The CCA handed down orders and opinions in a number of cases. They handed down published opinions, featuring Judge Meyers prominently, in the following cases:
PD-0493-09, Douglas Michael Hubert v. State: Hubert lived with his grandfather. In this possession of a firearm by a felon case, the CCA held that Hubert's grandfather had actual authority to give consent to police officers to search Hubert's room. They sidestepped the issue of whether Hubert's grandfather had apparent authority to consent to the search of the room. Here's a link to the majority opinion. Here's a link to Judge Meyer's dissent. And here's a link to the court of appeals opinion and case info.
PD-0512-09, Julian Kuciemba v. State: The CCA held that there was sufficient circumstantial evidence that Kuciemba, found intoxicated and injured after a single-car rollover accident where he totally failed to hit the breaks, was intoxicated at the time of driving. Here's a link to the majority opinion. Here's a link to Judge Meyer's dissent. Here's a link to the court of appeals opinion and case info.
PD-0560-09, Oscar Perez v. State: The CCA held that while trial counsel failed to interview witnesses for a possible alibi for Perez. However, the failure to investigate did not prejudice Perez because the alibi witness gave a vague affidavit that did not foreclose Perez's ability to commit the offense. Here's a link to Judge Meyer's majority opinion (joined by all). Here's a link to the court of appeals majority opinion, dissenting opinion, and case info.
Note, there was also a published habeas case, but I haven't been able to pull it up yet. Will add it as soon as I'm able.
Wednesday, May 26, 2010
Case Summary - Douglas Michael Hubert v. State
Douglas Hubert was on parole and living with his grandfather when his grandfather called Hubert's parole officer to report that Hubert had violated numerous conditions of his parole, including possessing a firearm. Hubert's parole officer got a blue warrant for Hubert's arrest, and two officers went to execute it. They found Hubert on the porch and arrested him.
Hubert's grandfather also gave the officers consent to search Hubert's room. Hubert's bedroom door was closed, but not locked. Additionally, the grandfather told the police that he did not sleep in Hubert's room. However, he opened the door for the officers, and as far as the officers knew, the house belonged to the grandfather. Inside they found weapons and ammunition, which lead to a charge of possession of a firearm by a felon.
At the motion to suppress hearing, Hubert testified that he and his grandfather were co-owners of the house. Hubert's fiancee testified that the grandfather was not allowed to enter the room without express permission because he was excluded from Hubert's bedroom. She also testified that Hubert and his grandfather co-owned the house. Hubert tried to introduce a deed that purported to show that Hubert and his grandfather co-owned the house, but the State objected and the deed was not introduced. The trial court denied the motion to suppress.
The court of appeals reversed in a published opinion. According to the court, the legal property interest was not dispositive, but there was no evidence of common authority presented by the State. The officer's testimony showed that only Hubert (and sometimes his fiancee) slept in the room and the door was closed. This did not show that the grandfather had actual authority to consent to the search of Hubert's room. (Here's a link to the court of appeals case info if you're interested.)
The CCA reversed the court of appeals and held that Hubert's granddad did have authority to consent to the search of Hubert's room. Presiding Judge Price, joined by Judges Womack,Johnson, Keasler, Hervey, Holcomb, Cochran, and Presiding Judge Keller, explained that a third party can consent to a search to the detriment of another's privacy if there is mutual use of property by people generally having joint access or control for most purposes. Moreover, the majority rejected view held by several courts that there is a presumption that an occupant exercises sole control over his own bedroom and has no joint access to others' bedrooms. Rather than apply such a presumption, the Court simply looked at the facts of the case in a light most favorable to the trial court's ruling. As the majority saw it, Hubert, lacking any proprietary interest or even possessory right other than by the grace of his grandfather, assumed the risk that his grandfather might permit the search of any area of the house including Hubert's bedroom. The Court declined to consider whether the officers also had apparent authority to consent to the search of the bedroom.
Judge Meyers dissented. According to the dissent, this case was like Vennus v. State where the defense excluded evidence that justified the officer's conduct only to complain later that the record did not support the officer's conduct. Here, the State prevented Hubert from introducing evidence that he had a proprietary interest in the house, so they should not be allowed to argue that the court of appeals because there was nothing showing that Hubert's grandfather lacked authority to consent. [Here's a link to the CCA case information if you're interested.]
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Why didn't they just get a search warrant? I mean seriously. Anyway, that's neither here nor there. Meyers' dissent does hit upon the discomforting feeling that the State is adding by subtracting, and that's kind of why I would rather they had decided the case on apparent authority grounds. But I do think his analogy is not as direct as he thinks. In Vennus, the State had to prove reasonable suspicion and the defense objected to prevent the evidence from coming in. Then on appeal, the defense wanted to complain about a lack of evidence the defense had caused. Here, the State wasn't trying to rely upon something it had tried to keep out. The defense was trying to rely upon something the State had kept out. A distinction without a difference? Maybe. But it's not the direct analogy that Meyers makes it out to be. Perhaps the defense should've argued on appeal that the trial court erred by keeping it out, but in any event the error on appeal wasn't invited by the State. Of course, the whole goose-gander thing always gets me confused, so if you shake me enough I might change my mind.
As for the majority, seems pretty thin on actual authority, though it does seem that the trial court could've reasonably concluded that the defendant was staying in the residence by the grace of his grandfather. Even if he were a co-owner of the residence, that kind of cuts both ways. Sure he has a property interest, but it also shows joint ownership. Proprietary interest isn't the deciding factor, and the majority's reliance upon that kind of hints that there wasn't much evidence on common use of the bedroom. All this makes me wonder how bad the "apparent authority" argument would have been if the Court felt the need to find "actual authority" to avoid that inquiry.
Hubert's grandfather also gave the officers consent to search Hubert's room. Hubert's bedroom door was closed, but not locked. Additionally, the grandfather told the police that he did not sleep in Hubert's room. However, he opened the door for the officers, and as far as the officers knew, the house belonged to the grandfather. Inside they found weapons and ammunition, which lead to a charge of possession of a firearm by a felon.
At the motion to suppress hearing, Hubert testified that he and his grandfather were co-owners of the house. Hubert's fiancee testified that the grandfather was not allowed to enter the room without express permission because he was excluded from Hubert's bedroom. She also testified that Hubert and his grandfather co-owned the house. Hubert tried to introduce a deed that purported to show that Hubert and his grandfather co-owned the house, but the State objected and the deed was not introduced. The trial court denied the motion to suppress.
The court of appeals reversed in a published opinion. According to the court, the legal property interest was not dispositive, but there was no evidence of common authority presented by the State. The officer's testimony showed that only Hubert (and sometimes his fiancee) slept in the room and the door was closed. This did not show that the grandfather had actual authority to consent to the search of Hubert's room. (Here's a link to the court of appeals case info if you're interested.)
The CCA reversed the court of appeals and held that Hubert's granddad did have authority to consent to the search of Hubert's room. Presiding Judge Price, joined by Judges Womack,Johnson, Keasler, Hervey, Holcomb, Cochran, and Presiding Judge Keller, explained that a third party can consent to a search to the detriment of another's privacy if there is mutual use of property by people generally having joint access or control for most purposes. Moreover, the majority rejected view held by several courts that there is a presumption that an occupant exercises sole control over his own bedroom and has no joint access to others' bedrooms. Rather than apply such a presumption, the Court simply looked at the facts of the case in a light most favorable to the trial court's ruling. As the majority saw it, Hubert, lacking any proprietary interest or even possessory right other than by the grace of his grandfather, assumed the risk that his grandfather might permit the search of any area of the house including Hubert's bedroom. The Court declined to consider whether the officers also had apparent authority to consent to the search of the bedroom.
Judge Meyers dissented. According to the dissent, this case was like Vennus v. State where the defense excluded evidence that justified the officer's conduct only to complain later that the record did not support the officer's conduct. Here, the State prevented Hubert from introducing evidence that he had a proprietary interest in the house, so they should not be allowed to argue that the court of appeals because there was nothing showing that Hubert's grandfather lacked authority to consent. [Here's a link to the CCA case information if you're interested.]
* * * * *
Why didn't they just get a search warrant? I mean seriously. Anyway, that's neither here nor there. Meyers' dissent does hit upon the discomforting feeling that the State is adding by subtracting, and that's kind of why I would rather they had decided the case on apparent authority grounds. But I do think his analogy is not as direct as he thinks. In Vennus, the State had to prove reasonable suspicion and the defense objected to prevent the evidence from coming in. Then on appeal, the defense wanted to complain about a lack of evidence the defense had caused. Here, the State wasn't trying to rely upon something it had tried to keep out. The defense was trying to rely upon something the State had kept out. A distinction without a difference? Maybe. But it's not the direct analogy that Meyers makes it out to be. Perhaps the defense should've argued on appeal that the trial court erred by keeping it out, but in any event the error on appeal wasn't invited by the State. Of course, the whole goose-gander thing always gets me confused, so if you shake me enough I might change my mind.
As for the majority, seems pretty thin on actual authority, though it does seem that the trial court could've reasonably concluded that the defendant was staying in the residence by the grace of his grandfather. Even if he were a co-owner of the residence, that kind of cuts both ways. Sure he has a property interest, but it also shows joint ownership. Proprietary interest isn't the deciding factor, and the majority's reliance upon that kind of hints that there wasn't much evidence on common use of the bedroom. All this makes me wonder how bad the "apparent authority" argument would have been if the Court felt the need to find "actual authority" to avoid that inquiry.
Labels:
actual authority,
consent to search
Case Summary - Julian Kuciemba v. State
Police found Julian Kuciemba behind the steering wheel, injured and intoxicated after a one-car rollover accident. The deputy who arrived on the scene found Kuciemba's truck in a ditch with its roof partially crushed. Kuciemba had cuts on his forehead with blood running down his face. He smelled of alcohol and was unsteady on his feet. His eyes were glassy and bloodshot, he had difficulty standing, and his speech was slurred. He claimed he had fallen asleep. No skid marks were found on the roadway indicating Kuciemba did not brake before the rollover. His blood alcohol level was over twice the legal limit.
The court of appeals reversed, holding that the evidence was legally insufficient to show that Kuciemba was intoxicated at the time he was driving. The time of the accident wasn't established, and the State did not put on any evidence of Kuciemba's driving before the accident or to establish how soon afterwards the deputy arrived on the scene. According to the court of appeals, the evidence supported a finding that Kuciemba was intoxicated at the accident scene not that he was intoxicated while driving. [Here's a link to the court of appeals case information if you are interested.]
The CCA reversed, holding that the evidence circumstantially established that Kuciemba had been driving while intoxicated. Presiding Judge Keller, joined by everyone except Judge Meyers, explained that being intoxicated at the scene of a traffic accident where the actor was a driver is some evidence that intoxication caused the accident, and the inference is stronger when it's a one-car collision with an inanimate object. Additionally, the fresh cuts, Kuciemba's presence behind the wheel, his total failure to break, and his high blood-alcohol content supported the inference that Kuciemba was recently involved in the accident or that he had been intoxicated for quite awhile. And oh yeah, The Supreme Court of Nebraska would've reached the same holding, so there. [Here's a link to the CCA case information if you are interested.]
Judge Meyers dissented because he agreed with the court of appeals that there was neither direct or circumstantial evidence to establish the necessary temporal link between Kuciemba's driving and his intoxication. All the evidence showed Judge Meyers was that Kuciemba did not operate his car in a safe manner and that he was intoxicated at the accident scene.
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Perhaps you've heard the advice that people dispense at bars about what to do when you're in a DWI accident. You know, they say if you get in an accident you should immediately chug some liquor. Well, this opinion is the opinion affirming your conviction you will likely get should you engage in such foolish behavior. I wonder if Meyers is still, perhaps on a subconscious level, looking at this from an exclusion of every reasonable hypothesis standard of review. Is he thinking this case is one where the defendant really wasn't drunk until after the accident when he decided to chug some liquor (that was never found) out of remorse? Or was there a phantom driver who pulled the defendant into the driver's seat out of his own sense of guilt before fleeing the scene in his drunken state? Look, all of the facts in this case raise the inference that the defendant was driving while intoxicated. Of course, you could also come up with other hypothetical situations like the ones I mentioned above. Under the old standard Judge Meyers could be forgiven for allowing such possibilities enter his mental calculus. But now it's up to the jury to decide on competing theories of the case, and if they determine that the former scenario is more likely than the later hypothesis, then that's their call. Under the new standard, Judge Meyers is just wrong. Of course, he didn't have to rely upon a case from Nebraska to make his point, so maybe I'm the one who's messed up.
P.S.-Nothing on this blog should be construed as any type of advice.
The court of appeals reversed, holding that the evidence was legally insufficient to show that Kuciemba was intoxicated at the time he was driving. The time of the accident wasn't established, and the State did not put on any evidence of Kuciemba's driving before the accident or to establish how soon afterwards the deputy arrived on the scene. According to the court of appeals, the evidence supported a finding that Kuciemba was intoxicated at the accident scene not that he was intoxicated while driving. [Here's a link to the court of appeals case information if you are interested.]
The CCA reversed, holding that the evidence circumstantially established that Kuciemba had been driving while intoxicated. Presiding Judge Keller, joined by everyone except Judge Meyers, explained that being intoxicated at the scene of a traffic accident where the actor was a driver is some evidence that intoxication caused the accident, and the inference is stronger when it's a one-car collision with an inanimate object. Additionally, the fresh cuts, Kuciemba's presence behind the wheel, his total failure to break, and his high blood-alcohol content supported the inference that Kuciemba was recently involved in the accident or that he had been intoxicated for quite awhile. And oh yeah, The Supreme Court of Nebraska would've reached the same holding, so there. [Here's a link to the CCA case information if you are interested.]
Judge Meyers dissented because he agreed with the court of appeals that there was neither direct or circumstantial evidence to establish the necessary temporal link between Kuciemba's driving and his intoxication. All the evidence showed Judge Meyers was that Kuciemba did not operate his car in a safe manner and that he was intoxicated at the accident scene.
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Perhaps you've heard the advice that people dispense at bars about what to do when you're in a DWI accident. You know, they say if you get in an accident you should immediately chug some liquor. Well, this opinion is the opinion affirming your conviction you will likely get should you engage in such foolish behavior. I wonder if Meyers is still, perhaps on a subconscious level, looking at this from an exclusion of every reasonable hypothesis standard of review. Is he thinking this case is one where the defendant really wasn't drunk until after the accident when he decided to chug some liquor (that was never found) out of remorse? Or was there a phantom driver who pulled the defendant into the driver's seat out of his own sense of guilt before fleeing the scene in his drunken state? Look, all of the facts in this case raise the inference that the defendant was driving while intoxicated. Of course, you could also come up with other hypothetical situations like the ones I mentioned above. Under the old standard Judge Meyers could be forgiven for allowing such possibilities enter his mental calculus. But now it's up to the jury to decide on competing theories of the case, and if they determine that the former scenario is more likely than the later hypothesis, then that's their call. Under the new standard, Judge Meyers is just wrong. Of course, he didn't have to rely upon a case from Nebraska to make his point, so maybe I'm the one who's messed up.
P.S.-Nothing on this blog should be construed as any type of advice.
Case Summary - Oscar Perez, Jr. v. State
Oscar Perez, along with an accomplice, broke into the home of a young woman and her thirteen-year-old son. She was able to identify the accomplice, and the boy was able to identify Perez. According to the boy, Perez pointed a knife at the boy while his cohort trashed everything and demanded money. A jury convicted Perez of aggravated robbery, and defense counsel withdrew on the date of the judgment.
Perez filed a motion for new trial alleging ineffective assistance of counsel. Perez claimed that the defense failed to do a proper investigation. The court-appointed investigator listed four people that defense counsel could've called as witnesses. One of the witnesses lived in a two-bedroom apartment with seven other people including Perez. She would've testified that she slept on the floor next to the couch Perez slept on. She would've testified that "we went to bed about 10:00" and she was certain that Perez was sleeping on the couch every night during the time the robbery occurred. The only evidence of the time of the robbery came from the mother (who said it was around 8:00 p.m.) and her son (who said it was around 10:00 p.m.). The trial court denied the motion for new trial.
The court of appeals affirmed. While trial counsel's failure to investigate fell below prevailing professional norms, the majority still held that Perez had not been prejudiced by trial counsel's deficient performance. The "alibi" witness had not provided a specific date or event, so her testimony did not directly conflict with the testimony provided by the State. Justice Frost dissented because the testimony from the uninvestigated witnesses could've established an alibi defense for the jury to consider. [Here's a link to the court of appeals case information if you are interested.]
The CCA affirmed. Writing for a unanimous court, Judge Meyers explained pretty much as the court of appeals had that the alibi witness did not really provide an alibi or make it impossible for the defendant to commit the crime. The witness's affidavit was unclear about whether "we went to bed" meant she and Perez or just her and her child, and simply was not the game-changer Perez wished it to be. After viewing the evidence the State presented compared to what the defense failed to present, there was no reasonable probability sufficient to undermine confidence in the outcome. [Here's a link to the CCA case information if you're interested.]
* * * * *
I wonder if this means alibi witnesses in motions for new trial will be required to testify in such a manner that it was impossible for the defendant to commit the offense. I suppose a little more information from the witness might have helped Perez carry his burden to show that he was prejudiced by trial counsel's performance. Had there been live testimony But after finding himself in a minority of one twice today, he pulled out a unanimous majority.
Perez filed a motion for new trial alleging ineffective assistance of counsel. Perez claimed that the defense failed to do a proper investigation. The court-appointed investigator listed four people that defense counsel could've called as witnesses. One of the witnesses lived in a two-bedroom apartment with seven other people including Perez. She would've testified that she slept on the floor next to the couch Perez slept on. She would've testified that "we went to bed about 10:00" and she was certain that Perez was sleeping on the couch every night during the time the robbery occurred. The only evidence of the time of the robbery came from the mother (who said it was around 8:00 p.m.) and her son (who said it was around 10:00 p.m.). The trial court denied the motion for new trial.
The court of appeals affirmed. While trial counsel's failure to investigate fell below prevailing professional norms, the majority still held that Perez had not been prejudiced by trial counsel's deficient performance. The "alibi" witness had not provided a specific date or event, so her testimony did not directly conflict with the testimony provided by the State. Justice Frost dissented because the testimony from the uninvestigated witnesses could've established an alibi defense for the jury to consider. [Here's a link to the court of appeals case information if you are interested.]
The CCA affirmed. Writing for a unanimous court, Judge Meyers explained pretty much as the court of appeals had that the alibi witness did not really provide an alibi or make it impossible for the defendant to commit the crime. The witness's affidavit was unclear about whether "we went to bed" meant she and Perez or just her and her child, and simply was not the game-changer Perez wished it to be. After viewing the evidence the State presented compared to what the defense failed to present, there was no reasonable probability sufficient to undermine confidence in the outcome. [Here's a link to the CCA case information if you're interested.]
* * * * *
I wonder if this means alibi witnesses in motions for new trial will be required to testify in such a manner that it was impossible for the defendant to commit the offense. I suppose a little more information from the witness might have helped Perez carry his burden to show that he was prejudiced by trial counsel's performance. Had there been live testimony But after finding himself in a minority of one twice today, he pulled out a unanimous majority.
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