Weekly Case Summaries: February 8, 2013

Fifth Circuit

United States v. Cervantes

Nos. 11-41385 & 11-41407        1/30/13

Issue:

Did the court’s exclusion of some of the three co-defendants’ family members during jury selection deny the defendants a public trial?

Holding:

No. The well-developed record contained the court’s multiple substantial reasons supporting the partial closure of the proceedings. The court considered the space constraints, time delays, and the comfort and safety of panelists. Also, the defendants were each permitted three relatives present.
Read opinion

Commentary:

This is a good decision, but do not let this be the only decision you read if your judge wants to exclude even a few people from even a portion of the trial. I would also look at Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012), and Steadman v. State, 360 S.W.3d 499 (Tex. Crim. App. 2012), and the Supreme Court cases upon which they rely. If your judge does wish to exclude even a few people from even a small portion of the proceedings, you would still do well to read this decision and take particular note of the extensive findings that the trial judge made (and is required to make) to justify the exclusion. Interestingly, the Court of Criminal Appeals is currently reviewing a decision in which a few persons were apparently excluded from the courtroom during jury selection.  Stay tuned.

Court of Criminal Appeals

Jacobson v. State

No. PD-1466-11        2/6/13

Issue:

Does a defendant who admits guilt in the punishment phase of trial forfeit the right to complain on appeal about improper jury argument during the guilt-innocence phase?

Holding:

No. The Court abolishes the DeGarmo doctrine and concludes that regardless of whether a guilt-stage error is fundamental, admission of guilt at punishment does not waive the right to raise guilt-innocence stage error on appeal. The harmless error rule is the appropriate protection from unwarranted or undeserved reversals for improper closing arguments.
Read opinion

Dissent (Womack):

The DeGarmo doctrine should be preserved as limited by Leday v. State. The prosecutor’s argument in this case is not in the class of fundamental errors that may be raised on appeal after an admission of guilt at punishment.
Read dissent

Commentary:

The DeGarmo doctrine has been pretty much dead for many years, and the doctrine is largely of interest only to appellate prosecutors. The bottom line is that we can no longer rely upon it. If a defendant testifies at the punishment stage and admits his guilt, he can still challenge guilt-stage errors that he might be able to identify on appeal.

Everitt v. State

No. PD-1693-11        2/6/13

Issue:

Did the defendant properly preserve his argument that the trial court erred in admitting a videotaped admission to taking hydrocodone and expert testimony regarding the drug’s effects?

Holding:

Yes. To preserve error, a party must let the trial judge know what he wants, explain why he is entitled to it, and obtain a ruling on the objection either expressly or implicitly. Here, the defendant filed a motion to suppress, re-urged objections at trial, cited cases in support of his objections, and obtained rulings from the trial court that implicitly found the taped statement was relevant and the expert testimony reliable.
Read opinion

Commentary:

This is another decision that will be largely of interest only to appellate prosecutors. But keep a watch on this decision if you handle driving while intoxicated cases because now, with this decision, the court of appeals will be forced to address the merits of the defendant’s challenge to the expert testimony that the Court of Criminal Appeals has held must be admitted if the State admits drug-related testimony in an alcohol-based intoxication prosecution. Make sure your expert testimony is sufficiently developed to be admissible and thus justify the admissibility of the drug-related evidence.

Texas Courts of Appeal

State v. Jewell

No. 10-11-00166 –CR        1/31/13  (not design. for pub.)

Issue:

Did the trial court properly rule that a DWI defendant’s hospital medical records, including his blood alcohol test results, which were obtained by a grand jury subpoena and then a county clerk’s subpoena, were inadmissible?

Holding:

No. Even after the advent of HIPAA, a person lacks standing to complain about the use of a grand jury subpoena to obtain his blood-alcohol test results. But a defendant does have standing to challenge how the State obtained his medical records, and the grand jury subpoena was invalid. Nevertheless, the taint of the illegal grand jury subpoena used to obtain the blood test results was attenuated by the subsequent valid clerk’s subpoena, so the remaining medical records were admissible.
Read opinion

Concurrence:

“Because I am not inclined to explicitly hold that [the defendant] has an absolute and reasonable expectation of privacy in all of his medical records, other than his blood-test results, I cannot join the lead opinion.”

Commentary:

After reading this decision and the concurring statement and the concurring opinion, it is hard to discern a holding that has any precedential value. It seems that the Court of Criminal Appeals will want to review this decision to determine how HIPAA applies in relation to its previous decision in Hardy, cited in this opinion. When using grand jury subpoenas to obtain evidence, especially in DWI cases, it may be important to do all we can to comply with the statutes in Chapter 20 of the Code of Criminal Procedure. But it seems that a defendant cannot articulate a reasonable expectation of privacy in the typical records we obtain from such grand jury subpoenas, even after HIPAA. I hope the Court of Criminal Appeals grants review of this case and reaffirms Hardy.

Licerio v. State

No. 12-11-00326-CR        1/31/13 (not design. for pub.)

Issue:

Did a jury charge alleging organized criminal activity include the element that the defendant acted with the intent to establish, maintain, or participate as a member of a criminal street gang? 

Holding:

No. A person violates PC §71.02 if he commits one or more of the enumerated offenses with the intent to establish, maintain, or participate: 1) in a combination; 2) in the profits of a combination; or 3) in the role, capacity, or function of a member of a criminal street gang. The State improperly argued that the charge did not require proof that the defendant committed the burglary of the vehicle with the intent to establish, maintain, or participate as a member of a criminal street gang. The harmful error required a new trial.
Read opinion

Commentary:

The dispute in this case arises over the correct construction of §71.02, and—even though the opinion is unpublished—the Court of Criminal Appeals may want to review this decision for that reason. The defendant got the better of the argument at this stage, but the statute is open enough to interpretation that it should be reviewed, especially with the prevalence of gang activity providing the basis for engaging prosecutions. If you prosecute one of these cases, read this decision and make sure your jury charge follows suit (at least until the Court of Criminal Appeals gets a chance to review it).

Texas Attorney General

Opinion for Administrative Director of the Office of Court Administration

No. GA-0986        2/5/13

Issue:

May a prosecutor require that a defendant enter a guilty plea as a condition for participation in a pretrial diversion program under Government Code §76.011?

Opinion:

Existing Texas law contains virtually no useful legal guidance regarding pretrial intervention programs, and there is no legal authority directly limiting the scope of a pretrial intervention agreement. Until the Legislature provides a more explicit legal framework, the Attorney General cannot answer the question.
Read opinion

Commentary:

You may be aware that pretrial diversion has been controversial in a few places across the state in the recent past. It is not surprising that the Attorney General could not issue an authoritative opinion on this matter because there is so little written about pretrial diversion (or pretrial intervention) in the statutes. Perhaps the Legislature will step in, but it seems like they have a lot of other issues to address that may be more pressing.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, 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 information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to casesummary@tdcaa.com. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.