Weekly Case Summaries: May 10, 2013

Fifth Circuit

United States v. Towns

No. 12-30105        5/6/13

Issue:

Did the trial court improperly admit pharmaceutical pseudoephedrine purchase logs in violation of 1) the business records exception to the hearsay rule and 2) the 6th Amendment Confrontation Clause?

Holding:

No, 1) the affidavits adequately certified the logs as business records and no evidence of the logs untrustworthiness existed, and 2) under Melendez-Diaz v. Massachusetts, 557 U.S.305 (2009), the logs were prepared as required under state regulatory law, not solely with an eye towards trial, so they were non-testimonial.
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Commentary:

This is a very helpful opinion. These business records are the type of records that prosecutors might often see in businesses that are regulated or licensed by the government. The business record law is in conformity with Texas business record law, but it will only have persuasive authority in Texas state courts. The Confrontation Clause holding is a straightforward application of Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. 

Court of Criminal Appeals

Ex parte Perez

No. AP-76,800        5/8/13

Issue:

May a court consider the totality of the circumstances in determining whether a long-delayed habeas application is barred by the doctrine of laches?

Holding:

Yes. The federal standard requiring the State to show particularized prejudice and a complete inability to answer the application is no longer workable. The courts can consider other forms of prejudice, such as the State’s inability to retry the defendant, and weigh them against equitable considerations in favor of granting relief, like new evidence of actual innocence.
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Dissent (Meyers, J.):

The majority expanded the doctrine of laches prematurely; the habeas applicant should have been allowed to file an out-of-time PDR first.
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Commentary:

This is probably the most significant decision that the court issued this week, although it may also be one of the least utilized. This decision will help prosecutors raise laches arguments when the defendant has delayed in pursuing a writ of habeas corpus. And this holding should ultimately have application beyond post-conviction writs of habeas corpus, as it could apply to pre-trial application for writs of habeas corpus (although obviously less frequently) and probation writs of habeas corpus.

Baird v. State

No. PD-0159-12        5/8/13

Issue:

Did the trial court correctly deny the defendant’s motion to suppress evidence of child pornography found on his computer by a friend staying in the defendant’s home?

Holding:

Yes. Evidence showed the defendant had given the friend “apparent consent” to enter his bedroom and use his computer. The friend did not commit trespass or breach of computer security, and CCP art. 38.23 did not require suppression of the evidence.
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Concurrence (Keller, P.J.):

The majority incorrectly states the standard for determining whether the offenses of criminal trespass and breach of computer security have occurred.
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Dissent (Meyers, J.):

The majority incorrectly takes into account whether the friend believed or was aware that she was committing a forbidden act. She committed breach of computer security, and the evidence should have been suppressed.
Read dissent

Commentary:

Read this opinion very carefully to make sure an apparent consent argument will apply in any particular case. Having said that, the apparent consent given in this case was rather broad and general. It did not reference the computer specifically, but it also did not exclude the computer. The defendant gave his friend rather broad access to his portions of the residence.

Dansby v. State

No. PD-0613-12        5/8/13

Issue:

Was the defendant’s 5th Amendment privilege against self-incrimination violated when his deferred adjudication community supervision was revoked after he failed to answer incriminating questions during a mandatory sexual history polygraph examination?

Holding:

Yes. Although the State contended the revocation was proper based on another ground – failure to successfully complete a sex offender treatment program – the State failed to show the defendant was discharged from the program for reasons other than his refusal to submit to incriminating questioning in group therapy.
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Dissent (Keasler, J.):

The majority falsely assumes the sex offender therapist’s subjective intent in discharging the defendant was relevant and makes factual findings and conclusions contrary to the record.
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Commentary:

The majority opinion appears to find that the defendant’s refusal or failure to cooperate necessarily constituted an invocation or exercise of the defendant’s Fifth Amendment privilege. That is something the State might want to explore with courts of appeals, since this case has been remanded to fully address the defendant’s constitutional argument. Keep watch over what the United States Supreme Court says in Salinas v. Texas in the next few weeks to see if it has any application to this fact situation. This case could have greater application to situations where a defendant’s probation is revoked because of a failure to cooperate.

Krause v. State

No. PD-0819-12        5/8/13

Issue:

Was a licensed EMT-I (emergency medical technician – intermediate), whose primary duty at the hospital was to draw blood in non-emergency situations, a “qualified technician” for purposes of Transportation Code §724.017?

Holding:

Yes. The record shows that despite her job title, the EMT-I’s primary duties were that of a phlebotomist, she was trained to draw blood, and she took 50-100 blood draws per day. She performed none of the functions of emergency medical services personnel.
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Concurrence (Johnson, J.):

It is clear from the language of Transportation Code §724.017 that the legislature intended to regulate those who transport patients from the scene of the injury to the hospital and prevent blood draws in unsanitary places, such as an ambulance.
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Concurrence (Alcala, J.):

The court should adopt a black-and-white rule: 1) blood draws in pre-hospital, non-office settings should not be admissible, and 2) blood draws in hospital-office settings outside of the emergency room should be favored.
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Dissent (Price, J.):

The plain language of the statute excludes the EMT-I from the category of qualified technicians.
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Commentary:

This should be a very helpful decision for those technicians who have sufficient qualifications, but also happen to be operating in emergency situations on occasionThe Legislature also is  considering an amendment to the statute to counteract the original holding of the court of appeals.

State v. Copeland

No. PD-1340-12        5/8/13

Issue:

Does the reasoning of Georgia v. Randolph, 547 U.S. 103 (2006) apply to vehicles?

Holding:

No. “Unlike homes occupied by general co-tenants, society does generally recognize a hierarchy with respect to the occupants of a vehicle. The driver is the person who has the superior right.”
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Dissent (Meyers, J.):

The trial court’s decision to suppress evidence should be upheld because there was not clear and convincing evidence of consent to search.
Read dissent

Commentary:

This is a great decision. And it will be interesting to see if the defense attempts to pursue a writ of certiorari in the United States Supreme Court. In a footnote citing to several decisions, the majority points out that other federal and state courts have not squarely addressed Randolph’s application to vehicles.

Texas Courts of Appeal

Linney v. State

No. 14-11-01015-CR        5/7/13

Issue:

In the face of State’s evidence that a child victim’s behavior—including cutting herself, sexually acting out, and having heightened levels of anxiety and interpersonal difficulties—is commonly seen in sexual abuse victims, did the trial court wrongly prevent cross-examination of the victim about her behavior resulting from rejection after losing her virginity?

Holding:

Yes. The probative value of the evidence outweighed the minimal risks of prejudice; confusion of the issues; misleading the jury; and considerations of undue delay and needless presentation of cumulative evidence. Thus, exclusion of the evidence violated the defendant’s confrontation rights. But the limitation was harmless.
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Commentary:

A defendant has the right to advance his defense, as troubling or offensive as it might be. Thankfully, the court finds this error to be harmless, so the victim will not be required to relive this event yet one more time.

State v. Cooley

No. 14-12-00499-CR        5/2/13

Issue:

Does the Penal Code mandate a minimum sentence of 30 days confinement on conviction of a second DWI?

Holding:

Yes. Analyzing §§12.21 and 49.09, the latter is more specific in the DWI context. Accordingly, “confinement must be for at least 30 days and not more than one year, and a trial court retains the option to impose a fine of up to $4,000 in addition to confinement.”
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Commentary:

This is a rather straightforward application of the Legislature's intent. In that regard, it proved to be an easy appeal for the State to win. Show this opinion to your judge if he refuses to assess 30 days in jail as a sentence for driving while intoxicated-second offender.

Texas Attorney General

Opinion for Montgomery County Auditor

Opinion No. GA-1005        5/6/13

Issue:

May a county judge appoint multiple “justices of the peace at-large” under Local Government Code §27.055?

Opinion:

No. A county judge may appoint only one qualified person to serve as temporary justice of the peace when that precinct’s JP is temporarily unable to perform official duties.
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Request from Kerr County Attorney

Request No. RQ-1124-GA        5/1/13

Issue:

Is an official district court reporter a state, county, or district employee?
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