Weekly Case Summaries: December 2, 2016

Court of Criminal Appeals

Guthrie-Nail v. State

No. PD-0125-14                 11/23/16

Issue:

Does a trial court have discretion to choose not to enter a finding on a deadly weapon?

Holding (per curiam):

The majority determined that the State’s motion for rehearing (from this decision) was improvidently granted and did not discuss the merits of the case. Read.

Dissent (Yeary, J.):

In his dissent Judge Yeary argued that a judicial determination of a deadly weapon was made by law when the judge accepted a guilty plea from a defendant who had pled guilty to an indictment that explicitly charged the use or exhibition of a deadly weapon. The entry of “N/A” on the original court record does not show a court determination that the defendant did not use a deadly weapon, and the court’s nunc pro tunc order including a deadly weapon finding was a proper order to amend the judgement. Read.

Commentary:

Back in September of last year, a majority of the court decided that this case should be remanded to determine if the trial judge did in fact make a deadly weapon finding. The case has sat pending on the State’s motion for rehearing for over a year. In dismissing the State’s motion for rehearing, the court continues to let the waters concerning deadly weapon findings be unnecessarily muddy. The bottom line for these types of cases is to make sure that a judge makes an express deadly weapon finding. If he does not, consider suggesting on appeal that this decision (and Hooks v. State upon which it is based) should be overruled.

Ex parte Temple

No. WR-78,545-02            11/23/16

Issue:

Is a prosecutor’s opinion regarding potential Brady information determinative?

Holding:

No. While a prosecutor has a responsibility to assess what information may be favorable to the defense, the prosecutor is not the final arbiter. And a prosecutor who withholds information that he or she does not believe to be Brady information risks violating that standard if a reviewing court later decides it should have been turned over to the defense. Additionally, all Brady information must be turned over early enough that the defendant has the ability to effectively use the information at trial. Read.

Concurrence (Yeary, J.):

Judge Yeary disagreed; he would not have found relief based on Brady because he does not find significant undisclosed evidence that would have affected the trial decision. He would, however, grant relief based on ineffective assistance of counsel because the defense attorney failed to re-examine a defense witness whose testimony was important to the defensive theory that the defendant did not have time to commit the crime. Read.

Commentary:

This decision is not published and thus has no real precedential value. And after the passage of the Michael Morton Act, it is hard to imagine that this decision would tell prosecutors anything that they should not already know about their obligations to disclose evidence to the defense. But the relatively short majority opinion will tell you little about the enormously complex facts of this case. In order to grasp that, you would need to read Judge Yeary’s much more thorough opinion.

Texas Courts of Appeals

Cook v. State (2nd COA)

No. 02-15-00319-CR         11/10/16

Issue:

Was a defendant’s home a “suspicious place” under Code of Criminal Procedure Article 14.03 to justify a warrantless arrest?

Holding:

Yes. The court finds that any place may be “suspicious” when there is a reasonable belief that a person at that place has committed a crime and exigent circumstances call for immediate police action. In general, a place is suspicious only if there is a very short timeframe between the crime and the presence of the defendant in a place. In this case, there was very little time between the original police call that the defendant was driving while intoxicated, the defendant pulling into her garage, and the police arriving and arresting the defendant at her home; thus, her home was a “suspicious place” under 14.03. Read.

Dissent (Dauphinot, J.):

Justice Dauphinot questioned the entire basis for a warrantless arrest under CCP Article 14.03. In her view the concept of “breach of the peace” has been expanded far beyond its original intent and contradicts federal and state warrant requirements. Read.

Commentary:

This is a really good decision on what constitutes a “suspicious place” under Article 14.03. And the decision is also quite helpful on the reliability of citizen-informants in determining reasonable suspicion and the necessity of considering all of what law enforcement has discovered in determining reasonable suspicion or probable cause—the so-called “collective knowledge doctrine.” If you prosecute driving while intoxicated cases on a regular basis, keep this decision handy.

Chaparro v. State (7th COA)

No. 07-14-00153-CR         11/8/16

Issue:

Is extraneous offense evidence, used to prove identity, admissible even when there is evidence to prove the defendant’s guilt under the law of parties?

Holding:

Yes. In this case, there was no direct evidence to link the defendant to the robbery, so the State presented evidence of three extraneous offenses to show a modus operandi and prove the defendant’s identity, as it was contested at trial. The fact that there may have been evidence to convict the defendant under the law of parties even without the extraneous offense evidence is not enough to make such evidence irrelevant or overly prejudicial. Read.

Commentary:

This should be a very helpful decision if you are faced with a similar fact situation. But make sure that a defendant’s extraneous offenses are sufficiently similar to be admissible on the issue of identity.

Fields v. State (4th COA)

No. 04-15-00585-CR         11/30/16

Issue:

Was an autopsy photo of an unborn child victim admissible over a Rule 403 objection?

Holding:

Yes. The majority holds that autopsy photos are generally admissible unless they show some mutilation from the autopsy itself, and in this case the photo showed the second victim of the offense the defendant was on trial for, so it was clearly relevant. Read.

Dissent (Chapa, J):

Justice Chapa dissented because in her view the majority opinion would always allow for admission of any autopsy photo of a victim without considering all the 403 factors. She believes the photograph in this case did not prove any issue in dispute and there was no particular need for this evidence by the State, so given the nature of the photograph and its ability to inflame the jury, the photo’s admission was unnecessary and should have been excluded under Rule 403. However, she would not find that the photo’s admission influenced the jury’s decision or affected the defendant’s substantial rights. Read.

Commentary:

You should generally be very reluctant to introduce into evidence an autopsy photograph of an unborn child, as revealed by Erazo v. State, cited in this decision. But because the unborn child in this case was one of the victims of the charged offense, the autopsy photograph was appropriate. 

Gandara v. State (8th COA)

No. 08-15-00201-CR         11/16/16

Issue:

In a bribery prosecution, does a city councilman have a “direct and substantial interest” in the welfare of the residents of the city under Penal Code

§36.02(a)(1)?

Holding:

No. The actions in this case involve a city councilmember’s desire to get support for the annexation of a local business district, designed to increase the tax-base of the city. Without more, that is not enough to show a “direct and substantial interest”—when considering the tax implications, the defendant councilman’s interest was not greater or less than any other resident of the city, and there was nothing to show that any benefit to the city would distinctly benefit the defendant to a large degree. Under the State’s reading of the statute, nearly “every public official that furthered the interests of the constituency of which he was a member, would be subject to prosecution for bribery.” Read.

Commentary:

The councilman in this case sought a local business’ support for the city’s annexation of an important business area. In exchange, the councilman would vote in such a way as to procure promotional funding for the business. This is certainly not your typical bribery case. But if you do have a potential bribery case, read this decision because it seems to cite to every bribery case ever decided in Texas.

Martinez v. State (8th COA)

No. 08-12-00320-CR         11/16/16

Issue:

Does a legislative amendment to the previous §841.085 of the Health and Safety Code (now §841.082(3)) usurp the executive clemency power in its application to pending convictions?

Holding:

No. The court disagreed with the Sixth Court of Appeal in Vandyke v. State and determined that “the unique power given to the Legislature to define what is a crime and to apply that change retroactively to cases pending on appeal does not unduly interfere with the executive branch’s exercise of its power of clemency, even though those powers can be exercised during the same time period and even though the exercise of those powers may both affect a defendant’s case, albeit in different ways.” Read.

Commentary:

This decision places the issue squarely before the Court of Criminal Appeals. Actually the issue was already squarely before the Court of Criminal Appeals because the court granted the defendant’s petition for discretionary review in Vandyke, so stay tuned.

Reynolds v. State & Ross v. State (6th COA)

Nos. 06-15-00194-CR & 06-15-00179-CR                 11/30/16

Issue:

Were the actions taken by the defendants, as employees of the Department of Family and Protective Services, enough to uphold convictions for official oppression under Penal Code §39.03?

Holding:

Yes. To prove official oppression in these cases, the State must prove that the defendants intentionally subjected the victims to unlawful searches and/or seizures while acting on behalf of the DFPS, knowing that their actions were unlawful at the time. Both defendants’ actions were found to be unlawful because they each acted outside of their authority as members of DFPS and instead subjected the victims to searches and seizures in an attempt to gather evidence of crimes. The search and seizure of the victim’s cell phone by one defendant and the warrantless search of another victim’s home were both found to be official oppression. Read Reynolds, and Ross.

Commentary:

The legal authority used in the Ross case was an “order in aid of an investigation” under §§261.301 and following of the Family Code. The court essentially held that the defendant’s search exceeded the scope of the order by searching a kitchen (apparently for drugs, not the endangered child). The court also held that there was no emergency (an exception to the warrant requirement) because the defendant did not act like there was an emergency. Rather, “she took the time to investigate, draft the affidavit, and wait for the order in aid of investigation before proceeding.” The State also presented a great deal of evidence that the defendant knew that her conduct was unlawful—actually the most important part of this type of official oppression prosecution. The facts of the Reynolds case are similar, and it involved the search of a cell phone. Both of these decisions should certainly give CPS workers and other similar investigators fair warning.

Commission on Lawyer Discipline v. Hanna (14th COA)

No. 14-15-00931-CR         11/29/16

Issue:

Does Texas Disciplinary Rule of Professional Conduct 3.09(d)—which requires prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense”—impose a post-conviction duty of disclosure?

Holding:

At the time of the conduct at issue, no. Nothing in the Rule’s plain language makes it applicable to post-conviction matters. Additionally, the fact that the ABA later amended its (identical) version of the rule to explicitly require post-conviction disclosures supports the argument that the Texas version of 3.09(d) did not clearly require such action. The court made no comment on whether Rule 3.09(d) would apply to impose a post-conviction duty of disclosure in a case arising after the amendment of Article 39.14 by the Michael Morton Act and informed by the prosecutorial post-conviction duty of disclosure codified in that Act. Read.

Commentary:

This decision is an interesting construction of Rule 3.09(d) at the time of the prosecutors’ actions. But after the Michael Morton Act (and even before in light of a prosecutor’s continuing Brady obligation), this decision provides no real change in prosecutors’ obligations to produce exculpatory evidence whenever it is discovered.

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