Weekly Case Summaries: August 5, 2011

Court of Appeals

State v. Dominguez,       No. 01-10-00428-CR                        7/28/11

Issue:

Did the trial incorrectly grant a motion to suppress dog scent-discrimination lineup evidence in a capital murder case?

Holding:

No, the State failed to carry its burden of showing that Deputy Pickett’s scent-lineup evidence was reliable.  Also, the court declines to adopt a preponderance-of-the-evidence standard of review for the reliability of scientific evidence.

Commentary: 

It is always more difficult to win a State’s appeal, and courts have more recently been very skeptical of dog scent line-up or discrimination testimony.  Even so, you should expect the Court of Criminal Appeals to give the last word on this issue.
Read opinion.

Crenshaw v. State,          No. 02-08-00304-CR                        7/28/11 (not designated for publication)

Issue: 

Where a DWI information alleged only the “subjective” theory of intoxication, but the abstract portion of the jury charge also alleged the per se definition of intoxication, was the charge erroneous?

Holding:

Yes, the State restricted itself to one theory of intoxication in the information so the defendant was denied notice of the additional theory and, with other charge errors, the defendant suffered some harm.

Commentary: 

It should come as no surprise that the State will be seeking a petition for discretionary review in this case.  The court initially focused on the defendant’s purported lack of notice, but that is an issue concerning the information or charging instrument, not the jury charge.  The court of appeals also held that the trial court erred by including the “per se” theory of intoxication in the definition of intoxication provided in the jury charge because there was no properly admitted evidence of it under the requirements of Daubert.  That is an admissibility issue, not an issue concerning what evidence was available to support the jury charge.  The issue in this case (properly) boils down to whether the trial court expanded the scope of the charges against the defendant by including a means of intoxication that was not alleged in the information.  Not really, because the State alleged that the defendant was intoxicated.  It will be interesting to see how the Court of Criminal Appeals addresses this case.
Read opinion.

Pachecho v. State,           No. 02-10-00355                               7/28/11

Issue:

Was the DWI blood-draw procedure unreasonable despite the (1) failure to ask for the suspect’s medical history, (2) the failure to conduct a follow-up exam, and (3) clerical errors in the accompanying paperwork?

Holding:

No, the police chose reasonable means and procedures to obtain a blood-alcohol assessment.

Commentary: 

This is a pretty straightforward application of the recent decision of the Court of Criminal Appeals in State v. Johnston.  The defendant’s rather weak argument concerning the alleged errors in the paperwork did nothing to diminish the nurse’s testimony concerning the proper manner in which he drew the defendant’s blood.
Read opinion.

State v. Mosely,                               No. 03-09-00721-CR                        7/28/11

Issue:

Did the trial court wrongly grant a motion to suppress DWI blood-draw evidence after a fatal traffic wreck?

Holding:

No, the evidence reflected a lack of consent, and the State failed to prove that the police had probable cause to arrest the suspect.  

Commentary: 

The trial court found that the defendant had caused the accident in this case, that he had a noticeable odor of alcohol coming from his breath, had bloodshot eyes, and admitted to having a couple of alcoholic drinks.  But the court of appeals held that the record still did not show that the defendant had lost the normal use of his faculties.  Maybe the record could have been developed better, but all of these facts taken together should have been sufficient to show at least probable cause to arrest.  Yet another indication as to why it can be so difficult to win a State’s appeal.
Read opinion.

AG Opinion

Opinion for the Texas Forensic Science Commission

7/29/11       Op. No. GA-0866     Investigative authority of the Texas Forensic Science Commission

Issue:

What is the scope of the Texas Forensic Science Commission’s (TFSC) authority?

Opinion:

The TFSC may investigate incidents that occurred before September 1, 2005, (the starting date of the TFSC’s statutory authority), but it cannot consider evidence that was tested or offered into evidence before that date. The TFSC’s investigative authority is limited to those labs, facilities, or entities accredited by the DPS at the time the forensic analysis took place. The TFSC may not investigate fields of forensic analysis excluded by the statutory definition of “forensic analysis” but, if all other statutory requirements are met, may investigate fields of forensic analysis not expressly included or excluded by statute or DPS rule. 

 Commentary: 

While not binding, this Opinion should be helpful in focusing attention upon the improvement of forensic analysis in Texas in general, and not upon what mistakes or misconduct may or may not have occurred in particular cases that were investigated long before the TFSC was even created.  But I do note that Article 38.01, Section 4(b)(2)(A) does permit the TFSC to conduct “retrospective reexaminations,” not mentioned in the Opinion.  So the Opinion may not be the last word on its involvement in the some of the more high-profile cases that have captured media attention.
Read opinion.

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