Weekly Case Summaries: May 13, 2011

Court of Criminal Appeals

Ex Parte Bohannan

05/11/11 : Cite No. AP-76,363

Issue:

Is a defendant entitled to habeas corpus relief when denied a preliminary hearing to determine whether there is probable cause to believe he violated a condition of his parole (blue warrant)?

Holding:

Not in this case. The issue was already moot by the time it reached the CCA and the court did not find that it was an issue "capable of repetition, yet evading review." The CCA noted that the TDCJ must conduct preliminary hearings, as required by Tex. Gov't Code §508.2811, within a time frame that meets the demands of due process as set out in Morrissey and Cordova so that releasees will not be required to seek this court's intervention to enforce these rights. Read Opinion.

Concurrence:

Presiding Judge Keller points out that the difference between this case and Ex parte Cordova was there was no suggestion in the opinion that the parolee was being confined on the new charges. Whether that difference between the two cases is legally significant is not addressed. Read Concurrence.

Concurrence:

Judge Keasler comments that this opinion does not leave similarly situated individuals without a remedy. Failure to comply with Morrissey still violates a defendant's constitutional rights. Read Concurrence.

Commentary:

The tone of the opinion implies great unhappiness with TDCJ. In most cases, parolees waive such a hearing, but maybe not anymore. The need for a hearing in cases involving the commission of a new crime is questionable.

Texas Courts of Appeals

Wisser v. State- 4th COA

05/04/11 : Cite No. 04-10-00531-CR

Issue:

Does Crawford v. Washington apply to probation revocation proceedings?

Holding:

No. Probation revocation proceedings are administrative, not criminal, in nature so Crawford is inapplicable. Read Opinion.

Commentary:

This decision is consistent with the reasoning in other courts in Texas and around the country. But it doesn't mean the Rules of Evidence don't apply. Have to wonder why the State didn't use the probationer's 20-year absence as a ground for revocation.

In the Matter of M.H.V.-P. – 8th COA

05/04/11 : Cite No. 08-09-00291-CR

Issue:

Does Crawford v. Washington apply at a juvenile adjudication proceeding, and was it violated in this case?

Holding:

Yes, Crawford does apply at a juvenile adjudication hearing even though it does not apply at a juvenile disposition or transfer hearing. A juvenile at an adjudication hearing enjoys the same rights as a defendant at a criminal proceeding. But while the Student Incident Report prepared by the school security officer and signed by the student was testimonial, the witness was present at the hearing, even though she could recall nothing about the statement at trial. Crawford was not implicated. Read Opinion.

Commentary:

Does anyone really believe the young witness couldn't remember the fight? Then again, maybe she sees them every day. At any rate, her lost memory and presence at trial (testifying that she has no memory but gave a statement) justifies admission with no Crawford violation.

Vasquez v. State – 14th COA

05/05/11 : Cite No. 14-09-00704-CR

Issue:

Did the jury charge properly apply the law of parties to the facts of the case by employing the language "acting alone or as a party (as herein defined)?"

Holding:

No. Although the abstract instructions provided a general statement on the law of parties, the application paragraph improperly referred the jury back to the abstract portion. Because there was no evidence that the defendant was the primary actor, the error constituted some harm, and the judgment was reversed. Read Opinion.

Dissent:

The defendant failed to preserve error; therefore, the claim on appeal is waived. Read Dissent.

Commentary: 

The dissent has the better argument. This case is ripe for PDR.

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