Case of the Week Archive
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 lineup and the preparation prosecutors had done with the witness before trial by showing him a single photo of the defendant. The State suppressed evidence in violation of both a discovery order and Brady. While these actions did not ultimately cause reversible error in the defendant's convictions, they did require a new trial on punishment. (See TDCAA Case Summaries, February 27, 2009.)
The defendant's prosecution for intoxication assault was not barred by
double jeopardy when failure to yield right-of-way was included as one
of the elements and the defendant had already been punished for the
offense of failure to yield right-of-way. The elements of intoxication assault required the State to prove
that the defendant had driven a car while intoxicated and by reason of
that intoxication caused bodily injury by accident or mistake. The
State needed to show only that he caused bodily injury. The manner in
which he did so was not an element of the offense.
The federal identity theft law (18 U.S.C. §1028) requires the defendant to actually know that the ID he is using belongs to another person. An illegal immigrant who used false identification was not
criminally liable because the government was unable to show that, based
on a plain interpretation of the statute, he "knowingly transferred,
possessed, or used, without lawful authority, a means of identification
of another person."
Where the defendant was convicted of murder committed in the course of delivering a controlled substance, Penal Code §1.03
did not bar the use of a violation of a drug offense in the Health and Safety
Code as the felony required to prove an element of murder. The felony offense of murder, contained in the Penal Code, was
charged by the indictment and the manner and means of proving this form
of murder was by the commission of a felony. The felony drug offense
supplied the intent for felony murder and no new offense was created in
Where the accepted conditions of the defendant's probation included that he consent to any warrantless search of his person, residence or any vehicle which he operated, occupied or possessed at any time by any probation officer, without prior notice, the trial court correctly denied his motion to suppress evidence of a gun found in his possession. The conditions of his probation expressly prohibited him from possessing any contraband, including illegal weapons, controlled substances or illegal drugs. The terms of his probation authorized a search by any probation officer to determine whether he was complying with the specified conditions. The evidence established the search, conducted by a probation officer, was to determine whether he had any illegal drugs or weapons and was valid.
In the defendant's trial for violation of a protective order, the
court correctly instructed the jury, over the defendant's objection, that
family violence meant dating violence and in defining the terms "dating
violence" and "dating relationship". The jury charge stated that a person commits the offense of
violating a protective order if he knowingly or intentionally commits
family violence and the person has violated the protective order by
committing an assault. While the Code's definitions of "dating
violence" and "dating relationship" affect the meaning of the family
violence element of the offense, the defendant's actions in striking
and pushing his girlfriend still qualified as assaultive element.
In the defendant's trial for aggravated robbery, non-accomplice testimony under Code of Criminal Procedure Art. 38.14 sufficiently connected him to the crime. The masked robber's first and middle names were the same as the defendant's names. The defendant wrote a threatening letter to the accomplice witness while both were in jail. The defendant attempted to get the accomplice witness to sign an affidavit exonerating him and then tried to persuade two jail employees to falsely swear that they saw the accomplice witness sign the affidavit.
General statements from defense counsel are not sufficient to preserve error under T.R. Evid. 103(a)(2) when a trial court denies a defense motion to cross-examine a State's expert witness. The record must show the excluded evidence so that the appeals
court can judge its admissibility and determine whether the trial court
abused its discretion by excluding it. Counsel's statements do not
qualify as a reasonably specific summary of the evidence offered,
especially when the statements seem to question the underlying science
rather than the expert's credibility, and the complainant on appeal
deals with the expert's credibility.
A defendant, under a plea agreement, may waive his right to file an application for writ of habeas corpus. However, a blanket waiver of all habeas corpus relief may not beenforceable as to claims that the defendant could not reasonably haveknown about at the time of his waiver, because he could not havevoluntarily, knowingly, and intelligently waived them
The defendant did not have a constitutional right to an expunction of the dismissed indictment where he was charged with assault of a public servant. The right to expunction is a statutory privilege, not a constitutional right. Code of Criminal Procedure Ch. 55 establishes the requirements for an expunction petition. By failing to provide the required information, the defendant lost his opportunity for relief.
After the defendant's conviction for harassment, he could not assert a facial challenge to the constitutionality of the harassment statute for the first time on appeal. A facial challenge to a statute's constitutionality does not involve a question of jurisdiction. The Texas Constitution clearly defines an indictment or information and provides that the presentment of an indictment or information to a court invests the court with jurisdiction of the cause.
The defendants set up a tent in the right-of-way of a county roadduring a protest march, which violated a county ordinance but they were not properly charged and convicted of violating Penal Code §42.03. While the county ordinance barred structures in the right-of-way,the statute under which the defendants were charged prohibitsobstruction of only part of a road easement used for vehicular travel.People who sat in chairs next to the tents were not arrested or chargedwith obstructing a highway because a chair usually isn't large enoughto obstruct another's view. When protestors were initially warned, theywere told to stay in the bar ditches and off of the road, indicatingthat the bar ditches were not considered by the officers to be a partof the road and that the demonstrators would not obstruct the highwayif they remained in the bar ditch.
When a trial judge indicates that he will exclude all of the defendant's diminished capacity evidence but invites the defense to proffer evidence during voir dire, the defense's proffer may not cover only the questions he would have posed during voir dire to preserve error. Because the trial judge clearly intended his ruling excluding all diminished capacity evidence to apply to the entire trial, the defendant was obligated to offer proof that went past the anticipated voir dire questions to preserve error under T.R. Evid. 103.
In the defendant's trial for capital murder, the jurors were correctly charged on the issue of unanimity when the trial court failed to give them the statutory instruction. While the jury was not given the statutorily required instruction that they did not have to agree on the particular mitigating evidence provided, they did unanimously find that nothing they heard warranted a life sentence.
After a suspect has been arrested, handcuffed, and placed in a patrol car, officers may not automatically search his vehicle as a search incident to arrest. Police may search the passenger compartment of a vehicle as a search incident to arrest only if: (1) it is reasonable to believe the suspect might access the vehicle at the time of the search or (2) the vehicle contains evidence of the offense for which the suspect was arrested.
After the defendant was arrested and jailed for driving while licensesuspended and possession of marihuana, police were not permitted to make awarrantless search of his motel room, then occupied by his girlfriend,to search for further evidence of drug dealing alleged by aconfidential informant. An investigator testified that when they visited the motel, theydid not have probable cause to search the room and were hoping togather more information so they could get a search warrant. Whilesuspicions centered on the defendant, investigators knew that he was incustody when they went to his motel room and they had no specificinformation regarding his girlfriend's possession of drugs that wouldhave given them probable cause to enter the room and conduct a search.
The defendant's double jeopardy rights were violated when he was
convicted of two counts of burglary of a habitation, one with intent to
commit theft and one with intent to commit sexual assault. Even though the evidence proved that he committed both offenses,
the two counts of burglary were based on a single unlawful entry into
the victim's home. The conviction for the most serious offense (the
intent to commit sexual assault) should be retained and the other
conviction set aside.
Caballero v. State No. 04-08-00278-CR
Where the judge decided after sentencing that his assessment of punishment was disproportionate to previous sentences, e-mailed the defendant's attorney of his decision, and then made lengthy remarks from the bench about his error in calculating the sentence, he also had the authority to grant an entire new trial to the defendant rather than a new trial only on punishment. The defendant was entitled to rely on the trial judge's memory of how he had erred in assessing the defendant's punishment to establish that claim. The trial judge did not grant the new trial out of sympathy or under the belief that the defendant received a raw deal before his court. The judge granted the new trial only after concluding that he, the judge, had made a specific, identifiable, and quantifiable error in calculating the defendant's punishment.
Ford v. State 03-06-00663-CR
The trial court incorrectly charged the jury in the defendant's conviction of three counts of engaging in organized criminal activity under Penal Code §32.51 (in essence, identity theft) where one count alleged that the he used the identifying information of "Lambrique King" with the intent to harm or defraud "King" while another count alleged that he used the identifying information of "Kelvin Carr" with the intent to harm or defraud "Carr." The defendant was not shown to have obtained, possessed, transferred, or used the identifying information of any living human being. "King" and "Carr" were fictitious identities created by the defendant for his criminal purposes. The names, dates of birth, identification numbers, and account numbers on the counterfeit checks and false identity cards possessed and used were not connected to any real individuals and were a fiction created for the defendant's fraud.
In a father's prosecution for indecency with a child (his daughter), the trial court incorrectly excluded evidence of the daughter's other previous false accusations of rape. The daughter, who had been removed from the mother's custody by CPS and sent to live with her father, was angry with him for imposing rules and a curfew. She had previously made an outcry to her father that someone else had sexually assaulted her, after which he took her to the hospital. She alleged that all of her mother's boyfriends had sexually molested her and claimed to have been held at knifepoint by five men who all raped her.
In the defendant's conviction for indecency with a child by exposure
where the State was unable to produce tapes of his interview with
detectives, he was entitled to greater protection based on the due
course of law provision in the Texas Constitution than that of the U.S.
Constitution. Based on the court's decision in Pena v. State (Pena IV),
the court of appeals should have considered whether the defendant
preserved his complaint for review and should reconsider whether his
specific due course of law issue was timely and specific under T.R.App.P. 33.1.
The trial court correctly excluded evidence of the murder victim's status as a registered sex offender in another state during the punishment phase of the defendant's trial. The defendant made no attempt to cross examine witnesses concerning their statements about the victim but waited until two witnesses finished testifying and then attempted to impeach their testimony through another witness. The victim's status as a sex offender was a collateral issue and not relevant to the jury's assessment of the appropriate sentence to impose on the defendant.
The trial court improperly admited lab test results when the State had destroyed the substance tested before trial, creating a due course of law violation under the Texas Constitution. However, the defendant did not preserve his due course of law provision claim for appellate review. Although the defendant eventually invoked the Texas due course of law provision when he objected to admission of the evidence, he did not argue that the Texas Constitution provided greater protection than the federal Due Process Clause. The defendant was obligated to put the trial judge on notice of the specific legal theory on which he intended to advocate because the federal constitutional standard was clearly established, the trial judge and the State unmistakably relied solely on the federal standard, and there was no independent interpretation on the subject of lost or destroyed evidence under the Texas Constitution.
In the defendant's appeal of one of his convictions for aggravated sexual assault, the appellate court improperly reviewed the case and did not conform to the established requirements of deference to the jury's verdict. The court of appeals made inferences in the defendant's favor rather than reviewing the record in a neutral light. The court further recited facts favorable to the defendant's position while overlooking other evidence and seems to have discounted the jury's ability to disbelieve the defendant's explanation of how the child victim might have contracted gonorrhea. Finally, the court of appeals may have employed an incorrect understanding of the term "penetration" in its analysis.
The defendant's indictment charged aggravated sexual assault and he did not object to the jury charge authorizing a conviction for that offense or any of three lesser-included offenses (sexual assault, aggravated assault, or assault). The trial court had jurisdiction to convict him of the lesser offense when aggravated assault was incorrectly included. The jurisdiction of the district court attaches by the return of an indictment charging a felony, even when the actual conviction may be on a misdemeanor. The district court retains jurisdiction of the case to its final determination.
In the defendant's felony DWI trial, the trial court correctly found that he used his SUV as a deadly weapon in the commission of the offense. The defendant did not try to brake before he hit the victim's car, despite his own admission that he was almost 250 feet from the car when he first spotted it. Crash reconstruction data indicated that he was traveling at a speed between public roadway speeds (35 miles per hour) and highway speeds, allowing a jury to reasonably find that he had been speeding and failed to maintain control of his SUV. The other driver sustained injuries severe enough to require hospitalization for one month following the crash.
In overturning the defendant's conviction for child abandonment of his
stepson, the court of appeals misconstrued the statutory meaning of
"care, custody, or control" in Penal Code §22.04 (Injury to a Child, Elderly Individual or Disabled Individual) to apply to §22.041(b) (Abandoning or Endangering a Child). The purpose of both §22.04 and §22.041 is to protect vulnerable
individuals and the unambiguous language defining "care, custody, and
control" in one is applicable to the other. However, the defendant's
status as the child's step-parent alone did not obligate him to care
for the child. The State must show that the defendant accepted
responsibility to protect, shelter, feed, and care for the stepson.
The defendant was illegally confined when he was rearrested in 2007
after he was sentenced to a two-year state jail term in 2001 and then
was incorrectly released from custody only one month into that
sentence. The defendant was entitled to credit toward the expiration of his
original sentence for the time that he was out of custody following his
erroneous release. The correct crediting of his sentence discharged his
sentence in 2003.
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In the defendant's trial for misdemeanor possession of marijuana, the trial court incorrectly charged the jury by instructing that it
could impose a minimum sentence where none was required by statute, and
further that it could both fine and incarcerate the defendant without
the option of choosing one or the other. The charge failed to give the jury the option of assessing the
less-severe minimum punishment of only a fine or only a term of
confinement, but not both.
The trial court had statutory authority to impose sex offender registration on the defendant after his conviction for online solicitation of a minor. In 2005, HB 2228 created the offense of online solicitation of a minor and required anyone convicted of it to register as a sex offender. In that same session, the legislature enacted HB 867, which amended the same section of the registration statute but without any reference to online solicitation of a minor as an offense subject to registration requirements. HB 867, however, did recite the full registration statute while amending it, which, under the principles of code construction, reenacts the statute, regardless of the terminology used to do so.
The trial court allowed the defendant's 2002 indictment for tampering with a governmental record to toll the limitations period for the State's 2008 re-indictment of the offense as the state jail felony of tampering with a governmental record. Although the original misdemeanor indictment for tampering with a governmental record pleaded elements constituting a misdemeanor, the indictment also invoked the district court's subject matter jurisdiction because the original indictment showed an intent to charge the defendant with felony tampering. The original indictment was in a court of competent jurisdiction and tolled the limitations period for the felony re-indictment.
The warrantless seizure of an anhydrous ammonia tank from inside a van parked in the defendant's driveway was lawful. The automobile exception gave the officer the right to enter the van and seize the tank. According to the defendant, he had used the van in the days before the search, indicating that it was readily mobile. Based on the officer's training and investigative experience regarding methamphetamine production and the condition of the tank as viewed through the window, the officer had probable cause to believe that the tank contained anhydrous ammonia. Keehn v. State PD-0002-08
In a former police officer's trial for tampering with physical evidence for knowingly making false statements in a police report and aggravated perjury for making the same false statements under oath, the trial court's admission of extraneous-offense evidence was not a violation of Rule of Evidence 404(b). The defendant claimed to have seen three separate drug deals at three different times, but no one else involved in the undercover operation (including the confidential informant and the object of the sting) did. Under the doctrine of chances, the strong extraneous act evidence decreases the likelihood that the former officer saw any drug deal and therefore increases the likelihood that he knew his statement about seeing one between two of the arrestees was false.
Upon the defendant's guilty plea and conviction for delivery of a
controlled substance, the trial court improperly assessed attorney's
fees of $1,250 in addition to his sentence of 25 years, when he had
previously completed a form to secure a court-appointed attorney and
indicated that he was unemployed and living with a relative. There was nothing to show how the trial court arrived at the amount
for attorney's fees, nor was there any evidence to show that the
defendant could pay that amount. There was no itemized statement from
defense counsel illustrating the number of hours worked or what sum
would constitute a reasonable fee under the circumstances.
Perez v. State 07-08-0327-CR
The defendant was not improperly denied his constitutional right to
exercise his religion when the trial court required him to keep a
Bible, that he wanted to display on the defense counsel's table, in a
less prominent position. There was nothing to indicate that the defendant's religious
practices or beliefs required him to prominently display his Bible
during the trial. There was no evidence that he had it for reference or
even for comfort. The trial court did not deny the defendant access to
his Bible any time he wanted to use it in a conventional way. His
actions suggested only that he wanted the jury to see it sitting in
front of him.
Alexander v. State 06-08-00176-CR
The defendant was convicted and received a 12-year sentence for burglary. The jury was properly charged when the abstract paragraph of the jury charge contained only an instruction on "intent to commit theft," but the application paragraph contained only an instruction on "committed or attempted to commit theft." The defendant and his accomplice entered the home through the back door without permission. They wiped their fingerprints from the outer, metal screen door. Despite it being midday, one carried a flashlight. The defendant instructed the women waiting in their car to honk if anyone drove up. The car was parked in the carport where it was concealed from traffic on the road. When the resident confronted the defendant and his accomplice, the men gave conflicting reasons for being in the house. A rational jury could find the essential elements of burglary, including intent to commit theft, as alleged in the indictment. Grissam v. State 2-05-422-CR
The defendant was entitled to a bond reduction in his two drug
possession cases, one for possession of less than one gram and the
other for one to four grams and both enhanced with previous felony drug
convictions, where bond was set at $200,000 for each offense. The defendant introduced evidence that he was a businessman,
living with his wife in the area. Prior to his arrest, he attended drug
and alcohol abuse counseling in the same community. He produced
evidence that, if released on bond, he would have assistance with
employment, could resume his counseling, and would have support from a
church and the community. Both his wife and a business associate
testified that the defendant would appear at trial. Comparing the bail
amount for similar cases where the defendant's indictment is enhanced,
but the offense was non-violent, the court found this bail amount
excessive. Golden v. State 01-08-00575-CR and 00576-CR
The defendant did not receive ineffective assistance where defense counsel limited the defendant in his testimony on his own behalf during the punishment phase of the trial. Defense counsel stated his concerns on the record that the defendant's testimony would be further evidence against him, given that the defendant had already stated that he had never been near the crime scene or seen the victim before, which was directly contradicted by evidence of his DNA at the crime scene and of the victim's identification of him. Agosto v. State - 01-08-00319-CR
A court-costs provision was valid when the trial court first orally sentenced the defendant to 10 years' imprisonment and then in its written judgment also required him to pay $530 in court costs. Court costs are not punitive. Therefore, that provision did not have to be included in the oral pronouncement of the sentence as a precondition to including it in the trial court's written judgment. Weir v. State - PD-0616-08.
Assault by bodily injury and assault by threat are lesser-included offenses of retaliation by threat of striking. Actual striking can constitute evidence of a threat to strike - assault by threatening to cause imminent bodily injury. The defendant therefore was entitled to lesser-included offense instructions on these offenses. Schmidt v. State - PD-0076-08.
In the defendant's trial for felony DWI, the trial court should have instructed the jury to disregard the State's reference to previous plea negotiations and granted a mistrial. The defendant admitted committing the acts underlying his previous convictions but denied committing the charged offense, stating that was why he had not pled guilty to it. On cross-examination, the prosecutor asked whether the real motivation for not pleading guilty to felony DWI was because there had been no agreement on a plea bargain. From this statement, a reasonable jury could have determined that plea negotiations had occurred, that offers had been made and rejected, and that the defendant's wishes were the major obstacle to reaching a bargain. It also was conceivable that mentioning plea negotiations could mistakenly lead a juror to conclude that the defendant believed himself guilty. Bowley v. State - 07-08-0210-CR.
The trial court insufficiently admonished the defendant of his right to counsel and of the dangers of representing himself during his trial for evading arrest. The court repeatedly and incorrectly used the term "pro bono" instead of "court appointed." The defendant stated to the court that he believed a "free" attorney would not zealously defend him because that attorney would not be paid and the court made no effort to clear up that misconception in the defendant's mind. There was no inquiry into the defendant's indigency when he informed the court that he could not afford to hire an attorney. Because he was not correctly admonished on his right to appointed counsel, his waiver of that right was invalid. Fernandez v. State - 04-07-00461-CR.