Weekly Case Summaries: November 30, 2012

Court of Criminal Appeals

Leonard v. State

No. PD-0551-10      11/21/12 (reh'g)

Issue:

Did the trial court abuse its discretion in revoking the defendant’s community supervision based on inadmissible evidence of failed polygraph exams?  

Holding:

Yes. Although the revocation was technically based on the defendant’s failure to successfully complete sex offender treatment, the testifying expert based his opinion on failed polygraph exams taken during therapy. Expert opinions may be based on inadmissible evidence under TRE 703; however, polygraph evidence is categorically unreliable and cannot be used as the sole basis for the revocation.
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Concurrence (Johnson, J.):

The polygraph testimony was also inadmissible hearsay because the testifying psychotherapist did not conduct the examinations.
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Dissent (Keasler, J.):

The court has unnecessarily confused the standard of review for evaluating revocations and established a per se rule of inadmissibility for polygraph examinations by permanently labeling them as unreliable.
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Commentary:

After reconsidering its original opinion affirming the use of an expert opinion based on polygraph results, the CCA has given greater weight to its concern over the use of unreliable polygraph information. Frankly, this approach is consistent with the national focus on the use of reliable forensic evidence and the increased demand that judges serve as true gatekeepers for the use of experts in the courtroom. This does make it difficult for sex offender therapists to use polygraphs during treatment and then hold the defendant accountable for his lies.

Miller v. State

No. PD-0705-11      11/21/12

Issue:

Should the trial court have suppressed evidence of a controlled substance found in the defendant’s apartment during a warrantless search by officers responding to a possible domestic disturbance?

Holding:

Yes. Nothing in the record supports a finding that officers were justified in remaining in the apartment after the defendant asked them to leave multiple times because there was no evidence of an emergency and the officers could have waited outside the apartment while running a warrant check. Although the evidence was in plain view, the officers were no longer lawfully in the home by the time it was noticed.
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Dissent (Keller, P.J.):

Based on the state of the apartment and the defendant upon arrival, the officers were justified in remaining in the home to further investigate the situation. The trial court’s findings were entitled to deference.
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Commentary:

Before investigations like this one were recorded, trial and appellate courts were highly dependent on the descriptions of testifying witnesses to establish the critical details and timelines that can determine the reasonableness of a search. This case shows how recordings can provide extraordinary detail of both the facts and the sequence of those facts, permitting appellate courts to challenge the factual support for a trial court’s findings of fact.

Fienen v. State

No. PD-0119-12      11/21/12

Issue:

Was the defendant’s consent to provide a specimen of his breath given involuntarily due to the arresting officer’s extra-statutory statements regarding her intention to get a blood warrant?

Holding:

No. The court overruled its earlier holding in Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993) and clarified that a court must consider the totality of the circumstances in determining whether an extra-statutory warning or statement bears a causal relationship with the decision to provide a specimen. In this case, the officer was merely responding to the defendant’s questions and did not provide any untrue information; based on the totality of the circumstances, the statements were not coercive.
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Concurrence (Johnson, J.):

The court should not have overturned Erdman; the logic of the decision was not flawed, even if its application has been.
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Commentary:

Well, it took 20 years, but the CCA finally fixed the law. This is a very significant correction of what has been a very criticized opinion (Erdman). There is nothing inaccurate about an officer informing a suspect that the officer will get a warrant for blood if breath is refused. Congratulations to the CCA for acknowledging the flawed reasoning in Erdman and returning to a general voluntariness test. Of course, it would be even better if Texas had mandatory blood draws for all DWI cases. Someday.

Casanova v. State

No. PD-1521-11      11/21/12

Issue 1:

Did the trial court’s failure to give an accomplice-witness instruction under CCP art. 38.14, without any objection from the defendant, amount to egregious harm?

Holding  1:

No. Inferences that could be drawn from the State’s corroborating evidence sufficiently connected the defendant to his accomplice’s possession of a controlled substance.

Issue 2:

Did the trial court’s failure to read the guilt-phase jury charge aloud as required by CCP art. 36.14 and 36.16 amount to egregious harm?

Holding 2:

No. Unless there is a trial objection on the issue, a conviction will not be reversed on this basis unless the defendant was deprived of a fair and impartial trial. Nothing in the record shows the jurors failed to read the charge themselves, as instructed by the court, or that the juror selected to read the charge failed to do so in an unbiased or clear manner.
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Commentary:

Absent an objection to the trial judge’s failure to read the jury charge out loud in open court, why isn’t that claim procedurally defaulted for consideration on direct appeal? (And it wasn’t even raised by defense counsel on direct appeal.) Thankfully, the CCA finds it all harmless. Still, it is surprising to find a court not reading the jury charge out loud. It actually is a pretty good way to proofread the language one more time before arguments and deliberations begin.

State v. Richardson

No. PD-1867-11      11/21/12

Issue:

Can the State appeal a trial court’s refusal to allow the use of out-of-state convictions to enhance the punishment range for the alleged offense of intoxication assault?

Holding:

Yes. According to the plain language of CCP art. 44.01(a)(1), the State may appeal a trial court order quashing any portion of an indictment. Although the State is not required to plead enhancement allegations in the indictment, once pled they are part of the indictment for the purposes of CCP art. 44.01.
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Commentary:

Judge Johnson has written a very significant unanimous opinion on an issue that has been undecided for some time. This is very good news for prosecutors and should provide more protection against judges quashing enhancement paragraphs before the trial even begins. This case provides a strong reason for prosecutors to plead enhancements and deadly weapon notice in the charging instrument, rather than through external written notice.

Texas Courts of Appeals

Reeves v. State

No. 01-10-00395-CR      11/15/12 (reh’g) (not desig. for pub.)

Issue:

Did the trial court properly charge the jury on provoking the difficulty?

Holding:

No. A charge on provocation is required when there is sufficient evidence 1) that the defendant did some act or used some words which provoked the attack on him, 2) that such act or words were reasonably calculated to provoke the attack, and 3) that the act was done or the words were used for the purpose of and with the intent that the defendant would have a pretext for inflicting harm upon the other. But here, the circumstantial evidence was such that the jury’s finding of provoking acts or words by the defendant would amount to nothing more than impermissible speculation. New trial required.
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Commentary:

These kinds of fights/stabbings/murder cases are messy. Still, there doesn’t seem to be any evidence of provocation to support the charge. But how is it harmful? Unless there is evidence the jury was wildly speculating, we should presume they conscientiously applied the facts to the law. He got only 18 years in prison for killing a man over a dispute of $5 in gas money.

Brown v. State

No. 01-10-00431-CR      11/15/12 (reh’g)

Issue:

Did the trial court wrongly deny a motion for continuance for a competency hearing when the defendant attempted to commit suicide?

Holding:

Yes. The defendant did not voluntarily absent himself from the courtroom and the trial court was required to stay the proceedings so that it could hold a competency hearing. New trial required.
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Commentary:

On rehearing, the COA reaches the same conclusion: The trial court should have stopped to find out if the defendant was competent to continue. Attempted suicide is a tough way to get a continuance, though.

Rhyne v. State

No. 02-11-00410-CR      11/21/12

Issue:

Did the trial court incorrectly admit breath test results?

Holding:

Yes. No reasonable view of the record supported the trial court’s conclusion that the Intoxilyzer had been properly maintained and was properly operating when the defendant gave a breath sample. New trial required.
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Commentary:

While a judge may take judicial notice of the scientific acceptance of the Intoxilyzer as a basis for measuring alcohol concentration in the human body, the prosecutor still must present evidence that the instrument was working properly and the test was conducted properly. A technical supervisor establishes that the Intoxilyzer was working properly; an officer establishes that he conducted the test properly. This is all fairly well-settled DWI law.

Coronado v. State

No. 05-11-00605-CR      11/14/12

Issue:

Did the trial court wrongly admit the State’s bite-mark expert?

Holding:

No. The witness is a practicing dentist and board-certified odontologist who has been performing bite-mark analysis for 20 years. The State established that he was qualified to testify under Daubert/Kelly/TRE 702. That the testimony was used to exclude members of the population was a reliable purpose for the evidence even under the National Academy of Sciences’ (NAS) report.
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Commentary:

The prosecutor who successfully presented the bite mark evidence in this case deserves a standing ovation. Not only did she choose a very qualified witness, she skillfully navigated around the issues raised by the NAS report and smartly used the evidence to EXCLUDE two alternate suspects. Well done. Watch for the publication of a very helpful summary by that prosecutor on bite-mark testimony to appear soon on a laminated sheet from TDCAA.

State v. Huddleston

No. 06-12-00116-CR      11/21/12

Issue:

Did a magistrate have probable cause to issue a search warrant based on the tip of a “cooperating witness?”

Holding:

No. The affidavit relating the tip of an anonymous informant was insufficient to demonstrate the informant’s reliability.
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Commentary:

The affidavit supporting the warrant says the informant provided a recording of the information and was willing to testify. So why not just put the informant’s name in the affidavit and establish credibility that way?

State v. Shelton

No. 07-12-00122-CR      11/27/12

Issue:

Did the trial court improperly dismiss the defendant from community supervision 16 years after discharging him from it?

Holding:

Yes; the trial court lost jurisdiction to enter the order 30 days after the discharge.
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Commentary:

Courts rarely apply this strange provision for judicial clemency. But if they do, it will have to be within 30 days of the end of the probation.

Lee v. State

No. 13-10-00555-CR      11/21/12    (not desig. for pub.)

Issue:

Should the trial court have instructed the jury on mistake of fact?

Holding:

Yes. The defendant testified that he was mistaken about the date of his appointment to register as a sex offender after release from prison.  His parole officer had acquiesced to extensions for later appointments and did not report him as a violator. New trial required.
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Commentary:

This is an interesting application of the mistake-of-fact defense. The jury sure must not have liked this sex offender, though. He got life in prison even though he is 76 years old and has cancer and Hepatitis C. Doesn’t sound like he will live until retrial.

Texas Attorney General

Opinion for 287th Judicial District Attorney

Opinion No. GA-0976      11/20/12

Issue:

May a home-rule municipality require sex offenders who reside within the city to register with the sheriff rather than the chief of police?

Opinion:

Unless CCP art. 62.0045 authorizes a centralized reporting authority within a county, sex offenders must register with the chief of police if they reside within a municipality or with the sheriff if they live outside the limits of a municipality. Whether an offender may be prosecuted for failure to comply with registration requirements is a matter of prosecutorial discretion.
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Opinion for El Paso County Attorney

Opinion No. GA-0977      11/20/12

Issue:

May a county bail bond board permit a licensed bail bond holder to change part of the collateral he or she posted as security?

Opinion:

No. A bondsman may not withdraw a portion of the security deposited under Occupations Code §1704.160 and replace it with a different type of collateral. To the extent a portion of the initial security has been depleted, the replacement security must be in the same form as the existing collateral; only additional security posted beyond the initial amount may be in a different form.
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