Weekly Case Summaries: April 12, 2013

Court of Criminal Appeals

Ex parte Moore

No. AP-76,817        4/10/13

Issue:

Was the defendant denied effective assistance of counsel when his attorney filed a pretrial motion to suppress, arguing evidence was obtained as a result of a search based upon an invalid warrant, but failed to preserve the issue at trial?

Holding:

No. The attorney’s performance was deficient because his failure to object to the introduction of the evidence at trial was not a valid trial strategy, but prejudice was not shown because the defendant did not have a reasonable expectation of privacy in the hotel room where the evidence was found. There is no evidence the defendant was the registered guest of the room or had any property or possessory interest in the room.
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Commentary:

A useful case in your habeas corpus toolbox. Failure to preserve a claim will not result in a new trial if the claim lacks merit. Defense counsel will look more effective, though, if they forego waiving a claim they earlier preserved by saying “no objection” when the evidence is offered before the jury.

Herring v. State

No. PD-0285-12        4/10/13

Issue:

Does Family Code §51.095(a)(1)(A) permit law enforcement officers to be present when a juvenile is initially read his rights by a magistrate?

Holding:

Yes. Section 51.095(a)(1)(a) contains no explicit requirement that law enforcement officers be absent when the statutory rights are read, unlike subsections 51.095(a)(1)(B)(i) and 51.095(a)(1)(D), which expressly prohibit the presence of law enforcement officers.
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Commentary:

A straightforward application of the statute. The presence of the officers during warnings did not render this statement invalid. However, the presence of officers during the warnings might be useful to the defense to support a claim that the defendant’s waiver was involuntary, i.e. “I was scared by the judge and the two big, mean police officers standing there, so I agreed to talk…” Also, the fact that officers must be excluded at other times in the process might make the better practice to just stay away except when they are needed to ensure the safety of the magistrate under section 51.095(a)(1)(D).

Turrubiate v. State

No. PD-0388-12        4/10/13

Issue:

Does probable cause to believe that illegal drugs are in a home, coupled with an odor of marijuana emanating from the home and a police officer making his presence known to its occupants, justify warrantless entry under the exigent circumstances exception to the warrant requirement?

Holding:

No. There must also be some proof of imminent destruction based on affirmative conduct of the occupants before the officers may enter a home without a warrant. The five factors for consideration established in McNairy v. State, 835 S.W.2d 101 (Tex. Crim. App. 1991), are no longer adequate.
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Dissent (Keller, P.J.):

It was reasonable for the officer in this case to believe that the defendant was aware police were “on his trail” and would attempt to remove or destroy the drugs.
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Commentary:

The defendant’s knowledge that police know about his dope is insufficient, standing alone, to justify a warrantless search. Remind your officers that they can take steps to preserve the status quo, i.e. detain the occupants, while they obtain a warrant.

Texas Courts of Appeal

Kupferer v. State

No. 01-11-00619-CR        4/4/13

Issue:

After a defendant’s arrest and receipt of the Miranda warnings, was his declaration that, “[t]o tell you the truth, I really don’t want to talk about it, but I mean…” an unambiguous invocation of his right to remain silent?

Holding:

No. The words “but I mean” qualified the statement, so the defendant “clearly signaled indecision or ambivalence toward waiving his rights.” He did not unambiguously express a desire to remain silent; therefore, the police were permitted to ask him clarifying questions.
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Commentary:

Saying you don’t want to talk about it—but continuing to talk about it—is not an invocation of silence. This officer did well by listening to what the defendant said and following up appropriately after his ambiguous statements.

Allen v. State

No. 06-12-00166-CR        4/3/13

Issue:

Was the evidence sufficient to support the court costs?

Holding:

Yes and no. While—as the State conceded—the greater portion of the costs was not supported, supplementation of the record demonstrated that the smaller portion was supported. The court was “not aware of any authority limiting the district clerk’s jurisdiction to prepare the bill of costs after an appellate record has been filed.”
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Commentary:

In some districts, the propriety of court costs has been an ongoing issue over that last few years, but this case—along with Cardenas, No. 01-11-01123-CR (Tex. App. – Houston [1st Dist.]) (summarized March 28)--now provide a mechanism for relief.

Vasquez v. State

No. 14-12-00096-CR        3/28/13

Issue:

Did the trial court wrongly admit a videotaped recording of a defendant’s custodial interrogation where the police employed the impermissible “question-first, warn-later” technique?

Holding:

Yes. 1) Despite the officer stating on the videotape recording, “I’m going to read your rights to you like I did a little earlier,” there was no evidence that the officers actually gave the defendant Miranda warnings before he confessed the first time, and 2) the State failed to present any evidence that the two-step interrogation was not deliberately employed to undermine the Miranda warnings. The interrogation technique violated Missouri v. Seibert, 542 U.S. 600 (2003), and Carter v. State, 309 S.W.3d 31 (Tex. Crim. App. 2010). The error was not harmless, so the court of appeals ordered a new trial.
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Commentary:

There are some tough lessons to be learned here. First, the officers apparently had access to an interrogation room with video but did not use it until late in the game. For all we know, they all properly warned the defendant under Miranda and obtained a waiver. But it is not recorded, and they did not testify. Thus, the State could not prove that the improper “question-first” technique was not utilized. It is not unheard of for defendants to receive warnings from multiple officers on multiple occasions. If you have a case where the defendant claims he was interrogated without warnings prior to what otherwise appears to be a valid statement, you had best talk with each officer who handled the defendant at the time in question.

Texas Attorney General

Request from Bexar County Criminal District Attorney

No. RQ-1118-GA        4/2/13

Issue:

Does advertising by a bail bond licensee through an exclusive arrangement with a magazine that is distributed directly to pretrial detainees in the county jail constitute unlawful “solicitation” in violation of Occupations Code §1704.304(c)?
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Request from Brazoria County Criminal District Attorney

RQ-1119-GA        4/4/13

Issue:

May the custodian of physical records and files in a juvenile case destroy the “hard copy” original paper records and files at any time if that information has been duplicated and stored in a computer or other electronic storage media under Family Code §58.071?
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