Weekly Case Summaries: November 2, 2012

Court of Criminal Appeals

Cavazos v. State

PD-1675-10      10/31/12

Issue:

Was the defendant entitled to a lesser-included offense instruction on manslaughter at his trial for murder under PC §19.02(b)(2)?

Holding:

No. Under the “functional-equivalent” test, manslaughter is a lesser-included offense of murder as charged because the elements of manslaughter differ only in that a less culpable mental state (recklessness) suffices to establish its commission; however, “[p]ulling out a gun, pointing it at someone, pulling the trigger twice, fleeing the scene (and the country), and later telling a friend ‘I didn’t meant to shoot anyone’ does not rationally support an inference” that the defendant acted recklessly. Because there was no evidence raised at trial that would permit a rational jury to find the defendant guilty only of manslaughter, the trial court properly denied the instruction. Read opinion

Concurrence (Keller, P.J.):

Manslaughter is not a lesser-included offense of murder as charged in this case. Read concurrence

Commentary:

The significance of this decision is not in the holding that the defendant was not entitled to the instruction on the lesser-included offense; that is actually pretty easy based upon the evidence in this case. The significance of this decision is in the holding that manslaughter is a lesser-included offense of murder under §19.02(b)(2), even though there is no culpable mental state attached to causing the victim’s death for that particular type of murder. This is a very strained reading of the statutory language, and the court continues to muddy the law concerning how to determine if an offense is a lesser-included offense. Judge Keller wins the logical argument in her well-reasoned concurrence, but unfortunately, she loses the vote.

Crabtree v. State

PD-0645-11      10/31/12

Issue:

Was the evidence at trial legally sufficient to support the defendant’s conviction for failure to comply with sex offender registration requirements when the underlying convictions were from Washington state and DPS had not made a determination as to whether they were substantially similar to Texas offenses?

Holding:

No. The plain language of CCP arts. 62.001 and 62.003 demonstrate that the Legislature intended for DPS to determine whether out-of-state convictions trigger the duty to register. This determination is an element of the offense, and because the State failed to present evidence that a DPS determination was made in this case, the evidence was insufficient to support conviction. Read opinion

Concurrence (Keller, P.J.):

To hold otherwise would require people with no legal training to guess at which out-of-state offenses are substantially similar to the triggering offenses. Read concurrence

Dissent (Alcala, J.):

The applicable CCP provisions are ambiguous and require extra-textual analysis; the legislative goals and due process concerns underlying them “are best met by construing the criminal provision as not including a TDPS determination as a statutory element of the criminal failure-to-register offense.” Read dissent

Commentary:

There is no question that the Legislature intended the Department of Public Safety to be the entity that decides whether an out-of-state conviction is “substantially similar,” but that does not mean that DPS’s determination is thereby made an element of the criminal offense. You will not see any reference to the Department anywhere in Article 62.102, the statute that defines the offense or offenses. The bottom line is that this decision is going to place a much stiffer burden upon the Department to keep its list of “substantially similar” offenses up to date. And prosecutors will now have to refer to that list when prosecuting one of these cases that is based on an out-of-state conviction. If the determination by the Department is now considered to be an element, does that mean the State is now required to allege that determination in its indictment? It is an element, is it not? That is precisely what the court held: “a DPS substantial-similarity determination is an essential element of the offense of failure to comply with registration requirements.”

Ortiz v. State

PD-1181-11      10/31/12

Issue:

Did the trial court correctly conclude the defendant’s 5th Amendment rights were violated when an officer questioned him at the roadside after a traffic stop without first giving him Miranda warnings?

Holding:

Yes. A reasonable person in the defendant’s position would have believed that at the moment he made the incriminating statements, he was in custody for 5th Amendment purposes. 1) The officer had expressed his suspicion that the defendant had drugs in his possession; 2) additional law enforcement officers had arrived on the scene; 3) the defendant and his passenger had been patted down and handcuffed; and 4) the officers had manifested their belief that the defendant was connected to some sort of illegal activity. Read opinion

Commentary: 

Be careful with this decision. Do not let defense lawyers try to tell you it applies to the typical questioning that occurs during a DWI traffic stop. It should not. The key fact in this case is that the defendant and his wife had been handcuffed. Along with the other factors, this was much more like an arrest than the roadside questioning that occurs during a DWI traffic stop.

Texas Courts of Appeals

State v. Cashion

No. 05-11-00334-CR      10/26/12 (not design. for pub.)

Issue:

Did the trial court properly find that officers failed to conduct a valid inventory search?

Holding:

Yes. The officers failed to follow their own impoundment regulations requiring first that, if possible, the vehicle be released to another available person. Read opinion

Commentary:

In years past, the officer’s actions in this case would have been justified as a search incident to a valid arrest. But Arizona v. Gant changed all of that. Now we are going to have to brush up on our inventory law and make sure our officers were following department policy in conducting an inventory of a vehicle.

State v. Houghton

No. 02-11-00375-CR      10/25/12 (not design. for pub.)

Issue:

Did the trial court correctly hold that officers lacked reasonable suspicion to stop a vehicle where an officer testified and the defendant’s driving was video-recorded?

Holding:

Yes. The trial court found the officer’s testimony incredible and, on review, the video recording did not indisputably show any traffic violations. Read opinion

Commentary:

Add this case to the list of those decisions that hold officers’ traffic stops to be illegal if they are based upon weaving within a single lane of traffic. It is very difficult for the State to prevail in such cases, and it is even more difficult for the State to prevail if the appeal of the trial court’s ruling is taken by the State and not the defendant.

Garza v. State

No. 04-11-00891-CR      10/24/12 (not design. for pub.)

Issue:

Did a 17-year-old defendant preserve his claim that LWOP for a juvenile violates the 8th Amendment?

Holding:

No. He failed to present his complaint to the trial court and even most constitutional errors must be preserved. Read opinion

Commentary: 

You may see this decision reviewed by the Court of Criminal Appeals, even though it is unpublished. But I would definitely make this argument on appeal if your juvenile (or even adult) defendant is making an argument based upon Miller v. Alabama that was not raised at trial.

State v. Meru

No. 13-12-00223-CR      10/25/12 (not design. for pub.)

Issue:

In a burglary of a habitation case, did a trial court properly grant a motion for new trial because it failed to submit an instruction on the lesser-included instruction of criminal trespass?

Holding:

Yes. Although the State makes a novel argument that criminal trespass is not the LIO of burglary because trespass requires complete intrusion of the body into a habitation whereas burglary requires only partial intrusion of the body into a habitation, precedent dictates affirming the trial court’s ruling. Read opinion

Commentary:

This holding was based upon a recent decision from the Court of Criminal Appeals, Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011), that muddied the water concerning whether an offense is a lesser-included offense of a greater offense. Unfortunately, I would not expect the higher court to review this decision.

Texas Attorney General

Request from the 173rd Judicial District Attorney

RQ-1094-GA      10/24/12

Issue:

Does CCP art. 42.12 §15(h), creating “diligent participation” credits for state jail felonies, violate Article IV, §11 and Article II, §1 of the Texas Constitution by granting the judiciary power to grant clemency and commute sentences? Read request

Commentary:

This is an interesting question, but I suspect that the statute will be upheld. Various challenges have been made to parts of Article 42.12 as inappropriately granting executive power to the judiciary, and they are typically rejected.

Request from the Caldwell County Criminal District Attorney

RQ-1095-GA      10/25/12

Issue:

Does a commissioners court abuse its discretion by designating the day of the week it shall convene in a regular term during the current fiscal year if, at its last meeting of the previous fiscal year, it already designated a different day of the week on which it shall convene in compliance with §81.005 of the Local Government Code? Read request

Commentary: 

This is an issue of pure statutory construction. Make sure to read the entire statute before you make up your mind.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected]. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.