Weekly Case Summaries: January 11, 2013

Fifth Circuit

United States v. Andres

No. 11-40783        01/03/13

Issue: 

Under the “plain error” doctrine (because the defense failed to preserve error), did the warrantless installation and use of a GPS device on a vehicle constitute an unreasonable search under the 4th Amendment requiring suppression of the evidence obtained?

Holding:

No. Even assuming that a constitutional violation occurred and that suppression would otherwise be appropriate, the evidence should not be suppressed because the officers acted in reasonable reliance on the binding circuit precedent of United States v. Michael, 645 F.2d 252, 257 (5th Cir. 1981) (en banc).
Read opinion

Commentary:

Because this case is in federal court, the warrantless attachment of a GPS device is upheld because the federal agents who attached the device acted in “good faith” reliance on old Fifth Circuit precedent. Unfortunately for those of us in Texas state courts, our good faith rule applies only to good faith reliance on a warrant based on probable cause. Still, this case shows you why you need a good relationship with your local United States Attorney’s office.

Court of Criminal Appeals

Ex parte Parrott

No. AP-76,647        1/9/13

Issue:

Is habeas relief appropriate for an illegal sentence based on the improper use of a state jail felony conviction to enhance punishment when the defendant had other felony convictions that could have properly been used?

Holding:

No. The defendant must show harm in a habeas corpus claim based on an illegal sentence. Because the defendant had three prior felony convictions that could have been used for enhancement purposes and he was properly admonished as to the possible range of punishment, he failed to make a showing of harm.
Read opinion

Dissent (Meyers, J.):

The majority creates new law without any basis, and there has been no determination as to whether the other felony convictions were valid.
Read dissent

Dissent (Hervey, J.):

Estoppel does not apply to prevent the defendant from complaining because he did not benefit from a “too lenient” sentence. Additionally, when parties have bargained for an illegal sentence, due process requires returning them to their respective positions before the plea agreement.
Read dissent

Commentary:

If you are a career criminal with many prior convictions, you will not make much headway arguing enhancement technicalities in a writ. The outcome would be different on direct appeal.

Padieu v. 5th COA

No. AP-76,727        1/9/13

Issue:

Does an intermediate appeals court have jurisdiction to hear a mandamus petition relating to a motion to gain access to the trial record when it is possible the record will be used to file a petition for a CCP art. 11.07 writ?

Holding:

Yes. When there is no currently pending art. 11.07 writ application, the court of appeals has jurisdiction to rule on a petition for writ of mandamus related to a motion requesting access to material that may be used in a future application.
Read opinion

Commentary:

Another decision mainly of interest to writ writers and writ lawyers. There is seldom much pre-writ discovery litigation, but this case tells you where to file your mandamus.

Sullivan v. State

Nos. PD-1678-11 & 1679-11        1/9/13

Issue:

Where a trial judge’s oral and written sentence cumulation pronouncements differ, and each contains an illegal cumulation, may the appellate court amend the order without remand?

Holding:

Yes. The court may delete the illegal portions of the cumulation order, and because the trial judge’s intent was clear, modify the order to reflect that intent without remand.
Read opinion

Dissent (Meyers, J.):

There is no authority to allow modification of the sequence of the trial court’s cumulation order. The case should be remanded to the trial court to allow the trial judge to correct the order.
Read dissent

Commentary:

The trial judge stated that his intent was to sentence the defendant, who preyed upon TYC inmates, to three consecutive 18-year terms. But the trial judge also stated the stacking order in an improper way. The Court of Criminal Appeals reforms the stacking orders, rather than ordering a remand for the trial court to figure it out, because the order was “sufficiently specific” to determine how the trial court meant to stack the cases. But because the trial court said two different things on the record that are irreconcilable with each other and irreconcilable with the written judgment, a remand might be still in order. Instead, a sexual predator who could have been sentenced to three consecutive terms as intended by the court receives two consecutive terms.

Clay v. State

No. PD-0579-12        1/9/13

Issue:

Must a law enforcement officer seeking a search warrant under CCP art. 18.01 swear out the affidavit in support of the warrant in the physical presence of a magistrate, rather than over the phone?

Holding:

No. Neither the 4th Amendment nor the language of the statute prohibits a magistrate from telephonically administering the oath to an affiant, so long as sufficient care is taken to preserve the same or an equivalent solemnizing function of the oath that physical presence accomplishes. The solemnizing function was preserved in this case because the affiant and the magistrate recognized each other’s voices over the phone, and the oath was properly memorialized when the parties faxed each other signed copies of the affidavit and search warrant.
Read opinion

Dissent (Meyers, J.):

The majority has broadened the statute beyond what the legislature intended; only the legislature can expand CCP art. 18.01 to allow warrants to be obtained telephonically.
Read dissent

Commentary:

Discretion is understanding the differences between what you must do, what you should do, and what you can do. This is a fascinating opinion that allows a court to issue a warrant after an officer phones in an oath. But just because you can do it does not mean you should. In this case, the stipulated facts showed that the officer and judge “each recognized the other’s voice.” No defense counsel will ever stipulate to that again, especially in the large counties. Instead, the officer could have sworn out his affidavit before a notary or another officer, then faxed the sworn affidavit to the judge, who issued the warrant. All this would be memorialized in the papers of the case and would not attract the attention of a defense lawyer looking to beat an otherwise air-tight blood case. Expect to see “oath by Skype or FaceTime” coming soon to a case file near you.

Daugherty v. State

No. PD-1717-11        1/9/13

Issue:

In the trial of theft of service by deception, in failing to prove that the alleged deceptive act (issuing a “worthless check”) occurred prior to the services being rendered,  did the State fail to prove an essential element?

Holding:

Yes. The State failed to prove that the deceptive act alleged in the indictment induced the services to be performed, and as a result failed to prove the requisite culpable mental state. Such a failure does not amount to an immaterial variance.
Read opinion

Dissent (Hervey, J.):

“[A]lthough there exists a variance between the charging instrument and what was proven at trial, the variance involves an immaterial, non-statutory allegation. Moreover, the evidence is legally sufficient to support Appellant’s conviction.”
Read dissent

Commentary:

Hot check units will need to read this one, otherwise notable for including the word “lagniappe.” Now we can argue that language is a lagniappe rather than surplusage to avoid angering the spell-checker in Word.

Texas Courts of Appeals

Ex parte Murillo

No. 14-12-000900-CR        1/08/13

Issue:

Was trial counsel ineffective for failing to adequately admonish a defendant on the immigration consequences of his guilty plea?

Holding:

No. Because the claim can be resolved on the prejudice prong, the court does not address the deficiency prong. And the defendant cannot show harm because 1) the State’s evidence was strong, 2) the defendant failed to present affirmative evidence that he had legal or factual defenses to the charge, 3) the defendant never expressed to anyone that deportation was his primary concern during at the time of his plea, and 4) the odds of the defendant avoiding acquittal and deportation were “quite slim.” Thus, a decision to reject the plea deal would not have been rational under the circumstances.
Read opinion

Commentary:

This case will be helpful to prosecutors litigating Padilla writs. This defendant received as good a result as he could get given the facts of his crime, but he would still have been subject to deportation. Thus, he failed to show he was prejudiced. But it may be difficult for the State to rebut the defendant’s showing of prejudice in some of the old cases in which Padilla writs are filed due to lack of witnesses or evidence.

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