Weekly Case Summaries: February 14, 2014

Texas Courts of Criminal Appeals

Reynolds v. State

No. PD-1369-12                     2/12/14

Issue:

Did the legislature’s 2005 amendments to the sex offender registration statute require a defendant to begin registering even though he was initially convicted in 1990 and had never previously been required to register?

Holding:

Yes. After being convicted in 1990 for sexual assault of a child, the defendant was not required to register as a sex offender when his sentence was complete in 1995. The registration statute was amended multiple times over the next decade, each time with a “savings clause” that clarified the statute was not retroactive as to convictions as old as his. In 2005, the legislature deleted all of the savings clause language. The plain language of the resulting statute requires everyone convicted of a registerable offense after 1970 to now register with DPS. Read the opinion.

Dissent (Price, J.):

The court ruled that a challenge to the constitutionality of the statute based on its retroactivity had not been preserved and did not consider it. The court should have considered the merits of the constitutional challenge and remanded the case to the court of appeals. Read the dissent.

Commentary:

The court does not reach the question of whether it is unconstitutional to retroactively impose a registration requirement upon a sex offender who was not previously required to register. But the prevailing view is that such a retroactive application does not constitute an ex post facto violation. It is also clear that the Legislature’s intent was to require such sex offenders to register.

Texas Courts of Appeals

Lyssy v. State

No. 01-12-00898-CR                          2/6/14

Issue:

If an arresting officer orders an implied-consent blood draw because dispatch erroneously tells him the suspect has two previous DWI convictions when he actually has only one, are the results of the blood draw still admissible?

Holding:

Yes. When an officer has credible information from a reliable source that the suspect has at least two previous DWI convictions, §702.014(b) of the Texas Transportation Code requires the officer to order a blood draw. The fact that the officer later discovers the information he received was incorrect does not alter his obligation under the statute. It did not matter that the officer testified at the suppression hearing, before the evidence had been admitted at trial, that the information he received from the dispatcher was wrong. The blood draw was legally obtained under the statute and the evidence was admissible. Read the opinion.

NOTE: The court held that the defendant had not preserved for appeal an argument that the statute is unconstitutional under McNeely and did not consider the constitutionality of implied consent statutes.

Dissent (Keyes, J.):

The officer’s subjective belief that the information he was relying on was accurate does not change the fact that the defendant only had one previous DWI. The “three-strikes” statute was therefore not activated and the blood draw was illegal. Read the dissent.

NOTE: The dissent does engage in a McNeely analysis and determines that McNeely only considers exigent circumstances and does not implicate Texas’ implied-consent laws.

Commentary:

It would appear that the Court of Criminal Appeals already has before it cases in which the court will address how Missouri v. McNeely affects our mandatory-blood-draw and implied-consent statutes. The only way that the court will be able to reach Missouri v. McNeely in this case is if the judges disagree with the majority’s holding here that the issue was not preserved for the purposes of appeal. There is a good chance that might occur because the dissenting opinion addressed Missouri v. McNeely. Apart from that, the decision is a good application of the state statute and essentially what amounts to a “good faith” argument applied to the statute.

Hutchinson v. State

06-13-00035-CR                     2/5/14

Issue:

If a defendant is in custody and does not receive any Miranda warnings but gives an oral statement to law enforcement regarding the location of contraband, does the fact that the statement proved to be true mean that Art. 38.22, §3(c) of the Code of Criminal Procedure allows admission of the statement despite the fact the defendant was not advised of his rights?

Holding:

No. Article 38.22, §3(a) enumerates five prerequisites for an oral statement from a defendant to be admitted at trial. The first is that the statement must be recorded. The second is that a Miranda warning must be given and the defendant must voluntarily waive those rights. However, Article 38.22, §3(c) says that §3(a) does not apply if the facts asserted in the oral statement are proven true. The court held that §3(c) could be properly read to allow unrecorded oral statements to be admitted when they are corroborated, but the statute would likely be unconstitutional if it was also read to provide a new exception to Miranda warnings. Because the Code Construction Act requires courts to construe statutes so they will pass constitutional muster, there is no room to allow Art. 38.22, §3(c) to nullify the Miranda mandates. Read the opinion.

Commentary:

This is a very thorough and well-reasoned decision. If you wish to introduce a defendant’s oral statement under §3(c), read this decision and determine what must be established to satisfy that portion of Article 38.22. 

Ramirez v. State

No. 14-12-01130-CR              2/4/14

Issue:

Was the defendant entitled to a lesser-included instruction for theft in an aggravated robbery trial when he did not offer evidence of the value of the stolen property?

Holding:

No. Theft is undoubtedly a lesser-included of aggravated robbery, but one of the prongs to determine whether a lesser-included instruction is required is whether the evidence showed the defendant could be guilty of only the lesser-included. Evidence of value is necessary to support a conviction for theft, and without that evidence, a judge should not grant a request for a lesser-included. Read the opinion.

Commentary:

This decision reveals that the prevailing view among Texas courts is that a defendant is not entitled to a jury charge on the lesser-included offense of theft unless the record establishes the value of the property that was stolen. The Texas Court of Criminal Appeals has not yet weighed in on this issue, so the court may opt to review it.

Rodriguez v. State

No. 04-12-00341-CR              2/5/14

Issue:

The defendant rejected the State’s plea offer of a 10-year prison sentence and proceeded to trial, where a jury sentenced him to eight life sentences and one 21-year sentence. After the trial court made the uncontested finding that the defendant’s original counsel was incompetent, was the State required to reinstate the 10-year plea offer?

Holding:

Yes. There was a reasonable probability that the defendant would have accepted the plea offer if he had received competent counsel. Although the caselaw for these situations says that the defendant is entitled to a specific remedy, it directs courts to apply a solution “tailored to the specific harm.” In this case, the court reasoned that meant returning the defendant to the same position he was in before he received his attorney’s advice to reject the plea offer. Read the opinion.

Commentary:

This decision should be reviewed by the Texas Court of Criminal Appeals, both as to the application of Supreme Court precedent and as to the remedy applied by the court of appeals. The Supreme Court precedent is only a couple of years old, and the Court of Criminal Appeals has addressed this issue in only one published decision. That is not to say that the court of appeals has issued the wrong decision in this case, but the importance of the decision necessitates review by the Court of Criminal Appeals. All of these decisions place prosecutors in the uncomfortable posture of making sure that defense counsel has properly done his job when a plea bargain offer has been rejected. Any time that a plea bargain offer has been rejected, it might be helpful to get that on the record. That will not guarantee success in a subsequent ineffective assistance claim, but it could help.

Ex Parte Reyna

No. 10-11-00217-CR              1/30/14

Issue:

Was the defendant’s habeas appeal from a 20-year-old misdemeanor DWI plea bargain barred by the equitable doctrine of laches?

Holding:

Yes. The Court of Criminal Appeals modified the parameters of the doctrine in September 2013 by removing the requirement that the State make a “particularized showing of prejudice” in the way the passage of time has hindered the State’s ability to respond to the appeal and by expanding the definition of prejudice to include any circumstances that place the State in a less favorable position. This analysis now includes such factors as the length of the applicant’s delay in filing the application, the reasons for the delay, and the degree and type of prejudice resulting from the delay. The Court of Criminal Appeals noted in September that delays of more than five years may generally be considered unreasonable. Applied to this case, the passage of time for a misdemeanor resulted in essentially no records being left regarding the DWI conviction, and there was no evidence that justified a 20-year delay in the appeal. Read the opinion.

Commentary:

This decision will probably be of interest only to post-conviction prosecutors, but it is a good application of the recent decision on laches from the Court of Criminal Appeals in Ex parte Perez. The doctrine of laches makes complete sense: A defendant should not be permitted to wait forever before raising a habeas corpus claim.

 

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