Godzilla v. Mothra

That sound everyone in Texas heard at around 9:17 a.m. this morning was Judge Cochran squealing with glee.

Today, SCOTUS handed down the much-anticipated opinion in Melendez-Diaz v. Massachusetts. The Court held, not really surprisingly, that the State's introduction of a affidavits detailing a laboratory analysis of seized drugs without calling the person who analyzed the drugs violated Melendez-Diaz's Sixth Amendment right to confront the witnesses against him. It was a 5-4 split, but this time, it was Scalia and Thomas not Kennedy that made the difference.

If I could be so presumptuous . . . well I guess I can because it's my blog, the interplay between Scalia's and Kennedy's opinions seemed kind of similar, to me at least, to a fight between Godzilla and Mothra in that both sides really try to lay waste to each other and no one focuses on the collateral damage, namely the destroyed city. This opinion doesn't really destroy a city, mind you, but it will have an impact on Texas, and maybe even in some not-so-obvious ways.

The facts are these.

Basically, Boston police officers found out that this guy Thomas Wright was basically dealing coke out of a Kmart. He'd get calls there, a car would pick him up, and then he'd get dropped back off when the deal was done. The police set up surveillance and witnessed Wright get picked up by a blue sedan to go make the exchange. When the sedan returned, police stopped Wright, searched him, and found cocaine. They also stopped the folks in the car. Luis Melendez-Diaz, our hero, was one of the guys in the car.

Police put all three men in a police cruiser, and during the drive they saw MD acting nervous. Police searched the cruiser and found cocaine in it. The State charged MD with distributing cocaine. At his trial, the State introduced "certificates of analysis" showing the results of the forensic analysis performed on the seized substances. MD objected based on Crawford arguing that the Confrontation Clause required the analyst to testify in person, but the trial court overruled the objection.

In a pretty straightforward way, Scalia, writing for the majority, just says that Crawford recognized that a defendant has the right to confront the witnesses who bear testimony against him. Simple enough, right? A witness's out-of-court statements are inadmissible unless the witness testifies at trial, or the defendant had a previous opportunity to cross-examine that witness if the witness doesn't testify. There is little doubt that these affidavits fell within the "core class of testimonial statements" (we mentioned affidavits twice, don't'cha know). Moreover, they are functionally identical to life, in-court testimony doing "precisely what a witness does on direct examination." So, the affidavits were testimonial and the analysts were witnesses; MD should have been confronted with those analysts at trial. A pretty logical extension of Crawford.

Of course, there's more to the story.

Scalia then goes on to discount the various arguments that the State wasn't required to call the "analysts" to testify. He actually breaks the fourth wall and turns to us, dear readers, as if he's Jim Dale from Pushing Daisies. Then he calls out Justice Kennedy by assuring us "of the falsity" of the dissent's opening "alarum" that this decision sweeps away an accepted rule governing the admission of scientific evidence that has been established for 90 years. The cases the dissent relies upon, according to Scalia, were primarily decided under the now discarded Ohio v. Roberts particularized guarantees of reliability theory, and the ones that pre-date Roberts are a decidedly mixed bag. So, it's not the majority that's overturning precedent, says the majority, it's the dissent seeking to overturn Crawford. [Note: Personally, after the Montejo and Gant throw downs I don't think anyone up there has any credibility regarding adherence to precedent. But that's just me.]

Scalia then rejects various arguments seeking to characterize the witnesses in terms that suggest they don't need to be cross-examined. Just because they aren't "accusatory," meaning they're not directly accusing the defendant of wrongdoing, doesn't mean they aren't testifying against the defendant. Just because they aren't "conventional" like the ones called in the trial of Sir Walter Raleigh (I swear Judge Cochran plays poker with Scalia or something) to relate past events doesn't mean the State can keep them off the stand. It doesn't matter whether the witness is describing contemporaneously observed facts or relating matters from the past. It doesn't matter that they did not observe the crime or any human action related to it. It doesn't matter that the statements didn't come from interrogation. It doesn't matter that the testimony is simply neutral scientific testing. What matters is that the Confrontation Clause provides a procedural guarantee of reliability by allowing the defendant an opportunity to cross-examine those witnesses against him. He doesn't come out and say it, but it seems this applies to any witness's observations. This is refreshing in its simplicity, but could be problematic in practice.

I mean, it's all well and good, but Scalia is kind of trying to marginalize Kennedy's point without really addressing it. I mean, we don't care about the witnesses we care about the data. Rhetorically, I think Scalia avoids explaining what witnesses we are talking about by taking various adjectives that Kennedy uses and saying they aren't appropriate either. It's almost like he's more concerned with showing how wrong Kennedy is that he forgets that this isn't about which one of them is right. It's about setting out the law that governs the people. In the end, Scalia doesn't tell us who exactly are the witnesses the State must offer against the defendant and he destroys Kennedy's suggestions so we're still left with no clue as to what the phrase "witness against" really means. Is it the analyst? Is it the clerk certifying the records? Is it one of the links in the chain of custody? Who knows. It sure sounds good though.

Yeah, yeah, yeah, but what does this mean for Texas? Well, funny you should ask. Scalia reassures us that the sky is not going to fall based on this decision. He notes that 95% of convictions are obtained via guilty pleas so this would only be implicated in a small fraction of cases. Moreover, many States have already adopted the constitutional rule announced in the case, and the majority seems to note with approval that States can also permit a defendant to assert his Confrontation Clause right (or forfeit it by his silence) after receiving notice of the prosecution's intent to use a forensic analyst's report. What's one of the examples he cites to for this approach? Why Article 38.41 of the Texas Code of Criminal Procedure, of course. [Presumably Article 38.42 is good too as it applies the same procedure to chain of custody witnesses, another fear expressed in Kennedy's dissent.]. Scalia defends these provisions from the dissent's argument that they shift the burden of proof to the defendant. According to the majority, the defendant always bears the burden of raising his Confrontation Clause objection, notice-and-demand statutes simply govern the time within which to raise those objections. It's common to require a defendant to exercise his Compulsory Process rights in advance of trial, there's no reason he can't be required to exercise his Confrontation Clause rights in advance of trial, as well.

So what's all the brouhaha? Well, I skipped over some things. Obviously, Scalia's opinion provides a propaganda victory for the Innocence Movement with some great language regarding scientific reliability. [SCOTUSblog even took note of this. How trendy.] In making his argument that scientific witnesses are also subject to the Confrontation Clause, Scalia also goes through several pages where he talks about how forensic analysts can be just as fraudulent as regular witnesses and that the need to cross-examine them can protect against incompetence as well.

Look, it's a fair point, but it is not really necessary to resolve the case, a fact Scalia kind of acknowledges in a footnote. In footnote 6 to be exact. There he says that he's mentioning this stuff simply to refute Kennedy's suggestion that this category of evidence is uniquely reliable. The Court would reach the same result, according to the majority, even if analysts always possessed the scientific acumen of Mme Curie and the veracity of Mother Theresa. [Kind of a bad pop history example there Tony, Marie Curie died of radiation poisoning for not following any lab safety protocols and Mother Theresa felt a great deal of doubt that she never expressed in her lifetime. But it sure is punchy.] But that part's cosmetic because it's not really crucial to the outcome and it just says scientific testimony isn't any more important than regular testimony when it comes to the Constitution. Why not just say that?

But Scalia also goes into talk about business records, and this portion of he opinion may be a little more than cosmetic. Here, Scalia makes clear that business records that satisfy the hearsay definition of a business record aren't necessarily immune from a Confrontation Clause objection, either. This may come as a shock to Judge Keasler who concurred in Smith v. Texas that business records are not testimonial under Crawford. According to Scalia, business records that are kept in the normal course of business may not violate Crawford, but we have to look at whether the regularly conducted business activity is production of evidence for use at trial. Scalia notes that an accident report prepared by an employee of a railroad company did not qualify as a business record because it was calculated for use essentially in the courts, not in the business. Palmer v. Hoffman, 318 U.S. 109 (1943).

As mentioned above, Kennedy quite aptly notes that the majority fails to clarify or define who the "analyst" is in this situation. While the majority is only concerned with lab analysis, Kennedy points out that the range of other scientific tests that may be affected is staggering. One of the examples he seems to give is an autopsy. Does this case mean the State can't call just any medical examiner to interpret an autopsy report? Does it have to be the medical examiner who performed the autopsy? Scalia notes in a footnote that there may not be any other way to challenge the reliability of an autopsy than cross-examination, and the burden upon prosecution is not really relevant to his Constitutional analysis. That seems to leave the field wide-open for creative challenges. It's kind of ironic, Justice Scalia, scourge of living constitutions everywhere, seems to broaden the definition of witness beyond what the framers were thinking of at the time. Conversely, Justice Kennedy, lover of international authority, ends up essentially arguing that the Sir Walter Raleigh case was concerned with eyewitnesses not chemists. Or alchemists. Or sorcerers. I'm not up on my 16th Century occupations. Whatever the end result, Justice Kennedy's dissent is sure to give the defense a lot of ideas on the types of challenges to make after this case. I'm sure defense attorneys will be looking at this part of the opinion with anarchic glee at all the new stuff they can try, and I can't really blame them. It's a shame that he seemed so concerned with refuting Scalia that he telegraphed what he saw as the impraticality of the holding thereby increasing the likelihood that his prophecy would become self-fulfilling. Way to tear down the system even as you're arguing to preserve it.

I think what Kennedy is groping for is that it's not that the scientific analysis is more or less "reliable" than fact witnesses, it's that experts are pretty fungible. In the area of these types of tests the defendant is really being confronted with data that has no confrontable witness. The lab results aren't really a "witness" against the defendant, so Scalia picks the guy who reads the machine. There's no reason to believe that a defendant hasn't been afforded the opportunity to cross-examine witnesses against him when the data is introduced and he can cross-examine the expert that the State calls to explain the data. However, there's no reason for Scalia to address this point where the problem was that absolutely no witness was offered so to me that looks like Kennedy's overreaching.

For some more concrete speculation (yet another paradox), I did immediately ponder the ramification of the jail infraction records at issue in Smith v. State (cited above) and Russeau v. State and the parole revocation certificates in Segundo v. State when I read this opinion. Clearly, this portion of the opinion vindicates the results in Smith and Russeau, namely that narratives contained in jail records are testimonial. But the CCA reached that result by drawing a distinction between a subjective interpretation facts and a sterile recitation of the facts. In Segundo, the parole revocation certificates did not violate Crawford because they contained sterile recitations of the fact of revocation rather than a detailed description of the case. Upon reading this opinion, it's arguable that this "sterile recitation of the facts" paradigm could be seen as another attempt to impose the same reliability standard that the majority rejects in Melendez-Diaz. The flip side of this argument is that the more sterile record notations are found in records that are not prepared in anticipation for trial, but necessary notations so that the jailers who have access to these records and the administrators that make housing decisions need to rely upon them when moving prisoners from place to place. I don't know. I'm just going off the dome. [As a side note, Scalia does mention in footnote 2 that medical reports created for treatment purposes would not be testimonial under the decision in this case.] But I will be interested to see how these types of evidence are considered going forward.

Still, the thing to remember is that this case only dealt with drug lab results and SCOTUS pretty much endorsed the Texas statutory notice-and-demand scheme for drug analysis. For you legislative history buffs, this statute was so cleverly suggested by the prescient Jay Johannes of the Colorado County Attorney's Office, drafted (the first draft anyway) by Ken Sparks the Colorado County Attorney, and sponsored by House Rep. Debbie Riddle. They're the ones that crafted the legislation, and their foresight may have shielded Texas from another Apprendi-like storm.

More problematically for the State, the majority has indicated that not all business records are going to be immune to a Confrontation Clause challenge and courts will need to look to whether the records are prepared for business or for trial. Justice Kennedy fears that lack of a clear definition of what witnesses we're talking about could grind the criminal justice system to a halt. I'm sure it won't, but we'll have to wait a little for the smoke to clear so we can look through the rubble.

Today's Opinions - 6/24/09

The CCA handed down a number of orders today, but only two published opinions. Remember those eight cases that were all one opinion a little while back where the defendant who said what questions he'd ask at voir dire preserved error for excluded evidence? Holmes et. al v. State? Well, the Court granted rehearing on all of those cases (seven on the State's motion and one on its own). Here's a link to my summary of the opinion(s) if you're interested. Interesting.

In any case, the Court issued two published opinions in the following cases:

AP-75,654, Thomas Bartlett Whitaker v. State: The CCA affirmed this capital murder case. There were numerous issues, but the most prominent was a complaint that the State should not have referred to the defendant's attempt to plead guilty in exchange for two life sentences even though that evidence made up a significant portion of the defendant's mitigation case. Click here for a more detailed summary.

AP-76,098, Ex parte Armando Cortez Arce: The CCA upheld the defendant's conviction for failure to register as a sex offender despite his claim that his sentenced had discharged (and therefore he wasn't required to register) when a retroactive registration law went into effect. Click here for a more detailed summary.

Case Summary - Thomas Bartlett Whitaker v. State

This was a movie-of-the-week type case, but guilt was not really an issue. Thomas Whitaker, convinced his pretty well-to-do parents that he was enrolled in college. Then he conspired with his roommate to murder his parents for the insurance money. His roommate, Brashear, hid inside the parent's home while they all went out to celebrate his fictitious graduation. When they returned home, Brashear shot and killed Whitaker's mother and brother, and injured Whitaker's dad. The State did not seek the death penalty against the shooter, Brashear. Oh yeah, Whitaker had planned this scheme several different times in the past and he even made one attempt a few years earlier with different friends.

This was not a guilt case.

Whitaker's attorney all but conceded guilt at trial, and didn't challenge the sufficiency of the evidence. In fact, the Court noted that the evidence of guilt was overwhelming, but hey, it usually is when the State can call the defendant's father to prove up its case. Prior to trial, Whitaker had offered to plead guilt to two consecutive life sentences, and he supported this with a proffered statement that did not end up as part of the record. However, the State chose to seek the death penalty. During the punishment phase of the trial, Whitaker offered evidence that he was sorry, that he tried to plead guilty, and that his father (and the mother's side of the family) did not want Whitaker to be put to death.

On appeal, Whitaker raised nine points of error, but the one that got the most attention was the State's reference to Whitaker's plea negotiations. During closing argument at punishment, the defense referred to the fact that the State had not sought the death penalty on Brashear, and noted that Whitaker had tried to plead guilty numerous times. However, Whitaker complained that the first reference to the offer to plead guilty came from the State's exchange with Whitaker's father during the guilt phase. There, Whitaker's dad volunteered that there had been this proffer in exchange for a plea when the State asked him about whether Whitaker had confessed.

During the punishment phase, Whitaker himself testified that he never intended to contest the guilt of his offense. He also volunteered that he would have plead to as many life sentences as the State wanted. The State had Whitaker read his proffered statement silently during cross-examination, but Whitaker testified that he did not write the statement. Moreover, he was upset that he had not been given the opportunity to write it as that had been his plan all along.

The Court of Criminal Appeals rejected Whitaker's claim that the State erroneously referred to the plea negotiations and his own proffered statement. Judge Hervey, writing for the majority, noted that it was difficult to understand Whitaker's complaint as the plea negotiation testimony made up a significant part of Whitaker's mitigation case. Thus, any unobjected-to reference to this evidence was waived by Whitaker's failure to object. Moreover, the error was clearly harmless because the evidence of guilt was overwhelming. [Note, the Court set out portions of the State's brief verbatim here, so the appellate attorney must've done a pretty good job.]

The Court also rejected Whitaker's complaint that the proffer should've been made part of the record at the hearing on the motion for new trial. The trial record contained significant references to the proffer and clearly reflected what transpired during trial regarding the proffer. The Court was not persuaded that abatement to supplement the record to support unpreserved claims would assist the Court.

The other big issue in this case was the State's introduction of an audiotape between Whitaker and Adam Hipp, one of the conspirators in the failed attempt to murder Whitaker's family. Whitaker complained that the tape was admitted without deleting inadmissible hearsay. The Court noted that Whitaker failed to specify the portions of the tape that were inadmissible hearsay even though he had specifically stated the grounds upon which he sought to have the portions of the tape excluded. Consequently, Whitaker failed to preserve error with regard to the admission of that audiotape. [And even if it was erroneously admitted, the evidence of guilt was overwhelming so the error would have been harmless.]

Finally, Whitaker made numerous challenges to the constitutionality of his death sentence that the Court had previously rejected. They rejected them again without any significant discussion. Here's a link to the case information. Judges Price and Johnson concurred without an opinion. There was no underlying opinion because this was a death penalty case and direct appeal to the Court of Criminal Appeals is automatic.

[The only weird thing about this case is that it was even published.]

Case Summary - Ex parte Armando Cortez Arce

The impressive thing about this published opinion is that it's just so concise. It's a real challenge to summarize such a spare opinion, but I'll try.

In April 1987 Armando Arce was convicted of sexual assault and sentenced to ten years in prison. While serving that sentence, he picked up a possession of a deadly weapon in a penal insitution conviction that stacked four years on top of his sexual assault conviction. In 1996 he was released on mandatory supervision. In 1998 his parole was revoked. In 1999 he was released again, but this time he successfully served the remaining period of his release.

Of course, in 1997 the Legislature passed a law that retroactively required Arce to register as a sex offender for his 1987 sexual assault. He was convicted of the offense of failure to register as a sex offender. Arce filed a writ of habeas corpus to argue that he'd already discharged his sexual assault sentence in 1996 when he was released on mandatory supervision. Thus, his sexual assault conviction was done so he was never required to register so he couldn't have been convicted of failure to register as a sex offender.

The Court of Criminal Appeals disagreed. Presiding Judge Keller, writing for the majority explained that the 1997 statute requiring sex offender registration applied retroactively only to those offenses where the defendant was incarcerated or subject to supervision on the effective date of the statute. Unfortunately for Arce, when he was convicted of the sexual assault offense consecutive sentences were added together and treated as one sentence so long as one of the sentences began before September 1987. Remember Arce was convicted of sexual assault in April 1987. What a bite in the ass.

The Court held that Arce had been granted mandatory supervision because both of his stacked sentences had been treated as a single sentence. Had they been treated as separate sentences he would not have gotten out on mandatory supervision in 1996 and he would still have been incarcerated (completing his first ten-year sentence) when the amendment to the sex offender registration statute became effective. Moreover, when his parole was revoked he forfeited all the time he spent on release under the law in effect at the time. So whichever way you looked at it, he still hadn't discharged his sexual assault conviction before the 1997 amendment to the sex offender registration statute became effective.

Judges Price, Johnson, and Cochran concurred without an opinion. Here's a link to the Court of Criminal Appeals case information. Because this was a habeas corpus case, there was no underlying opinion.

Oral Arguments - 6/17/09

On June 17, 2009, the CCA heard oral argument in the following cases:

PD-0812-08, Hernan Arquimides Ramos v. State, a forgery case out of Harris County.

Appellant's opening - Norman J. Silverman
State's response - Dan McCrory
Appellant's rebuttal

Here's a link to the underlying opinion. Here's a link to the underlying case information. And here's a link to my post when the CCA granted review.

PD-1205-08, State v. Robert Leahy Powell, an appeal of a pretrial order suppressing evidence in possession of methamphetamine case out of Tarrant County.

State's opening - Charles M. Mallin
Appellee's response - Greg Westfall
State's rebuttal

Here's a link to the underlying opinion. Here's a link to the underlying case information. And here's a link to my post when the CCA granted review.

PD-1123-08, PD-1124-08, Jeffrey Daniel Hughen v. State, an attempted capital murder and aggravated assault case out of Fannin County.

Appellant's opening - John G. Jasuta
State's response - John B. Setterberg
Appellant's rebuttal - David A. Schulman

Here's a link to the underlying opinion. Here's a link to the underlying case info on the attempted murder and on the aggravated assault. Here's a link to my post when the CCA granted review on the defendant's petition. And here's a link to my post when the CCA granted review on its own.

PD-1508-08, Danny Wayne Grammer v. State, a sexual assault case out of Johnson County.

Appellant's opening - Stanley Schneider
State's response - David W. Vernon
Appellant's rebuttal

Here's a link to the underlying opinion. Here's a link to the underlying case information. And here's a link to my post when the CCA granted review.

AP-75,582, John Steven Gardner v. State, a capital murder case out of Collin County.

Appellant's opening - David A. Schulman
State's response - Andrea L. Westerfeld
Appellant's rebuttalThis was a death penalty case so there was no underlying opinion.

PD-1039-08, Randall Anthony Garcia v. State, an appeal of a denial of DNA testing in a murder case out of Harris County.

Appellant's opening - Joseph W. Varela
State's response - Dan McCrory
Appellant's rebuttal

Here's a link to the underlying opinion. Here's a link to the underlying case information. And here's a link to my post when the CCA granted review.

Today's Opinions - 6/17/09

Fortunately for me, last week, the CCA did not issue any new published opinions, but they did hand down some today in the following cases:

PD-0777-08, Gerald Wayne Smith v. State: The CCA held that a defendant claiming ineffective assistance of counsel at punishment must include some information on how he was prejudiced in his affidavit supporting the motion for new trial in order to get a hearing. Click here for a more detailed summary.

PD-1187-07, Ivan Johnson v. State: The CCA held that the trial court could not add jail time as a condition of probation immediately after the victim-allocution statement. Click here for a more detailed summary

Case Summary - Gerald Wayne Smith v. State

Gerald Smith plead guilty to sexual assault pursuant to a plea agreement, and the trial court placed him on ten-years deferred adjudication community supervision. Eight years later, the State filed a motion to adjudicate based on four different violations, namely failure to report, failure to participate in sex-offender counseling, commission of deadly conduct, and commission of terroristic threat. Following a hearing on the motion to adjudicate, the trial court found the allegations about the failure to report and the two offenses to be true. The trial court sentenced him to twenty years in prison.

Smith filed a motion for a new trial accompanied by a request for a hearing. Smith claimed that he'd been denied effective assistance of counsel because his attorney failed to inform him of his right to testify at the hearing and failed to introduce his medical records into evidence. Specifically, Smith averred in his affidavit that his attorney told him "to just say not true and not say anything else." Smith claimed that he would have contradicted the testimony of the victim of the two offenses and the deputy sheriff, both of whom testified to establish that Smith had committed the offenses. Smith also claimed that the medical records showed he had a spinal injury and he had been in the hospital and this contradicted the probation officer's testimony that he had not given a reasonable excuse for his failure to report. The trial court denied the motion without a hearing.

The court of appeals reversed in an unpublished opinion. The State argued that the affidavit was to conclusory because it not only failed to establish that Smith had not been advised about his right to testify, but it also failed to explain why the outcome would have been different. The court of appeals rejected this argument because Smith was not required to establish a prima facie case of ineffective assistance in the affidavit. Presiding Justice Gray dissented without an opinion. Click here to jump to the court of appeals case information. [I must say I miss Presiding Justice Gray's opinions. Not the in-fighting parts, but his analysis. He's a smart cookie and a good writer. Come back, Shane.]

The CCA reversed and affirmed the trial court's denial of the motion without the hearing. Judge Price, writing for six-judge majority, explained that a defendant does not have to make a prima facie case in his affidavit, but he does need to allege facts that show reasonable grounds to believe that he could have prevailed under both of Strickland's prongs. The Court specifically did not consider whether the affidavit established the first prong of deficient performance because even assuming it did, the affidavit failed to satisfy the prejudice prong.

On the issue of prejudice, the affidavit merely averred that "the information about which he would have testified may well have resulted in a different outcome." While the Court allows for the possibility that a motion to adjudicate based upon a single ground might render such an assertion sufficient, Smith had to show prejudice on three different violations. Thus, the medical records might have rebutted the failure to report allegation, but his testimony would not have rebutted the evidence to establish the offenses.

Here, Smith admitted to shooting out the tires of the victim, but he claimed that he'd done so after everyone had already gotten out of the car. The fact that they were still, by his own admissions, in the immediate area of the car and that his threats with a gun had interrupted the use of the car established that he'd committed both offenses. Consequently, even if he had testified it would not have contradicted the testimony enough to suggest a different outcome.

More importantly, the Court also held that Smith had failed to show prejudice at punishment. Trial courts have wide discretion to sentence defendants and the sentence was within the permissible punishment range. Only the trial court could have known whether Smith's testimony would've made any difference at punishment, and presumably it wouldn't have because he looked at the affidavit and denied the motion without a hearing. Presiding Judge Keller concurred without an opinion along with Judge Hervey.

The always feisty Judge Meyers dissented to again express his belief that the second prong of Strickland should not apply to ineffective assistance claims at punishment. As long as the sentence is within the normative punishment range, the Court can say there's no harm. He calls out Price for dissenting in the opinion that applied both Strickland prongs to punishment and authority a majority opinion that perpetuates an unworkable standard. Click here for a link to the CCA case information.

Case Summary - Ivan Johnson v. State

The State charged Ivan Johnson with two counts of indecency with a child. The jury acquitted him of one count involving conduct with a girl named Savannah, but found him guilty of the other count involving conduct with a girl named Brittany. The jury assessed punishment at five years in prison, but recommended probation. The trial court accepted the jury's punishment verdict and imposed the standard conditions of community supervision. After the trial court had completed the oral pronouncement of the sentence, the mothers of the two girls gave statements to the trial court written by the two victims. Brittany's mother read her daughter's statement, while the trial court read Savannah's even though Johnson had been acquitted of molesting her.

Immediately after these "unsworn, un-cross-examined" statements, the trial court imposed additional conditions of probation, namely that Johnson sell his home and that he serve 180 days in county jail. Johnson agreed to sell his home, but objected to the six months in jail. In reaching its decision, the trial court noted that it had sat through the entire trial and had heard everything contained in the victim's statements so he wasn't influenced by the statements.

The court of appeals affirmed in a published opinion. According to the court of appeals, Article 42.03 of the Code of Criminal Procedure is ambiguous as it relates to community supervision even though it specifically requires victim statements to be made after the trial court pronounces the terms of community supervision. Section 12(c) of Article 42.12 allows a trial court to impose jail as a condition of probation at any time during the supervisory period. This, according to the court of appeals, is an exception to Article 42.03 and was at most harmless error. Click here for a link to the court of appeals case information.

The CCA reversed, holding that Article 42.03 is unambiguous and prevents the trial court from imposing jail as a condition of community supervision in this manner. The purpose of this "after" requirement was to prevent the appearance that the victim's statements might affect the judge's decision making. It is only after sentencing is complete and these "unsworn, uncross-examined" statements could not be seen to have had any effect on the judge's decision making. [In case you missed it, these victim statements were not only unsworn, they were also un-cross-examined? That's some good persuasive writing right there.]

The six-judge majority, led by Judge Cochran, also rejected the argument that this error was harmless because the trial court was empowered to amend or modify the conditions of probation at any time during the period of community supervision. First, the judge didn't say he was modifying the sentence. [No, really. That's one of the reasons.] Second, and here's where the majority opinion turns into a Mobius strip, a trial court is not allowed to modify community supervision for a prohibited purpose. Thus, it is of no moment that he's not able to modify the probation for a valid reason if he can't do it for an invalid one.

[Here, the Court draws the analogy to basing peremptory challenges on race, they may have overplayed their hand. They overlook Young v. State where prosecutors considered the race of a prospective juror member but the context of the consideration showed it was not discriminatory. If they were truly taking the trial court at his word that he wasn't considering the statements, shouldn't they have factored that context in as well when conducting their harm analysis? We don't sustain Batson challenges just because it "looks bad", do we? I appreciate that they're trying to be all-Dave Letterman-apology and stuff, but when does it become impossible for someone to draw the conclusion that a judge based his decision to modify probation based on victim statements? Sorry, I meant unsworn, un-cross-examined™ statements. I think there was a little more conflict amongst the statutory provisions than the majority was willing to acknowledge.]

Presiding Judge Keller wrote a dissenting opinion that Judge Hervey joined. Keller noted that the precise language of the statute doesn't require the un-good statements to be read after the terms of community supervision have been announced. Rather, the statute requires the un-good statements to be stated after the decision is made to grant probation and the terms of the sentence have been announced. Moreover, there is no requirement in the statute that requires a new factual basis before the trial court can modify probation, but the majority opinion now appears to require one before modification.

Judge Keasler also dissented along with Presiding Judge Keller and Judge Hervey. According to Keasler's dissent, Article 42.03 is a general statute trumped by the specific provisions that allows modification of community supervision. He also has to work around his own statement in Aguilera v. State, that he could not condone the reduction of a sentence immediately after the reading of a victim's un-good statement. Judge Keasler points out that that statement was in the context of a reduction of a jail sentence done after the reading of the statement rather than the modification of a condition of community supervision immediately after the victim's allocution. Finally, Judge Keasler noted that the statement was read after sentencing because the trial court had orally pronounced it which controls over the written judgment. Click here for a link to the CCA case information.

All Apologies

I am on vacation this week. So, I may be aware of what's going on in the CCA and SCOTUS, but unfortunately, I am unable to set aside a significant enough chunk of time to summarize the opinions and granted issues today (should there be any). When I return I will do a make-up post as promptly as I can.

And no, I'm not in Thailand.

Issues Granted - 6/3/09

On June 3, 2009, the CCA granted discretionary review in the following case on the following issues:

PD-0210-09, Kelvin Kianta Brooks v. State: The CCA granted discretionary review with oral argument in this possession of cocaine case out of McLennan County on the following issues:

For Brooks:

The Court of Appeals erred in holding the evidence was legally sufficient to establish appellant had the intent to distribute cocaine, where the court found the same evidence was factually insufficient to establish the necessary intent.

For the State:

1. Is there any meaningful distinction between legal sufficiency review under Jackson v. Virginia and factually sufficiency review when that review is limited to the weakness of the evidence in the abstract and, if so, does it escape review in this Court?

2. Did the Tenth Court of Appeals ignore its duty to adequately explain why the evidence, though legally sufficient, is so weak as to render the jury's verdict clearly wrong and manifestly unjust?

Click here to read the court of appeals opinion. Click here to read my summary of the court of appeals opinion.

Issues Granted - Kelvin Kianta Brooks v. State

The CCA granted discretionary review with oral argument in this possession of cocaine case out of McLennan County on the following issues:

For Brooks:

The Court of Appeals erred in holding the evidence was legally sufficient to establish appellant had the intent to distribute cocaine, where the court found the same evidence was factually insufficient to establish the necessary intent.

For the State:

1. Is there any meaningful distinction between legal sufficiency review under Jackson v. Virginia and factually sufficiency review when that review is limited to the weakness of the evidence in the abstract and, if so, does it escape review in this Court?

2. Did the Tenth Court of Appeals ignore its duty to adequately explain why the evidence, though legally sufficient, is so weak as to render the jury's verdict clearly wrong and manifestly unjust?

Here's a link to the CCA case info.

Police responded to a bar to investigate a claim that there was an African-American male wearing a red cap there with a gun. Brooks matched the description and the officers asked him to go outside with them. He refused with colorful language. One of the officers tried to grab his arm, and Brook jerked his arm away and began running. On the way out, Brooks threw pastic baggies towards the pool table. After collecting Brooks, police recovered a baggie of marijuana from under the pool table and a baggie containing crack and ecstacy in the ball return.

Brooks, of course, told a different story, namely that the police had not gotten close enough to grab him and they had tasered him while he was trying to pull out his baggie of marijuana to discard. A drug enforcement unit investigator testified that dealers usually carry more than two rocks, but a gram of crack usually indicates a dealer. He also identified other ways to tell if a person is a dealer, but none of those factors were present in this case.

The court of appeals reversed the possession of cocaine case was legally sufficient, but factually insufficient. According to the court of appeals the only evidence of the intent to deliver came from the quantity of the substance itself. The evidence was factually sufficient because the quantity was small and there was no evidence that this was a high crime area, that the other drugs had been packaged similarly, and that Brooks had a large amount of cash. [The court of appeals did affirm the possession of ecstasy case.]

Chief Justice Gray concurred and dissented with a note (rather than a separate opinion). C.J. Gray noted that the possession of three different types of drugs in a public place in combination with the testimony about the amount support the jury's determination of intent to deliver. He also noted that the court of appeals failed to detail the evidence to clearly explain why it was legally sufficient but not factually sufficient. Here's a link to the court of appeals case info if you're interested.

[I could try to tease out some explanation about why THIS case deserves factual sufficiency consideration . . . but I'm not going to. It's just not worth it any more, and a few of the judges at the CCA have recognized as much. I suppose there's some interest in setting out a rule that intent to deliver can be inferred from just the amount, but why also grant the State's petition. At this point, factual sufficiency review has become like a really toxic relationship that you can't seem to stop explaining to just about everyone you meet. It's tiresome and does no one any good. And frankly, I'm just not that into you factual sufficiency review.]

Yesterday's Opinions - 6/3/09

I apologize for the delay. I generally like to get opinions up the day they are issued, but I was otherwise detained. On June 3, 2009, the CCA handed down three published opinions in the following cases:

AP-75-964, Ex parte Spencer Ojeifo Imoudu: Here, the CCA granted habeas corpus relief because the attorney failed to investigate a possible insanity defense prior to advising the defendant to plead guilty of murder. Presiding Judge Keller dissented. Click here for a more detailed summary.

PD-0297-08, Johnny Ray Ocon v. State: Here, the CCA held that the trial court did not abuse its discretion in denying a mistrial based upon one of the jurors calling someone named Brenda to bitch about being on the jury. While the state was required to rebut harm regarding the conversation, Ocon should've requested questioning of the juror about the conversation. Presiding Judge Keller concurred. Judge Johnson did as well. Click here for a more detailed summary.

PD-0956-08, Joe Christian Salazar v. State: Here, the CCA held that a) habitations inherently provide notice that entry is forbidden; b) there is no need to plead the element of notice in a burglary indicment; and c) the lack of a notice requirement in the burglary indictment did not keep criminal trespass from being a lesser-included offense under Hall v. State. Presiding Judge Keller concurred. Click here for a more detailed summary of the case and here for the oral arguments.

Case Summary - Ex parte Spencer Ojeifo Imoudu

Spencer Imoudu stole a car from outside a pawn shop. The owner of the car and another witness chased Imoudu. Imoudu drove the car into oncoming traffic, hit another car, and killed the driver of that car. The State charged him with felony murder and manslaughter.

When his father visited him in jail he noticed that his son was not himself. A social worker also noted Imoudu's deteriorating mental health and recommended to Imoudu's father that they dismiss court appointed counsel and hire an attorney. After meeting with Imoudu, the new attorney (along with co-counsel) filed motion for a competency evaluation because Imoudu kept staring into space and mumbling incoherently. The examining psychiatrist declared him competent and Imoudu appeared coherent, alert, and aware of the proceedings at the competency hearing. After Imoudu's performance at the hearing, the attorney conceded that Imoudu was competent to stand trial. A month later, Imoudu plead guilty to murder in exchange for a 17-year sentence.

Imoudu filed an application for writ of habeas corpus claiming his plea was involuntary based upon ineffective assistance of counsel. Counsel failed to investigate whether Imoudu was insane at the time of the offense and never informed Imoudu of the availability of an insanity defense. A psychiatrist who reviewed Imoudu's mental health history believed Imoudu had chronic mental illness and was likely insane at the time of the offense. Imoudu's medical records at the jail were extensive showing repeated referrals for mental health treatment. However, trial counsel did not request these records prior the plea and only relied upon the competency evaluation.

The Court of Criminal Appeals granted relief. Judge Meyers, writing for an eight-judge majority, explained that counsel had a duty to investigate whether Imoudu was insane at the time of the offense just based upon the same information that lead him to request a competency evaluation. He should've requested the jail medical records, but he failed to do so. This failure to investigate fell below prevailing professional norms. Moreover, Imoudu was prejudiced because it could have been validly raised and may have raised a reasonable doubt in the mind of a trier-of-fact.

[Um, doesn't he have to prove insanity by a preponderance of the evidence? Seems like the Court is really embracing that "diminished capacity" defense that we say we don't recognize in Texas. Of course, with an eight-judge majority, rehearing to redo the prejudice prong would seem likely to be futile. And maybe I'm overreading that anyway.]

Presiding Judge Keller dissented to state her position that the Court should've deferred to the trial court's finding that trial counsl was not ineffective. Given Imoudu's behavior at the hearing and the competency determination, the trial court's determination was supported by the record and entitled to deference. Moreover, the insanity defense would not have likely succeeded given that the psychiatrist's insanity determination was contingent upon a number of conditional assumptions.

Because this was a habeas corpus case, there was no underlying court of appeals opinion.

Case Summary - Johnny Ray Ocon v. State

Johnny Ray Ocon was charged with aggravated sexual assault of a child. On the second day of trial, defense counsel overheard one of the jurors talking on a cell phone to "Brenda" about the negative impact the trial was having on his scheduling. Defense counsel moved for a mistrial based upon a juror having an unauthorized conversation about the case. Defense counsel represented that the juror had said things to the effect "I would rather be on a double ax-murderer then [sic] this case", "It's dirty, disgusting," and "No, unless we convict the bastard today, then I'm kind of stuck here."

The trial court acknowledged the concern for the juror's behavior, but chose not to grant the mistrial. The trial court expressed reluctance to bring the jurors out individually because it would "accetuate the problem", and ultimately instructed them four separate times after that not to talk to anyone about the case. The jury convicted the bastard (no word on whether it was today), but the court of appeals reversed (in an unpublished opinion) because the trial court abused its discretion in denying the mistrial. [Here's a link to the court of appeals case info.]

The CCA reversed the court of appeals and affirmed the trial court's denial of the motion for mistrial. Judge Meyers, writing for a five-judge majority, held that the juror conversation "may" have violated Article 36.22 of the Code of Criminal Procedure, which prohibits conversing with a juror about the case on trial. Reporting the conversation created a rebuttable presumption of injury to the defendant, but the State rebutted that presumption by submitting that there was no way to verify defense counsel's account of the conversation and reminding the trial court that the jurors had been instructed not to talk about the case. The State was not required to move for questioning of the jurors to rebut the presumption of injury even though that would've been helpful. In fact, the person who moves for mistrial should be the one requesting juror questioning as the burden is on the movant. Ocon not only failed to move for juror questioning, he actually may have acted to prevent it by expressing empathy with the trial court's concern that questioning would only accentuate the problem. Finally, Ocon requested no alternative remedies besides mistrial and this was not one of those "extreme circumstances" that warranted a mistrial.

[Hunh? The defense is supposed to rebut itself?]

Presiding Judge Keller, along with Judge Price, concurred to say that without the conversation, the defense failed to establish a violation of Article 36.22. Had he established a violation, then it would've been up to the State to rebut the presumption of injury. However, they could not join the majority's holding that the defendant bears the burden of producing juror testimony on the question of harm. Judge Johnson also concurred to noted that there was no indication that "Brenda" had exerted an outside influence on the juror based upon the known part of the conversation. Judge Holcomb concurred without an opinion. [Here's a link to the CCA case info if you're interested.]

Case Summary - Joe Christian Salazar v. State

Joe Salazar broke into an empty house that was being remodeled for resale. Police got a call about the burglary in progress and arrived on the scene in time to see him scampering out the back door. After they caught him, they went back to the house and found various household items and supplies stacked neatly in an alley behind the backyard fence. The State charged Salazar with burglary, alleging in the indictment that he "did then and there intentionally and knowingly enter a habitation without the effective consent of Linda Pohlmeier, the owner of the habitation and attempted to commit or committed theft of property." At trial he requested an instruction the lesser-included offense of criminal trespass. The trial court refused and he was found guilty of burglary.

On appeal, Salazar complained about the denial of the lesser-included. In its published opinion, the court of appeals rejected Salazar's argument because the indictment did not allege that notice was forbidden. Thus, applying Hall, the statutory elements of burglary as modified by the indictment did not contain a necessary element for criminal trespass. Here's a link to the court of appeals case information if you're interested.

The CCA reversed because a habitation inherently provides notice that entry is forbidden. Writing for an eight-judge majority, Judge Womack examined "the hierarchy of properties" to explain why habitations carry the greatest expectations of privacy. Unimproved land requires some fencing to let the entrant know that entry is forbidden. Buildings confer explicit notice that entry is forbidden, but they require some signs that indicate privacy because they are typically commercial properties used for employment. Habitations are entitled to the most privacy because the definition of "habitation" requires that it be adapted for overnight accommodation of persons. Most habitations are not open to the public. We learn through common experience and societal norms that it is essential to seek permission to enter a habitation. [If this were Cochran writing you just know there would've been a reference to vampires and maybe even a cite to The Lost Boys.]

Most importantly, the CCA had previously noted in Moreno v. State, albeit in a footnote, that habitations inherently give notice that entry was forbidden. True, Moreno held that criminal trespass was a lesser of burglary under a lesser-included analysis that pre-dated Hall, but that didn't disturb the analysis of the term "habitation." Also, the legislature relied upon the inherent notice of habitations when drafting the burglary statute.

So, because a habitation implicitly gives notice that entry is forbidden, it's not necessary to include the element of notice in an indictment for burglary. To do so would be redundant. Presiding Judge Keller filed a concurring opinion to note that there was no need to go through all the talk about the "hierarchy of property" when the definition of "notice" includes "an enclosure obviously designed to exclude intruders". She also noted that reliance upon common and experience and societal norms may have its place when we need to resort to non-statutory guidance to erode the bright line rule set out in Hall is not necessary in this case. Here's a link to the CCA case info if you're interested. And, here's a link to the oral argument, if you're interested.

[Personally, I was fine with the majority opinion until I read Presiding Judge Keller's concurrence. I think I just like her opinion better because it shows there's no real need to write a James Michener novel on the history of property to reach this conclusion and I appreciate the judicial restraint.]

Oral Arguments - 6/3/09

On June 3, 2009, the Court heard oral argument in the following cases:

AP-76,049, Humberto Leal v. State, an appeal from an order denying DNA testing in a capital murder case out of Bexar County.

Appellant's opening - Sandra L. Babcock
State's response - Alan E. Battaglia
Appellant's rebuttal

Looks like this one came straight from the trial court so there's no opinion on this issue. It's a death penalty case, and the unpublished opinion on direct appeal is outside the archived opinions range. Drat.

PD-1753-08, Ross Layton Ford v. State, a possession of marijuana case out of Fannin County.

State's argument - Lisa C. McMinn
Appellant waived

Here's a link to the underlying opinion. Here's a link to the underlying case information. And here's a link to my post when the CCA granted review.

PD-1055-08, Raymond Desmond Murray v. State, a forgery case out of Harris County.

State's opening - Donald W. Rogers
Appellant's response - Josh Schaffer
State's rebuttal.

Here's a link to the underlying opinion. Here's a link to the underlying case information. And here's a link to my post when the CCA granted review.

PD-1366-08, PD-1367-08, PD-1368-08, PD-1369-08, State v. Joseph Vital aka Joseph Votta, an appeal of a pretrial order in a possession-of-cocaine-possession-of-heroine-bail-jumping-failure-to-appear case out of Jackson County.

State's opening - Jim Vollers
Appellee's response - John T. Floyd
State's rebuttal

Here's a link to the underlying opinion, opinion, opinion, opinion. Here's a link to the underlying case information, information, information, information. And here's a link to my post when the CCA granted review.

PD-1530-08, Robert Lee Menefee v. State, a delivery of a controlled substance case out of Smith County.

State's argument - Michael West
Appellant waived (or ran into traffic)

Here's a link to the underlying opinion. Here's a link to the underlying case information. Here's a link to my post when the CCA granted review.

Bonus link to the CCA opinion and my post summarizing the opinion.