Weekly Case Summaries: April 19, 2013

Supreme Court

Missouri v. McNeely

No. 11-1425        4/17/13 (8-1)

Issue:

Does the inevitable dissipation of alcohol in blood alone constitute an automatic exigency to support a non-consensual, warrantless blood test during a DWI investigation?

Holding (Sotomayor, J.):

No, but—depending on the “totality of the circumstances” in a particular case—an exigency may develop. Otherwise, a warrant is required.
Read opinion

Concurring and dissenting (Roberts, C.J., Breyer, & Alito, J.J.):

The totality of the circumstances test is fine in general, but drunk-driving cases are a discrete class, and the court should provide more guidance.

Dissenting (Thomas, J.): 

Yes. “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance.”

Commentary:

This decision profoundly affects statutory blood draws in Texas. Expect motions to suppress in pending intoxication manslaughter and intoxication assault cases if you have blood draws performed pursuant to the statute rather than a warrant.

Court of Criminal Appeals

In re Daniel

No. AP-76,959        4/17/13

Issue:

Is the applicant entitled to mandamus relief because the district clerk unilaterally assessed $7,945 in reimbursement fees for court-appointed counsel nine years after judgment was entered in the applicant’s forgery of a check case?

Holding:

Yes. Although the petition was submitted under CCP art. 11.07, the court looked to the substance of the application and found mandamus relief appropriate. There is no other remedy available because time for direct appeal has passed, the clerk’s bill of costs is not an appealable order, and the claim is not a cognizable issue for habeas purposes. The applicant was clearly entitled to relief because the trial court made no finding under CCP art. 26.05(g) that the applicant must reimburse the State for the cost of his appointed attorney.
Read opinion

Commentary:

I expect to see more opinions like this as more counties try to cure their budgetary woes by increased cost collections from criminal defendants.

Burt v. State

No. PD-1280-11        4/17/13

Issue:

Did the defendant forfeit appellate review of his restitution claims because he failed to object in the trial court?

Holding:

No. The defendant had no opportunity to object because the oral pronouncement of the court did not include restitution, but the written judgment entered one day later did. He could not have known at the sentencing hearing that the written judgment would differ, and his motion for new trial filed on the same day as the oral pronouncement was denied.
Read opinion

Dissent (Keller, P.J.):

The defendant could have asked the trial court to rescind the order denying the motion for new trial and filed an amended motion for new trial.
Read dissent

Commentary:

The best practice is for the court to determine sentence, fine, restitution, and stacking and assess everything in one proceeding. Anything else opens up a number of issues best avoided.

Jones v. State

Nos. PD-0282-12 & PD-0283-12        4/17/13

Issue:

Did the defendant’s conviction for fraudulent use or possession of identifying information under Penal Code §32.51 violate the doctrine of in pari materia because it conflicts with the statute defining the offense of failure to identify, Penal Code §38.02?

Holding:

No. PC §32.51 is meant to prevent ID theft and is a property-centered offense. PC §38.02 is meant to ensure officers receive accurate information and prevent the obstruction of governmental operations. Each offense contains elements the other does not, and the Legislature explicitly stated its intent to allow prosecution under either statute when both apply.
Read opinion

Commentary:

This case is particularly useful because the court blessed the Legislature’s language designed to kill in pari materia claims—“[i]f conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.” This phrase has been used in a number of different places in the Penal Code.

Bays v. State

No. PD-1909-11        4/17/13

Issue:

Does CCP art. 38.072’s hearsay exception for outcry witness testimony also allow for the admission of the child-complainant’s videotaped statement to the outcry witness?

Holding:

No. Extra-statutory factors, including the legislative history of CCP art. 38.072 and the existence of a specific statute governing the admissibility of recorded pre-trial statements in CCP art. 38.071, indicate that the outcry statute contemplates a witness’s live testimony subject to confrontation and cross-examination.
Read opinion

Dissent (Keller, P.J.):

The statute does not clearly contemplate that a sponsoring outcry witness must offer the outcry statement through testimony, and it makes no sense to say that a less reliable method of relating the statement (oral testimony) is admissible while a more reliable method (video recording) is not.
Read dissent

Dissent (Hervey, J.):

“Because Article 38.072 does not limit the form in which the outcry statement may be presented through the outcry witness to the jury, the plain language is clearly broad enough to permit the admission of an outcry statement in the form of a video recording, provided that the statute’s other requirements are also satisfied.”
Read dissent

Commentary:

The Legislature could solve this problem by making the videotaped statement admissible, which has been done in other states.

State v. Betts

No. PD-1221-12        4/17/13

Issue:

Did the trial court properly grant the defendant’s motion to suppress evidence based on the fact that officers, who observed the defendant’s malnourished dogs from the street, entered the curtilage of the home where the dogs were kept without a warrant and without consent?

Holding:

Yes. The defendant had standing to challenge the search and seizure of the dogs because he at one time lived in the home where his dogs were kept, and he had been given permission from the owner, his aunt, to enter the property daily to care for the dogs. The seizure was not justified under the plain view doctrine because the officers were not lawfully in the yard at the time of the seizure; no exigent circumstance or other exceptions to the warrant requirement allowed for warrantless entry into the yard.
Read opinion

Concurrence (Price, J.):

The search, rather than the seizure, is at issue in this case. The defendant had standing because the property seized was his. Whether he had a reasonable expectation of privacy in the curtilage of the home is not dispositive.
Read concurrence

Commentary:

Another search case turning on something that happened within the curtilage. This case is also useful to point out the limits of the plain view doctrine.

State v. Rosseau

No. PD-0233-12        4/17/13

Issue 1:

Did the appellate court have jurisdiction to review the trial court’s order granting the defendant’s motion to quash when the portions of the indictment quashed pertained only to an enhancement allegation, rather than the elements of the offense?

Holding 1:

Yes. The plain language of CCP art. 44.01(a)(1) allows the State to appeal any order dismissing a portion of an indictment, even when that portion is the punishment-enhancement paragraph.

Issue 2:

Did the defendant show that the bigamy enhancement elevating punishment for sexual assault in Penal Code §22.011(f) is facially unconstitutional?

Holding 2:

No. Although his motion to quash properly presented a facial challenge because it alleged PC §22.011(f) creates a class of individuals—those who are married—who would potentially receive a punishment greater than the statute contemplates, he did not prove the statute operates unconstitutionally in all its applications.
Read opinion

Commentary:

Be careful with this opinion—it does not give prosecutors carte blanche to use the particular enhancement in question.

State v. Duran

No. PD-0771-12        4/17/13

Issue:

In reviewing the trial court’s granting of the defendant’s motion to suppress, did the court of appeals improperly substitute its own findings of fact for those of the trial court?

Holding:

Yes. The entire issue of reasonable suspicion to stop the defendant for possible DWI depended on whether the testifying officer saw a traffic violation before he initiated detention. The factual findings of the trial court were based on the judge’s credibility assessment of the officer’s testimony, and they were entitled to “almost total deference.”
Read opinion

Commentary:

Interesting. The officer did not see what would otherwise be a lawful basis for a stop, but it was captured by his in-car video. The officer (or officers working with him) must know the basis for a stop when he makes the stop.

Texas Courts of Appeals

Nowden v. State

No. 07-12-0087-CR        4/11/13 (not desig. for pub.)

Issue:

Did the trial court adequately admonish the defendant before accepting his waiver of the right to counsel?

Holding:

Yes, the trial court’s 12 admonishments adequately covered the dangers and disadvantages of self-representation, so the defendant’s waiver was knowing and voluntary.
Read opinion

Commentary:

Nothing new about the law, but the admonishments should be helpful to practitioners because they are quite comprehensive.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected]. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.