Weekly Case Summaries: June 9, 2017

Court of Criminal Appeals

Hopper v. State

No. PD-0703-16      6/7/17

Issue:

Does a failure to invoke the Interstate Agreement on Detainers (IAD) count against the defendant or the State in the reason-for-delay factor in a speedy trial analysis?

Holding:

Both. The defendant and the State have an equal ability to bring a case to a speedy resolution by invoking the IAD when a defendant is incarcerated outside of Texas. When both parties fail to invoke this right, they are equally at fault under the reasons-for-delay factor. Read opinion.

Commentary:

This is a significant speedy trial decision in that it appears to be the first time that the Court of Criminal Appeals has been called on to deal with a significant delay while the defendant spent a great of the time of that delay incarcerated in another state and failed to invoke his rights under the Interstate Agreement on Detainers. The court notes a significant split of authority across the United States in two footnotes (66 and 67) and also notes that the U.S. Supreme Court has not squarely addressed this issue. If you have a defendant who has raised a speedy trial claim and spent a good deal of time incarcerated in another state, you should definitely read this decision.

Moore v. State

No. PD-1056-16      6/7/17

Issue:

May a fact-finder use reasonable inferences to conclude that the manner in which the defendant was using his motor vehicle was capable of causing death or serious bodily injury?

Holding:

Yes. Even without testimony about the defendant’s driving prior to a rear-end collision that pushed a car into an intersection, the fact finder can reasonably infer that the defendant was driving in a manner that placed others present in substantial danger of death or serious bodily injury. Read opinion.

Dissent (Walker, J.):

The court is speculating about hypothetical danger that is insufficient to support a deadly weapon finding. There were no facts presented about traffic conditions or cross-traffic that would have presented a danger of collision with the vehicle pushed into the intersection. Read dissent.

Commentary:

The court discusses all of the recent decisions (since the 1990s) in which it has dealt with whether a vehicle should be considered a deadly weapon. In doing so, the court shows how the decisions weave together. The court does not break any new ground with this decision, but it does reaffirm that a person does not need to suffer significant injury for a deadly weapon finding to be appropriate. In a case involving a vehicle, the focus should be upon the manner of the defendant’s driving when he committed the charged offense. This should be helpful to prosecutors.

State v. Rodriguez

No. PD-1391-15      6/7/17

Issue:

Does a warrantless search of a college dorm room, at the request of the dorm’s resident director who discovered drugs in the room during a routine inspection, constitute a violation of the Fourth Amendment?

Holding:

Yes. Students enjoy the same Fourth Amendment protection in their dorm rooms as any other citizen in a private home. Although dorm personnel have the authority to enter dorm rooms themselves to perform health and safety inspections, they do not have the authority to give police officers consent to enter dorm rooms. It would be unconstitutional for a university to require a student to give up Fourth Amendment protections as a condition of living in its dorms. The Court also declined to extend the private-party-search doctrine to a residence. Read opinion.

Dissent (Keller, P.J.):

Because the university in question is a private university, it would not be unconstitutional to require a student to give up Fourth Amendment privacy rights within the dorm. The student handbook conferred broad authority on university officials, including university police officers, to enter dorm rooms. Under this authority, the seizure did not constitute a Fourth Amendment violation. Read dissent.

Commentary:

This is not a case in which items were seized by a private landlord, and this is not even a case in which items were seized by a resident assistant (RA) under an agreement allowing the RA to enter a dorm to conduct routine inspections. The court expressly stated that it was not deciding that issue. This was a case in which items were seized by an officer without a warrant in a college student’s dorm. As you might imagine, the court reaffirmed that a college student has a reasonable expectation of privacy in her dorm under the Fourth Amendment, and it cites several decisions across the country in support of that proposition. But the State put up a valiant effort in this case, raising several arguments in support of the seizure in this case. So the court also discussed at great length what it called the “private party search doctrine” and refused to extend it to residences (including college dorm rooms). The court also addressed the “special needs” exception to the warrant requirement, which can allow an officer to search a student under special circumstances. But the court refused to apply that exception to justify the collection of evidence for criminal law enforcement purposes. The court refused to justify the seizure based upon the actual or apparent authority of the resident supervisor to consent because the facts did not support that authority to consent. Needless to say, you can learn a great deal about the current state of these legal doctrines by reading this decision. This has now become the leading decision on many, if not all, of these legal doctrines.

Arteaga v. State

No. PD-1648-15       6/7/17

Issue:

Do all three provisions of Penal Code §22.011(f) require the State to prove facts constituting bigamy?

Holding:

Yes. Although there is grammatical ambiguity in §22.011(f), when considered with its reference to §25.01, it is clear the legislature intended for the State to prove facts constituting bigamy whenever it alleges that the defendant committed sexual assault and invokes the sentence enhancement under §22.011(f). Read opinion.

Concurrence (Yeary, J.):

When the opinion of the court requires the State to “prove facts that would constitute bigamy,” it does not mean that the State must prove the actor actually committed bigamy. As clarified in a footnote, the requirement is only that the State must prove that if the actor were actually to marry his victim (or purport to marry or live with his victim under the appearance of being married), that would constitute the offense of bigamy. Read concurrence.

Commentary:

This decision may cause you to rethink your decision to prosecute sexual assault of a child as a first-degree felony under §22.011(f). Presumably, this same analysis would apply to the affirmative defense under §22.011(e)(2)(b)(ii). If a prosecutor is seeking a first-degree felony conviction (and cannot prove bigamy), the court makes it clear that the defendant can be charged with continuous sexual abuse of a child under §21.02(b) (if the abuse fits the definition of “continuous,” as it often is in these cases) or aggravated sexual assault of a child under §22.021(a)(2)(B) or super-aggravated sexual assault of a child under §22.021(f) (if the child was young enough). The defendant in this case also could be guilty of prohibited sexual conduct under §25.02, although that is not a first-degree felony. The bottom line is that, when drafting a jury charge, do not go looking for other statutes to provide language for the jury charge if the statute that creates the offense does not allow for that.

Ex parte Carter

Nos. WR-85,060-01 & -02     6/7/17

Issue:

Is a claim of improperly cumulated sentences cognizable in a habeas corpus proceeding?

Holding:

No. The court overrules LaPorte and holds that sentences subject to an improper cumulation order are not themselves “void.” An improper order is an infirmity only in how the sentences will be served, and not in the sentences themselves. Because remedies such as reformation on appeal or a judgment nunc pro tunc may fix the infirmity, the sentences are not void because of an improper cumulation. Furthermore, the applicant’s claim is not cognizable because it is a bare statutory violation that does not implicate constitutional rights and because he could have raised the claim on direct appeal. Read opinion.

Concurrence (Yeary, J.):

A claim of improperly cumulated sentences does not invoke the kind of systemic requirement or prohibition that is so critical to the proper functioning of the criminal justice system that the court should regard it as adequate justification for extraordinary relief. Read concurrence.

Concurrence (Newell, J.):

If the applicant had challenged the improper cumulation order as a subset of his ineffective assistance claim, the court should have granted relief on the ineffective assistance claim. However, the trial court’s finding, supported by the evidence, is that the applicant did not claim his counsel was ineffective for failing to challenge the cumulation of sentences at trial or on appeal. Read concurrence.

Dissent (Alcala, J.):

The court should grant relief on the ground that the applicant is unlawfully restrained due to the trial court’s wrongful cumulation order. Read dissent.

Dissent (Richardson, J.):

The court should remand this case to the habeas court to further evaluate the applicant’s unbarred, potentially meritorious ineffective assistance of counsel claims. Read dissent.

Commentary:

Judge Keasler’s opinion for the court is a plurality opinion, but with Judge Newell’s opinion, there is a majority of the court that overrules Laporte v. State to the extent that it held an improper cumulation order renders a sentence void and, therefore, cannot be waived.

Texas Courts of Appeals

Berge v. State

No. 08-15-00263-CR     5/31/17

Issue:

Can a defendant be convicted of misappropriation of fiduciary property only as a primary actor?

Holding:

No. A defendant can be convicted for misappropriation under the law of parties. As long as the evidence supports party liability, the State is not required to prove that the defendant acted in a fiduciary capacity. Read opinion.

Commentary:

The law of parties applies to Penal Code offenses. This decision follows several other decisions that have applied the law of parties to a prosecution for misapplication of fiduciary property.

Davis v. State

Nos. 13-15-00355-CR & -00356-CR      6/1/17

Issue:

Are cellmates in a jail members of the same household under the assault–family violence statute?

Holding:

No. A jail, where individuals are confined involuntarily for penal purposes, is not intended or designed for occupancy as a home and is not the equivalent of a dwelling where individuals may choose to reside. Read opinion.

Commentary:

Good try though. The court also found the evidence to be insufficient to support a finding of serious bodily injury, so the defendant is guilty for Class A misdemeanor assault. Perhaps the Legislature will want to amend the assault statute to provide a higher punishment for the assault of a fellow inmate.

Announcements

Online registration for TDCAA's popular Legislative Update series is now open! For more information or to register online, visit https://www.tdcaa.com/content/2017-tdcaa-legislative-updates. TDCAA is also taking pre-orders for its 2017 code books, which will begin shipping in August. For more information, see http://www.tdcaa.com/publications

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]