Weekly Case Summaries: April 8, 2011

Court of Criminal Appeals

In Re 25th Judicial District Attorney v. Hon. Gary Steel

03/30/11 : Cite No. WR-74,593-01

Issue:

Is the defense permitted to make a copy of a DVD containing the interview with the complainant in a sexual assault case?

Holding:

Yes, under article 39.14(a) of the Code of Criminal Procedure, which allows for viewing and coping any material not specifically protected under article 39.15 or work product. A trial court's discretion in discovery matters includes the discretion to order the State to make the copies for the defendant. Read Opinion.

Dissent:

Presiding Judge Keller states that the issue has been settled previously by the court, and the trial court may not order the State to make copies. Judge Keller also discusses future situations where the State will simply not share the DVD, as it may qualify as an exception under article 39.14 as a witness statement. Read Dissent.

Commentary:

It seems to me that it would have been better for this decision to be unpublished. It is very short with little analysis. We are going to be forced to litigate this issue again as the court acknowledges the exception (hopefully) to which Judge Keller refers. As predicted by Judge Keller, this decision will do nothing more than make the State much less willing to be forthcoming during pretrial discovery.

State v. Rodriguez

04/06/11 : Cite No. PD-0463-08

Issue:

Was the State's information defective because it failed to allege "with reasonable certainty the act or circumstance which indicates Rodriguez discharged the firearm in a reckless manner"?

Holding:

Yes. By only stating the defendant "recklessly discharged a firearm by pulling the trigger on a firearm which contained ammunition and was operable," the State addressed how he discharged the firearm, but not how the defendant was reckless. The Code of Criminal Procedure requires language that sets out the acts relied upon to constitute recklessness. Read Opinion.

Concurring Opinion.

Judge Price commented on the confusing nature of the statute as written. Read Concurrence.

Commentary:

For those of you that thought the court's prior decision in Gengnagel was almost done, think again. With this decision, Gengnagel has been resurrected to full force of law. It now--with this decision--applies even to result-oriented offenses. Look for defendants to raise Article 21.15 in all kinds of cases in which the State has alleged a reckless culpable mental state. Merely alleging the act will no longer be enough. You must also allege the circumstances that make the act reckless, even though the clear wording of the statute does not require that.

Hereford v. State

04/06/11 : Cite No. PD-0144-10

Issue:

Did the officer use excessive force and violate the Fourth Amendment in recovering crack cocaine from the defendant's mouth?

Holding:

Yes. During the initial arrest and pat-down no drugs were found. The officer observed the defendant chewing on suspected drugs. In an attempt to open the defendant's mouth, the officer used his taser eight times, once for at least 20 seconds. The officer used "pain compliance," forcible choking, and used the taser on the defendant's groin area. Read Opinion.

Commentary:

Hopefully, you will not be confronted with such a fact situation in the future. But for future reference, tasing a guy repeatedly in the groin area is not permitted in order to get him to spit cocaine out of his mouth, especially when it failed to work the first time that it was tried. Did we really need an opinion to tell us this?

State v. Elias

04/06/11 : Cite No. PD-0735-10

Issue:

Does discovery of an outstanding arrest warrant after a traffic stop attenuate the taint of any illegality in the stop?

Holding:

Possibly. The court of appeals erred in upholding the suppression of drugs found in the defendant's vehicle without having more specific findings of fact by the trial court on the traffic stop. Although the officer observed a different traffic offense than the one listed in his report, more facts were needed to decide the questions raised by this appeal, including whether discovery of an outstanding warrant attenuates the taint of an illegal stop and whether the automobile exception justified the search of the car. Read Opinion.

Concurrence:

Presiding Judge Keller would limit the remand to the unaddressed 4th Amendment claim and avoid the potential troubling outcomes raised by the majority's discussion of a trial court's duty in making findings of fact. Read Concurrence.

Commentary:

You might be able to use this decision in your favor if your trial judge fails or refuses to make a fact finding that would help your case. But I am much more interested to see what the court holds when it finally reaches the attenuation-of-the-taint issue mentioned above. The pre-existence of a valid arrest warrant could preclude the need to litigate the often overly technical traffic stop issues. Keep your eyes on this case.

State v Woodard

04/06/11 : Cite No. PD-0828-10

Issue:

After the driver in a single-car accident abandoned his car in a ditch, was the police officer's approach of a person matching an anonymous tipster's description of the driver a consensual encounter when the officer asked if the defendant had been in an accident?

Holding:

Yes. There was no evidence of physical force or threatening gestures. Once the officer had a reasonable suspicion to believe the defendant had committed DWI, he conducted the FSTs and escalated the encounter to a detention. Read Opinion.

Dissent:

Presiding Judge Keller states that CCP article 14.01(b) was violated because no officer observed the DWI. Read Dissent.

Commentary:

Be very careful with this one. Typically, when a defendant has been "stopped," as this defendant apparently was, he has at least been detained. I would not start relying too heavily upon the existence of a consensual encounter in all of your cases. But the officer's actions--in this particular case--appear to be reasonable.

Courts of Appeals

Burton v. State – 6th COA

04/05/11 : Cite No. 06-10-00199-CR

Issues:

(1) Did officers have probable cause to believe evidence of criminal activities was to be found in the residence?

(2) Did exigent circumstances exist to justify the warrantless entry?

Holdings:

(1) Yes, arguably, the police had probable cause as a result of an unnamed informant's statement, the ammonia odor emanating from the residence, and the officer's experience indicating that ammonia is often present during methamphetamine manufacturing.

(2) No, the alleged exigent circumstances of danger from a fire or explosion were not supported by the record. The evidence should have been suppressed. Read Opinion.

Commentary:

This is a lengthy, well-reasoned decision. It fairly addresses all of the pertinent law. There was just not enough here to show exigent circumstances, unless the Court of Criminal Appeals is willing to hold that the volatile nature of all meth labs would constitute exigent circumstances.

Avery v. State

03/31/11 : Cite No. 13-10-00339-CR

Issue:

Did the defendant use a "fraudulent prescription form" to obtain an increased dosage of a controlled substance in violation of Health & Safety Code §481.129(a)(5)(B)?

Holding:

No, because the defendant did not create, fill out, and present a fake form; instead, he altered an otherwise valid form. On these facts, the State should have charged under Tex. Health & Safety Code §481.129(a)(5)(A). Read Opinion.

Dissent:

"The majority's opinion is premised on a mistaken notion that the 1989 re-codification of the controlled-substances fraud statute was a substantive change in the law." The alteration here should have been sufficient to support a conviction as charged. Read Dissent.

Commentary:

The majority's opinion is lengthy and exhaustive. Bur because of the dissenting opinion, I would expect the Court of Criminal Appeals to review this issue. My question is: are the two statutory subsections meant to be mutually exclusive? Can't a form be fraudulently filled out and also be fraudulent in itself in manner in which it was filled out and used?

Brent v. State

04/05/11 : Cite No. 14-09-00960-CR

Issue:

Did the trial court violate Code of Criminal Procedure article 1.051(e) by putting the non-indigent defendant to trial without a written waiver or appointed counsel?

Holding:

No, the defendant had a reasonable opportunity to obtain counsel, and he had more than 10 days' notice of his trial. Read Opinion.

Commentary:

Great decision. We have all had similar defendants who (intentionally or unintentionally) have gamed the system. At some point, they must be held accountable for their action or inaction.

Crawford v. State

03/31/11 : Cite No. 01-10-0059-CR (Not pub.)

Issue:

Can an officer reasonably rely on the information relayed from an insurance database to a mobile data terminal to stop a driver for expired liability insurance?

Holding:

Yes, if the database reveals (1) specific information identifying the insurance policy covering the car, (2) the insurance coverage has lapsed, and (3) the car owner has not confirmed the existence of liability insurance coverage during the lapse. Read Opinion.

Commentary:

This decision is not published, but it probably should be, as it stands in contrast to decisions from the Amarillo court of appeals. Expect the the Court of Criminal Appeals to address this issue eventually, as it is certain to come up again as more officers utilize this database to stop vehicles. 

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