Weekly Case Summaries: June 22, 2012

Supreme Court of the United States

Williams v. Illinois               

No. 10-8505: 06/18/12     (4-1-4 plurality)

Is the Confrontation Clause violated when a police forensic laboratory specialist testifies that a sample of the defendant’s blood obtained by her laboratory matched a DNA profile contained in another laboratory’s report? (The report was not admitted, shown to the factfinder, quoted or read from, or identified as the source of the opinion.) 

Holding (Alito, J., Robert, C.J., Kennedy & Breyer, J.J.,):

No, because the expert’s summary of the laboratory report was not offered for the truth of the matter asserted and fell outside the scope of the Confrontation Clause. Alternatively, the report was not testimonial because it had the “primary purpose” of determining the identity of a suspect in a rape and not of accusing a targeted individual.
Read Opinion.

Concurrence (Thomas, J.,):

No. Although the rules of evidence should not trump a defendant’s confrontation right, the “primary purpose” test employed here is without textual justification, and the report was plainly offered for the truth of the matter asserted, the report was not testimonial because it lacked indicia of solemnity/formality—it certified nothing.
 

Dissent (Kagan, Scalia, Ginsburg, & Sotomayor, J.J.,):

Yes, the report was offered for the truth of the matter asserted—just as the reports were in Bullcoming and Melendez-Diaz—and not any less testimonial.

Commentary

Well, the good news is that the government (the State) did not lose this one.  But did the State win?  No, not really.  This is a plurality opinion, and the Court is deeply divided.  There are too many ways in which this opinion can be distinguished.  A Texas court may not buy that we are not offering the underlying basis for an expert’s opinion for the truth of the matter asserted.  This decision did not involve a jury trial, and that was of some importance to the Court.  The defendant in this case had not yet been identified as a suspect at the time that the DNA report was prepared.  Are any of these distinctions important to the Court’s holding in this case?  Maybe.  Maybe not.  But the bottom line is that the Court did not answer any of our questions about expert testimony and expert reports (such as autopsy reports).  And the division is such that we are probably not going to get an ultimate answer from this Court (until the make-up of the Court changes).  So we are going to have to rely upon the Court of Criminal Appeals to answer these questions for us.  And Bullcoming v. New Mexico and Melendez-Diaz v. Massachusetts are still very much a part of the question of whether expert testimony and expert reports can be in violation of a criminal defendant’s Confrontation rights.  And what of Williams v. Illinois?  Read Part IV of Justice Alito’s opinion (the italicized portion above).  That is the part of the Court’s opinion that is most likely to stand the test of time. 

Texas Court of Criminal Appeals

Tucker v. State             

No. PD-0486-10: 06/20/12     (6-3)

Issue:

Did the court of appeals properly uphold the trial court’s implicit finding that the defendant voluntarily consented to the search of his residence?

Holding:

No, it failed to evaluate all the record evidence, including a video recording of the stop that led to the consent (something the trial court failed to do too).
Read opinion.

Concurrence:

No, it failed to examine the totality of the evidence and issue an opinion that addressed all of the issues necessary to final disposition of the appeal.
Read concurrence.

Commentary

The court remanded the case back to the court of appeals to consider all of the evidence (including the video) under the appropriate standard of review, so that State may yet still prevail in this particular case.  If your trial judge categorically refuses to consider a piece of relevant evidence in ruling on a defendant’s motion to suppress, please show him this decision, so that he does not make that mistake.

Doan v. State               

No. PD-1547-10: 06/20/12     (6-3)

Issue:

Did the intermediate court correctly determine that the doctrine of res judicata/collateral estoppel allows a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense?

Holding:

No; because they represent the same interests, the two prosecuting authorities, although different parties for double jeopardy purposes, can be the same parties for purposes of res judicata. Here, “the only difference between the interests of the Brazos County Attorney and the Travis County Attorney … is that one sought to prove theft in order to criminally punish the [defendant] for theft, while the other sought to prove theft in order have the [defendant’s] criminal punishment from a prior case altered to his detriment.”
Read opinion.

Concurrence:

No, a 1987 amendment to CCP art. 28.061 requires the same result.
Read concurrence.

Dissent:

Yes, these separate prosecuting authorities are different parties under state law because neither has control over the actions of the other.
Read dissent.

Commentary

In the collateral estoppel context, we have often been able to refer to motion to revoke hearings as administrative proceedings.  No more.  Now we may have to coordinate with other county offices to make sure that a motion to revoke or a motion to adjudicate in one county is not tried first before a trial in another county.  This could prove to be quite difficult, to say the least.  What other arguments can be raised in this and other cases?  That the issues are not sufficiently identical.  That the issue was not fully litigated in the first proceeding.  But there should be a great deal of doubt as to whether these arguments might succeed in the normal situation.

Dangelo v. State          

No. PD. 0769-11: 06/20/12     (9-0)

Issue:

Does a probationer serving deferred adjudication community supervision and who has obtained double jeopardy concessions from the State have the 5th Amendment right to refuse to answer questions related to sex offender treatment and evaluation?

Holding:

No. Although a probationer usually retains 5th Amendment rights concerning statements that would incriminate him in future criminal proceedings, because the State conceded that double jeopardy principles would preclude it from prosecuting the indicted sex-related offenses, the probationer has no right to refuse to answer the questions.
Read opinion.

Commentary

It is often a part of sex offender treatment that a probationer/defendant answer questions about his past sex crimes.  You have to answer a question:  Do you want a defendant to answer the questions and receive the necessary treatment, or do you want a defendant to be subject to prosecution for crimes for which he has not yet been convicted?  The courts are not going to let us have it both ways.

Garrett v. State             

No. PD-0934-11: 06/20/12     (6-3)

Turner v. State             

No. PD-1117-11: 06/20/12     (6-3)

Issue:

Does a trial court have authority to extend the original term of community supervision of an accused who has been placed on deferred adjudication for a state-jail felony?

Holding:

Yes, by virtue of CCP arts. 42.12, §§5(a), and 22(c).
Read opinion.

Dissent:

No, not under the original statutes or their amendments.
Read dissent.

Commentary

If you or your trial judge wants to extend the probation of a state jail felon, this is the decision to which you must now refer in order to determine if that can occur.  But it is very complex reading, heavy on statutory analysis.  You have been warned.

Moore v. State              

No. PD. 0965-11: 06/20/12      (5-4)

Issue:

Must sentences be stacked under H&SC §481.134(h) where a sentence for possession of methamphetamine is obtained after a sentence for possession of a controlled substance in a drug-free zone?

Holding:

No, mandatory cumulation is not required and the trial court did not intend it here.
Read opinion.

Dissent:

No, but a trial court has discretionary authority to stack sentences so the trial court’s order should survive.
Read dissent (1)  Read dissent (2).

Commentary

This decision may seem hypertechnical, but at least we have guidance.  If a trial judge is to cumulate sentences, he must do so at the time that he is pronouncing sentence, and not afterwards.  It cannot be an afterthought and applied retroactively.

Ex parte Castillo                             

No. PD-1427-11: 06/20/12     (7-2)

Issue:

Does the “timely mailed, timely filed” mailbox rule of TRAP 9.2(b), which explicitly requires timely mailing via the United States Postal Service include private couriers such as Federal Express?

Holding:

No, not until the Texas high courts change the language of the rule.
Read opinion.

Dissent:

Yes; contrary to precedent, the majority elevates form over substance and fails to liberally construe the TRAP.
Read dissent.

Commentary

You should expect the rules to be amended quite rapidly to include private couriers in the application of the mailbox rule.  Otherwise, this ruling will be of interest only to appellate prosecutors. 

Bowen v. State             

No. PD-1607-11:  06/20/12               (6-3)

Issue:

Is Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999) (plurality), holding that a court of appeals cannot reform a conviction of a greater offense to a lesser-included offense unless the lesser-included offense was requested by the parties or included in the jury charge, still good law?

Holding:

No, “the ‘overreaching’ rationale behind the plurality in Collier does not take into account the trial strategy of both parties, it is unworkable in practice, and the decision applies only to jury trials, making it difficult to apply fairly across all cases.” Collier, and its progeny, is overruled. So long as the parties do not engage in improper gamesmanship/overreaching, an appellate court can reform a conviction to a lesser-included offense even without submission of the lesser offense or a request for one.
Read opinion

Dissent:

Yes; Collier is overruled by the majority only because the composition of the court has changed.
Read dissent.

Commentary

Wow.  I will confess that I did not see this one coming.  But what a welcome ruling.  No longer can a defendant be exonerated on appeal merely because the State did not request a charge on a lesser-included offense.  Watch for claims of “gamesmanship” on the part of the State in failing to request such an instruction.  Otherwise, this should be very helpful.  I applaud the court for its ruling.

Montgomery v. State    

No. PD-1169-11: 06/20/12               (9-0)

Issue:

Was the evidence legally sufficient to support a conviction for criminally negligent homicide where the defendant killed another when she made an unsafe lane change and failed to keep a proper lookout while she was driving?

Holding:

Yes, the intermediate court’s focus on the cell phone usage was misplaced and this court does not address it.
Read opinion.

Commentary

Was the defendant using her cell phone?  Yes.  Did it distract her?  Yes.  But that was not even pleaded as a basis for the defendant’s criminal negligence.  The defendant passed up an entrance ramp to a freeway, and then decided to cut across a lane of traffic to enter the freeway by way of that entrance ramp—which she had already passed.  And she did so in front of a pickup that was already in the lane to enter freeway.  The pickup driver tried to avoid her, but just could not.  Any of us who have driven on freeways realize just how dangerous the defendant’s driving was.  It is appalling that the court of appeals could not see it, and that we had for the Court of Criminal Appeals to set them straight.

Reinke v. State             

No. PD-1268-11: 06/20/11               (9-0)

Issue:

Was a defendant who had been charged with attempted murder enhanced with two prior felony convictions but declared incompetent to stand trial and served 20 years in mental-health facility entitled to release?

Holding:

Yes, “for the purpose of competence to be tried, unless the legislature explicitly states that an enhancement increases not only the punishment range but also the level of the charged offense, the level of the offense alleged in the indictment is not altered by the allegation of prior offenses as enhancements.”
Read opinion.

Commentary

The only way that such a defendant can legitimately spend more time in a mental-health facility is by way of normal civil commitment proceedings in the Health and Safety Code, not the Code of Criminal Procedure. 

Texas Court of Appeals

Mayo v. State               

No. 06-12-0009-CR                          06/19/12

Issue:

Is the current form certifying a defendant’s right of appeal (see Appendix to TRAPs) adequate to convey the limited right of appeal from an open plea?

Holding:

No; until the Court of Criminal Appeals modifies the form, trial courts should clarify it by adding to “the defendant has waived the right of appeal” the language “as to determination of guilt.”
Read opinion.

Commentary

Well we shall see if the Court of Criminal Appeals will take the court up on its invitation.  That is not a sure bet.  And it is not a sure bet that the Court of Criminal Appeals would uphold the legitimacy of such a modification to the form for the certification of the defendant’s right to appeal.

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