U.S. Supreme Court
Snyder v. Phelps, et al.
03/02/11 : Cite No. 09-751
Does the 1st Amendment preclude tort liability for people who picket military funerals?
Yes. “As a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro [Baptist Church members] from tort liability for its picketing in this case.” Read Opinion.
Justice Breyer wrote that a State might be able to regulate picketing, even on a matter of public concern, if the picketing led to other acts or fighting words.
Justice Alito wrote that the 1st Amendment should not be “a license for the vicious verbal assault that occurred in this case.”
Amazing that freedom of speech is protected for all through the voices of those with so little consideration for the object of their scornful and hurtful words. May God bless those soldiers and their families who suffer from these words after giving so much for this country.
Michigan v. Bryant
02/28/11 : Cite No. 09-150
Did the trial court properly admit a shooting victim’s on-scene statements given in response to the officers asking: “What happened, who shot him, and where did the shooting occur?”
Yes, the trial court properly admitted the victim’s identification, description of the shooter, and location of the shooting. The circumstances of the interaction objectively indicated that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, primarily because the crime happened in a public place and involved a gun. Read Opinion.
Justice Scalia takes issue with the objective standard employed by the majority in determining the primary purpose of the interrogation, arguing instead for application of a subjective standard.
Scalia really had a conniption fit over this one. His baby Crawford has grown into an unpredictable teenager. The bottom line is that the majority, which includes some otherwise liberal justices, was not going to let the dying words of the victim go unused against the murderer. The next Crawford case up this term will be how SCOTUS addresses the use of a backup chemist to testify for the missing chemist who did the actual toxicology testing for a blood alcohol result. Let’s hope they are this forgiving as well.
Court of Criminal Appeals
Woodall v. State
03/02/11 : Cite No. PD-1379-09
Did a witness’s complete memory loss as the result of an accident render her “absent” for the purposes of the Confrontation Clause?
No. The witness was initially physically present in court and testifying. Her later physical absence is what allowed the State to enter the grand-jury testimony of her past recollection recorded under Texas Rule of Evidence 803(5). Read Opinion.
Judge Price would instead hold that the defendant essentially waived her Sixth Amendment Confrontation Clause claim for purposes of appeal. Read Concurrence.
Judge Cochran states that on remand, the estoppel doctrine should not apply to the issue of whether the State carried its burden to establish a proper foundation for admitting the prior grand-jury testimony into evidence after the witness had left the stand. Read Concurrence.
No surprise that memory loss is not the same as an absent witness. After all, the witness is there, for whatever that is worth. On the other hand, on remand, the State will still have to show how it proved the predicate for admission of a past recollection statement without any sponsoring witness to explain the statement as being a past recollection. Might be inferred from prior testimony. We shall see.
State v. Castleberry
03/02/11 : Cite No. PD-0354-10
Was a weapons frisk of the defendant justified during a consensual stop where the officer had a reasonable belief that the defendant was reaching for a weapon instead of his identification?
Yes. The overall circumstances—the defendant found behind a closed business in a high-crime area—could lead a reasonable person to believe that the defendant presented a threat. Read Opinion.
After hundreds of years of litigation, search and seizure questions still come down to the inferences drawn from tiny facts and unique circumstances the raise the question, “Is that a gun in your pocket or are you just reaching for an ID?”
Gaal v. State
03/02/11 : Cite No. PD-0516-10
Should the trial judge have been recused for stating that he would “not accept any plea bargain … unless it’s for the maximum term of 10 years?”
No. The judge’s remark went only to the plea bargain. It was based on the defendant’s violations and actions prior to the proceedings. The statement did not forecast the judge’s inability to consider the full punishment range. Read Opinion.
Good quote from the court of appeals: “The trial judge's comments could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he had twice rejected favorable plea bargains - one the minimum possible jail time- and was continuing to drink in violation of his bond conditions.” Oh, well, when you put it that way, the judge’s comment seems quite appropriate. This trial judge knew when it was time to go to trial.
Texas Courts of Appeals
State v. Molder – 2nd COA
02/24/11 : Cite No. 02-09-00385-CR
Did the trial court correctly grant a motion to suppress on grounds that the inventory search was invalid?
Yes, the State failed to provide evidence of a written DPS inventory policy on opening small containers. Read Opinion.
The vehicle should not have even been impounded.
The concurring opinion has the stronger reasoning. The truck was unrelated to the stop and arrest; it was parked in a private lot away from the hotel; and there was nothing to suggest it needed to be impounded and inventoried.
Tijerina v. State – 7th COA
02/24/11 : Cite No. 07-09-00345-CR
Did the trial court correctly deny a motion to suppress pursued under the Fourth Amendment where a private citizen looked in a window of the defendant’s residence and identified him?
No. The citizen was acting as an instrument of the state, any standing claim was forfeited, and the defendant had expressly revoked any implied authority for the police to be on his property. Read Opinion.
Oddly, the state did NOT attempt to justify the warrantless search (a peep into the home) through the alternative justification of the exigent circumstances that the defendant had fled the scene of a crime and was quickly absorbing the evidence of alcohol in his body. That made this case harder. Fortunately, the witness’ courtroom identification was unbreakable and made it all harmless.
Texas Attorney General
Opinion for Chair, Committee on Pensions, Investments, and Financial Services
02/28/11 : Opinion No. GA-0846
Does §542.2035 of the Transportation Code prohibit a municipal peace officer from using a handheld laser speed enforcement device that also obtains photos of the vehicle, its license plates or the driver to collect evidence before initiating a traffic stop?
Yes. By enacting Transportation Code §542.2035, the Legislature has prohibited a municipality from using any radar device that records the speed of a motor vehicle and obtains one or more photographs or other recorded images of the vehicle, its license plate, or its operator. Read Opinion.
So, although the law was written to prohibit red-light cameras, it seems the AG would apply it to any radar taking pictures, even in the hand of a live officer. An officer could testify as to what he saw, but he couldn’t back it up with technology? This is one AG opinion in big doubt.
Opinion for Denton County Criminal District Attorney
02/28/11 : Opinion No.GA-0847
May information contained in a presentence investigation report be released to the Department of Family and Protective Services for the protection of a child?
Under §261.101 of the Family Code, a community supervision officer may release to the Department of Family and Protective Services information contained in a pre-plea presentence investigation report required by CCP Art. 42.12, §9 to the extent that such information discloses that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect. If the officer releases such information in good faith, he is immune to civil and criminal liability under §261.101(a), Family Code, for having done so. Read Opinion.
Good to know.
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