Weekly Case Summaries: November 9, 2012

Court of Criminal Appeals

Elizondo v. State

No. PD-0882-11      11/7/12

Issue:

Did the trial court properly admit a written confession given to a loss prevention officer where the officer did not give Miranda warnings prior to taking the statement?

Holding:

Yes. Non-law enforcement officers are not required to give warnings prior to taking statements unless it can be shown they are acting in tandem with law enforcement. Applying the three factors established in Wilkerson, the court found: 1) there was no evidence showing the police or DA asked or encouraged the loss prevention officer to get a confession; 2) from the perspective of the loss prevention officer, the primary purpose of the statement was to aid the company in civil suits arising from the theft; and 3) a reasonable person in the defendant’s position would not have believed the loss prevention officer was acting as a law enforcement officer. Read opinion

Commentary:

Because the trial court and court of appeals had already reached the correct conclusion, applying settled law regarding agency principles, one must wonder why the CCA took the time and resources to grant discretionary review and write such a lengthy opinion. Still, the case should reassure prosecutors that statements obtained from private security personnel are admissible absent Miranda warnings, so long as the police are not in “cahoots” (yes, the CCA really used the word “cahoots”) with the store security. Only in the United States would a common shoplifter caught red-handed get so much due process for a garden-variety misdemeanor theft and confession.

Ex parte Ramey

No. AP-76,533      11/7/12

Issue:

Is the admissibility of an expert’s testimony regarding future dangerousness a cognizable issue for habeas corpus review?

Holding:

No. Although the court found the particular expert’s testimony inadmissible under TRE 702 in an unrelated case on direct appeal, claims regarding the admissibility of evidence under the rules of evidence are not appropriate for habeas review. Read opinion

Dissent (Meyers, J.):

The court failed to correctly address this issue on direct appeal, violating the defendant’s right to due process and providing a cognizable issue for habeas review. The inadmissible testimony affected the defendant’s substantial right to a fair sentencing hearing. Read dissent

Commentary:

Although the principle that a rule of evidence violation is not a constitutional issue cognizable on habeas review has long been the law, the recitation and application of that principle to a claim raising expert witness problems is significant. In these times, when scientific testimony is under great scrutiny, defendants should understand that the time and place to raise such issues is during trial and on direct appeal. Good work by Presiding Judge Keller to preserve the limited application of post-conviction habeas review to jurisdictional and constitutional claims.

Texas Courts of Appeals

In the Matter of C.L.S.

No. 01-11-00439-CV      10/31/12

Issue:

When a trial court permits a parent at a non-governmental parental termination proceeding to represent himself, must the trial court—as in criminal cases—admonish on the dangers of self-representation and obtain a valid waiver of counsel?

Holding:

Yes. Contrary to another ruling by the Eighth Court of Appeals but in line with some other states, Faretta v. California, 422 U.S. 806 (1975), applies in parental termination cases. Read opinion

Dissent:

No. While a trial court is well-advised to apply Faretta in a private parental termination case, the law does not require it. Read dissent

Commentary:

The dissent seems to do a better job of addressing the issue. Absent a right to counsel in a civil case, how can there be a constitutional duty for the judge to warn the litigant of the dangers and disadvantages of representing himself? The outcome seems more borne from the natural inclination to think such warnings would be a good practice. Too much these days, courts seek to constitutionalize their own notions of what would be the best practice. Such matters are generally more appropriately addressed in the legislative branch, where costs can also be considered.

Farias v. State

No. 01-12-00205-CR      11/01/12

Issue:

In a plea-bargained possession of controlled substances case where the agreed sentence was below the minimum permitted because a fine was not assessed, is the defendant barred from complaining on appeal because he enjoyed the benefit?

Holding:

No. On direct appeal, an illegal sentence is unauthorized, illegal, and void. It must be reversed. Read opinion

Commentary:

The court of appeals correctly notes the distinction between challenging an unauthorized sentence on direct appeal versus through post-conviction habeas review. This case is a good reminder for prosecutors to consult the Penal Code for the exact punishment range for those drug offenses that carry mandatory fines. And, yes, it is absurd that the defendant receives the benefit of reversing an agreed punishment that worked to his benefit. But that is the law.

Ex parte Bolivar

No. 13-11-00397-CR      11/01/12

Issue:

Where a trial court revokes community supervision on multiple grounds, and on the defendant’s request concerning a murder allegation makes an oral finding of “not true” but then makes no finding in its written judgment, does collateral estoppel bar trial on an indictment for the same murder?

Holding:

No. A revocation of community supervision hearing can give rise to collateral estoppel, but it does not here. The trial court’s written revocation order took precedence over its oral pronouncement, the docket entry did not constitute a judgment, the trial court found “true” numerous grounds—other than the murder—and the trial court did not necessarily make a ruling on the murder allegation. Also, the defendant failed to preserve for review his complaint that the trial court’s oral finding was a fact-finding adverse to the State. Read opinion

Commentary:

The prosecutor in a probation revocation should not be presumed to be protecting the same interests as the prosecutor in the separate criminal case alleged as a violation, especially if those prosecutors are working in two separate counties. Expect future litigation on that issue. Meanwhile, if another county is proceeding on a probation revocation with your murder case as that violation, make sure everyone understands the gamesmanship that will arise in an attempt to trigger collateral estoppel. If you have plenty of noncriminal violations, use them for the revocation and wait to present the murder evidence at a punishment hearing.

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