Weekly Case Summaries: March 16, 2012

Texas Court of Appeals

Cooper v. State – 6th COA

No. 06-11-00236-CR : 3/13/12

Issue:

When a judgment in a prior conviction bears the notation "on appeal," do the in-court statements of the prosecutor and defense counsel averring that mandate had issued suffice to prove the conviction is final?

Holding:

Yes—at least where defense counsel advised the trial court he had investigated the matter and learned from the appellate court that mandate had issued, and notwithstanding the defendant's controverting testimony that prevented the information becoming an unassailable stipulation of fact.
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Commentary: 

Obviously, the better practice would have been to get a copy of the mandate for admission into evidence. Even a faxed copy would have been sufficient if defense counsel waived any objection regarding authentication. The use of oral admissions, especially when there is a conflict between the defense counsel and defendant, is sketchy. Nonetheless, the case law does seem to support the conclusion reached by the court of appeals. Note: this might have come out differently if it was a jury trial.

Desormeaux v. State – 9th COA

Nos. 09-10-00097/98-CR : 3/7/12

Issue:

Was a defendant punished twice for the same crime in violation of the federal double jeopardy clause when he was convicted of 1) capital murder and 2) injury to a child by failing to seek prompt medical attention for a child?

Holding:

No, because the defendant was assessed concurrent sentences and TPC §22.04(4) specifically allows multiple punishments for the same offense.
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Commentary: 

The Legislature could not have spoken more plainly as to its intent. This is one of those rare occasions when the Legislature expressly spoke and declared that multiple punishment, albeit run concurrently, was the wish of the people.

Thomas v. State – 9th COA

No. 09-11-00202-CR 3/7/12

Issue:

Was a defendant's guilty plea involuntary, or did counsel render ineffective assistance as a result of counsel failing to inform the defendant that his plea could lead to the civil commitment program for sexually violent predators (SVP)?

Holding:

No, the SVP program was not similar to the deportation (removal) consequences of the defendant's plea in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), because it was neither a penalty nor virtually an automatic result. Also, "without believing that SVP commitment would be a definite and largely automatic result for an individual client, reasonably competent counsel would not necessarily have counseled a client on the matter." 
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Commentary: 

Despite the murkiness of Padilla (and the floodgate being opened for writs raising deportation issues), the court of appeals keeps the line between direct and indirect consequences clean. That is good, because defendants are trying to link the deportation/immigration advice requirement of Padilla to all sorts of mischief (e.g., gun possession, voting, service on jury, and just about any collateral consequence you can dream up). Let’s hope that someday SCOTUS revisits the wisdom of Padilla.

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