Weekly Case Summaries: May 6, 2011

Court of Criminal Appeals

Ex Parte Gutierrez

05/04/11 : Cite No. AP-76,406

Issue:

In a capital murder case where there were multiple attackers, should the defendant have been allowed DNA testing of nail scrapings?

Holding:

No. Granting DNA testing in this case would "merely muddy the waters" because the defendant was not seeking testing of biological evidence left by a lone assailant. A third-party match to the requested biological evidence would not overcome the overwhelming evidence of the defendant's direct involvement in the multi-assailant murder. Read Opinion.

Commentary:

Judge Cochran wrote an excellent opinion describing why post-trial DNA testing that simply seeks to confuse the public and provide a forum for avoiding responsibility for a crime is not what the Legislature intended. Many modern claims of innocence, unfortunately, involve this sort of "muddying the waters" approach. The media loves it. Note: the Legislature currently is considering a bill (SB 122, currently awaiting a hearing in a House committee) that will make it easier for a defendant to seek testing even after expressly declining a test before trial as a strategic decision. You could call it the Muddy Waters Bill. It will give you the blues.

Ex Parte Evans

05/04/11 : Cite No. AP- 76,445

Issue:

Can TDCJ impose sex-offender restrictions on inmates who have not been convicted of a sex offense without due process including notice, disclosure of evidence, and a hearing?

Holding:

No. While TDCJ may pursue such conditions, it requires due process before they can be imposed. Read Opinion.

Concurrence:

Presiding Judge Keller thinks the procedures outlined by the court are too broad and do not apply to every sex-offender condition imposed. Read Concurrence.

Commentary:

Although this case deals only with imposing special sexual abuse, the reasoning is likely to damage the historic discretion granted to a parole board in protecting the public against any dangers associated with the early release of a convicted felon. The due process requirements imposed by this decision will undoubtedly lead to an increase in the complexity of imposing parole conditions and leave the public, in some cases, unprotected against dangerous criminals. For some criminals, it may mean that they will simply serve out their prison terms.

Ex Parte Garza

05/04/11 : Cite No. PD-0381-09

Issue:

Was it improper for the court to declare a mistrial when the defendant is willing to proceed with one of the six jurors out ill?

Holding:

Yes. There was no manifest necessity for the trial court to declare a mistrial without at least exploring the option to wait a week, then to possibly conduct the trial with only five jurors. The State failed to satisfy its "heavy burden" to show the "high degree" of necessity the Fifth and Fourteenth Amendments require to justify subjecting the appellant to a second trial. Read Opinion.

Commentary:

Any time a judge declares a mistrial over the objection of the defendant and without the support of the State, the case is likely to end badly. In this case, the judge had at least two options left to pursue: a delayed trial with all six jurors or an immediate trial with only five jurors. The judge didn't take enough time to consider both options.

Meekins v State

05/05/11 : Cite No. PD-0261-10

Issue:

Did the defendant give voluntary consent to search his vehicle when the officer asked for permission six times and the final answer was "I guess?"

Holding:

Yes. The trial court noted that when the officer asked the defendant to step out of the vehicle the defendant did so. If he had intended to refuse he would have done so at that point. The CCA also noted that it would have upheld the trial court's finding if the trial court had found no voluntary consent based on the totality of the circumstances. Read Opinion.

Concurrence:

Presiding Judge Keller states that the subjective intent of the suspect is not the issue; rather, the issue is what a reasonable police officer would have believed when confronted with the suspect's responses. Read Concurrence.

Concurrence:

Judge Johnson notes that the officer's training and experience caused his "Spidey sense" to tingle, and he was entitled to ask the occupants to step out of the vehicle without probable cause or reasonable suspicion of criminal activity being afoot. Consent to search the defendant's car is irrelevant to the admissibility of controlled substances found on the defendant. Read Concurrence.

Dissent:

Judge Meyers disagrees that the facts provide clear and convincing evidence to show positive, unequivocal, and voluntary consent. Read Dissent.

Commentary:

The keys to this case are the trial court's initial decision and the appellate court's standard for reviewing that decision. In short, great deference is paid to the trial court's decision. Other than that, there is nothing new here.

Texas Court of Appeals

Castleberry v. State - 1st COA

04/28/11 : Cite Nos. 01-10-00158-CR, 01-10-00159-CR, 01-10-00248-CR, 01-10-00249-CR

Issue:

Did the warrantless seizure of the defendant's lockbox (with key), which he had left in the safekeeping of his minor victim while he worked abroad, violate the defendant's privacy rights?

Holding:

No. A person cannot rely on a bailment agreement with a minor to maintain privacy because the minor is free to avoid and disaffirm any kind of contract; the minor had mutual access and control over the box; and the defendant never prohibited the minor from accessing the contents. Read Holding.

Commentary:

How does an adult who collects prohibited images of child pornography and then tells a child to store it have any right to privacy when those images are turned over to the police? Why isn't this case handled like a defendant who tries to claim a right to privacy in a stolen vehicle that contains drugs? There should straight up be no standing to litigate the issue. And we shouldn't have to talk about ancient legal theories like "bailment", which no one really understands. The Texas statutory extension of the exclusionary rule to private citizens is what creates this nonsense. Enough already.

Aylor v. State - 12th COA

04/29/11 : Cite No. 12-09-00460-CR

Issue:

Is an oath administered over the telephone sufficient to support an affidavit supporting a blood search warrant?

Holding:

No, the person taking the oath must personally and physically appear before the individual qualified to administer the oath. Read Opinion.

Note: The SPA is filing a PDR.

Commentary:

This case results from judges refusing to acknowledge the march of technology. Who cares whether than oath is delivered in person or over the phone? It is still an oath. Odds are that this opinion will be reversed.

Cueva v. State - 13th COA

05/02/11 : Cite No. 13-09-00195-CR

Issue:

Are a trial court's findings of fact on a motion for new trial so tied to the ruling that if they are not issued within the 75-day window for a ruling they should be disregarded?

Holding:

No. Unlike the civil rules of procedure, Rule of Appellate Procedure 21.8 does not establish a deadline for issuing findings of fact on a motion for new trial. Read Opinion.

Commentary:

So, then how long after the hearing may a judge issue findings of fact? We are not likely to find out the answer because the issuance of findings will always be harmless given the presumptions accorded the trial court's decision.

Texas Attorney General

Request for Opinion from the 97th Judicial District Attorney

04/19/11 : Request No. RQ-O962-GA

Issue:

May the county judge appoint counsel in criminal cases for non-indigent defendants, and may the county judge require payment of attorney's fees from a defendant under an order of community supervision in an amount greater than the contractual amount for attorney's fees provided in the county's contract with a group of criminal defense attorneys? Read Request.

Request for Opinion from the County and District Attorney in Cameron County

04/22/11 : Request No. RQ-0964-GA

Issue:

May a municipal police department distribute money from its forfeiture fund to a local Crime Stoppers organization? Read Request.

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