Weekly Case Summaries: February 10, 2012

Fifth Circuit Court of Appeals

United States v. Gray

No. 10-11150 : 2/1/12

Issue:

Was a proctoscopic examination under sedation pursuant to a warrant, obtained on the belief that the suspect was concealing crack cocaine in his rectum, reasonable under the 4th Amendment?

Holding:

No. Noting "compelling reasons to justify departure from its normal good-faith-first approach," the court held the search unreasonable due to "the exceeding affront to Gray's dignitary interest and society's diminished interest in that specific procedure in light of other less invasive means."
Read Opinion 

Commentary:

The court of appeals held that the procedure conducted in this case was a greater affront to the defendant's dignity than even exploratory surgery (which had been conducted in a previous case cited by the court). Even though the defendant was sedated, he was still conscious, while he was probed in a highly personal and private area. The court of appeals suggested that the evidence could have instead been recovered by a cathartic or an enema. Having said all of that, however, the court of appeals still held that the evidence was admissible because the officers were acting in good faith upon a search warrant. This holding is similar to the recent holding of the Court of Criminal Appeals in Hereford v. State, 339 S.W.3d 111 (Tex. Crim. App. 2011), in which the court held to be unreasonable the repeated stunning of the defendant (including in his groin area) in order to get him to open his mouth. But do not take that as an indication that all body cavity searches are unreasonable. There are plenty of cases in which body cavity searches have been upheld.

Court of Criminal Appeals

Ex parte Jimenez

NO. AP-76,575 : 02/08/12

Issue:

Was the defendant's conviction for unlawful possession of a firearm by a felon void because the defendant successfully challenged his predicate felony conviction after being found guilty of possession of a firearm?

Holding:

No. The defendant had the status of a felon at the time he possessed the firearm. The conviction for unlawful possession of a firearm by a felon was not void when the predicate felony conviction was subsequently set aside.
Read Opinion 

Dissent:

Judge Meyers would grant relief on actual innocence grounds.
Read Dissent 

Commentary:

This is an interesting holding. But you cannot feel too sorry for the defendant because he waited many, many years to challenge the validity of his prior predicate felony conviction (claiming ineffective assistance of counsel). He should have challenged that conviction much sooner if he wanted to be free to possess a firearm.

Alford v. State

NO. PD-0225-11 : 02/08/12

Issue:

Did the trial court properly admit the defendant's custodial statement made in response to questions during an administrative booking procedure?

Holding:

Yes. The booking exception to Miranda applied because the question objectively related to the government's legitimate administrative concern in identification and storage of an inmate's property.
Read Opinion 

Commentary:

This probably becomes the lead case on what constitutes a "booking question" that is not subject to the requirements of Miranda—whether the question reasonably relates to legitimate administrative concern. Here the defendant admitted that he owned a flash drive that was found in the back area of a patrol car where he had been seated. The problem for the defendant is that flash drive (which was not incriminating) was accompanied by ecstasy (which is).

Tienda v. State

NO. PD-0312-11 : 02/08/12

Issue:

Did the trial court correctly admit into evidence electronic content obtained from the defendant's MySpace webpage during both guilt/innocence and punishment phases of trial?

Holding:

Yes. The prosecution provided facts sufficient to support a reasonable jury determination that the evidence proffered was created by the defendant and authentic under TRE Rule 901.
Read Opinion 

Commentary:

This case makes clear that many authentication determinations are made on a case-by-case basis. This opinion is very thorough, and it uses much of the contents of the MySpace pages to assist in authenticating the pages—to show by circumstantial evidence that they were created and authored by the defendant. This is a very well-written and exhaustively researched opinion, and it will now be the lead opinion in Texas on the authentication of web-related or electronic content.

Nguyen v. State

NOS. PD-0260-11 & PD 0261-11 : 02/08/12

Issue:

Was the trial judge's order of consecutive sentences authorized by PC §3.03(b)(2)(B)when the defendant was originally charged with multiple sexual offenses, but pursuant to a plea bargain, pled guilty to multiple nonsexual offenses?

Holding:

No. The statute does not authorize a trial judge to cumulate sentences when a defendant has not been found guilty of multiple specified sexual offenses or when he has entered into a plea bargain for nonsexual offenses, regardless of the charges in the original indictment.
Read Opinion

Commentary:

This seems to be the correct result. A significant amount of legislative history was examined, and it seems pretty clear that the Legislature did not intend consecutive sentences for a defendant who was not actually convicted of, or placed on probation for, a non-sex-related offense.

Texas Court of Appeals

Scott v. State – 1st COA

No. 01-10-00698-CR : 2/2/12

Issue:

Did the trial court properly admit an officer's testimony about the defendant's medications?

Holding:

No, the evidence was neither relevant nor reliable, and the officer was not qualified to offer such detailed testimony about prescription medications or his understanding of the effects of the prescriptions on the defendant. Also, the error was not harmless.
Read Opinion 

Commentary:

This officer was not certified as a drug recognition expert, but he had taken several DRE courses and had worked as an EMT. There were several prescription medications in the defendant's vehicle, but the officer testified that the defendant must have been taking something else because those medications could not have been causing the defendant's behavior at the time that he was stopped. His familiarity with one of the drugs in the defendant's possession was based upon the fact that his wife had taken it in the past. Nevertheless, he was permitted to testify in great detail about the effects of the drugs in the defendant's vehicle and how long they would have affected the defendant. In order to present such testimony, we are simply going to need a strong expert foundation. Nonetheless, we may still see this case on petition for discretionary review because it raises some important issues.

Herring v. State – 6th COA

No. 06-11-00109-CR : 2/2/12

Issue:

Was a juvenile's confession improperly "harvested" under the Family Code provisions when two detectives were present during the magistrate's reading of the warnings to the juvenile?

Holding:

No; although a magistrate must review a juvenile's confession with only the juvenile present, a detective's presence during a magistrate's warnings does not violate any statute.
Read Opinion 

Commentary:

This is a subtle distinction, so make sure that your officers understand it. But the decision is well-written and very helpful because officers may often be present while the magistrate "warns" the juvenile defendant. The holding should hold up on further review.

Brumley v. State – 9th COA

No. 09-10-00354-CR : 2/1/12

Issue:

When the plea agreement provided for deferred adjudication community supervision and concurrent sentences, did the trial court improperly order consecutive sentences on revocation of regular community supervision?

Holding:

No. When placed on regular community supervision instead of deferred community supervision, the defendant failed to move for withdrawal of his plea, and neither the defendant nor the State challenged the trial court's original order; thus, the trial court had implicitly rejected the agreement and the parties had accepted it.
Read Opinion 

Commentary:

This is a very logical approach, and a reasonable holding. We usually do not see trial courts rejecting plea agreements, and then proceeding with their own sentencing decision. The one wrinkle is that the trial judge will announce that he is not following the parties' plea agreement. That is not what occurred here because the trial judge acted as if he was following the parties' agreement. Consequently, it is possible that the Court of Criminal Appeals may review this decision on petition for discretionary review. 

Texas Attorney General

Request from Van Zandt County Criminal District Attorney

RQ-1039-GA : 01/31/12

Issue:

Who has the authority to set the compensation and the hours of the court reporter for a statutory county court?
Read Request 

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