Weekly Case Summaries: August 3, 2012

Texas Courts of Appeals

Paul v. State

No. 12-10-280-CR     7/31/12

Issue

Is a recorded telephone call set up by police between three co-participants discussing a robbery and making references to the defendant as the fourth participant a testimonial statement that falls under Crawford?

Holding

Yes. The purpose of the recorded phone call was to establish or prove the past events related to the robbery that would be potentially relevant to later criminal proceedings. However, even though the phone call should not have been admitted over the defendant’s objection, the recorded phone call was not vital to the State’s case and the error therefore was harmless. Read opinion

Commentary

This is an interesting question, and I hope that the Court of Criminal Appeals reviews this on petition for discretionary review. The high court may reach the same result as the court of appeals, but a decision of this legal significance probably needs to be issued by the high court. Law enforcement did have one of the co-participants call the others, but he was not told what to say, just to call and talk. Such a telephone conversation does not seem to be testimonial. 

Dominguez v. State

No. 13-10-493-CR    7/26/12

Issue

Does Family Code §54.02 require a juvenile court to sign its transfer order to district court before a 17-year-old defendant can make an admissible statement?

Holding

No. Section 54.02 is not the legal standard for admissibility of a statement given by a 17-year-old incarcerated in an adult-detention facility. Neither Family Code §51.095 nor §54.02 makes the date the transfer order is signed dispositive of the admissibility question. Read opinion

Dissent

The dissent would hold that a written transfer order under §54.02 is jurisdictionally mandatory because it effectively waives the juvenile court’s jurisdiction and transfers it from a juvenile proceeding to an adult proceeding. Read opinion

Commentary

Interestingly, this is not an issue that was raised by the defendant. Rather, it was raised by the dissenting opinion. The majority has held that the application of §51.095 of the Family Code to the defendant’s ultimate statement would not be addressed because that argument was not raised at trial. It is possible that we may see this issue raised again by way of an application for a writ of habeas corpus.
      In the majority opinion, there is also a really good application of Montejo v. Louisiana in this case. The defendant was charged and, therefore, had a Sixth Amendment right to counsel, and an attorney had previously arrived at the police station to inform the officers that he represented the defendant and could not speak to the defendant. But the defendant himself never invoked his right to an attorney to the police officers. Therefore, the officers could speak with the defendant, as long as they first obtained a waiver of his rights from him.

Henson v. State

No. 01-11-225-CR   7/26/12

Issue

May a defendant raise a speedy-trial claim for the first time on appeal?

Holding

No. Houston’s 1st Court of Appeals joins other courts of appeals in holding that to preserve a speedy trial complaint for appeal, the defendant must raise the issue in the trial court. Read opinion

Commentary

This is a very good, well-reasoned, and thoroughly researched decision. And it makes perfect sense. How can a defendant’s conviction be reversed for the denial of the right to a speedy trial when the trial judge and the State were never offered the opportunity to respond to such a claim?

Wiseman v. State

No. 05-10-1623-CR    7/31/12

Issue

May a trial judge allow expert testimony about the details of statistical studies to prove a minimal number of all child sexual abuse allegations are found to be false?

Holding

No. The expert’s testimony—that only 2 percent of individuals make false allegations, and those individuals had the same issues (custody fights, mental health issues, and coercion)—amounted to an improper opinion as to whether the complainant was truthful. Read opinion

Commentary

Just because testimony is coming from an expert does not make it admissible. An expert cannot be asked to give an opinion as to whether the victim or a class of persons to which the victim belongs is truthful. The court also rejected the State’s claim that the defendant had “opened the door” to the admissibility of the expert testimony. The part that really stings about this holding is that the court of appeals also found that the error harmed the defendant, and the court reversed the defendant’s conviction.

Attorney General Opinions

Opinion No. GA-0956

7/25/12

Issue

Does property acquired by a crime victims’ office through fundraisers and donations become county property?

Holding

Given the crime victims’ office’s lack of authority to accept gifts and donations and the fact that the county commissioners court is the body authorized to accept gifts, a court could conclude that the property donated to the crime victims’ office here can belong only to the county. The Attorney General declined to answer a question of whether a crime victim coordinator has committed a crime by disposing of county property through a website, concluding that the Attorney General opinion process cannot resolve a question of whether a crime has been committed. Read opinion

Commentary

The opinion suggests that the county could not use such funds for a purpose not related to the purpose for which the funds were originally donated. In that case, the county could risk revocation of the donation.

Opinion Request RQ-1072-GA 

7/18/12

Issue

May a prosecutor require that a defendant enter a guilty plea as a condition for participation in a pretrial diversion program under Gov’t Code §76.011? Read request

Requestor

David Slayton, Administrative Director, Office of Court Administration

Commentary

This has been a rather hot topic in some jurisdictions around the State, and it will be interesting to see how the Attorney General responds.

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