Weekly Case Summaries: July 1, 2011

Fifth Circuit

United States v. Aguilar

06/23/11 : Cite No. 09-40658

Issue:

Did the prosecutor's following closing argument constitute prosecutorial misconduct? "The defense attorney talks about this is a sad deal, a sad deal for Mr. Aguilar. Well, I agree with him it's a sad deal, but it's not a sad deal for Mr. Aguilar. It's a sad deal for [FBI agents], people who go out there every day and do their job, that strive to be ethical. They strive to protect people like you and me. They put their life on the line, protecting us and our kids. And what do they get for it? They get to come into the courtroom and be called a liar."

Holding:

Yes, the prosecutor stepped beyond the scope of the invitation by the defense and improperly bolstered the credibility of the State's own witnesses. The "plain and obvious" intent was an "improper emotional appeal that transmitted the message that the agents' testimony should be believed because they were agents. ... The government has been cautioned repeatedly by this court against making such arguments, yet we continue to face them on appeal. By now, the rules against bolstering should be clear to the Government." Reversed for plain error. Read Opinion.

Commentary:

Given the overwhelming evidence that the defendant was caught red-handed smuggling several hundred pounds of marihuana across the border and gave a confession, the defense could only wildly point an accusing finger back at the investigating agent. Defense counsel did not object to the government’s response to that argument. Likely, because he had invited the reply and knew it was an appropriate statement. The prosecutor was simply responding to the inappropriate argument that the agents must be liars because they work for the government. This bizarre reversal for an unobjected-to argument is just wrong and, frankly, a bit frightening in its wrongness. It’s not likely to get the attention of SCOTUS, so the only hope is for the government to seek en banc rehearing.

Court of Criminal Appeals

Ex Parte Robbins

06/29/11 : Cite No. NO. AP-76,464

Issue:

Is it enough evidence to support a claim of actual innocence when the defendant has been convicted of a capital murder of his girlfriend's 17-month-old child based largely on the testimony of the medical examiner, when the medical examiner years later changed his opinion on the cause of death to "undetermined" but still suspicious?

Holding:

No. This change is not considered newly available evidence which would unquestionably established the defendant's innocence under Elizondo. The change of opinion was not based on any new evidence, but rather a change in the evaluation of the same evidence. Further, it is not proof that the State used false testimony to obtain the defendant's conviction. Read Opinion.

Concurrence:

Judge Price discusses the claim of false evidence and how a recantation is not automatically considered false evidence. Read Concurrence.

Dissent:

Judge Cochran agrees that there is not a valid actual innocence claim, but in light of the circumstances would grant a new trial to "ensure the accuracy of our verdicts and the integrity of our system." Read Dissent.

Dissent:

Judge Alcala says that the State did use false testimony by having the medical examiner establishing the cause and manner of death. Read Dissent.

Commentary:

The CCA does a good job of maintaining a stern standard of proof for establishing innocence and recognizing the difference between evolutions in a scientific opinion and false testimony. Judge Alcala, fresh from her swearing in ceremony, does not seem so willing to keep such a clear legal distinction and seems willing to jump to some unsupported inferences of bad faith. That should make us all a bit uneasy. Is this her first solo dissent?

State v. Jordan

06/29/11 : Cite No. PD-1156-10

Issue:

Is a blood search warrant valid when the affidavit contains the date but not the time of the observations that led the officer to conclude the defendant had committed a DWI?

Holding:

Yes. All the observations contained in the affidavit were the elements of the offense, so it was a reasonable inference that the observations occurred on the same date that the offense was alleged to have occurred. The magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify the time of the stop. The defendant also argued that the blood draw would simply be cumulative evidence because police had already determined he had consumed alcohol. This argument was also rejected. Read Opinion.

Commentary:

A rare unanimous CCA opinion, spanking the Third Court of Appeals and a Travis County trial judge for failing to use a common sense approach when reading a search warrant affidavit. The CCA also reminds us all that the warrant need only provide probable cause that the suspect’s blood is likely to contain evidence, namely, drugs or alcohol. Nonetheless, as footnote 28 provides: [“T]he better practice is for affiants to specify the times of critical events described so that magistrates have more precise information with which to determine probable cause.”

Barshaw v. State

06/29/11 : Cite No. PD-1615-10

Issue:

During an appeal from a sexual assault conviction, when the State's expert stated, "It's been my experience that folks with mental retardation can be painfully honest, really," did the appellate court properly review the record for harm when it deemed the case a "he said, she said" case?

Holding:

No. The testimony was not the proper type of testimony from an expert; however, when the testimony is only a small portion of a large amount of evidence the jury could consider when assessing the witnesses' credibility, that additional evidence should have been considered in the harm analysis, as is required by Schutz. Read Opinion.

Commentary:

Another unanimous opinion, instructing the Third Court of Appeals in how to conduct a harmless error review. One small complaint: rather than remanding for the court of appeals to redo its analysis, the CCA should have just concluded that the error was harmless. That would have saved some pride for the court of appeals and saved some wasted time and paper.

York v. State

06/29/11 : Cite No. PD-0088-10

Issues:

1 ) Did a police officer have reasonable suspicion to detain the defendant, who was asleep in a car, with the lights on and the engine running, parked on a sidewalk in front of a gas station at 3 a.m.?

2 ) Does the doctrine of collateral estoppel require the suppression of evidence in a subsequent prosecution when that evidence was suppressed in an earlier prosecution arising from the same facts?

Holding:

1) Yes. Although the officer did not smell alcohol as he approached the car, that fact did not cause reasonable suspicion of public intoxication to dissipate, in part because the appellant could still have been intoxicated by drugs. Nothing else occurred that would have negated reasonable suspicion before the officer found drugs on the defendant.

2) No. The legality of the detention was not an ultimate fact in the first or the second prosecution. Additionally, the burden of proof is lower in the suppression hearing. Read Opinion.

Concurrence:

Judge Womack offers further details on the issue of double jeopardy and the Murphy test. Read Concurrence.

Concurrence:

Judge Cochran states that because the county court's entry of acquittal was a mistake of law and not a finding of fact, collateral estoppel does not apply. Read Concurrence.

Commentary:

So many rabbit trails on this one. But, really, any reasonable person should be feel comfortable that the officer stopped and investigated why a car is parked, running and with headlights on, in the middle of the night at a closed gas station. As for the double jeopardy issue, Judge Keller explains a lot of technical law that requires careful reading. The ruling does not necessarily mean that you can always re-litigate a motion to suppress in another case.

Garza v. State

06/29/11 : Cite No. PD-0480-10

Issue:

In an aggregated theft case taking place over the course of several years, where the victim is a single entity rather than a natural person, can the named victim be an employee who was not employed at the time of many of the thefts?

Holding:

Yes. A proper special owner is an individual who is in custody or control of property belonging to another person; in this case the named victim was an employee who was a proper special owner. He was able to attest to the value of the stolen property and functioned as an agent when he testified about the value of the total loss. Read Opinion.

Commentary:

As the opinion notes, the better practice is to allege the name of the entity in the charging instrument and just call a witness as a representative from that entity to testify that the thief didn’t have the consent of the entity to steal the property. For some reason, though, prosecutors are very reluctant to allege an entity as a victim.

Martinez v. State

06/29/11 : Cite Nos. PD-1238-10, PD-1239-10

Issue:

Was anonymous tip about two bicycles being put into a truck enough to give the officer reasonable suspicion to detain the defendant?

Holding:

No. The initial call did not have any criminal details, such as the defendant's using bolt cutters, and was not a report or complaint of theft. There were no facts that showed unusual activity related to a criminal activity. The specific, articulable, corroborated facts known by the officer at the time of the stop were minimal. Read Opinion.

Dissent:

Presiding Judge Keller contests that the caller was anonymous and that the officer did not have specific, articulable facts. Read Dissent.

Commentary:

Presumably, dispatchers should begin asking callers for a name and phone number, thereby establishing credibility as a witness. And, presumably, police should ignore anonymous information, thereby leaving our bikes to be driven away by thieves and drunks to maim innocent people.

Texas Courts of Appeals

Emmers v. State – 6th COA

06/23/11 : Cite No. 06-11-00034-CR (not designated for publication)

Issue:

Does driving on the left side of a road without a center line constitute reasonable suspicion to detain the driver?

Holding:

Yes. The fact that a roadway does not have a center stripe is of no consequence in making the determination of whether a police officer reasonably suspected the occurrence of a traffic law violation under §545.051 of the Texas Transportation Code. Read Opinion.

Commentary:

It is comforting to know that our ability to respond to unsafe driving is not dependent on maintaining a visible painted line on every road.

In re Lesher – 6th COA

06/24/11 : Cite No. 06-11-00111-CR (not designated for publication)

Issue:

Will a writ of mandamus lie to compel a trial court to hold a court of inquiry?

Holding:

No, holding a court of inquiry is within a trial judge's discretion—it is not a ministerial act. Read Opinion.

Commentary:

Nothing new here. But good to remind judges that they don’t have to engage in politically motivated litigation just because an unhappy person filed some paperwork.

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 [email protected] In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.