Weekly Case Summaries: August 30, 2013

Fifth Circuit

Panetti v. Stephens

Nos. 08-70015 & 08-70016        8/21/13

Issue:

Was the defendant entitled to habeas relief based on his claims that 1) the district court violated due process by providing constitutionally inadequate funding for experts to determine his competency to be executed, and 2) the trial court should have insisted on appointed counsel, despite his 6th Amendment waiver, under the Supreme Court’s decision in Indiana v. Edwards, 554 U.S. 164 (2008)?

Holding:

No. 1) The district court granted him $9,000 for experts, and this was sufficient because due process required only that he be afforded an opportunity to present evidence on competency to be evaluated. 2) Although the Supreme Court held in Indiana v. Edwards that a trial court may insist upon representation if a defendant is competent to waive his right to an attorney but is still suffering from severe mental illness, this opinion did not apply retroactively because it announced a new rule and did not implicate the fundamental fairness and accuracy of the prior proceedings.
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Commentary:

This case has been in various levels of post-conviction review for many, many years. If you want to get a feeling for what post-conviction prosecutors have to endure, read the first 14 pages of this opinion, and you can get a flavor for the reason that post-conviction review can be such a time-consuming process, especially in a death penalty case. Otherwise, this decision has application only to competency-to-be-executed issues and a mentally ill defendant’s right to an attorney weighed against the waiver of his right to an attorney at this stage of the proceedings. This case has already been before the United States Supreme Court on the first issue, so you should anticipate the defendant’s attempt to place it before that court once again.

Texas Courts of Appeals

Perez v. State

No. 01-11-00950-CR        8/22/13

Issue:

Did the State violate its duty to disclose Brady material by waiting until trial to reveal the identity of a confidential informant, although the defendant indicated he planned to raise an entrapment defense?

Holding:

No. The informant eventually showed up in the courtroom and was sworn in as a witness. An undercover officer also identified the informant from the witness stand. The defendant did not object to that testimony or request a continuance, so he failed to preserve a claim under Brady or TRE 508.
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Commentary:

The State was saved in this case, at least in part, because the defense did not call the confidential informant as a witness (after his identity had already been revealed) and did not move for a continuance, thus revealing an alleged lack of preparedness because of the allegedly untimely disclosure of the identity of the confidential informant. The court of appeals applied this preservation holding to both the Brady claim and the claim under Rule 508. The court acknowledged that no prior decision had ruled that way in the Rule 508 context, so it is possible that the Court of Criminal Appeals could review this decision.

Lundgren v. State

No. 02-12-00085-CR        8/22/13

Issue:

Did the trial court properly revoke the defendant’s community supervision based on a new offense occurring during the time the trial court had plenary jurisdiction and before the defendant filed his timely motion for a new trial and notice of appeal?

Holding:

Yes. The community supervision conditions went into effect the day the defendant pled guilty, waived his right to appeal, and was sentenced. The defendant’s argument that his “post-violation notice of appeal and motion for new trial retroactively acted as a panacea for his violations” is without merit.
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Commentary:

This is one case in which the defendant had been held to the waiver of his right to appeal, and he apparently began serving his probation without any appeal bond being filed. So when the defendant filed a notice of appeal (after he had violated a condition of his probation), that notice of appeal could not prevent the trial judge from determining whether the defendant had violated his probation and from revoking that probation if necessary. The defendant’s appeal was frivolous (and was in fact dismissed as such later on). But be aware that there are many prior decisions in which it might appear that a defendant had waived his right to appeal on paper, but he will not be held to that waiver by the court of appeals after examining the entire record. In that situation, a defendant might be able to file an appeal bond, be relieved from having to begin serving his probation, and thus prevent the State from claiming that he had violated the conditions of that probation. This is one example of why it is so important to ensure that, if you want a defendant to be held to the waiver of his right to appeal, make sure that the record fully supports such a waiver and that it is voluntary.

Texas Attorney General

Opinion for Titus County Attorney

No. GA-1018        8/26/13

Issue:

May a county commissioners court establish a rule that prohibits an elected county official from bringing a pet to his or her county office?

Opinion:

A court would likely determine the commissioners court may prohibit animals in county offices due to the court’s statutory authority to maintain and regulate the county courthouse and offices under Local Government Code §291.001.
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Commentary:

This opinion will certainly not be popular with the dog and cat lovers amongst us. If you wish to bring your pet to work but are prevented from doing so, your remedy appears to be with your local commissioners court.

Opinion for Bexar County Criminal District Attorney

No. GA-1019        8/26/13

Issue:

Does advertising by a bail bond licensee through an exclusive arrangement with a magazine that is distributed directly to pretrial detainees in the county jail constitute unlawful “solicitation” in violation of Occupations Code §1704.304(c)?

Opinion:

A court might conclude, depending on the particular facts of the case, that an exclusive advertising arrangement with a magazine distributed in county jail constitutes unlawful solicitation.
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Commentary:

This opinion might be an accurate predictor of what a court might conclude. But you should expect that, if this controversy actually comes before a court, a bail bondsman might raise a First Amendment objection to a claim that he made an unlawful solicitation.

Opinion for Houston County Attorney

No. GA-1021        8/26/13

Issue:

Which court or magistrate has jurisdiction before an indictment is returned or a complaint and information are filed for the purposes of filing an affidavit for release of surety to surrender a bond principal pursuant to CCP arts. 17.16 and 17.19?

Opinion:

After a person is released on a bond but before a formal charging instrument is filed in the county or district court, prosecution is pending before the magistrate (typically a justice of the peace) who properly received a complaint.
Read opinion

Commentary:

This appears to be an accurate opinion. But it is troubling to think that a “prosecution” is “pending” before any actual charge has been filed against a defendant. That certainly appears to be inconsistent with Sixth Amendment jurisprudence. So do not let defense lawyers try to use this opinion to suggest that a defendant’s Sixth Amendment rights have attached before charges have in any way been filed. In most cases, charges will have been filed, so it will not be an issue.

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