Case of the Week Archive

Clay v. State

Neither the 4th Amendment nor the language of CCP art. 18.01 prohibits a magistrate from telephonically administering the oath to an affiant seeking a search warrant, so long as sufficient care is taken to preserve the same or an equivalent solemnizing function of the oath that physical presence accomplishes.
Clay v. State
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State v. Thomas - 1st COA

The trial court improperly granted a motion for new trial in the interest of justice on the ground that the jury did not hear exculpatory testimony from an alleged eyewitness; defense counsel was “undisputedly aware of the exculpatory evidence before trial but consciously decided, on the record, not to call the witness at trial.” An argument that counsel was ineffective was expressly abandoned, and another that the sentence was grossly disproportionate was not presented to the trial court.
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Blackshear v. State

The trial court properly denied the defendant’s oral and unsworn motion for continuance to obtain a trial transcript after the court granted a mistrial on punishment. CCP art. 29.03 requires a written motion for continuance with sufficient cause shown, and there is no due process exception to that requirement. Blackshear v. State Read opinion

State v. Flores - 4th COA

The trial court wrongly found an officer’s information at the time of a defendant’s arrest—that the defendant, who had a common name, had two prior DWI convictions—unreliable under Tex. Transp. Code §724.012(b)(3)(B). The later discovery that the information obtained from NCIC/TCIC was wrong does not make it unreliable at the time the officer used it in the field.
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State v. Hernandez - 4th COA

The trial court's order granting the motion to quash in a sexual assault case was reversed because the State adequately alleged the bigamous conduct elevating the offense from a second- to first-degree felony. The State tracked the statutory language in the indictment and was not required to plead the constituent elements of the offense of bigamy so as to provide adequate notice.
State v. Hernandez
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Fienen v. State - CCA

The CCA overruled its earlier holding in Erdman v. State and clarified that a court must consider the totality of the circumstances in determining whether an extra-statutory warning bears a causal relationship with the decision to provide a breath specimen. In this case, the officer was merely responding to the defendant’s questions and did not provide any untrue information when stating her intent to get a blood warrant; based on the totality of the circumstances, the statements were not coercive. Fienen v. State Read opinion

In re State ex rel. Tharp

A writ of mandamus is an appropriate remedy where the trial court refuses to submit the issue of punishment to the jury after a plea of guilty to the jury. Upon a plea of guilty to the jury, the trial becomes unitary, and the trial judge has a ministerial duty to instruct the jury to return a verdict of guilty and assess the punishment. In re State ex rel. Tharp Read opinion

Ex Parte Ramey - CCA

The admissibility of an expert’s testimony regarding future dangerousness is not a cognizable issue for habeas corpus review. Although the court found the expert’s testimony inadmissible under TRE 702 in an unrelated case on direct appeal, claims regarding the admissibility of evidence under the rules of evidence are not appropriate for habeas review. Ex parte Ramey Read opinion

Cavazos v. State - CCA

Under the “functional-equivalent” test, manslaughter is a lesser-included offense of murder as charged under PC §19.02(b)(2) because the elements of manslaughter differ only in that a less culpable mental state (recklessness) suffices to establish its commission; however, there was no evidence raised at trial that would permit a rational jury to find the defendant guilty only of manslaughter, so the trial court properly denied the instruction in this case. Cavazos v. State Read opinion

Young v. State - 6th COA

An officer's testimony that if the car in front had stopped, the car following would have been unable to do so without colliding, established he had reasonable suspicion to make a traffic stop. The facts exceeded those in Ford v. State where an officer's conclusory testimony that a car was following another too closely was  insufficient for reasonable suspicion. Young v. State Read opinion

Charleston v. Clint Allen, CDA Cass County - 6th COA

The trial court properly dismissed a lawsuit alleging a violation of the due process and due course of law provisions, purportedly arising from the criminal district attorney’s (and his predecessor’s) failure to disclose exculpatory information. The CDA was entitled to sovereign immunity, and summary judgment was appropriate because, as the CDA did not possess the evidence at issue, the dispute was moot. Charleston v. Clint Allen, CDA Cass County Read opinion

McQuarrie v. State

The trial court improperly excluded affidavits and testimony regarding a juror’s Internet research on date rape drugs under TRE 606(b) at a hearing on the defendant’s motion for new trial because the Internet research occurred outside the jury room deliberations and was an “outside influence” for the purposes of TRE 606(b). McQuarrie v. State Read opinion

Rivera v. State - 9th COA

A capital murder defendant’s federal and state rights of confrontation were not denied when the trial court permitted an overseas, active-duty soldier to testify by live video conference (Skype). The preference for having witnesses testify in the courtroom must give way to the practical considerations involving a witness’s military obligation that made his physical presence impractical. Rivera v. State Read opinion

Crenshaw v. State

Inclusion of the per se definition of intoxication in the abstract portion of the jury charge did not improperly expand the allegations against the defendant when the information alleged only the subjective definition because the application paragraph tracked the language of the information and restricted the jury’s consideration to only the allegations contained in the information. Crenshaw v. State Read opinon

Duran v. State - 4th COA

A defendant (and the State) must be present at sentencing whether involving an original or modified punishment; absent the defendant’s opportunity “to hear or respond to the imposition of the modified sentence,” he is entitled to a new punishment hearing. Duran v. State Read opinion

9-21 Case Summaries

Because the TDCAA staff is in South Padre at the Annual Criminal & Civil Law Update, we will not publish a case summaries email this week. The case summaries email will resume 9-28 with cases from both weeks.

Campbell v. State - 3rd COA

The trial court properly admitted Facebook messages created by the defendant because the content of the messages, the speech pattern, the temporal proximity to the events discussed, and the limited access to the account sufficiently demonstrated the messages' authenticity. Campbell v. State Read opinion

Wiley v. State - 1st COA

An officer did not violate the 4th Amendment when he seized an arrestee’s car keys and used them to trigger the car alarm so as to identify the associated car; the arrestee had no reasonable expectation of privacy in the identity of his car and failed to demonstrate how triggering the car alarm button violated a reasonable expectation of privacy in the encrypted code, which the officers did not attempt to discover.

U.S. v. Polidore - 5th Circuit

The admission of 9-1-1 calls reporting an ongoing drug deal, not an emergency, did not violate the Confrontation Clause because the statements were not testimonial; the primary purpose of the interrogation was not to create an out-of-court substitute for trial testimony.

U.S. v. Polidore: Read Opinion

Williams v. Illinois

The Confrontation Clause is not violated when a police forensic laboratory specialist testifies that a sample of the defendant’s blood obtained by her laboratory matched a DNA profile contained in another laboratory’s report if the report had the “primary purpose” of determining the identity of a suspect in a rape rather than accusing a targeted individual and (concurrence) lacks indicia of solemnity/formality.
Williams v. Illinois. Read Opinion

In re Craig Watkins

The trial court wrongly granted a provision of a defense omnibus discovery motion requiring the State to turn over NCIC and TCIC records of law enforcement officers for an in camera inspection. Although the State failed to advise the trial court that no such record existed (so the trial court was denied the opportunity to rule on the issue that the State would have to create the document), neither Brady v. Maryland, nor CCP art. 39.14 impose a duty on the State to acquire the information. Moreover, there were 1) no oral or written request for the records, 2) no oral or written showing of “good cause” for the records, 3) no oral or written showing why those records were material to the defense, and 4) no oral or written showing that those records were in the State's possession.

In re Craig Watkins
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Somers v. State

Enzyme multiplied immunoassay technique (EMIT) drug test results are reliable without a confirmation test under the first two prongs of Kelly. EMIT, with or without a confirmation test, is reliable scientific evidence. EMIT testing is highly accurate, has a low rate of error, and is widely accepted and extensively used as a reliable presumptive screen for the presence of drugs.

Somers v. State
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Blueford v. Arkansas

The Double Jeopardy Clause does not prohibit retrying a defendant for capital murder and first-degree murder when the trial judge granted a mistrial after the jury informed him that it unanimously agreed the defendant was not guilty of those offenses, but hung on the lesser-included offense of manslaughter. The defendant was not acquitted of the greater charges. The jury had not finally resolved anything and could have revisited the greater charges before rendering a verdict.

Blueford v. Arkansas
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State v. Mazuca

The discovery of an outstanding arrest warrant in between an illegal traffic stop and the seizure of contraband served as an intervening event sufficient to attenuate the taint of the initial stop. The behavior of the arresting officers, although clearly unlawful at the outset, was not so purposeful and flagrant that the discovery of the defendant’s outstanding arrest warrants did not serve to break the causal connection between the illegal stop and the discovery of the ecstasy.

State v. Mazuca
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Sanchez v. State

A blood draw search warrant to be executed in a designated county may not be issued by a statutory county court judge of a different county. Statutory county court judges lack the authority to issue a search warrant to be executed outside of their own county.

Sanchez v. State
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Lothrop v. State

There was not reasonable suspicion to stop the defendant after he drove on an improved shoulder to pass a car that had slowed at a railroad crossing in violation of Transportation Code §545.058(a). The officer did not testify that the defendant was driving in a manner inconsistent with §545.058(a)(4) (using the shoulder to pass another vehicle that is slowing on the main portion of the highway). Driving on an improved shoulder is not prima facie evidence of an offense. The offense of illegally driving on an improved shoulder is committed when driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on the improved shoulder could not have been done safely.

Lothrop v. State
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Ex parte Jimenez

The defendant was not entitled to a new trial because she was denied adequate funding to hire additional and better qualified experts, and because trial counsel was ineffective by failing to retain or make a written request for additional qualified experts. A defendant is not entitled to the best or most expensive expert, but is entitled to at least one expert upon a showing that the expert can provide assistance which is likely to be a significant factor at trial. The defendant forfeited consideration of her constitutional claim on habeas review by failing to file a proper written Ake motion and ensuring the trial judge formally ruled on it. The defendant does not have a constitutional right to a “team of experts” paid for by the taxpayers, and defendant’s counsel was not ineffective in failing to request such a team.

Ex parte Jimenez
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Salinas v. State

The 5th Amendment right against compelled self-incrimination  does not apply to pre-arrest, pre-Miranda silence used as substantive evidence of guilt in cases in which a defendant does not testify. In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled. The 5th Amendment right against compulsory self-incrimination is irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak. Prosecutors may comment on such silence regardless of whether a defendant testifies.

 

Salinas v. State
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Pfeiffer v. State

When a defendant appeals his conviction, the State does not need to file its own notice of appeal when it raises a cross point concerning a ruling on a question of law under CCP art. 44.01(c). Once a convicted defendant files a timely notice of appeal, the appellate courts have jurisdiction to address any pertinent “cross-appeal“ or ”rebuttal“ issues raised by the State. There is no statutory provision for filing a notice of appeal for “cross-appeals” under art. 44.01(c) and no evidence that the legislature intended for the State to file a notice of appeal. There is no persuasive rationale for requiring such notice of appeal when the State's right to have the court of appeals address its issue on a trial court's ruling of law is contingent upon the defendant obtaining relief from his conviction.

Pfeiffer v. State
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Ex parte Rodriguez

The trial court properly denied a pretrial writ of habeas corpus alleging a violation of double jeopardy where, previously, a mistrial had been granted due to the State's delayed disclosure of photographic evidence obtained by a sexual assault nurse examiner. The decision to declare a mistrial, even if "improvidently quick" was manifestly necessary. Where a trial judge faces the options of either 1) excluding the photographs and thereby creating a potential ineffective assistance of counsel claim or 2) continuing the proceedings for an indeterminate but lengthy period of time, the decision is within the zone of reasonable disagreement.

Ex parte Rodriguez
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Lockard v. State

The trial court did not violate a defendant’s rights to due process and due course of law by refusing to answer a jury question regarding consequences of a verdict of not guilty by reason of insanity. The policy decisions of other courts throughout the nation do not rise to the level of a due process right or a due course of law right. CCP art. 46C.154, as the trial court applied it here, does not “offend some principle of justice so deeply rooted in the traditions and conscience of our people as to be ranked as fundamental,” and the defendant has failed to establish that the trial court applied the mandatory prohibition of article 46C.154 in a manner that deprived appellant of fundamental fairness.

Lockard v. State
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Merritt v. State

Filing a frivolous lawsuit does not constitute an “unlawful” act—one that is criminal or tortious—required for the offense of retaliation. Filing frivolous pleadings and motions is sanctionable but does not constitute a tortious act, and the criminality of the act was not raised. Thus, filing a frivolous lawsuit is not unlawful, the trial court’s judgment is reversed, and a judgment of acquittal is entered.

Merritt v. State
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Lafler v. Cooper

Counsel provided ineffective assistance by recommending rejection of a plea bargain. Under the prejudice prong of the ineffective assistance of counsel test, the defendant will have to show that there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction, sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Possible remedies include the trial court conducting a hearing to determine 1) whether the defendant would have accepted the plea and, if so, deciding what the appropriate sentence should be (that was assessed, was pled to, or something in between), or 2) where lesser offenses were offered, deciding whether to vacate and accept the plea or let the conviction stand. Here, because the sentence assessed was 3½ times that offered, the State should reoffer the plea agreement.

Lafler v. Cooper
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Thomas v. State - 9th COA

The defendant's guilty plea was voluntary and counsel did not render ineffective assistance as a result of counsel failing to inform the defendant that his plea could lead to the civil commitment program for sexually violent predators (SVP). The SVP program was not similar to the deportation consequences of the defendant's plea in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), because it was neither a penalty nor virtually an automatic result. Also, "without believing that SVP commitment would be a definite and largely automatic result for an individual client, reasonably competent counsel would not necessarily have counseled a client on the matter." 

Thomas v. State
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State v. Holloway

Chapter 64 of the CCP does not authorize a trial court to grant a new trial after DNA testing is conducted, but it does authorize the court to hold a hearing and make a finding on the significance of the DNA results. The proper method to obtain judicial relief on the basis of a favorable CCP art. 64.04 finding is through a post-conviction writ of habeas corpus under CCP art. 11.07.

State v. Holloway
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Avery v. State

The defendant was entitled to an acquittal for attempting to obtain a controlled substance "through use of a fraudulent prescription form" in violation of Health & Safety Code §481.129(a)(5)(B).  The State charged the appellant with attempting to obtain a controlled substance "through use of a fraudulent prescription form," but presented evidence that the defendant fraudulently altered information that was handwritten on a legitimate prescription form. A "prescription form" refers to the pre-printed form a doctor completes by writing the prescription information on it. The written prescription information is not part of the form. 

Avery v. State
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Howes v. Fields

The questioning of an inmate in isolation about events in the outside world does not categorically qualify as "custodial" interrogation such that Miranda warnings must be given before any statements will be admissible. Interviews of inmates are not custodial per se. All features of the interrogation are relevant—just as the inmate's perspective of his freedom of movement, informed by the language used to summon the inmate and the manner in which his interview is conducted, are considered. Fields was not in custody because he was repeatedly told that he was free to leave and all the circumstances were "consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave." 

Howes v. Fields
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Ex parte Moussazadeh

The defendant's guilty plea was involuntary because his trial counsel provided incorrect advice on the minimum amount of time the defendant must serve before becoming eligible for parole. The defendant would not have pled guilty if trial counsel had advised him correctly on parole eligibility. Parole eligibility does not need to be an essential part of the plea agreement to make a showing of an involuntary plea that resulted from ineffective assistance of counsel. Ex parte Evans, 690 S.W.2d 274 (Tex. Crim. App. 1985), is overruled. 

Ex parte Moussazadeh
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Alford v. State

The trial court properly admitted the defendant's custodial statement made in response to questions during an administrative booking procedure.  The booking exception to Miranda applied because the question objectively related to the government's legitimate administrative concern in identification and storage of an inmate's property.

 

Alford v. State
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United States v. Jones

The attachment of a global positioning system (GPS) tracking device to an individual's vehicle and subsequent monitoring of the GPS constitutes a Fourth Amendment search. Applying 18th-century trespass law, a vehicle is an "effect" as the term is used in the Fourth Amendment, and the physical intrusion would have been a search within the meaning of the Amendment at the time it was adopted. The Court does not reach the question of reasonableness of the search because it was not raised below. 

United States v. Jones
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Black v. State - 2nd COA

Text messages obtained by way of a search warrant from a cell phone seized during a search incident to arrest were not admissible. The messages were out-of-court statements offered for the truth of the matter asserted so they were hearsay; the messages were not computer-generated data; and there was no showing either that defendant wrote or ratified any of the messages or that the messages were written while the cell phone was in defendant's possession. Therefore, the messages did not qualify as statements that he made against his penal interest. 

Black v. State
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Perry v. New Hampshire

The Due Process Clause does not require trial courts to conduct a preliminary assessment of the reliability of eyewitness identification made under suggestive circumstances not arranged by the police. The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess it creditworthiness.

Perry v. New Hamphire
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State v. Fielder - 3rd COA

The trial court did not have jurisdiction to enter an order of judicial clemency more than three years after discharging the defendant from successfully completed community supervision. The defendant's failure to file a brief—despite the court's instructions—constituted a confession of error, although such a confession is not conclusive. Nevertheless, an independent examination of the merits of the claim reveals that the trial court had already made its election under Tex. Code Crim. Proc. art. 42.12, §20 (permitting discharge or judicial clemency after community supervision) and lacked the jurisdiction to revisit that election years later. 

State v. Fielder
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Clinton v. State - CCA

A transaction did not need to be consummated to support a jury finding that the defendant "used" a debit card in violation of PC §32.31(b)(1) (debit card abuse)?  The defendant used the card when it was swiped through the card reader. The statutory terms "use" and "present" in PC §32.31(b)(1) may overlap in meaning in that a person may both use and present a debit card in the same conduct. Definitions of these terms do not depend on whether the defendant obtained a benefit. The plain language of the statute requires that an individual need only have utilized the card for the intended purpose of obtaining a benefit. 

Clinton v. State
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State v. Rosseau - 4th COA

The trial court improperly quashed the portion of an indictment alleging PC §22.011(f) (bigamous conduct), which elevated sexual assault to a first degree felony. The appellate court had jurisdiction to decide the State's appeal because the trial court dismissed part of the indictment, and the dismissed allegation is an element—not an enhancement—of the first-degree offense. Further, the "as applied"—as opposed to a facial—constitutional challenge cannot be resolved in a pre-trial proceeding. 

 

State v. Rosseau
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Sanchez v. State - CCA

After the outcry witness became unavailable to testify at trial, the trial court improperly admitted the outcry witness's testimony from a pretrial CCP art. 38.072 hearing. The defendant did not have an adequate opportunity to cross-examine the outcry witness's credibility at the pretrial hearing and admitting the prior testimony from the unavailable witness violated the 6th Amendment. A pretrial hearing conducted under CCP art. 38.072, § 2(b)(2) is intended only to determine the reliability of the complainant's out of court statement based on time, content, and circumstances of the statement. The fact finder at trial determines the credibility of the outcry witness. 

Sanchez v. State
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Morris v. State - CCA

The "grooming" of children for sexual molestation is a legitimate subject of expert testimony. The legitimacy of grooming as a subject of expert testimony is established sufficiently to be judicially noticed. Grooming is a subject matter that falls in the study of the behavior of offenders who sexually victimize children, a legitimate field of expertise. Although social awareness of child sexual abuse has increased, expert testimony on grooming is still useful to the jury because not all jurors are aware of the concept or have the depth of understanding to resolve the issues before them.

 

Morris v. State
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