Today the CCA handed down opinions in the following cases:
AP-75,370, Ex parte Charles Dean Hood: The CCA held that Hood should get a new punishment trial because the jury nullification instruction (used prior to Penry II) was erroneous. Moreover, Hood was allowed to bring this claim on his subsequent writ because the recent opinions from the Supreme Court announced new law that he could not have taken advantage of in his initial writs. Judge Keasler dissented to correctly point out that those new Supreme Court cases actually held that the error in Hood's jury instructions violated clearly established law that Hood should've taken advantage of in his first writ. Here's a link to a more detailed summary.
PD-0337-09, Robert Gonzales, Jr. v. State: A unanimous CCA held that the defendant was not entitled to a hearing on his motion for new trial based upon the denial of his day-of-trial motion for continuance. The trial court did not need to have a hearing to develop a record on how the denial harmed the defendant where the record showed the trial court could've properly denied the motion for continuance because trial counsel had the case for eight months before moving (on the day of trial) to have an expert appointed to examine the medical evidence. Oh, and aggravated sexual assault by anal penetration is a different offense from aggravated sexual assault by vaginal penetration for purposes of double jeopardy. Here's a link to the court of appeals case information. Here's a link to the court of appeals opinion (unpublished). Here's a link to a more detailed summary if you're interested.
PD-1111-08, Wesley Charles Joseph v. State: The CCA held that the defendant knowingly, intelligently, and voluntarily waived his rights under Article 38.22 even though he only signed a card that indicated he understood his rights at the beginning of the interview. Judge Cochran concurred (with Price, Johnson, and Holcomb) to warn police to get an explicit waiver because an implied waiver is hard to prove. Presiding Judge Keller concurred as well to note that the defendant's voluntary engagement in a six-hour interview after indicating he understood his rights is evidence of his waiver of those rights at the outset of the questioning. Here's a link to the court of appeals case information. Here's a link to the court of appeals opinion. Here's a link to a more detailed summary.
PD-1805-08, Joseph Denver Smith v. State: A unanimous CCA held that exposing genitalia and masturbating in front of another person is not inherently reckless, so the State must plead additional facts to demonstrate recklessness when charging a defendant with indecent exposure. [Please do not convey this information to the kids on Jersey Shore.] Here's a link to the court of appeals case information. Here's a link to the court of appeals opinion. Here's a link to a more detailed summary.
PD-0453-07, Terry M. Holmes v. State,
PD-0454-07, David Woodall v. State,
PD-455-07, Gabriel J. Williams v. State,
PD-0457-07, April Harlow v. State,
PD-0458-07, Alfonso R. Rodriguez v. State,
PD-0459-07, Michael Brice v. State,
PD-0460-07, Walter Widener, Jr. v. State: The CCA held that the trial court's refusal to allow defense counsel to cross-examine the State's expert regarding the Intoxilyzer 5000 violated the defendants' rights to present a defense. Moreover, the Court should not say beyond a reasonable doubt that this ruling the the trial court did not contribute to the defendants' decisions to plead guilty. Here's a link to the court of appeals case information in Holmes's, Woodall's, Williams's, Contreras's, Harlow's, Rodriguez's, Brice's, and Widener's cases respectively. Here are links to the court of appeals opinions for Holmes's, Woodall's, Williams's, Contreras's, Harlow's, Rodriguez's, Brice's, and Widener's cases respectively.
Wednesday, February 24, 2010
Case Summary - Ex parte Charles Dean Hood (again)
The hardest thing for me about reading this case is that I come at it with so many preconceptions that it's hard to actually read and get what the Court is saying. I'll try not to do that. However, I do think it's kind of ironic that Judge Cochran starts off with quotes from the dissenting opinion from Abdul-Kabir v. Quarterman. This is ironic because I think Judge Keasler correctly points out in his dissent that had the Court followed the majority opinion in Abdul-Kabir, Hood would probably been procedurally barred from raising his jury instruction claims in his subsequent writ. But I'm getting ahead of myself.
Hood murdered his boss and his boss's girlfriend in 1990. He carefully planned the murders and afterward stole his boss's credit cards, his boss's ring, and forged his name on checks to cash them. The evidence supporting the jury's verdict that Hood would be a future danger was more than sufficient. But the Court doesn't spend a lot of time on this (seems to spend a little more time on mitigation, cough, cough) because that's not really at issue here.
The case was tried after the Supreme Court determined that the special issue instructions used by Texas in death penalty cases didn't give full effect to mitigation evidence (in Penry I). However, the case came before the legislature had a chance to draft a mitigation special issue to comply with Penry I, so the trial court, as was the fashion, also included a jury nullification special instruction. Defense counsel didn't object to them, but urged a more complete explanation of mitigation to give the mitigation evidence full effect.
On direct appeal, Hood challenged the instructions for failing to give full effect to mitigation instructions, but the CCA denied the ground on appeal. Hood challenged the instruction initially on his first writ, but then deleted it from his amended application. Hood was denied state and federal habeas.
In 2001, the United States Supreme Court struck down the nullification instruction in Penry II because it did not give the jury a method to give full effect to Hood's mitigation evidence. In 2004, Hood filed a pro se subsequent writ, but it did not contain a Penry claim that the jury special issue instructions did not give the jury a way to give effect to Hood's mitigation evidence. That writ was dismissed as an abuse of writ.
In 2005, Hood filed an additional writ claiming that the nullification instruction was inadequate to allow the jury to consider and give effect to mitigating evidence presented at trial. The CCA granted a stay and sent the case back to the trial court entered a conclusion of law that the Penry II claim was unavailable and that the jury instruction was inadequate to let the jury give effect to the mitigation evidence. The CCA dismissed the writ in 2007 because it concluded that the Penry II claim was available by the time Hood filed his first subsequent writ in 2004. However, Hood filed a motion for the CCA to reconsider this in 2008 light of three Supreme Court cases that had made clear that the CCA's prior interpretations of Penry I and Penry II were incorrect.
So what's the problem?
The problem is that for the United States Supreme Court to hold, in two of those cases (Abdul-Kabir, Smith II, and Brewer), that the nullification special issue was wrong, it had to come to the remarkable conclusion that it was clearly established federal law that the jury instructions were bad from Penry I forward. Or put another way, The Supreme Court had to hold that the CCA decisions denying relief in Abdul-Kabir and Brewer were not contrary to clearly established federal law. And held so they did.
So, for the CCA to grant relief on jury instructions that the Supreme Court had held were bad, the CCA had to hold that the Supreme Court decisions from 2004 onward had announced new law that Hood had been unable to take advantage of in previous writs. This was an exception to the statutory bar against subsequent writs. Judge Cochran's plurality detailed the history of confusing decisions regarding mitigation instructions in the wake of Penry I. Finally, the plurality explained that either Hood would be entitled to relief in federal court for the violation of clearly established federal law or he would be entitled to relief in state court if the more recent cases announced new law.
Ultimately, Judge Womack joined Judges Cochran, Price, Johnson, and Holcomb to create a majority that held the recent pronouncements from the United States Supreme Court starting in 2004 with Tennard and Smith I (and continuing on with Smith II, Brewer, and Abdul-Kabir) created new law so Hood's subsequent writ wasn't procedurally barred. The majority adopted the habeas judge's findings that Hood was entitled to a new punishment hearing and granted relief.
Judge Keasler dissented, along with Presiding Judge Keller and Judge Hervey, to rail against the majority for failing to explain how the legal basis for Hood's claim was unavailable to him when he filed his previous applications. According to the dissent, Hood could've raised his claim before and didn't. Consequently, his subsequent claim should be procedurally barred.
Judge Meyers dissented without an opinion. There was no underlying opinion because it was a death penalty case. Here's a link to the CCA case information.
Commentary: This is a classic example of how hard it is on state courts when the United States Supreme Court renders a bad opinion. Judge Keasler's opinion is absolutely correct. Hood's claim was procedurally barred. Saying that the United States had enacted new law when it pretty much said the law was well established seems pretty incredible, and perhaps explains Judge Keasler's tone.
But, the instructions were unconstitutional, or at least, they'd been held to be unconstitutional. [I only note that because the parsing of the instructions in those cases seemed a little like a reach, but the holding is the holding.] So, from Judge Cochran's practical-to-a-fault viewpoint the decision makes sense. If the majority's assessment that Hood would ultimately get relief in federal court anyway is correct, why make him jump through the hoops? Oh the law. Right, I forgot. Well, it's certainly better optics for the Court than defending a procedural default rule in a death penalty case. Two wrongs don't make a right, but three lefts apparently do. And would you look at that, judicial activism in favor of the defendant from the CCA. Who'd've thunk it?
Hood murdered his boss and his boss's girlfriend in 1990. He carefully planned the murders and afterward stole his boss's credit cards, his boss's ring, and forged his name on checks to cash them. The evidence supporting the jury's verdict that Hood would be a future danger was more than sufficient. But the Court doesn't spend a lot of time on this (seems to spend a little more time on mitigation, cough, cough) because that's not really at issue here.
The case was tried after the Supreme Court determined that the special issue instructions used by Texas in death penalty cases didn't give full effect to mitigation evidence (in Penry I). However, the case came before the legislature had a chance to draft a mitigation special issue to comply with Penry I, so the trial court, as was the fashion, also included a jury nullification special instruction. Defense counsel didn't object to them, but urged a more complete explanation of mitigation to give the mitigation evidence full effect.
On direct appeal, Hood challenged the instructions for failing to give full effect to mitigation instructions, but the CCA denied the ground on appeal. Hood challenged the instruction initially on his first writ, but then deleted it from his amended application. Hood was denied state and federal habeas.
In 2001, the United States Supreme Court struck down the nullification instruction in Penry II because it did not give the jury a method to give full effect to Hood's mitigation evidence. In 2004, Hood filed a pro se subsequent writ, but it did not contain a Penry claim that the jury special issue instructions did not give the jury a way to give effect to Hood's mitigation evidence. That writ was dismissed as an abuse of writ.
In 2005, Hood filed an additional writ claiming that the nullification instruction was inadequate to allow the jury to consider and give effect to mitigating evidence presented at trial. The CCA granted a stay and sent the case back to the trial court entered a conclusion of law that the Penry II claim was unavailable and that the jury instruction was inadequate to let the jury give effect to the mitigation evidence. The CCA dismissed the writ in 2007 because it concluded that the Penry II claim was available by the time Hood filed his first subsequent writ in 2004. However, Hood filed a motion for the CCA to reconsider this in 2008 light of three Supreme Court cases that had made clear that the CCA's prior interpretations of Penry I and Penry II were incorrect.
So what's the problem?
The problem is that for the United States Supreme Court to hold, in two of those cases (Abdul-Kabir, Smith II, and Brewer), that the nullification special issue was wrong, it had to come to the remarkable conclusion that it was clearly established federal law that the jury instructions were bad from Penry I forward. Or put another way, The Supreme Court had to hold that the CCA decisions denying relief in Abdul-Kabir and Brewer were not contrary to clearly established federal law. And held so they did.
So, for the CCA to grant relief on jury instructions that the Supreme Court had held were bad, the CCA had to hold that the Supreme Court decisions from 2004 onward had announced new law that Hood had been unable to take advantage of in previous writs. This was an exception to the statutory bar against subsequent writs. Judge Cochran's plurality detailed the history of confusing decisions regarding mitigation instructions in the wake of Penry I. Finally, the plurality explained that either Hood would be entitled to relief in federal court for the violation of clearly established federal law or he would be entitled to relief in state court if the more recent cases announced new law.
Ultimately, Judge Womack joined Judges Cochran, Price, Johnson, and Holcomb to create a majority that held the recent pronouncements from the United States Supreme Court starting in 2004 with Tennard and Smith I (and continuing on with Smith II, Brewer, and Abdul-Kabir) created new law so Hood's subsequent writ wasn't procedurally barred. The majority adopted the habeas judge's findings that Hood was entitled to a new punishment hearing and granted relief.
Judge Keasler dissented, along with Presiding Judge Keller and Judge Hervey, to rail against the majority for failing to explain how the legal basis for Hood's claim was unavailable to him when he filed his previous applications. According to the dissent, Hood could've raised his claim before and didn't. Consequently, his subsequent claim should be procedurally barred.
Judge Meyers dissented without an opinion. There was no underlying opinion because it was a death penalty case. Here's a link to the CCA case information.
Commentary: This is a classic example of how hard it is on state courts when the United States Supreme Court renders a bad opinion. Judge Keasler's opinion is absolutely correct. Hood's claim was procedurally barred. Saying that the United States had enacted new law when it pretty much said the law was well established seems pretty incredible, and perhaps explains Judge Keasler's tone.
But, the instructions were unconstitutional, or at least, they'd been held to be unconstitutional. [I only note that because the parsing of the instructions in those cases seemed a little like a reach, but the holding is the holding.] So, from Judge Cochran's practical-to-a-fault viewpoint the decision makes sense. If the majority's assessment that Hood would ultimately get relief in federal court anyway is correct, why make him jump through the hoops? Oh the law. Right, I forgot. Well, it's certainly better optics for the Court than defending a procedural default rule in a death penalty case. Two wrongs don't make a right, but three lefts apparently do. And would you look at that, judicial activism in favor of the defendant from the CCA. Who'd've thunk it?
Case Summary - Robert L. Gonzales v. State
The State charged Gonzales with two counts of aggravated sexual assault against his eight-year-old daughter. One count was for anal penetration, the other was for vaginal penetration. On the morning the jury trial was to commence, Gonzales filed for a motion to appoint an expert to assist him in evaluating the State's medical evidence. [This was Gonzales's second attorney, but that attorney had been on the case more than eight months.] He also filed a motion for continuance so he could take full advantage of that expert. The trial court granted the expert, but denied the motion for continuance. In his motion for new trial, he complained about the denial of the motion for continuance and the trial court denied the motion for new trial without a hearing.
The court of appeals held (in its unpublished opinion) that all of the allegations in the motion for new trial were determinable form the record, so the trial court did not abuse its discretion in denying the motion for new trial without a hearing. However, the court of appeals also held that Gonzales had been subjected to multiple punishments in violation of the double jeopardy clause. Both of the offenses took place in the same incident and appear in the same subjection, and, according to the court of appeals, they involved the penetration of the child's "genital area." So, the court of appeals reformed the judgment to reflect a conviction in only one offense, namely the anal penetration case. Here's a link to the court of appeals case information if you're interested.
The CCA unanimously affirmed the denial of the motion for new trial and reversed the double jeopardy determination, sending the case back for the court of appeals to consider the issues it didn't address due to its double jeopardy holding. Judge Price, writing for the majority, explained that a hearing on a motion for new trial may be necessary to develop a record to show harm from a denial of a motion for continuance, but that doesn't mean it's a sufficient prerequitie to obtaining appellate relief. Gonzales could not first show that the trial court erroneously denied the motion for continuance. In order to even get to a need for a hearing to discuss harm, the denial had to be error. In this case it wasn't because the trial court did not abuse it's discretion in denying the motion for continuance on the day of trial after trial counsel had had more than eight months to prepare. Thus, a defendant must allege facts that show the trial court erroneously denied his pretrial motion for continuance and that he was harmed, before the trial court must have a hearing on the motion for new trial. If the trial court can determine from the record that the denial of the motion for continuance wasn't error, the defendant doesn't get a hearing on harm.
The CCA reversed the court of appeals on the issue of double jeopardy. Just because the different methods of penetration appeared in the same statutory subsections did not mean they were alternate means of committing the same offense. Penetration of the anus constitutes a discrete act from penetration of the sexual organ. In Vick, the Court had held that penetration of the sexual organ and penetration of the mouth were two separate offenses in different sections. The same reasoning applies to this case even though the two different offenses are described in the same subsection of the sexual assault statute. [The Court announced that deciding double jeopardy issues is really a matter of "focus" on determining what the gravamen of the offense is using grammar and other factors to suss that out.] Consequently, the conviction and punishment in the vaginal penetration case did not violate double jeopardy concerns.
The court of appeals held (in its unpublished opinion) that all of the allegations in the motion for new trial were determinable form the record, so the trial court did not abuse its discretion in denying the motion for new trial without a hearing. However, the court of appeals also held that Gonzales had been subjected to multiple punishments in violation of the double jeopardy clause. Both of the offenses took place in the same incident and appear in the same subjection, and, according to the court of appeals, they involved the penetration of the child's "genital area." So, the court of appeals reformed the judgment to reflect a conviction in only one offense, namely the anal penetration case. Here's a link to the court of appeals case information if you're interested.
The CCA unanimously affirmed the denial of the motion for new trial and reversed the double jeopardy determination, sending the case back for the court of appeals to consider the issues it didn't address due to its double jeopardy holding. Judge Price, writing for the majority, explained that a hearing on a motion for new trial may be necessary to develop a record to show harm from a denial of a motion for continuance, but that doesn't mean it's a sufficient prerequitie to obtaining appellate relief. Gonzales could not first show that the trial court erroneously denied the motion for continuance. In order to even get to a need for a hearing to discuss harm, the denial had to be error. In this case it wasn't because the trial court did not abuse it's discretion in denying the motion for continuance on the day of trial after trial counsel had had more than eight months to prepare. Thus, a defendant must allege facts that show the trial court erroneously denied his pretrial motion for continuance and that he was harmed, before the trial court must have a hearing on the motion for new trial. If the trial court can determine from the record that the denial of the motion for continuance wasn't error, the defendant doesn't get a hearing on harm.
The CCA reversed the court of appeals on the issue of double jeopardy. Just because the different methods of penetration appeared in the same statutory subsections did not mean they were alternate means of committing the same offense. Penetration of the anus constitutes a discrete act from penetration of the sexual organ. In Vick, the Court had held that penetration of the sexual organ and penetration of the mouth were two separate offenses in different sections. The same reasoning applies to this case even though the two different offenses are described in the same subsection of the sexual assault statute. [The Court announced that deciding double jeopardy issues is really a matter of "focus" on determining what the gravamen of the offense is using grammar and other factors to suss that out.] Consequently, the conviction and punishment in the vaginal penetration case did not violate double jeopardy concerns.
Case Summary - Wesley Charles Joseph v. State
Wesley Joseph went to a homeless shelter with his friend, Juan Martinez, to confront Javier Gonzalez-Diaz (A.K.A. "Bolillo"). Martinez's wife, who was also Joseph's girlfriend, claimed that Bolillo had sexually assaulted her. A witness to the altercation between Joseph and Bolillo saw Joseph punching Bolillo in the stomach and Joseph putting somthing under his clothing as he walked away. However, Bolillo had been stabbed and he lifted up his shirt and asked for help. He later died. Police were able to arrest Joseph at the shelter and found a bloody knife in Joseph's front sweatshirt pocket.
Police took Joseph and Martinez to the police station where they were interviewed separately. Joseph's interview lasted approximately six hours. The detective read Joseph a warning card that contained all the necessary warnings under Article 38.22 and Miranda. Joseph signed the card indicating that he understood his rights. At no time did Joseph request an attorney or seek to terminate the interview. There was also no evidence of coercion or intimidation by the police.
At trial, Joseph moved to suppress the DVD recording of his statement on the ground that it was not voluntary. The trial court found that Joseph had knowingly, intelligently, and voluntarily waived his rights and so his statement was admissible.
The court of appeals affirmed the admission of the statement because Joseph's signing and initialing that he understood his rights coupled with his voluntary continuation of the interview provided strong evidence that Joseph had waived his rights. Here's a link to the court of appeals case information if you're interested.
The CCA affirmed in an oddly fractured opinion. Judge Meyers first noted that the State must prove by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights. Moreover, a valid waiver will not be presumed simply from silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. However, a waiver doesn't need to be in a particular form, and it can be inferred from the actions and words of the person accused. The question is not whether a defendant "explicitly" waived his Miranda rights, it's whether he did so knowingly, intelligently, and voluntarily. It must be voluntary in that it's the product of free will not coercion and it must be made with an awareness of the nature of the right being abandoned and the consequences of the decision to abandon it.
In this case, Joseph participated in a six hour interview immediately after being warned. He did not request an attorney or ask to terminate the interview. During portions of the interview he seemed eager to share information with the detectives. At one point, one of the detectives got up to leave, but Joseph urged the detective to stay and listen. There was no evidence of intimidation and coercion, rather, Joseph felt comfortable on occasion to respond with "no comment."
Joseph was also aware of the nature of his rights and the consequences of waiving them. He indicated he understood his rights and his decision to reply "no comment" to some questions and not others demonstrated his awareness of his rights. Looking at the totality of the circumstances, Joseph knowingly, intelligently, and voluntarily waived his rights under Article 38.22 and Miranda.
Judge Meyers was joined in his opinion by Judges Price, Johnson, Keasler, Hervey, Holcomb, and Cochran. He was also joined by Presiding Judge Keller in the entire opinion except as to note 7 (which I'll get to in just a second). Judge Womack joined the portion of the opinion that set out the law and the facts of the case, but he did not join the section of the opinion that said that Joseph knowingly waived his rights. He also didn't join note 7, either. [Here's a link to the CCA case information if you're interested.]
Presiding Judge Keller wrote a concurring opinion to respond to footnote 7 in the majority opinion. In footnote 7, Judge Meyers expressed some concern about the "timing" of the waiver. Judge Meyers was concerned that a waiver must come before the interview takes place so looking to the interrogation would seem to suggest that the actual waiver doesn't occur until after questioning has commenced. Presiding Judge Keller's opinion is quite smart (too smart?) in it's resolution of Meyers's (and the majority's) concerns. According to Keller, the waiver takes place before the questioning, but we look to the questioning of evidence that the defendant knowingly, intelligently, and voluntarily waived before questioning. Judge Womack didn't join note 7 either, but then, he also didn't join the conclusion. Sort of I agree there's this law regarding confessions, but I have no opinion on how they relate to this case.
Judge Cochran also wrote a concurring opinion, this one joined by Judges Price, Johnson, and Holcomb. Basically, Judge Cochran emphasized that police should ask defendants if they are willing to waive their rights before they commence questioning. Failing to do so jeopardizes the admissibility of a suspect's subsequently obtained statement. Sure there's no explicit waiver requirement, but the State has a "great" burden to show an implict waiver.
Here's a link to my post when discretionary review was granted. Here's a link to the oral arguments.
Commentary: This case is kind of a warning to law enforcement to get an explicit waiver before beginning interrogation. Admittedly, only four judges expressed some concern, and they didn't even dissent. However, they still took the case, and the majority seemed concerned about how to pinpoint where a waiver occurs when the waiver is implied. Presiding Judge Keller's answer is fairly pat, but the human mind is a complex thing, so I can see why Meyers might be concerned that the suspect didn't really waive before questioning had begun. Not to suggest that I think the Court reached the wrong result. There were some key facts that suggested voluntariness and awareness beyond the defendant simply acknowledging his rights. But as Judge Cochran says, they would've been hard pressed to reverse had the trial court suppressed the statement. Better safe than sorry.
Police took Joseph and Martinez to the police station where they were interviewed separately. Joseph's interview lasted approximately six hours. The detective read Joseph a warning card that contained all the necessary warnings under Article 38.22 and Miranda. Joseph signed the card indicating that he understood his rights. At no time did Joseph request an attorney or seek to terminate the interview. There was also no evidence of coercion or intimidation by the police.
At trial, Joseph moved to suppress the DVD recording of his statement on the ground that it was not voluntary. The trial court found that Joseph had knowingly, intelligently, and voluntarily waived his rights and so his statement was admissible.
The court of appeals affirmed the admission of the statement because Joseph's signing and initialing that he understood his rights coupled with his voluntary continuation of the interview provided strong evidence that Joseph had waived his rights. Here's a link to the court of appeals case information if you're interested.
The CCA affirmed in an oddly fractured opinion. Judge Meyers first noted that the State must prove by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights. Moreover, a valid waiver will not be presumed simply from silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. However, a waiver doesn't need to be in a particular form, and it can be inferred from the actions and words of the person accused. The question is not whether a defendant "explicitly" waived his Miranda rights, it's whether he did so knowingly, intelligently, and voluntarily. It must be voluntary in that it's the product of free will not coercion and it must be made with an awareness of the nature of the right being abandoned and the consequences of the decision to abandon it.
In this case, Joseph participated in a six hour interview immediately after being warned. He did not request an attorney or ask to terminate the interview. During portions of the interview he seemed eager to share information with the detectives. At one point, one of the detectives got up to leave, but Joseph urged the detective to stay and listen. There was no evidence of intimidation and coercion, rather, Joseph felt comfortable on occasion to respond with "no comment."
Joseph was also aware of the nature of his rights and the consequences of waiving them. He indicated he understood his rights and his decision to reply "no comment" to some questions and not others demonstrated his awareness of his rights. Looking at the totality of the circumstances, Joseph knowingly, intelligently, and voluntarily waived his rights under Article 38.22 and Miranda.
Judge Meyers was joined in his opinion by Judges Price, Johnson, Keasler, Hervey, Holcomb, and Cochran. He was also joined by Presiding Judge Keller in the entire opinion except as to note 7 (which I'll get to in just a second). Judge Womack joined the portion of the opinion that set out the law and the facts of the case, but he did not join the section of the opinion that said that Joseph knowingly waived his rights. He also didn't join note 7, either. [Here's a link to the CCA case information if you're interested.]
Presiding Judge Keller wrote a concurring opinion to respond to footnote 7 in the majority opinion. In footnote 7, Judge Meyers expressed some concern about the "timing" of the waiver. Judge Meyers was concerned that a waiver must come before the interview takes place so looking to the interrogation would seem to suggest that the actual waiver doesn't occur until after questioning has commenced. Presiding Judge Keller's opinion is quite smart (too smart?) in it's resolution of Meyers's (and the majority's) concerns. According to Keller, the waiver takes place before the questioning, but we look to the questioning of evidence that the defendant knowingly, intelligently, and voluntarily waived before questioning. Judge Womack didn't join note 7 either, but then, he also didn't join the conclusion. Sort of I agree there's this law regarding confessions, but I have no opinion on how they relate to this case.
Judge Cochran also wrote a concurring opinion, this one joined by Judges Price, Johnson, and Holcomb. Basically, Judge Cochran emphasized that police should ask defendants if they are willing to waive their rights before they commence questioning. Failing to do so jeopardizes the admissibility of a suspect's subsequently obtained statement. Sure there's no explicit waiver requirement, but the State has a "great" burden to show an implict waiver.
Here's a link to my post when discretionary review was granted. Here's a link to the oral arguments.
Commentary: This case is kind of a warning to law enforcement to get an explicit waiver before beginning interrogation. Admittedly, only four judges expressed some concern, and they didn't even dissent. However, they still took the case, and the majority seemed concerned about how to pinpoint where a waiver occurs when the waiver is implied. Presiding Judge Keller's answer is fairly pat, but the human mind is a complex thing, so I can see why Meyers might be concerned that the suspect didn't really waive before questioning had begun. Not to suggest that I think the Court reached the wrong result. There were some key facts that suggested voluntariness and awareness beyond the defendant simply acknowledging his rights. But as Judge Cochran says, they would've been hard pressed to reverse had the trial court suppressed the statement. Better safe than sorry.
Labels:
Article 38.22,
confessions,
express waiver,
Miranda
Case Summary - Joseph Denver Smith v. State
The State charged Joseph Denver Smith with indecent exposure. Basically an officer working undercover at Memorial Park . . . wait a minute, what am I doing? This is a motion to quash, why am I going into the facts? Oh well, the CCA did it, and I’m such a follower. Anyway, the undercover officer sat in a parking lot and saw Smith pull in (no pun intended). The two engaged in some longing, pregnant glances for two or three minutes including some head nods until they decided they couldn't quit each other. The officer got out of his car and walked towards a bathroom building a few yards away, and Smith followed. When Smith arrived outside the bathroom, the undercover officer began touching himself in “mock masturbation” (don't try this at home) with his fly unzipped and his hand inside his pants. Smith stared at the detective, looked around, and then, removed his penis from his shorts for thirty to forty-five seconds, exposing the shaft area of his penis while masturbating.
The charging instrument read as follows:
A unanimous CCA reversed this unpublished opinion (guess they needed a palate cleanser). Judge Keasler, writing for the majority, noted that the denial of a motion to quash is reviewed de novo rather than under and abuse of discretion standard (the standard the court of appeals had improperly used). Then the Court went on to explain that in Townsley v. State they had held that allegations of driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and causing the vehicle to run off the roadway and roll over killing a passenger alleged sufficient acts of recklessness . In contrast, the Court held in Gengnagel [snicker, snicker] that alleging exposing genitals to another person with the intent to arouse or gratify the sexual desire of the defendant wasn’t sufficient to describe recklessness. In this case, adding the additional act of masturbation did not sufficiently apprise Smith of the act or acts constituting recklessness “there is nothing inherently reckless about either exposing oneself or masturbating.” Had the State alleged that this took place in a public park, it would have been sufficient.
Judge Keasler also explained that this did not amount to fundamental error (so it’s subject to harmless error analysis), but it did amount to a substantive defect because it failed to describe the “reckless” element of the offense. Because neither party briefed or addressed the issue of harm, the Court remanded to the court of appeals to consider whether Smith was harmed by this substantive defect.
Here's a link to the CCA case information if you're interested. Here's a link to my post when review was granted. Here's a link to the oral arguments.
Commentary: I must not be going to the same parties as these judges because I kind of think that exposing oneself and masturbating is inherently reckless. At least, that's how I raise my kids. I know my opinion means absolutely nothing (assuming it's even observed), but I think Judge Keasler and the gang are just wrong here. Seems to me that part of the problem is that they are mixing up public lewdness with indecent exposure. Public Lewdness criminalizes sexual conduct between two people, and the State must prove that either the offense occurred in public or that the conduct occurred in a manner that was reckless as to whether another would be alarmed or offended, but it can't be the other person engaged in the lewdness. In other words, for public lewdness you have to be reckless about an uninvolved third party.
Indecent exposure, on the other hand, does not have an uninvolved third party requirement. You only have to be reckless about at least one other person. Sure, you can commit the offense by mere exposure to the public, but there’s no public requirement. You can commit indecent exposure by doing something that may alarm or offend one person standing right in front of you so long as you do it with the intent to arouse or gratify. With all due respect, what I think the opinions in Gengnagel [snicker, snicker] and Smith both get wrong is that they add an additional audience member requirement. The offense is complete if the defendant exposes himself to a person and he’s reckless about whether that person would be offended or alarmed by it. Adding in the fact that it happened in a park is adding an additional layer of recklessness not found in the indecent exposure statute.
But fine, if there’s nothing inherently reckless about exposing yourself to someone (I disagree, but we’re past that), surely exposing yourself and masturbating would be. Sure, sure, we all aspire to reinforce that people should be accepting of their bodies and everyone’s free to do what they want any old time. But the right to whip it out ends at the other person's alarm. Recklessness in this circumstance isn’t about whether people have the right masturbate or whether people shouldn't be alarmed or offended about a "natural, normal, healthy activity." It’s whether there’s a substantial risk that doing it in front of someone might cause alarm or offense. And people are reluctant to even talk about masturbation. Just ask Dr. Joycelyn Elders. So I just don't see how doing it in front of someone doesn't carry a substantial risk that you might offense or alarm that person. But maybe I'm not as calloused to such things as the CCA.
I guess you could argue that there was no way the defendant risked offending the officer given the "mock masturbation", but that's getting into the facts of the case. That's not a charging issue. And if the argument is that the language at the end needs to include "in front of the complainant", that wasn't what the majority said or held. It also fails to consider the rest of the charging instrument. But even that I would find easier to accept than exposing genitals and masturbating isn't inherently reckless so you have to allege it occurred in public.
I guess I shouldn't get too bent out of shape, though, I can't imagine how the defendant will be able to show harm. But just as sure as I say that, the court will find a away. I just feel that the Court made a value judgment here and tried to act like it was an inexorable legal conclusion. I don’t want to go out on a limb, but I would imagine that there are only a limited number of circumstances where masturbating in front of someone wouldn’t contain at least some risk of alarm or offense. Otherwise, why bother dating? Surely that's enough to suggest that the risk is substantial enough to be inherent.
But on a lighter note (NSFW):
The charging instrument read as follows:
“JOSEPH DENVER SMITH, hereafter styled the Defendant, heretofore on or about APRIL 12, 2007, did then and there unlawfully expose his GENITALS to S. FARQUHAR with intent to arouse and gratify the sexual desire of THE DEFENDANT, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: THE DEFENDANT EXPOSED HIS PENIS AND MASTURBATED.”Smith moved to quash the information because the State failed to allege what act or acts constituted recklessness as required by Article 21.15 of the Texas Code of Criminal Procedure. Smith argued that the information was fundamentally defective because it failed to allege detail about the recklessness element of the offense. He cited to the CCA opinion in Gengnagel v. State where the Court held, in an indecent exposure case, that the State must allege the circumstances of the act which indicate that the defendant acted in a reckless manner. In that case, the information merely alleged that the defendant had exposed his penis to an officer with no mention of masturbation. [I’m sorry, I’m still kind of snickering on the inside about Gengnagel. Sounds like a Jerry Lewis ad lib.] The court of appeals affirmed in an unpublished opinion, holding that the information sufficiently described the acts relied upon to constitute recklessness. [Here's a link to the court of appeals case information if you're interested.]
A unanimous CCA reversed this unpublished opinion (guess they needed a palate cleanser). Judge Keasler, writing for the majority, noted that the denial of a motion to quash is reviewed de novo rather than under and abuse of discretion standard (the standard the court of appeals had improperly used). Then the Court went on to explain that in Townsley v. State they had held that allegations of driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and causing the vehicle to run off the roadway and roll over killing a passenger alleged sufficient acts of recklessness . In contrast, the Court held in Gengnagel [snicker, snicker] that alleging exposing genitals to another person with the intent to arouse or gratify the sexual desire of the defendant wasn’t sufficient to describe recklessness. In this case, adding the additional act of masturbation did not sufficiently apprise Smith of the act or acts constituting recklessness “there is nothing inherently reckless about either exposing oneself or masturbating.” Had the State alleged that this took place in a public park, it would have been sufficient.
Judge Keasler also explained that this did not amount to fundamental error (so it’s subject to harmless error analysis), but it did amount to a substantive defect because it failed to describe the “reckless” element of the offense. Because neither party briefed or addressed the issue of harm, the Court remanded to the court of appeals to consider whether Smith was harmed by this substantive defect.
Here's a link to the CCA case information if you're interested. Here's a link to my post when review was granted. Here's a link to the oral arguments.
Commentary: I must not be going to the same parties as these judges because I kind of think that exposing oneself and masturbating is inherently reckless. At least, that's how I raise my kids. I know my opinion means absolutely nothing (assuming it's even observed), but I think Judge Keasler and the gang are just wrong here. Seems to me that part of the problem is that they are mixing up public lewdness with indecent exposure. Public Lewdness criminalizes sexual conduct between two people, and the State must prove that either the offense occurred in public or that the conduct occurred in a manner that was reckless as to whether another would be alarmed or offended, but it can't be the other person engaged in the lewdness. In other words, for public lewdness you have to be reckless about an uninvolved third party.
Indecent exposure, on the other hand, does not have an uninvolved third party requirement. You only have to be reckless about at least one other person. Sure, you can commit the offense by mere exposure to the public, but there’s no public requirement. You can commit indecent exposure by doing something that may alarm or offend one person standing right in front of you so long as you do it with the intent to arouse or gratify. With all due respect, what I think the opinions in Gengnagel [snicker, snicker] and Smith both get wrong is that they add an additional audience member requirement. The offense is complete if the defendant exposes himself to a person and he’s reckless about whether that person would be offended or alarmed by it. Adding in the fact that it happened in a park is adding an additional layer of recklessness not found in the indecent exposure statute.
But fine, if there’s nothing inherently reckless about exposing yourself to someone (I disagree, but we’re past that), surely exposing yourself and masturbating would be. Sure, sure, we all aspire to reinforce that people should be accepting of their bodies and everyone’s free to do what they want any old time. But the right to whip it out ends at the other person's alarm. Recklessness in this circumstance isn’t about whether people have the right masturbate or whether people shouldn't be alarmed or offended about a "natural, normal, healthy activity." It’s whether there’s a substantial risk that doing it in front of someone might cause alarm or offense. And people are reluctant to even talk about masturbation. Just ask Dr. Joycelyn Elders. So I just don't see how doing it in front of someone doesn't carry a substantial risk that you might offense or alarm that person. But maybe I'm not as calloused to such things as the CCA.
I guess you could argue that there was no way the defendant risked offending the officer given the "mock masturbation", but that's getting into the facts of the case. That's not a charging issue. And if the argument is that the language at the end needs to include "in front of the complainant", that wasn't what the majority said or held. It also fails to consider the rest of the charging instrument. But even that I would find easier to accept than exposing genitals and masturbating isn't inherently reckless so you have to allege it occurred in public.
I guess I shouldn't get too bent out of shape, though, I can't imagine how the defendant will be able to show harm. But just as sure as I say that, the court will find a away. I just feel that the Court made a value judgment here and tried to act like it was an inexorable legal conclusion. I don’t want to go out on a limb, but I would imagine that there are only a limited number of circumstances where masturbating in front of someone wouldn’t contain at least some risk of alarm or offense. Otherwise, why bother dating? Surely that's enough to suggest that the risk is substantial enough to be inherent.
But on a lighter note (NSFW):
Labels:
indecent exposure,
motion to quash
Wednesday, February 3, 2010
Today's Opinions - 2/3/10
Okay, it was yesterday, but I had a deadline to meet. On February 3, 2010, the CCA handed down a number of orders including one published opinion in the following case:
PD-0504-09, Ex parte Oscar Roy Doster: A unanimous CCA held that a pre-trial habeas corpus proceeding followed by an interlocutory appeal is not the appropriate vehicle to raise a claim that a prosecution should be dismissed because the State failed to bring the defendant to trial within the time limit proscribed by the Interstate Agreement on Detainers. Here's a link to the court of appeals case information. Here's a link to the court of appeals opinion. [Sorry, the original Gray dissent was withdrawn when the court of appeals reconsidered its opinion on rehearing.]
Here's a link to a more detailed summary.
PD-0504-09, Ex parte Oscar Roy Doster: A unanimous CCA held that a pre-trial habeas corpus proceeding followed by an interlocutory appeal is not the appropriate vehicle to raise a claim that a prosecution should be dismissed because the State failed to bring the defendant to trial within the time limit proscribed by the Interstate Agreement on Detainers. Here's a link to the court of appeals case information. Here's a link to the court of appeals opinion. [Sorry, the original Gray dissent was withdrawn when the court of appeals reconsidered its opinion on rehearing.]
Here's a link to a more detailed summary.
Labels:
today's opinions
Opinion Summary - Ex parte Oscar Roy Doster
The State indicted Oscar Roy Doster for capital murder in Freestone County, Texas on May 30, 2007. At the time of the indictment, Doster was in an Alabama prison (no Midnight Special for him). His presence was obtained in Texas by a Governor's Warrant on January 28, 2008. At the arraignment, the trial court suggested a date of May 5, 2008. The prosecutor had a conflict and suggested June 2nd, and defense counsel responded that he did not think he would be ready to go to trial by June 2nd with all the investigation that he needed to do.
The trial court suggested August 4th, but defense counsel indicated there might be a conflict on that day as well. However, at a pre-trial hearing on March 25th, Doster's counsel requested that the trial occur within the time limit established by the Interstate Agreement on Detainers (120 days from Doster's arrival in Texas) which would be in April. The prosecution filed a motion that the extension to August 4th was a necessary and reasonable continuance. The trial court made a finding that the August 4th setting was an agreed setting.
On July 8th, Doster filed a pretrial application for writ of habeas corpus to dismiss the case for failing to comply with IAD time limits. The trial court denied the writ, and Doster filed an interlocutory appeal. Initially the court of appeals reversed. Chief Justice Gray dissented arguing that the IAD did not apply because Doster was extradited under the UCEA (remember the Governor's warrant . . . it seems like so long ago), but even if the IAD did apply, Doster waived the claim by agreeing to the August 4th date. The court of appeals granted the State's motion for rehearing, withdrew its original opinion, and affirmed the denial of relief holding that Doster had been extradited under the UCEA not the IAD.
Wshew! [Here's a link to the court of appeals case info, if you're interested.]
A unanimous CCA vacated the court of appeals opinion and ordered that the appeal be dismissed. Presiding Judge Keller, writing for the majority, explained that the rationale for allowing cognizability of a limitations claim does not extend to challenges under the IAD. Statute of limitations claims that are apparent on the face of the indictment make clear that it would be a waste to wait until the trial is over to consider a slam dunk issue that will result in a reversal.
However, speedy trial claims are not allowed to be raised in an interlocutory appeal because that would threaten precisely the values manifested in the Speedy Trial Clause. In other words, if the defendant truly wants a speedy trial, delaying the case to consider the appeal of a denial of a motion for speedy trial is well . . . ironic (and not in the Alanis Morrisette kind of way). And a defendant might be willing to delay a proceeding attendant upon the hope of winning an appeal of a denial of a speedy trial motion, so delay-causing prejudice would become a self-fulfilling prophecy. Thus, interests of judicial economy are only advanced if the defendant prevails. If he loses, then more judicial resources would be used had the interlocutory appeal been barred. In the context of an IAD claim, a defendant would end up spending more time in Texas contrary to the purpose of the IAD. And given the allocation of burdens on appeal, when the defendant loses at the trial level he's also more likely to lose on appeal.
The Court also noted that this case provided a good example of how the interlocutory appeal frustrated the prompt resolution of Doster's charges. Doster could have been tried on August 4, 2008. This opinion came out February 3 . . . 2010. And bouncing this case back and forth in "appellate orbit" between the appellate court and the CCA would further frustrate the purpose of the IAD.
Of course, the State could appeal the dismissal of an indictment pursuant to the IAD because that would effectively end the prosecution so the appeal would not be interlocutory. And, if the facts are undisputed and the trial court still doesn't dismiss, mandamus may be appropriate for the defendant. But Doster's interlocutory appeal of the denial of his pre-trial writ was not appropriate, so the CCA vacated the court of appeals and ordered the appeal dismissed.
The trial court suggested August 4th, but defense counsel indicated there might be a conflict on that day as well. However, at a pre-trial hearing on March 25th, Doster's counsel requested that the trial occur within the time limit established by the Interstate Agreement on Detainers (120 days from Doster's arrival in Texas) which would be in April. The prosecution filed a motion that the extension to August 4th was a necessary and reasonable continuance. The trial court made a finding that the August 4th setting was an agreed setting.
On July 8th, Doster filed a pretrial application for writ of habeas corpus to dismiss the case for failing to comply with IAD time limits. The trial court denied the writ, and Doster filed an interlocutory appeal. Initially the court of appeals reversed. Chief Justice Gray dissented arguing that the IAD did not apply because Doster was extradited under the UCEA (remember the Governor's warrant . . . it seems like so long ago), but even if the IAD did apply, Doster waived the claim by agreeing to the August 4th date. The court of appeals granted the State's motion for rehearing, withdrew its original opinion, and affirmed the denial of relief holding that Doster had been extradited under the UCEA not the IAD.
Wshew! [Here's a link to the court of appeals case info, if you're interested.]
A unanimous CCA vacated the court of appeals opinion and ordered that the appeal be dismissed. Presiding Judge Keller, writing for the majority, explained that the rationale for allowing cognizability of a limitations claim does not extend to challenges under the IAD. Statute of limitations claims that are apparent on the face of the indictment make clear that it would be a waste to wait until the trial is over to consider a slam dunk issue that will result in a reversal.
However, speedy trial claims are not allowed to be raised in an interlocutory appeal because that would threaten precisely the values manifested in the Speedy Trial Clause. In other words, if the defendant truly wants a speedy trial, delaying the case to consider the appeal of a denial of a motion for speedy trial is well . . . ironic (and not in the Alanis Morrisette kind of way). And a defendant might be willing to delay a proceeding attendant upon the hope of winning an appeal of a denial of a speedy trial motion, so delay-causing prejudice would become a self-fulfilling prophecy. Thus, interests of judicial economy are only advanced if the defendant prevails. If he loses, then more judicial resources would be used had the interlocutory appeal been barred. In the context of an IAD claim, a defendant would end up spending more time in Texas contrary to the purpose of the IAD. And given the allocation of burdens on appeal, when the defendant loses at the trial level he's also more likely to lose on appeal.
The Court also noted that this case provided a good example of how the interlocutory appeal frustrated the prompt resolution of Doster's charges. Doster could have been tried on August 4, 2008. This opinion came out February 3 . . . 2010. And bouncing this case back and forth in "appellate orbit" between the appellate court and the CCA would further frustrate the purpose of the IAD.
Of course, the State could appeal the dismissal of an indictment pursuant to the IAD because that would effectively end the prosecution so the appeal would not be interlocutory. And, if the facts are undisputed and the trial court still doesn't dismiss, mandamus may be appropriate for the defendant. But Doster's interlocutory appeal of the denial of his pre-trial writ was not appropriate, so the CCA vacated the court of appeals and ordered the appeal dismissed.
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