Weekly Case Summaries: March 18, 2011

Fifth Circuit

Curtis v. United States

03/14/11 : Cite No. 09-20491

Issue:

Did an officer executing an arrest warrant while the defendant was using his cell phone have the right to perform a warrantless search of the phone and read the text messages?

Holding:

Yes. Following United States v. Finley, 477 F.3d 250 (5th Cir. 2001), the officer could view the text messages both at the time of the roadside stop/arrest and after arriving at the stationhouse as a search incident to arrest. Read Opinion.

Commentary:

There is perhaps no more murky area of Fourth Amendment law than exists in dealing with the search of smartphones: warrant or no warrant; incident to arrest or probable cause; exigent circumstances; mobility; and on and on. The 5th Circuit is boldly going forth with at least this small step. But the real fight will eventually be in the SCOTUS. Meanwhile, let's be careful out there.

Court of Criminal Appeals

Ex Parte Niswanger

03/16/11 : Cite No. AP-76,302

Issue:

Was it ineffective assistance of counsel when the defendant's attorney advised a guilty plea and chose not to object that the indictment failed to allege an offense for which the defendant could be prosecuted?

Holding:

No. Defendant's counsel knew at trial the State would enhance to a minimum 25-year sentence and may have made the determination that it was prudent to advise a guilty plea to avoid the reindictment and a higher penalty. The defendant voluntarily accepted the plea because he was "guilty and for no other reason." Read Opinion.

Concurrence:

Judge Womack clarifies that the sufficiency of an indictment is determined within the four corners of the indictment, without reference to the evidence that may be produced at trial. Read Concurrence.

Dissent:

Judge Price states that it constitutes deficient performance for trial counsel to inform the defendant in error that the State's case was "rock solid." Read Dissent.

Dissent:

Judge Johnson states that the defendant had proven by a preponderance of the evidence that his counsel's performance was deficient. Read Dissent.

Commentary:

Why does this run of the mill plea bargain get such review and so many opinions? The majority of the 1,000's of writs filed with the CCA every year make some sort of claim that the defense lawyer didn't do much work before a bargain was struck with the prosecutor. Many of them involve defendants like this one: a 6-time felony loser who was caught red-handed committing a crime in the presence of an officer. Regardless what anyone thinks of the facts, the indictment or the skills of the defense lawyer, the defendant without doubt was facing a potential sentence of 25-life at trial. A bargain was struck for 10 years, saving the prosecutor a trial and the defendant a risk of a lengthy sentence. Why is that so hard to understand? Many a defendant has seen his demand for additional investigation and a trial end with a lengthy prison sentence and remorse over rejecting the plea bargain. Perhaps a hearing on ineffective assistance should be held after every felony guilty plea; at least everyone's memory would be fresh.

State v. Prudholm

03/16/11 : Cite No. PD-1611-08

Issue:

Can the penalty for a defendant convicted for sexual assault of a child be enhanced to a mandatory life sentence when the defendant has a conviction for the California offense of sexual battery?

Holding:

No. Penal Code §12.42 provides enhanced penalties for repeat offenders previously convicted under 12.42(c)(2)(B) or "under the laws of another state containing elements that are substantially similar to the elements of an [enumerated] offense." The California offense of sexual battery does not contain elements that are substantially similar to the elements of aggravated kidnapping or sexual assault. Read Opinion.

Commentary:

Defendant is already serving a 99-year sentence for compelling prostitution. He will now be resentenced for sexual assault, enhanced to a first-degree felony punishment range. Very likely he will get another life sentence. The big difference is that he will be eligible for parole in 30 years (under the parole law for a 3g offense serving 60+) rather than 35 years (under parole law for repeat sex offender serving life). Depending on the defendant's age, there may not be much of a distinction in that difference.

Johnston v. State

03/16/11 : Cite No. PD-1736-09

Issue:

May a police officer conduct blood draws in a non-medical environment?

Holding:

Yes. Simply being a police officer does not disqualify a person from performing a blood draw. The officer had prior training and experience as an EMT. While a medical environment is ideal, it does not mean that other settings are unreasonable under the Fourth Amendment. Read Opinion.

Concurrence:

Judge Johnson emphasizes that this is a fact-specific holding and there is a need to avoid any implication that the Court would find "that a blood draw, done on the side of the road at the rear of a police car, was properly 'taken in a sanitary place.'" Read Concurrence.

Commentary:

This case confirms that the thousands of blood draws taking place at jails around the State with county-trained personnel, especially after the 2009 amendment expanding mandatory warrantless blood draws in DWI cases, are reasonable under the Fourth Amendment. So, I guess prosecutors were right when they said the law was constitutional. Not every donor must be in a hospital setting with a doctor or nurse attending. Just think back to who drew blood from you at your last doctor visit. Probably a minimum wage employee with a high school degree, but she was fairly trained on how to stick you with a needle in a clean environment. And that's all that is required.

State v. Robinson

03/16/10 : Cite No. PD-1206-10

Issue:

Does the defendant bear the initial burden of proof in a motion to suppress under Code of Criminal Procedure Article 38.23?

Holding:

Yes. The burden was mistakenly placed on the State because it stipulated the arrest was without a warrant. This resulted in the State proceeding first in the motion. After the State called its only witness, the trial court incorrectly suppressed the blood evidence based on the fact that "the State has not met the burden to prove that it was [a qualified person] that took it." The State assumed the burden of proof only as to the warrantless arrest, but the defendant retained the burden of proof to establish that the blood draw was not taken in accordance with the statutory requirements. Read Opinion.

Concurrence:

Judge Cochran expands on the shifting burdens at a motion to suppress hearing. Read Concurrence.

Dissent:

Judge Meyers agrees that the court of appeals erred, but not that the State is entitled to relief. Read Dissent.

Dissent:

Judge Price states that because the State bears the burden to prove that §724.017(a) was satisfied as an evidentiary threshold at trial, the State also bears the burden at a motion to suppress. Read Dissent.

Commentary:

The courts (and Judge Price) are mixing apples and oranges regarding the legality of the collection of evidence before trial and the predicate for admission of evidence at trial. Motions to suppress focus on search and seizure laws and seek to keep out evidence because it was unconstitutionally collected. Predicates focus on the information needed before a judge may decide a piece of evidence is sufficiently reliable to be presented to a jury. The State doesn't have to comply with all of the rules for admission of a piece of evidence until it is actually offered during trial. Otherwise, a defendant could just file a pretrial motion seeking a hearing on the admissibility of every piece of evidence expected at trial. And that would be a trial before the trial.

Courts of Appeal

Smith v. State- 1st COA

03/10/11 : Cite No.01-09-00749-CR

Issue:

Did the trial court improperly charge the jury on the offense of continuous sexual assault by instructing that the two sex offenses could occur over a nine-month period?

Holding:

Yes, but the error was harmless because the preceding abstract instructions clearly stated the law, the State voir-dired on the issue, and the State's closing argument explained that it had satisfied the temporal requirement. Read Opinion.

Commentary:

This is a very good case for covering all the issues that arise in prosecution of a continuous sexual abuse case. You get a sample indictment, rulings on the constitutionality of the unanimity requirement, discussion of a proper jury charge and approval of a no-parole sentence. Frankly, this new offense continues to be the best part of Jessica's Law, passed in 2007.

Hyer v. State- 7th COA

03/09/11 : Cite No. 07-09-0338-CR

Issue:

Did the trial court violate the federal and state constitutional right to effective assistance of counsel by denying closing argument to the defendant?

Holding:

Yes, and the court accepts—without any analysis—the State's confession of harmful error. Read Opinion.

Commentary:

What in the world was the judge thinking? He couldn't take a few seconds to listen to defense counsel make an argument on punishment?

Kuykendall v. State- 9th COA

03/09/11 : Cite No. 09-10-00161-CR

Issue:

Was a trial judge, who had previously represented the defendant on two prior convictions alleged for enhancement purposes in the pending case, disqualified from presiding?

Holding:

No, because the judge did not serve as counsel for the accused in this pending case. In contrast to moving for recusal of the judge, the defendant did not need to preserve the disqualification claim to raise it on appeal. Read Opinion.

Commentary:

This issue comes up frequently when a defense attorney or prosecutor becomes a judge. The issue has long been resolved in this manner, although some judges will agree to transfer the case to another judge if requested by the defendant.

Texas Attorney General

Request for Opinion from State Senator of District 11

03/09/11 : Request No. RQ-0951-GA

Issue:

Can the judicial maintenance fund be used to offset a statutory probate court's reduction in funding by the county commissioners' court? Read Request.

Request from Criminal District Attorney of Bowie County

03/11/11 : Request No. RQ-0952-GA

Issue 1:

What agency is responsible for overseeing an individual once a magistrate or judge has signed an emergency detention order requested in the peace officer's application for detention under V.T.C.A. Health & Safety Code, §573.002? Read Request.

Issue 2:

Once court-ordered mental health services are ordered and the sheriff's office is ordered to transport the individual, does the sheriff immediately assume oversight of the individual?Read Request.

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