Weekly Case Summaries: August 17, 2012

5th Circuit Court of Appeals

U.S. v. Polidore

No. 09-40896     8/13/12

Issue

Did the trial court admit portions of two 9-1-1 tapes reporting ongoing drug dealing, not an emergency, in violation of the Confrontation Clause?

Holding

No. “The interrogations in this case do not fit neatly into the categories contemplated by the limited holdings recently issued by the Supreme Court.” But the statements were not testimonial; the primary purpose of the interrogation was not to create an out-of-court substitute for trial testimony. Read opinion

Commentary

This is a pretty important decision. There was no emergency. And the caller certainly knew in some respect that his call could lead to later criminal prosecution. But the court held that his statements in the phone call were not intended to prove or establish facts for a later criminal prosecution. A pretty fine distinction, not one that I am certain a majority of the United States Supreme Court would share, or even a majority of the Court of Criminal Appeals. Even so, this is an extremely thorough decision, and you should definitely keep it in mind if you have a 911 call that is not calling about an assaultive offense or homicide, not calling about an emergency. And remember the name Polidore. There is a dissenting opinion, so it is quite possible that you might see this case again before the Supreme Court.

Texas Courts of Appeals

Cooksey v. State

No. 11-11-00156-CR     8/9/12

Issue

Was the evidence insufficient to uphold a conviction under Tex. Gov’t Code §551.146 for knowingly disclosing to a member of the public a certified agenda or tape recording of a meeting that was lawfully closed to the public under the Texas Open Meetings Act?

Holding

Yes. In this issue of first impression, the record contained no evidence probative of the “lawfully closed meeting” element of the offense. The State failed to prove the meeting was lawful. Read opinion

Commentary

This is a rather technical decision, but the court does provide a clear roadmap for what must be done to hold an emergency closed meeting: two hours’ notice, and giving notice of either discussion of personnel matters or pending litigation. It will be interesting to see if the Court of Criminal Appeals will want to review this clearly politically sensitive decision.

Garfias v. State

No. 02-06-00398-CR     8/9/12

Issue

Did convictions for aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon arising out of a single shooting violate the Double Jeopardy Clause?

Holding

Yes. Under the indictment and evidence, the legislature could not have intended multiple punishments for aggravated robbery and aggravated assault. The offense of aggravated assault was subsumed within the offense of aggravated robbery. Read opinion

Commentary

This cannot possibly be a correct double jeopardy analysis, so hopefully the Court of Criminal Appeals will review this decision. I am not saying that the result should necessarily be different, but the analysis that is undertaken here is foreign to typical double jeopardy jurisprudence. The court finds a double jeopardy violation because of “the similarity of how aggravated assault and aggravated robbery could have been charged under the evidence in this case.” Since when is that an appropriate basis for a double jeopardy violation? 

State v. Copeland

No. 13-11-00701-CR      8/9/12

Issue

Did a driver’s consent to search override the passenger’s refusal to consent?  

Holding

No. Only different last names indicated that that the occupants were not common-law married. The passenger had a possessory interest in the vehicle registered to the driver as a result of the marriage, and, following Georgia v. Randolph (co-habitants disagreeing about consent to search a home) the passenger effectively negated the driver’s consent. Read opinion

Commentary

Watch out for this decision. Do not let defense attorneys tell your trial judge that this case stands for the proposition that a passenger’s refusal to consent controls over a driver’s, or that an officer must ask all occupants of a vehicle if they consent. This is a State’s appeal in which all of the factual findings are viewed in favor of the trial court’s ruling against the State. The trial judge found the existence of a common-law marriage and that the officer did not have enough to disbelieve that there was in fact a common-law marriage. I cannot imagine this fact situation coming up very often.

Rene v. State

No. 14-11-00150-CR    8/9/12

Issue

Did admission, over an authentication objection, of printouts of several photographs from a MySpace profile showing the defendant with gang tattoos, displaying gang signs, and weapons constitute harmful error?

Holding

No. “Even assuming, without deciding, that the circumstantial evidence here was insufficient to permit a jury to conclude that the MySpace profile was created or maintained by appellant or that the photographs are accurate representations of the scenes depicted,” any error was harmless in light of the admission, without objection, of similar evidence. Read opinion

Commentary

This decision is not entirely helpful because the court did not rule on the merits of the authentication objection but instead rendered its decision purely on a harm analysis. But it seems clear that there was sufficient evidence to authenticate this particular MySpace profile. I am a little troubled by the implied requirement that a social networking web site can only be authenticated if the State shows that the defendant created or maintained the website. It could be created and maintained by someone else, but still depict accurate information about the defendant, relevant to the defendant’s guilt or his sentence.

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