Weekly Case Summaries: July 27, 2012

Texas Courts of Appeals

Martinez v. State

No. 04-11-382-CR     7/25/12

Issue

Must a trial court require administration of an oath in sign language for a deaf witness who will testify only through a sign language interpreter?

Holding

No. The trial court had the discretion to find sufficient the witness’s oral response to the oath, given in her own voice, in response to the interpreter’s sign language interpretation of it. Read opinion

Commentary

This case provides a good example of the difficulties associated with deciding how the witness and interpreter oaths are applied and how a deaf witness actually testifies (e.g., by voice, through sign interpretation, or some other method). The judge ultimately worked through the issues and got it right.

Tillman v. State

No. 14-08-846-CR     7/24/12 (on remand)

Issue

Was a trial judge’s decision to exclude a defense expert’s proposed testimony on eyewitness ID—found to be relevant and possibly helpful by the Court of Criminal Appeals—a constitutional error?

Holding

No. Excluding the testimony was not an error of constitutional dimension. The excluded testimony would have furthered a defensive theory only incrementally because the defendant was able to challenge the reliability of the police identification procedures through cross-examination of the eyewitnesses and an officer and attacked their reliability during closing argument. Read opinion

Commentary

The trial court originally noted that this expert was excluded from testifying, in part, because he was seen sleeping through some of the testimony. But, the CCA found that the expert’s testimony still would have been somewhat relevant on a couple of eyewitness ID issues. Sounds like the jury would not have been very impressed with this expert, who didn’t’ know much of anything about the case. Fortunately, the exclusion was harmless because of the strong attacks made by the defense through other sources. As the new eyewitness ID law (Article 38.20, CCP, effective 9/1/11*) comes up in trial, these kinds of challenges are likely to become more common.

<*CLARIFICATION FROM ORIGINAL: This statute was created effective 9/1/11, but the procedures outlined in it only apply to identifications occuring on or after 9/1/12.>

Silber v. State

No. 01-11-00346-CR   07/12/12

Issue

Was a sex offender’s community supervision rightly revoked on account of his failure to register the address of his residence?

Holding 

No. Although he spent considerable time visiting his parents away from his registered address and his residence lacked electricity, he spent a few nights a week there, received mail there, had water and gas services, paid his rent, and kept the yard maintained, so he was not in violation for failure to register his address. Read opinion

Commentary

This is a very fact-based opinion that doesn’t really establish any new law. Simply put, the court of appeals was quite skeptical of the proof that the sex offender wasn’t living at his registered address.

Orosco v. State

Nos. 01-11-00558/559-CR    07/17/12

Issue

Was the taint of the defendant’s illegal seizure sufficiently attenuated from his subsequent consent to search?

Holding 

No. Although the police were checking on municipal violations, “[i]n effect the defendant’s house was under siege when he finally consented to come outside.” He was seized and, although advised of his right to decline consent, immediately permitted the search his home. Only two of the six attenuation factors favored the State. Read opinion

Commentary

Officers face difficult choices when they come upon an obvious doper house. However, the safest route to enter such a home is almost always a search warrant. A consent to search that arises during detention is generally treated with great skepticism by the courts.

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