Oral Arguments - 9/30/09

On September 30, 2009, the CCA heard oral argument in the following cases:

PD-1533-08, Jeffrey Rouse v. State, a robbery case out of Travis County:

State's opening - Georgette Hogarth
Appellant's response - Walter Prentice
State's rebuttal

Here's a link to the court of appeals opinion. Here's a link to the court of appeals info. Here's a link to my post when the CCA granted dicretionary review.

PD-0265-09, Vickey Lashun Tolbert v. State, a capital murder case out of Dallas County:

State's opening - John S. Stride
Appellant's response - Donald R. Scoggins
State's rebuttal

Here's a link to the court of appeals opinion. Here's a link to the court of appeals info. Here's a link to my post when the CCA granted discretionary review.

PD-1611-08, Gabriel Lemell Prudholm v. State, a sexual assault case out of Harris County:

State's opening - Carol Cameron
Appellant's response - Nicole DeBorde
State's rebuttal

Here's a link to the court of appeals opinion. Here's a link to the court of appeals info. Here's a link to my post when the CCA granted discretionary review.

PD-1111-08, Wesley Charles Joseph v. State, a murder case out of Bexar County:

Appellant's opening - Angela Moore
State's response - J. Barrett Shipp
Appellant's rebuttal

Here's a link to the court of appeals opinion. Here's a link to the court of appeals info. Here's a link to my post when the CCA granted discretionary review.

Issue Granted - 9/30/09

On September 30, 2009, the CCA granted discretionary review in one case:

PD-0512-08, Julian Kuciemba v. State: The CCA granted the State's petition for discretionary review with oral argument in this DWI case out of Washington County on the following issue:

In order for the evidence to be legally sufficient to sustain a conviction for driving while intoxicated, is it necessary that there be presented direct evidence, instead of circumstantial evidence, of the time of the defendant's driving, thereby establishing a direct link, as opposed to a circumstantial link, to the defendant's intoxicated state at the time of driving?

Here, police were dispatched to a one-vehicle rollover accident. They found the vehicle upright in a ditch with the roof crushed. Kuciemba was behind the wheel of the truck. The deputy saw him slide across the center console into the passenger side of the vehicle and exit. Kuciemba had small lacerations on his forehead from the accident. When the officer asked what happened, Kuciemba replied that he'd fallen asleep. The deputy observed the usual signs of intoxication, and blood test later showed Kuciemba to have a blood alcohol content of .214.

The court of appeals reversed, holding the evidence was legally insufficient to establish a temporal link between Kuciemba's driving and his intoxication. The court of appeals required independent evidence of how recently the vehicle had been driven and how much time had elapsed between the the accident and the arrival of the police officer. Evidence that a suspect was drunk at the scene of an accident does not, standing alone, establish intoxication at the prohibited time. Because no one established how soon after the accident the deputy arrived, the evidence was legally insufficient, and the court of appeals ordered an acquittal.

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No. Wrong. Do over. That's my initial take upon reading the issue granted. I know, I know, this is a long-standing quirk that has arisen simply because of the way the statute is written, and if it were really that much of a problem, the legislature could've changed it. But the court of appeals does not seem to be applying a proper legal sufficiency standard here. No consideration of the lacerations on the head suggesting the defendant had been in the car during the accident? No consideration of his statement that he'd fallen asleep which implicitly acknowledges driving? And what about the condition of the car itself? It was apparently so damaged that the driver couldn't get out on the driver's side. Sure you could look at all these facts and come up with a bunch of wild hypotheticals, but that's not the proper standard of review for legal sufficiency. Proper review asks whether a rational person would look at this whole picture and necessarily harbor a reasonable doubt that the defendant drove drunk and got into an accident. Just because the court might think an alternative suggestion is plausible doesn't mean the jury acted irrationally in reaching its conclusion. Or does this case really have to be reversed because the police didn't go put their hand on the radiator?

Today's Opinions - 9/30/09

On September 30, 2009, the CCA handed down several orders including three published opinions in the following cases:

AP-76,102, Ex parte Gregory Lynn Smith: The CCA denied habeas corpus relief in this felon in possession of a firearms case. Smith argued that trial counsel was ineffective and his guilty plea was involuntary because he had been placed on deferred adjudication rather than convicted and trial counsel should've known that before advising him to plead. The CCA sidestepped the issue of whether or not deferred adjudication probation counts as a felony conviction for purposes of felon in possession of a firearm by holding that the law was at least unsettled and trial counsel could not be faulted for advising Smith to plead. Click here for a summary of the opinion.

PD-0946-08, Ricky Tapps v. State: The CCA held that a prior conviction for a state jail felony made the defendant a "felon" for purposes of the felon in possession of a firearm statute. Click here for a summary of the opinion.

PD-1508-08, Danny Wayne Grammer v. State: The CCA held that Grammer had not been denied a separate punishment hearing on the motion to adjudicate his guilt because Grammer had introduced extensive punishment evidence during the hearing prior to his adjudication. Click here for a summary of the opinion.

Case Summary - Ex parte Gregory Lynn Smith

Gregory Lynn Smith plead guilty to felon in possession of a firearm based upon an indictment that alleged he possessed the firearm before the fifth anniversary of his release from community supervision having been convicted of the felony offense of possession of a controlled substance with intent to deliver. Problem was, he wasn't "convicted" he had been placed on deferred adjudication probation. However, he pleaded guilty to the felon in possession case as part of a deal that his ten-year sentence there run concurrently with the twenty-five-year sentence he received when the trial court adjudicated him on the controlled substance case. He filed a writ of habeas corpus challenging the sufficiency of the evidence (which you can't do on a writ) and the effectiveness of his trial counsel. Smith claimed trial counsel rendered ineffective assistance of counsel for failing to investigate and discover that he'd been placed on deferred rather than "convicted." He also claimed that his plea was involuntary for the same reason.

Judge Womack, writing for a eight-judge-majority, denied relief. Section 46.04 of the Penal Code makes it an offense for a person to possess a firearm if that person has been convicted of a felony or if the person possesses a firearm after conviction and before the fifth anniversary of the person's release from community supervision. Article 42.12 has defined "community supervision" to include "deferred adjudication", but "deferred adjudication" does not result in a conviction until after adjudication. So which is it? The Court noted that another statute dealing with the regulation of concealed handguns gave "conviction" a special definition that included deferred adjudication.

Ultimately, the Court dodged the issue and held that trial counsel was not ineffective for recommending the plea in light of the concurrent sentence offer and the uncertainty of the law. Presiding Judge Keller concurred in the result without an opinion. Here's a link to the CCA case info. Because this was a writ of habeas corpus case, there was no underlying opinion.

[Kind of frustrating not getting the answer, but again, it's better not to overreach. However, I am happy to have a case that essentially stands for the proposition that a trial attorney is not ineffective for failing to make an argument when the law in that area is unsettled. I know there must be other cases like that out there, but I always have a devil of a time trying to find them.]

Case Summary - Ricky Tapps v. State

Ricky Tapps failed to register as a sex offender and was convicted, making him a state jail felon. Then he possessed a firearm. A jury convicted him of felon in possession of a firearm. Based on enhancements from Louisiana convictions, he was sentenced to thirty-two years in prison for felon in possession of a firearm. The court of appeals affirmed the conviction, holding that a state jail felony is a "felony" for purposes of the felon in possession of a firearm statute (Section 46.04 of the Penal Code if you were wondering).

The Court of Criminal Appeals affirmed the conviction as well. Judge Price, writing for eight-and-a-half judges, explained that the statute unambiguously on its face appeared to include "state jail felony" in the term felony. The definition of felony in the Penal Code defines "felony" as an offense so designated by law, and the section of the Penal Code classifying felonies includes "state jail felony" in the list of all felonies. And hey, the CCA has also happened to have previously held that amendments to section 46.04 made it apply to all felons. So, when they say a state jail felon is a felon for purposes of section 46.04, they mean it.

Of course, Judge Price went on to reject Tapps' arguments that section 46.04 didn't apply to state jail felonies. First, just because Tapps was only sentenced to seven months in state jail and "traditional felonies" required a year in the penitentiary didn't make the statute any less applicable. The sentence actually imposed did nothing to change how the offense was categorized. And the fact that higher level felonies require "imprisonment" in a penitentiary while misdemeanors require "confinement" in jail also lacked merit. Felonies are defined by using the words "confinement" and "imprisonment" interchangeably. Second, the fact that section 46.04 refers to release from parole or mandatory supervision does not exclude state jail felonies from the general category of "felony". State jail felons are eligible to be released from community supervision, which is also referred to in that section, suggesting all levels of felony are covered by section 46.04. Finally, just because the legislature distinguished between felonies and state jail felonies in section 12.42 dealing with enhancement doesn't mean state jail felonies are not included in the general term "felony" in section 46.04. Section 46.04 doesn't draw the same distinction that section 12.42 does.

Presiding Judge Keller concurred with the everything the majority said, except the paragraph I just wrote. Here's a link to the CCA case info. Here's a link to the court of appeals case info. Here's a link to my post when discretionary review was granted. Here's a link to the oral arguments.

[I'm with Keller on this one, why go into tearing down the defendant's arguments when you've already said the statute unambiguously applies to state jail felons and you've already held as much. Is she saying that Price was unnecessarily thorough or inadvertently spiteful? Well, she's not really saying anything as she didn't even write an opinion, so I guess it's best not to speculate. Although, I guess it's good to explain why Campbell's holding was distinguishable, so maybe that's why eight other judges joined this part of the opinion. And really, what's the harm?]

Case Summary - Danny Wayne Grammer v. State

Danny Wayne Grammer took a plea bargain for ten years deferred adjudication on a nine-count indictment charging him with aggravated sexual assault and indecency with a child. Grammer later violated the conditions of his probation by failing to pay his court costs within 120 days and failing to avoid associating with persons having criminal records and having disreputable or harmful character. The trial court found Grammer had violated the conditions and sentenced him to sixty years on the aggravated sexual assaults and twenty years on the indecency. Grammer complained on appeal that he never received a separate punishment hearing after adjudication. While he presented mitigation evidence regarding the probation violations, he did not present "punishment" evidence to mitigate the underlying offenses. The court of appeals affirmed, holding that the trial court had not prevented him from putting on punishment evidence.

The CCA affirmed as well. Judge Hervey, writing for a seven-judge majority, essentially reproduced a huge chunk of the reporter's record to explain that Grammer had been given the opportunity to present punishment evidence and he never objected to the lack of a separate hearing on punishment. For example, he presented extensive evidence that he did not know his probation forbade him from hooking up with a girl he met in jail. He told his probation officer he wanted to date a girl that had a bad check charge (when in actuality it was more like possession of a fraudulent instrument and fraudulent use or possession of identifying information) and the probation officer said that was okay. When the probation officer found out that Grammer was living with this felonious woman, he told Grammer that he couldn't live with her unless they were married. Grammer announced his intention to make an honest woman of his girlfriend by marrying her in September (when his divorce would be final), but the probation officer arrested him for probation violations in August.

Judges Price and Holcomb concurred without opinions. Here's a link to the CCA case info. Here's a link to the court of appeals case info. Here's a link to my post when the CCA granted discretionary review. Here's a link to the oral argument.

[So, are they saying that presenting evidence to mitigate the violations is all the defendant is really entitled to do? Or are they saying that he might have been entitled to present mitigation on the adjudicated offenses, but he failed to do so?]

Today's Opinions - 9/23/09

On September 23, 2009, the Court of Criminal Appeals handed down a number of different orders including three published opinions in the following cases:

AP-75,812, Henry Watkins Skinner v. State: The CCA upheld the denial of DNA testing where the defense counsel has already declined to request testing as a matter of reasonable trial strategy. Click here for a summary of this case.

PD-0821-08, State v. Ernesto Moreno: The CCA held that the State is not able to appeal the erroneous and premature granting of an instructed verdict, but doesn't decide whether a trial court has the authority to grant an instructed verdict because the error was not preserved. Click here for a summary of this case.

PD-0912-08, State v. Michael Joseph Rhine: The delegation of the power to prohibit or control the outdoor burning of waste by the legislature to the Texas Commission on Environmental Quality did not violate the strict separation of the branches of government set out in the Texas Constitution. Click here for a summary of this case.

Case Summary - Henry Watkins Skinner v. State

Henry Skinner lived with his girlfriend and her two adult, mentally-retarded sons. On New Year's Eve, his girlfriend went to a party after leaving him passed out drunk on the couch. She returned home early to escape the lecherous advances of her uncle. Around midnight, one of the son's appeared on a neighbor's porch with multiple stab wounds. He later died. Police found Skinner's girlfriend strangled and beaten to death and her other son stabbed to death. Three bloody palm prints belonging to Appellant were found at the scene, one in the deceased son's room, and two on the door knob to the back door. Police found Skinner at three in the morning in a house three-to-four blocks away standing in a closet and wearing a shirt covered in blood. [R. Kelly was not with him.] The owner of the residence testified that Skinner gave multiple explanations including claims that a Mexican came to the door and pulled a knife, that he'd gotten into a fist-fight with his girlfriend's ex-husband, and that drug dealers were looking for his girlfriend and wanted her bad.

DNA testing of the blood on the shirt matched Skinner's girlfriend and one of her sons. Skinner advanced three defensive theories: 1) that the State's failure to test some of the DNA evidence was sloppy investigation; 2) the real culprit was the lecherous uncle; and 3) Skinner was took intoxicated to pull this off. The jury convicted him of capital murder and sentenced him to death.

In 2000, post-conviction testing of some items at the request of the District Attorney revealed DNA from an unknown male on some bloodstained gauze and two unknown individuals in some blood on a cassette tape. However, several items remained untested because the DA didn't request it or GeneScreen just didn't do it. Skinner moved to have some of those items tested, including two knives found at the scene, a rape kit from the defendant's girlfriend, a blood-like substance found on a cup-towel at the scene, blood from under the girlfriend's fingernails, and hair and blood from a jacket found in the house. The trial court denied the motion, which the CCA affirmed on direct appeal. Skinner also lost his federal habeas claims, and he filed a second request for DNA testing based upon new facts from the federal habeas claim and new legal developments. The trial court denied relief again.

The Court of Criminal Appeals affirmed the trial court's denial of DNA testing because Skinner's trial counsel's decision not to test the items was reasonable trial strategy, and therefore, Skinner could not show that it wasn't his fault that testing had not been done. Presiding Judge Keller, writing for an eight-judge majority, explained that a showing that trial counsel was ineffective for failing to have items tested might satisfy the "not his fault" provision of Article 64.01 that entitles a defendant to DNA testing if the evidence in question was not previously tested. However, there was no showing that trial counsel was ineffective in this case. Trial counsel indicated he decided not to pursue testing because he feared that it would come out adversely to Skinner.

The Court also rejected Skinner's argument that testing was required "in the interests of justice." At the federal habeas hearing the woman whose house Skinner hid out in recanted her testimony. Presiding Judge Keller leaves open the possibility that a subsequent recantation of testimony might change the analysis on whether trial strategy was reasonable such that DNA testing was required "in the interests of justice." But this was not such a circumstance because the recantation lacked credibility according to the federal habeas court.

The Court also rejected Skinner's argument that trial counsel's allegedly deficient performance for failing to inform their testifying expert that Skinner (who had been on codeine that night) was actually allergic to codeine. Even if this deficiency in a non-DNA arena could impact the need for DNA testing in the interests of justice, Skinner was not prejudiced by this alleged deficiency. [Nice to see both ineffective assistance prongs being met rather than watered down by the "interests of justice" standard.] And the fact that blood-spatter evidence could've suggested that Skinner killed his girlfriend while her son was in the room didn't undermine the evidence that suggested he was more than capable of committing the crime. Finally, even if the first post-conviction testing done by the DA could cast doubt on trial counsel's strategy, it did not in this case.

Judge Womack concurred without an opinion. Here's a link to the CCA case info. Because the appeal was direct to the CCA, there's no lower court opinion for linkage.

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Whenever Presiding Judge Keller finds a legal issue interesting, my eyes reflexively roll back in my head. It's wrong of me, I know. This is, ultimately, a pretty good little opinion that basically ports the "ineffective assistance" doctrine into the "through no fault of the convicted person" section of Article 64.01. Unfortunately, that doesn't make it interesting for me. The opinion does spend a lot of time leaving open the possibility that non-DNA evidence factors could be considered as creating a need for DNA testing "in the interests of justice." As someone who has seen the use of "interests of justice" relax standards for other grounds for motions for new trial, I kind of expected this. However, the opinion does seem to apply the two-prong, ineffective assistance standard rigorously throughout even though it seems to leave open the possibility that post-trial revelations could impact the reasonableness of trial strategy under an "interest of justice" standard in a way completely antithetical to a proper ineffective assistance analysis. But foreclosing those possibilities would have been overreaching given that the facts made it unnecessary to decide that issue. And the result isn't surprising after the SCOTUS opinion in District Attorney's Office v. Osborne. On the whole, I don't think this case makes obtaining DNA testing easier or harder for defendants, it just clarifies how courts should regard trial counsel's conduct in not seizing the opportunity for testing during trial.

Case Summary - State v. Ernesto Moreno

The State charged Ernesto Moreno with possession of cocaine. After jury selection, defense counsel sought a hearing on a motion to suppress Moreno's statements. The State informed the trial court that the officer was not there, but he was on his way. The trial court ruled the statement was inadmissible. According to the trial court, the officer was under subpoena, so his absence indicated (to the trial court) the officer's lack of interest.

The trial proceeded apace. I've always wanted to say that. During the testimony of the State's third witness, the trial court called the attorneys up to the bench to accuse the prosecution of stalling to wait for the officer, but the State needed to stop wasting the trial court's or the jury's time. The State then called the officer who was not in the courtroom, but on the second floor and on his way up. The trial court gave the State thirty seconds, which came and went. No officer. The trial court asked if the State rested, and the State replied "No."

Defense counsel then moved for directed verdict, arguing that the State had not met every element. The judge excused the jury and asked the State to respond. The State responded that it was 2:55 and the officer was waiting outside and ready to testify. The trial court said that the officer had been subpoenaed for 1:30. The trial court granted the motion. The State argued that it had met all the elements, but the trial court remained dubitante. A few days later, the trial court signed an order granting the motion for directed verdict and dismissed the case with prejudice.

The court of appeals dismissed the State's appeal for lack of jurisdiction. The court of appeals acknowledged that the State can appeal the dismissal of an indictment, it cannot appeal a judgment of acquittal. Because this was a judgment of acquittal, the State lacked the authority to appeal under the statute.

The CCA affirmed, holding that the trial court intended to grant an acquittal and therefore the State could not appeal the trial court's order. Judge Keasler, writing for an eight-judge majority, explained that an acquittal represents a ruling that amounts to a resolution of the case, correct or not. A dismissal, on the other hand, does not involve a final determination on guilt or innocence. Here, the trial court purported to hold that the elements of the offense had not been met, and that looks a lot more like an acquittal than a dismissal. Moreover, the United States Supreme Court had held, in Fong Foo v. United States, a spare, but factually analogous case, that the State can't appeal a motion for directed verdict even when the trial court totally oversteps its authority by granting it because that would violate the Double Jeopardy clause. The Court rejected the State's argument that the directed verdict was not an official "fact-finding" because the trial court is not authorized by statute to make a fact-finding when the defendant has selected a jury to decide his culpability. The Court distinguished Ex parte George (where the trial court entered a judgment of acquittal when the State would not consent to a jury waiver) by noting that the case was not about Double Jeopardy because jeopardy had not attached. However, at the end, the Court notes that the State failed to preserve the argument that a trial court lacks the authority to grant a directed verdict. So, despite how unacceptable and inexcusable the trial court's actions may have been, even an erroneous acquittal bars further prosecution.

Judge Holcomb dissented. While he agreed that the trial court has the authority to grant a directed verdict, he would regard this as a defense requested mistrial. The majority rejected this argument as well because Moreno did not request and the trial court did not grant a mistrial in form or substance. [In other words, I mean it when I say this was an acquittal. An acquittal is an acquittal is an acquittal. It is what it is.] Also, Moreno did not invite the error. Well, he did invite the error. He just wasn't the one complaining about it on appeal, so the doctrine of invited error would not prevent Moreno from arguing that the State lacked authority to appeal an order that the trial court should not have rendered.

Here's a link to the CCA case info. Here's a link to the court of appeals case info. Here's a link to the oral arguments. And here's my post when the CCA granted discretionary review. And here's a link to a song about Tania. Not Tanya Dohoney (hence the spellidge), but Patty Hearst's urban guerrilla namesake, but it's still a song about a Tania, even if not the Tania.

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And so it goes. It was an interesting argument, but you had to totally expect this from former district judge Keasler. And this kind of holding as well. It's an acquittal because the trial court says it is. While he seems to imply that the State could raise the issue if the State preserves error in the trial court, with an 8-1 holding and the dissent agreeing that the trial court has the authority to grant a directed verdict, I'm not going to hold my breath waiting for this argument to succeed. And perhaps they implicitly rejected the argument anyway just by rejecting the State's argument that the trial court could only grant a dismissal because statutorily it had no authority to act as a fact-finder once the defendant chose the jury. Although, the acquittal in Fong Foo was much more clear cut because the trial court didn't enter the acquittal, he ordered the jury to do it. Maybe that distinction matters. Maybe it doesn't. It sure looks like the CCA doesn't think it matters.

Case Summary - State v. Michael Joseph Rhine

Michael Rhine burned crossties, fiberglass, tires, and pvc pipe, which violated sections 111.201 and 111.219(7) of the Administrative Code. These sections were promulgated under the rulemaking authority granted to the Texas Commission on Environmental Quality Health and Safety Code, making the conduct a violation of The Water Code. [I don't know what I find more confusing, that a violation of the clean air act is found in the Water Code or that the Water Code is not just for riparian rights anymore. The times they are a changin'.] Anyway, Rhine was charged with illegal outdoor burning.

Rhine filed a motion to quash, alleging that the delegation of authority to the TCEQ by the Legislature in the Health and Safety Code violated Article II, Section 1 of the Texas Constitution. This section basically requires that all branches of the government remain separate, but you can follow the link to check it out if you're curious. The court of appeals affirmed, holding that the statute did not amount to an improper delegation of legislative authority. The court of appeals essentially explained that the Legislature, which only meets every other year for a few months, can't be expected to practically and efficiently decide what materials should be banned from outdoor burning.

The CCA affirmed, also holding that the statute did not impermissibly delegate the legislature's rulemaking authority. Judge Johnson, writing for a five-judge majority, explained that generally the legislature can establish a policy and fix a primary standard, but delegate to another agency or branch the authority to work out the details. Even if the delegated agency has discretion, as long as there are standards formulated for guidance and limitation of that discretion, the delegation is not unconstitutional. Here, the statute delegated the power to TCEQ to "control and prohibit the outdoor burning of waste and combustible material" and to "include requirements concerning the particular method to be used to control or abate the emission of air contaminants from that burning." The standards sufficiently limited TCEQ's authority to deciding what materials, when burned, amounted to "air contaminants." It also limited TCEQ to exercising control over the places and conditions under which those materials may be burned. [Maybe it's just me, but these things don't seem like limitations at all. I mean, anything except air could be a contaminant, and control over when and where things can be burned leaves a wide open field . . . so to speak.]

Presiding Judge Keller concurred because the briefing in this case was transcendental in its effectiveness so she wanted to take some time to write thirty-one more pages on illegal outdoor burning and separation of powers. She's so wild. And yet Meyers joined this one, hmmm. Joined by five other judges (Judge Holcomb joined both opinions . . . the man is unstoppable!), Presiding Judge Keller explained that the Texas Constitution's separation-of-powers provision is not more strict simply because it's explicitly spelled out in the Texas Constitution while the concept is not spelled out in the federal Constitution. However, defense of the non-delegation line between the legislative and executive branches is almost non-existent in the federal system, so Texas defense would necessarily have to be more robust. [Clearly she has never seen the Houston Texans play.]

That said, Judge Keller rejected Rhine's argument that the legislature can never delegate the power to fix elements of a criminal offense. The CCA had, in past cases, upheld legislative attachment of criminal penalties to the violation of regulations in proper circumstances, namely when the administrative agency is acting under specific command of the Legislature in establishing rules. Presiding Judge Keller goes on to note that many other states have addressed the delegation question with respect to criminal penalties, but the weight of authority cut against Rhine's position. And, as a practical consideration, separation-of-powers is concerned with the government's relationship with itself not with its citizens, so it makes no sense to draw a distinction based upon whether a given regulation is criminal or civil. Such a distinction really only matters to the citizen affected by the regulation, it doesn't really change the scope of delegation. [I added that last editorial part in to try and internalize an understanding of the opinion.]

Finally, the concurrence set out to figure the scope of the Texas Constitutional provision dealing with the separation-of powers. Presiding Judge Keller noted that this Court and other courts have widely upheld such delegations so long as there are proper standards to guide administrative discretion. When the issues are more complex, the standards can be more general. Environmental regulation is, in a word, complex. And though standards can't be so broad that discretion is unbridled, the presence of procedural safeguards, such as pre-adoption public hearings and post-adoption judicial review, help ensure the agency conforms to those standards.

With this backdrop, Presiding Judge Keller proposed a rule for determining the constitutionality of a delegation of authority. It's okay so long as four conditions are met: 1) the delegation can, at least by implication, be characterized as the delegation of authority to make a factual determination relevant to the purpose of the statute, rather than simply a policy decision, (2) the statute contains standards, expressly provided or implied from an express statutory purpose, that are sufficiently specific to give guidance to the agency and to the courts as to what types of rules or other actions are and are not permissible, (3) pre-adoption procedural safeguards exist to ensure that the agency has the opportunity to consider whether the rule or other action conforms to the legislative standards, and (4) post-adoption judicial review is available to ensure that the agency rule or other action does in fact comply with the legislative standards. According to Presiding Judge Keller, and the other five concurring judges, this delegating statute satisfies these four requirements.

Here's a link to the CCA case info. Here's a link to the court of appeals case info. Here's a link to my post when the CCA granted discretionary review. Here's a link to the oral arguments.

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Well, I like Presiding Judge Keller's new proposed test because it provides more guidance than simply saying the legislature provided guidance and limitations. That kind of makes this a weird anomaly of an opinion because Judge Holcomb double-dipped. Does this mean, this test is what we look at or do we only have to look at whether there were goals and limitations? There was some overlap between the two opinions, as both said just that, but the concurrence seems to make clearer why we look at the purpose and how we look at the limitations. Or, maybe that's just a gloss. I just wish they could've combined both opinions for one big unanimous one. I mean, it's not like there's any real disagreement between the two opinions.

Oral Argument - 9/16/09

On September 16, 2009, the CCA heard oral argument in the following cases:

AP-75,793, Roosevelt Smith, Jr. v. State, a capital murder case out of Harris County:

Appellant's opening - Janet Morrow
State's response - Jessica McDonald
Appellant's rebuttal

This is a death penalty case so appeal to the CCA was automatic. Consequently, here wasn't an underlying opinion or post when the CCA granted discretionary review.

PD-1218-08 & PD-1219-08, PD-1220-08, PD-1221-08, Frank Trinidad v. State & Johnny Adams, Jr. v. State, a murder case out of Atascosa County and three aggravated sexual assault cases out of Wilson County:

State's opening - Marc Ledet
Appellant's response - Deborah Letz
State's rebuttal

Here's a link to Trinidad's court of appeals opinion. Here's a link to Trinidad's court of appeals case info. Here's a link to Adams' court of appeals opinion(s). Here's a link to Adams' court of appeals case info. Here's a link to my post when the CCA granted discretionary review in both cases.

PD-1441-08, David Lee Anderson, II v. State, an aggravated sexual assault case out of Galveston County:

State's opening - Roger Ezell
Appellant's response - Winston E. Cochran, Jr.
State's rebuttal

Here's a link to the court of appeals opinion. Here's a link to the court of appeals case info. Here's a link to my post when the CCA granted discretionary review.

Issues Granted - 9/16/09

On September 16, 2009, the Court granted review in the following cases on the following issues:

PD-0250-09 & PD-0251-09, Claude Wayne Chadwick v. State: The CCA granted Chadwick's petition for discretionary review without oral argument in these assault and attempting to take a weapon from a peace officer cases out of Tom Green County on the following issues:

The federal right to self-representation requires that a defendant who is competent to be tried for a crime be permitted to proceed pro se if that is the defendant's choice. The Court of Appeals erred in effectively holding that Indiana v. Edwards overruled Faretta v. California, 422 U.S. 806 (1975) and its progeny; and in holding that a finding that Mr. Chadwick was not competent to represent himself could be inferred from the record in the absence of any findings by the trial court in that regard and in the absence of any evidence in the record to support those implied findings.

Here's a link to the underlying court of appeals case info and opinion. Click here for a summary of the underlying case.

PD-0499-09 & PD-0500-09, Stephen Bernard Jones v. State: The CCA granted the State's petition for discretionary review with oral argument in this false statement to obtain property or credit case out of Tarrant County on the following issues:

1. The court of appeals erred in holding that a double-jeopardy violation occurred when Appellant was convicted and punished for each distinct material false or misleading statement he made in each loan application at issue because each such statement constituted an allowable unit of prosecution under Tex. Penal Code Ann. § 32.32 given that each statement related to separate matters and was sufficient standing alone to cause the granting of credit in an amount of more than $200,0002.

2. The court of appeals' holding that the gravamen of the offense of false statement to obtain property or credit is the property or credit sought or obtained pursuant to the false or misleading statement or statements conflicts with the plain language of Tex. Penal Code Ann. § 32.32 defining the offense and is, therefore, contrary to the principles of statutory construction.

3. The court of appeals' holding that the gravamen of the offense of false statement to obtain property or credit is the property or credit sought or obtained pursuant to the false or misleading statement or statements conflicts with the decision in Cheney v. State, 755 S.W.2d 123 (Tex. Crim. App. 1988), stating that the gravamen of the offense is the act of making such a statement and that the offense is complete once the written, deceptive statement relative to obtaining property or credit is made.

4. The court of appeals erred in analogizing the offense of false statement to obtain property or credit, which addresses deceptive conduct, and the offense of felony theft, which focuses on the acquisition of property, to determine the allowable unit of prosecution under Tex. Penal Code Ann. § 32.32 for false statement to obtain property or credit.

5.By holding that the allowable unit of prosecution for false statement to obtain property or credit is the property or credit sought or obtained pursuant to the false or misleading statement or statements rather than each material false or misleading statement made to obtain property or credit, the court of appeals has judicially mandated aggregation of distinct offenses committed under Tex. Penal Code Ann. § 32.32 and denied the State discretion in matters of aggregation.

Here's a link to the underlying court of appeals case info and opinion. Click here for a summary of the underlying case.

PD-0873-09, State v. Matthew Ryan Dobbs: The CCA granted the State's petition for discretionary review with oral argument in this Collin County theft case on the following issue:

Supreme Court precedent allows the seizure of an item in plain view when it is immediately apparent the item is evidence without any further search of the object. But in White v. State, this Court held that an item in plain view may only be seized when its evidentiary nature is apparent without any further investigation. Should White be overruled because it is contrary to binding Fourth Amendment precedent of the Supreme Court?

Here's a link to the underlying court of appeals case info and opinion. Click here for a summary of the underlying case.

PD-0914-09, Troy A. Bowley v. State: The CCA granted the State's petition for discretionary review with oral argument in this DWI case out of Lubbock County on the following issues:

1. Is a defendant immune from impeachment when he opens the door by basing his entire defense around the implicit representation that he always pleads guilty when he is guilty?

2. Is questioning the defendant's underlying motives for refusing to accept a plea offer error in all situations, no matter what the defendant says or does through his own testimony?

3. Was the court of appeals correct in essentially finding harm per se based solely on a public policy analysis without any meaningful harm analysis?

Here's the underlying court of appeals case info and opinion.. Click here for a summary of the underlying case.

Issues Granted - Claude Wayne Chadwick v. State

The CCA granted Chadwick's petition for discretionary review in this case without without oral argument in these Tom Green County assaulting a public servant and attempting to take a weapon from a peace officer cases on the following issues:

The federal right to self-representation requires that a defendant who is competent to be tried for a crime be permitted to proceed pro se if that is the defendant's choice. The Court of Appeals erred in effectively holding that Indiana v. Edwards overruled Faretta v. California, 422 U.S. 806 (1975) and its progeny; and in holding that a finding that Mr. Chadwick was not competent to represent himself could be inferred from the record in the absence of any findings by the trial court in that regard and in the absence of any evidence in the record to support those implied findings.

Here, Chadwick had been transported over from the local jail to see the judge on an unrelated case. He was restrained by a chain that circled his arms and chest, limiting the mobility of his arms, and by handcuffs. When he found out that he wasn't going to see the judge, he was very dubitante. He demonstrated his strong negative feelings about this situation by saying "You better get some backup because I'm going to see the judge, Jerry." He then lunged at the Deputy Sheriff, pinning him against the wall, and grabbing for the officer's gun. The deputy also felt Chadwick kicking the deputy several times in the leg. The deputy managed to get the attention of a nearby bailiff who helped break up the fight.

Chadwick tried to represent himself on the assault on a public servant and attempting to take a weapon from a police officer because self-representation is always such a good idea, particularly for someone accused of assaulting an officer while in jail. Chadwick argued that he was competent to stand trial, so he was competent to represent himself. Understandibly, the trial court was dubitante about this set of circumstances. Moreover, he had observed Chadwick make several incoherent motions that his appointed counsel did not adopt in previous settings, such as "I'm trying to bring together the thought, Judge, that his misconduct will need to be questioned in the grand jury matters and in many matters, so it's--it's relevant to him. It's just bringing up different topics required to show multiple areas and collateral consequences from him and repetition of it reoccurring repeatedly." The court of appeals held that the trial court could have reasonably determined that Chadwick was not competent to represent himself under Indiana v. Edwards. Here's a link to the underlying court of appeals case info and the CCA case info.

[While I can see the CCA taking the opportunity to set out how Indiana v. Edwards should play out in Texas, I am dubitante that it will change the outcome. However, I'm not entirely sure what dubitante means, so perhaps my dubitante position is deserving of some dubitante action itself. After all, the trial court and the court of appeals focus on Chadwick's lack of trial skills, not whether or not he had a severe mental illness, which seemed to be the touchstone in Indiana v. Edwards. And here's a paper on pro se competence after Indiana v. Edwards, just for fun.]

Issues Granted - Stephen Bernard Jones v. State

The CCA granted the State's petition for discretionary review with oral argument in this false statement to obtain property or credit case out of Tarrant County on the following issues:

1. The court of appeals erred in holding that a double-jeopardy violation occurred when Appellant was convicted and punished for each distinct material false or misleading statement he made in each loan application at issue because each such statement constituted an allowable unit of prosecution under Tex. Penal Code Ann. § 32.32 given that each statement related to separate matters and was sufficient standing alone to cause the granting of credit in an amount of more than $200,0002.

2. The court of appeals' holding that the gravamen of the offense of false statement to obtain property or credit is the property or credit sought or obtained pursuant to the false or misleading statement or statements conflicts with the plain language of Tex. Penal Code Ann. § 32.32 defining the offense and is, therefore, contrary to the principles of statutory construction.

3. The court of appeals' holding that the gravamen of the offense of false statement to obtain property or credit is the property or credit sought or obtained pursuant to the false or misleading statement or statements conflicts with the decision in Cheney v. State, 755 S.W.2d 123 (Tex. Crim. App. 1988), stating that the gravamen of the offense is the act of making such a statement and that the offense is complete once the written, deceptive statement relative to obtaining property or credit is made.

4. The court of appeals erred in analogizing the offense of false statement to obtain property or credit, which addresses deceptive conduct, and the offense of felony theft, which focuses on the acquisition of property, to determine the allowable unit of prosecution under Tex. Penal Code Ann. § 32.32 for false statement to obtain property or credit.

5.By holding that the allowable unit of prosecution for false statement to obtain property or credit is the property or credit sought or obtained pursuant to the false or misleading statement or statements rather than each material false or misleading statement made to obtain property or credit, the court of appeals has judicially mandated aggregation of distinct offenses committed under Tex. Penal Code Ann. § 32.32 and denied the State discretion in matters of aggregation.

Jones worked for a mortgage company and submitted two uniform residential loan applications on two separate residential properties. He also made false statements on the applications stating that he owned two fictitious bank accounts. He also submitted someone else's credit report as his own. He was charged under two different indictments, but each indictment had three counts. All of the counts within each indictment dealt with a single loan application (I think the implication is that each indictment represented a separate loan application; it wasn't six counts for just one application). He was convicted on each of these counts, receiving six sentences. Jones argued that he should only have received one sentence for each loan application because each application was an allowable unit of prosecution. Thus, double jeopardy barred him from receiving six sentences when he should have received two.

The Fort Worth Court of Appeals agreed. According to the Court, the allowable unit of prosecution is the property sought or obtained via the false statements. While the Court of Criminal Appeals had previously indicated that the gravamen of the offense of false-statement-to-obtain-credit was making the statement in Cheney v. State. However, that case dealt with whether the offense of theft was in pari materia with false-statement-to-obtain credit. Moreover, since that case, the legislature had added a value ladder to the FSTOC offense to increase the penalty based upon the value of the property secured with the false statement. This, according to the majority, the amended offense is more analogous to a theft charge where the allowable unit of prosecution is the object or objects stolen. The court of appeals modified the judgments to vacate the second and third counts in each indictment. Here's a link to the underlying court of appeals case info and to the CCA case info.

[I wonder if we'll get another eighth-grade grammar test out of this. I know, that's jury unanimity, but I think that whenever I see the word "gravamen." It's almost Pavlovian now. This also kind of reminded me of Huffman v. State, the failure to stop and render aid case, just because that case dealt with a lot of things happening to lead to one offense. That's why I think the State was smart to note that each individual false statement, standing alone, could've secured the total monetary amount. Seems to mesh well with the CCA's previous discussion of FSTOC in Cheney v. State, but the majority's analogy to the theft statute also seems to make sense, at least superficially. We'll have to wait and see.]

Issues Granted - State v. Matthew Ryan Dobbs

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

Supreme Court precedent allows the seizure of an item in plain view when it is immediately apparent the item is evidence without any further search of the object. But in White v. State, this Court held that an item in plain view may only be seized when its evidentiary nature is apparent without any further investigation. Should White be overruled because it is contrary to binding Fourth Amendment precedent of the Supreme Court?

Pretty straightforward case. Police were surveilling Dobbs prior to executing a warrant at his house for cocaine and marijuana. Dobbs left with some golf clubs, and police executed the warrant after Dobbs was stopped on some outstanding traffic warrants. [I always love that, the warrants weren't simply great, no, they were OUTSTANDING! Like it's a blurb on the back of a book.] While searching the residence police noticed two bags of golf clubs with the price tags still on them and several shirts from a nearby country club. Police called dispatch to see if there had been any burglaries at the country club, and lo and behold, some golf clubs and golf shirts had been stolen. The items in the home matched the description of the items stolen, and the officers seized the evidence without a warrant. Dobbs was charged with theft of the golf clubs (and shirts), and he moved to suppress on the ground that the officer did not have probable cause to seize the clubs because it was not immediately apparent that the clubs were stolen. The trial court suppressed the evidence, specifically finding that the officer had reasonable suspicion before they investigated further, but the officers exceeded the scope of the warrant because they had to conduct a further investigation to establish probable cause to believe the clubs were stolen.

The Dallas Court of Appeals affirmed the trial court's suppression of the evidence. According to the court of appeals, the CCA held in White v. State, that there must be probable cause to immediately believe that items were stolen before they can be seized. The State noted that White was decided when there was still a requirement that the discovery of the contraband be "inadvertent" as well as "immediately apparent" as contraband. Because the Supreme Court dropped the "inadvertence" requirement subsequent to White, the State argued that the CCA's interpretation of the the Fourth Amendment in White was outdated. However, the court of appeals rejected this argument noting that White had also prohibited additional investigation on the part of law enforcement beyond a search of the items themselves. Here's a link to the underlying court of appeals case info and the CCA case info.

* * * * *

This case does highlight how problematic White is. White dealt with a case where police entered an apartment in response to a disturbance and saw objects that they thought were stolen. Unfortunately for them, every person they called to check on whether these items were stolen indicated that the objects weren't stolen. It wasn't until the police left the apartment that they finally verified that the items were stolen. The CCA held that the seizure was bad because there was no evidence that it was readily apparent that the items were stolen AND the discovery that the items were in fact stolen was not inadvertent. Complicating matters further, the CCA based its decision on the Supreme Court's decision in Arizona v. Hicks, a case where the police had actually manipulated the objects they suspected to be stolen rather than pursuing other investigative avenues. Hicks makes sense as a comparison when there's an inadvertence requirement, but without it, it becomes distinguishable.

Factually, this case seems very distinguishable from White just in the fact that White was a situation where the police pretty much unreasonably extended their search. This case looks more like a house search version of Arizona v. Johnson, where the police were lawfully executing a search warrant, could've looked in the golf bags themselves (you can put cocaine and marijuana in golf bags, right?), but making a phone call in the process exceeds the scope of the warrant? I'll be interested to see what guidance we get on what makes something "immediately apparent" as contraband. The CCA is already interested in this issue, as evidence by them granting review in Powell v. State. (Click here for my post on when review was granted and here for a link to the oral arguments.) When Powell is decided, we might get some idea how Dobbs will turn out.

And doesn't the fact that this involves the mere theft of golf clubs seem like it's one of those cases that's going to end up being important? Or perhaps I just jinxed it. I take it back. How mundane. However, the case is well set up for the State's appeal of this issue, so good work on the part of the Collin County appellate prosecutors.

Issues Granted - Troy A. Bowley v. State

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

1. Is a defendant immune from impeachment when he opens the door by basing his entire defense around the implicit representation that he always pleads guilty when he is guilty?

2. Is questioning the defendant's underlying motives for refusing to accept a plea offer error in all situations, no matter what the defendant says or does through his own testimony?

3. Was the court of appeals correct in essentially finding harm per se based solely on a public policy analysis without any meaningful harm analysis?

Here, Bowley took the stand in his own defense in a felony DWI trial. He admitted to pleading guilty to several prior offenses, but he denied committing the felony DWI. Thus, he conveyed the idea to the jury that he took responsibility for his conduct when he was actually wrong, but because he was not doing so here, he must be not have violated the law. On cross-examination the State asked whether the reason he was not pleading guilty now was "because we couldn’t agree on a plea agreement that you preferred." Bowley objected, and the trial court sustained the objection, but refused to give an instruction to disreard the statement regarding the plea negotiation.

The Amarillo Court of Appeals held that this amounted to harmful error. The court of appeals explained that the references to plea negotiations were very prejudicial and of limited or no relevance. The court of appeals went on to note that it is the "policy" of this state that unless an instruction to disregard is given, the jury can consider the evidence for all purposes. Also revealing plea negotiations adversely affects the "policy" of encouraging plea bargains. Finally, "there exists a legitimate question as to whether affirming this judgment by holding the error harmless would invite the State to repeat this wrong and others." Here's the underlying court of appeals case info and the CCA case info.

[I love a good policy argument as much as the next guy, but the court's jump to the policy argument seemed a little like repressed anger to me. Regardless of the policies at work here, seems like the fact that the defendant opened the door to this type of impeachment might not hurt those policies too much. Also, the court of appeals seems to be coming from the position that the comment wasn't permissible simply because the trial court sustaining the objection. Perhaps an analysis of whether the trial court should have sustained the objection in the first place might have resulted in a different outcome.]

Today's Opinions - 9/16/09

They're Baaaaack! Well, it's not like they moved out of Cresta Verde in the middle of the night.

Today, the Court of Criminal Appeals handed down a few published opinions (all while having heard oral arguments, which will be posted at some undetermined date in the future). Here they are:

AP-76,055, In re Victor Hugo Escareno: The Court of Criminal Appeals dismissed a mandamus order as moot when the District Clerk of Hidalgo County finally forwarded on Escareno's writ of habeas corpus to the CCA, but not until holding the District Clerk in contempt. I guess the District Clerk was Le Miserable. Click here for an only slightly more detailed summary.

AP-76,092 & AP-76,093, Ex parte Phillip Alan Harbin: The CCA held that the defendant's California convictions for lewd and lascivious acts with a child under 14 and annoying and molesting a child did not give Harbin a duty to register as a sex offender. Click here for a more detailed summary.

PD-1047-08, Jason Wayne Hunter v. State: The CCA dismissed as moot, the State's petition for discretionary review because the defendant died. I know, you're all on the edge of your seat wondering why not a permanent abatement? Click here for a slightly more detailed summary to find out the answer.

PD-1304-08, Phillip Jason Hall v. State: The CCA held that even though a 702 showing of scientific reliability is not required in a pre-trial motion to suppress hearing, relying solely upon the use of LIDAR as a basis for a traffic stop without some indication of the officer's observations does not establish probable cause. Judge Price concurred. Click here for a more detailed summary.

Case Summary - In re Victor Hugo Escareno

Victor Hugo Escareno filed a writ of habeas corpus with the 370th District Court of Hidalgo County. Thirty-five days passed without the District Clerk forwarding the application on to the CCA. The CCA attempted to collect the information from the District Clerk, but received no response. Escareno filed a writ of mandamus in the Court of Criminal Appeals. The CCA held the writ in abeyance giving the District Clerk an opportunity to respond. The trial court entered an untimely order designating the issues to be resolved, but the deadline for the clerk to comply with the CCA's order passed without the clerk responding to the order. The CCA sent a letter to the clerk, but received no response.

On May 14, 2008, the CCA entered a show cause order requiring the District Clerk to file an affidavit explaining why she shouldn't be held in contempt. Five days later, the CCA received Escareno's writ application, making the mandamus moot. Three days after the CCA received the writ application (May 22, 2008), the clerk received the show cause order. The CCA received two affidavits (one from the Assistant Criminal District Attorney and another from the Deputy District clerk) before the deadline for the District Clerk's affidavit, but it received nothing from the District Clerk herself.

Judge Meyers, joined by seven other judges, held the District Clerk in contempt and assessed a fine of $500. Presiding Judge Keller dissentd without an opinion. There's no underlying court of appeals opinion, but here's a link to the order on the writ of mandamus.

Case Summary - Ex parte Phillip Alan Harbin

The State of California incarcerated Phillip Harbin for the 1994 offense of annoying or molesting a child under 18 and the 1988 offense of engaging in lewd and lascivious acts with a child under 14. When he got out of the California prison, he moved to Texas to live with his brother. He went to his local police department to register, but the told him to wait for the department to determine whether he was required to register. DPS contacted the management of Harbin's brother's apartment to let them know Harbin was a sex offender. The management threatened to evict Harbin's family if Harbin was seen on the premises. He went to stay in a hotel, and informed police of his change of address. Later, he moved in with his mother, but could not register a residential address because his mother lived in the same apartment complex that had threatened to evict Harbin's family if he was seen on the premises. As a result, he was arrested for failing to register as a sex offender.

Harbin then moved into a hotel in Plano, and registered with the Plano police. When he was subsequently kicked out of the Plano hotel the next day, he moved in with his mother in her new apartment in Dallas. He promptly contacted the Plano police to let them know he had relocated. The following week, Harbin contacted DPS to inform them of his registration problems and his intent to register. He attempted to register in Dallas, but the Dallas Police Department required an affidavit from Harbin's mother's apartment complex manager stating it was okay for Harbin to be living there. The Dallas Police did not issue a registration receipt, but told Harbin to call them if there were any problems. The next day DPS arrested Harbin at his mother's apartment complex for failure to register.

Harbin plead guilty to two offenses for failure to register. While Harbin also had a 1996 California convictions for indecent exposure and and a 1995 one for sexual battery, the indictment only listed the 1994 and 1988 convictions as a basis for his duty to register as a sex offender. Harbin later filed writs to overturn his conviction based on the unconstitutionality of the statute, the involuntariness of his plea, and the ineffectiveness of his representation, but the CCA denied relief without a written order. Harbin filed a subsequent writ based upon a determination by DPS in 2008 that the California crime of annoying or molesting a child is not substantially similar to a Texas offense requiring registration. He also alleged that his convictions prior to September 1, 1995 did not require him to register as a sex offender in Texas based upon the savings clause in the 1997 legislation.

The Court of Criminal granted relief. Judge Meyers, writing for an eight-judge majority, explained that under the Sex Offender registration Act in effect at the time of Harbin's failure to report, out-of-state, sex-offense convictions before September 1, 1995 were not reportable offenses. In 1997, the legislature changed that law and allowed for such offense to become reportable if the defendant was incarcerated in a Texas Penal institution on the offenses or still on community supervision for them on September 1,1997. Harbin was neither, so he was not required to register for those two offenses. However, the CCA held that Harbin will have to register for the California offenses of lewd and lascivious conduct with a child, indecent exposure, and sexual battery, just not the annoying or molesting charges, which DPS has not declared substantially similar. But, because those offenses were not listed in the indictment, the CCA granted relief.

Presiding Judge Keller dissented without an opinion. Here's a link to the CCA case information on AP-76,092 and AP-76,093. Because they were both writs, there are no underlying published opinions for which I can provide a link.

Case Summary - Jason Wayne Hunter v. State

The trial court granted a mistrial in Jason Hunter's case when it found out that one of the jurors had sat on the grand jury. On the retrial, the trial court denied Hunter's claim that the mistrial was not a manifest necessity and that subsequent prosecution should be jeopardy barred. The court of appeals disagreed, and held that double jeopardy did bar Hunter's prosecution. The State petitioned for discretionary review. The CCA granted it. Then, Hunter died.

Normally, this would lead to a permanent abatement to a higher court. [Hee, hee, hee, how cute, appellate humor.] But, in circumstances where the State appeals, dismissal is proper. Why? Because when the defendant appeals and dies in the middle of his appeal, dismissal makes the case final without consideration of the defendnt's appellate argument. However, when the State appeals, the dismissal would have no practical effect on matters below, and an ultimate reversal would put the State in the position of retrying a dead man and have no practical effect. Thus, Judge Price, writing for a unanimous majority, dismissed the State's petition for discretionary review.

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 on the oral argument, and a link to my post when the issue was granted.

[Does this mean that the underlying, published opinion will be withdrawn as it would in a permanent abatement sitution? If so, then why not just permanently abate everything without the need for this exception and discussion. If not, is it fair to say this has "no practical effect" when the precedent will effect other cases? I'm dubitante about the need for this exception.]

Case Summary - Phillip Jason Hall v. State

A police officer used LIDAR (Light Detection and Ranging) to detect that Phillip Hall was going eleven miles per hour over the speed limit. The officer indicated that at the beginning of his shift, he turned the device on and it initiated a self-test, which the LIDAR passed. The officer indicated he was not certified to operate the device and he was uncertain whether anyone maintained the device to ensure reliability and accuracy. The officer indicated that the LIDAR provided the sole basis for the stop. The officer stopped Hall without a warrant for speeding, and, based upon the interaction with Hall, arrested him for speeding. Hall moved to suppress the evidence, which the trial court denied.

The Waco Court of Appeals reversed, holding that the trial court abused its discretion by denying the suppression motion when the State failed to prove the reliability of the LIDAR technology on which the officer based his speeding determination. The State relied upon cases upholding the use of RADAR, which was different than LIDAR. No cases were presented or found confirming the relibility or admissibility of LIDAR. Moreover, the officer did not provide any testimony that he independently observed that Hall was speeding, so the LIDAR could not be used to corroborate those observations. Presiding Justice Gray dissented without an opinion.

The Court of Criminal Appeals affirmed. Judge Keasler, writing for an eight-judge majority, first explained that Rule 702, which governs the admissibility of scientific evidence, did not apply in pre-trial motions to suppress. However, the majority also upheld the lower court's determination that the evidence did not estabish probable cause. [Wrong standard for the stop, but probably wouldn't change the outcome of the opinion.] The State did not show that the officer relied upon "reasonable trustworthy information" to arrest because it did not offer any evidence regarding the reliability of the LIDAR technology. Neither did the trial court take judicial notice of that reliability. Finally, there was no evidence that the officer used the LIDAR device to corroborate his own independent observations and opinion that the defendant was speeding. So, while it may be necessary to determine what quantum of proof is necessary to establish the reliability of LIDAR technology for establising probable cause (something less than Kelly, but greater than zero), the Court refrained from doing so in this case. Or, as the majority said, "Our holding today is limited to the facts of this case. It is likely that in some future case, it will become necessary for a court to decide what quantum or quality of information is necessary to establish the relibiity (i.e. reasonable trustworthiness) of LIDAR technology for measuring speed when a defendant challenges the reliability of that information to defeat probable cause at a pretrial suppression hearing."

Judge Price concurred, along with Judge Johnson and Judge Holcomb. The concurrence essentially said, "What he said." Judge Price re-emphasized that the issue below was not whether the court of appeals had held a full-blown 702 hearing was required, but whether the evidence sufficiently established probable cause. The evidence regarding the LIDAR was just as compelling as relying upon a blue cube on the officer's dashboard (presumably purchased from some unlisted shop on Daigon Alley). This amounted to no showing of reliability whatsoever for the concurring judges. Presiding Judge Keller dissented without an opinion.

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

* * * * *

I think this case has some potential for mischief. It doesn't say LIDAR is unreliable, but it will probably be cited for that proposition. And practically speaking, by saying they weren't going to decide the reliability issue, they may have just required the very type of evidentiary hearing that they say is not required in pre-trial motions to suppress. At least until another case makes its way up on appeal. That said, Judge Keasler does exercise judicial restraint here. It would've been nice to have some guidance on what amounts to "reasonably trustworthy information", but that wasn't necessary to the opinion when there wasn't any information on the reliability. Maybe the case would've come out differently if the prosecution had elicited that the officer has repeatedly relied upon LIDAR to corroborate his observations or even that it did so in this case. But saying that would have been advisory.

I am, however, a little tickled that Judge Meyers didn't get upset that the State was so persuasive in getting discretionary review granted on one issue when both the majority and the concurring opinions seemed to suggest that Rule 702's applicability wasn't really crucial. Perhaps that suggests the issues are more intertwined than any of the opinions suggest. Or maybe he was just busy punishing the Hidalgo District Clerk.

Oral Argument - 9/11/09

On September 11, 2009, the CCA heard oral argument at The Belo Mansion at the behest of the Dallas Bar Association in the following case:

AP-75,879, Juan Lizcano v. State, a capital murder case out of Dallas County:

Appellant's opening - John G. Tatum
State's response - Christi Dean
Appellant's rebuttal
Post-argument Q&A

This was a death penalty case so I don't have any links to underlying cases for you. However, there is a unique Q&A afterwards with some students that were in attendance pursuant to the event put on by the Dallas Bar Association. Enjoy.

Today's Opinions - 9/9/09

Looks like the Court hasn't returned from its vacation. Hey, I can't blame them. On September 9, 2009, the Court handed down several orders denying habeas relief. However, there were no new issues granted or any new published opinions.

The New Oral Arguments Are Here! The New Oral Arguments Are Here!

Okay, I've been a jerk holding on to these for a few months. But the thought of blogging just became so daunting for me. In any event, I'm trying to right the ship. I back-dated the posts so that if you go back and look by date in the left-hand column they'll be in the right spot.

Here's a link to the oral arguments from June 3, 2009.

Here's a link to the oral arguments from June 17, 2009.

I will say that listening to these arguments I was just so heartened to hear the accomplished arguments from both sides of the aisle in response to the genuine curiosity from the Court. I guess that's one of the reasons I dig the CCA; they seem genuinely curious about the law. And, as a group, they have a much more genial personality than their opinions might otherwise suggest. I can't believe I'm saying this, but it's kind of nice to be back.

Today's Opinions - 9/2/09

No new published opinions today. See for yourself. Also, no new issues granted. Yes, I'm aware that there are three days where the Court granted review that I have to go back and put in. I'm trying Ringo. I'm trying to be the shepard, but it's hard.