Weekly Case Summaries: December 5, 2014

Texas Court of Criminal Appeals 

State v. Villarreal

No. PD-0306-14 11/26/14

Issue:

Is it constitutional to perform a blood draw on a driver under the authority of Texas’ implied consent laws when there is no warrant to draw the blood and the driver has explicitly stated he does not consent to the draw?

Holding:

No. A blood draw is a search, and the implied consent statutes do not create an irrevocable consent that would function as an exception to the warrant requirement of the Fourth Amendment. The court also declined to extend the automobile exception, the special-needs exception, or the search-incident to arrest exception to encompass warrantless blood draws. Read the opinion.

Dissent (Keller, P.J.):

The U.S. Supreme Court has authorized the concept of irrevocable consent in regards to probationers, and it has authorized the warrantless taking of non-invasive DNA samples from arrestees suspected of certain classes of crimes. The combination of those opinions leaves open the possibility that certain classes of DWI suspects could be made to surrender blood samples without a warrant. Read the dissent.

Dissent (Meyers, J.):

This provision should be upheld as an exception to the warrant requirement because the search is not an unreasonable one and because individuals are put on clear notice that they can expect some police intrusion under these specific circumstances. Read the dissent.

Commentary:

The majority's holding should not be too terribly surprising in light of the fact that several appellate courts had been reaching the same conclusion over the past few months. The majority's opinion is exhaustive, and it addresses all of the State’s arguments on the merits. The most important parts of the majority’s opinion can be found on pages 22 to 32 of its opinion. In that section, the majority clearly rejects the idea of implied consent as a possible exception to the search warrant requirement when there has in fact been a refusal to consent, as there was in this case. There will certainly be other decisions from the court in this area, but this appears to be the beginning of the end for the validity of implied consent as a basis for justifying a warrantless blood draw. The United States Supreme Court will ultimately get around to deciding this issue as well, but there is as yet no indication that its decision will be different from the majority’s in this case. One other question still remains: The court’s make-up will be changing significantly in the next few weeks. Will that shift be sufficient to change decisions such as this? It is possible, but that is not as easy as it might sound. Stay tuned.

Ex Parte Robbins

No. WR-73,484-02 11/26/14

Issue:

When the medical examiner changed her evaluation of the autopsy results in a capital murder case from “homicide” to “undetermined” based on her current understanding of the same evidence, was the defendant entitled to habeas relief?

Holding:

Yes. The ME’s knowledge had changed from the time she first evaluated the case, and that entitles the defendant to habeas relief under the new CCP. Art. 11.073, allowing relief on the basis of new scientific knowledge, enacted last session by the legislature. Read the opinion.

Concurrence (Johnson, J.):

The result of inexperience or outdated knowledge may be testimony that may rightfully be called bad science, even if not intentionally so, and that testimony may persuade a jury to convict when it should not. Read the concurrence.

Concurrence (Cochran, J.):

It cannot be doubted that the legislature had this very case in mind when it debated and enacted what is now Article 11.073. Read the concurrence.

Dissent (Keller, P.J.):

The statute contemplates only a change in the science underlying the testimony, not the understanding of the science. Read the dissent.

Dissent (Meyers, J.):

If the legislature wants to establish non-constitutional means for relief, it needs to arrange for the appropriate agency to handle it, such as the Board of Pardons and Paroles. The Court of Criminal Appeals judges relief dependent upon the Texas and U.S. constitutions, and article 11.073 does not provide for relief based upon any constitutional criteria. Read the dissent.

Dissent (Keasler, J.):

The court interprets the terms “scientific method” and “scientific knowledge” in a manner that reaches an absurd result and relies upon a United Stated Supreme Court case that contradicts legislative intent.  Read the dissent.

Commentary:

The majority’s holding is that a mere change in the opinion of the State’s expert witness will entitle the defendant to habeas corpus relief, even if there has been no change in the underlying scientific theory or method that gave rise to that opinion. That may be what the Legislature intended, at least in the abstract. And it may be that a jury might not have convicted the defendant if jurors had access to the new “opinion” of the Sate’s expert witness. But it sure does not seem right that a defendant’s conviction can be overturned so many years down the road by an expert who has gotten “cold feet” about her prior opinion that was (and presumably still is) entirely reasonable.

Ex Parte Tiede

No. WR-81,532-01 11/26/14

Issue:

Was the defendant entitled to a new punishment trial when the State and defense agree that newly available scientific evidence and the discovery of false testimony at trial would have affected the disposition of the case had it been known to the parties 18 years ago?

Holding:

Yes. In a case where the State and defense agreed to the relief being sought, the court granted relief without expounding on the legal reasoning. Read the opinion.

Concurrence (Alcala, J.):

A key part of the trial was expert testimony that the defendant had an unremarkable mental-health history, which was false in light of newly discovered evidence. But that evidence would have also given rise to a “sudden passion” defense which was not available at trial on the evidence that was presented. Read the concurrence.

Dissent (Keller, P.J.):

Given the serious nature of the offense of which the applicant is admittedly guilty (murder) and the questionable factual basis of the applicant’s claims (his own self-serving statements), the court ought to articulate a clear and persuasive rationale for granting relief. But the court does not because the court cannot. Read the dissent.

Commentary:

There is no real holding of the court in this case. As such, the court should not have published the decision. Only three judges joined Judge Alcala’s concurring opinion, and only two judges joined Judge Keller’s dissenting opinion. Not much more can or should be said about this case.

Dansby v. State

No. PD-0149-14 11/26/14

Issue:

Did the defendant forfeit the right to invoke the Fifth Amendment and refuse to answer polygraph questions regarding his past sexual assault victims when he agreed to the polygraph as a condition of probation?

Holding:

No. The trial court did not provide the defendant with sufficient notice that he was waiving his Fifth Amendment right. Read the opinion.  

Concurrence (Cochran, J.):

The State can avoid the conundrum this case presents by granting full immunity to the defendant in regard to crimes implicated by his answers to the polygraphs. Read the concurrence.

Commentary:

This decision deals only with preservation of error. As such, there are still better decisions upon which to rely in determining whether the State can validly revoke a defendant’s probation for failing to take or fully complete a polygraph examination. As noted by Judge Cochran, if a prosecutor really wants to revoke a defendant’s probation on that basis, give the defendant immunity for what he says during the polygraph examination.

Shelby v. State

No. PD-1372-13 11/26/14

Issue:

Does the Double Jeopardy Clause of the United States Constitution disallow dual convictions for aggravated assault with a deadly weapon against a public servant and intoxication assault stemming from the same criminal act?

Holding:

Yes. The legislature did not intend to authorize separate punishments for the offenses of aggravated assault with a deadly weapon against a public servant and intoxication assault when the convictions for those offenses are based on the same assaultive conduct against a single person.

Commentary:

This decision makes complete sense in its application, although the analysis can be a little cumbersome, as is the case with many double jeopardy decisions that rely upon multiple factors to reach the ultimate conclusion. The bottom line is that if there has been one criminal act that resulted in bodily injury, prosecutors cannot attempt to gain more than one assault conviction against the defendant. 

 

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