Supreme Court of the United States
No. 11-262 : 06/04/12 (6+2)
Were Secret Service agents entitled to qualified immunity from suit for a First Amendment retaliatory arrest claim brought by a political heckler?
Holding (Thomas, J.,):
Yes, because the court has never recognized a First Amendment right to be free from an allegedly retaliatory arrest that is supported by probable cause, and such a right was not clearly established at the time of the defendant’s arrest. The court does not decide whether a claim may lie despite the presence of probable cause to arrest.
Concurrence (Ginsburg & Breyer, J.J.):
The holding should not apply to ordinary law enforcement agents. Officers protecting political figures have to make snap safety decisions, taking into account the proximity of the individuals and the words spoken.
This is a very technical holding that can give only some comfort to law enforcement officers who have probable cause to arrest defendants who have allegedly asserted their First Amendment rights. I am not certain how often this would actually come up in our context, but here is the decision if you have a law enforcement officer being sued because he allegedly arrested someone in retaliation for exercising the arrestee’s First Amendment rights.
Court of Criminal Appeals
No. PD-0056-11 : 06/06/12
Are enzyme multiplied immunoassay technique (EMIT) drug test results reliable without a confirmation test under the first two prongs of Kelly?
Yes. EMIT, with or without a confirmation test, is reliable scientific evidence. EMIT testing is highly accurate, has a low rate of error, and is widely accepted and extensively used as a reliable presumptive screen for the presence of drugs.
Concurrence (Cochran, J.):
The court assessed only the general scientific reliability of an EMIT test.
Dissent (Meyers, J.):
Although EMIT tests are reliable without a confirmation test, the exclusion was harmless because the results were irrelevant.
Dissent (Johnson, J.):
The trial judge correctly ruled that the unconfirmed EMIT test would not be admitted, and that ruling should be affirmed.
As a review of the dissenting opinions will make more clear, the majority ONLY has decided the general reliability of EMIT testing, and that holding can be as helpful to prosecutors as it may be helpful to this particular defendant. But the court did not decide how relevant the evidence was, and it appears to have only limited relevance, if any relevance at all. The bottom line is that we should be reluctant to object to defense expert testimony if the defendant has done a lot of homework in getting the testimony admitted—as expert testimony. But that does not mean that we should give up on our objection. While reliability might be established, relevance also must be established in order for any expert testimony to be admissible.
No. PD-0323-11 : 06/06/12
In a capital murder case, was the evidence sufficient to prove that the defendant intended to cause the death of the child?
No. The jury could not have inferred from the totality of the circumstantial evidence viewed in a light most favorable to its verdict that the defendant intended to cause the death of the child.
Did the trial court incorrectly deny the defendant’s request for a mistake-of-fact jury instruction?
Yes. A defendant who is subject to a transferred-intent provision is entitled, upon request, to a mistake-of-fact instruction. Because the transferred-intent instruction was applied to all of the offenses in the jury charge and authorized conviction of each specific offense, and if causation were transferred pursuant to PC §6.04, the mistake-of-fact instruction was needed to permit the jury to negate the transferred intent if the jury believed that defendant had a reasonable mistaken belief about the type of injury he was inflicting.
The court reaffirms that a defendant is generally entitled to a mistake-of-fact instruction if the jury has been given a transferred-intent instruction. The more important holding here is with regard to the sufficiency of the evidence. Capital murder of a young child is always difficult to prove, unless the injury or injuries to the child are remarkably severe, so much so that the injury or injuries must have been caused intentionally or knowingly with regard to the ultimate result—the death of the child. Your treating physician or other expert witness should be able to establish that by the force of the injuries inflicted upon the child. If not, capital murder may be a reach.
No. PD-1502-11 : 06/06/12
Did the defendant properly preserve for appeal his complaint that the trial court commented on his failure to testify?
No. None of the three complaints met the requirements for preservation. It was error for the court of appeals to combine all three complaints to hold that the defendant had satisfied the requirements of a timely and specific request that is refused by the trial court.
I am not sure why the court felt the need to publish this decision, except for the fact that the court of appeals had initially held that the defendant had preserved error by combining all of the defendant’s objections. The court proves once again that it can be quite a stickler for preservation of error.
No. PD-1516-11 : 06/06/12
In an endangering a child case, was the evidence insufficient to establish that the defendant placed her child in imminent danger of bodily injury or physical impairment?
Yes. No rational fact-finder could have determined that the defendant’s child had sustained bodily injury or physical impairment. No evidence showed that the child experienced physical pain or impaired organ function from being exposed to 58-degree weather while wearing only a wet diaper. The evidence did not establish that physical pain or impairment was imminent.
This is a very troubling decision. The court almost says that a young child must cry before we can infer that the child has suffered some form of bodily injury or physical impairment. What? The shivering and blue lips were not enough? It seems as if the court was more concerned with the defendant’s predicament, as opposed to her child’s. I am not saying that the mother was guilty of injury to a child, but why the child was dressed only in a diaper outside is not apparent from the opinion. The jury should been given the right to determine that this constituted the offense.
Texas Court of Appeals
No. 04-11-00118-CR : 05/30/12
Did the defendant’s possession of a large knife found with illegal drugs in his car facilitate his possession of the drugs?
Yes. Although joining “Justice Cochran’s sense of unease expressed in her Coleman concurrence … concerning the broad expansion of the deadly weapon enhancement statute beyond the original legislative purpose of deterrence, and her recognition of the need for greater guidance on when a rational inference may be made that a defendant who possesses a deadly weapon has ‘used’ it to facilitate the commission of a drug possession offense,’” there was legally sufficient evidence that the defendant “used” a deadly weapon because the knife was within close proximity to the drugs and within easy access on the floorboard of his car, thereby facilitating possession of the cocaine inside his car.
You may see this decision again before the Court of Criminal Appeals because it relies so heavily upon a previous concurring opinion by Judge Cochran that expressed some displeasure with some of the court’s deadly weapon jurisprudence in drug cases. But the fact remains that the Legislature has not changed the definition of “deadly weapon,” even after numerous decisions from the court that have construed the term. If you practice in the San Antonio Court of Appeals district, you will have to pay close attention to this decision because it has raised factors from Judge Cochran’s concurring opinion to the level of a majority holding of that court of appeals.
No. 09-11-00026-CR : 05/30/12
In a DWI with child-passenger case, did the trial court improperly deny the defendant’s request for the appointment of a field sobriety expert to rebut the State’s expert or a medical expert to testify that concussion causes nystagmus?
No, the defense failed to make the threshold showing that an expert’s assistance was necessary and, even without the results of the HGN testing, the jury could reasonably conclude that the defendant was intoxicated.
Be careful with this decision. It should not be viewed as a generally applicable holding. The defense in this case did a particularly poor job in explaining why the expert testimony would have been helpful to his case. If the defense had done a better job, the result of this decision likely would have been different. Prosecutors may rarely get involved in expert-appointment decisions for the defendant, but do not let your trial judge view this decision as a broadly applicable holding.
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