Issues Granted - 4/29/09

The Court granted discretionary review in the following cases:

PD-0145-09, John Christopher Covey, Jr. v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this attempted sexual assault case out of Nolan County on the following issue:

The Court of Appeals erred in holding Appellant has not established he received ineffective assistance of trial counsel.

Click here for a summary of the underlying case.

PD-0261-09, Delvetra Lasherl Jennings v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this burglary of a habitation case out of Hale County on the following issues:

1. Were the jury verdict forms submitted to the jury in this case a part of the court's charge to the jury?

2. If the jury verdict forms submitted to the jury in this case were not part of the jury charge, are the forms an integral part of the verdict and subsequent judgment of the court based on the jury's verdict?

3. Should an improper verdict form submitted to the jury in this case be subject to the harm analysis described in Almanza v. State?

4. Were Petitioner's due process rights under the Fourteenth Amendment to the United State's Constitution and right to due course of law under Article 1, §19 of the Texas Constitution violated as a result of the failure of the court to submit a "not guilty" verdict on all charges to the jury?

Click here for a summary of the underlying case.

PD-0379-09, Brian Thomas Kirsch v. State: The CCA granted the defendant’s petition for discretionary review without oral argument in this DWI case out of Harris County on the following issue:

The First Court of Appeals erred in permitting a jury charge for per se intoxication when evidence of appellant’s blood alcohol level was admitted pursuant to a limiting instruction and there was no evidence that appellant was intoxicated per se at the time he was driving the automobile.

Click here for a summary of how the court of appeals addressed the issue.

Issue Granted - John Christopher Covey, Jr. v. State

PD-0145-09, John Christopher Covey, Jr. v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this attempted sexual assault case out of Nolan County on the following issue:

The Court of Appeals erred in holding Appellant has not established he received ineffective assistance of trial counsel.

Here, Covey challenged his plea as involuntary based upon ineffective assistance of counsel because he was under the impression that the trial court had the discretion to terminate his sex offender registration. His attorney had sent him a letter indicating as much, and at the plea hearing, Covey asked the trial court if he could get taken off “the sex offender earlier than probation is up”. However, at a writ hearing he claimed his plea was involuntary because there was no way he could be eligible to be taken off sex offender registration pursuant to Article 62.404 of the Texas Code of Criminal Procedure because they were keyed to federal guidelines. Under the federal guidelines, Covey would have to serve a minimum of ten years on probation to be eligible for early termination of registration, but his sentence was only eight years, thus requiring him to register for life. Covey also conceded that a jury would have found him guilty had he fought the case, thus putting him in the very same position. While his attorney’s letter indicated he might have to register for life, Covey stated that he thought the term was discretionary.

The court of appeals held in an unpublished opinion that Covey had failed to establish that his trial counsel had been ineffective. The court first noted that the issue of early release from sex offender registration was not before it. Rather, the only issue was whether trial counsel had rendered ineffective assistance. The court of appeals noted that trial counsel always stressed that there were no guarantees when counsel could petition for early termination from sex offender registration. The trial court stressed the same representations in open court. Moreover, attempted sexual assault does not require lifetime registration, but rather eighteen years registration. No testimony was presented as to what decision Covey would have made if he had been faced with a maximum period of registration of eighteen years. Finally, Covey did not show he was ineligible for filing a motion for early release from sex offender registration, an necessary step in his ineffective assistance claim. Here’s a link to the court of appeals case info.

Issues Granted - Devetra Lasherl Jennings v. State

PD-0261-09, Delvetra Lasherl Jennings v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this burglary of a habitation case out of Hale County on the following issues:

1. Were the jury verdict forms submitted to the jury in this case a part of the court's charge to the jury?

2. If the jury verdict forms submitted to the jury in this case were not part of the jury charge, are the forms an integral part of the verdict and subsequent judgment of the court based on the jury's verdict?

3. Should an improper verdict form submitted to the jury in this case be subject to the harm analysis described in Almanza v. State?

4. Were Petitioner's due process rights under the Fourteenth Amendment to the United State's Constitution and right to due course of law under Article 1, §19 of the Texas Constitution violated as a result of the failure of the court to submit a "not guilty" verdict on all charges to the jury?

Zoinks! Jennings paid a named Ray to fix her engine, but he failed to do so. So, Jennings, her boyfriend, and another dude broke into Ray’s home and beat Ray up. She was charged with burglary with intent to commit aggravated assault, but the jury convicted on the lesser-included offense of burglary with intent to commit simple assault. The three verdict forms allowed the jury to find Jennings not guilty of aggravated assault burglary, guilty of aggravated assault burglary, or guilty of simple assault burglary. Jennings never objected to the lack of a total “not guilty” jury verdict form. The court of appeals held in a published opinion that the lack of an objection waived the error. Here’s a link to the court of appeals case info.

[This explains why all the fuss about the verdict forms being a part of the jury charge. If they aren’t, then the error could be waived, but if they are, Bluitt holds that the court was required to conduct an egregious harm analysis. The path of least resistance seems to be to hold that it’s part of the charge and remand for egregious harm analysis.]

Issue Granted - Brian Thomas Kirsch v. State

PD-0379-09, Brian Thomas Kirsch v. State: The CCA granted the defendant’s petition for discretionary review without oral argument in this DWI case out of Harris County on the following issue:

The First Court of Appeals erred in permitting a jury charge for per se intoxication when evidence of appellant’s blood alcohol level was admitted pursuant to a limiting instruction and there was no evidence that appellant was intoxicated per se at the time he was driving the automobile.

Kirsch raised many issues on appeal, but the CCA only granted review on one aspect of the court of appeals opinion. Kirsch crashed his car and this resulted in a head injury. At the hospital his blood tests showed a blood-alcohol level of .10 approximately 80 minutes after the accident. The State introduced the blood test results, but Kirsch requested a limiting instruction that the evidence could only come in to show consumption of alcohol so, according to Kirsch, there was no evidence showing blood alcohol content at the time Kirsch was driving. The trial court instructed the jury on the definition of intoxication under a per se theory and a loss of normal use theory. The court of appeals held in a published opinion that the un-extrapolated breath test results were probative evidence under both theories of intoxication. Consequently, the limiting instruction was erroneous, and the trial court’s definition of intoxication was not erroneous as the jury could properly consider the test results for both theories of intoxication. Here’s a link to the court of appeals case info.

[I think it's important to boil this issue down to what it really is - Can the trial court instruct the jury on a theory of per se intoxication when the State does not introduce evidence of retrograde extrapolation? We know retrograde extrapolation is not required for the admission of the results. Now we'll find out if it also goes into the jury charge. Have they decided if unextrapolated breath tests can be sufficient evidence of intoxication? If not, that seems to be on the way.]

Today's Opinions - 4/29/09

The Court handed down a number of publshed opinions today, but it's kind of a trick because one case had like eight defendants.

AP-75,862, Ex parte Billy George Reedy: The CCA recognized that it's not inherently coercive to get a waiver of habeas corpus relief in exchange for the State not seeking the death penalty. But, they also held that that waiver may not be intelligently or knowingly made regarding issues such as ineffective assistance when those issues are based on facts unknown to the defendant. Click here for a more detailed summary.

PD-0454-07, David Woodall v. State: The CCA held that Woodall failed to preserve error regarding his denial of the right to cross-examine the Intoxilyzer Expert because on only informed the trial court of the questions he wanted to ask, not the information he intended to elicit. This case was combined with eight other cases, but here he defendant failed to preserve error. Click here for a more detailed summary.

PD-0453-07, Terry M. Holmes v. State: The CCA held that Holmes, along with seven other co-defendants, had preserved error on his denial of cross-examination claim by filing a motion detailing the substance of the testimony he intended to elicit. The CCA affirmed the court of appeals. Click here for a more detailed summary.

PD-0455-07, Gabriel J. Williams v. State: The CCA held that Williams, along with seven other co-defendants, had preserved error on his denial of cross-examination claim by filing a motion detailing the substance of the testimony he intended to elicit. The CCA affirmed the court of appeals. Click here for a more detailed summary.

PD-0456-07, Gabriel Contreras Jr. v. State: The CCA held that Contreras, along with seven other co-defendants, had preserved error on his denial of cross-examination claim by filing a motion detailing the substance of the testimony he intended to elicit. The CCA affirmed the court of appeals. Click here for a more detailed summary.

PD-0457-07, April Harlow v. State: The CCA held that Harlow, along with seven other co-defendants, had preserved error on her denial of cross-examination claim by filing a motion detailing the substance of the testimony she intended to elicit. The CCA affirmed the court of appeals. Click here for a more detailed summary.

PD-0458-07, Alfonso R. Rodriguez v. State: The CCA held that Rodriguez, along with seven other co-defendants, had preserved error on his denial of cross-examination claim by filing a motion detailing the substance of the testimony he intended to elicit. The CCA affirmed the court of appeals. Click here for a more detailed summary.

PD-0459-07, Michael Brice v. State: The CCA held that Brice, along with seven other co-defendants, had preserved error on his denial of cross-examination claim by filing a motion detailing the substance of the testimony he intended to elicit. The CCA affirmed the court of appeals. Click here for a more detailed summary.

PD-0460-07, Walter Widener Jr. V. State: The CCA held that Widener, along with seven other co-defendants, had preserved error on his denial of cross-examination claim by filing a motion detailing the substance of the testimony he intended to elicit. The CCA affirmed the court of appeals. Click here for a more detailed summary.

PD-0791-08, Jimmy Lee Simmons v. State: The CCA held that the defendant's letter along with other evidence sufficiently corroborated the accomplice witness testimony in this aggravated robbery. The proper corrobration inquiry is whether the non-accomplice evidence could be seen as inculpating the defendant and not whether the evidence could be seen as rationally consistent with innnocence. Click here for a more detailed summary.

PD-0891-08, Luis Noe Barrios v. State: The CCA held that a jury instruction requiring the jury to acquit a defendant of a greater offense prior to consideration of the lesser-included offense did not prevent the jury from considering the jury charge as a whole. Click here for a more detailed summary.

PD-0984-08, Noel Ronaldo Villarreal v. State: The CCA held that the evidence was legally sufficient to prove that Villarreal violated a protective order where he committed an act of "dating violence", but the protective order's definition of "family violence" did not include dating violence. Click here for a more detailed summary.

Case Summary - Ex parte Billy George Reedy

Reedy plead guilty to an automatic life sentence for capital murder. Reedy agreed to waive any post-conviction relief including his right to file writs of habeas corpus in exchange for the State's waiver of its right to seek the death penalty. However, he filed a pro se post-conviction writ saying his plea was involuntary and his waiver of his right to file a writ of habeas corpus was not intelligently, knowingly, or voluntarily made.

The CCA held that Reedy could intelligently, knowingly, and voluntarily waive his right to habeas corpus on claims where those claims were not predicated on unknown facts. So, Reedy's claim that his plea was involuntary because the threat of the death penalty made his plea inherently coerced was intelligently, knowingly, and voluntarily made. It was not based upon facts unknown to Reedy at the time of his plea.

However, Reedy's claims that his plea was involuntary because his trial counsel had advised him to plead guilty based upon an incomplete investigation of the case was based upon facts unknown to him at the time of his plea. Here, trial counsel had, according to Reedy, lead him to believe for eight months that the State was not seeking the death penalty. Trial counsel, again according to Reedy, had not filed any pre-trial motions or sought psychological testing of Reedy despite Reedy's claims that he'd suffered head injuries as a child. The Court held that if these allegations were true might render the guilty plea involuntary and the level of ineffective assistance that would render a guilty plea involuntary would also render a waiver of the right to habeas corpus unenforceable. Consequently, the Court remanded the case to the trial court to consider the whether there were any previously contested issues of fact on this issue.

The Court also upheld Reedy's waivers of direct appeal and the right to file a writ of habeas corpus on his claims that his confession was involuntary and the indictment was fundamentally defective. None of these claims were predicated upon fact that would've been unknown to Reedy at the time of his waiver of his right to habeas corpus. Therefore, his waiver was enforceable to these issues. Presiding Judge Keller dissented without an opinion. There was no underlying case information.

Case Summary - Holmes et. al v. State

The Court issued the same opinion in eight different cases, so I've consolidated the cases into one post.

Prior to the beginning of David Woodall's DWI trial, the State asked the trial court to take judicial knowledge of the underlying science of the Intoxilyzer 5000. The trial court did so, noting that it had previously found the Intoxilyzer to be reliable and absent any scientific evidence to the contrary, it was going to do so again. Woodall objected to the denial of his right to cross-examine, and informed the court that he intended to question the Technical Supervisor on the Intoxilyzer's ability to correlate the temperature of the breath sample. He also indicate he wanted to question the witness about the way the tube is heated and "there being no correlation to that". Woodall indicated he always contests the temperature in the simulator and Henry's law and how it applies to the simulator. (The trial court indicated he could go into that if the test before and after showed there was something wrong with the simulator, but if not, he couldn't.) Finally, Woodall clarified that he would not be allowed to question the Stat'es expert on the principles and application of the breath testing science.

Woodall indicated he would present an offer of proof later, but he never did. Then, when it came time at trial for the State to introduce the test, the trial court sustained Woodall's objection to the admission of the results for failure to lay the proper predicate. The results were never admitted before the jury. After a lunch break, Woodall again moved to question the expert about the reliability of the Intoxilyzer 5000, and the trial court again denied it. Then Woodall changed his plea from not guity to no contest pursuant to a plea agreement.

In a published opinion the court of appeals reversed Woodall's case, holding that he had preserved error on his claim that he was denied the right to cross-examine the State's expert. Moreover, Woodall's fundamental right to present a defense is a fundamental element of due process of law, and that the violation of that right amounted to constitutional error. Not surprisingly, the court of appeals held that it could not determine beyond a reasonable doubt that the errors did not contributed to the conviction. [Here's a link to the underlying court of appeals case info in Woodall's case.]

Seven other defendant's came to trial after Woodall, including Terry Holmes. They were Terry M. Holmes, Gabriel J. Williams, Gabriel Contreras Jr., April Harlow, Alfonso Rodriguez, Michael Brice, and Walter Widener, Jr.. [Note: You can click on their respective names for their individual court of appeals case information.] Each of these defendants filed a motion to cross-examine the State's experts listing eight areas of concern about the internal workings of the Intoxilyzer 5000. Each motion included not only the areas of cross-examination, but also reference to what the defendant's hoped to establish through cross-examination. Relying upon its decisin in Woodall, the court of appeals also reversed in Holmes,Williams, Contreras, Harlow, Rodriguez, Brice, and Widener; all of these opinions were unpublished. They all reversed on the same grounds as they had in Woodall's case.

The Court of Criminal Appeals reversed Woodall's case, and affirmed Holmes's, Williams's, Contreras's, Harlow's, Rodriguez's, Brice's, and Widener's cases. The Court distinguished the Woodall case from the other seven defendants because Woodall had failed to convey to the trial court the substance of the information he intended to solicit upon cross-examination, while the other seven defendants did so. Rule 103 of the Texas Rules of Evidence generally requires a person that complains about the exclusion of evidence to make the substance of the excluded evidence known to the trial court to preserve error. While there is an exception to this requirement when the witness seeks to challenge the credibility of a witness through cross-examination to show bias or interest, that exception does not apply when cross-examination is sought to question the credibility of the substance of that witness's testimony. In other words, if the cross-examination goes to the substance of the testimony, the person complaining about exclusion must make a proffer of the substance of the testimony he intended to elicit. However, if the cross-examination is designed to make the witness look like a liar, then the person complaining about exclusion just has to say what questions he would’ve asked. That’s how you preserve error with regard to a complaint regarding the denial of the right to cross-examine.

In Woodall’s case, the defendant sought to challenge the substance of the witness’s testimony about the Intoxilyzer, so he was required to make a proffer of what he intended to elicit. Consequently, Woodall failed to do so and therefore he failed to preserve error. In contrast, the seven other defendants did give an indication of what they intended to elicit from the witness through cross examination, so they had properly preserved error on their claims. Thus, the court of appeals was reversed in the Woodall’s case, and affirmed in everyone else’s.

[Click on the Appellant's names for the CCA case info in Holmes, Woodall, Williams, Contreras, Harlow, Rodriguez, Brice, and Widener.]

Case Summary - Jimmy Lee Simmons v. State

Simmons was convicted of aggravated robbery for his part in the armed robbery of Justin Mendoza and his pregnant girlfriend. Mendoza had been waiting at a friend's house for his girlfriend to get off work when Johnson came to the door looking for "Mike". Finding no Mike, Johnson left, and later Mendoza's girlfriend arrived. Then, Johnson returned, but this time with a masked man. The masked man held a gun on Mendoza while Johnson rummaged through the house. Johnson took Mendoza's cell phone and money from his pockets and took the purse of Mendoza's girlfriend. Then, the masked man punched Mendoza with brass knuckles and the two robbers fled.

Johnson testifed that Simmons was the masked man that carried out the robbery with him. Mendoza thought the masked man's voice sounded like a person he knew as "Jimmy Lee", though he was not positive. Simmons was dating Johnson's mother at the time, and Johnson testified that Simmons wrote him a letter while Johnson was in jail. The letter indicated that Simmons was planning to write an alphadavit [presumably without using Alphabits ceral] that he wanted Johnson to sign. The letter also questioned why Johnson would bring Simmons down if Johnson had any love for Simmons. Johnson refused to sign an affidavit prepared by Simmons, and two jail employees refused to sign an affidavit that they had seen Johnson sign the "alphadavit" because they had not seen him do so.

The court of appeals held in an unpublished opinion that the evidence was insufficient to corroborate Johnson's testimony. According to the court of appeals, Mendoza couldn't be sure that the man who robbed him sounded like "Jimmy Lee" and Simmons's letter did not admit to involvement, but merely chastized Johnson for giving up Simmons' name to the police. Justice Waldrop dissented because the letter did not have to be interpreted as Simmons's expressing frustration because Johnson was truthfully ratting him out, but a rational jury could certainly read it that way. [Here's a link to the court of appeals case information.]

The Court of Criminal Appeals reversed, holding that the court of appeals failed to read the letter in a light most favorable to the verdict. The court of appeals erroneously looked at the letter and independently ascertained whether it tended to connect Simmons to the crime rather than whether a rational juror could read it as connecting Simmons to the crime. A rational juror could also find that Simmons's attempt to get Johnson to sign an affidavit was suspicious and that Simmons's attempts to get jail employees to lie about it to be equally suspicious. These circumstances tended to connect Simmons to the crime and thus they sufficiently corroborated Johnson's testimony. [Here's a link to the CCA case information.]

Case Summary - Luis Noe Barrios v. State

The State charged and convicted Barrios of capital murder, but did not seek the death penalty. The jury charge instructed the jury to acquit Barrios of capital murder before considering whether he was guilty of the lesser included offense of robbery. The jury charge also instructed the jury that it should resolve any reasonable doubts as to which offense (capital murder or robbery) Barrios was guilty of in favor of Barrios.

On appeal, Barrios complained that the jury instruction required the jury to unanimously agree that he was not guilty of capital murder before going on to consider whether he was guilty of the lesser included offense of robbery. The court of appeals rejected this argument and affirmed. According to the court, the jury charge as written clearly contemplated that that the jury would consider the lesser included offense before unanimously deciding to acquit of the greater. [Here's a link to the court of appeals case info.]

The Court of Criminal Appeals affirmed. Barrios argued that jury unanimity is required for a verdict of acquittal as well as for a verdict of guilty, and that the sequencing of the instruction prevented the jury from considering the "benefit of the doubt" portion of the instruction. As Barrios argued, if the jury convicted of the greater offense, it never got to the benefit of the doubt instruction. The Court rejected this argument, noting that the jury's decision regarding the order in which the charge is read, is left to the jury. The jury considers the evidence in light of the entire charge as a whole, and having heard the "benefit of the doubt" portion when the charge is read to them by the trial court, will have considered that portion before considering the issue of guilt.

The Court also noted that using the phrase "or if you are unable to agree, you will next consider" instead of "you will acquit . . . and next consider" may clear up any confusion. Using this phrase would make clear to the jury that it may, at its discretion, consider the lesser-included offense before making a final decsion. However, the charge in this case allowed the jury to consider the entire charge as a whole; it did not require the jury to unanimously acquit before considering the lesser-included offense. Presiding Judge Keller concurred without an opinion. [Here's a link to the underlying court of criminal appeals case info. Here's a link to audio for the oral argument, while it lasts.]

* * * * *

I've actually felt kind of bad as I seem to beat up on Johnson a lot. It's not some personal thing against her, it's just the fact that lately her opinions have been kind of Souter-ish. So I'm glad to be able to say that this is really a wonderful opinion from her. Well, maybe wonderful is too strong a word, but definitely good compared to her other swings and misses. It's tighter, and it refuses to regard the jury a mindless automatons that follow instructions like a computer.

It does occur to me that this prevents the State from arguing that the jury doesn't even get to the lesser if it finds he's guilty of the greater. But, if you go with the idea that the jury charge must be considered as a whole, it does seem that necessarily follows. In any event, that's what the State argued, so any problem with that was built into the case from the start. Sure, she could've said "What's wrong with sequential charging, anyway", but doing that would've been going beyond what the parties were arguing, and she deserves credit for her restraint. The majority does not hold that an acquittal must be unanimous, too. Regardless of whether that's a correct reading of the law, it doesn't need to be decided here. And the suggested language change is pretty practical, though not ultimately necessary because of the holding. The defense will certainly request it now, but any problem with that is the same problem with the idea that the jury charge should be considered sequentially rather than as a whole.

Case Summary - Noel Ronaldo Villareal v. State

Villareal began a dating relationship with Shannon Love. Their relationship developed and they occassionally stayed over at each other's residences. Eventually, though, the relationship soured. Villareal was eventually arrested for committing some type of family violence against Love. He was taken before Tarrant county magistrate who issued an emergency protective order enjoining Villareal from committing further acts of family violence. The protective order's definition of "family violence" did not include "dating violence". The jury was instructed, however, that "family violence" included "dating violence" and defined both terms.

In an unpublished opinion, the court of appeals affirmed Villareal's conviction. According to the court of appeals, the State was required to prove that Villreal committed an act of family violence as that term is defined in the Family Code and in violation of a protective order. [Here's a link to the court of appeals case info.]

The Court of Criminal Appeals affirmed. Villareal argued that his act of dating violence did not violate the protective order because the protective order only prohibited family violence. The CCA rejected the court of appeal's reasoning that the erroneous definition of family violence in the protective order was merely appended to the order and therefore not a part of the order. Instead, the Court held that a rational factfinder could have concluded that Villareal's assaultive conduct against Love was in violation of that order. Any reasonable person would have read the protective order as prohibiting assaultive conduct by Villareal against Love despite the deficient definition of family violence. [Here's a link to the Court of Criminal Appeals case info.]

Issue Granted - 4/22/09

The Court added a ground for review on its own motion in the following case:

PD-1123-08, Jeffrey Daniel Hughen v. State: The CCA granted discretionary review (apparently with oral argument) on its own motion in this aggravated assault case out of Fannin County on the following issue:

Was Appellant’s waiver of counsel during police interrogation valid when he had previously invoked his right to counsel at the time he was brought before a magistrate?

As I previously noted when discretionary review was granted in PD-1124-08, this case deals with the admission of Hughen’s statement to police despite the fact that he requested counsel at magistration. Hughen got into a drunken argument with his girlfriend. When he was magistrate he requested counsel, but later police pulled him out of his cell, read him his rights and he waived them to give him a statement. I would've thought Pecina would've taken care of this case, but perhaps the Court is going to reconsider Holloway v. State.

Hughen actually had two cases, the attempted murder and the aggravated assault. On January 14, 2009, the CCA granted discretionary review in the attempted murder, and you can read the court of appeals opinion in that case here. On April 22, 2009, the CCA granted discretionary review on its own motion in the aggravated assault case. That opinion is more circumspect and merely notes that the companion appeal raises the exact same issue. But, for the sake of completeness, here’s a link to that court of appeals opinion as well. Unpublished, by the way. Also, here’s a link to the court of appeals case info for the attempted murder, and here’s a link to the case info for the aggravated assault. Don't say I never gave you anything.

Today's Opinions - 4/22/09

The Court handed down published opinions in the following cases:

AP-75,352, Christopher Anthony Young v. State: The CCA affirmed Young's capital murder conviction and rejected his fifteen points of error covering such interesting topics as Batson, motions to suppress, and the mitigation special issue. Click here for a more detailed summary.

PD-0670-07, Clark Dewayne Mays v. State: The CCA held that Mays failed to preserve error regarding the trial court's blanket exclusion of his "diminished capacity" evidence. Though he introduced his slides from voir dire, these slides were not a sufficient offer of proof to give the court of appeals enough information to know what was excluded. Click here for a more detailed summary.

PD-1540-07, Garland Jerome Vennus v. State: The CCA held that defense counsel's evidence based objections in a motion to suppress hearing where the rules of evidence don't apply invited the error of the trial court denying his motion to suppress even though the State failed to provide a justification for the arrest. Click here for a more detailed summary.

PD-0608-08, Emily Hardy and Hiram K. Myers v. State: The CCA held that camping on the side of the road is legally insufficient to establish a potential obstruction of a roadway. Click here for a summary chock full of useless detail.

PD-0822-08, Nikolai Ivanov Karenev v. State: The CCA held that Karenev's failure to raise a facial challenge to the harassment statute in the trial court or on appeal failed to preserve error. Click here for a more detailed summary.

Case Summary - Christopher Anthony Young v. State

Young stole a Mazda Protégé at gun point. Then he drove it to a mini-mart/dry cleaners and killed Hasmukhbhai Patel in the process of robbing the store. The killing was captured on surveillance video. The video shows Young holding Patel at gunpoint and saying, “Alright, give up the money. I’m not playing. I’m not fucking playing.” Then, Young shot Patel several times after Patel had moved off screen. Gunshot residue was later found all over Young’s hands, shirt, and the steering wheel of the car. Patel died of a gunshot wound to the chest, and police found his blood on Young’s socks. Young raised fifteen points of error in his capital murder trial. The Court of Criminal Appeals affirmed.

Legal and factual sufficiency: The CCA held that the evidence was both legally and factually sufficient to establish that Young had murdered Patel during an attempted robbery. A completed robbery was not required. Moreover, Young’s attempts to capitalize on a detective’s testimony that he couldn’t understand what was said on the videotape failed to persuade the Court. The CCA held that the jury could listen to the audio on the surveillance video themselves. The jury could rationally infer that Young killed Patel in the course of the robbery.

Future Dangerousness: The CCA held the evidence was sufficient to establish future dangerousness. Immediately prior to the capital murder, Young broke into a young woman’s home at gunpoint and forced her to undress and perform oral sex on him. While he took some care to make her three young girls go to another room, they could still see what was going on. He then forced her to drive him around in her car. When he demanded that she switch seats with him so he could drive, the victim managed to escape. For an encore, Young robbed and murdered Hasmukhbhai Patel. He also had prior convictions for evading arrest, possession of marijuana, and assault. Two of the assaults were against Young’s mother, and one was against Young’s pregnant girlfriend. While Young presented evidence of a troubled childhood in which his father was murdered and his sister had been molested by his stepfather, the CCA deferred to the jury’s determination that the mitigation evidence was not sufficient to warrant a life sentence.

Batson: Six of sixty venire members were African-American. Of that six, one potential juror was disqualified, one was stricken for cause without objection, and three were excluded by peremptory challenges. One African-American was seated (2nd overall). Young complained that the State displayed disparate treatment regarding the first stricken juror because the State did not strike a Hispanic juror that had answered similarly to the stricken juror on the questionnaire regarding the ability to assess the death penalty. The CCA noted that the non-excused juror had not answered similarly. The stricken juror was more equivocal about being able to consider the full range of punishment while the Hispanic juror stated she believed in “an eye for an eye”. Additionally, the State chose not to strike the other Hispanic juror in anticipation of the defense striking him. This race-neutral reason did not display disparate treatment.

Second, the State struck a juror that was actively involved in an organization that went to prison specifically to rehabilitate people within the prison system. While Young pointed to other things that the State could’ve asked to clear up whether that involvement would prevent her from being fair, the Court held the State wasn’t required to inquire further. Also, regardless of whether the State was inaccurate in its assumption that the sole purpose of the organization was to rehabilitate, that alleged inaccuracy did not suggest that the State’s purpose for striking the juror was a pretext. Moreover, the juror put her honesty in issue when she failed to disclose that her daughter had a previous larceny conviction while other jurors that Young claimed were disparately treated did not.

Finally, the State struck a juror for many different reasons, one of which was racially based. On the one hand, the State noted that the juror explained that she went to jails to minister and preach and she’d previously served on a jury that found the defendant not guilty. On the other hand, the State noted that the juror’s son and husband were African-American men who felt they had been pulled over by police due to racial profiling. Young argued that this was explicitly racially based, but the CCA disagreed. This reference to the race of her son and husband was only to explain her close relative’s personal experiences or perceptions of law enforcement. Thus, Young did not rebut the State’s race-neutral reason for striking the juror.

[This case is a very good example of just how, if you’ll excuse the alliteration, difficult discerning discrimination during jury selection can be. Here the reason was racially based, but it didn’t demonstrate a racial motivation on the part of the prosecutor. I like that it recognizes that you can be conscious of race without being prejudiced, but that’s a hard nuance to capture with any level of certainty or predictability.]

Motion to suppress statements: Young tried to suppress his statements taken pursuant to is warrantless arrest. The circumstances of his arrest came out on cross-examination, namely that police were looking for a vehicle used in the robbery-murder, the car was found at a house, Young was ordered out of the house, he was uncooperative, and police arrested him. The CCA held that Young never discharged his burden to show that he was arrested without a warrant. He could have asked the officer if the arrest was made pursuant to a warrant, but he didn’t. [This isn’t surprising considering Herrera, but one of the Houston courts of appeals flirted with this understanding in a case called Telshow v. State. However, they eventually retreated from that holding.] The trial court did not make written findings or conclusions, so the CCA held that the trial court could have denied the motion to suppress on the basis of Young’s failure to discharge his burden at the motion to suppress hearing. In a later footnote, the Court alternatively holds that there was probable cause to arrest Young without a warrant. We’ll see which holding becomes dicta.

Motion to suppress evidence: Young also moved to suppress his socks and slippers. While the CCA noted that he again failed to establish that there was no warrant, the Court nevertheless held that even if there weren’t a warrant, the evidence was seized incident to a lawful arrest.

Autopsy photograph: The CCA held that the trial court properly admitted State’s Exhibit #10, an autopsy photograph used for identification of the victim. The picture showed the victim without his shirt and with an identification placard across his chest, partially covering the entry wound. The picture was relevant because the medical examiner used it to tie the victim to a particular case number, and it wasn’t particularly gruesome or detailed, so the danger of unfair prejudice did not substantially outweigh its probative value.

[C'mon! JUST SAY AUTOPSY PHOTOGRAPHS ARE ADMISSIBLE!]

Lesser-included charge of murder: The CCA held Young was not entitled to a jury instruction on murder. Young again argued that the Detective said the audio on the surveillance video was unintelligible. However, the CCA held that even without the audio, the video shows Young ordering the victim to the cash register at gunpoint, shooting the victim, going to the register himself, and then leaving. Given these facts, there was no evidence from which a rational jury could find Young guilty only of murder.

Extraneous offense at punishment: During punishment, the State introduced evidence that in 2004, Young saw “C-Smalls” drive by his house. Young became agitated, saying he was going to go get “C-Smalls”. Young then left his house with his brother and moments later, five or six shots rang out. Shell casings were later linked back to a gun Young was seen carrying shortly after the shooting. Young also admitted to shooting at C-Smalls, but claimed it was self-defense. This amounted to “clear proof” that Young had committed the offense. The offense was relevant to the issue of Young’s future dangerousness, and there wasn’t such a clear disparity between the degree of prejudice and probative value of the evidence that would render it inadmissible. Additionally, Young wasn’t entitled to a mistrial when one of the witnesses indicated that the gun was stolen. The statement didn’t suggest that Young had stolen the gun, and the trial court’s instruction to disregard cured the error.

Mitigation special issue instruction: Jurors were not told that they “need not agree on which evidence supports an affirmative finding” on the mitigation issue. However, Young failed to object to the jury charge, so Young was required to show the lack of the instruction egregiously harmed him. While the jurors were not given the requisite statutory instruction, they still unanimously agreed that there were no mitigating circumstances. Because no juror believed that there were mitigating circumstances, Young could not show he suffered egregious harm by the lack of an instruction letting the jury know they don’t have to agree on a particular circumstance. [Kind of a neat trick, that. Couldn’t it have also been that the jury answered there were no mitigating circumstances because they thought they were required to agree and they couldn’t?]

Judge Cochran concurred on this very point. In her estimation, Young had merely shown theoretical harm, rather than the actual harm he was required to show due to his failure to object. Here the instruction did not affirmatively require unanimous agreement, it just failed to tell the jury it did not have to agree. Moreover, the evidence of future dangerousness was great when compared to the paucity of the mitigation evidence. Judge Keasler concurred without an opinion regarding this point, but otherwise joined the majority opinion.

Judge Price dissented on the jury charge issue. Basically, noting the same thing I observed above, Price asserted that unanimity with respect to the ultimate answer did not guarantee that they unanimously rejected the mitigation evidence. Because he was not convinced that this theoretical harm did not ripen into actual harm, he dissented.

Judge Hervey did not participate. There was no underlying opinion because this was not a death penalty case.

Case Summary - Clark Dewayne Mays v. State

Mays sought to discuss the issue of “diminished capacity” with the jury during voir dire of his non-death capital murder trial. At a bench conference outside the presence of the jury, Mays indicated generally that his mental impairment evidence would still be admissible to negate the requisite culpable mental state even if there is no “diminished capacity” defense. The trial court indicated that it was not going to admit any such evidence. Mays entered a conditional plea of guilty seeking to appeal the blanket denial of any possible evidence without calling his mental health expert or making a proffer.

The majority held that Mays had failed to preserve error on his claim. While Mays did offer the slides he intended to display to the jury during voir dire, these slides did not approach a proper offer of proof. Mays had the opportunity to make the offer, but both he and the trial court were mistaken in their assumption that the slides adequately provided the substance of the excluded testimony. Consequently, Mays failed to preserve error.

Judge Holcomb dissented along with Judges Meyers and Johnson to opine that the trial court new very well from the proffered voir dire slides what evidence Mays intended to present. The dissent noted that Mays intended to present evidence from a mental health expert to testify that Mays’s schizophrenia prevented him from forming the requisite culpable mental state to commit capital murder. Consequently, the dissent would hold that Mays had preserved his complaint for appellate review.

You can read the underlying court of appeals published opinion here. And here’s a link to the court of appeals case information.

Case Summary - Garland Jerome Vennus v. State

An undercover officer stopped Vennus for a traffic violation because he believed that Vennus had drugs in his car. The officer also knew Vennus and had dealt with him before. Consequently, he placed him in the patrol car for “safety reasons”. Police called for the drug dogs, and they arrived 30 minutes to an hour later. Vennus filed a motion to suppress complaining that his temporary detention was not based upon reasonable suspicion. At the hearing on the motion to suppress, Vennus objected when the State sought to elicit testimony from the officer regarding the basis for his reasonable belief that Vennus had contraband in the car.

The trial court denied the motion to suppress. On appeal, Vennus argued that the State had failed to prove that the officer had specific articulable facts that would provide reasonable suspicion to detain Vennus. The court of appeals agreed and reversed in an unpublished opinion. [Here’s the court of appeals case info.] The court of appeals also rejected the State’s argument that Vennus had invited the error he complained about by objecting during the hearing to keep out the officer’s reasons for the detention.

The Court of Criminal Appeals held that Vennus had invited the error by presenting general, nonspecific, and meritless objections that prevented the State from developing testimony about the officer’s basis for believing he possessed contraband. [Is there such a thing as a specific general objection? And who do these defense attorneys think they are trying to keep the State from presenting evidence?] The objections were meritless because the rules of evidence don't apply to such hearings under Granados v. State. The majority also rejected the idea that the State had procedurally defaulted on the invited-error claim by failing to inform the trial court that the rules of evidence to apply to pre-trial hearings on motions to suppress and then making an offer of proof. The State won on appeal, so there was no requirement of an offer of proof. [Note: The State kind of got lucky here. This case goes the other way if it’s the State appealing the granting of the motion to suppress. Prosecutors should get in the habit of making an offer of proof in these circumstances.]

Judge Price concurred to express his reservations regarding the invited-error holding of the majority. Price would uphold the opinion on a theory that the evidence was collected under a valid search incident to arrest. [Presumably this concurrence went to press before Price was able to read Arizona v. Gant.] Price also took issue with the idea that the objections were general, nonspecific, and meritless. First, any objection would have merit if there are no rules of evidence, it’s only when the rules of evidence do apply that objections can be meritless. [Or, as we learned from The Incredibles, if everyone is special, then no one is.] Second, the prosecutor could have continued to try, in the face of these objections, to admit the evidence. Third, estoppel generally prevents a defendant from complaining about something that he asked the trial court to do or refrain from doing. Here, he’s not complaining about the objections, he’s complaining about the lack of evidence in the record. Judge Womack joined Price’s concurrence with regard to the search incident to arrest aspect, but not the criticism of applying invited error to the defendant’s objections.

Judge Meyers dissented to once again complain a la Sheppard that the State had used its magical powers of persuasion to convince the majority to expand the scope of its review. Meyers essentially argues that invited error does not turn an undeveloped record into a developed one. There wasn’t anything in the record to support the officer’s belief for the search. The fact that Vennus objected to keep that evidence out didn’t give the trial court a basis to uphold the search.

Case Summary - Emily Hardy & Hiram K. Myers v. State

This was an obstruction of a highway or other passageway case, though you have to get to page six to find that out. Furthermore, the court of appeals held that the evidence was legally insufficient to establish that the defendants had obstructed the highway or other passageway. Page nine. What fills the in-between pages are the details of Cindy Sheehan’s protests outside President Bush’s ranch in Crawford. Focus people. Focus.

Hardy and Myers participated in Cindy Sheehan’s eight month long anti-war demonstration outside of then-President Bush’s ranch. The protestors made efforts to cooperate with the protesters to make sure that no laws were being broken. At first they set up their tents on a triangle of land created by the intersection of three roads, but when neighbors complained, they moved to the shoulder of one of the roads. Because of the number of protestors, a neighboring property owner offered the use of some nearby land, and the majority of the protestors went there. According to the opinion there were no major accidents or arrests for obstructing the road way during August 2005.

McLennon County Commissioners issued an order to prevent the pitching of tents and placement of portable toilets on the “right of way” namely, the area between the fences and the county roads. This “right of way” would make the triangle property part of the prohibited area, but it was later revealed that the triangle was private property. The order provided for no penalty other than the removal of the tents. In an effort to challenge the constitutionality of the statute, Hardy and Myers set up tents in that “right of way”. Police went to the scene and gave them a notice to stay off this “right of way”.

Of course the protesters videotaped the arrest when it occurred later. A line of protestors had set up chairs and a person had parked a sedan on the side of the road, but off the pavement. These chairs and this sedan were closer to the road than Hardy and Myers’ tent. The officer stated as he arrested the protesters that he was arresting them for violation of the tent ordinance. A police captain testified that no one’s traffic on the three roads had been obstructed, and all the tents were off the paved area. Indeed, the captain testified that the protesters were obstructing the “right of way” not the paved street.

The court of appeals held the evidence was legally insufficient in a published opinion. The State argued that the defendants weren’t charged with obstruction, but rather the failure to comply with a reasonable request to move to prevent an obstruction. The court of appeals held that the prevented obstruction can’t be some remote possibility, but an actual obstruction or an immediately possible obstruction. [Here’s the court of appeals case info. Chief Justice Grey dissented without an opinion.]

In a 5-4 decision, the CCA upheld the court of appeals holding that the evidence was legally insufficient. Looking at Penal Code §42.03 as a matter of first impression, the CCA held that a possible obstruction must exist for the order for there to be an offense from the failure to comply with a reasonable request to move. The first part of the statute deals with actual obstruction, so the second part necessarily doesn’t have to deal with an actual obstruction. However, there must be a possible obstruction . . . because. It looks like the majority gets the requirement that there be a “potential” obstruction based on the idea the definition of “obstruction” refers to the obstruction of the road not the obstructed view of the protester. Obstruction means that the road is impassible or unreasonably inconvenient.

The majority gives the example of people in a parade refusing to get off the road. [Arguably, that would be an actual obstruction which would be handled by a different section, but it appears the majority regards obstruction from the subjective view of the motorist. If a tree falls in the forest and there’s no one around to hear it kind of thing. If there’s no traffic, there’s only potential obstruction, not actual obstruction.] Also, flashing a strobe might be an obstruction, but cavorting on a sidewalk as a gorilla might not be. [Except of course, that both have the same potential to distract the driver without the “obstruction” actually being on the road. I mean, your first reaction to unexpected light is to shield your eyes, but your first reaction to the inflatable gorilla on the top of the car dealership is to turn and buy a car, much to the consternation of the people in traffic behind you.] An order to move would be reasonable for people milling about on the side of the road, but not to Hardy and Myers who were told to stay on the bar ditch and did so.

Presiding Judge Keller dissented, along with Meyers, Keasler, and Hervey because the majority failed to view the evidence in a light most favorable to the trial court’s verdict. Officers testified that the roads were very narrow, barely enough room for two vehicles to pass, and if someone had to take evasive action, they might hit the people in the tents without the people knowing about it. Thus, having people pitching tents close to the roads rendered the passage unreasonably hazardous.

[One does have to wonder if this would’ve been a different result if this was a prosecution of vagrants for setting up tents on the side of the road. The fact that the majority seemed to spend an inordinate amount of the opinion setting up the details of the protests before ever getting to what the case was about did suggest to me that there may be something to the dissent’s argument that the majority wasn’t looking at the case in a light most favorable to the verdict. That said, by the dissent’s own reasoning, the hazard came from the potential for the vehicles on the roadway to harm those in the tents by actually leaving the roadway. Seems to me that that’s the opposite of obstructing a roadway. Still not safe, though.]

Case Summary - Nikolai Ivanov Karenev v. State

Karenev’s wife filed for divorce in 2004. In 2005, he sent her several e-mail messages, which led to the State prosecuting him for harassment. He was convicted. He complained for the first time on appeal that the harassment statute was unconstitutionally vague. The court of appeals held that Karenev had waived his constitutional challenge to how the statute was applied to him, but the court went on to consider his facial challenge to the constitutionality of the statute. [Here’s the court of appeals case info. And here are some links to the oral arguments, and my posting when the issue was granted.]

A five judge majority held that Karenev could not raise a facial challenge to the constitutionality of the statute for the first time on appeal. The majority notes that the trend in federal cases is to not consider facial challenges to statutes that are not raised in the trial court. Then, the majority goes on to note that the same trend appears in Texas as well. The development of the law regarding charging instruments and void judgments undercuts the notion that a facial challenge to a statute is a challenge to the jurisdiction of the court. Furthermore, the CCA has developed a “very nearly” exclusive list of situations that would render a judgment void that does not include a facially unconstitutional statute. While the Court had previously seemed to hold that a facial challenge to a statue could be made for the first time on appeal pursuant to Rabb v. State, that opinion treated the issue as if it were settled law without weighing the issue at all. Moreover, Rabb pre-dated Marin v. State, the Court’s watershed decision on error preservation. Consequently, the court of appeals erred in addressing Karenev’s facial challenge to the harassment statute.

Judge Cochran concurred, joined by Price, Womack, and Johnson, to agree with much of the majority’s opinion, but to disagree with the absolute conclusion that a defendant cannot raise a facial challenge to the statute for the first time on appeal. According to the concurring opinion, it is an absolute requirement that a person be criminally punished only for a violation of a valid penal law. Punishing someone because they failed to raise the challenge in the lower court is not “The American Way.” Moreover, the traditional rationale for requiring an objection in the trial court doesn’t really apply when the claim is that the statute is facially unconstitutional. “But, all’s well that ends well.” The concurring opinion noted that Karenev never made the facial challenge, so the court of appeals improperly considered it. That’s why they concurred.

[So, five judges hold that a defendant must object that a statute is facially unconstitutional, namely unconstitutional in every circumstance, in order to raise the issue on appeal. However, the four judge concurring opinion addresses some potential concerns that it might have with the majority’s opinion by throwing up its hands and saying that the defendant didn’t raise that particular complaint. If he can raise it at any time, according to the concurring opinion's reasoning, wouldn't that just bring us right back here in another year with an amended brief to raise the very challenge the concurring opinion said he has an absolute right to make? It does not seem worth the candle, because it would only change the concurring opinion into a dissenting one. Also, I've got to admit I'm a little clouded in my perception of this case because I was really hoping they'd address the concerns about the constitutionality of the statute and now we'll have to wait even longer for someone else to raise the challenge in te trial court to get an answer on whether this statute is unconstitutional.]

Today's Opinions - 4/15/09

As I described to a friend, this project is a little like trying to get all the dirt out of a hole while someone keeps pouring more dirt in. It's like as soon as I've dig/dug/duggen the hole deep enough, a prison guard comes along and tells me I've gotten dirt all over the Boss's yard. A lot of work to get my mind right.

So, with some relief, I note that the Court has issued no new published opinions and granted no new issues today. Here's a link to the hand down list if you're interested.

Namaste.

Issues Granted - 4/8/09

In addition to handing down a number of published and unpublished opinions, on April 8, 2009, the CCA granted discretionary review in the following cases:

PD-1494-08, Melanie Denise McFatridge v. State: The CCA granted the McFatridge's petition for discretionary review without oral argument in this Navarro County DWI case on the following issues:

1. How can I not be indigent when my income is only $550.00 a month.

2. How can I come up with $3,000.00 from old furniture that is not in sellable condition?

3. How can I acquire any money from the tract of land $6,670.00 when it is not in a sellable condition and that has a lien for child support in the amount of $5,834.00 against it.

For a summary of and links to the underlying case, click here.

PD-1569-08, Francis William Stringer v. State: The CCA granted Stringer's petition for discretionary review with oral argument in this Tarrant County possession of child pornography case on the following issue:

Whether the Court of Appeals erred in deciding that because the Appellant filed an application for probation, and relied upon the positive information in the PSI to urge the trial court to consider probation, he forfeited or is estopped from asserting his Sixth Amendment Confrontation Clause objection to testimonial statements in the PSI, and whether as a result of finding the claim forfeited the Court of Appeals wrongly rejected the argument that the Sixth Amendment Confrontation Clause was violated when the trial court in assessing punishment considered statements regarding an unadjudicated felony where those declarants were unavailable for cross examination and the Appellant had no prior opportunity to question them. (1 R.R. 6-8) (Presentence Report, p. 11)

For a summary of and links to the underlying case, click here.

PD-0307-09, Ronald Lee Wilson v. State: The CCA granted the State's petition for discretionary review with oral argument in this Bexar County murder on the following issue:

Did the Court of Appeals err in equating the use of deception in the creation of a document for interrogation purposes with a violation of Tex. Pen. Code 37.09?

For a summary of and links to the underlying case, click here.

Issue Granted - McFatridge v. State

The CCA granted the McFatridge's petition for discretionary review without oral argument in this Navarro County DWI case on the following issues:

1. How can I not be indigent when my income is only $550.00 a month.

2. How can I come up with $3,000.00 from old furniture that is not in sellable condition?

3. How can I acquire any money from the tract of land $6,670.00 when it is not in a sellable condition and that has a lien for child support in the amount of $5,834.00 against it.

Here, the court of appeals entered an order affirming the trial court's determination that McFatridge is not indigent. McFatridge filed an affidavit estimating her gross monthly income at $550 with expeses of $484 a month. However, she didn't list any assets. However, did have assets, and offered to sell her antiques to pay the court reporter the $3,000. There's also conflicting evidence regarding her ownership of a tract of land. The court of appeals held that the trial court did not abuse its discretion in denying the claim of indigence. Chief Justice Gray dissented to note that ownership of property does not equate to ability to make arrangements to pay for a reporter's record.

While it appears McFatridge's claims are going to be based on information outside the record, it does seem the majority is a little tone deaf on this issue. As per usual, Chief Justice Gray seems to read the equities well. He's clearly taking the position that the equities militate in favor of just giving the defendant the free record, particularly in these trying economic times. Personally, I'd give it to her, too. You've got to figure she's had a hard life with that last name. But who knows.

Here's a link to the underlying case info.

And here's a link back to the original page.

Issue Granted - Stringer v. State

The CCA granted Stringer's petition for discretionary review with oral argument in this Tarrant County possession of child pornography case on the following issue:

Whether the Court of Appeals erred in deciding that because the Appellant filed an application for probation, and relied upon the positive information in the PSI to urge the trial court to consider probation, he forfeited or is estopped from asserting his Sixth Amendment Confrontation Clause objection to testimonial statements in the PSI, and whether as a result of finding the claim forfeited the Court of Appeals wrongly rejected the argument that the Sixth Amendment Confrontation Clause was violated when the trial court in assessing punishment considered statements regarding an unadjudicated felony where those declarants were unavailable for cross examination and the Appellant had no prior opportunity to question them. (1 R.R. 6-8) (Presentence Report, p. 11)

Francis Stringer plead guilty to possession of child pornography and filed an application for probation. The trial court accepted the plea and ordered a presentence investigation report (PSI) be prepared. (There's no record of the plea hearing.) At the punishment hearing, Stringer specifically objected that four paragraphs of his felony criminal history violated the Confrontation Clause. However, he also relied upon the PSI to argue for probation, including a portion that referred to his sucessful completion of misdemeanor probation.

On original submission, the court of appeals held that Stringer's plea waiver had waived his right of confrontation, but the Court of Criminal Appeals reversed holding that that waiver only applied to guilt innocence, not punishment. On remand, the court of appeals held that the statements in the PSI were testimonial, but that Stringer's objection to the negative testimonial statements were forfeited or estopped for three reasons. First, he filed a sworn application for probation that falsely claimed he had never been convicted of a felony. This put his criminal history in issue. Analogizing to the situation where a defendant waives his Fifth Amendment by testifying, here Stringer waived his Sixth Amendment to confront witnesses by putting his criminal history in issue and relying upon the positive aspects of his past to argue for probation. Just as a defendant can't get on the stand and testify for his benefit and then assert the Fifth Amendment privilege on cross-examination, so too is he prevented from essenially using the same maneuver with the Sixth Amendment.

Second, Stringer accepted a benefit from the PSI in the form of not having to develop the favorable testimony contained therein. The PSI wasn't introduced in evidence, but the trial court still considered it. This relieved Stringer of his obligation to subpoena witnesses and put on testimony. And finally, Stringer did not challenge the factual accuracy of the PSI as the Code of Criminal Procedure allows him to.

[I have to say this is some really impressive appellate judo here. My first thought upon reading the issue was "Yikes!" But this may give the CCA an avenue to not throw the entire PSI procedure out the window through the use of estoppel. Plus, the recent decision in Del Carmen Hernandez holding that testimonial statements are admissible when not offered for the truth, my also help, in the sense that the felony history could be seen as impeachment of the defendant's own statement that he'd never been convicted of a felony. Or they could say, testimonial is testimonial. Whichever way the court goes, it's a very interesting issue by advocates that are clearly at the top of their respective games. (Charles Mallin, Debra Windsor for the State and David A. Pearson IV for the defense.) Here's the court of appeals case info if you're interested.]

Here's a link back to the original page.

Issue Granted - Wilson v. State

The CCA granted the State's petition for discretionary review with oral argument in this Bexar County murder on the following issue:

Did the Court of Appeals err in equating the use of deception in the creation of a document for interrogation purposes with a violation of Tex. Pen. Code 37.09?

The State charged Ronald Wilson with capital murder. The police officer who interrogated Wilson, manufactured a false forensic report that purported to show that Wilson's fingerprints were on the magazine of the firearm used in the murder. Initially Wilson denied involvement, but after he was shown the false report, he confessed to the murder, but claimed it was an accident. Wilson filed a motion to suppress arguing that the police had violated section 37.09 of the Penal Code, fabricating physical evidence. Therefore, police obtained evidence in violation of the law, and Article 38.23 should operate to exclude the statement.

The court of appeals agreed, and held that the statement was inadmissible in its published opinion. According to the court of appeals, it was undisputed that the detective knowingly fabricated evidence with the intent to affect the course of the investigation. Moreover, the court rejected the State's argument that there was no causal connection between the violation and the confession to murder. Everyone recognized that the false report had something to do with the investigation, even the trial court called it a turning point. Finally, the court of appeals also rejected the argument that the taint of the illegality was attenuated. Sure there was other incriminating evidence, but the officer repeatedly referred to the false report in the interrogation.

[This is a tough one. I imagine someone will throw in a reference to Martinez to draw an analogy between the false report and the failed lie detector test, but I don't think that's a good analogy. (So, maybe no one will reference it.) Obviously, it looks bad to have officers lying to get confessions, but this isn't the type of thing to render a false confession. Stil, the issue isn't voluntariness, it's the Fourth Amendment. (Another reason why Martinez should be inapplicable.) And if there's no danger of this opinion being expanded to false statements by police to suspects, then this decision may get affirmed. But what do I know, I haven't read all the underlying cases. Interesting issue to watch.]

Here's a link to the court of appeals case info.

And here's a link back to the main page.

Today's Opinion's - April 8, 2009

On april 8, 2009, the CCA issued opinions, here are the published ones:

AP-75,635, Joseph Gamboa v. State (Keller, P.J.)(7:3:0): The CCA affirmed this captial murder case, rejecting numerous complaints by the defendant including complaints about in-court identification, jury unanimity, juror disqualification issues, and familial outburts in the middle of trial. Click here for a more detailed summary.

AP-75,917, Ex parte Gene Wilford Hathorn, Jr. (Meyers, J.)(7:2:0): Here, the CCA reconsidered Hahtorn's Penry jury instruction issues on its own motion. Not surprisingly, the Court held that the pre-Penry II instructions failed to provide the jury with a vehicle to meaningfully consider the defendant's mitigation evidence apart from the issue of future danger. Click here for a more detailed summary.

PD-1411-07, Jose Luis Pena v. State (Keasler, J.)(5:4): The CCA held that the defendant failed to preserve his claim that the due course of law provision in the Texas Constitution provides greater protection than the federal due process clause even though he mentioned both provisions. Sure, he mentioned them, but he forgot to make the argument that the state provision provides more protection. Click here for a more detailed summary.

PD-0860-07, Deresky Lashawn Hayden v. State (Keasler, J.)(8:1:0): The CCA upheld the exclusion of evidence at punishment that the victim in this murder case was a registered sex offender because it called upon the jury to compare the worth of the victim to other members of society. [Kudos to Jessica Caird of Houston!] Click here for a more detailed summary.

PD-0922-07, Don Terrell v. State (Keasler, J.)(6:3): Here, the police lost the tapes of Terrell's interrogation and confession. The Court remanded the case for consideration of whether Terrell preserved his complaint based upon the due course of law provision of the Texas Constitution in light of the decision in Pena. Click here for a more detailed summary.

PD-0786-08, Murray Hammer v. State (Cochran, J.)(9:0): Here, the Court held that the victim's prior false accusations of sexual assault were admissible to show her animosity towards her father in this indecency with a child case. Click here for a more detailed summary.

Case Summary - Joseph Gamboa v. State

Joseph Gamboa and Jose Najera entered a San Antonio bar. Neither man was known to the employer, Ramiro “Ram” Ayala, or his staff, Denise Koger and Douglas Morgan. Patrons Paul Mata and Ashley Casas arrived; they purchased a couple of beers and began a game of pool. Shortly afterwards, Gamboa struck up a game of pool with Paul. At some point during the pool game, Gamboa approached the owner, Ram, and began to argue. Gamboa then put a gun to the owner’s stomach and shot him. Paul and Ashley hid in a nearby closet. Douglas and Denise hid behind the bar, only to be confronted later by Gamboa. Gamboa told Douglas to open the cash register, but he was unable to do so. Gamboa then shot him and had Kroger open the cash register. After she retrieved the money, Gamboa demanded any money that was not kept in the register. While Kroger was complying, Gamboa shot her in the back and commenced kicking her in the head. He then picked up Douglas and shot him again.

Shortly afterwards, Gamboa and Najera left the bar. Denise was able to telephone 911 for help while Paul attempted to render aid to the owner and assist Denise with the phone call. The owner died that same night; Douglas lived for three more weeks before succumbing to his injuries. Paul identified Gamboa in a photo lineup; Kroger did not identify him, but said he and Najera looked familiar. Fingerprints on the pool cue matched Gamboa, and DNA on one of the beer bottles excluded Najera, but not Gamboa.

The Court of Criminal Appeals affirmed the conviction. [Here's the case info if you're interested.] Gamboa raised numerous issues that I’ll try to break down into subject matter groupings:

Factual sufficiency: The Court held the evidence was factually sufficient despite claims that the witnesses who testified seeing Gamboa shoot Ram and never positively identified him prior to court and that another patron of the bar testified that Gamboa left before her. However, Pauls and Kroger’s identification of the defendant were corroborated by Gamboa’s fingerprints on the pool cue, and the DNA evidence from the beer can. Even though Kroger could not identify Gamboa while she was in the hospital, afterwards she was able to do so when she was off medication. The evidence was not so weak or so against the great weight and preponderance of the evidence so as to make the jury’s verdict clearly wrong or manifestly unjust.

Jury selection: After jury selection, but prior to the jury being sworn, the trial court found out that one of the jurors had picked up a DWI. Even though both the State and the defense had no problem with him being on the jury, the trial court sua sponte dismissed the juror out of fear that the State’s influence upon him would influence him. Gamboa objected, and argued that the exclusion of the qualified juror was immune to a harmless error analysis under Gray v. Mississippi. Well played, sir. Well played. But the Court held that it was subject to a harmless error analysis because Gray’s language is too sweeping and should only apply in the context of the erroneous exclusion of a qualified juror that can’t impose the death penalty based on conscientious objection. Because there was no evidence that the seated jurors acted impartially, Gamboa was not harmed.

Family Outburst During Trial: During testimony from one of the State’s witnesses, a family member shouted, “You did this for $200?” and a mistrial and instruction to disregard followed after. The instruction to disregard cured the error, and the trial court did not abuse its discretion in denying the mistrial.

Extraneous Offense Evidence: Testimony came out that the witness, Paul, had broken down after identifying Gamboa in the photospread. Paul stated that he’d seen Gamboa’s picture on the news for an unrelated shooting that occurred the weekend after this crime. The trial court’s instruction to disregard (after Gamboa’s objection) cured any error (assuming it was improper).

In-Court Identification: Again, the testimony from the witness that he was identifying the defendant based upon his memory of events and not from the pre-trial identification procedures saves the day. Here, Paul was shown three pre-trial photo spreads. The first did not contain Gamboa, but it did contain a different suspect. Paul did not identify anyone from that lineup. The second, Paul was able to narrow it down to two people, one of which was Gamboa. The third was the result of a law enforcement mistake. It was the same as the second, but in color. The trial court suppressed that one. Though Paul was initially tentative, he later saw Gamboa’s picture on a Crime Stoppers commercial and called the hotline. He also testified that he played pool with Gamboa for ten minutes. This was enough to remove any possible taint from the third lineup.

Jury Unanimity: The indictment charged Gamboa with committing capital murder as you’d expect. One paragraph alleged killing Ram in the course of a robbery, and another alleged killing more than one person in the same criminal transaction. The Court held that as long as the same predicate murder is alleged, then the different aggravating elements are just multiple ways of committing the same offense. [This seems to jive pretty well with the other recent capital murder case on this issue, Luna v. State, where the alternating paragraphs alleged murder in the course of three different felonies. See my summary here. It’s also consistent with the Landrian v. State opinion applying the same logic to aggravated assault with the alternating “aggravating elements” were “causing serious bodily injury” and “using a deadly weapon”. See my summary here.]

Juror “conversation” with unauthorized person: With regard to one juror, he overheard a conversation between a prosecutor not involved in the case and police officer while riding the elevator. The juror told the two to be quiet after the officer asked the prosecutor discussed that it had taken four hours for the jury to reach the verdict on guilt. The trial court asked multiple times whether the juror could disregard the conversation, and he said he would. And he never heard anything else relating to the case. Although there is a rebuttable presumption of injury where a juror has conversed with an unauthorized person about a case upon which he is serving, here the juror was not part of the conversation. The trial court’s denial of the motion for mistrial was proper.

Another juror’s son got arrested after the guilt phase, but before punishment: The juror indicated she could continue to be impartial because she knew her son was running with a bad crowd, and she intended to leave him in jail to teach him a lesson. She repeatedly said she had no problem being fair and impartial and that her son’s arrest would not influence her decision in any way. The trial court’s denial of the motion for mistrial in this instance was also proper.

Standard Death Penalty Challenges: The Court also considered and rejected the various challenges to the death penalty scheme that had been considered and rejected in previous cases. Additionally, the Court held that the challenge to the lethal injection protocol was not ripe because the execution date had not been set.

My favorite part of the opinion: Gamboa argued that the cumulative total of his first seven points of error merited reversal (the ID issues, sufficiency, outbursts, extraneous offense evidence, and jury unanimity). The Court replied simply, “we have never found that ‘non-errors may in their cumulative effect cause error’.”
Judge Cochran joined, but merely concurred on the in-court identification issue. [Does this mean she doesn’t even think the pre-trial line-up was suggestive?] Judges Womack and Johnson merely concurred, so who knows what that means. None of these judges authored opinions in this case. This is a death penalty case so there’s no underlying court of appeals opinion.