Weekly Case Summaries: June 29, 2012

United States Supreme Court

Southern Union Co. v. United States

No. 11-94  :  06/21/12     (6-3)

Issue:

Does the rule of Apprendi that the 6th Amendment reserve to juries the determination of any fact, other than the fact of a prior conviction, increasing a criminal defendant’s maximum potential sentence also apply to criminal fines? 

Holding (Sotomayor, J.,):  

Yes; except for fines that are so insubstantial that the underlying offense is considered petty, there is “no principled basis under Apprendi for treating criminal fines differently.” Read opinion

Dissent (Breyer, Kennedy, & Alito, J.J.,):

So long as the sentencing facts are not elements of the crime and are relevant only to the amount of the fine, the 6th Amendment permits a sentencing judge to determine them.

Commentary: 

This probably will not change the law that much for us, even for the few of us who prosecute corporations and may only assess fines against them.  Apprendi will only apply to such cases if the assessment of a fine will be based upon a particular fact that was not necessarily decided by the guilty verdict.  So if—for example—the fine that you want to assess is based upon how many days that a violation existed, and the defendant/corporation has not waived its right to a jury trial, then the jury is going to have to decide how many days.

Miller v. Alabama

No. 10-9646  :  06/25/12     (5-4)

Issue:

Does a mandatory sentence of life without parole (LWOP) for the offense of homicide applied to a person under 18 violate the 8th Amendment’s prohibition on cruel and unusual punishment?

Holding (Kagan, J.,):

Yes, under “the evolving standards of decency that mark the progress of a maturing society” and following the reasoning in Graham (no LWOP for juveniles for non-homicide crimes) and Roper (no death penalty for juveniles). Read opinion

Concurrence (Breyer, & Sotomayor, J.J.,): 

The 8th Amendment prohibits both a mandatory and discretionary LWOP sentence for Jackson (whose case was consolidated with Miller) because he merely aided and abetted a murder.

Dissent 1 (Roberts, C.J., Scalia, Thomas, & Alito, J.J.,):

Here, there is nothing like the national consensus as there was in Graham.  While the court’s precedents recognize that teenagers are less mature, less responsible, and less fixed in their ideas than adults, they don’t even suggest that legislators may not require LWOP for juveniles who commit the worst types of murder.

Dissent 2 (Thomas, & Scalia, J.J.,):

The majority lacks constitutional warrant for the extension of law.

Dissent 3 (Alito, Scalia, J.J.,): 

The court has long ago abandoned the 8th Amendment. The constitution does not permit the court “to march toward some vision of evolutionary culmination that the Court has not disclosed.”

Commentary: 

One wonders why Justice Kennedy spent so much time in Graham v. Florida distinguishing homicide cases from non-homicide cases. That distinction meant next to nothing in this case. Look for defendants to continue to attack mandatory maximums in cases other than just juvenile cases, and look for courts to start taking notice. We know that there are several Texas juvenile and 17-year-old capital murder defendants whose cases may be affected by this decision. But what should you do if you have a juvenile or 17-year-old defendant charged with capital murder today or for the next year or so? You may have to consider changing the charge to straight murder, so that the fact finder at punishment will have some discretion.

Court of Criminal Appeals

Green v. State

Nos. AP-76,374, -376 & -381 : 6/27/12     (6-0-3)

Issue:

Can a death-row inmate file a petition for writ of habeas corpus to challenge his competency to be executed?

Holding:

No. CCP Art. 46.05 provides an adequate and constitutionally sound remedy for direct review of a trial court’s determination of a defendant’s competency to be executed. Writs of habeas corpus under Art. 11.071 should not be used to litigate issues that should have been raised on direct appeal, including competency-to-be-executed claims. Read opinion

Concurrence:

“In its opinion today … I fear that the Court has inadvertently thwarted the legislative intent, essentially making law rather than accurately construing it. If I am wrong about this, then, of course, the Legislature can simply leave the statute on the books as it currently stands. But if I am right that the Court has misjudged the legislative intent, I urge the Legislature to amend the statute in such a way as to make what was its original intent unmistakable, as it did several years back with respect to the post-conviction DNA statute.” Read opinion

Commentary:

The majority decision gives a good thorough review of what standards apply at trial and on appeal in a competency-to-be-executed claim. Judge Price’s concurring opinion doubts that the Legislature intended a deferential standard of review. So I guess that we will see if the Legislature accepts the concurring opinion’s invitation to change the statute. My guess is that they will not.

Ex parte Chaddock

No. AP-76,547  :  6/27/12         (3-4-2)

Issue:

Can a defendant be convicted of aggravated assault after he has been convicted of organized criminal activity with the same aggravated assault as the underlying offense?

Holding:

No. The additional element in the OCA charge that the defendant committed the assault as part of a criminal street gang is not enough to allow both prosecutions under the Double Jeopardy Clause. Read opinion

Concurrence:

“The ramification of the position taken by the State and by the dissenting opinion would be that the legislature could abrogate the double-jeopardy protection against successive prosecutions. If taken to its logical conclusion, their view would permit the legislature to create a dozen murder offenses with identical elements and allow a person to be successively prosecuted for each one.” Read opinion

Concurrence: 

The Texas Legislature has never suggested that a defendant who has been convicted of the greater offense of OCA can later be prosecutor for a lesser-included offense that the State proved (and punished) during the first trial. Read opinion

Dissent:

The dissent points out that it is illogical to disallow prosecution of the predicate offense after prosecution for the greater offense of OCA when the two offenses may be tried together without violating double jeopardy. Read opinion

Commentary:

The bottom line for all of these opinions is that, if you want to get two convictions for a defendant for engaging in organized criminal activity and the predicate or underlying offense, then you must try the cases together. Or as Judge Cochran noted in her concurring opinion, the State could plead a conspiracy to commit the predicate offense in the prosecution for engaging in organized criminal activity.  A conspiracy to commit a crime and the completed crime are not the “same” offense under Blockburger.

Ex parte Rogers

Nos. AP-76,615 & -616  :  6/28/12     (8-0)

Issue:

After the defendant pleaded guilty to sexual assault, was the defendant’s trial attorney ineffective for failing to investigate punishment evidence that: (1) the defendant was wearing an electronic monitor that could prove he was at home when the victim of an extraneous offense was sexually assaulted, and (2) the defendant’s DNA had been excluded from the rape kit for that victim?

Holding:

Yes. The defendant met his burden in satisfying the second prong of the Strickland test and is entitled to a new punishment hearing. Read opinion

Commentary:

This decision will only affect the punishment stage of the trial. I am not sure what guidance can further be given about a case like this. We cannot conduct our defense lawyer’s investigation for him.

Blanton v. State

No. PD-0767-10  :  6/28/12       (6-1-2)

Issue:

Can a defendant who pleads guilty appeal a nunc pro tunc proceeding to correct a clerical error in a written judgment?

Holding:

Yes. A nunc pro tunc judgment is an appealable order under CCP Art. 44.02 if the defendant timely files the appeal. Read opinion

Dissent:

The dissent points out that no cases from the Court appear to address the issue head-on or hold that a defendant can appeal from a nunc pro tunc judgment that corrects a mere clerical error. “Allowing such an appeal conflicts with our cases holding that general appellate jurisdiction ceases when the appeals process from the conviction is exhausted.” Instead, the defendant should file an application for habeas corpus alleging a due-process violation. Read opinion

Commentary:

It seems that the defense was using some gamesmanship in pursuing at least one of the nunc pro tunc judgments that were obtained in this case. It seems logical that a defendant should be able to appeal from a straight nunc pro tunc judgment if there is an error in it. But Judge Keller’s point is also well taken:  A defendant does not have the right to appeal, unless there is express statutory authority for it.

Watson and Smith v. State

Nos. PD-0287-11 & 0288-11  :  6/28/12      (9-0)

Issue:

Is Health & Safety Code §822.005(a)(1), which sets off the offense of attack by dog resulting in death, unconstitutionally vague?

Holding:

No. The elements of the prohibited conduct are clearly defined: a mental state of criminal negligence and an actus reus of failing to secure a dog. Read opinion

Commentary: 

Hopefully you will not have to prosecute a dog case with facts as tragic as this. But this opinion will be helpful if you are so unfortunate.

Hicks v. State

No. PD-0495-11  :  6/28/12       (9-0)

Issue:

Is “reckless aggravated assault” a lesser-included offense of intentional or knowing aggravated assault?

Holding:

Yes, under CCP Art. 37.09 and Rocha v. State, 648 S.W.2d 298 (Tex. Crim. App. 1982) (op. on reh’g). Read opinion

Commentary: 

We have been waiting for this decision ever since the court issued its confusing decision in Reed v. State, 117 S.W.3d 260 (Tex. Crim. App. 2003). This case clears up any confusion. If you want to charge the jury on a lesser-included offense involving the lesser culpable mental state of recklessness, charge it as a true lesser-included offense—in a separate paragraph in the jury charge.

Gonzales v. State

No. PD-0683-11  :  6/28/12       (6-3)

Issue:

Did the community caretaking exception allow an officer to activate his emergency lights when he saw the defendant pull his car off the road onto a shoulder at 1 a.m. outside town and with few businesses or houses nearby?

Holding:

Yes. It was reasonable for the officer to believe under the totality of the circumstances that the defendant might have needed help. Read opinion

Dissent:

The dissent would hold that an officer cannot investigate to see if community caretaking is needed—the threat to the public should be obvious before the officer is allowed to investigate under the community caretaking exception. Read opinion

Commentary:

This is a good common-sense decision. An officer does not have to be clairvoyant. He does not have to be perfect. All that he needs to be is reasonable. That is all that the Fourth Amendment requires.  If you have a true community-caretaking situation, this decision should prove to be quite helpful.

Texas Courts of Appeals

Pitman v. State

No. 02-10-00499-CR :  06/21/12

Issue:

Did the State violate Brady by failing to disclose 3,000 pages of Child Protective Services (CPS) records containing including notes from the victim’s therapy sessions that were inconsistent with the victim’s and the therapist’s trial testimony?

Holding:

No, because the defendant failed to establish that the documents were favorable and material and there was not a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Nevertheless, the court was troubled about the State’s policy of separating CPS civil and criminal records so as to absolve itself of Brady obligations. Read opinion

Commentary: 

If you are in a jurisdiction where the district attorney handles related civil cases (such as parental-rights termination cases), as well as criminal cases, you may want to consider the caution that the court of appeals provides here. There was no exculpatory information in these records apparently, but what if there had been? If you really knew your case well, you would know to turn them over, even if your Office kept the civil and criminal files separate. But here is the thing about Brady law. Such law is not made prior to trial, or even during trial, when you are focused on your interpretation of the case and focused on prosecuting your defendant. Brady law is made much later, long after you may be attachd to the case, on direct appeal and on writ of habeas corpus. And it is made by judges and attorneys who no longer have your perspective on a case. They will put their own “spin” on the facts, and perhaps not to your or your victim’s advantage.

Ex parte Olvera

No. 05-11-01349-CR :  06/20/12

Issue:

Did trial counsel fail to adequately advise the defendant about the immigration consequences of his guilty plea?

Holding:

Yes, because the immigration consequences of a guilty plea to the assault offense in this case were clear and counsel’s duty was to give the defendant clear advice about those consequences, yet he failed to do so. Read opinion

Commentary:

This is so frustrating. In Padilla v. Kentucky, the United States Supreme Court promised us that there would be no “floodgates” of decisions where defendants have sought relief in their old cases. But now the Court must realize that it was wrong, and next term it will be forced to decide whether Padilla should be applied retroactively. This could have been handled so much better. I keep hearing courts ttell us how clear and certain a defendant’s deportation consequences are in particular cases. But I also keep hearing anecdotal references to how much discretion in really involved in whether or not a defendant actually does get deported or removed from the United States. I don’t know. Maybe it is just that I am not too happy with the United States Supreme Court right now.