Weekly Case Summaries: November 4, 2016

Court of Criminal Appeals

Balderas v. State

No. AP-77,036    11/2/16

Issue:

Does the Confrontation Clause require that the defendant have the ability to confront his accuser in English? Was the photo array impermissibly suggestive such that it rendered a witness’s in-court identification inadmissible?

Holding:

No. The defendant argued that one of the State’s witnesses against him could speak and understand English; thus, the court’s decision to provide her with a Spanish-speaking interpreter violated his Sixth Amendment right to confrontation. There is no requirement that the court affirmatively establish a material witness’s English skills (or lack thereof) prior to appointing an interpreter when doing so would be in the interest of justice to ensure proper testimony and cross-examination. Additionally, while the photograph of the defendant in the photo array did include him wearing a black hoodie, as described by the witness at the scene, it was not impermissibly suggestive because the hood is clearly off his face, all the photos are of similar looking young Hispanic males, and none of the men pictured had a “dark mark” on their face as described by the witness. Furthermore, the fact that the witness viewed the array twice in two days was not suggestive because she identified the defendant the first time and was already familiar with him. Read.

Concurrence (Richardson, J.):

Judge Richardson wrote separately and elaborated on the fact that even if the photo identification of the defendant was suggestive, it was not impermissibly suggestive and there was no likelihood of misidentification. Read.

Dissent (Alcala, J.):

Judge Alcala dissented because in her view the “highly suggestive” photo spread created by police violated the defendant’s due process rights. Read.

Commentary:

This was a long opinion that also addressed an interesting issue related to a claim of an improper outside influence on the jury where the jurors saw the defendant’s brother waving at them when they were on their way to their hotel. The translator issue is particularly pertinent in Texas where many witnesses are multi-lingual but more fluent in their first language. The photo array issue demonstrates the difference between constitutional rules applicable to identifications and the psychological issues that might affect the reliability of the identification.

Ex parte Sepeda

No. WR-34,095-24            11/2/16

Issue:

Is a habeas petition the proper remedy to compel the Board of Pardons and Paroles to provide a parole-denial letter in compliance with Texas Government Code §508.1411?

Holding:

Yes. Because Government Code §508.1411 requires the Board to give specific reasons why a defendant was denied parole, and 37 Texas Administrative Code §145.17 does not provide a remedy when the denial letter does not meet the requirements, a writ of habeas corpus would be the proper remedy to compel a letter in compliance with the Government Code requirements. Read.

Commentary:

This should not be a problem moving forward. It appears the Board has adopted a new form acceptable to the Court.

Ex parte White

No. WR-48,152-08            11/2/2016

Issue:

Does new evidence that would have affected punishment entitle a defendant to relief under Code of Criminal Procedure Art. 11.073?

Holding:

No. Art. 11.073 requires that any new evidence show the defendant “would not have been convicted;” thus, evidence that would have changed only punishment and not have affected guilt/innocence would not entitle a defendant to relief. Read.

Concurrence (Richardson, J.):

Judge Richardson concurred with the majority but wrote separately to acknowledge the harsh result of Art. 11.073 in death penalty cases in particular. Read.

Dissent (Alcala, J.):

Judge Alcala believed the statutory language was ambiguous and there was legislative intent that Art. 11.073 have a broader application than merely guilt/innocence but should also apply to the penalty phase of a death penalty trial. Read.

Commentary:

Consider this a preview of a legislative hearing to occur sometime around March of 2017. Generally, the problem of bad scientific evidence is one that affects guilt rather than punishment, hence the Legislature’s use of language focused on guilt.

State v. Schunior

No. PD-0526-15                 11/2/16

Issue:

What is the statute of limitations for aggravated assault?

Holding:

The Court found the statute of limitations for aggravated assault is governed by Art. 12.03(d), making the limitations period the same as the “primary crime.” In this case, there is no evidence that the “primary” assault was a felony assault; thus, the primary crime was a misdemeanor assault, and the statute of limitations is two years. Read.

Commentary:

This case appears to affect the statute of limitations only for aggravated assault and aggravated perjury. As legislation becomes longer and more specific, unintended results become more common. There are other offenses where the statute of limitations is determined based upon whether the penalty is a misdemeanor or felony, yet that has not caused Texas to float off into the Gulf of Mexico. It may be time for the Legislature to eliminate Art. 12.03(d).

Office of the Attorney General

Request from the Taylor County Criminal District Attorney

RQ-0138-KP        10/31/16

Issue:

When does a search warrant become “executed” and thus publicly available under Code of Criminal Procedure Art. 18.01(b)? Read.

Commentary:

This request bears watching. It could be critical to many investigations that warrant affidavits not be public until the warrant itself is executed. A ruling otherwise might compromise many cases and substantially undermine the utility of the hard-won sealing statute.

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