Weekly Case Summaries: April 20, 2012

Court of Criminal Appeals

Lilly v. State

No. PD-0658-11 : 04/18/12

Issue:

Was the defendant’s right to a public trial violated when the trial proceedings were conducted in a prison chapel turned into a courtroom?

Holding:

Yes.  The trial court closed the defendant’s trial to the public when it moved the trial to the correctional facility. Considering the cumulative effect of facility’s security policy, the trial court did not take every reasonable measure to accommodate public attendance. The trial court failed to justify the closure when it did not make findings of fact after overruling the defendant’s motion to transfer the trial to the public courthouse.
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Commentary:

So the court has issued two significant decisions on the defendant’s right to a public trial in the past couple of months.  I do not know if they are trying to tell us something, but we had better be listening.  If you have a trial judge that is intent on keeping members of the public (including the defendant’s family) from the courtroom either directly or indirectly (as in this case), you need to show the judge this decision and the decision that the court issued last month in Steadman v. State. It will almost certainly lead to a reversal of your conviction, unless the court has taken extraordinary steps and sought out every possible alternative.

Merritt v. State

No. PD-0916-11 : 04/18/12

Issue:

Was circumstantial evidence connecting the defendant to the fire legally sufficient to support a conviction for arson?

Holding:

Yes. The State presented evidence that the defendant had a motive and an opportunity to commit the crime. Although motive and opportunity are not elements of arson and are not sufficient to prove identity, they are circumstances indicative of guilt. The court of appeals incorrectly applied the Jackson standard when considering the circumstantial evidence supporting the defendant's conviction and improperly employed a "divide and conquer" approach.
Read Opinion 

Commentary:

It is truly remarkable that the court still has to issue opinions telling the appellate courts that they cannot reverse criminal defendants’ convictions by looking at and rejecting individual pieces of evidence, rather than looking at all of the evidence as a whole.  Once again, the Texas Court of Criminal Appeals has to tell a court of appeals that the “divide and conquer” approach in reviewing the sufficiency of the evidence in a criminal case will not be tolerated. 

Menefield v. State

No. PD-1161-11 : 04/18/12

Issue:

Did defense counsel’s failure to object to the admission of a laboratory report prepared by an analyst who did not testify constitute ineffective assistance?

Holding:

No. The record did not affirmatively demonstrate deficient performance, and defense counsel was never given an opportunity to explain why no objection to the laboratory report was made. Counsel’s conduct was not so outrageous that no competent attorney would have engaged in it.
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Dissent (Meyers, J.):

The majority does not consider how the court of appeals erred and incorrectly conducted a de novo review of this case.  There is no logical reason or reasonable strategy for counsel's failure to object to clearly inadmissible evidence that was the only evidence supporting his client's conviction.
Read Dissent 

Commentary:

This is a very short opinion.  Short and to the point.  It does not come out and explicitly say that, in order to support a claim of ineffective assistance of counsel, a defendant should call his defense counsel to testify at a hearing on a motion for new trial.  But that is the basic idea, unless defense counsel’s performance was truly outrageous.   Better yet such claims should be pursued by way of a writ of habeas corpus, so that all of the evidence can be most fully developed on the defendant’s claim.

Pfeiffer v. State

No. PD-1234-11 : 04/18/12

Issue:

When a defendant appeals his conviction, must the State file its own notice of appeal when it raises a cross point concerning a ruling on a question of law under CCP art. 44.01(c)?

Holding:

No. Once a convicted defendant files a timely notice of appeal, the appellate courts have jurisdiction to address any pertinent “cross-appeal“ or ”rebuttal“ issues raised by the State. There is no statutory provision for filing a notice of appeal for “cross-appeals” under art. 44.01(c) and no evidence that the legislature intended for the State to file a notice of appeal. There is no persuasive rationale for requiring such notice of appeal when the State's right to have the court of appeals address its issue on a trial court's ruling of law is contingent upon the defendant obtaining relief from his conviction.
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Dissent (Meyers, J.):

The State’s brief to the court of appeals was not a cross-appeal but merely a part of the argument as to why the officer’s detention of the defendant was reasonable. It appeared that the State never intended to file an appeal. The court of appeals did not have subject matter jurisdiction over the issues raised by the State unless or until the State directly appealed the challenged matters.
Read Dissent 

Commentary:

We have been waiting quite some time for this decision, or at least we as appellate prosecutors have.  But do not ignore this if you are a trial prosecutor.  This case means that, if the trial court makes a legal error during trial that is important, but you still gain a conviction of the defendant, the State may be able to complain about that legal error in the defendant appeals his conviction.  The court of appeals already has jurisdiction over the appeal by virtue of the defendant’s appeal, and the State does not need to file its own notice of appeal in order to complain about the trial court’s legal error in a cross-point of error.

Texas Court of Appeals

Carroll v. State – 6th COA

No. 06-11-00225-CR : 4/11/12

Issue:

Is a defendant who is seeking to prove he received ineffective assistance of counsel at trial but failed to seek a motion for new trial entitled to an abatement so he can develop the record?

Holding:

No, no authority exists for such a procedure absent a proper motion for new trial, an adequate affidavit, and a request for a hearing.
Read Opinion 

Commentary: 

This is a very good and straightforward decision.  I will be very interested to see if the Court of Criminal Appeals wishes to review it at some point.  From time to time, you will see defendants request abatements for hearings on out-of-time motions for new trial, but there really is no authority for such a thing.  As noted in the Menefield decision above, the best vehicle for addressing a defendant’s claim of ineffective assistance of counsel is really a post-conviction writ of habeas corpus.

Tran v. State – 5th COA

Nos. 05-10-00621/622-CR : 4/11/12 (not design. for pub.)

Issue:

Did the trial court incorrectly admit testimony from a child advocacy director that 2 percent of allegations are false and 98 percent of the time children are telling the truth?

Holding:

Yes, an expert witness may testify to his specialized knowledge but may not testify, in the form of an opinion or otherwise, whether a complainant or a class of persons to which the complainant belongs is truthful.
Read Opinion 

Commentary:

There really is no way around this decision.  Expert witnesses can be very valuable in child molestation cases, but they simply cannot testify as to the truthfulness of the victim or the victim’s overall class of children who have claimed to have been sexually molested.

Cantu v. State – 7th COA

No. 07-10-00248-CR : 4/11/12

Issue:

Did the trial court wrongly admit testimony from a child advocacy interviewer about not noticing any coaching “red flags” during her interview of a child?

Holding:

No; although similar testimony had already been elicited without objection, the trial court reasonably could have considered the question an inquiry about indications of coaching (a permissible inquiry) rather than seeking the interviewer’s opinion of her truthfulness.
Read Opinion 

Commentary:

You can compare this decision with the previous unreported case.  Here the trained witness was not testifying about truthfulness, but was testifying about evidence of any coaching of the victim.  The difference may be subtle, but it makes all of the difference in the world.  If you prosecute this type of case, and you want to call this type of witness to deliver this type of testimony, make sure that you read this decision and the decisions that it cites to get very comfortable with the boundaries of your witness’ testimony.

Texas Attorney General

Request from Brazoria County Criminal District Attorney

RQ-1052-GA : 04/09/12

Re: The operation of a golf cart in a “master planned community.”
Read Request

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