Weekly Case Summaries: August 4, 2017

Texas Courts of Appeals

Phillips v. State

No. 01-16-00653-CR        7/27/17

Issue:

Is an officer’s expert opinion testimony about a defendant’s gang affiliation based on tattoos and self-admission reliable and relevant evidence during the punishment phase of trial?

Holding:

Yes. The behavior of gangs and gang members is an accepted area of expert testimony. Gang affiliation is relevant character evidence during the punishment phase of trial. Expert testimony does not need to be based in science but can apply to technical or other specialized knowledge. An officer’s expertise can be based on experience and training while working in gang investigation units and conversations with gang members. Documentation of gang membership through rosters or dues payments is not required for a reliable expert opinion on gang affiliation. Self-admission and gang-related tattoos are frequently relied upon by law enforcement to identify gang members, and an officer may properly rely on them to form an expert opinion regarding gang affiliation. Read opinion.

Commentary:

It is not uncommon for an officer to testify concerning gang affiliation, gang tattoos, or the nature of a particular gang. This case represented a more sophisticated attack upon the officer’s expert testimony, so the court’s decision should be helpful in future gang prosecutions.

Ballard v. State

No. 01-15-00671-CR        7/25/17

Issue:

Must documents incorporated by reference in an affidavit be delivered to the person whose premises are to be searched prior to the start of the search?

Holding:

No. An incorporated affidavit is not required to be attached to the warrant at the time of execution of the search. Unless a defendant can show prejudice, failure to include the attachments at the time that the warrant is executed does not require suppression of the evidence. To show harm, a defendant must demonstrate that the search revealed evidence that would not have been uncovered under the full scope of the warrant including attached affidavits. Read opinion.

Commentary:

The court of appeals in this case relied upon two other decisions that involved incorporation by reference in the search warrant context. The court also refused to extend a United States Supreme Court decision to prevent incorporation by reference. Incorporation by reference should normally not be necessary, but if it has occurred in a case, this decision should help with the defendant’s motion to suppress.

Golliday v. State

No. 02-15-00416-CR        7/27/17

Issue:

Does preventing the defense from offering evidence concerning a sexual assault complainant’s drug use, statements made during medical treatment, and medical history violate the defendant’s constitutional rights to present a defense?

Holding:

Yes. The court should not have prevented the defense from offering evidence of a history of mental health problems and eliciting testimony about statements the complainant made concerning her recollection of the events that night. This prevented the defense from properly impeaching the complainant by challenging her ability to accurately perceive and remember the events of that night. It also impeded the defense’s ability to offer medical reasons for the complainant’s condition that night. These hindrances effectively deprived the defendant of his constitutional rights to due process, to confront his accusers, and to offer a defense. Read opinion.

Dissent (Livingston, J.):

The defendant’s offer of proof of excluded evidence was not sufficient to preserve his complaints for review. The defendant was required to specifically raise the complaints of violation of his constitutional rights, and failure to do so was a waiver of the complaints. The court should not reach the merits of the appeal. Read opinion.

Commentary:

The issue in this very complicated case boils down to whether the defense’s objection at trial was sufficiently specific to alert the trial court to an argument that his constitutional rights were being violated by the exclusion of the proffered evidence. Neither opinion deals very extensively with whether this evidence was inadmissible under the Rules of Evidence. The majority opinion largely deals with the admissibility of the evidence under constitutional authority, and the dissenting opinion discusses whether that constitutional claim was properly raised at trial. The dissenting opinion does not suggest that this evidence was inadmissible, so trial prosecutors might seriously consider allowing a defendant to present such evidence, regardless of how it might damage a complaining witness in front of the jury. This is a very divided decision from an en banc court on the State’s motion for rehearing. There is a better-than-average chance that the Court of Criminal Appeals may wish to review this decision, but such a review may deal only with preservation of error.

Jones v. State

No. 01-15-00717-CR        8/01/17

Issue:

Does preventing the defense from cross-examining a witness about biases violate the defendant’s constitutional rights under the confrontation clause?

Holding:

Yes. The defendant’s right to confront the witnesses against him includes the right to cross-examine witnesses about their testimony and impeach them about biases or ulterior motives. Interest in the outcome of a child custody determination is a valid area for exposing bias through cross-examination. Because the witness was the sole eyewitness to the charges of family violence and had an interest in the pending child custody suit against the defendant, the court erred in excluding cross-examination about that interest, and the defendant was entitled to reversal. Read opinion.

Dissent (Brown, J.):

The defendant’s offer of proof was substantively and procedurally defective because it failed to show bias stemming from the child custody proceedings and to segregate admissible evidence from inadmissible evidence. Because of these defects, the defendant did not preserve error and the court should not reach the merits of the appeal. Read opinion.

Commentary:

In support of its holding, the majority opinion relies upon two other appellate court decisions where the courts had held that similar testimony was admissible. As with the above decision, the presence of a dissenting opinion might make it more likely that the Court of Criminal Appeals will review it, but, once again, such a review might not include a decision on the merits, but on preservation only. Prosecutors should be cautious about objecting too strenuously to the admissibility of such evidence.

State v. Ruiz

No. 04-16-00226-CR        7/26/17

Issue:

Does the exclusionary rule require suppression of evidence obtained from a cell phone when a private citizen searches the phone and seizes it as evidence without committing any criminal offense?

Holding:

No. Texas’ exclusionary rule (Code of Criminal Procedure Art. 38.23) is not implicated when a private citizen acts in violation of the warrant requirement but violates no law while doing so. In this case, after students complained that a substitute teacher was taking “up-skirt” photos of female students, the school principal called the substitute teacher into his office and asked to see his phone, telling the teacher that he was going to turn the phone over to law enforcement. The teacher admitted “he had a problem” and that he had inappropriate images on his cell phone. Law enforcement later got a warrant to search the contents of the phone. The court held that because the school official did not violate any laws, the evidence acquired from the phone should not be suppressed. Read opinion.

Dissent (Martinez, J.):

In Texas, the warrant requirements of the 4th Amendment apply to the actions of private citizens. Because a police officer “standing in the shoes” of the school official could not have looked through the defendant’s phone without a warrant or exigent circumstances, neither could the school official. Because there was no warrant and no exigent circumstances at the time of the school official’s search, the evidence obtained from the phone should be suppressed. Read opinion.

Commentary:

Even though the trial judge granted the defendant’s motion to suppress, the court found that the school principal was a private individual. The court of appeals gave deference to that finding and then went on to apply what is now well-settled law regarding the actions of private individuals in conducting searches. Article 38.23 of the Code of Criminal Procedure applies to private individuals, but if there is no violation of the law—as in this case—that statute cannot be used to exclude the evidence that the private individual uncovered. This should be a very helpful decision, and it should hold up on petition for discretionary review, notwithstanding the dissenting opinion.

Harris v. State

No. 04-16-00681-CR        7/26/17

Issue:

Is physical proximity of a hidden firearm to the defendant sufficient evidence to establish a link between the firearm and the defendant’s possession of it?

Holding:

No. When a firearm is not found on or in the exclusive possession of a defendant, the State must produce evidence affirmatively linking the defendant to the firearm to prove possession. It is not sufficient to simply show that the firearm was found in close proximity to the defendant. A defendant’s prior criminal history—violent or otherwise—also may not be used to infer possession. Read opinion.

Commentary:

The gun in this case was in a bag on the floorboard directly in front of the defendant and in between his feet. It should have been reasonable for a juror to find that the bag belonged to the defendant and that the contents of the bag were also the defendant’s. Let’s hope this decision can get overturned by the Court of Criminal Appeals.

Alvarez v. State

No. 11-16-00176-CR        7/27/17

Issue:

Does a sentence of 40 years for conviction of a first-degree felony of possession of a controlled substance with intent to deliver violate the 8th Amendment prohibition against cruel and unusual punishment?

Holding:

No. A sentence that falls within the statutory range of punishment is presumed not to be excessive, cruel, or unusual. A sentence of 40 years falls within the statutory punishment range of 5–99 years or life for a first-degree felony. A sentence may still be cruel and unusual punishment, even when within the statutory range, if it is grossly disproportionate to the offense. However, this fact-specific exception is “exceedingly rare” and will almost never be found outside the context of capital punishment. Read opinion.

Commentary:

It is a rare case in which an appellate court will address such an issue on appeal because the defense will invariably raise no objection to the sentence at trial—as was the case with this defendant. The court of appeals nevertheless addressed the issue on the merits, and its analysis is brief, but it will certainly hold up on further review. It is also a very rare case in which a defendant’s sentence is found to be cruel and unusual.

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