Weekly Case Summaries: April 27, 2012

Court of Criminal Appeals

Olsen v. State

No. AP-76,175 : 04/25/12              (not designated for publication)

Issue:

Did the trial court correctly rule that a witness was not qualified to provide expert testimony about female sex offenders and grooming at punishment?

Holding:

No.  The potential witness was qualified as an expert on grooming and female sex offenders through her research and experience.  Without the testimony, the jury was unable to fully comprehend the mitigating potential of the evidence before it, and the defendant was unable to rebut the State’s future dangerousness evidence and argument.  The case is remanded for a new punishment hearing.
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Commentary:

Keep in mind that this was a death penalty case, and mitigating evidence is all important in such a case.  You should think long and hard before objecting to a defendant’s attempt to buttress a mitigating-evidence claim in a death penalty case.  This is not all bad for prosecutors, however.  Back on December 7, in Morris v. State, the court issued an opinion supporting the admissibility of expert testimony on “grooming” in the sexual molestation context.  Now the court has essentially issued another one.

Ex parte Jimenez

No. AP-76,669 : 04/25/12

Issue:

Was the defendant entitled to a new trial because she was denied adequate funding to hire additional and better qualified experts, and because trial counsel was ineffective by failing to retain or make a written request for additional qualified experts?

Holding:

No. A defendant is not entitled to the best or most expensive expert, but is entitled to at least one expert upon a showing that the expert can provide assistance which is likely to be a significant factor at trial. The defendant forfeited consideration of her constitutional claim on habeas review by failing to file a proper written Ake motion and ensuring the trial judge formally ruled on it. The defendant does not have a constitutional right to a “team of experts” paid for by the taxpayers, and defendant’s counsel was not ineffective in failing to request such a team.
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Commentary:

This may now be the leading case from the Court of Criminal Appeals on Ake claims.  But do not feel too bad for this defendant.  He had three attorneys, and he was provided extensive expert witness help in the case.  Prosecutors are rarely confronted with such fact situations at trial because requests for expert assistance from the trial court are handled ex parte.  But if you do have one of these cases come up on appeal or (more likely) on writ of habeas corpus, compare the facts of your case in relation to the facts in this case and the facts in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005).  The facts and law in the two cases are different (and similar), but they should give you a feel for where your case falls in the spectrum of ineffective-assistance-of-counsel claims.

Ex parte Sosa

No. AP-76,674 : 04/25/12

Issue:

When making a determination of mental retardation for 8th Amendment purposes, are the facts of the offense relevant in making such a determination? 

Holding:

Yes. The defendant’s role in the offense and the complexity of the offense should be considered when making a finding of mental retardation.  The case is remanded so that the judge can gather information and provide findings as to whether the symptoms of mental retardation that the defendant has alleged are inconsistent with his being able to commit the crime of which he was convicted.
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Commentary: 

If you are confronted with a mental retardation claim, this decision will be very helpful, especially if your defendant committed an offense that required some planning or involved some complexity.  It will more than likely come up in the death penalty context only, but this is still a very helpful decision.

Ex parte Carner

No. AP-76,775 : 04/25/12 

Issue:

Was the defendant’s state jail felony conviction for evading arrest void because his prior conviction for evading arrest occurred before the effective date of the statute under which he was tried, convicted, and sentenced?

Holding:

No.  The date of the defendant’s prior conviction was not an element of the offense.  The prior conviction was an attendant circumstance to the crime of evading arrest which elevated the severity of punishment from a Class B misdemeanor to a state jail felony.  The State was only required to prove that the prior conviction was final at the moment he evaded arrest a second time; the date of defendant’s prior conviction was irrelevant.
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Commentary:

This decision in very much in line with how the court has decided similar cases (which are cited in the opinion).  So not a big surprise. 

Salinas v. State

No. PD-0570-11 : 04/25/12

Issue:

Does the 5th Amendment right against compelled self-incrimination apply to pre-arrest, pre-Miranda silence used as substantive evidence of guilt in cases in which a defendant does not testify?

Holding:

No. In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled. The 5th Amendment right against compulsory self-incrimination is irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak. Prosecutors may comment on such silence regardless of whether a defendant testifies.
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Commentary:

This was an issue of first impression, and it has not been decided by the United States Supreme Court.  There is a split of authority across the nation on the issue, so this should be very helpful to prosecutors.  Not only can prosecutors comment upon a defendant’s pre-arrest, pre-Miranda silence, they can introduce evidence of it—again, regardless of whether the defendant testifies.

Mahaffey v. State

No. PD-0795-11 : 04/25/12

Issue:

Was there reasonable suspicion to stop the defendant for a violation of Tex. Trans. Code §545.104(a) when he failed to signal a lane change when the lane the defendant was travelling in merges with another lane?

Holding:

No. The defendant did not change lanes; the two lanes became one.  No signal is required when two lanes become one. A signal is required only to indicate an intention to turn, change lanes, or start from a parked position. 
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Dissent (Keller, P.J.):

When the original lane the defendant was driving in ended, he was required to move into another lane to continue driving down the roadway.  The court of appeals correctly found that the defendant executed a lane change without signaling.
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Commentary: 

The court had this case once before, deciding whether the defendant’s action constituted a “turn” (it did not).  I am not sure how often merging will come up in your cases.  But keep in mind, especially in traffic stop situations, that you should argue all of a defendant’s driving and actions in support an officer’s decision to stop him.  Do not just focus upon whether the defendant’s driving constituted a traffic violation found in one of the many provisions of the Transportation Code.

Wise v. State

No. PD-0473-11 : 04/25/12

Issue:

Were images found in the “free space” on the hard drive of the defendant’s computer legally sufficient to prove that the defendant knowingly possessed child pornography?

Holding:

Yes. The court of appeals misapplied the Jackson standard of review for sufficiency by focusing on the possible alternative explanations, rather than determining whether the jury’s inference was reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict.
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Commentary:

Recently the Court of Criminal Appeals was forced to reverse a court of appeals sufficiency ruling because it utilized the often-rejected “divide and conquer” approach to sufficiency analysis.  Now the court reverses an appellate court’s sufficiency ruling because it utilized a form of the long-rejected “reasonable hypothesis” test.  Why has sufficiency analysis in criminal cases become so difficult for our intermediate appellate courts?  But apart from that, this is a great decision if you have to prosecute a child pornography case and the images show up only in the free space or cache of the defendant’s computer.

Henery v. State

No. PD-0958-11 : 04/25/12

Issue:

After a trial court orally denied a motion to quash the information and subsequently signed a written order granting the same motion, was the court of appeals required to abate the appeal to the trial court to clarify which action was intended?

Holding:

Yes. Rule 44.4 of the Texas Rules of Appellate Procedure requires the court of appeals to abate the case if the trial court’s erroneous action prevents the proper presentation of a case to the court of appeals and the trial court can correct its action. Both preconditions provided by Rule 44.4 were met in this case.
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Commentary:

This decision may be of interest to appellate lawyers only, but keep in mind that a defendant may not be entitled to a reversal if an abatement can offer the trial judge a chance to clear up an unclear ruling.

Texas Court of Appeals

James v. State – 1st COA

No. 01-10-00693-CR : 04/19/12

Issue:

Does CCP art. 28.10 apply to amending enhancements in an indictment?

Holding:

Yes; contrary to the decisions of two other intermediate courts, the amendment of the enhancement paragraph after trial has begun and over the objection of the defense is error. But the error was harmless in this instance.
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Commentary:

At some point, the Court of Criminal Appeals needs to resolve the issue of whether Article 28.10 applies to enhancement allegations.  As it stands now, courts are split on the issue.  The Court of Criminal Appeals may not review the issue in this case because the error was found to be harmless, but it still needs to be addressed at some point.  By the way, this decision also includes some good analysis, finding the evidence to sufficient to support the finding that an air rifle was a deadly weapon.

State v. Harbor – 1st COA

No. 01-11-00574-CR : 04/19/12

Issue:

Does a trial court have inherent authority to dismiss a case with prejudice based on the State’s bad faith or intent to harass or prejudice the defendant where the State published a redacted portion of a videotape?

Holding:

No, a trial court’s authority to dismiss a charging instrument without the consent of the State must derive from a statute, the common law, or the state or federal constitutions. A review of the pertinent authorities demonstrated that the trial court improperly dismissed the State’s case.
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Commentary:

The defendant had a number of different arguments in support of his claim that the charges against him should have been dismissed, including his right to a speedy trial.  After reading the facts of the case, you realize that the trial judge granted the defendant’s motion to dismiss after first granting the defendant’s motion for mistrial in a previous trial.  It then becomes very quickly clear that the trial judge (and the defendant) really had no legal basis for dismissing the prosecution.  As long as trial judges keep doing it, courts of appeals will be forced to continue to reverse their judgments.  One wonders how well the retrial will proceed.  The case is a domestic violence prosecution, in which the victim was uncooperative, some of the most difficult cases that prosecutors have to try.  But these do need to be prosecuted.  Good job by the State here.

De Leon v. State – 4th COA

No. 04-11-00295-CR : 04/18/12

Issue:

Does the factual sufficiency standard of review still apply to a claim that the evidence is insufficient to support the jury’s rejection of a defendant’s claim that the murder was committed under the immediate influence of sudden passion arising from an adequate cause?

Holding:

Yes; here, the jury’s negative answer to the sudden passion issue in the court’s punishment charge was not against the great weight and preponderance of the evidence.
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Commentary:

This holding is very much in line with prior holdings on the appropriate standard of review in such situations.  The bottom line practically in this case (and practically all sudden passion cases), it is essentially impossible for a defendant to prevail on his claim that the jury was required to find that he acted with sudden passion in a murder case.

Corley v. State – 9th COA

No. 09-11-00175-CR : 04/18/12

Issue: 

Did the trial court improperly admit, in violation of the Confrontation Clause, a laboratory report and testimony concerning the results of the defendant’s blood alcohol test from a drug section supervisor who did not perform the test?

Holding:

Yes. Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), controls—although the error was harmless because of the testimony of the officers at the scene and a toxicologist. But the Confrontation Clause may not have been implicated had the State refrained from introducing the report and elicited only an independent opinion from the supervisor based on his review of the raw data.
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Commentary:

There is an argument to be made (and the State made it here) that merely reporting machine-generated results does not implicate the Confrontation Clause.  But Bullcoming may still present a problem in such situations. The court of appeals offers the option of not introducing the report, and just allowing the testifying expert to render his independent opinion.  We may soon see if this is acceptable when the United States Supreme Court issues it latest Confrontation Clause decision later this summer in Williams v. Illinois.

McWilliams v. State – 14th COA

No. 14-11-00199-CR : 04/24/12

Issue:

Did the trial court improperly admit, in violation of the Confrontation Clause, testimony concerning DNA testing and test results from an FBI forensic DNA supervisor who did not perform the test?

Holding:

No, the exception for certain surrogate testimony identified by Justice Sotomayor in her concurring opinion in Bullcoming applied because the supervisor was involved with every aspect of the testing process.
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Commentary:

Use this decision if you have a testifying supervisor who very closely handled the cases under his or her supervision.  It is quite possible that this decision may hold up, regardless of what the Court decides in a few weeks in Williams v. Illinois.

Texas Attorney General

Request for Opinion

RQ-1055-GA : 04/19/12

Re: Whether an individual may be prosecuted for an alleged assaultive offense that occurred in 1998 when the person was thirteen years of age, and in which the victim died in 2011.
Read Request 

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