Weekly Case Summaries: December 16, 2011

Court of Criminal Appeals

Sanchez v. State

No. PD-0086-11 : 12/14/11

Issue:

After the outcry witness became unavailable to testify at trial, did the trial court improperly admit the outcry witness's testimony from a pretrial CCP art. 38.072 hearing?

Holding:

Yes. The defendant did not have an adequate opportunity to cross-examine the outcry witness's credibility at the pretrial hearing and admitting prior testimony from the unavailable witness violated the 6th Amendment. A pretrial hearing conducted under CCP art. 38.072, § 2(b)(2) is intended only to determine the reliability of the complainant's out of court statement based on time, content, and circumstances of the statement. The fact finder at trial determines the credibility of the outcry witness.
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Commentary:

This opinion does not decide that this particular Article 38.072, § 2 (b)(2) hearing was not sufficient to protect the defendant's confrontation rights. Rather, the court has decided that all Article 38.072, § 2(b)(2) hearings will not be sufficient to protect a defendant's confrontation rights. By so holding, the court has limited the scope of such a hearing. Thus, this decision is important, not only as a right-to-confrontation decision, but also as a decision on the proper way to view such a pretrial hearing. The court holds out the possibility that other pretrial hearings might be sufficient to protect a defendant's confrontation rights, but I would not bet on it. Be very careful in relying upon testimony from such a pretrial hearing as a substitute for live testimony during the actual trial. This was clearly a very difficult case to try, and now it will be made even more difficult with the court's holding.

Clinton v. State

No. PD-0119-11 : 12/14/11

Issue:

Did the transaction need to be consummated to support a jury finding that the defendant "used" a debit card in violation of PC §32.31(b)(1) (debit card abuse)?

Holding:

No. The defendant used the card when it was swiped through the card reader. The statutory terms "use" and "present" in PC §32.31(b)(1) may overlap in meaning in that a person may both use and present a debit card in the same conduct. Definitions of these terms do not depend on whether the defendant obtained a benefit. The plain language of the statute requires that an individual need only have utilized the card for the intended purpose of obtaining a benefit.
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Concurrence:

Judge Price agreed with the majority that "use" was not intended to require proof of acquisitive conduct, but regarded PC §32.31(b)(1) as ambiguous. He explained the difficulty of differentiating "use" and "present" in a way to give independent significance to both terms.
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Commentary:

This should be a very helpful decision in confronting claims that words should be given very restrictive meanings. The bottom line is that a suspect can "use" a credit or debit card, even though the transaction does not go through.

State v. Krizan-Wilson

No. PD-1485-10 : 12/08/11

Issue:

Did the trial incorrectly dismiss the indictment on the grounds that a 23-year delay between the murder and the indictment violated the defendant's right to due process?

Holding:

Yes. The defendant has the burden of proving both prejudice and that an intentional delay was designed to give the State a tactical advantage. Absent proof of an improper purpose, the simple fact that a lengthy delay has occurred for no other reason than a difference of opinions amongst prosecutors does not violate due process.
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Commentary:

The facts of this case may not come up very often. In many "cold cases," a defendant has been indicted early on, and he can make a speedy trial claim. In this case, the defendant could not make a speedy trial claim because she was not indicted until the State ultimately decided to prosecute. Good for the court to nail down that a defendant must show some sort of bad faith or bad intent on the part of the State before she can prevail on this type of due process claim.

Texas Court of Appeals

Travis County District Attorney v. M.M. – 3rd COA

No. 03-08-00241-CV : 12/8/11

Issue:

Did the trial court wrongly grant expunctions in cases evolving from a single arrest that charged DWI and assault of a public servant?

Holding:

Yes. The plain language of the former expunction statute only speaks to expunging the records relating to an arrest—not to individual records relating to a charge arising from an arrest—and the assault charge had not been dismissed, so the defendant did not qualify for an expunction.
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Commentary:

This is a well-reasoned and thoroughly researched decision. But Article 55.01 has changed substantially from the version that was applicable in this case, so it is important that you look to the new wording of the current statute if the current version of the statute applies to your case.

Ex parte Nyabwa – 14th COA

Nos. 14-11-00250/251/252-CR : 12/13/11

Issue:

Under the federal and state constitutions, is the offense of improper photography or visual recording (PC §21.15(b)(1)) facially unconstitutional or overbroad and vague?

Holding:

No. The state constitutional claims are forfeited. Also, (1) the statute is not a regulation of speech or expression but rather of the intent of the photographer and therefore does not violate the 1st Amendment; (2) the statute does not restrict a substantial amount of constitutionally protected speech and therefore is not overbroad; and (3) the statute is sufficiently definite to avoid impinging on 1st-Amendment freedoms, to avoid the possibility of arbitrary arrests and convictions, and to provide fair notice of the conduct proscribed, and therefore is not vague.
Read Opinion 

Commentary:

With the advent of new technology, this type of crime is going to become more and more common. So it is good that we have a decision that does a good job of defeating these common constitutional claims. This was a pretrial attack on the constitutionality of the statute, so we do not know the facts of the case. But one wonders how any defendant would have any real constitutional defense to such conduct.

Texas Attorney General

Opinion for Hunt County Attorney

Opinion No. GA-0895 : 12/08/11

Issue:

May a county bail bond board enact a rule that restricts a bail bond licensee from employing an individual who is currently on probation or parole, or who is the defendant in a pending criminal case?

Opinion:

No. The rule exceeds the authority of the board because it impermissibly imposed requirements additional to and in conflict of Occupations Code §1704.302(c).
Read Opinion 

Commentary:

Well, it appears that the statute should be changed then to allow a bail bond board to exclude such individuals from employment by a bondsman. It does not make much sense that a bail bond board would have no authority whatsoever to restrict the employment of a probationer, parolee, or current criminal defendant. 

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