Issues Granted - 11/4/09

On November 4, 2009, the CCA granted discretionary review in the following cases on the following issues:
PD-1779-08, Ronald Lamont Guyton v. State: The CCA granted Guyton's petition for discretionary review without oral argument in this possession of a controlled substance with intent to deliver case out of Brazos County on the following issues:

1. Review is justified because the Tenth Court of Appeals misapplied the "mailbox rule" contained in rule 9.2(b)(1) of the Texas Rules of Appellate Procedure and therefore was without jurisdiction to issue their second opinion dated February 6, 2009.

2. Review is justified because the Tenth Court of Appeals failed to meet the requirements of amended Rule 50 of the Texas Rules of Appellate Procedure limiting the issuance of a new opinion on petition for discretionary review to "[t]he justices who participated in the [original] decision..."

4. Review is justified to again revisit the scope and standard of factual sufficiency review in light of Tenth Court of Appeals decision in this case and that of the same court of appeals in Brooks v. State currently pending before this Court on both State and Appellant petitions for discretionary review.

Here's a link to the court of appeals opinion (unpublished). Here's a link to Judge Gray's concurring opinion (always a must read). Here's a link to the underlying court of appeals case info. [Note: The Court did not grant as to issue number 3, whatever that was. I just point this out because I didn't want you to think I got the numbers wrong. And, as a note that may interest only me, the CCA granted review in this case on the same day that it heard oral argument in Brooks.]

PD-0811-09, Ralph Franklin Welsh v. State: The CCA granted Welsh's petition for discretionary review without oral argument in this assault out of Tarrant County on the following issue:

1. The Fort Worth Court of Appeals erred in holding that Appellant was not entitled to an instruction on the lesser included offense of assault by contact. (R. III-102).

Here's a link to the court of appeals opinion (unpublished). Here's a link to the court of appeals case info.

PD-0987-09, Richard Lynn Winfrey, Sr. v. State: The CCA granted Winfrey's petition for discretionary review with oral argument in this murder case out of San Jacinto County on the following issues:

1. An important question implicating the administration of justice is presented by the Court of Appeals' reliance upon a dog scent lineup to sustain the legal sufficiency of the evidence without regard to the inherent limitations of such evidence.

2. An important question implicating the administration of justice also is presented by the Court of Appeals' failure properly to evaluate the factual sufficiency of the evidence by addressing the inherent limitations of dog scent lineup evidence.

Here's a link to the court of appeals opinion (published). Here's a link to the court of appeals info.

PD-0906-09, PD-0907-09, PD-0908-09, & PD-0909-09, Eduardo & Heriberto Arias Valtierra v. State: The CCA granted the State's petition for discretionary review without oral argument in all of the Valtierra's possession of a controlled substance cases from Kendall County on the following issues:

1. After viewing the evidence in the light most favorable to the trial court's findings and conclusions, did the Honorable Court of Appeals err in finding that the officer did not have consent to walk down the apartment hallway to the location of the runaway child, when a resident of the apartment, Heriberto Valtierra, had just told the officer where the female runaway child was located and consented to the officer talking to her?

2. Did the Honorable Court of Appeals fail to apply the proper standard of review pursuant to Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), in that the Court failed to consider all of the facts and circumstances shown to have been in possession of the officers at the time of the incident?

3. Did the Honorable Court of Appeals err in finding that the protective sweep conducted by the law enforcement officers was not justified for safety of the officers or the child?

4. Did exigent circumstances exist for law enforcement officers to proceed down a hallway toward a room where the runaway child was said to be located, given the fact that her status was that of a "runaway," and that adult males were seen in the residence with this 13 year old female, together with observations made of suspicious activities by one of the four adult males?

Here's a link to the court of appeals opinion in Eduardo's case (published). Here's a link to the court of appeals opinion in Heriberto's case (published). Here's a link to the court of appeal case info for Eduardo's first and second cases. Here's a link to the court of appeals case info for Heriberto's first and second cases.

PD-1373-09, Ronnie Duane Mason v. State: The CCA granted the State's petition for discretionary review with oral argument in Mason's capital murder out of Potter County on the following issues:

1. The Court of Appeals employed an incorrect harm analysis in reviewing the State's error in allowing unauthorized persons to question a witness before the grand jury; the focus should have been on whether the error affected appellant's substantial rights, rather than whether it contributed to the grand jury's charging decision.

2. In reversing a conviction for the avowed purpose of deterring the State's future violation of grand jury procedural statutes, notwithstanding the harmlessness of the violation involved, the Court of Appeals improperly assumed a supervisory role.

Here's a link to the court of appeals opinion (published). Here's a link to the court of appeals case info.

Today's Opinions - 11/4/09

Today, the CCA handed down published opinions in the following cases:

PD-0198-08, Jose Carmen Saavedra v. State: The Court held that an out-of-court interpretation through a non-testifying interpreter can be admissible over a hearsay objection under Rule 801(e)(2)(C) or (D) if the trial court is satisfied that the party authorized the interpreter to speak for him on the particular occasion. The Court remanded the case back to the court of appeals to determine whether the interpreter in this case was so authorized by looking at four factors: (1) who supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter's qualifications and language skills; and (4) whether actions taken subsequent to the translated statement were consistent with the translation. Click here for a case summary.

PD-0513-09, Ross Rodriguez, Attorney at Law, Surety v. State: The Court had granted review to consider whether a bail bond surety is liable after executing a bail bond when the State subsequently changes or adds more serious charges to the charge. However, the Court dismissed the petition as improvidently granted. No summary of this case is necessary or will be forthcoming.

Additionally, the Court denied habeas relief in Ex parte Michael Wayne Norris, albeit in an unpublished, per curiam opinion. The interesting thing here was Judge Womack's dissent, which Judges Price and Holcomb joined. The majority had denied relief because Norris failed to show he was justified in bringing a subsequent writ for relief. Judge Womack noted that the jury in Norris's case had been instructed on a theory of transferred intent that the CCA overruled in Roberts v. State (see my post on that case here). However, Norris only challenged his sentence and requested a new punishment hearing; he did not the finding of guilt (which is understandable because the Court had held that Norris had specifically intended to shoot both the adult victim, and the two-year-old child in her arms before going on to consider the transferred intent argument). Judge Womack would have looked past what Norris asked for and granted Norris a new trial. Although, I guess this is not surprising considering he took the time to write a separate opinion in Roberts to explain why he thought Norris's case was jacked up. Here's a link to the CCA case info if you're interested. Again, not published (so not binding), but I thought it was interesting after Roberts.

Case Summary - Jose Carmen Saavedra v. State

A jury convicted Jose Carmen Saavedra of aggravated sexual assault of a child, in this case, his step-daughter. During the trial, the State introduced testimony from a detective that Saavedra had admitted to a Spanish interpreter that he had committed the offense. The interpreter did not testify at trial, and the detective did not understand Spanish.

The Dallas Court of Appeals held in an unpublished opinion that the admission of this testimony was harmful error and remanded for a new trial. The court of appeals rejected the State's argument that it should adopt the "language conduit" rule followed in Austin and the First District Court of Appeals in Houston. This rule would allow for the admission of the interpreter's testimony over a hearsay objection after the looking at the following four factors: (1) who supplied the interpreter; (2) did the interpreter have a motive to mislead or distort; (3) the interpreter's qualifications and language skills; and (4) whether subsequent actions are consistent with the statement. The court of appeals, however, rejected the State's invitation because it felt bound to follow its own previous holding in Durbin v. Hardin, 775 S.W.2d 798 (Tex. App--Dallas, writ denied).

The Court of Criminal Appeals did not feel so bound. The CCA vacated the court of appeals decision and pretty much adopted the "language conduit" rule followed in Austin and Houston including the consideration of the four factors described above. It noted that the opinion in Durbin was based upon an interpretation of common law, and the promulgation of the Texas Rules of Evidence had supplanted the common law. Under Rule 801(e)(2)(C) or (D), an admission by a party opponent made through an interpreter can be admissible without calling the interpreter to testify if that interpreter is acting as an agent of the party opponent. And because the Court would've had to remand anyway to consider Saavedra's factual sufficiency claim, the Court remands for the court of appeals to not only consider factual sufficiency, but also whether the interpreter's interpretation could properly be admitted under the language conduit rule.

Presiding Judge Keller concurred in the result without an opinion. Here's a link to the CCA case info. [I tried to link to the court of appeals case info, but I screwed it up. I'll try to go back and fix it later.]