Weekly Case Summaries: March 22, 2013

Fifth Circuit

United States v. Vargas-Ocampo

No. 11-41363        3/14/13

Issue:

Must the court disavow statements in its opinions that are inconsistent with the standard for the sufficiency of the evidence espoused in Jackson v. Virginia, 443 U.S. 307 (1979)?

Holding:

Yes—although, “[r]arely have the glosses, founded on a concept of equipoise, led to reversal of a conviction on appeal. … they have been so frequently cited as to suggest confusion in our understanding of Jackson.”
Read opinion

Commentary:

The defendant is arrested nearby after running away from a truck containing a whole lot of dope. The evidence is sufficient to prove him guilty of possession with intent to distribute and conspiracy to commit possession with intent to distribute. Special bonus for federal prosecutors: The Fifth Circuit realigns its sufficiency of the evidence precedent with the prosecution-friendly Jackson v. Virginia standard of review.

Court of Criminal Appeals

Ex parte Argent

Nos. AP-76,891 & AP-76-892        3/20/13

Issue:

What is the standard for granting habeas corpus relief for ineffective assistance of counsel in plea-bargaining after Missouri v. Frye and Lafler v. Cooper?

Holding:

To establish prejudice, the habeas applicant must show a reasonable probability that: 1) he would have accepted the earlier offer if counsel had not given ineffective assistance; 2) the prosecution would not have withdrawn the offer; and 3) the trial court would not have refused to accept the plea bargain.
Read opinion

Dissent (Johnson, J.):

“Unfortunately, what the new standard requires is a highly developed ability to read minds and predict the future actions of other persons.”
Read dissent

Commentary:

This decision aligns Texas precedent with federal precedent in cases where defendants allege ineffective assistance of counsel regarding plea bargains. The test is incrementally harder for defendants, but because trial courts usually accept the plea bargains negotiated by the parties, most defendants who meet the other prongs of the test will probably be able to prove the court would have accepted the plea bargain.

Vega v. State

No. PD-1438-12        3/20/13

Issue:

Does the Almanza harm analysis apply when a court’s charge does not completely instruct the jury on a defensive issue, but the defendant did not request the charge and did not object at trial?

Holding:

Yes, but this defendant was not harmed. When the court includes a charge on a defensive issue but the charge itself is incorrect, reversal is required only if the defendant was egregiously harmed. In this case, the defendant was not harmed by the court’s entrapment instruction that included the undercover officer but not a confidential informant.
Read opinion

Commentary:

Repeat after me: “The jury charge is the defendant’s best chance to get his conviction reversed on appeal, even if he does not object. I will always take time to read the court’s charge and ensure it is correct.” This opinion would be good for all trial prosecutors to read so that you can see how a minor oversight can endanger your hard work. Also interesting was the defendant’s testimony that he wasn’t a drug dealer, but rather had “been trained my entire life in customer service.  … I'm always trying to be helpful to people.”

Ex parte De Los Reyes

No. PD-1457-11        3/20/13

Issue:

Under state law, does Padilla v. Kentucky, 130 S.Ct. 1473 (2010), apply retroactively to allow habeas relief to a defendant whose conviction was already final at the time of the Supreme Court’s decision?

Holding:

No. The court adheres to the retroactivity analysis in Chaidez v. United States, 133 S.Ct. 1103 (2013). (See Ex parte Tanlevskaya, No. PD-1051-11; Ex parte Romero, No. PD-1262-11; Ex parte Carpio-Cruz, No. PD-1872-11; Ex parte Aguilar, No. PD-1111-12; and Ex parte Olvera, No. PD-1215-12, also issued on March 20, for more application of the same analysis.)
Read opinion

Commentary:

The fact that five cases were remanded on the same day because of this opinion shows that it is quite important to Texas prosecutors. All those pre-Padilla plea bargains are safe from this particular attack. Note that at least one pending house bill appears to be an attempt to make Padilla retroactive.

Bonds v. State

No. PD-0039-12        3/20/13

Issue:

Was a warrant sufficiently particular for purposes of the 4th Amendment although it contained errors in the description of the address and roof color of the house to be searched?

Holding:

Yes. Because the warrant was sufficiently particular on its face, facts outside the four corners of the affidavit, including the requesting officer’s personal knowledge of the place to be searched and his participation in the search, could be considered in reaching a conclusion that there was probable cause to search the house described.
Read opinion

Commentary:

No warrant is perfect when it describes the place to be searched. This is especially true with the types of places that police actually search, which are unlike the nice homes where judges live.

Ex parte Shaw

No. PD-0042-13        3/20/13 (per curiam)

Issue:

Was the court of appeals’ second opinion, issued after the State filed a petition for discretionary review, authorized under the Rules of Appellate Procedure?

Holding:

No. Former TRAP 50 was abolished on July 12, 2011. When the State filed its petition, the appellate court lost its authority to withdraw the original opinion and substitute a new opinion.
Read opinion

Commentary:

I guess the court of appeals won’t try that again.

Texas Courts of Appeal

Gomez v. State

No. 11-05-00996-CR        3/18/13

Issue:

Is a defendant, who pleaded nolo contendere but challenged his guilt at trial and who on appeal is alleging that he received ineffective assistance of counsel, required to link counsel’s ineffectiveness to his plea or sentence?

Holding:

Yes; because a plea of nolo contendere has the same legal effect as a guilty plea, complaints merely going to the trial court’s finding of guilt will not suffice.
Read opinion

Commentary:

This type of proceeding is sometimes called a “no-contest TBC.” As noted by the opinion, the parties agree to this type of plea to give the defendant the chance to challenge his guilt while maintaining his eligibility for deferred adjudication probation. If the State’s evidence is lacking, an acquittal is entered. But it also leaves the conviction open to challenges as to the validity of the plea and the efficacy of counsel. Such claims might not fly on direct appeal, but they will have more legs in habeas corpus. Schemes for avoiding statutory limits on dispositions are best avoided.

Trevino v. State

No. 07-11-0027-CR        3/18/13

Issue:

In an indecency with a child by contact case, was a trial court’s instruction defining female genitalia improper?

Holding:

Yes. “Genitalia” has not acquired an established and common-law meaning. Undefined terms are to be understood as ordinary usage allows, and jurors may give them any meaning that is acceptable in common parlance. The instruction constituted a comment on the weight of the evidence but, despite that, was harmless error.
Read opinion

Commentary:

The Court of Criminal Appeals has approved only one non-statutory definition of a term in the last two decades. If a definition is not in the Penal Code, Code of Criminal Procedure, or another code that is the source of the statute you are using to prosecute, DO NOT use it in your jury charge. DO NOT use a definition from an appellate opinion in your jury charge.

Texas Attorney General

Opinion for Chair of the Texas House Committee on Criminal Jurisprudence

Opinion No. GA-0993        3/15/13

Issue:

Does a magistrate have a mandatory duty to admonish an arrested person as required by CCP art. 15.17, irrespective of the arrested person’s wishes?

Opinion:

The duty of a magistrate to admonish an arrested person is mandatory. However, an arrestee may waive his right to have a magistrate orally recite the admonishments of CCP art. 15.17 if the waiver is made plainly, freely, and intelligently. Whether any particular waiver is effective is a matter for the magistrate to decide in each case.
Read opinion

Commentary:

I think waiving the warnings is not a good practice. Those warnings are designed to ensure that other relinquishments of rights—namely right to silence and right to appointed counsel—are voluntary.

Opinion for Clay County Attorney

Opinion No. GA-0994        3/15/13

Issue:

Must a sheriff submit an office policy manual to the county commissioners court for approval?

Opinion:

No. Each of a county’s various elected officials has “virtually absolute sway over the particular tasks or areas of responsibility entrusted to [him] by state statute.” A Texas sheriff has power to make and enforce rules, regulations, and policy within his constitutional and statutory sphere. No statute authorizes a commissioners court to approve or reject the office policy manual of an elected county official.
Read opinion

Commentary:

The never-ending battle between elected department heads and the commissioners’ court continues. Score one for elected department heads, but do not expect warm fuzzy feelings during the next budget cycle.

Request from Titus County Attorney

Opinion Request No. RQ-1114-GA        3/18/13

Issue:

Whether a county commissioners court may establish a rule that prohibits an elected county official from bringing a pet to his or her county office.
Read request

Commentary:

I guess it depends whether the pet in question is a big scary dog …

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