Weekly Case Summaries: June 7, 2013

Supreme Court of the United States

Maryland v. King

No. 12-207        6/3/13

Issue:

Does the routine collection of DNA samples from individuals lawfully arrested for serious crimes violate the 4th Amendment?  

Holding:

No. Balancing the State’s significant interests in the identification of suspects of serious crimes and the need to make informed pretrial release decisions with the very slight intrusion into the body required to collect the sample and the diminished expectation of privacy when a defendant is in custody, the Court found this to be a reasonable search. Like fingerprinting and photographing, taking a cheek swab for DNA is a legitimate police booking procedure.
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Dissent (Scalia, J.):

The 4th Amendment prohibits suspicionless searches if their purpose is to investigate a crime. The purpose of taking these samples is not to identify defendants but rather to determine whether the arrestee has committed other crimes. 

Commentary:

This is a good decision for the State, and it essentially verifies the validity of §411.1471 of the Texas Government Code, which is similar to the Maryland statute in this case. But the Court of Criminal Appeals has already upheld the validity of the Texas statute in Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008). So the actual holding of this decision will not change or affect Texas law. But that is not what you want to know about this case, is it? What you want to know is whether this decision means that an officer can obtain a DNA sample (by buccal swab) any time that a defendant is properly in custody for a serious offense. Well, no, not necessarily. The Court’s holding is confined to identification of a defendant at booking. There may be no practical difference between a defendant at that stage and any stage thereafter, but the majority opinion did not speak to the validity of obtaining DNA samples at those later stages. So we will have to see if this decision has any impact upon those latter stages. In the meantime, be happy that this case was decided the way that it was. It very easily could have gone the other way, especially if you read the animated nature of Justice Scalia’s rather enthusiastic dissent.

Court of Criminal Appeals

Ex parte De Leon

Nos. AP-76, 763 and 76, 764        6/5/13

Issue:

Did the State breach the plea agreement with the defendant when it reindicted the defendant’s brother, despite a provision in the plea agreement dismissing the brother’s case, because the defendant filed an appeal with the trial court’s permission although the plea agreement included a waiver of appeal? 

Holding:

Yes. The preprinted language in the written plea agreement waiving the right to appeal could not overcome the clear showing in the record that the defendant could appeal with the trial court’s permission. The defendant did not breach the plea agreement first, so the State’s reindictment of the brother violated the agreement. Specific performance was impossible because the brother had already been convicted, so the court set aside the defendant’s convictions.
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Concurrence (Keller, P.J.):

The record does not show the trial court could override the waiver of appeal; however, the plea agreement contained no partial remedies clause, so no matter who breached first, the State would not have been entitled to specific performance because it also breached the agreement. 
Read concurrence

Commentary:

This whole case turned on whether it appeared that the defendant had breached the plea agreement by appealing, contrary to the apparent waiver of the defendant’s right to appeal. The trial judge stated that he had granted the defendant permission to appeal. The Court of Criminal Appeals used that fact to reject the habeas court’s finding that the defendant had in fact breached the plea agreement by appealing.

Ex parte White

No. AP-76,971        6/5/13

Issue:

Was the habeas applicant entitled to credit for the time he spent in jail on a new charge without bail because of a parole revocation hold, despite the fact that the parole revocation warrant had not formally been executed?

Holding:

Yes. For the purposes of Government Code §508.253, an “arrest” occurs when a pre-revocation warrant causes the defendant’s confinement, even if the warrant has not technically been executed and the parole status has not formally been changed.
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Commentary:

All parties and the trial judge recommended that relief be granted to the defendant, and this appears to be a straightforward application and/or extension of one of the court’s previous decisions. And the court has always typically decided in favor of jail time credit for time that defendants have been in custody.

Unkart v. State

No. PD-0628-12        6/5/13

Issue:

Did the defendant preserve error when he made a belated request for a mistrial based on the trial court’s comments to the venire panel regarding the defendant’s right not to testify?

Holding:

No. Defense counsel did not object at the time the statements were made or request an instruction to disregard. And the comments did not constitute fundamental error because they were meant to benefit the defendant, and the judge emphasized the importance of following the law.
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Commentary:

For the first time, the Court of Criminal Appeals has finally confirmed that its prior decision in Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000), is of no precedential value because it is a plurality opinion. So let’s hope that Blue will be cited by appellate courts and defense lawyers much less when trying to support a reversal of a defendant’s conviction because of the trial judge’s comments. Each case should be decided upon its own facts, as this one was, and it was largely controlled by the trial judge’s remarks in their entirety that clearly instructed the jurors not to consider the defendant’s failure to testify at all.

State v. Guerrero

No. PD-1258-12         6/5/13

Issue:

Was the defendant’s waiver of counsel in his 1998 guilty plea involuntary because he was not informed of immigration consequences before the waiver?

Holding:

No. The issue was not properly raised in a habeas application under CCP art. 11.072, and the only evidence presented on the claim was unsworn testimony by the defendant’s current attorney. Such testimony was not competent evidence, but even if it had been, it did not prove by a preponderance of the evidence that the defendant was improperly denied counsel before pleading guilty.
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Commentary:

The decision may provide helpful instruction to defense counsel on how to properly present an application for a writ of habeas corpus (or how not to). For our purposes, the decision is important because it reaffirms that defense counsel’s unsworn testimony is not competent evidence to support relief on a writ of habeas corpus, even if it goes unrebutted by the State. This decision should also be helpful if you have to reach the merits of a claim that a misdemeanor defendant’s plea of guilty was involuntary because he was not admonished as to immigration consequences (but only if the case is not controlled by Padilla v. Kentucky). And the decision should also be helpful if your defendant claims that Padilla v. Kentucky does apply to his case because he was placed only on “deferred adjudication” probation and thus was never finally convicted before Padilla was decided. If the defendant could suffer immigration consequences because of the “deferred adjudication,” then it is final for the purposes of determining whether Padilla should apply.

State v. Zalman

No. PD-1424-12        6/5/13

Issue:

Did the trial court abuse discretion in granting the defendant’s motion for a new trial when the defendant did not present evidence of the same claim raised in his motion?

Holding:

Yes. The two-prong Herndon test requires that the defendant: 1) state a valid legal claim, and 2) supply or point to evidence in the trial record to support the claim. Here, the defendant’s motion for new trial claimed that the verdict was contrary to the law and evidence, but at the hearing, and in an untimely amended motion, he argued only that evidence should have been suppressed.
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Commentary:

This is a wonderful decision. It reaffirms that a boilerplate claim that a defendant’s conviction is “contrary to the law and the evidence” is only a challenge to the sufficiency of the evidence. And it reaffirms that granting a motion for new trial “in the interest of justice” must be done only for a valid legal reason. If there is no valid legal reason for granting the defendant’s motion for new trial, then the trial court cannot grant the defendant’s motion for new trial, and the State should be able to prevail in a State’s appeal. But there is one key factor that could have cost the State everything in this case—if the State had not objected to the defendant’s improper amendment of the motion for new trial. If the State had not so objected, the State would have lost.

Ex parte Coty

No. WR-79,318-02        6/5/13  (not desig. for pub.)

Issue:

Was the applicant entitled to habeas relief because the lab technician solely responsible for testing the cocaine in his case was found to have committed misconduct, although there was sufficient remaining evidence to allow for retesting?

Holding:

Yes. Citing its decision in Ex parte Hobbs, 393 S.W.3d 780 (Tex. Crim. App. 2013), the court concluded that because the evidence had been in the custody of the lab technician, reliability of the custody was compromised and due process was violated.
Read opinion

Commentary:

This is a stunning, gut-wrenching decision. The State worked hard to show that the defendant’s conviction was not tainted just because the lab technician had had custody of the illegal narcotics. This essentially means that, with regard to this particular lab technician, if he had custody over your illegal narcotics, the Court of Criminal Appeals is going to grant the defendant relief. With regard to this particular lab technician, the floodgates are now officially open (if they were not already). Let’s hope this holding (and the ones that will follow) will apply only to this particular lab technician, but be prepared for defendants to make similar claims in similar cases and cite Ex parte Hobbs in support.

Texas Courts of Appeals

Lewis v. State

No. 07-11-00444-CR        5/29/13

Issue:

Was the defendant’s sentence of life without parole unconstitutional under the 8th Amendment?

Holding:

Yes. Because he was 16 years old at the time of the murder, the defendant’s sentence is unconstitutional according to Miller v. Alabama. The court reformed the sentence to life in prison with the possibility of parole.
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Commentary:

This decision is quite significant because the court of appeals did not remand for a new punishment hearing but instead reformed the judgment to delete the reference to “without parole.” It is not clear whether this will hold up, but—because the Legislature failed to pass a statute this session to address the effects of Miller v. Alabama—this is the only possible judicial solution on appeal that will provide relief to the State. Now we all look to the governor to see whether he will make such a statute part of the special session or whether he will issue any kind of clemency to defendants affected by Miller v. Alabama.

McCoy v. State

No. 11-11-00179-CR        5/30/13  (not design. for pub.) 

Issue:

Did the trial court correctly deny the appellant’s motion for post-conviction DNA testing?

Holding:

No. The conviction for aggravated sexual assault was based entirely on circumstantial evidence, and short tandem repeat DNA testing, a method developed since the trial, could now be used to test biological evidence gathered at the scene. There is at least a 51-percent chance the appellant would not have been convicted if DNA testing showed the hairs collected were not his.
Read opinion

Commentary:

This is a good example of a case in which the defendant would be entitled to post-conviction DNA testing. That does not mean that he gets a new trial, just additional testing.

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