Recent Decisions April 5, 2013 San Antonio Bar Association 50th Annual Criminal Law Institute

Recent DecisionsRecent Decisions

April 5, 2013

San Antonio Bar AssociationSan Antonio Bar Association50th Annual50th Annual

Criminal Law InstituteCriminal Law Institute

The Paper• All published decisions from the Court of

Criminal Appeals between March __, 2012 and April 4, 2013.

• And some others.The powerpoint

www.markstevenslaw.com

The talk• My criteria

PagesPages

Motions, Etc Recent Power Point Presentations

ScopeScope

Scope PagesPages

Jury SelectionJury Selection

Unkart v. State, 2012 WL 760798 (Tex. App.–Eastland 2012, pet. granted)

(not designated for publication)

• “praise God, I haven't been charged with a crime. But if I were, then I think I would probably want to get up and tell my side. It's just my nature. I would want to probably say my point of view on the thing or my version of the facts, but that's just me.”

• Okay if the venirepersons did not share his opinion, as long as they could follow this instruction: If the defendant decides not to testify, you cannot refer or allude to that fact during your deliberations.

• The court of appeals reversed anyway, finding that the judge’s remarks vitiated the presumption of innocence and constituted harmful, fundamental error.

No objection

137137

Unkart v. State, 2012 WL 760798 (Tex. App.–Eastland 2012, pet. granted)(not designated for publication)

1. The Court of Appeals misconstrued Blue v. State when it found fundamental error in the trial court's voir dire comments about a defendant's decision whether to testify.

2. Appellant's untimely motion for mistrial and his failure to request an instruction to disregard forfeited any complaint about the trial court's comment.

PDR Granted

137137

Standards of Proof in Texas

No EvidenceNo Evidence

Fuller v. State, 363 S.W. 3d (Tex. Crim. App. 2012)

Probable Probable CauseCause

PreponderancePreponderance

ClearClear

AndAnd

ConvincingConvincing

Beyond A Beyond A Reasonable Reasonable

DoubtDoubt

Easley v. State, 2012 WL 4040798 (Tex. App.-Waco 2012, pet. granted)


Does the trial court commit constitutional or non-constitutional error when it prevents counsel from

asking prospective jurors to compare and contrast the different standards of

proof in Texas?

138138

DWIDWI

Fienen v. State, 390 S.W.3d 328(Tex. Crim. App. 2012)

• Remember Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App.1993)?

• So much for almost 20 years of precedent. Erdman is overruled “because of its flawed reasoning and the flawed caselaw that has resulted from it. . . .”.

• When determining whether DWI suspects acted voluntarily, courts are to look at the totality of the circumstances. Law-enforcement officers may not misrepresent the law, but neither are they required to simply repeat the statutory warnings.

• Texas driver’s have no legal right to refuse, but also “a person retains an absolute right (subject to certain exceptions not relevant here) to refuse a test.”

3838

Krause v. State, 368 S.W.3d 863 (Tex. App.–Houston [14 Dist.]

2012, pet. granted)

• TEX. TRANSP. CODE § 724.017 specifically excludes “emergency services medical personnel.”

Are EMTs statutorily unqualified to take mandatory, involuntary, warrantless blood

draws?

3535

State’s PDR Granted

Sanchez v. State, 365 S.W.3d 681 (Tex. Crim. App. 2012)

• A statutory county court judge in Montgomery County had no jurisdiction to issue a search warrant for the blood of one arrested in Harris County.

3535

ExpertsExperts

Blasdell v. State, 384 S.W.3d 824 (Tex. Crim. App. 2012)

• Reversible error to exclude testimony from forensic psychologist on “weapons focus effect” because he would not commit that this had in fact impacted the eyewitness.

• “No expert could testify with significantly greater certainty that an eyewitness’s perception was in fact impaired by the threatening presence of a gun, but it is no less valuable to educate a jury of the realistic potential, if that has been empirically shown to exist.

4040

Olsen v. State, 2012 WL 1438475 (Tex. Crim. App. 2012)


• The trial court erred when it excluded the defense’s expert testimony about the harmful effects that an inappropriate relationship with an older female had had on the defendant.

4141

Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012)

• Bayardo at trial: short-fall claim is false and impossible.

• Bayardo at writ: no way to know.

• Subsequent writ applicant proved by clear and convincing evidence that, in light of new biomechanical evidence, no reasonable juror would have convicted her of capital murder.

2828

Ex Parte Jimenez, 364 S.W. 3d 866 (Tex. Crim. App. 2012) 99

“this case depended primarily on expert testimony.”• Defense “expert” Dr. Ira Kanfer melted down on cross-

examination.• During lunch he was overheard saying that the

prosecutors could go “fuck themselves.”• He admitted saying this on re-cross: “That’s an exactly

correct quote.”• Did the defense’s expert undermine his own unpersuasive

testimony by telling the prosecutors what they could do to themselves?

Ake error was forfeited where trial counsel’s request for additional experts was not presented to the trial court in

writing and adequately supported by the facts.

No.

Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012)

• Counsel's duty is to investigate and, if an expert is necessary to present the defense, to obtain a "competent" expert; not the "best," or the "most highly qualified," and certainly not the most "pompous, bombastic, or incomprehensible expert in the nation."

99

1212

• trial counsel failed to present available evidence that electronic monitoring records and DNA showed that the defendant could not have committed an extraneous offense offered at the punishment phase.

• “We cannot imagine a tactical reason for not presenting evidence of the electronic monitoring report or the DNA exclusion.”

Ex Parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012)

Somers v. State, 368 S.W.3d 528 (Tex. Crim. App. 2012)

• EMIT tests are reliable enough to be admitted with or without confirmation.

4242

Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012)

• “For more than sixty years, we have not once wavered from the proposition that the results of polygraph examinations are inadmissible over proper objection because the tests are unreliable.”

• “Rule 703 is not a conduit for admitting opinions based on “scientific, technical, or other specialized knowledge” that would not meet Rule 702's reliability requirement. If the methodology or data underlying an expert's opinion would not survive the scrutiny of a Rule 702 reliability analysis, Rule 703 does not render the opinion admissible.”

• The court was not asked to decide whether probationers could be required to take polygraphs. “What we decide is that any such requirement does not justify admitting legally unreliable evidence.

104104

More questions about the use of polygraphs during motions to revoke

probation.

Dansby v. State, 2012 WL 1150530 (Tex. App.-Dallas 2012, pet. granted)(not

designated for publication)

•“Do you have any other victims.”

•Refusal Discharge

PDR Granted

5th Amendment violation?

ExpertsExperts• What’s going on with experts?

• Trial judges are going to allow more expert testimony and scientific evidence.

• That rule will work both ways.

• Deal with it.

• Make sure you know how to get the experts you need.

• Polygraph evidence is not coming in.

SexSex

Texas Style

Fleming v. State, 341 S.W.3d 415

(Tex. Crim. App. 2011)

Does the Texas Constitution require proof of a culpable mental state to “statutory rape?”

•The state constitutional question was properly briefed in the court of appeals.

•Remanded to the court of appeals to decide whether the state constitution “provides greater, lesser, or the same protections as it federal analog.”

114114

Fleming is back

Fleming v. State, 376 S.W.3d 854 (Tex. App.-Fort Worth 2012, pet. granted)

•Does Texas’s statutory rape statute violate Federal Due Process or State Due Course of Law for failing to require the state to prove a culpable mental state relating to the complainant’s age. •Does Texas’s statutory rape statute violate Federal Due Process or State Due Course of Law for failing to recognize an affirmative defense based on the defendant’s reasonable belief that the complainant was 17 or older?

114114

Defendant’s Motion To Set Aside The Indictment

Fleming’s PDR filed by

Richard Gladden

Denton, Texas

114114

Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012)

• “We hold that, viewing the totality of the evidence and inferences in a light most favorable to the verdict, the jury could have reasonably inferred that appellant knowingly had care, custody, control, or management of the ten pornographic images of unknown children found on the free space of his computer.”

116116

Crabtree v. State, 389 S.W.3d 820(Tex. Crim. App. 2012)

• Article 62.003 clearly requires that the Texas Department of Public Safety make a determination that a sex offense from another state is substantially similar to a Texas offense before registration is required in Texas, and because no such determination was made here, the evidence was legally insufficient to support the conviction.

• “The wisdom of a particular statute is outside this Court’s purview.”

114114

State v. Rosseau, 2011 WL 6207037 (Tex. App.–San Antonio 2011, pet. granted)

• Sexual assault is ordinarily a second degree felony, but it is a first degree felony “if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.” Tex. Penal Code § 22.011(f).

• Does Texas really hate the polygamists so bad that it made being married a basis for turning second degree sexual assault into a first degree crime?

118118

Search and SeizureSearch and Seizure

Rare custodyState v. Ortiz, 382 S.W.3d 367

(Tex. Crim. App. 2012)•This routine traffic stop escalated into a custodial detention because the objective circumstances would have caused a reasonable person to perceive that the detention was restraint on his movement comparable to a formal arrest.

3232

Mahaffey v. State, 364 S.W.3d 908


•The law does not require a driver to signal a “lane” change when the lane he is driving in ends, and he merges into the remaining lane.

8181

Miller v. State, 2012 WL 5869416


•The emergency doctrine did not authorize the police to remain inside appellant’s apartment, and although their initial entry was consensual, appellant revoked her consent before the police saw contraband in “plain view.”

8282

Lothrop v. State, 372 S.W.3d 187


•Driving on the improved shoulder to pass another car that was slowing did not violate the Transportation Code, and did not give the officer reasonable suspicion to stop the driver.

8585

State v. Duarte, 389 S.W.3d 349


•Here, a tip by a confidential informant of unknown reliability, standing virtually alone, did not provide a sufficient basis for a magistrate's probable cause determination.”

•Although substantial deference must be given to magistrates who issue warrants, and although probable cause is a “flexible, nondemanding standard . . . [a] magistrate should not be a rubber stamp,” and to ensure against this, “courts must continue to conscientiously review the sufficiency of affidavits on which warrants are

issued.”

8989

Tucker v. State, 369 S.W.3d 179


•Memo to trial judges: Even though appellate courts must review your rulings on historical facts deferentially-even when those facts are on video – you still must view the video before overruling a defendant’s motion to suppress where there is a conflict as to whether consent was voluntarily given.

9191

Clay v. State, 2013 WL 85375

(Tex. Crim. App. 2013)•Although our legislature has not expressly authorized search warrants to be sworn out over the telephone, and not in the physical presence of the magistrate, neither has it prohibited such practice, and until the legislature addresses the question, the courts will decide legality on a case-by-case basis; the circumstances of the telephonic warrant application in this case sufficed “to satisfy the solemnizing function of the oath requirement under Article 18.01(b).”

9696

Aguirre v. State, 2013 WL 163450


(Cochran, J., concurring in the refusal of petition for review)

•Judge Cochran strongly recommends that the one who loses a motion to suppress should always request findings of fact.•‘For want of a nail the shoe was lost.’ For want of a factual finding, the appeal was lost.” •Even though the testimony was conflicting, counsel failed to request findings, and that this “failure sealed appellant’s fate on appeal.” •Absent specific findings, the appellate court’s hands are tied: “Factual findings can only help the losing party on appeal.”

9797

Aguirre v. State, 2013 WL 163450


(Cochran, J., concurring in the refusal of petition for review)

•Such a factual finding might pass the “red face test” if phrased very carefully. Unfortunately for appellant, with no explicit factual findings it is almost impossible for him to overcome the extremely deferential standard of review that we use for the trial judge's implicit factual findings.

9797

Insufficient EvidenceInsufficient Evidence

A few cases• Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012)

(evidence insufficient to support conviction for endangering a child)

• Louis v. State, 2012 WL 2007632 (Tex. Crim. App. 2012)(although there was proof that the defendant disciplined his son “to an excessive, horrific, and cruel degree,” the evidence insufficient to prove that he intentionally or knowingly caused his death)

• Gross v. State, 380 S.W.3d 181 (Tex. Crim. App. 2012)(juries can draw reasonable inferences from the evidence, but convictions may not be based on speculation; mere presence and flight are insufficient, standing alone, to prove guilt as a party.

122-33122-33

A few more cases

• Daugherty v. State, 387 S.W.3d 654 (Tex. Crim. App. 2013)(contractors beware, and get your money up front: Theft of services by deception requires proof that deception before the services are rendered)

• Britain v. State, 2012 WL 6028965 (Tex. App.-San Antonio 2012) & Brasse v. State, 2012 WL 6028960 (Tex. App.-San Antonio 2012)(Although the prosecutors were unable to recognize the difference between a “tragic incident” and criminal recklessness, the court of appeals was)

• Winfrey v. State, 2013 WL 690861 (Tex. Crim. App. 2013)(human scent discrimination, while maybe raising a “strong suspicion,” is insufficient to prove guilt beyond a reasonable doubt)

122-33122-33

Preserving ErrorPreserving Error

Jacobson v. State, 2013 WL 440069 (Tex. Crim. App. 2013)

• DeGarmo is given “the burial it so richly deserves.”

Like this . . .Everitt v. State, 2013 WL 440066

(Tex. Crim. App. 2013)•The court of appeals erred when it parsed the defendant’s trial objections, and utilized “the kind of hyper-technical analysis” repeatedly rejected by the court of criminal appeals.

Cook v. State, 2013 WL 331342 (Tex. Crim. App. 2013)•Defendant’s motion for mistrial really meant “stop,” and was enough to inform everyone what he wanted, and was “as good an objection as any under these circumstances.”

Bryant v. State, 2012 WL 5232147 (Tex. Crim. App. 2012)•“need not spout ‘magic words' or recite a specific statute to preserve an issue’ as long as the basis of his complaint is evident to the trial court.”

Not like this . . .Brewer v. State, 367 S.W.3d 251


Clark v. State, 365 S.W.3d 333

(Tex. Crim. App. 2012)•There is nothing in the record here suggesting that the trial court or the prosecutor understood Clark to be making due process or fair-trial objections. •The trial court is entitled to “know when it is being asked to make a constitutional ruling, because constitutional error is subject to much stricter harm analysis on appeal.”

What about “no objection”?Thomas v. State, 2012 WL 3762479

(Tex. App.-Amarillo 2012, pet. granted)

•Motion to suppress denied.

•State offers lab report at punishment phase of plea proceedings.

•“I don't have any objection to that, Your Honor. Mr. Martindale has been kind enough to let me see them before this afternoon and we have no objections.”

Effective Assistance of Effective Assistance of CounselCounsel

Is the statute of limitations for aggravated assault two years or

three, and could you be ineffective for not knowing?

State v. Bennett, 2012 WL 11181 (Tex. App.-Dallas 2012, pet. granted)(not

designated for publication)

Ex parte De Los Reyes, 2013 WL 1136517 (Tex. Crim. App. 2013)

• Padilla v. Kentucky: “counsel must inform her client whether his plea carries a risk of deportation.”

• Chaidez v. United States: Padilla does not apply retroactively.

• Although the court of criminal appeals could have held that Padilla applied retroactively under state habeas law, it chose to follow lockstep with the United States Supreme Court.

Martinez v. State, 2012 WL 1868492 (Tex. Crim. App. 2012)(not designated for publication)

• Can trial counsel properly advise his client that he could be deported for pleading no contest to an aggravated felony when deportation is automatic upon conviction?

Who owns the file?

In re McCann and Turner, 2013 WL ________, No. 76, 998 & 76, 999 (Tex.

Crim. App. March 20, 2013)(not designated for publication)

HabeasHabeas

Ex parte Chavez, 371 S.W.3d 200(Tex. Crim. App. 2012)

• The court was authorized to consider applicant’s subsequent writ because the legal claim – the unknowing use of false testimony – was unavailable to him when he filed his first writ; and, although applicant was able to show that two witnesses falsely testified against him at his trial, he could not show that this testimony was material, that is that it affected the judgment of the jury.

Ex Parte Gaither, 387 S.W.3d 643 (Tex. Crim. App. 2012)

• Gaither falsely swore in his writ that his plea had been involuntary because his trial lawyer promised his sentences would be served concurrently.

• The court of criminal appeals:– Denied relief– Cited Gaither for abuse of the writ– And referred his case to the appropriate

prosecuting agency for perjury prosecution

Ex Parte Parrott, 2013 WL 85370 (Tex. Crim. App. 2013)

• Although the defendant’s sentence was illegally enhanced with a state jail felony, he could not show harm, since it was undisputed that he had other felony convictions that the state could have relied on for enhancement, other than the state jail felony that it actually used;

• “Granting relief to a defendant who is only fictionally harmed is contrary to the type of relief for which the great writ, an extraordinary remedy, was intended.”

Stanley v. Bell County District Clerk, 2012 WL 6162692


• Tex. Rule Appellate Proc. 73.2, items 5 & 17

• Stanley used the correct form and “appears to have substantially complied with the instructions”

• The court granted mandamus relief, ordering the clerk to file Stanley’s writs.

Ex parte Milner, 2013 WL 512759 (Tex. Crim. App. 2013)

• The court had jurisdiction to consider this claim in a subsequent writ because of actual innocence, specifically, no rational juror could have found defendant guilty of both offenses without violating the federal prohibition against double jeopardy.

Some Other Interesting Some Other Interesting IssuesIssues

Castillo v. State, 369 S.W.3d 196 (Tex. Crim. App. 2012)

• To benefit from the “mailbox rule,” use the post office, not a private courier.

Blackshear v. State, 385 S.W.3d 589 (Tex. Crim. App. 2012)

• The court wants to make it perfectly clear that a defendant fails to preserve error if his motion for continuance is not written and sworn to, and the appellate courts must find waiver even though the state does not complain.

State v. Meru, 2012 WL 5292924 (Tex. App.-Corpus Christi 2012, pet.

granted)(not designated for publication)

• Is criminal trespass a lesser included offense of burglary?

Ex parte Maxwell, 2013 WL 458168 (Tex. Crim. App. 2013


• Is the law that prohibits mandatory life without parole against juveniles retroactive?

• If so, what remedy applies?

Ex Parte Reinke, 370 S.W.3d 387 (Tex. Crim. App. 2012)

• When determining how long an incompetent defendant can be committed, “the maximum term provided by law for the offense for which the defendant was to be tried” is not to be increased by sentencing enhancements.

Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012)

• Pre-arrest, pre-Miranda silence can be used as substantive evidence of guilt even if the defendant does not testify.

• Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Cert. granted Salinas v. Texas, No. 12-246

Guilty pleas are involuntary when:

• The four year sentence agreed to in plea bargain was more than was authorized for a state jail felony. Ex parte White, 2012 WL1142353 (Tex. Crim. App. 2012)(not designated for publication)

• Defendant was incorrectly informed that he would not have to register as a sex offender. Ex parte Price, 2012 WL 4834109 (Tex. Crim. App. 2012)(not designated for publication)

In re State ex rel. Tharp, 2012 WL 5499867 (Tex. Crim. App. 2012)

• When a defendant pleads guilty in a felony case, the “default option” is for the jury to decide punishment in a “unitary” proceeding; the “default option” is avoided only if the jury is validly waived, and this requires the state’s consent.

Rubio v. State, 2012 WL 4833809 (Tex. Crim. App. 2012)

(not designated for publication)• The insanity defense focuses on whether the

accused understood the nature of his action and whether he knew he should not do it. In the context of the insanity defense, the word “wrong” means illegal. If the accused knows that his conduct is “illegal” by societal standards, then he understands that his conduct is wrong, even if, due to a mental disease or defect, he thinks his conduct is morally justified.

Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012)

• For purposes of issue preclusion, the Travis County and Brazos County Attorneys are the same parties; therefore, the theft prosecution in Travis County was barred by res judicata after the state tried but failed to prove it by a preponderance of the evidence in a motion to revoke in Brazos County.

• Also, good bye and good riddance to the ridiculous notion that probation revocation hearings are administrative proceedings; “they are judicial proceedings, to be governed by the rules established to govern judicial proceedings.”

Ex parte Chaddock, 369 S.W.3d 880 (Tex. Crim. App. 2012)

• Defendant was separately tried twice for committing the same crime against the same person – organized crime and aggravated assault.

• Multiple punishments for the same crime are permissible long as the offenses are tried together.

• The question squarely presented in this case – and not previously answered – is whether multiple trials are authorized for the same offense.

• Successive prosecutions subject a defendant to “embarrassment, expense and ordeal” and compel him “to live in a continuing state of anxiety and insecurity," and create "a risk of conviction through sheer governmental perseverance."

Scales v. State, 380 S.W.3d 780 (Tex. Crim. App. 2012)

• A juror is not disabled under article 33.011 and may not be removed just because she has made up her mind and refuses to change it.

Yzaguirre v. State, 367 S.W.3d 927 (Tex. App.–Texarkana 2012)

(pet. granted)

• “Under the Penal Code, is an instruction on the law of parties necessary?”

• Say what?

• Bruce Anton

McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App. 2012)

• Rule 606(b) did not prevent the defense from obtaining affidavits and calling jurors to testify at a motion for new trial hearing concerning internet research conducted by a juror on the effect of date rape drugs in this sexual assault case.

In re State ex rel. Weeks, 2013 WL 163460


• Mandamus relief granted in mid-trial preventing trial judge from giving certain instructions to the jury on the law of parties in a capital murder trial.

• Judge Price, joined by Judge Womack, dissented: “Where will it end?

Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012)

• Trial in a prison chapel is not the “public” trial envisioned by the Sixth Amendment.

Practice Tip

Can you commit aggravated robbery by threatening the complainant with a deadly weapon when the complainant

never sees the weapon?

Boston v. State, 373 S.W.3d 832 (Tex. App.–Austin 2012, pet. granted)

The court of criminal appeals granted Boston’s petition for discretionary review to decide this

issue: “The Court of Appeals erred when it held that the victim was threatened or placed in fear of imminent bodily injury or death when the evidence

showed that no threat was perceived by the victim.”

Does everyone who commits criminally negligent homicide

necessarily use or exhibit a deadly weapon, and, if so, is this a problem?

Chambless v. State, 368 S.W.3d 785 (Tex. App.–Austin 2012, pet.

granted)

Gilley v. State, 383 S.W.3d 301 (Tex. App.–Fort Worth 2012, pet.

granted)

• Does the trial court violate a defendant’s Sixth Amendment right to counsel by excluding counsel from a Rule 601 hearing to determine the competency of a child witness?

2020

Documents

Recent Decisions April 5, 2013 San Antonio Bar Association 50th Annual Criminal Law Institute