Thursday, December 31, 2009
Today's Opinion - 12/31/09
The CCA skipped the ordinary hand down list this week due to the Christmas break, but they did issue an unpublished per curiam opinion denying relief on a subsequent writ of habeas corpus in WR-55,377-02, Ex parte Gary Johnson.
Labels:
capital writs,
unpublished death penalty
Wednesday, December 16, 2009
Issues Granted - 12/16/09
On December 16, 2009, the CCA granted discretionary review on the following issues:
PD-0969-09, Julian Mars McKithan v. State: The CCA granted McKithan's petition for discretionary review without oral argument in this aggravated sexual assault out of Harris County on the following issue:
PD-1069-09 & PD-1070-09, Samuel Scott v. State: The CCA granted the State's petition for discretionary review with oral argument in this harassment case out of Bexar County on the following issues:
PD-0969-09, Julian Mars McKithan v. State: The CCA granted McKithan's petition for discretionary review without oral argument in this aggravated sexual assault out of Harris County on the following issue:
Was the Court of Appeals correct in saying assault – offensive touching – is not allowed when the indictment says the defendant used force and violence against the complainant?Here's a link to the underlying opinion. Here's a link to the underlying case info.
PD-1069-09 & PD-1070-09, Samuel Scott v. State: The CCA granted the State's petition for discretionary review with oral argument in this harassment case out of Bexar County on the following issues:
1. Are subsections (a)(4) and (a)(7) of Texas Penal Code § 42.07 (Texas' Harassment Statute) unconstitutionally vague?Here's a link to the court of appeals opinion, and here's another one. Here's a link to the court of appeals case info, and here's another one.
2. Do subsections (a)(4) and (a)(7) of Texas Penal Code § 42.07 (Texas' Harassment Statute) implicate the First Amendment to the United States Constitution?
3. Are the term "repeated" and the phrase "in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another," which are both contained within Texas Penal Code § 42.07(a)(4) and (a)(7), unconstitutionally vague?
4. Did the State's allegation that appellant left "voice mail messages" implicate Texas Penal Code § 42.07(a)(7) in this case, and does that phrase necessarily fall within the definition of "electronic communications" found at Texas Penal Code § 42.07(b)(1)?
5. If some part of Texas Penal Code § 42.07 (Texas' Harassment Statute) is unconstitutionally vague, did the Court of Appeals err by declaring it vague and acquitting appellant instead of applying a more narrow construction to the statute to avoid the alleged vagueness?
6. Has the Court of Appeals improperly determined that because subsections (a)(4) and (a)(7) of Texas Penal Code § 42.07 (Texas' Harassment Statute) allegedly implicate the First Amendment and might curtail protected speech those subsections are vague when the proper question should have been whether the subsections are overbroad?
Labels:
issues granted
Today's Opinions - 12/16/09
The CCA handed down a number of published opinions today in the following cases:
AP-75,811, Antonio Lee Williams v. State: The CCA upheld Williams' death sentence over his fifteen points of error. Williams challenged the sufficiency of the evidence, the admission of extraneous offense evidence to which he opened the door, the denial of Batson challenges, the admission of gruesome photographs, and constitutional challenges to the Texas death penalty scheme.
AP-76,059 & AP-76,060, Ex parte Terrence Ladon Broadway: The CCA held that Broadway validly waived his right to appeal even though there was no agreed upon sentence. Unlike a typical situation where a defendant could not know the consequences of his waiver of appeal, here he made a bargain to waive his right to a jury trial (in order to be eligible for the judge to give him deferred) in exchange for his waiver of his right to appeal. Judge Meyers also asked a lot of really interesting questions that he didn't seem to answer. Here's a link to Judge Womack's concurring opinion.
AP-76,141, Ex parte Carrie Denise Lane: The CCA held that Lane's trial attorney was ineffective for allowing testimony about the societal costs of methamphetamine addiction to be admitted and that this deficiency along with failing to request notice for experts prejudiced her during the punishment phase of Lane's trial. Consequently, the CCA granted relief and remanded the case for a new punishment hearing.
PD-0294-08, Ex parte Frank Eugene Watson: The CCA granted rehearing in this case decided in May 2009. They still affirmed, but just clarified that descriptive averments alleged in the indictment on the greater offense should be considered and compared to the statutory elements of the lower offense. However, failure to yield the right of way was still not a lesser-included of intoxication manslaughter as it was alleged in this case.
PD-1366-08, PD-1367-08, PD-1368-08, & PD-1369-08, State v. Joseph Votta a/k/a Joseph Vital: The CCA reversed, reversed, reversed, and reversed the court of appeals. The trial court failed to enter findings of fact and conclusions of law, and without those findings, the court of appeals erroneously held that the trial court had received proper notice of the defendant's request for disposition of his case even though the defendant filed a motion to dismiss under an alias. Moreover, the trial court had no authority to dismiss the defendant's charges of bail jumping when no detainers had been filed for bail jumping. Here's a link to my summary when the issues were granted and here's a link to the oral arguments.
PD-0147-09, Timothy K. Evans v. State: The CCA affirmed the court of appeals holding that two convictions for indecency with a child and aggravated sexual assault of a child arising from the same act of molestation violates double jeopardy. Here's a link to my post when the CCA granted discretionary review.
PD-0401-09, Ex parte Amber Lovill: The CCA held that Lovill failed to preserve her claim of selective prosecution. She claimed that probation would not have sought to revoke her for her drug use, among other things, if she were not pregnant. However, at trial she did not challenge the entire revocation proceeding on the basis that she was being selectively prosecuted based upon her gender. She was also untimely in raising this claim. Consequently, she failed to preserve error. Here's a link to the Judge Johnson's concurring opinion. Here's a link to my summary when the CCA granted discretionary review. Here's a link to the oral arguments.
AP-75,811, Antonio Lee Williams v. State: The CCA upheld Williams' death sentence over his fifteen points of error. Williams challenged the sufficiency of the evidence, the admission of extraneous offense evidence to which he opened the door, the denial of Batson challenges, the admission of gruesome photographs, and constitutional challenges to the Texas death penalty scheme.
AP-76,059 & AP-76,060, Ex parte Terrence Ladon Broadway: The CCA held that Broadway validly waived his right to appeal even though there was no agreed upon sentence. Unlike a typical situation where a defendant could not know the consequences of his waiver of appeal, here he made a bargain to waive his right to a jury trial (in order to be eligible for the judge to give him deferred) in exchange for his waiver of his right to appeal. Judge Meyers also asked a lot of really interesting questions that he didn't seem to answer. Here's a link to Judge Womack's concurring opinion.
AP-76,141, Ex parte Carrie Denise Lane: The CCA held that Lane's trial attorney was ineffective for allowing testimony about the societal costs of methamphetamine addiction to be admitted and that this deficiency along with failing to request notice for experts prejudiced her during the punishment phase of Lane's trial. Consequently, the CCA granted relief and remanded the case for a new punishment hearing.
PD-0294-08, Ex parte Frank Eugene Watson: The CCA granted rehearing in this case decided in May 2009. They still affirmed, but just clarified that descriptive averments alleged in the indictment on the greater offense should be considered and compared to the statutory elements of the lower offense. However, failure to yield the right of way was still not a lesser-included of intoxication manslaughter as it was alleged in this case.
PD-1366-08, PD-1367-08, PD-1368-08, & PD-1369-08, State v. Joseph Votta a/k/a Joseph Vital: The CCA reversed, reversed, reversed, and reversed the court of appeals. The trial court failed to enter findings of fact and conclusions of law, and without those findings, the court of appeals erroneously held that the trial court had received proper notice of the defendant's request for disposition of his case even though the defendant filed a motion to dismiss under an alias. Moreover, the trial court had no authority to dismiss the defendant's charges of bail jumping when no detainers had been filed for bail jumping. Here's a link to my summary when the issues were granted and here's a link to the oral arguments.
PD-0147-09, Timothy K. Evans v. State: The CCA affirmed the court of appeals holding that two convictions for indecency with a child and aggravated sexual assault of a child arising from the same act of molestation violates double jeopardy. Here's a link to my post when the CCA granted discretionary review.
PD-0401-09, Ex parte Amber Lovill: The CCA held that Lovill failed to preserve her claim of selective prosecution. She claimed that probation would not have sought to revoke her for her drug use, among other things, if she were not pregnant. However, at trial she did not challenge the entire revocation proceeding on the basis that she was being selectively prosecuted based upon her gender. She was also untimely in raising this claim. Consequently, she failed to preserve error. Here's a link to the Judge Johnson's concurring opinion. Here's a link to my summary when the CCA granted discretionary review. Here's a link to the oral arguments.
Labels:
today's opinions
Subscribe to:
Posts (Atom)