Weekly Case Summaries: May 18, 2012

Fifth Circuit Court of Appeals

United States v. Amer                   

No. 11-60522 : 05/10/12

Issue:

Did Padilla v. Kentucky announce a new rule so that the decision does not apply retroactively?

Holding:

Yes. While awaiting the Supreme Court’s resolution of the pending question in Chaidez, the Fifth Circuit joins the Seventh and Tenth Circuits to hold that Padilla does not apply retroactively. The novelty of the rule is reflected in the diversity of the justice’s opinions in Padilla; Padilla departed markedly from the prior legal landscape abrogating the position of most of the lower state and federal courts; and, for the first time, Padilla melded two established lines of precedent.
Read Opinion 

Commentary:

Recognizing that SCOTUS has already accepted the issue for review, the 5th Circuit nonetheless leaps ahead to decide Padilla is not applied retroactively to cases that were final at the time of that decision. Guess the 5th Circuit is feeling pretty confident of the outcome. Or, maybe the 5th Circuit wants to weigh in before the decision is made by SCOTUS. How is everyone feeling about the flood of Padilla writs that SCOTUS promised would not happen?

Court of Criminal Appeals

Sanchez v. State

No. PD-0961-07 : 05/16/12           (on motion for rehearing)

Issue:

Did the trial court incorrectly instruct the jury on two theories of unknown manner and means of committing murder?

Holding:

Yes. The trial court should have reduced the four theories to the two theories with the specified manner and means that were supported by evidence at trial. However, the charge error was harmless because the jury could have convicted the appellant for murder without being unanimous in its determination as to the manner or means of death.
Read Opinion

Commentary: 

This opinion on rehearing is a substantial improvement on the original opinion. As you may recall, the original opinion engaged in quite a philosophical discussion of how to distinguish between alleging unknown or unknowable manner and means in the indictment and jury charge. The rehearing simply looks to see whether the jury charge alleged manner and means that were not supported by the evidence. Obviously, it’s a problem if the jury is told it can find someone guilty based on a manner and means for which there is no evidence in the record. So, just like you would for any case in which you have alleged alternative manner and means, remember to only include in the jury charge those remaining manner and means that have some supporting evidence in the record. Here, the medical expert’s testimony narrowed the manner and means to hands or the stun gun, tossing out the notion that the manner and means was unknown, unknowable or any other variation. And that harmless error argument is gold.

Scales v. State

No. PD-0442-11 : 05/16/12 

Issue:

Did the trial court abuse its discretion by dismissing a juror for “not deliberating” and seating an alternate?

Holding:

Yes.  The trial court had insufficient information from which to determine that the dismissed juror was not able to perform her duties. When the judge questioned the foreman in open court, the foreman’s statements showed the possibility that the dismissed juror did not view the evidence the same as the other 11 jurors and that her refusal to deliberate was actually a refusal to change her mind.  It was error for the judge to not explore that possibility before dismissing the juror.
Read Opinion

Commentary: 

Any time a juror is dismissed over the defendant’s objection, there had better be an outstanding supporting record. Here, the judge got unclear information and, strangely, refused to question the very juror who the judge eventually dismissed. There really wasn’t any reason to accept this case for discretionary review. The court of appeals, essentially, already got it right. The petition should have been dismissed as improvidently granted. Sorry, State, sometimes we lose.

Sanchez v. State

No. PD-1264-11 : 05/16/12

Issue:

May a blood draw search warrant to be executed in a designated county be issued by a statutory county court judge of a different county?

Holding:

No. Statutory county court judges lack the authority to issue a search warrant to be executed outside of their own county.
Read Opinion

Commentary: 

This might be something to fix through the Legislature. Meanwhile, get a search warrant from a judge in your county. By the way, did anyone argue that the officer acted in good faith under the Code of Criminal Procedure exception to the exclusionary rule? Sure seems like a great way to preserve the admissibility of the evidence.

Ex parte Hastings

Nos. AP-76,749 & 76,750 : 05/16/12

Issue:

Was an application for a writ of habeas corpus filed under CCP art.  11.07 timely when the applicant filed it on the same day that a court of appeals issued its mandate in the applicant's direct appeal?

Holding:

Yes. Absent evidence to the contrary, a direct appeal mandate is presumed to have issued at 9:00 a.m. on the date it issues. This presumption may be rebutted with evidence that the mandate actually issued later in the day and after the writ application was filed in the convicting court.
Read Opinion

Commentary: 

Boy, this defendant wasn’t wasting any time in filing his writ after losing on direct appeal. So, should we start checking the time stamp on the issuance of the mandate?

Texas Court of Appeals

Ex parte Haddad – 5th COA

No. 05-12-00028-CR : 5/14/12 (not published)

Issue:

Can a petitioner who was convicted before the 1996 immigration law changes obtain relief under Padilla?

Holding:

No, the stricter immigration laws made deportation a virtual certainty only after 1996.
Read Opinion

Commentary: 

This may be moot if Padilla is not retroactive. And when are we going to get a time limit on filing a post-conviction writ (other than for innocence)? Heck, even a 10-year limit would help at this point. The feds have a one-year time limit!

Thomas v. State – 9th COA

No. 09-11-00202-CR : 05/09/12 (on rehearing)

Issue:

Does Padilla apply if defense counsel fails to advise a defendant that his guilty plea could result in civil commitment as a sexually violent predator (SVP)? 

Holding:

No, SVP commitment is neither a penalty nor an automatic result of criminal convictions.  Thus, SVP commitment is not a matter that could have been the subject of plea negotiations with the State.
Read Opinion

Commentary: 

Can you imagine the long list of subjects if a defense attorney had to advise a defendant of every collateral consequence of a conviction? Gun ownership. Employment. Voting. This kind of case shows why Padilla needs to go.

Baggett v. State – 6th COA

No. 06-11-00173-CR : 05/14/12

Issue:

In a DWI case, did a jury charge instruction defining “normal use” as “the manner in which a normal non-intoxicated person would be able to use his mental or physical faculties” constitute an improper comment on the weight of the evidence?

Holding:

Yes, the term is not statutorily defined; has not acquired a technical meaning and may be interpreted according to its common usage; did nothing to clarify the law for the jury and was unnecessary; is a tool for a court to gauge the sufficiency of the evidence; and the jury should have been free to assign the term any meaning that is acceptable in the common parlance. But it was harmless error.
Read Opinion

Commentary: 

Do not let your judge put a definition in the jury charge that is not contained in the Penal Code. Period.

Hudson v. State – 6th COA 

No. 06-11-0028-CR : 05/11/12

Issue:

At a capital murder trial, should the jury charge have included an instruction on the lesser-included offense of manslaughter?

Holding:

Yes, on the facts, manslaughter is the lesser-included offense of capital murder.  Also, although the defendant denied committing any offense, other evidence pointed to the possibility of recklessly causing death. “While the beatings were undeniably vicious, the jury could have concluded that they were intended merely to severely discipline, but not to kill.” The omission harmed the defendant so the case is reversed and remanded for a new trial.
Read Opinion

Commentary: 

While it seems unfair for the defendant to deny committing a crime and still rely on evidence from other sources to argue for consideration of a lesser-included offense, a jury certainly has the discretion to reject some testimony and accept other evidence as credible. The advice is worth repeating: be generous in accepting proposed lesser-included offenses in the jury charge. Trust the jury to sift out the nonsense.

Wortham v. State – 9th COA

No. 09-11-00231-CR : 05/09/12

Issue:

In an injury to a child case, in which the indictment alleged shaking and restricting a child’s airflow causing suffocation, should the jury charge have included instructions on the lesser-included offenses of reckless injury to a child and criminally negligent injury to a child based upon injury resulting from contact with a plastic bag or resulting from efforts to revive the child?

Holding:

No, because the conduct constituting the offense charged was different from the conduct constituting the offense of the requested charges, and a jury could not rationally find that the brain injury resulting in loss of airflow was caused by the alleged contact with the bag or an alleged effort to revive the child.
Read Opinion

Commentary: 

Sometimes, the requested lesser-included offense is just not even legally or factually a subset of the charged offense. In those cases, it would be a mistake to accept them in the jury charge. Good analysis by the court of appeals.

Texas Attorney General

Opinion for Lamar County and District Attorney

Opinion No. GA-0929 : 05/14/12

Issue:

Can a commissioners court remove county officers’ proposed salary increases from the final budget at the final public hearing without giving additional notice to county officers and without a chance to seek redress from the salary grievance committee?

Opinion:

No. Such actions are contrary to the requirements of Local Government Code §§152.013(c) and 152.016. A district court’s supervisory jurisdiction could be invoked to seek a judicial determination as to whether a commissioners court acted beyond its jurisdiction or clearly abused its discretion in adopting the county budget.
Read Opinion 

Request from Guadalupe County Attorney

RQ-1059-GA : 05/09/12

Issue:

May a county enter into a long-term lease of county-owned vacant land to a children's advocacy center for a nominal sum per year?
Read Request

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