Weekly Case Summaries: February 17, 2017

Texas Court of Criminal Appeals

Wolfe v. State

No. PD-0292-15    2/15/17

Issue:

Can expert testimony on the subject of abusive head trauma be reliable?

Holding:

Yes. Experts’ testimony of abusive head trauma based solely on a constellation of symptoms can be reliable. After reviewing the three-part test for reliability set out in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), the Court concluded that testimony from the State’s three experts in this case was reliable. Read opinion.

Commentary:

This opinion is very thorough. If you have a case that deals with brain injury to a child/victim, you should definitely read this decision, and your expert witness should read it as well. The opinion is a painstaking analysis of the Kelly factors, which were clearly fully litigated very well by the parties both at trial and on appeal. Do not read this opinion, however, to exclude expert testimony that differs from the conclusions of the State’s expert witnesses in this case. Here, the defendant presented his own expert testimony that differed from the State’s expert testimony. There is no suggestion that the defense expert testimony was unreliable. And just because expert witnesses reach differing conclusions does not mean that one side or the other is unreliable.

Crawford v. State

No. PD-1283-15    2/15/17

Issue:

May failure to register as a sex offender be enhanced with two prior felony convictions under Penal Code §12.42(d) to subject a defendant to punishment of 25–99 years or life, or do the more specific enhancement provisions of CCP Art. 62.102 control?

Holding:

Enhancement under §12.42(d) is permissible. Enhancement of sex offender registration offenses is not limited by the provision in Art. 62.102(c), which provides that if a sex-offender-registration offender has been previously convicted of a sex-offender registration offense, his punishment is increased to the next highest degree of felony. “Article 62.102(c) only addresses how to enhance a subsequent sex-offender registration offense with a single prior sex-offender registration felony offense. … It does not expressly say how a sex-offender registration defendant may be enhanced in the event that he should have incurred multiple prior sex-offender-registration offenses.” Read opinion.

Concurrence (Richardson, J.):

The concurrence agreed that §12.42(d) applies when a defendant has more than one prior failure-to-register conviction. “By failing to include a provision regarding enhancement of a sentence for a person with multiple prior failure-to-register convictions, a person under such circumstances must be, by default, punished under” §12.42(d). Read concurrence.

Dissent (Walker, J.):

The dissent would hold that the more specific enhancement provisions of Art. 62.102(c) should apply. “Article 62.102(c) can be reasonably construed to apply to multiple failure to register enhancement convictions.” Read dissent.

Commentary:

The court has rarely addressed whether the general enhancement statute (§12.42) should apply, as opposed to a more specific enhancement provision. Much of that caselaw is now quite old. This opinion may now become the new standard on how to address such issues, especially with the majority’s use of the Code Construction Act found in §311.026 of the Government Code, which requires a court to construe statutes harmoniously if possible. This may prove quite helpful in other similar enhancement disputes.

White v. State

No. PD-1596-15    2/15/17

Issue:

Must the State prove that a defendant who delivered drugs knew his transaction happened in a drug-free zone?

Holding:

No. Because §481.134(d) does not expressly mention an additional knowledge requirement for any of the drug-free zones it identifies, there is no legislative intent that the statute requires any greater culpable mental state than that required for the underlying offense of selling or delivering drugs. “We think that, in leaving out an additional culpable mental state, the Legislature has evinced its intent that an offender who is engaging in the already censurable conduct of selling dangerous substances in this amount should have to bear the risk that he has committed his offense in a location where the substance may fall into the hands, however inadvertently, of children—regardless of whether the offender was aware of that risk.” Read opinion.

Commentary:

This opinion should be helpful to this and other situations in which an enhancement provision does not include a culpable mental state. The court refused to expand the application of §6.02 of the Penal Code to such statutes and restricted §6.02’s application only to statutes that define offenses—not enhancement provisions. And that is what §6.02 says, in any event.

Johnson a/k/a Kimp v. State

No. PD-0699-16    2/15/17

Issue:

May a butter knife be considered a deadly weapon when brandished aggressively during a convenience store robbery?

Holding:

Yes. The defendant’s words and actions are significant, along with the size, shape, and sharpness of the weapon, in determining whether it can be considered a deadly weapon. Read opinion.

Commentary:

Do not read this decision to say that all butter knives should be considered deadly weapons in assault or robbery cases. But this should nevertheless be a decision that is quite helpful to prosecutors. The court is quite deferential to the jury’s deadly weapon finding. If you have a case in which the defendant brandished a knife, make sure to read footnotes 5 and 6 of this opinion.

Deen v. State

No. PD-1484-15    2/15/17

Issue:

May a prior conviction whose sentence was illegally lenient be used to enhance a later conviction?

Holding:

Yes. Estoppel by judgment (in which a person accepted a benefit) bars this kind of collateral attack. A defendant “may not reap the benefit of an illegally lenient sentence and then, once he has discharged that sentence, invoke the illegal lenity in an attempt to prohibit the use of that conviction to enhance the sentence for a subsequent offense.” Read opinion.

Dissent (Alcala, J.):

“I agree with the court of appeals that, under the facts of this case, the doctrine of estoppel is an improper basis for denying appellant’s complaint.” Read dissent.

Commentary:

As noted in the opinion, estoppel by judgment has happened rarely. The opinion discusses this type of estoppel, as well as estoppel by contract, which is more common. The opinion does not discuss other types of estoppel, so it should not be read too expansively. This decision should be restricted to the particular situation in this case—if the defendant has accepted and received a benefit from his judgment and sentence that is too lenient under the controlling law, he cannot later challenge that conviction as an illegal sentence on that basis.

Shimko v. State

No. PD-1639-15    2/15/17

Issue:

Does every gesture to stop a moving vehicle by a uniformed officer constitute a seizure?

Holding:

No. In this case, an officer was helping a man (who had just left a bar and appeared intoxicated) flag down the driver he had called to come pick him up. The officer waved down the defendant’s car after the intoxicated man indicated that was his ride. Once the defendant pulled over, the officer noticed signs of intoxication and ultimately arrested him for DWI. The Court agreed that the trial court should have denied the defendant’s motion to suppress because there was no unlawful detention under these facts. “[O]ur holding is not meant to suggest that a police officer can simply stand in a parking lot and wave someone down who is driving by and then call that a consensual encounter. … The facts and circumstances of this case are unique. …” Read opinion.

Dissent (Keller, P.J.):

The dissent would find that the stop was a detention because a reasonable person in the defendant’s position would not have felt free to leave the scene or decline the officer’s request to stop. “To hold that a stop did not occur because there was reason to believe that the officer’s direction to stop might have been a request would allow a person to ignore a police directive when the person does not have a full understanding of the circumstances. Such a rule potentially endangers police officers and others whom an officer’s directive might be designed to protect.” Read dissent.

Commentary:

Be very careful with this decision. The 5-4 court is divided on this issue, and students of the court will note that the two opposing opinions in this case have not been rendered according to the typical ideological or philosophical lines that one would expect. If you try to rely on this decision in arguing that an officer did not initiate any kind of detention, read the facts of this case very closely, as well as the facts of Garcia-Cantu referenced in the majority opinion. And if the facts support it, have a back-up argument that relies upon community caretaking, reasonable suspicion, and/or probable cause.

Roy v. State

No. PD-1455-15    2/15/17

Issue:

Is a defendant charged with murder entitled to an instruction on the lesser-included offense of manslaughter if he testified that he knew the risks associated with drinking alcohol, smoking marihuana, and smoking PCP dip cigarettes while driving?

Holding:

Yes, in this case. Distinguishing these facts from those in Schroeder v. State, 123 S.W.3d 398 (Tex. Crim. App. 2003), in which a defendant was not entitled to a lesser-included instruction on manslaughter, the defendant in this case presented evidence that he was aware of a risk of causing death but disregarded it. Read opinion.

Commentary:

This decision does not make any sense, and it is all the more disturbing that it drew only one dissenting opinion. The court’s attempt to distinguish Schroeder v. State is difficult to fathom. The bottom line is that, if a defendant claims that he does not remember the offense, be very careful in urging to court to deny an instruction on a lesser offense that involves a lesser culpable mental state. The majority acknowledged that, to be entitled to a jury instruction on manslaughter, the defendant “must have presented affirmative evidence that he recklessly caused the death of [the victim], specifically that he was aware of, but consciously disregarded, a substantial and unjustifiable risk that the result—a death—would occur.” However, as noted on pages 7 and 8 of the majority opinion, the defendant acknowledged only a general awareness of the “risks” of driving while intoxicated, not an affirmative awareness and conscious disregard of the particular risk of death.

Texas Courts of Appeals

State v. Mutei (8th COA)

No. 08-15-00056-CR         2/10/17

Issue:

Can the testimony of a State’s witness who has provoked a mistrial be imputed to the State, even after prosecutors have cautioned the witness not to violate an order in limine?

Holding:

Yes. Because “there does not appear to be a bright line rule that would prohibit a trial court from imputing the wrongful conduct of a State’s witness to the prosecution … this issue is best addressed” in analyzing the factors for mistrial discussed in Ex parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006). In this case, however, because all six of the Wheeler factors weighed in the State’s favor, the court concluded that there was insufficient evidence to find that the State intentionally provoked a mistrial to avoid acquittal. Read opinion.

Commentary:

It will be interesting to see if the Court of Criminal Appeals will want to review this decision. It is not clear whether or to what degree the testifying officer violated the court’s order in limine. The resolution of this issue may have been easier than the court of appeals made it out to be. The 8th Court dutifully applies the factors set forth in Ex parte Wheeler, but it is not clear whether those factors still apply after the Court of Criminal Appeals has refused to follow Bauder v. State and now follows only Oregon v. Kennedy in determining whether a defendant is entitled to double jeopardy relief after a mistrial was granted based on prosecutorial misconduct.

Ex parte Bleimeyer (1st COA)

No. 01-16-00838-CR         2/14/17

Issue:

For a defendant charged with injury to a child and endangering a child whose parental rights have been terminated for six of her seven children, may a trial judge impose a condition of release on bail that the defendant inform the court if she becomes pregnant?

Holding:

Yes. Under these circumstances, this condition is not unreasonable and overbroad in violation of her right to privacy under the 14th Amendment. Although the bail condition requires notification, it does not limit the defendant’s right to make decisions regarding procreation. Read opinion.

Commentary:

This opinion is narrowly written to focus on the requirement of notification (as opposed to outright prohibition). It may rarely come up, but you can make note of this decision when relevant.

Knott v. State (8th COA)

No. 08-14-00235-CR         2/10/17

Issue:

Is a field identification (in which officers took the robbery victim to a location where a suspect was being detained) unduly suggestive to the extent that it taints the victim’s positive identification of the defendant as the assailant?

Holding:

No. Although one-person “infield showups” are generally not used because they tend to be suggestive, an identification made in a one-person showup does not automatically violate the defendant’s due process rights. In this case, several factors support a finding that the showup was not improperly suggestive, including: (1) the victim saw the defendant at least twice on the night he was robbed, and because a video recording of the encounter shows that the offense happened in a relatively well-lit area and the suspects were clearly visible in the recording; (2) nothing in the record suggested that the victim’s attention was diverted or he was unable to focus on the defendant during the robbery; (3) the victim’s verbal and written descriptions of the perpetrator prior to the showup were specific and matched the defendant; (4) the victim said he was certain the defendant was the perpetrator; and (5) there was only half an hour between the crime and the showup. Read opinion.

Commentary:

One-on-one show-ps should no longer happen as a matter of course, but they may still happen in cases in which the defendant/suspect has fled the scene of a recently committed offense. This is a good decision (among others) to support a pre-trial identification based upon a one-on-one show-up. Make sure your local law enforcement agencies have a policy on one-on-one show-ups. But such a pre-trial identification can still be admissible if there is no policy or even if the policy was technically violated.

Busbee v. State (13th COA)

No. 13-16-00555-CR         2/9/17

Issue:

Does the Due Process Clause give a defendant the right to allocution to humanize his situation by personally addressing the court when the defendant faces the possibility of a lengthy or stacked sentence?

Holding:

No. Code of Criminal Procedure Art. 42.07 provides for limited allocution by a defendant. “We choose not to expand article 42.07 to allow a defendant to bring to the court’s attention unsworn facts that may not be of record because the trial court might impose the upper limit of a sentence range or because it might stack sentences.” The Court concluded there is no constitutional right of allocution even in cases with high sentencing exposure. Read opinion.

Commentary:

Even though judges may often use the term or permit the practice, allocution is a concept that is not well-established in Texas criminal law. Show your judge this decision if a defendant demands his right to allocution before being sentenced—but do not go crazy. If a defendant wants to briefly address the court about any mitigating circumstances before being sentenced, it should not hurt to let him.

Powers v. State (12th COA)

No. 12-15-00237-CR         2/8/17

Issue:

Must the State prove the defendant caused a lack of assistance to an injured person under the failing to stop and render aid statute (Transportation Code §550.021)?

Holding:

No. Nothing in §§550.021 or 550.023 or Penal Code §6.04 requires that a defendant’s conduct cause a particular result. Failure to stop and render aid is a circumstances-of-conduct offense rather than a result-of-conduct offense. Read opinion.

Commentary:

This decision is consistent with how courts have treated this offense in the past. The defendant in this case left the scene of the accident to avoid being arrested on an outstanding warrant. The statute does not permit her to do that, regardless of how helpful or unhelpful other persons are being.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]