CRIMINAL LAW

WINTER 2009-2010

I. PRE- TRIAL

A. INDICTMENT

No cases decided

B. SEARCH AND SEIZURE

Chism v. State, W.L. 2948580; LEXIS 7278 (Tex. App.—Texarkana 2009)

Search for Weapons: An officer received a report of a person panhandling. He found the defendant and detained him. The officer searched the defendant, stating his normal practice was to always search for weapons for his safety. He also stated the transient population generally had weapons, and often had needles because they abuse narcotics. Held: There was no reasonable suspicion to justify a search for weapons; generalized suspicion about the homeless population was not sufficient.

Foster v. State, W.L. 2410580; LEXIS 6166 (Tex. App.—Austin 2009)

Attempting to Change Lanes: The officer was stopped at light and the defendant pulled in behind. The officer heard a revving sound and saw the defendant lurch forward a couple of times like he was trying to move into an empty lane to the left. Another officer pulled up, and basically blocked the defendant in. The two officers got out and approached the defendant. After detecting an odor of alcohol, they eventually ended up arresting him. The trial court denied the defendant’s motion to suppress, holding there was reasonable suspicion to detain him. Held: The defendant’s action did not constitute reasonable suspicion, comparing it to a prior holding where it held spinning tires was also not sufficient.

C. CONFESSION

Thai Ngol Nguyen v. State, 292 S.W.3d 671 (Tex. Crim. App 2009)

Statements Following Arrest: Following a traffic stop, the officers found methamphetamine. Both the appellant and his passenger were arrested and placed in the back of the patrol car. The appellant was given the statutory warnings and requested a lawyer. While in the back of the car, the appellant and the passenger argued about taking responsibility for the drugs, and the appellant told the officer they were his. Additional drugs were found, and the appellant also took responsibility for those. Held: The appellant's statements should have been excluded; he was in custody, and the statements were not spontaneous or volunteered.

D. MISCELLANEOUS

Scott v. State, W.L. 1789240; LEXIS 4726 (Tex. App.—San Antonio 2009)

Constitutionality of Harassment Statute: The court held a part of the harassment statute was unconstitutional. The phrase, “in a manner reasonably likely to annoy, alarm, abuse, torment, embarrass or offend another” was vague on its face.

II. TRIAL

A. JURY SELECTION

No cases decided

B. EVIDENCE

Saavedra v. State, W.L. 3616842; LEXIS 1560 (Tex. Crim. App 2009)

Hearsay and Interpreters: The appellant was questioned at the police station through an interpreter and made some admissions. At trial, the police officer testified about what the interpreter said. The appellant argued that it presented an additional level of hearsay, and was therefore inadmissible. Held: An interpretation can be used if the party authorized the interpreter to speak for them, or otherwise adopted the interpreter as their agent. The case was remanded for the court to make that determination.

Cuadros-Fernandez v. State, W.L. 2647890; LEXIS 6896 (Tex. App.—Dallas 2009)

Excluding Witness: The state claimed that the defendant slammed a child's head into a cabinet door. The door was damaged, and the state argued the damage was a result of the injuries to the child. The defendant offered an expert who would have testified that the damage was the result of either someone leaning against the door, or it was damaged during installation. Held: The court excluded the testimony, which the court held was error. The court also found harm, holding that the court effectively prevented the defendant from presenting a defense.

Hall v. State, W.L. 2949746; LEXIS 1205 (Tex. Crim. App. 2009)

LIDAR Technology: The appellant filed a motion to suppress in which he attacked the reliability of the LIDAR technology. The court of appeals found there was no probable cause for the stop because the State failed to prove the LIDAR was reliable. Held: Such technology was novel, scientific testimony which can only be admitted after a full-blown hearing. The court erred in holding Rule 702 applied to a suppression hearing. Therefore, the court did not have to hold a hearing before it could consider evidence during the suppression hearing. There was no evidence to show the LIDAR technology provided reasonably trustworthy information, and therefore they did not establish probable cause for the stop.

Morales v. State, 293 S.W.3d 901 (Tex. App.—Texarkana 2009)

Extraneous Offense: The defendant presented a witness who testified he had not threatened an officer. When asked whether he used any abusive language, she stated he didn't, and added that he was not that type of person. The state argued that opened the door, and it was allowed to ask the witness if she was aware of her prior arrests for violent crimes. They were allowed to ask about several incidents, including several assaults and an assault on a police officer. Held: The probative value of such evidence was not substantially outweighed by its prejudicial effect and should not have been admitted.

C. EXAMINATION OF WITNESSES

Hamilton v. State, W.L. 2762487; LEXIS 6923 (Tex. App.—San Antonio 2009)

Testimony About DNA Results: Foster testified about DNA findings made by another analyst – Graham. The court held the results were testimonial, and therefore the holding in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) controlled. However, it did not prohibit Foster from giving her own opinions based on work done by Graham. The court noted that the confrontation clause implicated statements made by persons and not machines.

Cuadros-Fernandez v. State, W.L. 2647890; LEXIS 6896 (Tex. App.—Dallas 2009)

Testimony About DNA Results: The state admitted a report and the notes of DNA analysis of a cabinet door. The report was prepared by someone who didn't testify. Instead, the report was admitted through a non-DNA analyst, who could not testify as to whether the testing was done properly. Held: The admission of the report violated the defendant’s right to confrontation.

McMillon v. State, W.L. 2448015; LEXIS 6238 (Tex. App.—Texarkana 2009)

Impeachment: The defendant wanted to question the former DPS officer on the reasons for his termination. Outside the jury's presence, the officer admitted he issued dozens of phantom warning tickets, and when his supervisor found out, he resigned. Held: Impeachment was not proper because it did not bear on his general reputation for truthfulness. Neither did it show a bias on his part toward the defendant or create a motive to testify falsely.

D. ARGUMENT

No cases decided

E. INSTRUCTIONS

Mills v. State, W.L. 2837639; LEXIS 7046 (Tex. App.—Austin 2009)

Jury Instruction on Legality of Stop: An officer stopped the defendant for not signaling a turn within 100 feet of intersection. The officer admitted the defendant signaled, but claimed he only did so once

before he got to the intersection. The defendant tried to admit testimony from an investigator that the officer could not have seen whether the defendant signaled from where he was located. The court excluded the testimony, holding the witness was not disclosed as required by a discovery order. The defendant also requested an instruction under Art. 38.23, which was denied. Held: That was error.

F. SENTENCING

Griffith v. State, W.L. 2914128; LEXIS 7206 (Tex. App.—Amarillo 2009)

Probation Revocation: Probation conditions prohibited the defendant from frequenting locations where children were present. The evidence was that the defendant went to library one time, and used a computer located across from a 15-year old girl. Held: The definition of frequent was not so broad as to cover a one-time trip to the library.

Pelache v. State, W.L. 1886885; LEXIS 509 (Tex. App.—Corpus Christi 2009)

Notice of Enhancement: The defendant was indicted for robbery; the indictment included an enhancement for aggravated robbery. The appellant entered a plea, and after he did so the State sought leave to amend the indictment so they could add additional convictions. The defendant objected, arguing he was not given sufficient notice. Held: Reversed, and it was remanded for a new punishment hearing.

G. SUFFICIENCY

Bailey v. State, W.L. 3460324; LEXIS 8236 (Tex. App.—San Antonio 2009)

Obstruction of Highway: The defendant wrecked his truck and left it at the scene. He went home and called a wrecker driver. When deputies arrived, they were unable to get much information about the driver; they eventually identified who was driving and charged him with obstructing a highway. Held: Obstruction was a result oriented crime. There was no evidence that the defendant intentionally obstructed the highway and, therefore, the evidence was insufficient.

Burns v. State, W.L. 2413692; LEXIS 6018 (Tex. App.—San Antonio 2009)

DWI – Extrapolation: A technical supervisor testified there was a 10-percent chance the alcohol concentration was rising and a 90-percent chance it was decreasing. He did not attempt to extrapolate to the time of arrest, admitting he did know the individual facts necessary to make that determination. Held: The testimony should not have been admitted, but it was harmless in light of the other evidence.

Smiles v. State, W.L. 2568336; LEXIS 6561 (Tex. App.—Houston [14^th Dist.] 2009)

Evidence of Amount of Loss: The defendant was convicted of stealing an exterior air conditioning unit from a trailer. The air conditioning system also had an interior unit which was not stolen. The State offered value of replacing both interior and exterior because the interior unit was no longer available and would have to be replaced. Held: The value was not the amount necessary to make the victim “whole.” Since only the exterior unit was stolen, the evidence was insufficient to prove the value.

Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009)

Sufficiency of Evidence on Guilty Plea: The defendant pled guilty and subsequently argued the evidence was insufficient to support a finding of guilt. The sworn affirmation that the defendant was pleading guilty to the charges in the indictment did not constitute a judicial confession. There must be other evidence to support the plea under Art. 1.15.

Jones v. State, W.L.3401136; LEXIS 8182 (Tex. App.—Texarkana 2009) (memo. op.)

What Constitutes a Drug Free Zone: The court held a playground was not a drug free zone.

H. MISCELLANEOUS

Ex Parte Wolf, W.L. 2365589; LEXIS 6152 (Tex. App.—Houston [14^th Dist] 2009)

Voluntariness of Plea: The defendant was a college student at the time who pleaded guilty to theft and received a deferred adjudication. After graduation, he got a job, but was terminated after his employer found out about the case. He was subsequently unable to obtain a job in the banking and securities industry because of the arrest. The defendant filed a writ of habeas corpus, arguing his lawyer was ineffective because his lawyer did not request pre-trial diversion or a Class C special expense, and told him that his record would be sealed when his supervision was successfully completed. The State argued that the court did not have jurisdiction because the defendant was not confined or restrained. Held: The defendant was suffering collateral consequences as a result of state agencies making the information available to other governmental entities. Counsel’s performance was deficient, and if the defendant had been properly advised, the result would have been different.

State v. Bounhiza, W.L. 2567954; LEXIS 6529 (Tex. App.—Austin 2009)

Ineffective Assistance: The defendant filed an application for probation before trial started. He also elected to have the court assess punishment if he was found guilty. After the jury found him guilty, counsel discovered that the court could not grant probation. He advised the court that he incorrectly advised the defendant to go to the court for punishment, and the defendant accepted that advice. The trial court granted a mistrial based on ineffective assistance. Held: The court had no problem finding counsel's performance was deficient, and the defendant was prejudiced by it.

Moore v. State, W.L. 1873493; LEXIS 1328 (Tex. Crim. App. 2009)

Involvement of Court in Plea: The defendant pled guilty pursuant to plea agreement for a sentence of 25 years. The court gave the defendant time before sentencing to take care of his affairs. He failed to appear as required, and when he came back, the court sentenced him to 40 years. The defendant argued the court erred by treating his plea as an open one, and not giving him the option to withdraw it. Held: The defendant failed to preserve error by not moving to withdraw his plea at sentencing or objecting to the conditions imposed by the court.

Sumrell v. State, W.L. 2274094; LEXIS 5869 (Tex. App.—Dallas 2009)

Presence of Defendant: Because of his behavior, the defendant was not present during questioning of seven jurors who stated that they had formed a bias against the defendant because of his behavior. The State argued there was no indication that the defendant’s presence was not voluntary. Held: It will not be presumed the absence was voluntary, and therefore the defendant’s right to be present during jury selection was violated. The defendant wanted to participate in jury selection and consult with his lawyer. The court also held it cannot conclude his absence did not contribute to his conviction, and reversed the conviction.

Ex Parte Miller, W.L. 3446468; LEXIS 1486 (Tex. Crim. App. 2009)

Ineffective Assistance: The trial court found counsel was ineffective because he failed to locate and use evidence that the victim had been convicted of misdemeanor assault. Held: The court accepted the factual findings, but rejected the legal conclusions. The evidence of assault would not have been admissible because the issue at trial was not who initiated the fight, but whether the defendant had a duty to retreat. The defendant also alleged his lawyer was ineffective on appeal because he failed to challenge a prior conviction on the basis there was not sufficient evidence to prove the first prior conviction was final prior to the commission of the second. Held: The court agreed, finding the point of error would have been a “lead pipe cinch.” The sentence was vacated, and the defendant was granted permission to pursue a new appeal to challenge the sufficiency of evidence to support the enhancement. Note: This was an unusual case because the appellate lawyer had died, and therefore could not explain why he did not challenge the prior conviction. There could have been a valid reason for not doing so because the defendant was sentenced to 30 years, and could have been sentenced up to life. Without the second enhancement, it would still be a first degree felony. Thus, even if the appeal was successful, the defendant could go back to court and receive more than 30 years.

III. POST TRIAL

A. APPEAL

State v. Moreno, W.L. 3013577; LEXIS 1306 (Tex. Crim. App. 2009)

Appeal by State: After jury was selected, the defendant asked the judge to hear a motion to suppress the defendant’s statement. The officer was not present, and the State told the judge he was on his way. After waiting for over 30 minutes, the court told the State it needed to move on. The State said they had no more witnesses, but refused to rest. The defendant then moved for a directed verdict, which the court granted. The State appealed, arguing the court's action should not be considered an acquittal. Held: Affirmed.

B. HABEAS

In Re Escareno, W.L. 2949740; LEXIS 1207 (Tex. Crim. App. 2009)

Processing Writ of Habeas Corpus: The defendant filed a writ of habeas corpus. After 35 days had passed with no action, he sought leave to file a writ of mandamus. The court held the application in

abeyance and ordered the clerk to respond within 30 days. In the meantime, the trial court entered an order designating issues. Although the clerk forwarded that order, they failed to forward the application for writ of habeas corpus until after a show cause order had been entered. Held: The court held the clerk in contempt and fined her $500.00. In doing so, the court noted that where the order designating issues was not timely filed, the clerk had no authority to hold the writ.

C. MISCELLANEOUS

Jacobs v. State, W.L. 2408176; LEXIS 6145 (Tex. App.—Texarkana 2009)

DNA Testing: The defendant filed a subsequent request for DNA testing. In that motion, he alleged there were new techniques available. Held: The standard for reviewing such motions had been lowered. However, the defendant still could not meet the lower standard because the only evidence available was two hairs.