Weekly Case Summaries: March 28, 2013

Supreme Court

Florida v. Jardines

No. 11-564        3/26/13  (5-4)

Issue:

Does using a drug dog to sniff around the front porch of a residence constitute a search?

Holding (Scalia, J.):

Yes, because the government trespassed on the protected curtilage.
Read opinion

Concurrence (Kagan, J.): 

The same result could be reached by alternative reasoning: The government violated the homeowner’s reasonable expectation of privacy.

Dissent (Alito, J.):

No search occurred because “the gathering of evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach.” Moreover, nobody has a reasonable expectation of privacy in odors emanating from his home.

Commentary:

The property/trespass theory of searches dusted off last year by the Court in Jones gains form. Justice Scalia’s majority seems more tenuous than that he constructed in his last constitutional innovation—the Crawford line of cases. Will this theory thrive or wither? Will it inform the Court’s decision when it reaches more controversial issues like drones, searches of location data, and searches of smart phones?

Court of Criminal Appeals

Abney v. State

No. PD-1231-11        3/27/13

Issue:

Did an officer have reasonable suspicion to stop the defendant for driving in the left lane without passing when the sign prohibiting the defendant from doing so was over 20 miles behind the point where the officer observed and stopped the defendant?

Holding:

No. Considering the totality of the circumstances, nothing in the record indicates the officer knew the point at which the defendant entered the highway. A traffic stop for failure to comply with a traffic control device, such as a “left lane for passing only” sign, must be supported by some evidence that the driver could have seen the sign.
Read opinion

Commentary:

Another exposition on Texas traffic law. Interestingly, it takes the Court 15 pages to hold that 15 miles is too far away for a traffic sign to affect a defendant’s driving behavior.

Anderson v. State

No. PD-0986-12        3/27/13

Issue:

Was the defendant’s North Carolina conviction for “Taking Indecent Liberties with Children” substantially similar to the Texas offense of “Indecency with a Child” for the purposes of enhancing punishment for the defendant’s sexual assault conviction to life in prison?

Holding:

No. All factors of the Prudholm analysis weigh against a finding of substantial similarity. There is no high degree of likeness of the elements because the North Carolina offense criminalizes a much broader range of conduct. The protected interests differ in that the North Carolina offense seeks to punish the guilty mind of the offender, while the indecency statute seeks to protect children from specific sexual acts. The class, degree, and range of punishment for “Indecent Liberties” are also much lower than those of Indecency with a Child.
Read opinion

Commentary:

The North Carolina conviction did not count as a first strike under the sex-offender two-strike law because it was more protective of children than the Texas indecency with a child statute. Perhaps the solution is for the Legislature to give Texas children the same protections enjoyed by North Carolina children.

Hudson v. State

No. PD-0768-12        3/27/13

Issue:

Did the court of appeals apply the correct analysis in determining that the defendant was entitled to a jury instruction on the lesser-included offense of manslaughter in her trial for murder?  

Holding:

No. If evidence relied upon to raise the requested lesser-included offense establishes an offense that is greater than the one requested, the defendant is not entitled to the requested instruction. In this case, the evidence relied upon for the manslaughter instruction also supported 1) murder based on intent to cause serious bodily injury, 2) felony murder with the underlying felony of kidnapping, and 3) felony murder with the underlying felony of injury to a child. The court should have also considered the jury’s rejection of the submitted lesser-included offenses in determining whether there was harm.
Read opinion

Commentary:

This case provides useful insight on when a lesser-included offense is raised by the evidence, but use it wisely.

Yzaguirre v. State

No. PD-0799-12        3/27/13

Issue:

In determining whether a lesser-included offense instruction should have been given, may the court consider the law of parties instruction given in the abstract, but not application, portion of the charge?

Holding:

Yes. Because the law of parties was contained in the abstract portion and supported by the evidence, and because there was no evidence that the defendant committed only the lesser-included offense in light of the law of parties, the trial court was correct to deny submission of the lesser-included offense.
Read opinion

Commentary:

This seems to be the more useful of the two jury-charge opinions. This defendant needed to produce or identify some evidence raising an issue whether he aided, encouraged, or assisted the other defendants, as well as evidence raising an issue whether he was armed.

Texas Courts of Appeal

Ibarra v. State

No. 01-12-00292-CR        3/21/13

Issue:

Is a defendant entitled to habeas relief on a claim of ineffective assistance of counsel for a failure to admonish on immigration consequences if the defendant’s case became final prior to Padilla v. Kentucky, 559 U.S. 356 (2010)?

Holding:

No, following Chaidez v. United States, No. 11- 820, 568 U.S. __ (February 20, 2013), which held that Padilla does not apply retroactively.
Read opinion

(See also Ex parte Luna, No.14-11-01063-CR  3/26/13)

Commentary:

The CCA has also held that Padilla is not retroactive. De los Reyes v. State, No. PD-1457-11 (Tex. Crim. App. Mar. 20, 2013).

Cardenas v. State

No. 01-11-01123-CR        3/21/13

Issue:

Was the evidence sufficient to support the assessment of court costs?

Holding:

Yes. Despite the absence of a bill of costs in the clerk’s record as originally prepared, post-conviction supplementation of the record with the district clerk’s print-out from its justice information system sufficed to support the costs.
Read opinion

Commentary:

The best practice is for the clerk to prepare a bill of costs in each case where costs are assessed rather than wait for the defendant to complain on appeal.

Bekendam v. State

No. 02-10-00444-CR        3/21/13 (en banc) (4-3)

Issue:

In a DWI trial, was the trial court wrong to allow a DPS forensic scientist to testify to trace levels of cocaine—levels below those permitted in DPS reports—were found in the defendant’s blood at the time of the draw and that cocaine would have been in her bloodstream while driving?

Holding:

No. The failure to follow DPS policy for screening blood samples for drugs is not the equivalent of failing to properly apply the scientific technique on the occasion in question.
Read opinion

Dissent:

“If a trace amount of cocaine is too unreliable to be included in a written report, why is it reliable if presented orally?”

Commentary:

The dissent poses an interesting question. I am aware of a similar problem recently where the breath-test results were invalid due to an interferent, but the trial court allowed the technical supervisor to testify as to the quantity of alcohol detected despite the invalid result. The jury acquitted even though both the blood test and invalid breath test were over 0.08. What if your invalid drug or alcohol tests could be viewed as favoring the defense—are they Brady material? Do we have a duty to investigate invalid breath and blood tests to see if, under some other protocol, they might favor the defendant?

Garcia v. State

No. 04-11-00705-CR        3/20/13

Issue:

Did the trial court improperly exclude the defendant’s family members from jury selection?

Holding:

Yes. No specific findings supported the exclusion, and there is no showing the court considered other reasonable alternatives.
Read opinion

Commentary:

Another case reversed because a handful of people could not be accommodated in the courtroom during voir dire. The scary part is that larger rooms were unavailable at the time and the room capacity set by the fire marshal would have been exceeded by allowing more people in the courtroom. Have the appellate courts forgotten how difficult it is to manage the movements of the dozens of people necessary to select a jury?

Terry v. State

No. 14-12-00162-CR         3/21/13

Issue:

Were a defendant’s confrontation rights violated by the admission of Texas Health and Human Services generic computer-generated worksheets used for determining the availability and value of food stamps?

Holding:

No, the worksheets were not testimonial because the primary purpose of the questioning during the interviews used to complete the worksheets was not to establish or prove past events potentially relevant to later criminal prosecution.
Read opinion

Commentary:

A non-law enforcement, non-investigatory government report based on the defendant’s statements is not testimonial.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to casesummary@tdcaa.com. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.