The defendant's sentence was void and illegal where the jury sentenced him to three years more than the state jail felony punishment range allows and the written judgment corrected the jury's miscalculation. The charge to the jury on punishment informed them that the offense was a state jail felony, punishable by between 180 days and two years in a state jail facility plus a fine of up to $10,000. The jury then assessed five years and a $10,000 fine but recommended that the defendant be placed on community supervision and the fine probated, which differed from the written judgment listing the sentence as two years in a state jail facility plus a $10,000 fine, with community supervision and probation for five years. Baker v. State - 14-08-00119-CR thru 00120-CR.
Case of the Week Archive
The trial court was not required to conduct an informal inquiry into the defendant's competency when a doctor testified that while the defendant's verbal ability limited him to the mentally retarded range, he was not otherwise mentally retarded. The trial court made sufficient inquiry by observing the defendant throughout the punishment hearing and by speaking with him about the punishment range, sexual offender registration requirements, and his right against self-incrimination. Schoor v. State - 07-08-0170-CR.
In the defendant's convictions for tampering with physical evidence and hindering apprehension in connection with a murder, the State impermissibly withheld evidence of a punishment-phase witness's inability to identify the defendant in a photo line-up and that prosecutors had thereafter prepped the witness before trial by showing him a single photo of the defendant. The potential impeachment evidence against the taxi driver who testified to the defendant's comments and demeanor was material. Had this evidence been disclosed and used effectively, it would have placed the State's case for punishment in a different light, giving rise to a potentially different outcome. Hall v. State - 03-07-00626 and 00627 CR
After the defendant's conviction for burglary of a habitation the trial court should not have granted him a new trial based on his claim of ineffective assistance of counsel for his attorney's failure to request an instruction on accomplice-witness testimony. The question of whether there was a reasonable likelihood that, except for the defense attorney's failure to request the instruction, the result of the guilt stage would have been different did not turn on whether the non-accomplice evidence was enough to tie the defendant to the crime or even whether such evidence alone would support a guilty verdict. The defendant was seen hanging around the victim's apartment complex with the accomplice near the time of the crime. He walked around and acted suspiciously near the victim's apartment for several hours shortly before the crime. Shortly after and not far from the victim's apartment, he sold a video-game player that matched the description of that taken during the burglary. Davis v. State - PD-0613-08.
The trial court was correct when it denied the defendant's request for a special jury instruction on involuntary intoxication during his trial for DWI. The defendant's mental state was not an element of the offense. The Legislature has not included a culpable mental state in its definition of DWI, and proof of a culpable mental state is expressly not required for conviction of an offense dealing with intoxication and for alcoholic beverage offenses. Other Texas courts have held that the offense of DWI does not require a culpable mental state and have further held that involuntary intoxication is not a defense to DWI. Brown v. State - 2-08-041-CR.
In her trial for fraudulent use or possession of identifying information, the defendant did not preserve any error regarding the prosecutor's comments about the victim's cancer during opening statement and closing argument. The trial court never ruled on the defendant's objection, and the defendant did not press the court for a ruling nor did she object to the lack of a ruling. The court even gave the jury an instruction that addressed the defendant's stated concern, although it was not an instruction to disregard. Thierry v. State - 01-07-00712-CR.
In the defendant's trial for aggravated robbery the trial court should have given the jury a Code of Criminal Procedure art.38.22(6) general voluntariness instruction relating to the defendant's inculpatory videotaped statement. The victims each identified other people as the assailant in both the photo lineup and the live lineup, and another witness identified someone else when she viewed a photo lineup. At least six hours passed between the robbery and when the stolen car was found at the defendant's girlfriend's apartment complex. Other than one in-court identification, the only direct evidence of the defendant's guilt was his videotaped confession. Omission of the voluntariness instruction seriously affected a defensive theory and the basis of the case. Oursbourne v. State - 01-05-00141-CR.
In the defendant's trial for possession of a controlled substance, the trial court improperly denied his motion to suppress evidence seized during an unlawful arrest. Because the State did not produce the warrants, which were the stated basis for the defendant's arrest, and because the record did not contain adequate grounds to conclude that probable cause existed for the arrest, the defendant's motion to suppress should have been granted. Paulea v. State - 14-07-01044-CR
In the defendant's trial for aggravated sexual assault of a child, the admission of notes taken by a social worker and a nurse who interviewed the child did not violate the defendant's confrontation clause rights. The notes were not testimonial statements and their admission did not contribute to the defendant's conviction. The strength of other physical medical evidence, the defendant's behavior on the day of the assault, and his questionable credibility were sufficient so that the notes alone did not move the jury to convict. De La Paz v. State - 11-06-00146-CR.
The trial court improperly denied the defendant the chance to cross-examine the complainant about threats the complainant made against others - including the threat that the complainant would make an accusation of molestation - thus preventing the defendant from presenting admissible rebuttal testimony to show a possible motive for accusing the defendant of sexual molestation. There was testimony that the complainant had suffered from mental illness since the age of 4 and that his mental illness contributed to his acts of rage. The complainant testified that he had become angry when the defendant took back a gift he had given him, and that the very next day, the complainant accused the defendant of molesting him. The record showed that the complainant had threatened to accuse others of molestation. The jury could have found testimony from those threatened by the complainant helpful. Billodeau v. State -PD-0969-07.
A docket-sheet entry without a signed order was sufficient to show "presentment" of a motion for new trial filed the same day the defendant claims to have presented it to the trial court. A docket-sheet entry entitled "Motion New Trial presented to court no ruling per judge," was enough to show that the motion was presented to the trial court as required by Rule of Appellate Procedure 21.6. The rule does not expressly state that a judge's signature is necessary to satisfy the requirement. Stokes v. State - PD-0417-06.
In the defendant's trial for retaliation by threat, the victim's
knowledge of the defendant's violent past was not relevant. The victim did not testify that his knowledge that the defendant had
actually killed a person contributed to his fear of the defendant or to his
recantation of his initial statement implicating the defendant in a sexual
assault. By itself, evidence that the defendant had killed a person did not make
any fact of consequence more or less probable in the prosecution of retaliation
by threat. Pollard v. State - PD-0363-08.
In the defendant's trial for assault on a public servant, the State did not commit a Brady violation by failing to preserve a video of the incident alleged to have occurred. The investigating officer explained that the video system was not equipped to download or save the recording to another disk but was maintained for 60 days and then discarded. He testified that the recording did not clearly show the defendant and that it was not useful in the investigation. Additional evidence showed that all surveillance videos were routinely discarded in 60 days. There is nothing in the record to show bad faith on the part of the State, either by extension through the acts of the sheriff's office or the prosecutor. Chandler v. State - 06-08-00062-CR.
In the defendant's murder trial, the trial court properly admitted out-of-court statements made by the defendant's girlfriend to her friend asking the friend to lie and say she had borrowed the gun that was the murder weapon, intending to create an alibi for the girlfriend and the defendant. The girlfriend's statements were admissible under the co-conspirator exception to the hearsay rule [T.R.Evid. 801(e)(2)(E)] to advance an ongoing conspiracy to hinder the defendant's apprehension rather than statements that were made after the underlying conspiracy to commit murder had been carried out. Guevara v. State - 04-07-00027-CR.
In the defendant's DWI trial, evidence that he had been prescribed Xanax and Valium and had taken one of the medications earlier in the day was not relevant to whether he was intoxicated at the time of his arrest. Without expert testimony to provide the foundation required to admit scientific evidence, the testimony regarding the defendant's use of prescription medications was not relevant. No evidence of the dosage he took, the time he took it or the half-life of the medication was presented. There was no testimony indicating that the officer making the DWI stop had any medical knowledge about the uses of Xanax and Valium or about the effect of combining the medications with alcohol. Layton v. State -PD 0408-07.
The trial court failed to admonish the defendant about the possible deportation consequences of a guilty plea. Normally, under Code of Criminal Procedure art. 26.13, if the record shows that the defendant is a United States citizen, the trial court's failure to admonish him regarding the immigration consequences of his guilty plea is harmless error. If the record shows that the defendant was not a citizen at the time of his guilty plea, then the failure to admonish is harmful. If the record is silent as to his citizenship or if the record is insufficient to determine his citizenship, the trial court's error in failing to give him the immigration admonition is harmful. This record is silent on the matter and it must be inferred that he did not know the potential repercussions of his plea. Stevens v. State - 14-07-00291-CR.
In the defendant's trial for three counts of aggravated sexual assault of a child, the trial court failed to limit the jury's consideration of the defendant's actions before he turned 17 and violated Penal Code §8.07(b) (Age Affecting Criminal Responsibility) by authorizing the jury to convict him based on acts committed before his 17th birthday. The defendant was deprived of his right to be prosecuted for and convicted of only those offenses for which he was criminally responsible under Texas law. Taylor v. State - 01-07-00801-CR.
In the defendant's trial for multiple counts of child sexual assault the trial court incorrectly overruled his objection that testimony of the SANE who examined the child complainant constituted bolstering of that child's later testimony. Reference to a rule of evidence might save an objection that may otherwise be obscure, but an objection is not defective merely because it does not identify a particular rule. The issues were discussed by both attorneys during the trial and the judge made rulings several times. No aspect of the child's declarations had been impeached prior to the State's questions, and her declarations in the SANE examination were consistent with her prior testimony, if not more detailed and complete. Rivas v. State - PD-1113-07.
The defendant's Fifth Amendment right to counsel was violated when during a custodial interrogation and immediately after he was read his Miranda rights, he made a statement that referenced his right to a lawyer and the interrogation continued. While the defendant's request for counsel was not straightforward, that does not mean that he did not adequately communicate his desire to deal with the police detectives only through, or at least in the presence of, a lawyer. Under the circumstances, his statement that he did not want to "give up any right" without a lawyer may safely be assumed to be in response to the right to counsel mentioned by the officers. State v. Gobert - PD-0202-08.
In the defendant's conviction for the Class B offense of possession of less than 28 grams of a Penalty Group 4 controlled substance (codeine), the State's evidence that the defendant possessed the codeine mixture was sufficient when no numerical concentration was assigned by the testifying chemist to the nonnarcotic ingredient (promethazine) in the mixture. A jury could have reasonably inferred that the promethazine was present in sufficient quantities to give the compound valuable medicinal qualities apart from the codeine because the syrup contained both. The chemist testified that promethazine possessed valuable medicinal qualities apart from the codeine as an anti-inflammatory and a cough suppressant, and promethazine is often prescribed by physicians. Sanchez v. State - PD-0094-08.
The trial court improperly denied the defendant's motion to suppress when it found that the alleged co-owner of the home had actual authority to consent to searching the defendant's bedroom. Testimony showed that the defendant co-owned the home with his grandfather, the defendant's bedroom door was always closed, and the grandfather did not sleep in that bedroom nor have a reason to go into it. The grandfather's apparent authority over his grandson's bedroom was ambiguous at best, and a reasonable person in the officer's place would have inquired further. Therefore, the State was unable to present a reasonable basis on which the evidence was obtained. Hubert v. State - 13-08-00093-CR.
In a retail theft prosecution, the State's evidence of ownership does not have to include proof of the name of an owner where it has already proven the existence of an owner. Presenting evidence that a store is the owner of stolen merchandise is sufficient. The State is not required to allege and prove an individual, such as a store manager, as the "owner" because the property owner's name is not a substantive element of the theft statute. Byrd v. State -04-08-00226-CR.
The trial court incorrectly denied the defendant's motion to reopen after the defendant claimed surprise over State-introduced photographic evidence which caused the defense to re-examine the defendant's place as driver or passenger in an intoxication manslaughter trial. The defendant made the motion to reopen in a timely fashion and had the evidence in hand at the time the motion was made. The trial court was clearly informed that the defendant's evidence would show an increased likelihood that the jury would accept his argument that he was not the driver. Birkholz v. State - 04-06-00251-CR thru 04-06-00253-CR.
In the defendant's conviction for capital murder there was sufficient evidence to find that favorable post-conviction DNA testing results would have prevented the defendant's conviction. None of the State's evidence physically placed the defendant at the scene of the crime. The trial jury heard testimony that a stain in the back of the defendant's truck might not have been blood and that there was no reason for blood to have been in the back of the truck. Hairs found inside the truck did not match the two victims and hair from the scene did not match the defendant. State v. Labonte - 14-08-00340-CR.
The evidence was legally sufficient to support the defendant's conviction for attempted aggravated kidnapping when he grabbed a child walking along the sidewalk and then let her go within seconds. The jury could have reasonably inferred from the defendant's actions that he intended to inflict bodily injury on the child when he grabbed her around the waist and pulled her toward him as she walked with her brother. The jury found that he had formed the intent to take her and then abandoned his plan only when he heard a car horn honk and realized that others had seen his action. Laster v. State - PD-1276-07.
The trial court did provide the best interpretive services for a hearing-impaired defendant, including a deaf-relay interpreter, to ensure the defendant's full understanding of the trial proceedings. The record shows that the defendant responded coherently and appropriately to questions (sometimes verbally even before the sign-language translation), was a high school graduate and a current junior college student, could understand enough English to obtain a driver's license and could communicate adequately enough with her accident victim to exchange insurance information. Both the pre-trial and trial judges stopped the proceedings to ask the defendant if she understood the proceedings, provided additional resources and services upon her request, and offered her additional time to confer with her attorney and her interpreters. Linton v. State - PD-0413-08.
The trial court did correctly deny the defendant's motion to suppress where the DWI video showed no standardized field sobriety tests. Despite the lack of evidence of the defendant's performance on the field sobriety tests, the totality of the circumstances showed that the defendant's warrantless arrest was reasonable and supported by probable cause. The officer saw the defendant operate a motor vehicle on a public roadway in excess of the posted speed limit, the defendant could not find his license in his wallet and then was unusually slow in handing it to the officer, the defendant was slow in verbally responding, and the officer smelled the odor of alcohol on the defendant when he exited his vehicle. Amador v. State - PD-0144-08.
It was not an abuse of discretion for the trial court to find a juror disabled and continued with only 11 members. The trial court was able to see and hear the juror's reactions and demeanor. It could have reasonably determined that hearing further evidence in the case would have created an emotional state that would have prevented her from fully and fairly performing a juror's function. Therefore, the trial court could proceed with only 11 jurors, as permitted under Code of Criminal Procedure Art. 36.29. Stephens v. State -07-07-0434-CR.
The trial court improperly declared a mistrial sua sponte after the jury was sworn and impaneled, following the hospitalization of one juror and the discovery that another would be unavailable later in the week. After the State filed a petition for review to the Court of Criminal Appeals, the court of appeals withdrew its original opinion and judgment and replaced them with this decision to respond to a new argument in that petition. In response to the State's argument that Ballew v. Georgia requires six jurors to hear a misdemeanor case, the court ruled that Ballew does not apply because Texas law conforms to the federal constitutional requirement that misdemeanor juries be composed of six people. Nothing in Ballew suggests that a defendant may not knowingly waive his right to a jury of six people if he makes a written waiver in person, in open court, and with the consent and approval of the court and the prosecuting attorney, as happened here. This defendant asked the court to proceed to trial with fewer than six, where Ballew requested that the court not proceed. Therefore, the trial court erred in granting a mistrial for manifest necessity, and double jeopardy prevents any further prosecution of this defendant for the alleged offense of driving while intoxicated. Garza v. State01-07-00740-CR. -
The trial court committed error by excluding a recording of the defendant's telephone conversation with a sheriff's deputy immediately following the defendant's murder of his brother. The defense was built on the long-standing feud between the defendant and his brother, the brother's past violent and threatening behavior, and the defendant's subsequent reasonable fear of attack from his brother. That defense acquired whatever credibility it may have had based on the defendant's behavior and his state of mind at or near the time of the shooting. His statements to the deputy during a telephone call immediately following the incident provided the best evidence of the defendant's vocal inflections, tone of voice, and reactions. Walters v. State -06-05-00014-CR.
When the reporter's record has been lost or destroyed through no fault of the defendant, the State cannot salvage its multiple convictions by claiming that the duties of a court reporter under Rule of Appellate Procedure 13.6 are trumped by the duties established in Government Code §52.046(a)(4). Under the Government Code, a court reporter is required upon request to preserve the notes of a trial for three years from the date on which they were taken. This record does not show any request by the defendant until years after the time limit had expired, so the court reporter's duty under that statute to retain the record for three years did not apply. However, Rule 13.6 does apply and the court reporter was under the obligation to file the untranscribed notes with the district clerk to be retained for 15 years in accordance with that rule. Therefore, the fact the records cannot be found in the district clerk's office either because the court reporter failed to file them or the records have been lost while in the custody of the district clerk's office is not the fault of the defendant, who is entitled to relief. Banks v. State - 05-05-01050-CR.
The defendant did not have the specific intent required under Penal Code §6.04(b)(2) to commit capital murder when he shot a pregnant woman and her 2-year-old, killing both, along with the unborn baby the woman was carrying. If the defendant did not know that the victim was pregnant, he could not form a separate specific intent to kill the fetus. Neither does the intent to kill the toddler, even if proven, transfer to the fetus. Roberts v. State - PD-1054-07.
The officers' failure to Mirandize the defendant before his initial interrogation and polygraph examination rendered later Miranda warnings ineffective and made his second statement inadmissible. The officers should have applied curative measures at the beginning of the second interview, or at the very least, when they referred to the defendant's first interrogation. Some curative measure would have allowed the defendant to recognize that the questioning had taken a different path. Martinez v. State -PD-1917-06.
The district court did have subject-matter jurisdiction of forgery-related offenses when the offenses were charged as misdemeanors. Although the indictment properly charged a misdemeanor but lacked an element necessary to charge a felony, the defendant potentially could have been charged with a felony offense and the indictment's return in a felony court put the defendant on notice that the State intended to charge a felony offense. Kirkpatrick v. State - PD-0873-07.
The trial court erred when - in agreement with the Parole Division - it did not credit the defendant for the time he spent released on mandatory supervision, when he reached the midpoint of the supervision period. The defendant began serving his sentence on the day it was pronounced. He did not begin serving his sentence before the pronouncement just because he received pre-sentence jail credits. Even though he was serving a sentence described by Government Code §508.149(a) when he was returned to prison, that alone does not mean that he was ineligible for the time credits. Ex parte Johnson - AP-76,062.
The State did not commit a Brady violation in the defendant's capital murder trial when the State received additional witness statements following the defendant's conviction. This evidence was provided after the defendant's trial so the State did not possess the evidence prior to or during trial, as required by Brady. The defendant also did not meet the requisite gateway standard of innocence. Under Code of Criminal Procedure art. 11.071 §5(a)(2), the defendant did not show that it was more likely than not that no reasonable juror would have convicted him in light of the new evidence not presented at trial. Ex parte Reed - AP-75,693.
During the punishment phase of a murder trial, the trial court did not err when it instructed the jury that if it failed to reach unanimity in favor of a finding of sudden passion that the jury should answer that issue in the negative. There is nothing in the record to reflect that each juror voted "no" on the sudden passion special issue. The judge's request for a "show of hands" does not suffice as an individual poll of jurors. Because the collective response could have been the result of the jury not being unanimous in reaching an affirmative answer the court of appeals found egregious harm to the defendant and remanded the case for a new punishment hearing. London v. State -05-07-00983-CR.
It was proper for the trial court to instruct the jury that it could find the defendant guilty under the per se impairment definition of intoxication, despite the absence of retrograde extrapolation evidence. The defendant's blood test showed that he had a BAC of 0.10 at the hospital 80 minutes after he was involved in the car wreck. The results are evidence from which a jury could find the defendant guilty under the per se impairment definition. Kirsch v. State - 01-07-00446-CR.
The trial court committed harmful error when it admitted the prior recorded testimony of an eyewitness during the punishment phase of the defendant's murder trial when there was debate as to whether the now out-of-state witness was unavailable under Rule of Evidence 804(a)(5). The State must make some good-faith attempt to produce the witness at trial or to show that any efforts would have been futile. The State argued that it would have been too expensive to bring the witness in from out of state and in the alternative that it should not be required to subpoena the witness because a subpoena does not reach across state lines. Because there is no evidence of any good-faith effort on the State's part to secure the witness, the trial court abused its discretion by admitting the prior recorded testimony. Loun v. State06-07-00174-CR. -