Court of Criminal Appeals
Hartfield v. Thaler
No. AP-76,926 6/12/13 (on certified question from 5th Cir.)
Issue:
Was a valid judgment of conviction in place at the time the governor purported to commute the capital murder convict’s sentence to life without parole when mandate had already issued in the case and the CCA’s order vacating the conviction and sentence had become final?
Holding:
No. In answering a certified question on state law from the 5th Circuit, the court determined that it had given the State 15 days from denial of the State’s motion for rehearing to the time mandate issued to seek a commutation. The clock was not restarted by the State’s motion for leave to file a second motion for rehearing. Because there was no sentence in place to commute, the governor’s order had no effect.
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Commentary:
This opinion is a little lesson in appellate court mandates, that document that orders the trial court to carry out the appellate court’s decision. When it “issues,” there is nothing else that can be done, unless there is a motion to recall the mandate (which was not done in this case). Now the State will be forced to retry the defendant or get him to agree to a plea of guilty, but any sentence or parole issued to the defendant will be controlled by the law that was in effect on the date of his offense—1983. This is a rather difficult predicament.
Wooten v. State
No. PD-1437-12 6/12/13
Issue:
Did the trial court’s denial of the defendant’s request for a sudden passion jury instruction during the penalty phase of his murder trial amount to harm sufficient to reverse the sentence?
Holding:
No. The court did not reach whether denial of the instruction was erroneous; instead, the court found the defendant was not harmed because the jury had already rejected his self-defense claim during the guilt phase of the trial, so it was highly unlikely they would have found the defendant was experiencing a level of fear sufficient to lose control of his actions, as required for sudden passion.
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Commentary:
It does not appear that this defendant was even entitled to an instruction on sudden passion, and I wish the court had decided that issue, instead of just moving onto harm. But this should be a helpful decision nonetheless if you have a murder case in which the jury has already rejected the defendant’s self-defense claim. If there is any evidence that raises a sudden passion issue, then the defendant should get the instruction. But if for some reason, the instruction is not given, this decision will help the State to prevail in the defendant’s appeal.
Texas Courts of Appeals
Castle v. State
Nos. 14-12-00132-CR & 14-12-00133-CR 6/6/13
Issue:
Did the trial court properly use the defendant’s prior conviction for sexual battery in Louisiana to enhance his punishment for aggravated sexual assault of a child to life in prison?
Holding:
No. Although the State presented sufficient evidence to establish the prior conviction and link the defendant to it, and although sexual battery involves prohibited conduct that is similar to the Texas offense of indecency with a child, nothing in the record shows the victim in the Louisiana offense was a child. In this case, sexual battery is not substantially similar to indecency with a child.
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Commentary:
The court of appeals did a pretty thorough job of applying cases from the CCA to determine whether an out-of-state offense is “substantially similar” to a Texas offense. So it might be difficult to overturn on petition for discretionary review. This one stings a little, however, because it appears that the defendant’s out-of-state conviction was in fact for sexual battery of a child, but the State just could not show from the out-of-state documentation that the victim of that offense had in fact been a child.
McClintock v. State
No. 01-11-00572-CR 6/11/13
Issue:
Should the trial court have granted the defendant’s motion to suppress marijuana seized from his home pursuant to a search warrant obtained after a warrantless dog sniff at the back door of the defendant’s home?
Holding:
Yes. The Supreme Court’s holding in Florida v. Jardines, 133 S.Ct. 1409 (2013) clarified that dog sniffs within the curtilage of a home are searches for 4th Amendment purposes. The area sniffed was part of the curtilage of the defendant’s home, not a common area, and the remainder of the warrant affidavit did not support a finding of probable cause.
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Dissent:
The untainted information in the search warrant affidavit, after excluding the dog sniff evidence, is sufficient to authorize the warrant.
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Commentary:
Let’s hope this decision will get overturned on petition for discretionary review. It is published, and there is a dissenting opinion that appears to apply the law more correctly than does the majority. The Court of Criminal Appeals has issued several opinions recently on the correct way to review search warrants on appeal (in a common-sense and non-hypertechnical manner). The majority has failed to do that here. So this case is not so much about an application of Jardines as it is a refusal by a majority in the court of appeals to look at the search warrant in a common-sense manner, even after disregarding the positive alert by the narcotics detection dog.
Ex parte Jones
No. 14-12-00877-CR 6/11/13
Issue:
Did the 2011 bill amending punishment for evading arrest while using a vehicle violate the constitutional requirement of single-subject legislation because it also criminalized the possession, manufacture, transport, repair, or sale of tire deflation devices?
Holding:
No. The court rejected the defendant’s constitutionality argument, finding that offenses involving tire deflation devices and offenses involving evading arrest in a vehicle all reasonably fall under the subject of offenses related to vehicles.
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Commentary:
I would imagine that you may never see another claim of a violation of the single-subject rule. But if you do, you can rely upon this decision and the cases that it cites. This decision should also help if you are confronted with a tire deflation offense.
Ex parte Ragston
Nos. 14-12-01127-CR & 14-12-01128-CR 6/11/13
Issue:
Did the defendant present a cognizable issue for pretrial habeas review by arguing the State should be prohibited from prosecuting him for a capital murder committed when he was younger than 18 because Texas’ capital-felony sentencing statute is unconstitutional as applied to 17-year-olds?
Holding:
No. A pretrial writ of habeas corpus may not be used to address an as-applied constitutional challenge to a statute, and the defendant has not argued that the capital murder statute is unconstitutional on its face. The constitutionality of the sentencing statute will become an issue only if the defendant is convicted.
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Commentary:
This is a straightforward application of how and when to address as-applied constitutional challenges. But this issue will come up in any case that is ultimately controlled by application of the decision of the United States Supreme Court in Miller v. Alabama. The Governor has thankfully added juvenile justice to the call for the current special session, so we may yet get a legislative fix to deal with the proper sentence for juvenile defendants convicted of capital murder.
Texas Attorney General
Request from 35th Judicial District Attorney
RQ-1131-GA 6/7/13
Issue:
May a sitting justice of the peace be appointed as an investigator for an indigent defendant on a felony case?
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