Weekly Case Summaries: January 3, 2014

Texas Courts of Appeals

Lee v. State

No. 14-12-00615-CR              12/19/13

Issue:

Did the State violate a defendant’s Confrontation Clause rights by relaying the findings of an autopsy report and accompanying photographs through a medical examiner who did not prepare the reports?

Holding:

Yes. Although the error was harmless for other reasons, the court held that autopsy reports are testimonial and the defendant must be allowed to cross-examine the medical examiner who created them. Read the opinion.

Commentary: 

This prosecution was hampered by the fact that the medical examiner who performed the autopsy was under indictment for aggravated perjury. The State called another medical examiner who testified as to cause of death, which was not really a matter of dispute, but the original autopsy report was admitted. The State conceded on appeal that admission of the report was a Confrontation Clause violation. The error was harmless beyond a reasonable doubt because of the other medical examiner’s admissible testimony, multiple theories of criminal liability applicable in the case, and relatively uncontested nature of the cause of death. Take from this case the lesson that maybe the State can get another expert to present testimony, but that will not allow bootstrapping a report otherwise inadmissible under the Confrontation Clause.

Tarley v. State

No. 01-11-00463-CR              12/19/13

Issue:

When a victim of domestic violence fled the state because she was afraid the defendant would continue to abuse her, were her statements still admissible even though she could not be located to testify at trial?

Holding:

Yes. The trial court was justified in inferring from the evidence that the victim was unavailable because of the defendant’s abuse. The doctrine of forfeiture by wrongdoing therefore prevented the defendant from asserting his Sixth Amendment confrontation right. Read the opinion.

Commentary:

Short, sweet, and to the point. The defendant’s assault on the victim after she was contacted by the DA’s office about testifying, combined with his “request” that she not testify, was sufficient to show forfeiture by wrongdoing.

Smith v. State

No. 01-11-00898-CR              12/19/13

Issue:

When the State presented as evidence the defendant’s disciplinary records from prison and probation, did the State violate his Confrontation Clause rights by not calling as witnesses the persons who put their statements into those records?

Holding:

Yes. The disciplinary records contained subjective, detailed descriptions of incidents that were recorded by law enforcement personnel to establish specific facts and were therefore testimonial. Because the declarants were not available to testify at trial, the defendant’s Sixth Amendment rights were violated. Read the opinion.

Commentary:

Ouch. The Court finds this is a straightforward example of what the CCA said was inadmissible in Russeau in 2005. The Court does give some guidance as to what might be admissible disciplinary records versus inadmissible disciplinary records.

State v. Villareal

No. 03-13-00423-CR              12/20/13

Issue:

Was the State entitled to mandamus relief when a judge altered a plea deal by dismissing the agreed-to count of sexual assault and instead placing the defendant on deferred adjudication for endangering a child?

Holding:

Yes. A judge has no authority to alter a plea bargain, only authority to accept it or reject it. Because deferred adjudication is not a final sentence, it is not appealable, which means the State had no adequate remedy at law to enforce the terms of the plea bargain. The State also had a clear right to the relief sought, because it is well-settled that only the State and defendant may alter the terms of a plea agreement. Read the opinion.

Commentary: 

Gosh, a trial judge wanting to tinker with a plea—who ever heard of such a thing? Remember, even if there is not an agreement on punishment, if prosecutors change the charge in exchange for a guilty plea, it is still a plea bargain case. That is called a “charge bargain.”

State v. Ojiaku

No. 05-13-00840-CR              12/23/13

Issue:

Is bail jumping a continuing offense, or is it subject to a three-year statute of limitations, calculated from the day the defendant first fails to appear?

Holding:

Bail jumping is not a continuing offense. It is complete the day the defendant fails to appear, and an indictment must be presented within three years of that day. Read the opinion.

Commentary: 

If you like to indict defendants for bail jumping, you will need to be aware of this case.

Fantich v. State

No. 12-13-00011-CR              12/20/13

Issue:

Is the statute of limitations for conspiracy to commit aggravated assault two or three years?

Holding:

Two years. The limitations period for a conspiracy charge is the same as the crime that was the subject of the conspiracy, which is aggravated assault in this case. Aggravated assault is a felony, and felonies usually have a three-year statute of limitation. However, aggravated crimes that are not otherwise excepted by statute carry the same limitation as the underlying crime. The underlying crime for aggravated assault is assault, which is a misdemeanor with a two-year limitation. Read the opinion.

Commentary: 

Maybe it is time to solve this recurring problem by amending the CCP so that all felonies have a minimum statute of limitations of three years even if they are “aggravated” misdemeanors.

Roots v. State

No. 02-12-00439-CR

No. 02-12-00440-CR 12/19/13

Issue:

Can a court use a nunc pro tunc judgment to correct a mistaken “N/A” notation regarding a deadly weapon finding in a previous judgment?

Holding:

Yes, if the conviction itself otherwise indicated that there was a deadly weapon finding. This is accomplished if the original indictment contains deadly weapon language, if the jury factually found that a deadly weapon was used in the crime, or if a deadly weapon finding was a necessary element of the original conviction. Read the opinion. 

Commentary:

The Court engages in a detailed discussion of the Court of Criminal Appeals’s opinions in Poe and Hooks and whether they are in conflict. I wonder if this one might be ripe for a PDR?

Sloan v. State

No. 14-12-00514-CR              12/19/13

Issue:

When an inmate contacted law enforcement to confess to his role in a capital murder cold-case, did the officer’s failure to Mirandize him at the subsequent interview render his statements inadmissible?

Holding:

No. The defendant was not in custody during the interview, because a reasonable person would understand that because he initiated the interview, he was also free to terminate it at any time. Read the opinion.

Commentary:

This is a fairly straightforward application of Herrera v. State and Howe v. Fields. The safest bet for detectives is to read this narrowly—it is not authority for the idea that a suspect who re-initiates contact need not receive Miranda warnings.

State v. Johnson

No. 12-12-00425-CR              12/20/13

Issue:

Is the Texas Flag Destruction statute facially unconstitutional?

Holding:

Yes. The statute is not narrow enough to make exceptions for cases where the flag is being abused as a means of expression, which creates the risk of a chilling effect on free speech.Read opinion.

Commentary: Another flag-burning case involving the State of Texas and a man named Johnson.

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