Oral Arguments - 5/6/09

On May 6, 2009, the Court of Criminal Appeals heard oral argument in the following cases:

PD-0946-08, Ricky Tapps v. State, an unlawful possession of a firearm by a felon case out of Travis County:

Appellant's opening - Viktor Olavson
State's response - Georgette Hogarth
Appellant's rebuttal

Tapps argued that he couldn't be convicted of felon in possession of a firearm because he only had a prior convictin for a state jail felony rather than a real felony. The Austin Court of Appeals held that all the State had to prove for the felon in possession statute was that Tapps was generally a felon and the state jail felony conviction means he's a felon. Here's a link to the underlying opinion. Here's a link to my post when oral argument was granted.

PD-1661-08, PD-1662-08, Eduardo Guerrero v. State, a delivery/possession of a controlled substance case otu of Bexar County:

State's opening - Charles F. Campbell (SPA)
Appellant's response - Michael D. Robbins
State's response

Guerrero was charged with possession of methamphetamine and possession of methamphetamine with intent to deliver and manufacture of methamphetamine all occuring on the same day. The court of appeals held that Guerrero could not be convicted of of all three offenses based on double jeopardy. The State agreed to vacate the simple possession case as a lesser-included, but the court of appeals held that the possesion with intent to deliver should also be vacated as it was all part of the same drug transaction. The State Prosecuting Attorney's Office petitioned the Court of Criminal Appeals for discretionary review and this argument followed. Here's a link to the underlying court of criminal appeals case. And here's a link to my post when oral argument was granted, such as it is.

PD-1780-08, Pamela Shareka Langham v. State, a possession of cocaine case out of Taylor County:

Appellant's opening - Stan Brown
State's response - Patricia K. Dyer
Appellant's rebuttal

Police got information that a particular residence was a drug house. They got a search warrant for the residence and found Langham in the residence along with cocaine and several other folks. At trial, the detective testified that a confidential informant had told him the people in the residence were running a crack distribution center. The court of appeals held that these statements were non-testimonial. Here's a link to the underlying opinion. Here's a link to my post when oral argument was granted.

No New Opinons - 5/27/09

It doesn't appear that there were any opinions handed down or issues granted today.

No Second Crawford For You To Burn

The news is all agog at SCOTUS's recent overruling of Michigan v. Jackson. The case that does this is, as you might expect, authoried by Justice Scalia, and is called Montejo v. Louisiana. Some prosecutors, including myself, are happy with the result.

But frankly, I'm getting a little tired of Scalia the bomb thrower.

He did this to everyone in Crawford v. Washington. We'd all gotten used to the Ohio v. Roberts analysis of Confrontation Clause challenges. Then he puts together a majority, says we're supposed to look at whether statements are testimonial, and then conveniently forgets to tell us what that means. Same thing with D.C. v. Heller. Yes, the Second Amendment is an individual right, but I'll leave it up to you guys to figure out which laws are still good.

Look, it's consistent with his view of what the high court is supposed to do. They figure out the constitutional principles and leave it up to us peons to fight it all out. Maybe, at long last, that's the real reason I like the CCA. They are in more of a position to respond to these kinds of questions with answers. Scalia thinks SCOTUS opinions are supposed to be like the last five minutes of every episode of Lost. It's starting to drive me nuts.

So, here we are with Montejo v. Louisiana where the Court has said a defendant who invokes his Sixth Amendment right to counsel and even gets an attorney appointed (though he doesn't have a chance to talk to him) can still waive his right to an attorney and talk to the police. Of course, the Court doesn't tell us if the waiver was valid, they just say it's not automatically invalid.

And that's it.

It could still be involuntary. We don't know. And while we ponder this, what are we supposed to look at to determine if it's involuntary? The remand was for consideration of whether police misrepresented anything about the appointment to the defendant before securing his waiver. Does that mean we don't care about the invocation facts? Montejo just sort of acquiesced to having counsel appointed at his magistration. What if he'd jumped up and down on the table and demanded an attorney and told the judge he didn't want to talk to anyone without an attorney? Is that something that should be considered?

Does it matter than he'd never spoken to counsel? I'm inclined to think that it does because in Brewer police had agreed with a defendant's attorney not to talk to the defendant, but they did anyway. There's no indication that that law is now bad. And that behavior seems to be the type of behavior that the exclusionary rule has a hope of curbing (assuming you believe the exclusionary rule is effective). So, yeah, I think it makes a difference that police in Montejo didn't interfere with an existing relationship. But the majority did say they weren't drawing a distinction between a represented defendant and an unrepresented one.

And does this mean police can only ask a defendant

Issues Granted - 5/20/09

On May 20, 2009, the CCA granted review in the the following three cases:

PD-1805-08, Joseph Denver Smith v. State: The CCA granted the defendant's petition for discretionary review with oral argument in this indecent exposure case out of Harris County on the following issue:

The First Court of Appeals erred by finding that the Information alleged with reasonable certainty, the acts relied upon to constitute recklessness.

On the Court's website they swapped Smith's points of error wih those of Hobbs. I've corrected it on this site, I'm sure the CCA will too. Here's a link to the underlying opinion and a link to the underlying case info. Here's a link to my summary of the underlying case.

PD-0319-09, Eric Charles Hobbs v. State: The CCA granted the defendant's petition for discretionary review without oral argument in this aggravated assault case out of Dallas County on the following issue:

1. Did the trial court violate Appellant’s constitutional and statutory right to a jury trial by denying Appellant’s request to withdraw his jury waiver.

2. Did the trial court abuse its discretion when it failed to hold a hearing on the motion for new trial which alleged matters that were not determinable from the record?

As noted above, the CCA got the points of error transposed on their website. I've corrected it here, I'm sure they'll fix it, too. Here's a link to the underlying opinion. Here's a link to the underlying case info. Here's a link to my summary of the underlying case.

PD-0381-09, Ex parte David Garza: The CCA granted the State's petition for discretionary review with oral argument in this DWI case out of Harris County on the following issues:

1. The First Court of Appeals erred in holding a jury of five was a mandatory alternative to mistrial when the United States Supreme Court has found a jury of five members unconstitutional.

2. The Court of Appeals erred in finding the record suggests the State and Appellant were willing to proceed with five jurors.

Here's a link to the underlying opinion. Here's a link to the underlying case info. Here's a link to my summary of the underlying case.

Issues Granted - Joseph Denver Smith v. State

The CCA granted the Smith's petition for discretionary review with oral argument in this indecent exposure case out of Harris County on the following issues:

The First Court of Appeals erred by finding that the Information alleged with reasonable certainty, the acts relied upon to constitute recklessness.

Joseph Smith was charged with indecent exposure for "recklessly" masturbating in front of an undercover officer at Houston's Memorial Park. [Rest stops are the bath houses of the 90s.] The information alleges that he exposed his penis and masturbated, but didn't tell how he was reckless as to another person being offended, according to Smith. The court of appeals rejected this argument because the information alleged that Smith exposed his penis and that he was reckless that another person was present who would be offended and alarmed by the act. In other words, "it is what it is." If this Belichick cliche is going to apply to a crime, masturbating in public would have to be the one. And not to get too meta here, but isn't this opinion kind of its own appellate onanism? Or Conanism. Two snakes joined at the tail. FACING EACH OTHER!

Ah, forget it.

Here's a link to the CCA case info. Here's a link to the underlying opinion and a link to the underlying case info.

Issues Granted - Eric Charles Hobbs v. State

The CCA granted the Hobbs' petition for discretionary review without oral argument in this aggravated assault case out of Dallas County on the following issue:

1. Did the trial court violate Appellant’s constitutional and statutory right to a jury trial by denying Appellant’s request to withdraw his jury waiver.

2. Did the trial court abuse its discretion when it failed to hold a hearing on the motion for new trial which alleged matters that were not determinable from the record?

As noted above, the CCA got the points of error transposed on their website. I've corrected it here, I'm sure they'll fix it, too.

Hobbs had originally filed a jury waiver and asked for a bench trial. However, on the day of trial, his attorney filed a motion for continuance and requested to withdraw his waiver because he had just been surprised with notes from the prosecutor about some recorded conversations the prosecutor intended to use at trial. The conversations dealt with Hobbs's attempts to make witnesses not show up at a bond hearing or not cooperate with the DA's office. [In other words, not exculpatory.] The trial court denied the continuance and allowed the State call the witness that day, but the court also agreed to reset the case for two weeks to allow the defense time to review the notes and recordings. The trial court did not allow Hobbs to withdraw the waiver because he knew about the recordings when he signed the jury waiver, he just didn't tell trial counsel. After he was convicted, Hobbs filed a motion for new trial alleging that his waiver wasn't knowing or voluntary and he should've been allowed to withdraw it. In his affidavit, Hobbs said he was illiterate and did not understand the waiver. When it was explained to him he immediately asked that the waiver be rescinded. The trial court denied the motion without a hearing.

The court of appeals held that there was an indication that the State might be prejudiced by allowing Hobbs to withdraw his waiver. There was some indication that Hobbs had tried to tamper with the witness that the State called that day. Delaying for a jury trial might have provided an opportunity for the defendant to influence the witness. Thus, the trial court did not abuse its discretion in not allowing the defendant to withdraw his waiver. The court of appeals also held that the trial court did not err in denying Hobbs a hearing on his motion for new trial. Had his claim just been that he was illiterate, he might have deserved a hearing, according to the court of appeals. However, in the motion Hobbs indicated that he signed the waiver in February, but he insisted that the waiver be withdrawn at some other meeting between the signing and the trial. The waiver was filed on April 26. At no time did Hobbs indicate on the day of trial that he was expecting a jury trial or that he had asked that the waiver been withdrawn. The court of appeals tethers this holding to Klapesky v. State, 256 S.W.3d 442 (Tex. App.--Austin 2008, pet. ref'd.) on the theory that Hobbs' affidavit did not refute the evidence in the record.

[I don't really have a problem with the waiver holding, but the motion for new trial part makes me a little nervous. Sure, the court of appeals is reasonable in thinking that the defendant was lying in his affidavit, but taking Hobbs' claims at face value I can see how a hearing should've been done. That's what makes me nervous for the State about the granting without oral argument. The CCA may want a more developed record to really show this dude was lying, and that means hearing on a motion for new trial.]

Here's a link to the CCA case info. Here's a a link to the court of appeals case info. And here's the missing link because that's how I roll.

Issue Granted - Ex parte David Garza

The CCA granted the State's petition for discretionary review with oral argument in this DWI case out of Harris County on the following issues:

1. The First Court of Appeals erred in holding a jury of five was a mandatory alternative to mistrial when the United States Supreme Court has found a jury of five members unconstitutional.

2. The Court of Appeals erred in finding the record suggests the State and Appellant were willing to proceed with five jurors.

This is a misdemeanor DWI case. The State and defense picked a jury, but the case was recessed for the night. The next morning, before any evidence was presented, the trial court found out that one of the jurors had had a cardiac event. The case was reset for a couple of days. When the case was reconvened, the trial court discovered that the juror was still in the hospital because his doctor would not release him until after the juror had taken a stress test. The earliest he could do that was Tuesday of the next week. The State moved for mistrial, but the defendant objected (sensing the upcoming "manifest necessity" argument).

The trial court initially reset the case for six more days without ruling on the mistrial. However, the court met with the attorneys later that day to discuss what to do. Three jurors could remain available for trial, but one of them would be unavailable on two days the following week for a business trip. The deputy left messages for the two remaining jurors, but was unable to reach them.

The State withdrew its motion for mistrial. The trial court sua sponte granted a mistrial. In response to the mistrial, defense counsel objected that this was a one day trial and requested a short recess of a week or two. He also expressed the defendant's willingness to proceed with five jurors. Nothing doing. The mistrial was granted, and when the State sought to retry Garza, he filed a pretrial writ of habeas corpus claiming that retrial violated double jeopardy. The trial court denied relief, and Garza appealed.

The court of appeals reversed. While the Code of Criminal Procedure doesn't address how to proceed when a juror becomes disabled in a misdemeanor case, the court of appeals noted that misdemeanor trials should be treated similarly to felony trials. Additionally, a defendant can waive his right to a jury, so he should be able to waive his right to a jury of six in a misdemeanor case. Because they could've proceeded with less than six jurors, the mistrial was not a "manifest necessity" and the double jeopardy clause barred retrial.

The court of appeals also issued an updated opinion that addressed the State's claim in the petition for discretionary review that the constitutional minimum number of jurors is six. The court distinguished Ballew v. Georgia because that interpreted a statute that always set the number of jurors at five even over the objection of the defendant. Here, the defendant was willing to proceed with less, and that isn't a constitutional violation, according to the court of appeals.

[Ah, but does it change the "manifest necessity" calculus? Also, this isn't a situation where we're talking about missing one juror, it looked like there might be an absence of two. If you add in the lack of contact with the other two jurors, the trial court may have reasonably regarded this as having gone from a six person jury to a two person jury. Perhaps this is one of those rare, extreme circumstances where a mistrial would've been proper. The trial court wasn't being unreasonable here, he was trying to engage in one of the stickiest parts of the judicial job, scheduling. I think the CCA might be kind of sympathetic to that. Don't get me wrong, before the State brought up Ballew, I thought they were screwed. They let that capital murderer go free on just this same argument. But with a collapsing jury in this case, the trial court clearly making an effort to keep this jury alive, and Supreme Court case (and a CCP statute) saying misdemeanors need six jurors, I'm not so sure any more. Good work on the State's part.]

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

Today's Opinions - 5/20/09

The CCA handed down a number of orders, but no new published opinions. They also granted discretionary review in three cases, but that's for another post.

Oral Arguments - 4/1/09

Okay, I'm sorry it's taken so long. I generally try to get this done within a month of oral argument, but what can I say, I'm a lazy slack ass. On April 1, 2009, the Court of Criminal Appeals heard oral argument in the following cases:

AP-76,034, Ex parte Bobby Wayne Woods, a capital murder habeas corpus case out of Hood County:

Applicant's opening - Maurie Levin
State's response - Ellen Stewart-Klein
Applicant's rebuttal

This is a subsequent writ of habeas corpus in a capital murder case where the defendant is again alleging that he is ineligible for execution because he is mentally retarded. Because it's a writ, there's no underlying case to link to, so the oral argument audio will just have to do. [Note: This is another mental retardation case where the defendant managed to work in the service industry, in this case, the Waffle House. Seems about as reliable as anything else. I'm just saying.]

PD-1097-08, Christopher Irby v. State, a sexual assault case out of Dallas County:

Appellant's opening - Katherine A. Drew
State's response - Christine Womble
Appellant's rebuttal

If you recall, this case centered around the claim that the defense should have been allowed to cross-examine the victim about his deferred adjudication for aggravated assault. Here's a link to the summary when the petition for discretionary review was granted. [What a relief, I'm finally getting to the point where I can link to myself for summaries when the issue was granted. As Howard Jones says, things can only get better.]

Issues Granted - 5/13/09

On May 13, 2009, the Court did not grant any new issues on discretionary review.

Yesterday's Opinions - 5/13/09

Yesterday the Court handed down one published opinion in the following case:

PD-1616-07, Edward Esparza v. State: A unanimous CCA reversed the denial of DNA testing in an aggravated sexual assault case. Just because the victim stated that she'd had sex two days before the crime doesn't mean that a DNA result attributed to an unknown third party would be dismissed as the unrelated consensual sexual encounter. Click here for a more detailed summary.

Case Summary - Edward Esparza v. State

Guadalupe Rios and her aunt, Hermina Lucero drove from their hometown in Bryan to a club in Houston. Lucero danced with Edward Esparza several times at the club. When Lucero and Rios went to leave, they discovered that Rios's car had been towed. Esparza offered to take the two women to the impound lot. When they got there, Rios and Lucero discovered that they didn't have enough money to get the car out of the lot. They accepted a ride home from Esparza and declined an offer of a ride from Rios's sisters' boyfriend who had also driven to the impound lot.

On the ride back to Bryan, Esparza started to become indecisive about the direction he was going, cutting across lanes and changing directions. This made Lucero, who was sitting in the front seat, nervous. At one bathroom stop, Esparza directed Lucero to come closer, grabbed her neck, and tried to kiss her. When she resisted, Esparza drove off to the middle of nowhere, and pulled Lucero out of the car. He threatened to kill her. He pulled Rios out of the car by her hair. He forced the two women on their knees and slammed their heads together. When he forced them back into the car, Lucero escaped.

Rios was not so lucky. Esparza drove away with Rios and forced her to have oral and vaginal intercourse with him. When it was over, Esparza soaked a bandanna in some Coke and told Rios to clean herself well. Rios complied, but did not do it as Esparza had directed. Esparza then drove back to Houston and dropped Rios off. He gave her change so she could call someone, but warned her about calling the police after studying her driver's license to memorize the address. Lucero later identified Esparza by giving the police the card he had given her at the club. Rios was taken to the hospital where a nurse compiled a rape kit and collected biological specimens. However, the semen found on the swab was inconclusive.

Rios could not identify Esparza as her attacker. Lucero identified him in a photo line up, though she was hesitant because he had facial hair when she met him. At trial she had no doubts. Rios's sister who had been at the club with her boyfriend and driven to the impound lot with Esparza and the two women, identified Esparza as the man who left the club with Lucero. Esparza presented an alibi defense with family members and acquaintances testifying that Esparza was with them at an impromptu family gathering when the offense occurred. He also requested more time to call a nurse from the Harris County Medical Examiner's Office to testify and bring the rape kit. The trial court gave additional time, but ultimately the nurse was never called. A jury found Esparza guilty of aggravated sexual assault and sentenced him to life in prison.

Esparza filed a pro se motion for DNA testing under Chapter 64. The State opposed the motion because Rios had had sex a day or two before she was assaulted. The State argued that because the victim had had sex, if Esparza's DNA wasn't found or if a third party's DNA was found, then the seemingly favorable results would not be exculpatory. Any DNA not contributed by Esparza could be attributed to the person Rios had had sex with prior to the offense. [And, presumably, any lack of Esparza's DNA could be explained by the Coke incident.] The trial court denied the motion on teh grounds that Esparza had failed to show by a preponderance of the evidence that he would not have been convicted had testing been done because DNA testing indicating that Esparza didn't contribute to the biological matter because Rios had had sex prior to the offense.

The court of appeals affirmed for two reasons. First, the presence of DNA evidence not belonging to Esparza would not necessarily be exculpatory. Second, there was sufficient evidence apart from the DNA establishing that Esparza had assaulted Rios. Justice Bland dissented because the statute requires courts in deciding whether testing should be done to assume that testing would yield exculpatory results. According to the dissent, the fact that the victim had had sex prior to the offense only raised the possibility that the test results would not be favorable, but that is not enough to deny testing. The dissent felt that the assertion of prior sexual relations was too remote to render testing in this case would carry no evidentiary value. Here's a link to the court of appeals case information.

A unanimous Court of Criminal Appeals reversed the court of appeals. As in Smith v. State, just because the victim had had sex a day or two before the assault did not mean that results couldn't be exculpatory. The consensual sex partner deposited semen, and nothing in the record established that he had. Moreover, there was no scientific evidence in the record establishing that semen from two days ago would still be there. [72 hours dude, weren't you ever a teenager? But the point about the record is certainly valid.] Finally, there was nothing about whether she had douched after that sexual encounter. [Yes, he went there. Douching? Really? Though that does sound a lot like Justice Bland's reading of the statute that we presume the results would be exculpatory for purposes of deciding whether to order testing. The State has to disprove all this stuff, or prove up the prior sexual encounter to show that the results wouldn't be exculpatory.]

Secondly, consistent with the Court's unanimous decision in Blacklock v. State (big ups to his buddy Hervey), the existence of sufficient evidence of guilt besides DNA evidence is irrelevant to analysis of whether or not DNA testing should be done. Here, the existence of other evidence to establish guilt was irrelevant to the determination of whether DNA testing should be done. Here's a link to the CCA case info, if you're interested.

[With all these unanimous opinions ordering DNA testing, it's a wonder the Court hasn't blown a gasket when faced with yet another denial of DNA testing. Of course, with the current political climate, Esparza probably had the Court at blood and semen, but the court of appeals didn't have the benefit of Blacklock at the time they rendered its opinion, and given the holdings of both Blacklock and Smith, this isn't that surprising of an outcome. And here, I thought the CCA didn't care about innocence with a big "I". And on a totally unrelated note, for the two of you that read the word "douche" and immediately thought of The Manfred Mann's Earth Band song "Blinded By The Light", he's actually saying "revved up like a deuce" not "wrapped up like a douche". It was written by Bruce Springsteen, and he likes cars, not feminine hygeine products.]

Issues Granted - 5/6/09

The Court granted review in one case on numerous issues:

PD-0401-09, Ex parte Amber Lovill: The CCA granted the State's petition for discretionary review with oral argument in this forgery case out of Nueces County on the following seven issues:

1. Was the Court of Appeals correct in effectively interpreting Young to mean that any error that contributed to the inception or continuation of the criminal proceeding before a plea of true was entered is preserved?

2. Alternately, does the Young rule apply to a collateral attack raising errors that occurred before an open guilty plea was entered, or does collateral review fall back on stricter standards of waiver?

3.When the factual basis for a selective prosecution claim has become apparent, must the defendant raise his specific constitutional claim at that time in order to avoid waiver?

4. Whether in an appeal from the trial court's denial of an 11.072 application for writ of habeas corpus the appellate court may disregard the trial court's findings when it concludes that there is "overwhelming evidence" to the contrary?

5. Whether a probation officer's consideration of the effects of a probationer's pregnancy on her own health and that of her unborn child, in connection with the decision to submit a violation report, amounts to gender discrimination under the Equal Protection Clause?

6. Whether the health of an unborn child is an important and even compelling state interest which justifies the State in treating a pregnant probationer differently than it would a probationer who is not pregnant?

7. Whether one who raises a claim of selective prosecution/discriminatory enforcement must show that the discriminatory action actually caused some harm?

Here, Lovill brought a selective prosecution based on gender claim because, according to her, the State sought to revoke her probation and place her in a drug-treatment facility because she was using drugs during her pregnancy. She'd been charged with forgery for writing bad checks, and placed on probation. The State filed one motion to revoke alleging that she was using amphetamine during probation, she'd failed to report, she'd failed to pay costs, and she'd failed to go for a substance abuse screening. Pursuant to a plea bargain, she plead true to some allegations and her probation was modified.

Later, the State filed a second motion to revoke alleging another positive test for drugs, failure to report, and failure to pay various costs. She admitted the violations and the court accepted her pleas of true. Her probation officer recommended SAFPF (in patient drug treatement), but she wanted out-patient. The probation officer also admitted on cross-examination that the probation department was seeking to revoke because she was pregnant. The trial court modified her probation and sent her to SAFPF. Lovill filed a motion for new trial alleging selective prosecution. At the hearing, probation officers admitted that Lovill's pregnancy played a part in the determination to seek revocation. The trial court denied the motion, and Lovill appealed that order. Lovill also filed a writ of habeas corpus seeking relief from the trial court's order increasing the term of probation.

On appeal, the State argued, based on Young v. State, that Lovill's plea of true waived any non-jurisdictional defects. The court of appeals rejected this argument (in a published opinion) because the State failed to show that the plea of true was independent of the error, the selective prosecution. The State also argued that Lovill had failed to raise the selective prosecution argument until the motion for new trial. The court of appeals disagreed, noting that Lovill's counsel repeatedly argued at the revocation hearing that Lovill was only being prosecuted because Lovill was pregnant. Also, selective prosecution claim can be raised at numerous different points during a criminal proceeding. Finally, the court of appeals reversed the trial court because Lovill had carried her burden to show selective prosecution. The court of appeals held that Lovill had shown discriminatory purpose on the part of the State. The State's witnesses testified that they were not willing to work with Lovill because she was pregnant and that her pregnancy contributed to the decision to revoke. While the court also notes that Lovill was required to show that a similarly situated person outside the protected class was not prosecuted, there's no discussion in the case on what evidence established that. Also, the court held that the record was undeveloped on whether the discrimintion was justified, so the court reversed and remanded for a new hearing to further flesh out Lovill's Equal Protection claim.

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

Today's Opinions - 5/6/09

The Court handed down a few published opinions today in the following cases:

AP-75,749, Demetrius Dewayne Smith v. State: The CCA affirmed Smith's capital murder conviction over numerous complaints, such as an amendment to the indictment prior to trial, the granting of challanges for cause against multiple jurors, and the inclusion of testimonial disciplinary reports in two pen packets in violation of Crawford. Click here for a more detailed summary.

PD-0294-08, Ex parte Frank Eugene Watson: The CCA held that the inclusion of the phrase "failure to yield right of way" as a manner of committing intoxication assault did not make the traffic offense of failure to yield the right of way a lesser-included offense of intoxication assault. The manner and means of committing an offense do not "modify the pleadings" such that they become elements of the greater offense under a Hall v. State analysis. Click here for a more detailed summary.

PD-0758-08, Randy Deshawn Collier v. State: The CCA dismissed the petition for discretionary review as improvidently granted in this tampering with evidence case. For an only slightly more detailed summary, click here.

Case Summary - Demetrius Dewayne Smith v. State

Demetrius Smith had been dating Tammie White, a mother of three. However, after they broke up, he called her and threatened her life. He called her and told her “You think I’m playing with you bitch? You’re going to die today.” Later, White was at her home with her eleven-year-old daughter, Kristina who was playing with her friends. Smith forced his way into the residence, shot White in the chest, neck, and head at close range. Kristina had followed Smith inside. She picked up a kitchen knife, presumably for protection, and ran back outside to warn the other children shortly after Smith shot her mother. Then, she ran around a car, dropped the knife, and curled up in a ball for protection. Smith found her and shot her twice, once in the top of the head, before leaving to go find Tamara, Kristina’s fourteen-year-old sister who was not at home at the time.

A jury convicted Smith of capital murder for killing more than one person in the same criminal transaction and sentenced him to death. On appeal he raised twenty-six issues, several of which were non-issues. The Court of Criminal Appeals affirmed. As per my usual practice, I’ll break them down into subject groups.

Motion to Quash/Objection to Amendment of the Indictment – Smith complained that the trial court should’ve granted his motion to quash the indictment or sustained his objection to the State’s inclusion of the phrase “during the same criminal transaction” in the indictment before jury selection. According to Smith this changed two separate counts of murder into one count of capital murder and therefore violated Article 28.10 and his right to a grand jury indictment. The CCA held that Smith was not harmed because it was clear that he’d received notice of the State’s theory of the case, namely that this was a capital murder case. The State’s “Notice of the Intent to Seek the Death Penalty” might have been a clue. Moreover, his substantive rights weren’t harmed as he clearly had actual notice of the capital charge. The indictment alleged two murder victims and it listed the charge as “Capital Murder”, though it failed to specify whether this was two murders during the same transaction or two murders pursuant to the same course of conduct. Smith’s attorney worked for months preparing for a capital murder charge, so clearly had had notice.

Granting Challenges for Cause - Smith also complained that the trial court granted nine challenges for cause based upon the jurors’ personal beliefs against capital punishment in violation of Witherspoon v. Illinois. The CCA went over each juror’s interview individually and rejected Smith’s argument. The jurors either equivocated or indicated that their views against the death penalty would prevent or substantially impair the performance of their duties as jurors.

Lesser Included Offense Instruction – Smith complained that the trial court improperly failed to include a jury instruction on the lesser-included offense of murder. Obviously murder is a lesser-included offense of capital murder. Moreover, there was no evidence to show that if Smith was guilty, he was only guilty of the lesser-included offense of murder. Sure, Kristina had picked up a kitchen knife, but there was no evidence that she had ever threatened Smith with it, or that he’d even seen her in possession of the knife. Regardless, the evidence showed that Smith killed Kristina in “a continuous and uninterrupted chain of conduct occurring over a very short period of time . . . in a rapid sequence of unbroken events”. No evidence contradicted that. Thus, the CCA held Smith wasn’t entitled to a lesser-included instruction on murder.

Failure to Define Same Criminal Transaction - Smith complained that the trial court failed to define “same criminal transaction” in the jury charge. The CCA noted that the phrase was not defined by statute and held that jurors could be presumed to attach a common understanding of the phrase. Moreover, there was no evidence that Smith was guilty of only one murder, so any error would not have contributed beyond a reasonable doubt to Smith’s conviction.

Testimonial Statements in Pen Packets – At punishment the State introduced two pen packets that contained bare bones recitations of infractions or disciplinary violations committed by Smith while in prison during previous incarcerations. Many of the violations were trivial, but the CCA notes that the reports still contained testimonial statements. Moreover, the Court singled out two particular documents that go beyond sterile descriptions because the reports appear to have been copied from corrections officers reports and contain detailed descriptions of the Smith’s disciplinary offenses. While these documents violated Smith’s right confront witnesses under Crawford, the Court ultimately held their introduction was harmless as the State did not emphasize them and focused instead on the heinousness of the capital murder itself.

[Note: The Court could have been clearer about what it found admissible and inadmissible in the records. Segundo went to great trouble to explain that Russeau found statements within records objectionable, but not the entire set of records. The CCA appears to do that here as well, but then it doesn’t make clear what the two documents are that they find objectionable. Are summaries of the violations okay, or are they testimonial, too?]

Judge Keasler filed a concurring opinion in response to this issue. According to Keasler, he felt that the business records are not testimonial because even SCOTUS acknowledged in Crawford that business records are not testimonial. Consequently, the analysis under Ohio v. Roberts should control, and the records should come in because the hearsay falls within a firmly rooted exception. This was consistent with his dissenting opinion in Russeau v. State.

Death Penalty Non-Issues – The CCA considered and rejected number of death penalty “non-issues” that had either been previously decided adversely to Smith or were not ripe for review. The challenge to the lethal injection protocol was not litigated at the trial court and was not ripe for review. Smith was not entitled to a burden of proof instruction on the mitigation special issue because there is no burden of proof. Moreover, the mitigation special issue does not allow for open-ended discretion. It also doesn’t deprive the defendant of meaningful appellate review. The death penalty isn’t cruel and unusual punishment. Finally, the failure to inform the jury that one hold out on any special issue will result in automatic life in prison does not render the death penalty scheme unconstitutional.

Because this is a death penalty case, appeal was automatic to the Court of Criminal Appeals. There was no underlying opinion.

Case Summary - Ex parte Frank Eugene Watson

Frank Watson was drunk and driving a truck when he turned left and hit a motorcycle coming from the opposite direction. The State charged him with intoxication assault for driving while intoxicated and causing bodily injury by “failing to yield the right of way while turning left”. Of course, at the time of the accident Watson also got a ticket for failure to yield the right of way which he plead out to deferred adjudication in justice court before he was indicted on the felony intoxication assault charge. So, when he was indicted, Watson filed a pre-trial writ of habeas corpus alleging that the intoxication assault indictment violated double jeopardy.

In an unpublished opinion, the court of appeals affirmed the trial court’s denial of habeas relief after applying both the Blockburger and Hall tests. According to the court of appeals, failure to yield the right of way was not the same offense as intoxication assault. Under Hall, it was not a lesser-included offense. [Here’s a link to the court of appeals case info.]

The Court of Criminal Appeals affirmed. Judge Holcomb writing for a six judge majority, explained that the elements of intoxication assault as modified by the allegations in the indictment only required the State prove that Watson had driven a car while intoxicated and by reason of that intoxication caused bodily injury by accident or mistake. Notably, the majority does not regard the phrase “failure to yield the right of way while turning left” in the indictment as an element of the offense of intoxication assault. The majority points out the language in Hall that court’s must look to the way elements of an offense are modified in an indictment does not transform such language into additional elements of the offense. Here, the State only had to show that Watson caused bodily injury, the manner in which he did so was not an element.

Moreover, the facts required to prove failure to yield the right of way were not the same or less than those required to prove the greater offense. For example, failure to yield the right of way requires proof of a vehicle approaching from the opposite direction. In contrast, intoxication assault does not even require as an element proof that Watson failed to yield. It only requires proof that he caused bodily injury by driving while intoxicated. [I supposed this squares with Schmidt because the CCA ultimately held that the State is required to prove a threat when proving retaliation even if striking is only the manner in which the threat is conveyed.]

Presiding Judge Keller, joined by Judge Cochran, concurred to suggest that there wasn’t even a need to decide if the language “failure to yield the right of way while turning left” was made an element by inclusion in the indictment. The offense of failure to yield the right of way contains an element not found in intoxication assault. The language included in the indictment was merely an allegation of conduct. This rationale jibes with the majority, though avoids the clarification of Hall, so it’s not as helpful as the majority opinion in this regard. Judge Cochran also concurred to note that Hall did not resurrect the “same conduct” test for double jeopardy analysis. Blockburger is still the way to go for that analysis.

Interestingly, Judge Womack, author of Hall, dissented along with Price and Meyers. According to the dissent, the State had alleged the full offense of failure to yield the right of way. Consequently, failure to yield the right of way was a lesser-included offense, and Watson had been placed in jeopardy for a lesser offense so he could not be placed in jeopardy on the greater. [Dude, what’s the problem? Ryan Gosling did it in Fracture.]

Case Summary - Randy Deshawn Collier v. State

Here, the CCA had granted discretionary review to consider Collier’s challenge to the sufficiency of the evidence in his tampering case. (He “concealed” cocaine by placing it in his mouth and chewing it.) However, the Court dismissed the petition for discretionary review as improvidently granted. Judges Hervey and Cochran dissented without an opinion. Heavy sigh. And after going through the trouble of oral argument, too. Here’s a link to the court of appeals opinion. And here’s a link to the court of appeals case information, too.