Weekly Case Summaries: March 1, 2013

Court of Criminal Appeals

Ex parte Sereal

No.  AP-76,972      2/27/13    (per curiam)

Issue:

Was the defendant entitled to habeas relief because the lab technician solely responsible for testing the evidence in his case was found to have committed misconduct?

Holding:

Yes. The evidence in the case had been destroyed and could not be retested; the conviction for possession of a controlled substance is set aside due to the technician’s misconduct and the inability to retest. Read opinion

Winfrey v. State

No. PD-0943-11        2/27/13

Issue:

Was evidence legally sufficient to support convictions for capital murder and conspiracy to commit capital murder when the primary direct evidence used to convict was a dog scent lineup?

Holding:

No. Dog scent lineups are insufficient on their own to support a finding of guilt beyond a reasonable doubt, and their role in the courtroom is merely supportive. The remaining circumstantial evidence in the case was more speculative than inferential; guilt may not be based on speculation but must be proven beyond a reasonable doubt. Read opinion

Commentary:

This case is a very rare acquittal on appeal for insufficiency of the evidence. As laid out by the opinion, the State had evidence of motive, incriminating statements by a co-conspirator to a jailhouse informant, and some facts from the crime scene consistent with the co-conspirator statements, but only the dog scent lineup connecting the defendant to the crime scene itself. I talk to many trial prosecutors who are worried whether their evidence will be sufficient to stand up on appeal. My response is that, if they can convince a jury, their evidence will almost always sufficient. Almost always. Contrast this case with Temple v. State, 2012 WL 6861531 (Tex. Crim. App. Jan. 16, 2013) (not yet reported) if you are evaluating whether your circumstantial murder case is strong enough.

Frangias v. State

No. PD-0728-12        2/27/13

Issue:

Was the first Strickland prong for ineffective assistance satisfied because of defense counsel’s failure to call a critical witness, memorialize his testimony by deposition, or request a continuance to secure his attendance at trial?

Holding:

Yes. The attorneys’ failure to introduce the testimony was not strategic. Although the deposition and continuance were unlikely to be granted, counsel did not undertake reasonable efforts to pursue these alternatives. Deficiencies in performance led to the unavailability of the options because counsel unreasonably failed to comply with the procedural requirements to secure a deposition or continuance. The case was remanded to the court of appeals to determine whether the defendant was prejudiced. Read opinion

Commentary:

Typically, ineffective assistance claims are insufficiently developed on direct appeal, but this claim was partially developed during a motion for new trial. The defense lawyers appear not to have realized a key witness was unavailable for trial until the last minute, and when their requests for telephonic testimony were denied they dropped the matter. The Court finds that, based on the record as developed, the failure of the defense lawyers to request a deposition or continuance was not based on reasonable trial strategy.

State v. Kerwick

No. PD-1837-11      2/27/13

Issue:

Was an officer’s investigative detention of the defendant supported by reasonable suspicion when information from dispatch indicated a possible assault outside a bar, the officer observed a damaged vehicle at the scene, an unnamed individual indicated the defendant was involved, and the defendant attempted to leave the scene when the officer tried to speak with her?

Holding:

Yes. The totality of the circumstances support a reasonable basis to believe unusual activity possibly related to a crime had occurred and that the defendant was involved. Read opinion

Dissent (Johnson):

“Both the trial court and the appellate court applied the correct standards of review and proper analysis, and based on the skimpy record that was before them and is now before us, correctly determined that the record is unable to support a finding of reasonable suspicion.” Read dissent

Commentary:

“A police officer rolls up to a bar in response to a 911 call…” This 5-4 decision upholds a DWI stop based on what is probably a minimum set of facts. The key fact, to me, is that the defendant started to drive away as the officer approached.

Matlock v. State

No. PD-0308-12        2/27/13

Issue:

After the court’s holding in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), do the legal and factual sufficiency standards that govern Texas civil proceedings still apply in evaluating the rejection of an affirmative defense?

Holding:

Yes. In evaluating the legal sufficiency of the evidence supporting an adverse finding, the court must search the record for evidence favorable to the fact-finder’s conclusion, and if there is none, determine whether the finding was established as a matter of law. In evaluating factual sufficiency, the court must evaluate the entire body of evidence to decide whether the jury’s adverse finding was so “against the great weight and preponderance” of the evidence to be manifestly unjust. Read opinion

Commentary: 

This guy prefers to do dope and crime rather than pay child support. Nevertheless, I expect he will be acquitted again on remand when the court of appeals correctly shows its work.

Texas Courts of Appeals

State v. McNutt

No. 01-11-01023-CR        2/26/13

Issue:

After a trial court refused to approve a DIVERT plea agreement, did it wrongly dismiss a DWI information based on due process and equal protection grounds?

Holding:

Yes. No constitutional violation required dismissal of the case. Due process rights were not implicated because there is no entitlement to enter pretrial diversion, and equal protection was not implicated because the defendant was treated the same as all other DWI defendants and no suspect class is involved. Read opinion

Commentary:

The particular trial court refused to approve a pretrial diversion for a DWI, so instead dismisses the case. What? Maybe I need to stop drinking… Trial courts have limited authority to dismiss criminal cases—disagreements regarding the propriety or legality of a diversion program do not give the court such authority.

In re: the State of Texas

No. 08-12-00165-CR        2/20/13    (not desig. for pub.)

Issue:

In a plea bargain case, must a trial court adopting a plea bargain agreement follow all the terms—including a deadly weapon finding?

Holding:

Yes; mandamus relief is conditionally granted. The judge clearly indicated that he would follow the plea agreement as set out in the plea papers so he “had a ministerial, mandatory, and non-discretionary duty to enforce all terms of the plea bargain agreement.” Read opinion

Commentary:

Gosh, what a lot of fuss over a plea bargain. It is a shame when you have to go to war just to move a case by agreement.

Balentine v. State

No. 09-09-00334-CR        2/20/13

Issue:

During trial on a robbery indictment alleging recklessness, did the State’s deletion of a phrase describing the manner of injury constitute an abandonment?

Holding:

Yes; the phrase was needlessly pleaded. The deletion did not deny the defendant notice; it did not surprise or mislead him; it was not material; and it did not prejudice him. The indictment had not been amended. Read opinion

Commentary:

If we do not plead unnecessary language, we will not need to engage in arguments whether dropping the unnecessary language is an issue. We have to tell defendants how they administered an injury, i.e. by striking with their hand, but we do not have to tell them the nature of injury, such as a laceration, bruise, or sprained ankle. The more you say in a charging instrument, the more likely you are to say something that is not what your proof will show when you are preparing for trial.

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