Weekly Case Summaries: January 31, 2014

Texas Court of Criminal Appeals

Ex Parte Weinstein

No. WR-78,989-01                             1/29/14

Issue:

When the State’s jailhouse snitch lied on the stand about the fact that he suffered from auditory and visual hallucinations, did his false testimony amount to a due process violation in a murder case?

Holding:

No. False testimony must also be material to violate due process, and testimony is material only if there is a reasonable likelihood that it affected the judgment of the jury. In this case, the witness’s testimony was solidly corroborated by other evidence, and the nature of his hallucinations were not such that they were likely to call into question the facts he related to the jury. Read the opinion.

Concurrence (Keller, P.J.):

The court incorrectly used a standard for materiality that is proper only if the State knowingly used the false information. In this case, because it was uncontroverted that the State did not know the testimony was false, a higher standard for materiality should have been used to determine a due-process violation. Read the concurrence.

Commentary:

This case offers some good lessons in the use and handling of jailhouse snitches: Don’t use them if you don’t have to, and look deeper than just their criminal histories before deciding to use them. This case also should caution prosecutors regarding the nature of their social media posts, blogs, and tweets. The trial prosecutor’s blog after trial called the snitch his “star witness.” This apparently affected the habeas judge’s view of the case when she recommended relief.

Schumtz v. State

No. PD-0530-13                                 1/29/14

Issue:

If the State fails to prove venue, is that a structural error that requires automatic reversal, or is it a non-constitutional error subject to a harm analysis?

Holding:

Failure to prove venue is not a structural error and does not require automatic reversal. The “vicinage” clause of the Sixth Amendment is not applicable in Texas state courts. If the State fails to prove venue as alleged in an indictment or information, reviewing courts should analyze the error for harm. Read the opinion.

Dissent (Meyers, J.):

Venue rules are a special strict category that should result in an acquittal when violated. The longstanding rule regarding venue violations should be upheld and the State should be strictly required to prove venue in the county of prosecution. Read the dissent.

Commentary:

Issues like this typically arise during trial when you ask your officer, “And was that location in Lozmaflotz County?” and they answer, “Uh, no.” That usually results in a dismissal and then a claim that prosecution is barred in the other county. This case will be good ammunition for those fights. Otherwise, it is so unusual that venue is contested at trial that you will almost never have the opportunity to argue venue error is harmless.

Texas Courts of Appeals

State v. Villareal

No. 13-13-00253-CR

Issue:

Was it unconstitutional for police to perform a warrantless blood draw on the defendant based on his three prior convictions for DWI?

Holding:

Yes. The mandatory blood-draw statute in §724.012(b)(3)(B) of the Texas Transportation Code requires a no-refusal blood draw when a suspect has multiple DWI arrests, but the statute does not authorize warrantless blood draws. The court did not consider any implied consent arguments because it held that the State waived that argument when it stipulated at trial there was “no consent, no warrant” in the case. Read the opinion.

Commentary:

OK, so now Texas has published opinions that conflict on whether the implied consent statute allows warrantless blood draws that will withstand scrutiny under McNeely. The CCA this week granted review on that issue in Baker v. State, PDR-13-1592.

Stobaugh v. State

No. 02-11-00157-CR              1/27/14

Issue:

During the trial of a cold-case murder that was seven years old, the State relied on circumstantial evidence to prove Charles Stobaugh had the motive and opportunity to murder his estranged wife, Kathy. Her body was never found, and there was no physical evidence in the case. Was the evidence sufficient to support the jury’s guilty verdict?

Holding.

No. In a 176-page opinion, the court points out in painstaking detail that the evidence is sufficient to prove beyond a reasonable doubt that Kathy is dead, that Charles had both the motive and the opportunity to kill her, and that Charles lied and acted highly suspiciously following her disappearance. However, without evidence of wrongful conduct, the motive and opportunity alone cannot amount to the requisite mens rea for murder. Read the opinion.

 

Note: TDCAA featured a story about this case in the March-April 2011 edition of The Texas Prosecutor. You can read that article here.

Commentary:

This one takes hours to read. Reduced to its core, the court holds that the jury could not infer that the defendant intentionally or knowing caused the death or committed a dangerous act, even though he was the last person to see the victim alive, she was divorcing him and about to obtain half of a substantial marital estate, he acted strangely after her death while others were searching for her, and a he told a number of lies to investigators. The court goes to such length to comply with a standard of review that demands they consider all evidence. But, even though it says otherwise, the court seems to go through a piecemeal analysis of each fact rather than reviewing what the evidence means together. And the court’s analysis, while saying it is concerned about mens rea and causation, looks an awful lot like a challenge to corpus delecti, i.e. whether a crime occurred. But the victim has never been heard from again after meeting with the defendant about their divorce, which should suffice to prove that a murder occurred. Although the court relies on three recent Court of Criminal Appeals opinions reversing on legal insufficiency of the evidence, those cases seem distinguishable. There is a fair chance this case might be reversed on appeal. In the meantime, if you have a no-body murder case, study this opinion to see how you might shore up the case.

Young v. State

No. 01-12-00924-CR

Issue:

After being charged as a party with aggravated robbery, was the defendant entitled to a lesser-included instruction of robbery because he was not the one using a gun in the robbery?

Holding:

No. A lesser-included instruction is proper when a jury could find that the defendant is guilty only of the lesser crime. In this case, the defendant knew his friends were planning the robbery, he encouraged the robbery, and he knew one of his co-conspirators brought a gun to the robbery. Under the law of parties, that evidence does not establish that the defendant was guilty solely of robbery rather than aggravated robbery. Read the opinion.

Commentary:

A simple application of the Court of Criminal Appeals’ holding in Yzaguirre from last year.

Ortiz v. State

No. 14-12-00726-CR

Issue:

Was the defendant placed under arrest when an officer handcuffed him at the scene of an assault, even though the officer told him “You’re not under arrest right now”?

Holding:

No. The officer was investigating an assault, and the defendant had a history of assaulting officers. When he arrived, the officer observed blood on the defendant’s hands, which were clinched into fists. Because the officer used no additional force to detain the defendant and because the detention lasted only approximately 30 seconds, the handcuffs were a method of detaining the defendant for officer safety and not an indication of arrest. Accordingly, the detention was not an arrest without probable cause, and it did not render statements made during the detention inadmissible under Miranda. Read the opinion.

Concurrence (Frost, C.J.):

While the defendant was handcuffed, the officer discovered evidence establishing probable cause, and at that point the court should have found the defendant to be in custody. Custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. Read the concurrence.

Commentary:

This opinion shows the difficulties facing officers responding to calls. The court seems to correctly apply precedent that handcuffing does not per se create custody for Miranda purposes.

Coleman v. State

No. 01-13-00038-CR                          1/23/14

Issue:

When three lay witnesses testified that a co-defendant had told them in detail about his role in the victim’s murder, did these out-of-court conversations constitute hearsay?

Holding:

No. These statements subjected the witness to criminal liability and they were each bolstered by corroborating details that indicated they were trustworthy, making them admissible as statements against the defendant’s interest. Read the opinion.

Commentary:

A good example of the distinctions between blame-shifting and blame-sharing statements against interest.

Kirk v. State

No. 02-12-00095-CR                          1/23/14

Issue:

After submitting an Allen charge to a deadlocked jury, was a judge allowed to submit, sua sponte, a supplemental jury charge advising jurors as to how to resolve their deadlock?

Holding:

Yes. Although CCP Art. 36.16 appears to preclude any additional charges under such conditions, the Court of Criminal Appeals has held that a judge is allowed to submit supplemental charges if the judge believes the original charge was erroneous. In this case, the judge was convinced that his original jury charge had not correctly explained the law. Accordingly, the judge sent the jury a supplemental charge explaining that if jurors believed beyond a reasonable doubt the defendant committed either murder or capital murder but were not unanimous on either, they must find for the lesser-included offense of murder. Read the opinion.

Dissent (Dauphinot, J.):

The caselaw exceptions to Art. 36.16 permit a supplemental instruction only if requested by a jury. Additionally, there was no evidence on the record that the judge actually believed his original charge was erroneous or that the charge was, in fact, erroneous. Read the dissent.

Commentary:

The caselaw says a trial court can correct an erroneous charge after argument, but Article 36.16 seems more restrictive on its face. The CCA’s adherence to strict readings of statutes should give prosecutors pause about supplementing a charge after argument.

Gilbert v. State

No. 01-12-00350-CR              1/23/14

Issue:

When the defendant fired shotgun blasts that struck a window approximately 15 feet away from a porch where a person was sitting, was the evidence sufficient to support a conviction of deadly conduct involving discharge of a firearm?

Holding:

Yes. The defendant claimed that because the evidence showed he aimed at the window and hit only the window, he was not discharging a firearm “at or in the direction of” an individual. Relying on the dictionary definitions of “at” and “direction,” the court held that a jury could find that shots fired toward the nearby window of the house were fired “at or in the direction” of the complainant. Read the opinion.

Dissent (Keyes, J.):

When circumstantial evidence provides only the suspicion of guilt, a jury is not allowed to reach a conclusion based on speculation. Because conflicting evidence on the record did not establish beyond a reasonable doubt that the defendant fired at the complainant and not at the house, the evidence was insufficient to support the verdict. Read the dissent.

Commentary:

Although the court does not discuss the matter, it might be reasonably inferred that banjo music was playing during this deadly conduct offense.

Castrejon v. State

No. 12-12-00601-CR              1/23/14

Issue:

When the State intends to introduce a recorded conversation held partly in Spanish and partly in English, does Rule 1009 of the Texas Rules of Evidence require 45 days’ advance notice to the defendant as well as a written transcript from a licensed translator?

Holding:

No. The 45-day rule and written-translation rule both apply only to admission of a translation of a recording. When a witness translates the recording live at trial, there is no requirement of advance notice, no requirement of a written translation, and no requirement that the translator be qualified by anything more than “sufficient skill” and a familiarity with slang. Read the opinion.

Concurrence (Massengale, J.):

The majority judgment is correct but only because the error was harmless and the relevant complaints were actually waived. However, the majority fails to address whether it was proper to admit and publish to the jury the Spanish recording in addition to the translation testimony. Also, the testimony at trial was not a live translation made by the officer as the recorded conversation was played back at trial; it was simply the officer testifying as to her memory of the recorded conversation. Finally, the court has erroneously interpreted the “qualified expert translator” standard of Rule 1009 to create a much lower standard of qualification than the rule intended. Read the concurrence.

Commentary:

The majority and concurrence both talk about translators, but neither mentions other law requiring in-court translators to be licensed by the State of Texas. If you are planning on a written translation—usually a good idea—make sure to comply with the 45-day rule that did not apply in this case.

Johnson v. State

No. 14-13-00114-CR              1/28/14

Issue:

Could the defendant be found guilty as a party to capital murder when he claimed he did not know the group of people he was with would rob and shoot a man and he did not know the shooter had a gun with him? 

Holding:

Yes. His claim that he did not know his group would rob anyone failed because his own testimony established that there were coordinated movements amongst himself and the group members indicating there was a conspiracy to execute a robbery. As for his lack of knowledge regarding the gun, the shooter brandished the gun in front of the victim before the robbery occurred, and at that point, the court said it was clear a gun would be used in the imminent robbery. A defendant who knows a gun might be used in a robbery should anticipate that murder is possible. Read the opinion.

Shaw v. State

No. 14-12-00876-CR                          1/23/14

Issue:

Should the defendant have been allowed to impeach the assistant medical examiner in the case because the ME, at the time of the trial, was in the process of completing a pretrial diversion for the felony of giving a false statement to obtain credit?

Holding:

No. To cross-examine a witness about charges the witness is currently facing, a defendant must establish some causal connection or logical relationship between the pending charges and the witness’s vulnerable relationship or potential bias or prejudice for the State. There was no connection between the autopsy in the case, which was performed a year before the ME was charged, and the crime alleged against her. Read the opinion

Commentary:

Ugh. Not the kind of baggage you want the ME carrying up to the witness stand.

Office of the Attorney General

Opinion for the Atascosa County Attorney

GA-1039                                 1/27/14

Issue:

May funds collected through a pretrial intervention program be used to refurbish a courtroom, train new county court-at-law staff, purchase office supplies for the county court-at-law staff, and/or purchase office supplies for the county attorney’s office?

Opinion:

Only to the degree that the expenditures are reimbursing the county for expenses related to a defendant’s participation in a pretrial intervention program and are used for the administration of the program. That determination will be made by the commissioner’s court and subject to judicial review. Read the opinion.

 

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