Weekly Case Summaries: July 13, 2012

Texas Supreme Court

In the Interest of E.R., et al.       

No. 11-0282        7/6/12

Issue

Was service by newspaper publication sufficient in a CPS proceeding seeking permanent termination of parental rights?

Holding

No. Service by newspaper publication is a “last resort,” and it is not constitutionally acceptable when the State knew the mother’s identity, was in regular contact with her, and had at least one in-person meeting with her after CPS sued to terminate the legal rights to her children. Read opinion

Commentary

OK, an ad in the newspaper is not sufficient after a few phone, fax and Google attempts. But what if the State had pinged the mother’s cell phone, posted on her Facebook page or sent several texts with notice? Given today’s modern methods of communicating, those might well be more diligent ways of searching for her. Ironically, the State now need not provide any actual service as the mother has entered an appearance through her appeal. And, she is likely still to lose because of her tardiness in seeking relief. All in all, an interesting discussion of the balancing act between protecting a parent’s right to due process and the State’s duty to act in the best interest of children.

Texas Courts of Appeals

Rios v. State

No. 01-11-00082-CR    07/05/12 (reh’g)

Issue

Did the trial court incorrectly deny habeas relief on grounds of an involuntary plea—where the State conceded that the DWI BAC results were invalid, but the court found that the defendant had violated his promise to comply with the terms of his community supervision—was not credible on the circumstances of his plea, and a video supported his intoxication?

Holding

Yes. The State had stipulated that the BAC calibration records had been falsified by the intoxilyzer technician and could not vouch for the DWI video. The appeals court noted that the trial court had not admitted the video into evidence so could not consider it and the video could support different conclusions about the defendant’s intoxication. Read opinion

Commentary

Why would a judge reject a stipulation from the State and defendant that the original plea was involuntary by instead focusing on the defendant’s violation of the very conditions of probation that were invalid because of the involuntary plea? Ridiculous, especially since the judge didn’t even watch the video upon which he relied to deny relief.

In re David A. Escamilla 

No. 03-12-00341-CR    07/10/12

Issue

Should the trial court have accepted the defendant’s pleas of guilty and waiver of a jury trial over the State’s objection?

Holding

No; under CCP art. 1.13 and a two-decades-old CCA case, the State’s consent is required to waive a jury trial. Writ of mandamus conditionally granted. Read opinion

Commentary

Hooray for County Attorney David Escamilla who, like others before him over the last two decades, defended the State’s right to a jury trial, even in a misdemeanor case, by seeking this writ of mandamus.

Aguilar v. State

No. 14-11-00227-CR     07/10/12

Issue

Does Padilla operate retroactively to provide an avenue of relief for a misdemeanor writ applicant?

Holding

Yes. Despite the “close call” and split in authorities, the court joins the First and Eighth Court of Appeals and Fifth and Tenth federal circuits. But the court remands the matter for a determination of prejudice under Strickland. Read opinion

Commentary

So, seven years ago, the defense lawyer followed the professionally accepted (and legislatively approved) process of telling the defendant that he could be deported (even though his felony got reduced to a short jail sentence for a misdemeanor). And, now, without any proof that the misdemeanor is actually resulting in deportation, the defendant is entitled to relief because his lawyer didn’t tell him that he would be deported. (Sure seems like the lawyer was right for at least seven years if the defendant is still here filing a writ. What do you want to bet he picked up a new offense that has now triggered ICE interest?) Padilla should not be applied retroactively. Let’s hope that is the SCOTUS answer. Meanwhile, what is your judge/defense lawyer telling illegal aliens?

Comperry v. State

No. 14-11-00616-CR     07/10/12

Issue

Did an officer improperly obtain blood* in a DWI investigation under the theory that the defendant had been twice before convicted (Transportation Code §724.012(b)(3)(B)) when the officer relied on an inaccurate TCIC report?

Holding

No. Even though the defendant had been convicted only once before, the officer possessed seemingly reliable information from a credible source at the time that he received the report. Read opinion

Commentary

This is the first case to interpret the relatively new mandatory blood draw law based on two previous DWI convictions. Legislators were reluctant to base the law on previous “arrests” but recognized that requiring convictions was more burdensome. Committee hearings on the bill clearly expected officers to be able to rely on TCIC/NCIC readouts. Even though the court of appeals didn’t go back and listen to those hearings (probably because the judges didn’t realize the bill started out in a separate place and got amended onto another bill late in the session), it reached the same conclusion. Send a copy of this case to your officers. (A good amendment to this law would be to include “obstructing a highway” as one of the predicate convictions, since we all know that those cases are largely plea bargains to avoid a DWI conviction.) Nice touch in the opinion to indicate that a drunk defendant is not necessarily a more reliable source than a computer readout.

 

(* - edited after publication of original summary)

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