser-included offenses based upon the indictment.
The CCA also rejected the argument that the “striking” portion of the indictment was surplusage because the State only had to prove that Schmidt had threatened the person, not the content of the threat or whether the threat was carried out. This, according to the CCA, would amount to a strict-statutory approach, rather than the cognate-pleadings approach. Moreover, the CCA says it’s not surplusage under Doyle v. State, so take that Bembridge scholars! Finally, applying the surplusage rule would make it difficult to do the lesser-included analysis before trial, and surplusage jurisprudence is more appropriate for sufficiency analysis anyway.
[Hunh? Is this another backdoor undermining of the hypothetically correct jury charge, like in Wooley? And where in the hell was the eighth grade grammar test? Murder is a result oriented offense and retaliation is . . . what? I don’t know. Perhaps it would’ve been better to just say, notice is notice is notice. If it’s not surplusage it’s required, and that means the state had to prove “by striking”. All the rest just confuses me, but what else is new. But Doyle seems kind of old to rely upon for what should or should not go into an indictment for purposes of notice. I mean, haven’t some things changed since 1983?]
Oh yeah, and on the second prong, the victim said the defendant never mentioned her statement to the police while he was beating her. That combined with the fact that Schmidt and the victim had also gotten into a fight over another girl provided enough evidence to make assault by threat and assault by bodily injury a valid rational alternative to retaliation.
Case Summary - David Eugene Weir v. State
The trial court found David Weir guilty of burglary of a habitation after he violated the terms of his deferred adjudication. The trial court orally sentenced him to ten years in prison, but added restitution, court costs, and attorney’s fees in the written judgment. The court of appeals split the baby three ways (as Yogi Berra might say), holding that restitution is punitive, attorney’s fees aren’t, and court costs are kind-of. Punitive measures must be in the oral pronouncement, non-punitive measures not so much. Kind-of? They’re in too. Thus, the court of appeals modified the sentence to strike restitution and court costs, but not the attorney’s fees. [Here’s the court of appeals case info, if you’re curious.]
The Court of Criminal Appeals affirmed in part and reversed in part. Court costs are just to recoup the costs of judicial resources expended in the case, and were not intended to be punitive. Unlike fines, which are called fines, court costs are called court costs (yes, that’s part of the reasoning), and they are not listed in the “Punishments” Chapter of the Penal Code. Court costs are also different than restitution, which are punitive in nature (having been authorized in the Code of Criminal Procedure). Finally, requiring a defendant to pay court costs does not alter the range of punishment, and orally pronouncing court costs isn’t the same as orally pronouncing multiple sentences that will run consecutively. [Because time runs and money is paid?] So, the CCA restored the requirement that the defendant pay his court costs because court costs are not punitive. Court clerks rejoice. Perfectly reasonable opinion, but they could’ve just said “It is what it is.”
The Court of Criminal Appeals affirmed in part and reversed in part. Court costs are just to recoup the costs of judicial resources expended in the case, and were not intended to be punitive. Unlike fines, which are called fines, court costs are called court costs (yes, that’s part of the reasoning), and they are not listed in the “Punishments” Chapter of the Penal Code. Court costs are also different than restitution, which are punitive in nature (having been authorized in the Code of Criminal Procedure). Finally, requiring a defendant to pay court costs does not alter the range of punishment, and orally pronouncing court costs isn’t the same as orally pronouncing multiple sentences that will run consecutively. [Because time runs and money is paid?] So, the CCA restored the requirement that the defendant pay his court costs because court costs are not punitive. Court clerks rejoice. Perfectly reasonable opinion, but they could’ve just said “It is what it is.”
Labels:
court costs,
time runs money is paid
Case Summary - Jeremy Wayne Baldwin v. State
Clevland Police Detective Martin McFadden was patrolling downtown Cleveland when he saw two men, Richard Chilton and John W. Terry standing on the corner of . . . Oh wait! My bad. I got this case confused with Terry v. Ohio. I don’t know what I was thinking. Baldwin had handcuffs. Let me try again.
A woman in a “medium” crime subdivision (does it come with a yellow cap) flagged down a patrolling officer at 10:30 p.m. to report a white male dressed all in black (the mimes had all gone home) was walking around and looking into houses. The officer did not know if this meant he was merely looking at them or if he was walking up to them and looking into the windows. There had been several burglaries in the neighborhood, both the woman and the officer knew it. The officer drove off in the direction the woman had seen the man walking.
A few blocks away, the officers sees Baldwin, a man matching the description. They made eye contact and Baldwin began a very fast walking pace away from the officer. The officer stopped his patrol car, got out, and walked up to Baldwin. He told Baldwin about the report and asked where Baldwin lived and for some identification. Baldwin did not respond to the question about where he lived and instead asked why the officer wanted to see his ID. Baldwin looked nervous. Because this behavior was consistent with other uncooperative persons that the officer had encountered, the officer feared for his safety and he handcuffed Baldwin.
The officer asked where Baldwin’s identification was, and Baldwin indicated it was in his right pants pocket. The officer considered this permission to reach into Baldwin’s pocket, so he did, and he retrieved the wallet. The officer took Baldwin’s ID out of the wallet and that revealed a baggie with cocaine in it behind the wallet.
The motion to suppress was denied. The court of appeals upheld the trial court’s ruling. According to the court of appeals, the circumstances related to the officer by the citizen were reliable because she placed herself in a position to be identified (as opposed to an anonymous tipster). Those circumstances combined with the officer’s observations gave him reasonable suspicion to detain Baldwin for further investigation. The momentary intrusion into Baldwin’s pants pocket to retrieve the ID was a minimal, necessary, and reasonable encroachment on Baldwin’s liberty under the circumstances.
Justice Anderson dissented (with a little splash of spirit fingers, no less) because he felt that the officer did not have reasonable suspicion to believe that Baldwin actually was, had been, or soon would be engaged in criminal activity. Moreover, there was no probable cause to arrest until after the cocaine was found, and Baldwin was under arrest when he was handcuffed. Thus, he disagreed with the majority opinion. [Here’s a link to the court of appeals case info, if you’re interested.]
A unanimous Court of Criminal Appeals, led by Presiding Judge Keller, held that regardless of whether Baldwin was arrested or detained there was no valid basis for reaching into Baldwin’s pocket. Had Baldwin been under arrest, the search of the pocket would’ve been justified as a “search incident to arrest”, but there would have had to have been probable cause to arrest. There was not. And even under a proper investigatory detention justified by reasonable suspicion, the officer can do a pat-down for weapons and go into a pocket if he feels something like a weapon. He didn’t. If he wanted to go in for contraband, he needed probable cause. He didn’t have it. Just because he can ask for identification doesn’t mean he can go into the pocket to confirm it. And as for consent, the officer’s belief that the defendant consented to entry into the pocket was objectively unreasonable. [Ouch.]
Judge Cochran concurred to basically agree with Justice Anderson’s dissent that Baldwin was arrested without probable cause when he was handcuffed. While Judge Cochran agrees with the general proposition that handcuffing a defendant does not automatically escalate a detention into an arrest, the handcuffing must be reasonably necessary to allow the officer to pursue his investigation without fear of violence. Here, the officer could only point to the defendant’s nervousness (and being outnumbered) as a reason for the handcuffs. Here’s the money quote: “The fact that a pedestrian is nervous when approached by a police officer at night, without more, is insufficient reason to handcuff him.” While she’s reluctant to second guess a police officer on the street, Judge Cochran could not uphold the officer’s routine handcuffing procedure.
Judges Keasler and Hervey concurred as well, but wrote to specifically reject Judge Cochran’s view that this was an unlawful arrest rather than an unlawful detention. Both felt that the officer lacked reasonable suspicion to even detain Baldwin, and leaping from illegal detention to unlawful arrest without justification unnecessarily muddles Fourth Amendment search and seizure law. [Of course, it’s not like saying he wasn’t detained until he was handcuffed makes everything perfectly clear. I sure hope they don’t equate the citizen’s report with an anonymous tip.]
* * * * *
Personally, I think Judge Keller has the right approach here, which is probably why the opinion was unanimous. This case is very similar to Terry v. Ohio in that you basically have an officer stopping someone who is walking down the street after some observations of suspicious behavior indicative of burglary planning. Based on that, plus the officer’s observations during his interaction with the defendant, he’s got specific articulable facts beyond a hunch to detain the defendant.
But Detective McFadden in Terry just did a pat down; the officer in this case handcuffed the suspect and reached into his pocket for something that wasn't a weapon. Also, the time was more collapsed. McFadden got to watch the suspects “casing a stick up”, while this officer had to act quickly lest the suspect get away.
If I’m the officer, I feel completely justified in handcuffing the suspect and getting his wallet out of his pocket to find out who he is. If I’m the defendant, I feel angry that my rights have been violated. That is, of course, unless I was actually planning a burglary in which case I’m happy that my rights were violated because now it’s the officer’s fault.
But seriously, this case is a very good example of how the exclusionary rule can be inefficient. If the officer truly fears for his safety, but he’s unable to point to specific facts to justify that fear is he really going to NOT do the search just so the evidence won’t be suppressed. Hmm, I could lose the PCS case that I had no idea I was going to make, OR I could get risk getting shot by a person I think is a burglar. Decisions, decisions.
Don’t get me wrong, I think this is a pretty good little opinion. I think the CCA (and the court of appeals for that matter) had a tough job balancing two equally compelling narratives. Officers shouldn’t have to second-guess themselves on safety issues vs. people shouldn’t get handcuffed willy-nilly. Judge Keller deserves credit for crafting a concise, reasonable opinion that decides the issue in a way that should cause the least amount of confusion in this area of the law.
A woman in a “medium” crime subdivision (does it come with a yellow cap) flagged down a patrolling officer at 10:30 p.m. to report a white male dressed all in black (the mimes had all gone home) was walking around and looking into houses. The officer did not know if this meant he was merely looking at them or if he was walking up to them and looking into the windows. There had been several burglaries in the neighborhood, both the woman and the officer knew it. The officer drove off in the direction the woman had seen the man walking.
A few blocks away, the officers sees Baldwin, a man matching the description. They made eye contact and Baldwin began a very fast walking pace away from the officer. The officer stopped his patrol car, got out, and walked up to Baldwin. He told Baldwin about the report and asked where Baldwin lived and for some identification. Baldwin did not respond to the question about where he lived and instead asked why the officer wanted to see his ID. Baldwin looked nervous. Because this behavior was consistent with other uncooperative persons that the officer had encountered, the officer feared for his safety and he handcuffed Baldwin.
The officer asked where Baldwin’s identification was, and Baldwin indicated it was in his right pants pocket. The officer considered this permission to reach into Baldwin’s pocket, so he did, and he retrieved the wallet. The officer took Baldwin’s ID out of the wallet and that revealed a baggie with cocaine in it behind the wallet.
The motion to suppress was denied. The court of appeals upheld the trial court’s ruling. According to the court of appeals, the circumstances related to the officer by the citizen were reliable because she placed herself in a position to be identified (as opposed to an anonymous tipster). Those circumstances combined with the officer’s observations gave him reasonable suspicion to detain Baldwin for further investigation. The momentary intrusion into Baldwin’s pants pocket to retrieve the ID was a minimal, necessary, and reasonable encroachment on Baldwin’s liberty under the circumstances.
Justice Anderson dissented (with a little splash of spirit fingers, no less) because he felt that the officer did not have reasonable suspicion to believe that Baldwin actually was, had been, or soon would be engaged in criminal activity. Moreover, there was no probable cause to arrest until after the cocaine was found, and Baldwin was under arrest when he was handcuffed. Thus, he disagreed with the majority opinion. [Here’s a link to the court of appeals case info, if you’re interested.]
A unanimous Court of Criminal Appeals, led by Presiding Judge Keller, held that regardless of whether Baldwin was arrested or detained there was no valid basis for reaching into Baldwin’s pocket. Had Baldwin been under arrest, the search of the pocket would’ve been justified as a “search incident to arrest”, but there would have had to have been probable cause to arrest. There was not. And even under a proper investigatory detention justified by reasonable suspicion, the officer can do a pat-down for weapons and go into a pocket if he feels something like a weapon. He didn’t. If he wanted to go in for contraband, he needed probable cause. He didn’t have it. Just because he can ask for identification doesn’t mean he can go into the pocket to confirm it. And as for consent, the officer’s belief that the defendant consented to entry into the pocket was objectively unreasonable. [Ouch.]
Judge Cochran concurred to basically agree with Justice Anderson’s dissent that Baldwin was arrested without probable cause when he was handcuffed. While Judge Cochran agrees with the general proposition that handcuffing a defendant does not automatically escalate a detention into an arrest, the handcuffing must be reasonably necessary to allow the officer to pursue his investigation without fear of violence. Here, the officer could only point to the defendant’s nervousness (and being outnumbered) as a reason for the handcuffs. Here’s the money quote: “The fact that a pedestrian is nervous when approached by a police officer at night, without more, is insufficient reason to handcuff him.” While she’s reluctant to second guess a police officer on the street, Judge Cochran could not uphold the officer’s routine handcuffing procedure.
Judges Keasler and Hervey concurred as well, but wrote to specifically reject Judge Cochran’s view that this was an unlawful arrest rather than an unlawful detention. Both felt that the officer lacked reasonable suspicion to even detain Baldwin, and leaping from illegal detention to unlawful arrest without justification unnecessarily muddles Fourth Amendment search and seizure law. [Of course, it’s not like saying he wasn’t detained until he was handcuffed makes everything perfectly clear. I sure hope they don’t equate the citizen’s report with an anonymous tip.]
* * * * *
Personally, I think Judge Keller has the right approach here, which is probably why the opinion was unanimous. This case is very similar to Terry v. Ohio in that you basically have an officer stopping someone who is walking down the street after some observations of suspicious behavior indicative of burglary planning. Based on that, plus the officer’s observations during his interaction with the defendant, he’s got specific articulable facts beyond a hunch to detain the defendant.
But Detective McFadden in Terry just did a pat down; the officer in this case handcuffed the suspect and reached into his pocket for something that wasn't a weapon. Also, the time was more collapsed. McFadden got to watch the suspects “casing a stick up”, while this officer had to act quickly lest the suspect get away.
If I’m the officer, I feel completely justified in handcuffing the suspect and getting his wallet out of his pocket to find out who he is. If I’m the defendant, I feel angry that my rights have been violated. That is, of course, unless I was actually planning a burglary in which case I’m happy that my rights were violated because now it’s the officer’s fault.
But seriously, this case is a very good example of how the exclusionary rule can be inefficient. If the officer truly fears for his safety, but he’s unable to point to specific facts to justify that fear is he really going to NOT do the search just so the evidence won’t be suppressed. Hmm, I could lose the PCS case that I had no idea I was going to make, OR I could get risk getting shot by a person I think is a burglar. Decisions, decisions.
Don’t get me wrong, I think this is a pretty good little opinion. I think the CCA (and the court of appeals for that matter) had a tough job balancing two equally compelling narratives. Officers shouldn’t have to second-guess themselves on safety issues vs. people shouldn’t get handcuffed willy-nilly. Judge Keller deserves credit for crafting a concise, reasonable opinion that decides the issue in a way that should cause the least amount of confusion in this area of the law.
Labels:
arrest,
detention,
handcuffs,
probable cause,
reasonable suspicion,
terry v. ohio
Wednesday, March 4, 2009
No New Issues, No Published Opinions - 3/4/09
All apologies to the folks following in Alaska and Spain, but nothing new today from the Texas Court of Criminal Appeals. No new issues granted. No published opinions. Just a lot of denials (and dismissals) of habeas claims.
You can see for yourself here.
You can see for yourself here.
Labels:
no new issues,
no published opinions
Tuesday, March 3, 2009
Oral Arguments - 2/11/09
On February 11, 2009, the CCA heard oral argument in the following cases:
PD-0587-08,State v. Thomas L. Varkonyi, a criminal solicitation of a child case out of El Paso.
The CCA granted review on the following issues:
Here, the trial court granted a new trial based upon his own recollections of conversations he'd had with jurors regarding an audiotape that had been admitted into evidence. Specifically, the trial court had prevented the jurors from translating the tape during deliberations, but heard from jurors after the verdict that one of the jurors had translated the tape (determining it was very damaging to the defense). You can read the underlying opinion here.
PD-1047-08, Ex parte Jason Wayne Hunter, an aggravated sexual assault case out of Titus County.
The CCA granted review on the following issue:
The granted issue makes it pretty clear what's going on, but here's a link to the dissent in Ex parte Fierro to compliment the link to the majority opinion above, if you're interested. You can also read the underlying court of appeals opinion in Hunter here.
PD-956-08, Joe Christian Salazar v. State, a burglary of a habitation out of Potter County. [If only it had been a misdemeanor, then we might've gotten to hear from the Potter County Attorney.]
The CCA granted review on the following issue:
Clearly, the CCA had decided to let its appellate freak flag fly on this one (as they did with trying to figure out if you can fire at a house while in a house, a la Michael Reed v. State). In this case, the trial court denied a requested lesser-included instruction on criminal trespass because it was not a lesser-included offense of burglary. The indictment does not list any "notice" requirement. Thus, because Hall v. State keys determination of lesser-includeds to the elements listed in the indictment, burglary, as alleged, does not contain a element that criminal trespass requires, if I'm reading the court of appeals spare opinion correctly. You can read that underlying opinion here.
PD-0587-08,State v. Thomas L. Varkonyi, a criminal solicitation of a child case out of El Paso.
Appellee's opening argument. (John D. Gates)
The State's response. (Tom Darnold)
Appellee's rebuttal.
The CCA granted review on the following issues:
1. The court of appeals erroneously concluded that the granting of the new trial was an abuse of discretion because the petitioner did not list sufficient grounds to support the motion for new trial, alleging only that the motion was brought "in the interest of justice."
2. The court of appeals erroneously concluded that the granting of a new trial was an abuse of discretion because the trial court's in-court, oral recollection of the jury's misconduct and the trial attorneys' ineffectiveness was incompetent evidence.
Here, the trial court granted a new trial based upon his own recollections of conversations he'd had with jurors regarding an audiotape that had been admitted into evidence. Specifically, the trial court had prevented the jurors from translating the tape during deliberations, but heard from jurors after the verdict that one of the jurors had translated the tape (determining it was very damaging to the defense). You can read the underlying opinion here.
PD-1047-08, Ex parte Jason Wayne Hunter, an aggravated sexual assault case out of Titus County.
The State's opening argument. (David Colley)
Appellant's response. (Lori Chism)
The State's rebuttal.
The CCA granted review on the following issue:
The court of appeals erred by broadening the Court of Criminal Appeals' holding in Fierro, to apply to a double jeopardy bar where a juror was dismissed on presumed bias for he benefit of the defendant, the defendant failed to object to the dismissal of a challengeable juror and the defendant refused to consent to trial with eleven jurors thereafter.
The granted issue makes it pretty clear what's going on, but here's a link to the dissent in Ex parte Fierro to compliment the link to the majority opinion above, if you're interested. You can also read the underlying court of appeals opinion in Hunter here.
PD-956-08, Joe Christian Salazar v. State, a burglary of a habitation out of Potter County. [If only it had been a misdemeanor, then we might've gotten to hear from the Potter County Attorney.]
Appellant's opening argument. (John Benett)
The State's response. (John L. Owen)
Appellant's rebuttal.
The CCA granted review on the following issue:
Does a habitation inherently give notice that entry is forbidden?
Clearly, the CCA had decided to let its appellate freak flag fly on this one (as they did with trying to figure out if you can fire at a house while in a house, a la Michael Reed v. State). In this case, the trial court denied a requested lesser-included instruction on criminal trespass because it was not a lesser-included offense of burglary. The indictment does not list any "notice" requirement. Thus, because Hall v. State keys determination of lesser-includeds to the elements listed in the indictment, burglary, as alleged, does not contain a element that criminal trespass requires, if I'm reading the court of appeals spare opinion correctly. You can read that underlying opinion here.
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