Weekly Case Summaries: April 11, 2014

Texas Court of Criminal Appeals

Hanna v. State

No. PD-0876-13                     4/9/14

Issue:

May restitution be ordered in a DWI case to a victim who is not named in the charging instrument?

Holding:

Yes. However, the State must prove that the defendant’s commission of the offense was the direct cause of the harm. In this case, the State did not meet that burden. Read the opinion. 

Dissent (Keller, P.J.):

The circumstantial evidence in this case was sufficient to prove the defendant was the direct cause of the harm. Read the dissent.

Commentary:

This may be a case in which the State lost the battle, but won the war. It is now crystal clear that a defendant can be required to pay restitution to a victim of his crime, even if his crime is a so-called “victimless” crime like driving while intoxicated. That is very significant. The second part of the court’s holding is more troubling—that the State failed to prove that the defendant’s intoxicated driving caused the damage to the utility pole that he struck with his vehicle. Really? In justifying this portion of the court’s holding the majority opinion comes very close to saying the State did not prove that the defendant was intoxicated while he was driving (which is clearly inconsistent with prior holdings on this matter). Judge Keller’s dissenting opinion, albeit brief, got that issue correct.

Yazdchi v. State

No. PD-0007-13                     4/9/14

No. PD-0008-13

Issue:

Was the defendant eligible for felony community supervision after his previous conviction, set aside by judicial clemency, was resurrected by a new conviction?

Holding:

No. The 2010 conviction in this case revived the 2000 conviction that had been set aside for the limited purpose of probation eligibility. Read the opinion.

Concurrence (Price, J.):

The holding is correct, but the majority oversimplifies the reading of a very ambiguous statute (CCP art. 42.12, §20). Read the concurrence

Dissent (Johnson, J.):

Requiring that a prior community supervision is to be made known to the judge if the defendant is again convicted indicates the legislature intended that the prior offense be considered only at punishment. Read the dissent.

Commentary:

The majority opinion is a rather involved exercise in statutory construction, but this should be a very helpful decision for prosecutors. You may have always believed that a defendant was not eligible for probation if he had previously served a term of “regular” probation, even if he had served that previous term successfully and the trial judge had then taken the extra step of relieving the defendant of all of the liabilities of that prior conviction through something commonly known as a “set aside.” Now we have a decision that clearly says such a defendant is not eligible for probation because the statute carves out a limited exception in cases of future probation eligibility.

Pierson v. State

No. PD-0613-13                     4/9/14

Issue:

When the trial judge granted the State’s motion for a mistrial after defense counsel asked the victim an impermissible impeachment question, did the defendant’s subsequent conviction on retrial constitute double jeopardy?

Holding:

No. Impeachment on a collateral matter is improper, and when the defense attorney questioned the victim regarding her CAC video allegation that the defendant had molested another child, it prejudiced the jury in a way that an instruction to disregard could not cure. That prejudice amounted to manifest necessity for a mistrial, and jeopardy did not attach. Read the opinion.

Concurrence (Price, J.):

Had the defense laid the proper predicate, the question may have been admissible as impeachment by proof of a prior false accusation. Read the concurrence.

Commentary:

Appellate prosecutors cringe when a trial prosecutor has moved for a mistrial, even more so when the trial prosecutor has moved for a mistrial over the defendant’s objection. And when the trial judge GRANTS that motion for mistrial, it makes appellate prosecutors feel a little sick to their stomachs. That is because the only way that the State can again prosecute the defendant is if there was “manifest necessity” for the mistrial. If there was no “manifest necessity,” double jeopardy prevents a retrial. But here is a case where the prosecutor strategy actually worked. What a wonderful job by the State at trial and then later on appeal. This should be a very helpful decision in showing that trial judges do in fact have some discretion in finding that there was “manifest necessity” for a mistrial that allows a retrial of the defendant. 

Garcia v. State

No. PD-0646-13                     4/9/14

Issue:

Must the record contain a waiver colloquy between the trial judge and a defendant before an appellate court may conclude that the defendant waived his right to an interpreter?

Holding:

No, as long as the record otherwise affirmatively reflects that a waiver occurred. Read the opinion.

Dissent (Alcala, J.):

The majority is correct that a waiver can be evidenced from the record, but the record in this case did not indicate one. Read the dissent.

Commentary:

Do not read too much into this decision. This decision is primarily of aid to appellate prosecutors and should not give you guidance as to whether a defendant is entitled to an interpreter. The first two sentences of the majority opinion are significant: “Appellant is a native Spanish speaker who does not understand English. The trial judge was aware of this fact at trial but did not appoint an interpreter.” This should tell you that the result of this decision could have very easily gone the other way. If you want to see how easily, read Ex parte Cockrell, decided by the court back on March 12. 

Texas Court of Appeals

Sutherland v. State

No. 07-12-00289-CR              4/7/14

Issue:

Does implied consent provide an exception to the warrant requirement for a warrantless blood draw?

Holding:

No. By vacating and remanding a case from the San Antonio court of appeals, Aviles v. State, 385 S.W.3d 110, the United States Supreme Court has rejected any position that would treat Transportation Code §724.012(b)(3)(B) as an exception to the Fourth Amendment. To the extent that §724.012(b)(3)(B) can be read to permit a warrantless seizure of a suspect’s blood without exigent circumstances or consent, it violates the Fourth Amendment’s warrant requirement. Read the opinion.

Commentary:

The State might have lost by way of a straightforward application of Missouri v. McNeely (which the court performs on the last couple of pages of its opinion). But the court is going way, way too far to say that Missouri v. McNeely essentially invalidated the Texas statute based solely on the one-paragraph vacate-and-remand in Aviles v. State. This decision is squarely in conflict with the decision of the First Court of Appeals in Perez v. State, decided on March 11; the decision of the Texarkana Court of Appeals in Reeder v. State, decided on January 8; the decision of the Corpus Christi Court of Appeals in Smith v. State, decided on October 31; and the decision of the Fourteenth Court of Appeals in Douds v. State, decided on October 15. Two of those decisions (Reeder and Douds) are on rehearing, and the State may ultimately lose the implied-consent argument under application or extension of Missouri v. McNeely. But to say that the State should lose that argument based solely upon a one-paragraph vacate-and-remand by the United States Supreme Court does not do justice to the controversy. Do not spend too much time worrying about this decision. The dispute will be decided soon enough by a higher court (probably the Court of Criminal Appeals), and that court will take longer than one paragraph to analyze the issue.

De La Fuente v. State

No. 04-13-00144-CR                          4/2/14

Issue:

Was the evidence sufficient to convict the defendant as a party to murder when there was no evidence showing he knew the murderer had a weapon and no evidence the defendant knew a murder was planned?

Holding:

Yes. Parties are often convicted on circumstantial and not direct evidence. Testimony that the defendant drove the murderer to the scene where the shooting later occurred, may have actually contacted the victim to set up the meeting where the murder occurred, and then attempted to cover up the murder provided sufficient evidence to convict the defendant as a party. Read the opinion. Read the opinion.

Commentary:

If this decision holds up on discretionary review, great job by the State in putting several pieces of evidence together to show the defendant’s guilt as a party to this murder. If you have a similar case in which you wish to hold the driver of a “getaway” vehicle criminally responsible for another’s commission of murder, review this decision carefully to see what evidence will show the defendant’s guilt.

Reynolds v. State

No. 04-13-00176-CR              4/2/14

Issue:

When the trial court ordered the defendant to consecutively serve eight 10-year sentences for possession of more than 12,000 images of child pornography, was the cumulative sentence so disproportionate to the offense that it constituted cruel and unusual punishment in violation of the Eighth Amendment?

Holding:

No. Evidence that the defendant had obtained more than 3,000 of those images through personal contact with children; took extensive steps to hide his actions after being caught a first time; and served as a camp counselor, camp director, and youth minister all precluded the appeals court from classifying the sentence as disproportionate to the conduct. Read the opinion.

Commentary:

Show this decision to the trial judge in appropriate consecutive-sentence cases prosecuted under Penal Code §3.03(b). This is a good analysis—and rejection—of the disproportionality argument that the defendant will inevitably raise.

State v. Gammill

No. 05-13-00703-CR              4/1/14

Issue:

Does use of the word “and” in Transportation Code §547.302 mean drivers must use headlights only: 1) when it is nighttime and 2) visibility is less than 1,000 feet?

Holding:

No. Although the terms “and” and “or” are not interchangeable in general, they may be interpreted as synonymous when necessary to effectuate the legislature’s intent or to prevent an ambiguity, absurdity, or mistake. It would be absurd to interpret the statute as requiring headlights only at night and when visibility is less than 1,000 feet. Read the opinion.

Commentary:

Good try, defense. So now we know we have to drive with our headlights on at night. Be sure to write that down so you remember it.

Teamer v. State

No. 14-12-00760-CR              4/8/14

Issue:

Was the evidence sufficient to support the defendant’s conviction for criminal trespass although the State’s information used “and” instead of “or” to allege alternative methods of proving certain elements of the offense, yet the State did not prove each alternative method?

Holding:

Yes. The sufficiency of the evidence is properly measured against a disjunctive framing of the offense, and the State provided sufficient evidence to prove at least one method of criminal trespass beyond a reasonable doubt based on allegations in the information. Read the opinion.

Commentary:

So if you need yet another case that holds that the State is permitted to plead in the conjunctive (“and”) and charge in the disjunctive (“or”), here it is. This case is unique because the trial judge made the change to the jury charge after it had been submitted to the jurors. But the sufficiency of the evidence was saved by the now-familiar “hypothetically correct jury charge.” Do not let this relieve you of the responsibility to make sure the jury charge is correct.

Office of the Attorney General

Opinion for the 83rd District Attorney

GA-1048                                 4/4/2014

Issues:

1)      Does Art. 38.01 of the Code of Criminal Procedure or Attorney General Opinion GA-0866 limit the investigative authority of the Science Advisory Workgroup or the State Fire Marshall’s Office?

2)      Does Ch. 417, Government Code or the previously cited AG opinion prohibit the State Fire Marshal’s Office from investigating and making findings on closed arson cases?

Opinion:

No on both issues. Read the opinion.