Weekly Case Summaries: May 11, 2012

Court of Criminal Appeals

Clark v. State

No. PD-0218-10 : 05/09/12

Issue:

Did the defendant’s objection to the prosecution’s questioning and tactics as sidebar, argumentative, mischaracterization, invading the province of the jury, and badgering put the trial court on notice that his right to due process was violated?

Holding:

No. The defense’s objections were not so clearly connected to constitutional protections that they could be assumed to be due process objections. Because constitutional error has much heavier implications on appeal, the trial court must be presented with and have a chance to rule on specific constitutional objections.
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Commentary:

This prosecutor properly conducted an aggressive cross-examination of the defendant. Good to see the CCA is not willing to let a bunch of weasel words, under the guise of objections, morph into some sort of constitutional due process issue.

Lothrop v. State

No. PD-1489-11 : 05/09/12

Issue:

Was there reasonable suspicion to stop the defendant after he drove on an improved shoulder to pass a car that had slowed at a railroad crossing in violation of Transportation Code §545.058(a)?

Holding:

No. The officer did not testify that the defendant was driving in a manner inconsistent with §545.058(a)(4) (using the shoulder to pass another vehicle that is slowing on the main portion of the highway). Driving on an improved shoulder is not prima facie evidence of an offense. The offense of illegally driving on an improved shoulder is committed when driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on the improved shoulder could not have been done safely.
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Concurrence (Johnson, J.):

Common sense would indicate that the defendant’s decision to cross the railroad tracks on the shoulder was likely unsafe, but the officer testified only that he thought the passing on the shoulder was unlawful.
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Commentary:

Sounds like this case was lost by the failure of the officer to articulate what exactly was unsafe about using the shoulder. A few more questions and answers might have changed the outcome. Judge Johnson wrote a thoughtful concurring opinion.

Nieto v. State

No. PD-0230-11 : 05/09/12

Issue:

Did the court of appeals correctly find that the State’s race-neutral explanations were a pretext for racial discrimination after the State exercised its peremptory strikes on all the black venire members in the strike zone? 

Holding:

No. The State struck the potential juror because he shared the same last name as others who had been prosecuted by the district attorney’s office and because he glared at the prosecutor during voir dire. Based on the entire voir dire and circumstances of the case, these reasons were not a pretext for racial discrimination. The trial court is in the best position to determine the genuineness of the State’s proffered reasons for a strike, and a reviewing court may not substitute its judgment.
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Commentary:

No new law here. But the CCA does a good job of reminding the court of appeals of the deferential standard owed to the trial court’s decision.

State v. Mendoza

No. PD-1000-11 : 05/09/12

Issue:

When reviewing a trial court’s conclusion that the officer lacked reasonable suspicion to make a traffic stop, did the court of appeals correctly infer that the trial judge fully credited the officer’s testimony, and therefore, the trial court’s legal conclusion was incorrect?

Holding:

No. The written findings of fact in this case were ambiguous and there was no determination made as to the officer’s credibility. The trial judge’s written findings contain both “weasel words” and factual juxtapositions that cast doubt on an implied finding that she fully credited the officer’s version of events. The case is remanded with instructions to abate the case to the trial judge for supplemental findings.
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Commentary:

Who knew that “weasel words” was an important legal concept? Perhaps at your next trial, you could object, “Your Honor, with all due respect, those are just weasel words.” This is a very strange decision that, essentially, tells the trial judge to make up his mind on the credibility of the officer’s testimony. For prosecutors, it is a reminder to present clear proposed findings of fact that include a decision on the credibility of the various witnesses.

Texas Court of Appeals

Harvey v. State - 6th COA                                                            

No. 06-12-00006-CR : 05/02/12

Issue:

Was a defendant’s constitutional protection against double jeopardy violated where he pled open to the primary charge and the case was recessed for a PSI but, after the State reminded the trial court of the enhancement allegations two months later at the punishment proceeding, pled open to the primary charge plus enhancements? 

Holding:

No, because the trial court had merely noted—not accepted—the defendant’s first plea.
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Commentary:

No new law here. But this is a striking reminder to prosecutors to double-check the plea paperwork and make sure it includes all anticipated parts of the case, including enhancements.

Kirsh v. State – 6th COA                                                               

No. 06-10-00071-CR : 05/08/12

Issue: 

Did the trial court’s DWI jury charge definition of “operate” as meaning “to exert personal effort to cause the vehicle to function” constitute some harm requiring a reversal?

Holding:

Yes, but the court acknowledged “the seemingly odd conclusion that while the evidence of guilt, when tested by an approved definition of the term ‘operate,’ is sufficient, a similar definition, when given to the jury, caused harm to the defendant. Based on the rationale of the Texas Court of Criminal Appeals, we find no other conclusion can be drawn. Had the convicting jury not been given a definition of the term, we could conclude the jury elected to use a broad definition of ‘operate’ which led to conviction rather than choosing a more restrictive definition that might have led to an acquittal.”
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Commentary:

The court of appeals does a very good job of separating the concepts of sufficiency of the evidence from charging error. Not really sure there was any harm given the obvious evidence of guilt, even if presented largely though circumstantial evidence of “operating” a motorcycle. Still, the court of appeals does make a reasonable case for harm. Reminder to prosecutors: don’t let the judge put in definitions that aren’t in the Penal Code!

Texas Attorney General

Opinion for Brazoria County Criminal District Attorney           

Opinion No. GA-0927 : 05/07/12

Issue:

Does CCP art. 4.19 permit a child under the age of 17 who has been transferred to criminal court for prosecution to be detained in a facility that does not comply with Family Code §51.12(f)?

Opinion:

No. Construing CCP art. 4.19 with subsection 51.12(f) of the Family Code, a juvenile certified as an adult may be transferred to a facility and treated as an adult under the CCP, but if the juvenile is not at least 17 years of age, the juvenile is considered a child who must be detained according to the separation requirements of subsection 51.12(f) of the Family Code.
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