CRIMINAL LAW
SPRING 2008
I. PRE-TRIAL
a. INDICTMENTS
No cases decided
b. SEARCH AND SEIZURE
Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007)
Innocent Explanations and Reasonable Suspicion: The Court of Appeals reversed the trial court’s denial of a motion to suppress. The basis for the traffic stop was that officers had observed the defendant weaving in and out of his lane over a short distance. The Court found that was not sufficient, because there could have been a number of reasons for such conduct that were not related to intoxication. Held: Reversed. The possibility of an innocent explanation did not deprive an officer of the ability to entertain a reasonable suspicion of criminal conduct. The purpose of an investigative detention was to resolve any ambiguity, and determine whether criminal activity was occurring. The Court of Appeals also failed to consider the lateness of the hour, as well as the officers field training in detecting intoxicated drivers.
St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007)
Reasonable Suspicion for Continued Detention: The defendant was a passenger in a car that was stopped because the license plate light was not functioning properly. During the course of the stop, the officer attempted to identify the defendant. He initially gave a false name, and no records came back with the license number or name that he had given. A warning citation was issued for the license plate violation. While explaining the ticket to the driver, the officer asked the defendant if his license was expired, and he responded that it was. Additional questioning eventually uncovered the defendant’s real name, and it was discovered that he had outstanding warrants. Held: Without reasonable suspicion, the officer may conduct only consensual questioning of passengers in a vehicle. Here, the officer did not learn that the defendant misidentified himself until after the warning citation had been issued. Providing a false name when the officers did not know or suspect it was false could not have given them reasonable suspicion to investigate further. The additional questioning went beyond the scope of the stop, and unreasonably prolonged its duration. As a result, the Court affirmed the Court of Appeals decision which reversed the denial of a motion to suppress.
State v. Rico, 241 S.W.3d 648 (Tex. App.—Amarillo 2007)
Timely Execution of Search Warrant: The issue here was whether the search warrant was timely executed. The state argued the time was computed from the time the search warrant was issued, and must be executed within 120 hours of the day and hour of issuance. Held: To be timely, a search warrant must be executed by midnight on the fourth day after the warrant was issued. In this case, the warrant was issued on August 19, 2005, and therefore, had to be executed by midnight of August 23. That gave the state three full days to execute the warrant, which they did not do.
Amador v. State, 242 S.W.3d 95 (Tex. App.—Beaumont 2007)
Probable Cause –Odor of Alcohol: The court held that odor of alcohol, standing alone, cannot be probable cause for detaining a person for public intoxication. The Court noted that as long as the consumption of alcohol was legal, authorizing detention on such a basis would invite unwarranted police intrusion.
c. CONFESSIONS
Herrera v. State, 241 S.W.3d 510 (Tex. Crim. App. 2007)
Miranda Warnings: Following a traffic stop, the defendant was arrested on an outstanding warrant and taken to jail. While he was in jail, the officer talked with him about a fight he had been involved in that was the reason they had been stopped in the first place, but he was not arrested for that offense. No more Miranda warnings were given, and the Court held they were not required. Such warnings were not required when an individual was questioned about an offense that was separate and distinct from the one for which they were incarcerated. Although the defendant was technically in custody, that was not enough.
d. VOIR DIRE
Stafford v. State, W.L. 4938775; LEXIS 1280 (Tex. App.— Beaumont 2008)
Implied bias of Juror: During the sentencing hearing, the state introduced video of a car chase. While watching the video, one of the jurors noticed that the defendant drove through her yard, causing damage. Before that, she did not know how the yard had been damaged. Upon being questioned by the court, she stated she would remain impartial, and would not be affected by what she learned. Held: The Court refused to imply bias to the juror, and looked to the record to see whether a claim of bias was supported. Since there was nothing other than the Jurror’s denials, the court found no error in not granting the motion for a mistrial.
c. MISCELLANEOUS
In re Gore, W.L. 4321714; LEXIS 9646 (Tex. App.—San Antonio 2007)
Abatement: The trial court entered an order abating a civil forfeiture case until the criminal prosecution was concluded. The defendant sought mandamus, arguing that the pendency of a criminal investigation did not affect a civil case. Mandamus was granted, and the court was ordered to vacate the abatement order. Court noted that in an appropriate case, the State may be able to obtain some protection from civil discovery in the forfeiture case.
II. TRIAL
a. EVIDENCE
Fischer v. State, W.L. 141850; LEXIS 5 (Tex. Crim. App. 2008)
Contemporary Observations of Officer: While the defendant was performing a field sobriety test, the officer dictated his observations, which was recorded on the video. The Court held those statements were not admissible, and noted the situation had the potential for exaggeration or misstatement.
Pollard v. State, W.L. 227973; LEXIS 609 (Tex. App.—San Antonio 2008)
Evidence of Prior Conviction: The State introduced evidence of a 20 year old murder conviction. They argued it was motive for the offense of retaliation, because the defendant did not want to return to prison. Held: There was no evidence to support that theory. The Court also held it was not the same transaction contextual evidence. The error was not harmless, since the evidence was not overwhelming, and the prior conviction was emphasized repeatedly.
Vinson v. State, W.L. 141916; LEXIS 2 (Tex. Crim. App. 2008)
Testimonial Nature of Statements: The Court held that the victim’s identification of the defendant as the assailant was not testimonial, and therefore, could be admitted. However, statements to the officer concerning the details of the offense were testimonial, and should not have been admitted.
Weaver v. State, W.L. 4157237; LEXIS 9200 (Tex. App.—Waco 2007)(memo op.)
Consent to Recording by Parent: Evidence was introduced of a tape recorded conversation between the defendant and the child victim. The defendant moved to suppress, arguing neither he or the victim consented to the recording. The issue was whether the mother could vicariously consent to the recording. Held: Although there was no direct testimony, the court found there was sufficient evidence of the mother’s belief that the recording was in the victims best interest, and therefore, the how consent was sufficient.
Harrison v. State, 241 S.W.3d 23 (Tex. Crim. App. 2007)
Character Witness: One of the defendant’s witnesses provided a non-responsive answer, stating he was a good and sweet person. Held: Even though the testimony was not intentionally solicited, it was still character evidence. As such, the state was allowed to impeach the testimony with prior convictions.
b. EXAMINATION OF WITNESSES
Sohail v. State, W.L. 458300; LEXIS 1236 (Tex. App.—Houston [1st Dist.] 2008)
Impeachment of Hearsay Declarant: The victim in an assault case refused to testify, and the state was allowed to use several out-of-court statements she made to others. The defendant attempted to introduce evidence of prior inconsistent statements the victim had made to his sister. Held: He should have been allowed to do so. However, the error was harmless in this case.
Hammons v. State, 239 S.W.3d 798 (Tex. Crim. App. 2007)
Impeachment with Prior Consistent Statements: Before prior consistent statements can be admitted, there must be some suggestion that the witness consciously altered his testimony. Merely questioning a victim’s recollection of events through cross-examination did not constitute a charge of fabrication. Held: There was no bright line rule to determine what was a general challenge to memory or credibility, and a suggestion of fabrication. In this case, the court found there was a sufficient suggestion, and therefore, impeachment was proper.
c. INSTRUCTIONS
Shaw v. State, 243 S.W.3d 847 (Tex. Crim. App. 2007)
Instruction on “Good Samaritan Defense”: The defendant was charged with injury to a child. Her defense was that she saw the victim in distress, and administered emergency medical treatment. She requested an instruction on the Good Samaritan Defense, which was refused. Held: A defendant was not entitled to a defensive instruction regarding evidence that did nothing more than negate an element of the offense. An instruction was only required where a defendant basically admitted to the elements of the offense, but tried to establish a justification for the conduct. In this case, the defense was basically that she did not intend to cause the injuries, and therefore, an additional instruction was not necessary.
Bradshaw v. State, 244 S.W.3d 490 (Tex. App.—Texarkana 2007)
Instruction – Sudden Passion: At punishment, the defendant argued he was acting under the influence of sudden passion, which would reduce the range of punishment. On appeal, he argued the Court erred in not requiring a unanimous verdict on the sudden passion issue. The instruction had asked the jurors to find in the defendant’s favor if they believed he acted under the influence of sudden passion. There was no instruction that the verdict be unanimous, and the Court held that was error. However, since there was not a proper objection, the defendant had to establish egregious harm, which he could not do.
Walters v. State, W.L. 4245387; LEXIS 1701 (Tex. Crim. App. 2007)
Jury Instruction: The defendant sought an instruction that verbal threats could be sufficient to support a claim of self-defense. The Court noted that it had started to recognize that instructions on defensive theories not set out in the Penal Code were not consistent with the legislative intent. For that reason, instructions on accident, good faith, alternative cause, independent impulse, or suicide could be properly refused. The Court held that an instruction was not required if it was not grounded in the Penal Code, was covered by the general charge to the jury, and focused the jury’s attention on a specific type of evidence that may support an element of an offense or defense. The requested charge in this case met all three criteria, and therefore, was properly refused. The Court noted that although parties may offer any evidence that would support or refute a finding of self-defense, they were not entitled to non-statutory instructions on how to evaluate specific types of evidence.
Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007)
Instruction on Extraneous Offenses: Extraneous offenses were admitted without objection. On appeal, the defendant claimed the court erred in failing to give a burden of proof instruction, even though one was not requested. Held: A Court was not required to instruct the jury on the burden of proof for extraneous offenses when such an instruction was not requested.
d. ARGUMENT
No cases decided.
e. SENTENCING
No cases decided.
f. SUFFICIENCY
Hicks v. State, 241 S.W.3d 543 (Tex. Crim. App. 2007)
Sufficiency—Definition of possession: The defendant was charged with injury to a disabled person. The victim was a mentally retarded man, who attended a party. He got into a fight with someone else, and was struck and knocked unconscious. The defendant convinced several others to take the victim outside of town and leave him on the side of the road. At trial, and on appeal, the court used the definition for possession that was contained in the Penal Code. The Court reasoned that once someone became a caretaker, even if informally, they become responsible. Held: A person was liable only when they have assumed care, custody or control of the individual. That was not the equivalent of possession, and by using the definition of possession, the court improperly broadened the language of the statute.
Stewart v. State, 240 S.W.3d 872 (Tex. Crim. App. 2007)
Sufficiency—Wrong Standard of Review: The defendant was a police officer, who stopped an individual and eventually recovered marijuana. The individual agreed to serve as an informant, and the officer returned part of the marijuana to her. She subsequently refused to cooperate, and the defendant was charged with tampering with evidence. The Court of Appeals found the evidence was sufficient, because the defendant knew that he would destroy the availability of evidence by returning it to the person. Held: The Court held that was the wrong standard to apply. To sustain a conviction, the state must prove he intended to destroy the availability of the evidence. There was no evidence he had that intent, and therefore, the evidence was insufficient.
g. MISCELLANEOUS
Saldana v. State, W.L. 1296345; LEXIS 1292 (Tex. App.—Corpus Christi 2008)(memo op.)
Jeopardy: The defendant was convicted of multiple counts involving sexual conduct of a minor. The convictions included one for indecency involving contact by the defendant’s finger with the child’s vagina, and a charge of aggravated sexual assault involving penetration of the child’s vagina with the defendants finger. Both counts were based on the same incident. Held: “Stop action” prosecutions were not permitted, and therefore, the conviction for indecency had to be vacated.
Lucero v. State, W.L. 375416; LEXIS 219 (Tex. Crim. App. 2008)
Jury Misconduct: Initially the vote in this death penalty case was 10-2 in favor of death. The jury foreman read a passage from the Bible, which dealt with the duty of Christians to obey the laws of man. The two dissenting jurors subsequently changed their votes, and a death sentence was imposed. They both subsequently provided affidavits stating they did not believe the Bible passage influenced their votes. Held: The Court found no harm, and also found it unnecessary to determine whether reading the Bible was an “outside influence.”
Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007)
Jury Unanimity: The indictment in this indecency case alleged the appellant touched the breast and genitals of the victim. The court’s instructions authorized a conviction if the jury found the defendant touched the breast or genitals. Held: The right to a unanimous verdict was violated, because the juror’s did not have to agree which act occurred.
III. POST-TRIAL
a. APPEAL
Clay v. State, 240 S.W.3d 895 (Tex. Crim. App. 2007)
Appeal—Crawford Error: The officer was allowed to testify about statements that two codefendants had given him. He testified they both told him about a robbery they committed with the defendant. On appeal, the Court of Appeals held the testimony should not have been admitted, and reversed the conviction. Held: The Court of Criminal Appeals agreed the testimony was improperly admitted. However, the Court held the error was harmless. The evidence establishing guilt was strong, which evidence included eyewitness testimony placing the defendant in the vicinity of the crime, as well as strong circumstantial evidence.
Holmes v. State, W.L. 4582344; LEXIS 327 (Tex. Crim App. 2008)
Waiver of Claims: The defendant filed a motion to suppress, which was denied. When the evidence was offered at trial, counsel stated that he had no objection. A jury instruction was requested under article 38.23, asking the jury to determine the admissibility of the evidence. The Court of Appeals held that the defendant waived his right to such an instruction by stating he had no objection. Held: Reversed. The right to an instruction under article 38.23 was a separate issue. The defendant could still request that instruction, even though he had waived any claim regarding the trial court’s ruling on admissibility.
Warner v. State, W.L. 375503 LEXIS 217 (Tex. Crim. App. 2008)
Burden to Establish Harm: The Court of Appeals placed the burden of establishing the egregious harm on the appellant. Held: That was error. Neither party had the burden to establish harm on appeal. Instead, the court must examine the record and determine harm on its own.
Williams v. State, W.L. 141910; LEXIS 3 (Tex. Crim. App. 2008)
Harm—Waiver of Counsel: The Court held that waiver of counsel was invalid when the trial court failed to inquire into the defendant’s indigent status, and provide admonishments about the right to appointed counsel. Held: The error was structural, and therefore, not capable of a harmless error analysis.
Bessey v. State, 239 S.W.3d 809 (Tex. Crim. App. 2007)
Raising Failure to Admonish Issue: For the first time on appeal, the defendant alleged the trial court failed to properly admonish him on the range of punishment, and the effect a guilty plea could have on a noncitizen. Held: A defendant was not required to object at trial to preserve that issue. Absolute or systemic requirements could be raised for the first time on appeal. However, the error was still reviewed for harm. The Court held that there was nothing in the record to suggest the defendant would have pled not guilty with the admonishments, and therefore, the error was harmless.
b. HABEAS CORPUS
No cases decided
c. MISCELLANEOUS
Collins v. State, 240 S.W.2d 925 (Tex. Crim. App 2007)
Granting Back Time Through Nunc Pro Tunc:. The defendant pled guilty pursuant to a plea agreement, and was sentenced. The trial court subsequently entered a judgment Nunc ProTunc, granting him additional back time credit. Although the procedure had been used for a number of years, the court held a judgment Nunc Pro Tunc should not be used when sentencing discretion was involved. Since a plea agreement was involved, and it included a waiver of appeal, there was a question of whether the defendant waived his right to back time credit. The Court held that a trial court cannot change a judgment to reflect what it believed should have been done. Instead, it can only use that process to correct a judgment so it reflected what occurred. In reaching its decision, the Court distinguished a prior case upholding this procedure. In the prior case, there was no plea agreement, and therefore, the defendant was entitled to whatever credit the statute allowed.
Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007)
Representation—Motion for New Trial: The defendant was represented by retained counsel at trial. Counsel told the defendant on the record that he had a right to appeal, but that if he wanted to do so he needed to request the court to appoint a lawyer. Counsel filed notice of appeal, and counsel was appointed. At that point, 10 days remained to file a motion for new trial. No motion for new trial was filed, and on appeal, the defendant argued that he was denied counsel during a critical stage of the proceedings. The Court agreed that the time for filing a motion for new trial was a critical stage of the proceedings. Where the defendant was represented by counsel during trial, a rebuttable presumption existed that counsel continued to represent the defendant during this time. Here, the defendant was able to rebut the presumption that she was represented during the first 20 days. However, the defendant was not able to establish that she was not properly represented during the 10 days during which counsel was appointed, and representing her.
Robinson v. State, 240 S.W.3d 919 (Tex. Crim. App. 2007)
Pro se Motion for New Trial: Following his conviction, the defendant filed a pro se motion for new trial. Before ruling on the motion, the court appointed appellate counsel. The defendant’s motion was then denied without a hearing. The Court recognized that a defendant did not have a right to hybrid representation. However, once a court ruled on a motion, that ruling was subject to review. A trial court may refuse to rule on a pro se motion, and that cannot be reviewed. Where the court did rule however, the ruling can be reviewed. Here, the court could not determine whether the trial court’s decision was based on the merits of the motion, or simply disregarding the pro se motion. The case was remanded so the court could clarify its intent.
Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007)
Right to DNA Testing: This is a rare case, in which the Court held a defendant had established his right to DNA testing. A defendant must make identity an issue, and can do so even when they have pled guilty. The Court also held this applied where the victim knew the person she identified at trial as her attacker. In this case, exculpatory DNA test would establish innocence, and therefore, should have been granted.