CRIMINAL LAW

FALL 2011

 

 

 

 

I. PRE – TRIAL

 

 

            A. INDICTMENTS

 

 

Phillips v. State, W.L. 2409307; LEXIS 825 (Tex. Crim. App. 2011)

 

Ex Post Facto:  When she was 26, the daughter encountered her father, who she claimed had sexually abused her. The abuse happened in 1982 or 1983, when she was 24.  The defendant was eventually indicted in 2007, and ultimately convicted and sentenced to life.  The defendant did not object at trial, but on appeal claimed the prosecution was barred by limitations.  Held:  The Court finds an ex post violation, holding the prosecution was absolutely barred by limitations. The conviction was reversed, with instructions to the court to enter an order dismissing the indictment.

 

 

            B. SEARCH & SEIZURE

 

 

Lujan v. State, 315 S.W.3d 768 (Tex. Crim. App 2011)

 

Checkpoints:  The police set a up check point for purpose of catching unlicensed drivers and uninsured motorists.  A K-9 unit was also there, along with several officers a from a criminal interdiction unit to investigate criminal violations that came to their attention.  The appellate court held the check point was not solely for the purpose of checking the insurance and licenses, and granted the defendant’s motion to suppress.  Held:  Reversed.  As long as the primary purpose of the checkpoint was lawful, the police can act on information that arose at the stop.

 

 

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011)

 

Consent to Search:  After pulling the defendant over for failing to signal a turn, the officer asked for consent to search 6 times.  The last time, the officer testified he thought the defendant said yes, although he might have said “I guess”.  The court of appeals reversed, holding the defendant was detained without reasonable suspicion.  Held:  Reversed. The totality of circumstances, viewed in the light favoring the decision, supported the judge’s decision.  In a concurring opinion, Justice Keller suggested that consent would be valid if an officer reasonably but incorrectly believed the person had consented.

 

Cooksey v. State, W.L. 1796141; LEXIS 3487 (Tex. App.—San Antonio 2011)

 

Expectation of Privacy:  A Kerrville police officer provided information to the sheriff’s department that a confidential informant said the defendant was growing marijuana at his home, and that the informant was credible and reliable.  Based on that information, the deputy went out to do a “knock and talk” and see if he could get consent to search.  When they drove up they saw the defendant and his wife looking out a window.  When they stated they wanted to talk, the defendant walked toward the back of the mobile home.  One of officers walked to the side of the mobile home because of “officer safety issues” and concern that someone might come around the corner with gun.  They saw the defendant in the backyard, and entered to talk to him. When they did, they saw him standing in middle of marijuana plants.  Held:  The defendant had a reasonable expectation of privacy in his backyard.  The mobile home was in a secluded area, not visible from the main road, and the backyard was not visible from the driveway or front yard, nor from neighboring properties.  As such, they could not enter without probable cause or exigent circumstances, which they did not have.  The consent was tainted by illegal entry.  When he gave consent, the defendant was surrounded by officers as well as the incriminating evidence.

 

 

Sanchez v. State, W.L. 1936064; LEXIS 3824 (Tex. App.—Houston [1st Dist.] 2011)

                                               

Authority to Issue Warrant:  The State obtained a search from a county court at law judge in Montgomery County.  The warrant was executed in Harris county.  Held:  A statutory county court judge had no authority to issue a warrant to be executed in a different county.

 

 

Limon v. State, 340 S.W.3d 753 (Tex. Crim. App. 2011)

 

Authority to Consent:  Officers were investigating a report of shots fired.  They arrived at the residence where they saw a car that was still warm and appeared to have bullet hole.  They went to the door to investigate, and talked to a young boy (13-14), who gave consent to enter and look around.  Held:  The Court rejected a per se rule that children may not provide consent. Instead, the issue was whether the officer had a reasonable belief that the child had authority to give consent. Under the facts here, the court found they could reasonably believe the boy had authority to allow entry.

 

 

Martinez v. State, W.L. 2582199; LEXIS 912 (Tex. Crim. App. 2011)

 

Probable Cause for Stop:  The police received a call that someone in a blue Ford pickup stopped and picked up 2 bicycles and put them in the back of his truck.  An officer on patrol saw a truck “that looked like it was blue” and followed it.  He didn't observe any traffic violations but went ahead and stopped the truck.  As he was approaching the truck, he saw two bicycles in back.  The caller subsequently arrived at the scene and confirmed that was the truck he saw. After observing signs of intoxication, the defendant was eventually placed under arrest for DWI, and marijuana was found in the truck.  The trial court denied a motion to suppress and the appellate court affirmed.  Held:  Reversed.  The officer had little or no information to connect the defendant to any unusual activity.

 

 

State v. Jordan, W.L. 2555708; LEXIS 911 (Tex. Crim. App. 2011)

 

Sufficiency of Warrant:  The police obtained a warrant for a blood draw.  The affidavit recited facts supporting a belief that the defendant was driving while intoxicated on a certain date, no time was given as to when the observations were made though.  The trial court granted the defendant's motion to suppress, holding the time was a critical issue.  The appellate court affirmed.  Held:  Reversed.  The Court failed to analyze the affidavit as a whole, noting that the affidavit was presented to the magistrate within 4 hours of the stop.  The court could assume the observations were made shortly before presenting the affidavit.

 

 

            C. CONFESSIONS

 

No cases decided

 

 

            D. VOIR DIRE

 

SIGNIFICANT DECISION

 

 

Anderson v. State, 341 S.W.3d 585 (Tex. App.—Amarillo 2011)

 

Discussion of Burden of Proof:  Before starting voir dire, the judge stated he would not allow anyone to talk about clear and convincing evidence, preponderance of the evidence, or compare burdens of proof.  Held:  There was no authority suggesting the refusal to allow a comparison of the burdens of proof was an abuse of discretion.  As such, the restriction was not unreasonable. Note: This is a significant decision that has been discussed at length among criminal defense lawyers. Comparing the burdens of proof has been a standard voir dire topic for years, and may now be off limits.  This is not the last word on the issue, and the issue should be preserved until a definitive ruling comes from the Court of Criminal Appeals.

 

 

            E. MISCELLANOUS

 

 

Blackshear v. State, W.L. 19914254; LEXIS 3912 (Tex. App.—Houston [14th Dist.] 2011)

 

Denial of Continuance:  After declaring a mistrial during punishment, the court announced it would empanel a new jury the same day to re-try the defendant on punishment.  Counsel moved for a continuance so he could obtain a copy of the transcript from the first trial, which was denied.  Held:  Even though the punishment trial was to begin the following day, it was an abuse of discretion to deny the motion so the defendant could obtain the transcript for use at the second trial.

 

 

In re Bowen v. Carnes, W.L. 2408749; LEXIS 827 (Tex. Crim. App. 2011)

 

Waiver of Conflict:  A Husband and wife were represented by the same attorney, and signed waivers of their right to conflict-free counsel.  The counsel also had represented a jailhouse informant on an unrelated matter.  The trial court granted the state’s motion to disqualify counsel out of concern for “the integrity of the judicial process and the public’s perception.”  Held:  Counsel could not be disqualified unless there was an actual conflict or the potential for one; the court’s concerns were not sufficient. Without that concern, the court could not interfere with a defendant’s choice of counsel.

 

 

II. TRIAL

 

 

            A. EVIDENCE

 

 

Barshaw v. State, W.L. 2555661; LEXIS 914 (Tex. Crim. App. 2011)

Expert Testimony:  The complainant in a sexual assault case was mentally retarded, functioning at a level of a 10 year old.  The psychiatrist was asked about the ability of mentally retarded people to fabricate or make up elaborate stories. She responded that in her experience such people can be “painfully honest”.  The appellate court found error and reversed.  Held:  The testimony should not have been admitted, but the Court criticized the court's harm analysis, finding there was testimony and circumstances not considered by the court.  The Court also noted the testimony was not mentioned during closing argument, and the jury was instructed that they were the exclusive judges of the credibility of witnesses.  The Court reversed so a full harm analysis could be conducted.

 

 

            B. EXAMINATION OF WITNESSES

 

No cases decided

 

 

            C. INSTRUCTIONS

 

 

Welsh v. State, 324 S.W.3d 582 (Tex. Crim. App. 2010)

 

Lesser Included Offenses:  The defendant argued that offensive contact bodily assault was a lesser included offense of bodily injury assault.  Held:  The Court reaffirmed that an offense was lesser included if 1) it alleged all of the elements of the lesser-included, or 2) alleged elements plus facts (including descriptive averments such as non-statutory manner and means that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced. If a descriptive averment identical to the element of a lesser offense, or an element of the lesser offense may be deduced from the descriptive avervment, the offense may be a lesser included.  The Court held offensive contact bodily assault was not a lesser included offense, where the facts required to show the greater offense may have also shown a number of other lesser offenses.

 

 

McKithin v. State, 324 S.W.3d 582 (Tex. Crim. App. 2010)

Lesser Included Offense:  This was a companion case to Welsh.  The defendant was charged with aggravated sexual assault, alleging he compelled the victim to consent by use of physical force and violence, and placed her in fear of serious bodily injury.  His request for a lesser included on bodily injury assault and offensive contact assault was denied.  Held:  The physical force and violence allegation was not equivalent of an allegation of physical contact, and therefore the request was properly refused.

 

 

Taylor v. State, 332 S.W.3d 483 (Tex. Crim. App. 2011)

 

Instruction Limiting Evidence:  The defendant was convicted of 3 aggravated sexual assaults. Some of testimony involved acts committed before the defendant turned 17. No instruction was given limiting the jury's consideration of evidence to offenses committed after he turned 17, and none was requested.  Held:  The trial judge had the ultimate responsibility for submitting a correct charge.  However, the Court found there was no egregious harm because the defendant could have been convicted solely on acts committed after he turned 17.

 

 

            D. ARGUMENT

 

No cases decided

 

 

            E. SENTENCING

 

 

Posey v. State, 330 S.W.3d 311 (Tex. Crim. App. 2011)

 

Authority to Grant Shock Probation:  The defendant was convicted of criminally negligent homicide, and the jury found that the vehicle was a deadly weapon.  The jury recommended probation, and a motion to revoke was subsequently heard.  Probation was revoked, but the court later granted the defendant’s motion for shock probation.  Held:  The court had no authority to grant shock probation.  Such authority existed only in cases where the judge could have granted probation originally; which could not have been here because of the deadly weapon finding.

Delatorre v. State, W.L. 2448262; LEXIS 4571 (Tex. App.—Houston [1st Dist.] 2011)

 

Sentencing Following Adjudication:  The defendant pled guilty and executed a jury trial waiver. He was placed on deferred adjudication which was subsequently revoked.  The defendant argues he was entitled to a jury trial on sentencing, once the case was adjudicated.  Held:  The Court agreed, but held the waiver of a jury was binding.

 

 

            F. SUFFICIENCY

 

 

Cooper v. State, 326 S.W.3d 757 (Tex. App.—Texarkana 2010)

 

Sufficiency – Improper Photography or Visual Recording:  The defendant was convicted based on evidence that he made video recordings of females walking down the street in front of either his home or business.  The subjects were fully clad, and not in a private area.  Held:  While the inside of a business and a residence were identifiable there was no evidence of who was making the recordings or taking the pictures.  Without that the Court held the evidence was insufficient to establish the appellant made the recordings.

 

 

Clinton v. State, 327 S.W.3d 366 (Tex. App.—Texarkana 2010)

 

Sufficiency – Credit Card Abuse:  The defendant was convicted of credit card abuse based on an indictment that alleged she used a debit card of another person.  The evidence did not establish that she used the card; only that she presented it.  Appellant requested a lesser-included offense for attempted credit card abuse, which was denied.  Held:  Because that instruction was requested, and the evidence was sufficient to support a conviction on that theory, the judgment was reformed to reflect conviction for attempted credit card abuse.

 

 

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011)

 

Sufficiency – Burglary:  While investigating a noise, the complainant saw the defendant trying to enter through a broken window.  He looked startled, said “I didn’t do it” and ran.  The defendant denied attempting to break into the house, and denied trying to steal anything.  He also testified he thought the house was abandoned when he went to the back to urinate.  The appellate court reversed, finding the evidence was insufficient.  Held:  The evidence was sufficient, pointing to fact that the defendant was unemployed at the time, had 1 dollar in his pocket, ran when confronted, and gave inconsistent stories to the police.  Judge Cochran, joined by Judges Price and Johnson, dissented, stating that fact that the defendant told unbelievable and inconsistent stories might make him a liar, but doesn’t establish an intent to commit theft or some other felony.

 

 

 

Garza v. State, W.L. 2555704; LEXIS 915 (Tex. Crim. App. 2011)

 

Sufficiency of Evidence – Proof of Ownership:  The defendant was charged with theft that was based on continuing a course of conduct.  The actual victim was Hewlett Packard, but the indictment named an employee as a special owner.  Held:  In aggregate theft case, the State did not have to prove that the special owner was employee at the time of each theft.  As an employee, he was allowed to testify about the value of the stolen property even though he may not have been employed at the time of each theft.

 

 

Howard v. State, W.L. 1288324; LEXIS 329 (Tex. Crim. App. 2011) (memo op.)

 

Sufficiency of Evidence – Awareness of Victim:  The defendant entered a convenience store with a rifle and his face concealed.  The clerk was in the back and saw the defendant on a security monitor. He locked the door to the room he was in and called 911. The defendant couldn't get the register open but took the clerk's wallet and money from under the counter. The defendant argued he could not be convicted of intentionally placing the clerk in danger because he didn't know he was there.  Held:  The Court rejected that argument, holding it was enough that he was aware his conduct was reasonably likely to place someone in fear, and someone was actually placed in fear of the danger.

 

 

            G. MISCELLANEOUS

 

 

Ex Parte Garza, 337 S.W.3d 903(Tex. Crim. App. 2011)

 

Disabled Juror:  After the jury was sworn in but before trial commenced, one of the jurors became indisposed for health reasons. After continuing the trial for several days, the court declared a mistrial over the counsel’s objection.  The defendant filed a pre-trial application for habeas arguing there was no manifest necessity for declaring a mistrial.  Held:  While a county court trial was not specifically authorized to proceed with five jurors, there was nothing to prohibit that.  As such, the court should have considered that possibility before declaring a mistrial.

 

 

III. POST-TRIAL

 

 

            A. APPEAL

 

No cases decided

 

 

            B. HABEAS CORPUS

 

State v. Golding, W.L. 2732579; LEXIS 5360 (Tex. App.—Houston [1st. Dist.] 2011) (memo op.)

 

Voluntariness of Plea:  The defendant plead guilty in 1994 to a DWI and unlawful possession of a firearm.  At the time, he was a lawful permanent resident. He filed a writ of habeas corpus, claiming his plea was involuntary because he was not advised of the immigration consequences.  Held:  The lack of an opportunity to apply for naturalization as well as the possibility of deportation were sufficient collateral consequences to give the court jurisdiction.  The Court granted the relief, rejecting a claim that the defendant waited too long to present the writ.

 

 

Ex Parte Rodriguez, W.L. 1885172; LEXIS 3726 (Tex. App.—San Antonio 2011)

 

A Similar Case – With A Different Result:  The defendant plead no contest to a misdemeanor assault in 2006. He was subsequently apprehended by the INS and removed from country. He then filed a writ, claiming his lawyer did not properly admonish him of the immigration consequences.  The trial counsel could not remember what he told the defendant, but the defendant stated his lawyer told him the conviction would only be a problem if he wanted to apply for naturalization.  Held:  There was no evidence that deportation was certain upon conviction, and the Court found the defendant failed to meet the burden of showing counsel’s advice was deficient.

 

SIGNIFICANT DECISION

 

 

Ex Parte Robbins, W.L. 2555665; LEXIS 910 (Tex. Crim. App. 2011)

 

Post-Conviction Change of Mind:  The defendant was convicted of murdering his girlfriend's 17 year old daughter. The medical examiner testified that the child died as result of asphyxia due to compression of chest and abdomen. Several years later she re-evaluated her opinion, and stated she could no longer stand by it.  Held:  The court denied the relief, holding the defendant had not established actual innocence.  Note:  This is a significant issue in post-conviction litigation, where a conviction was based on scientific testimony. If the case was tried again today, a conviction would be unlikely, but that was not enough to establish actual innocence. Several justices would hold that the defendant did not receive a fair trial, and Justice Alcala would grant relief on the basis that defendant was denied due process of law.

 

 

State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010)

 

Actual Innocence – Sentencing:  The defendant pled guilty to a felony and was placed on probation.  A motion to revoke was filed within a year, but he was not arrested for 19 years. The felony was based in part on 1983 conviction, where the judgment recited the conviction was not final. Prior to 1984, such a conviction was not considered final and could not be used for enhancement.  The defendant filed a postconviction writ alleging actual innocence.  Held:  Actual innocence encompassed cases where a defendant was not eligible for the sentence assessed.  The State also argued the defendant was estopped from challenging finality of a prior conviction pursuant to a plea agreement.  The Court rejected that claim, noting that defendants who plead guilty have not been prevented from establishing actual innocence.

 

 

            C. MISCELLANEOUS

 

 

Menefield v. State, W.L. 2297684; LEXIS 5313 (Tex. App.—Amarillo 2011)

 

Failure to Object to Lab Report:  A lab report was admitted as a business record through the DPS lab manager. He was not the manager when the testing was done, and did not perform the testing, or do his own analysis.  The counsel failed to object, and on appeal argued his counsel was ineffective for not doing so. The Court agreed, finding there was no reasonable trial due to counsel failing to object.