Weekly Case Summaries: March 9, 2012

Court of Criminal Appeals

Runningwolf v. State

No. PD-0997-10 : 03/07/12

Issue:

Did the "non-statutory abatement" drafted and served by the defendant constitute simulating legal process to support a conviction under PC §32.48?

Holding:

Yes. The defendant used legal language with the intent that the recipient submit to the authority of the document. The non-exhaustive list of considerations developed by the Amarillo Court of Appeals provided useful guidance in determining whether a particular document simulates legal process. However, courts should also consider if a similarly situated reasonable person would believe that he or she had received a legal document.
Read Opinion

Dissent (Keller, P.J.):

The case should be remanded to the court of appeals to consider whether a reasonable person would perceive the document as legal process.
Read Dissent 

Commentary:

Does anyone think that Mr. Runningwolf appreciates the irony in trying to use a state appellate court (The Man) to correct the perceived wrongful interference by The Man with the authority of his ecclesiastical court? And here is a free practice tip for Republic of Texas types: If you don't want to be arrested for simulating legal process, just be sure to draft the simulated document with a crayon.

Steadman v. State

No. PD-1356-10 : 03/07/12

Issue:

Did the trial court correctly exclude four members of the defendant's family from the courtroom during jury selection?

Holding:

No. The exclusion violated the defendant's 6th Amendment right to a public trial. The trial court failed to identify specific circumstances sufficient to justify its concerns about jury panel contamination and courtroom security. The court also failed to consider all reasonable alternatives to closure of the courtroom.
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Commentary:

Unfortunately, the person who will most suffer from the reversal of this otherwise fair conviction is the child victim who was sexually assaulted by the defendant. Still, such a reversal must occur to preserve the constitutional right to a public trial. The lesson to be learned is that mere inconvenience is not enough to justify excluding family members from the courtroom during voir dire. As noted here, they could have been seated in the jury box chairs, and the panel could have been instructed to ignore those people in the jury box.

Leonard v. State

No. PD-0551-10 : 03/07/12

Issue:

Did the trial court correctly consider evidence of the defendant's failed polygraph examinations when determining whether to revoke his community supervision?

Holding:

Yes. The polygraph exam was used to monitor the defendant's compliance with the sex offender treatment program, and his failure on the exam led to the expert discharging him from the program. The results of the polygraph exams, although inadmissible before a jury, were admissible at the revocation hearings because the exam results qualified as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).
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Concurrence (Hervey, J.):

The dissent's reliance on scientific polygraph material disregards prior caselaw holding that the trial court is the proper venue for presentation of scientific articles and learned treatises.
Read Concurrence 

Dissent (Cochran, J.):

The trial court incorrectly considered the polygraph evidence because the evidence is inadmissible in all proceedings in Texas, including revocation hearings, and the State failed to present any evidence on the scientific reliability of the polygraph testing.
Read Dissent 

Commentary:

There are several factors that make this a narrow, unique opinion. First, the defendant did not object to the condition of probation, leaving open the issue of whether he could have avoided being exposed to the violation. Second, the litigation involved a revocation hearing before a judge and not a trial before a jury, bypassing concerns that might exist over how a jury might unfairly use the information. And third, the information was filtered through an expert, avoiding the mere presentation of the polygraph results as proving a lie. Frankly, this is a very close decision, and prosecutors would do well to avoid relying solely on such a violation in the revocation of probation.

Lackey v. State

No. PD-1621-10 : 03/07/12

Issue:

Was a visiting municipal court judge's ruling on a motion to suppress in a DWI case void and did the defendant forfeit any challenge to the municipal judge's qualifications by failing to object at the hearing?

Holding:

No. The defendant made a timely objection to the municipal judge's authority when he filed a subsequent motion to set aside the original ruling on the motion to suppress while the county court judge still had authority to rule. The court did not reach the question of whether the municipal judge's order was void.
Read Opinion 

Concurrence:

Presiding Judge Keller disagrees with the court's use of policy considerations to determine whether an appellant preserves error.
Read Concurrence 

Dissent:

Judge Hervey would hold that the orders entered by the visiting judge were voidable, not void, and disagreed with the majority's disposition of the case on procedural grounds without reaching the voidability issue.
Read Dissent 

Commentary:

One really has to wonder why the CCA ever accepted this case for PDR. The issue of preserving error for appellate review is not so monumental that it requires such time and detailed analysis. The issue itself is somewhat inconsequential: a motion to suppress for a DWI decided by a person who had more legal experience than the actual judge. And the decision is so fact-based as to have little precedential value. All in all, not really a PDR-worthy case.

State v. Holloway

No. PD-0324-11 : 03/07/12

Issue:

Did the convicting trial court have jurisdiction to grant the defendant a new trial under CCP ch. 64?

Holding:

No. Chapter 64 of the CCP does not authorize a trial court to grant a new trial after DNA testing is conducted, but it does authorize the court to hold a hearing and make a finding on the significance of the DNA results. The proper method to obtain judicial relief on the basis of a favorable CCP art. 64.04 finding is through a post-conviction writ of habeas corpus under CCP art. 11.07.
Read Opinion 

Commentary:

Um, if the identity of the person who left blood on the knife was so important, then why wasn't DNA testing done before the trial? This seems to be another case in which the defendant holds back on testing to use it for an advantage at trial and, upon losing the trial, goes back for a second bite at the apple. In addition, the trial court showed a tremendous misunderstanding of the court's limited authority in connection with a request for DNA testing. Good to see the CCA standing firm on protecting its exclusive authority to decide post-conviction writs.

Texas Court of Appeals

Heiglemann v. State - 6th COA

No. 06-11-00039-CR : 03/02/12

Issue:

Did the trial court's written response to a jury note about extraneous offenses constitute error?

Holding:

Yes. The extraneous offenses were admitted only for the purpose of identity, as the jury charge stated, but the written response permitted the jury to consider them for any purpose including (1) whether the defendant committed all the elements of the offense and (2) character conformity.
Read Opinion 

Commentary:

Why, oh, why didn't the trial court accept the modest request of the defense attorney and simply repeat the instruction that was already accurately in the jury charge? (Of course, one could also ask why the jury couldn't read the jury charge and understand it as written.)

Texas Attorney General

Request from Denton County Criminal District Attorney

RQ-1045-GA : 03/05/12

Re: Refund of cash bail bonds under recent legislative amendments to CCP art. 17.02.
Read Request

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