Weekly Case Summaries: October 11, 2013

Court of Criminal Appeals

Ex parte Oranday-Garcia

No. WR-71,844-12        10/9/13

Issue:

Could the defendant raise a Padilla claim in a subsequent habeas application under CCP art. 11.07, §4(a)(2) (the “new law” exception) although his conviction was final before Padilla was decided?

Holding:

No. Before the court will consider a subsequent application, the defendant must make a prima facie showing that the facts of his case bring him within the ambit of the new law. Although Padilla announced new law, it does not apply retroactively to the defendant’s conviction and cannot serve as the basis for his subsequent habeas application.
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Commentary:

This decision may seem predictable because the United States Supreme Court and the Court of Criminal Appeals had already decided that Padilla v. Kentucky would not apply retroactively. But this is actually a good decision in general for post-conviction writ prosecutors, making clear that the defendant has to establish a prima facie case to be able to bring a “subsequent” application for a post-conviction writ of habeas corpus.

Boston v. State

No. PD-1023-12        10/9/13

Issue:

Was the evidence sufficient to convict the defendant of aggravated robbery when the victim testified she didn’t realize the co-defendant had a gun until she reviewed surveillance video of the robbery?

Holding:

Yes. The co-defendant’s act of reaching over the counter when the victim opened the cash register was sufficiently threatening to place the victim in fear of serious bodily injury, and the victim testified she did fear being injured. Brandishing a firearm is not the only way a person can be threatened or placed in fear under the robbery statute.
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Commentary:

This decision is a good lesson in statutory construction. To commit aggravated robbery, a person does not necessarily have to threaten with a deadly weapon. He needs only to threaten and then also use a deadly weapon during the commission of the offense. You probably will not see these facts repeated in your case, but it is a good reminder to read the actual statute creating your offense to make sure what you do and do not have to prove.

Plummer v. State

No. PD-1269-12        10/9/13

Issue:

Must a deadly weapon be used in some manner to facilitate the associated felony offense to support a deadly weapon finding?

Holding:

Yes. The mere possession or display of the weapon simultaneously with the commission of the offense is not enough. The deadly weapon must play some role in accomplishing the felony offense.
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Commentary:  

Be careful that defense lawyers do not construe this decision beyond what it actually holds. The court has not overruled any prior caselaw concerning what constitutes the use and/or exhibition of a deadly weapon. This decision simply cautions that proving mere possession (and nothing else) may not be sufficient to show that the defendant used and/or exhibited a deadly weapon. Read this decision carefully to see what prior decisions it still considers to be good law, and look at the examples (given as only Judge Cochran could give them) of situations in which mere possession might not be enough to support a deadly weapon finding. If you have a case like that, in which the defendant seemed to only incidentally possess a deadly weapon while he was committing a felony, make sure that you also present circumstances that would show that the defendant was also facilitating the commission of the felony with the deadly weapon.

Sturdivant v. State

No. PD-0759-13        10/9/13 (per curiam)

Issue:

Did the defendant waive her complaint about the imposition of costs for the State’s attorney pro tem, investigators, and experts because she did not raise an objection in the trial court or file any post-judgment motions alleging the costs were improper?

Holding:

Maybe. The court of appeals did not have the benefit of the court’s opinion in Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013) (holding that such complaints can be made for the first time on appeal) when it decided the case.
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Commentary:

The court seems to be straying into shakier and shakier territory in persisting in holding that a defendant can challenge certain costs for the first time on appeal. These holdings do seem to run counter to the general rule that a defendant must make an objection at trial and thereby give the trial judge and State a chance to correct an error and/or respond to the objection. Certainly defendants should be able to raise something on appeal if they were not given the opportunity to object at trial, but defendants are provided the means by which to challenge in the trial court many court costs pursuant to Chapter 103 of the Code of Criminal Procedure.

Farmer v. State

No. PD-1620-12        10/9/13

Issue:

Was the defendant entitled to a jury instruction on the defense of an involuntary act in his DWI trial because he testified that his wife set his medications out for him, and he was unaware that he took Ambien before driving?

Holding:

No. Voluntariness, as described by PC §6.01(a), refers only to one’s own physical body movements. Although the defendant may have mistakenly taken the wrong pill due to his wife’s actions, there is no evidence that shows he did not voluntarily pick up the medication and ingest it.
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Concurrence (Cochran, J.):

The affirmative defense of involuntary intoxication applies to DWI cases in Texas, and the defendant offered some evidence to support an involuntary intoxication instruction. However, he did not raise this issue on appeal, and he was not entitled to an instruction on involuntary acts.
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Commentary:

This is a wonderful decision that should, let’s hope, clear up a lot of confusion about voluntariness and when it is and is not a defense to criminal prosecution in Texas. Make sure to read it, especially if you are faced with an intoxicated defendant who claims that he did not know what he was taking to become intoxicated.

Britain v. State

No. PD-0175-13        10/9/13

Issue:

Should the court of appeals have entered judgments finding the defendant guilty of the lesser-included offense of criminally negligent homicide, rather than acquitting her, when it found the evidence insufficient to support a guilty verdict on the charged offense of manslaughter?

Holding:

No. There was not proof beyond a reasonable doubt that the defendant was guilty of all the elements of the lesser-included offense. There was no evidence presented at trial regarding the standard of care an ordinary person should be held to and only conflicting evidence regarding whether the defendant should have perceived a risk. The jury’s erroneous finding that the defendant was reckless cannot necessarily be read to conclude it would have found her negligent.
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Commentary:

Read the facts of this opinion—this is not the typical injury to a child case. So this decision should not adversely impact upon prosecution of those types of cases (injury to a child, manslaughter, murder, capital murder). The expert opinions appeared to control the court’s holding that the defendant did not act negligently in failing to seek medical attention for her step-child.

Texas Courts of Appeals

Jordy v. State

No. 02-11-00377-CR        10/3/13

Issue:

Did the defendant open the door to the admission of testimony about the correlation between blood-alcohol concentration (BAC) and HGN?

Holding:

Yes. Although this line of testimony is normally inadmissible, the defense counsel’s cross-examination of the arresting officer left the jury with the false impression that the NHTSA manual says nothing about such a correlation. The State was entitled to clear up this impression with testimony that the manual states four HGN clues correlate to a BAC of 0.10 or higher.
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Commentary:

Be careful with this decision. It appears to be entirely correct, based upon general “opening the door” or “false impression” caselaw. But do not automatically assume you will be able to introduce evidence that a defendant’s performance on an HGN test correlates to a particular level of blood-alcohol concentration. Defense counsel read these decisions as well, and most of them will be careful not to open the door (unlike defense counsel in this case).

State v. Bland

No. 13-13-00155-CR        10/3/13

Issue:

Did the trial court correctly suppress drugs seized by officers who entered a home without a warrant under the premise they were there to “preserve life or avoid serious injury?”

Holding:

Yes. Although the initial entry into the home was justified because of the emergency doctrine, officers had already determined no one in the home needed medical attention when they approached the defendant for a second time and found the drugs in plain view.
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Commentary:

This is a State’s appeal in which the trial court had granted the defendant’s motion to suppress, and that is the most significant reason why the State lost in this particular case. If the trial court had denied the motion to suppress, the key conflicting inference would have been made in the State’s and officers’ favor. But because the trial court granted the motion to suppress, the court of appeals was forced to find that the emergency was over when the officer returned to the defendant to wake him up and saw the cocaine in the defendant’s possession. 

Texas Attorney General

Request from 83rd Judicial District Attorney

No. RQ-1154-GA        10/7/13

Issue:

Does the Science Advisory Workgroup of the State Fire Marshal’s Office have statutory authority to investigate and make findings on old arson cases forensically analyzed before September 1, 2005?
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