Weekly Case Summaries: June 28, 2013

Court of Criminal Appeals

Ex parte Valdez

No. AP-76,867        6/26/13

Issue:

Does a prior juvenile adjudication for conduct (in this case murder) that would have made an adult offender ineligible for mandatory-supervision review render the adult offender ineligible for review when serving time for a subsequent offense that is mandatory release-eligible on its own (burglary of a habitation)?

Holding:

Yes. A prior juvenile adjudication for an ineligible offense is a conviction for purposes of mandatory-supervision review if the offender was transferred to TDCJ upon turning 18 and then paroled.
Read opinion

Concurrence (Johnson, J.):

The statute at issue actually governs time credit, which itself affects mandatory-supervision review.
Read concurrence

Commentary:

All juvenile adjudications are not subject to mandatory supervision review if the adjudication was for a first-degree felony and/or included a deadly weapon finding. It would not have made any sense to permit mandatory supervision review for defendants who were paroled from TDCJ after having been transferred from TYC but not to permit it for those paroled straight from TYC. This decision is just common sense.

Ex parte LaHood

Nos. AP-76,873 & 76,874        6/26/13

Issue:

Was trial counsel ineffective for failing to investigate the defendant’s mental health history or bring to the trial court’s attention possible incompetency issues?

Holding:

No. Although counsel’s decision not to investigate was unreasonable based on the defendant’s known history and strange behavior in court, the defendant did not show that he was prejudiced because there is not a reasonable probability he would have been found incompetent. The record shows he made reasoned choices about trial strategy with counsel, and his testimony at trial indicates he understood the proceedings and was capable of putting on a defense.
Read opinion

Concurrence (Keller, P.J.):

The majority was incorrect in holding that although counsel correctly assessed that the defendant was competent to stand trial, she was deficient for not investigating further.
Read concurrence

Commentary:

Do not just discard this decision because it involves ineffective assistance of counsel. This decision emphasizes how important it is for defense counsel to investigate his client’s mental-health history. If a defendant has some mental health issues, defense counsel may have extra responsibility to investigate. This case was saved because it was pretty clear that the defendant was competent, notwithstanding the mental-health problems.

Ex parte Knight

No. AP-77,007        6/26/13

Issue:

Was the defendant entitled to habeas relief based on improper cumulation of her sentences and the imposition of attorney’s fees in the bill of costs?

Holding:

No. The sentences were properly cumulated because there was some evidence to show that the jury increased her punishment as a result of a drug-free zone affirmative finding in her possession of a controlled substance case; therefore, the cumulation order was made mandatory by statute. The issue of whether attorney’s fees were supported by evidence is not a cognizable habeas issue, and the court refused to treat the habeas application as a petition for a writ of mandamus.
Read opinion  

Commentary:

The defendant will have to file a petition for a writ of mandamus on the attorney-fee issue in the court of appeals, but it appears she will be entitled to relief. But it is very clear she is not entitled to relief on the cumulation-order issue.

Ramos v. State

No. PD-1917-11        6/26/13

Issue:

Was there a material variance in the jury charge for the lesser-included offense of manslaughter at the defendant’s trial for capital murder because the charge did not contain the manner and means of causing death as charged in the indictment?

Holding:

No. Variances in non-statutory language that do not help define the allowable unit of prosecution are almost always immaterial. Manslaughter is a result-of-conduct offense, so a variance regarding the manner in which the death was caused is immaterial. Additionally, the evidence at trial supports a finding that the defendant would have been on notice of the offense of manslaughter.
Read opinion

Concurrence (Alcala, J.):

The court’s opinion is too broad because both CCP art. 21.15 and the hypothetically correct jury charge for manslaughter require the State to plead and prove specific reckless acts.
Read concurrence

Dissent (Keller, P.J.):

The court should not have granted PDR because the court of appeals’ application of the law was correct.
Read dissent

Commentary:

It is always important that, in result-oriented offenses such as assault or homicide, we allege the correct manner and means. That requires talking with the medical examiner and police officers early on and then amending the indictment if necessary. But that does not mean that a defendant should be exonerated because we alleged the manner and means somewhat incorrectly. There is no doubt that this defendant killed the child victim (he essentially admitted it), and he should be brought to justice for that. This decision should be helpful if there might be a variance as to manner and means in your case. But be careful: Manner and means should not be treated as mere surplusage.

Cates v. State

No. PD-0861-12        6/26/13

Issue:

Was the trial court’s assessment of $1,039.75 in court-appointed attorney’s fees supported by the record?

Holding:

No. Although CCP art. 26.05(g) allows for an order to repay appointed attorney costs, the defendant had previously been found indigent by the court. Art. 26.05(g) does not create an exception to art 26.04(p)’s continuing presumption of indigency unless the trial court makes a finding of the defendant’s present ability to pay.
Read opinion

Concurrence (Keller, P.J.):

The Legislature should amend art. 26.05(g) to allow the court to conditionally impose attorney’s fees to be paid if the defendant later obtains sufficient financial resources during the pendency of his sentence.
Read concurrence

Commentary: 

So are you thinking that there sure are a lot of cases recently from the court concerning court costs? Keep watch. There are going to be a lot more in the coming months. Court costs, especially attorney’s fees, have to be supported by evidence. And if a trial judge or clerk is given to adding attorney’s fees some time after the judgment has been rendered, it is likely the fees will not be supported by the record and a showing of the defendant’s ability to pay.

Alford v. State

No. PD-0009-12        6/26/13

Issue:

Must a court of appeals consider all alternative legal theories raised by the prevailing party, including those not raised at trial, that may serve as a basis to uphold the trial court’s ruling on a motion to suppress?

Holding:

Yes. The ordinary rules of procedural default do not apply to appellants and appellees equally. In this case the appellee, the State, was the prevailing party at the hearing on the motion to suppress and was entitled to rely on any applicable legal theory to uphold the ruling on appeal.
Read opinion

Commentary:

This is a great opinion to cite on appeal to support a trial judge’s suppression ruling on a basis that is supported by the record but was not relied upon by the trial judge. (But remember that will only work in a defendant’s appeal, not a State’s appeal). And this opinion emphasizes the helpfulness of arguing all possible reasons why a police officer’s actions should be justified, not just focusing upon one or two.

Burch v. State

No. PD-0943-12        6/26/13

Issue:

Was the defendant’s 6th Amendment right to confront witnesses violated when the State introduced a lab report supported only by testimony of the reviewing drug analyst, not the testing drug analyst, in the defendant’s trial for possession of a controlled substance?

Holding:

Yes. This case is controlled by Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), not the U.S. Supreme Court’s more recent decision in Williams v. Illinois, 132 S.Ct. 2221 (2012). There was no indication that the defendant had an opportunity to cross-examine the testing analyst prior to trial, nor was there any indication that the reviewing analyst had any personal knowledge of the tests performed in this case.
Read opinion

Concurrence (Keasler, J.):

The majority mischaracterizes the State’s arguments and leaves the reader with an impression that the State has influenced the lab’s practices in bad faith.
Read concurrence

Concurrence (Hervey, J.):

The majority reads Bullcoming too narrowly and unfairly characterizes an unavailable analyst as an unreliable analyst.
Read concurrence

Commentary:

For good or bad, this is now probably the seminal decision from the Court of Criminal Appeals on the admissibility of non-testifying analysts’ opinions and their reports over the defendant’s Confrontation Clause objection. A testifying expert must be offering his own opinion, not merely reciting or repeating what is set forth in the non-testifying expert’s report. And if you find that the admissibility of evidence might be supported by Williams v. Illinois, look elsewhere, or at least be very careful. For this type of evidence, the decisions in Bullcoming v. New Mexico and Melendez-Diaz v. Massachusetts will be much more authoritative and, therefore, much more helpful. (There are so many reasons why Williams lacks practical value that it probably will not be helpful in the typical case.) Let’s hope we will soon get better decisions from the United States Supreme Court in the Confrontation Clause arena, but we should not hold our breath.

Loving v. State

No. PD-1334-12        6/26/13

Issue:

Did the defendant’s convictions for indecency by exposure and indecency by contact involving the same victim violate the Double Jeopardy clause’s prohibition on multiple punishments?

Holding:

No. Although indecency by exposure and indecency by contact are in the same Penal Code section, the Legislature intended a defendant to be punished for each. The allowable unit of prosecution is different for each, and each subsection seeks to protect a child from different potential harms.
Read opinion

Concurrence (Cochran, J.):

It was clear from the record that the defendant committed multiple, distinct prohibited acts, and he may be punished for each of them.
Read concurrence

Commentary:

This is a great decision. If a defendant has committed multiple sexual molestation acts against the same victim, each is a separate offense, and he can be held criminally responsible for each one. Just be careful with those acts that might be subsumed by a greater act, such as a contact that turns into a penetration. You can only gain one conviction in such a situation. Compare this decision with Ex parte Pruitt, 233 S.W.3d 338 (Tex. Crim. App. 2007). 

Ex parte Coty

No. WR-79,318-02        6/26/13

After reconsideration on its own motion, the court withdrew its opinion entered 6/5/13 and reset the case for submission to determine under what circumstances, if any, the court should presume a due-process violation in a case handled by a forensic scientist found to have committed misconduct in another case.
Read order

Commentary:

This is a rather unusual action by the court. Maybe there is some hope for those many cases in which this particular forensic scientist was involved.

Texas Courts of Appeals

Coker v. State

No. 06-12-00084-CR        6/19/13

Issue:

Did the trial court abuse its discretion in refusing to allow the defendant to withdraw his waiver of a jury trial and evidence stipulations six years after he absconded to Mexico before sentencing?

Holding:

No. Due to the passage of time, development of the law in cases such as Bullcoming v. New Mexico, and the death of several witnesses, allowing the defendant to withdraw his jury trial waiver would have greatly prejudiced the State. Additionally, the record did not support the defendant’s claim that he was coerced by hired counsel to sign the waiver and stipulations.
Read opinion

Commentary:

Great decision. The defendant made the jury waiver and stipulation, and then fled to Mexico for several years. After finally being arrested again and brought back before the court, he then had the audacity to request that everyone just start back at the very beginning after the passage of time, loss of investigation and witnesses, etc. No thank you.

Santiesteban-Pileta v. State

No. 10-12-00154-CR        6/20/13

Issue:

Was the evidence sufficient at trial to show that the defendant knowingly possessed over 2,144 pounds of marijuana in the tractor-trailer he was driving?

Holding:

Yes. The defendant argued on appeal that the court must analyze the evidence in light of all the possible affirmative links that have been developed in possession cases over the years; the court clarified that is not the number of links that is dispositive of the issue, but the logical force of all the evidence. In this case, the evidence clearly showed two links to the marijuana: 1) the “valuable cargo” link and 2) the “implausible story” link. The absence of any other affirmative links does not constitute evidence of innocence.
Read opinion

Commentary:

It seems rather implausible that a defendant could even think to argue that the evidence was insufficient when so much illegal narcotics were involved. Thankfully, the court of appeals was not swayed by the defendant’s affirmative-links argument. Even when affirmative links are involved, a court should always look at all of the evidence to determine if the evidence is sufficient.

Henry v. State

No. 01-12-00523-CR        6/20/13

Issue:

Did the use of a drug dog during the execution of a search warrant exceed the scope of the warrant and render the search unlawful?

Holding:

No. Despite the defendant’s argument that recent Supreme Court holdings in Florida v. Harris, 133 S.Ct. 1050 (2013) and Florida v. Jardines, 133 S.Ct. 1409 (2013) rendered the search unlawful, neither case applies. There is no support for the defendant’s argument that the use of a drug-detection dog during the execution of a search warrant is unreasonable or unlawful.
Read opinion

Commentary:

After Florida v. Jardines, we are going to see a lot more questions raised about searches by narcotics detection dogs. So this decision is going to be helpful to cite in support of the use of a trained narcotics detection dog during the execution of a search warrant.

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