Weekly Case Summaries: October 14, 2011

Court of Criminal Appeals

Ouellette v. State

No. PD-1722-10 : 10/12/11

Issue:

In a DWI case, did the trial court correctly authorize a conviction on the alternative theory of intoxication by a drug or combination of alcohol and a drug?

Holding:

Yes. Although there was no direct evidence that the defendant consumed the drug, the officer's testimony that the drug found in the car was capable of causing the horizontal-gaze nystagmus observed during the field sobriety test was evidence from which a rational juror could have found the defendant consumed the drug.
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Dissent:

Judge Meyers would remand the case because the court of appeals used an incorrect standard of review for an improper jury charge.
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Commentary:

Although short, this should be a helpful decision in those driving while intoxicated cases in which there is some evidence that the defendant might have been intoxicated on some type of drug alone or in addition to alcohol.  We often do not have DIRECT evidence that a defendant has ingested alcohol in a driving while intoxicated case, but that does not present a problem, as long as we can circumstantially prove it.  The law should be the same for drugs as well.  This opinion makes clear that the law is in fact the same for drugs.

Ex parte Medina

No. WR-75,835-01 : 10/12/11

Issue:

Was an "application for writ of habeas corpus" that failed to plead specific facts supporting grounds for relief a valid application under CCP art. 11.071?

Holding:

No. The applicant's attorney created an extraordinary circumstance by attempting to challenge established law at the peril of his client. A Texas writ application must be complete on its face, and it must allege specific facts so that anyone reading the writ application would understand precisely the factual basis for the legal claim. Counsel failed to file a cognizable writ application under CCP art. 11.071, §4A(a).
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Dissent:

Judge Keasler would treat the filing as an application for CCP art. 11.071 purposes and deny relief based on the grounds that the application failed to comply with pleading requirements.
Read Dissent

Dissent:

Presiding Judge Keller writes that the court's decision will lead to an increase of "new" CCP art. 11.07 applications that were previously denied because of a failure to plead adequate facts.
Read Dissent

Commentary: 

This is not a case in which an incompetent or inexperienced habeas corpus attorney got in over his head in representing a client on post-conviction writ of habeas corpus.  This is a case in which a very experienced habeas corpus attorney knew precisely what he was doing and was apparently attempting to make a legal point with the court at the expense of his client.  Hopefully, this will not open the floodgates as Judge Keller fears.  One hopes that this case is in fact an anomaly that will never happen again, as the majority suggests.

Texas Court of Appeals

Jones v. State – 1st COA

Nos. 01-20-00821/822-CR : 10/06/11 (not published)

Issue:

After the jury had returned its verdict and been dismissed to the jury room, did the trial court incorrectly deny the defense the opportunity to poll the jury on its guilty verdict?

Holding:

Yes, because there is no express deadline for polling a jury; the jury had not yet separated and so retained its identity; it had been out of the courtroom only a short time; and it was still bound by the trial court's instructions. (It was also returning the following week for the punishment stage.) But no harm to Jones was demonstrated.
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Commentary: 

Here the court of appeals suggests that harm might be demonstrated by evidence presented at a motion for new trial.  So if a trial judge has erroneously denied a defendant’s request to poll the jury AND the defendant has filed a motion for new trial, in which he intends on developing evidence on that issue, pay attention.

Gutierrez v. State – 6th COA

No. 06-11-00017-CR : 10/07/11

Issue:

Upon revocation of community supervision, was the violated term—that the defendant leave the U.S.—void, so that revocation could not stand?

Holding:

Yes, immigration matters are within the exclusive jurisdiction of the federal government so a condition of state community supervision requiring a defendant to leave the country violates the Supremacy Clause of the U.S. Constitution.
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Commentary: 

In support of its holding, the court of appeals relied upon a 1981 opinion from the Court of Criminal Appeals, so that court might be hard-pressed to overturn this decision on petition for discretionary review.  This issue has a lot of interest in current events at the moment, but I would not expect the Court of Criminal Appeals to get involved—unless they want to address the failure-to-timely-object issue raised by the State.

State v. Millard Mail Services Inc. – 14th COA

Nos. 14-10-00956/957-CR : 10/05/11

Issue:

Could the State prevail on its claim, raised for the first time on appeal, that the defendants lack standing?

Holding:

Yes, the State can raise standing for the first time on appeal, and the defendants lacked standing. As janitors in the parking garage, they had no property or possessory interest in the property upon which the criminal trespass occurred; thus, they did not possess a reasonable expectation of privacy from law enforcement intrusion.
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Commentary: 

One would hope that a police officer, like any other citizen, could enter a public garage at a major shopping mall, and that someone committing a crime in that parking garage could not escape prosecution by claiming that the officer was trespassing.  This is the last in a series of State’s appeals, in which the court of appeals has reached the same ruling in all of the cases.  We shall see if the Court of Criminal Appeals has any interest in addressing this issue.

Texas Attorney General

Request from Lamar County and District Attorney

RQ-0999-GA : 10/04/11

Issue:

Regarding the authority of a commissioners court to remove salary increases for county officials at the final budget hearing and the effect of that removal on the grievance process.
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