Court of Criminal Appeals
No. PD-1549-15 10/12/16
If a trial court’s finding of fact and conclusions of law do not mention an argument made by one of the parties at trial, is that argument still available as a “theory of law” to uphold the ruling?
Yes. Although the trial court erred in not including one of the trial arguments in its ultimate finding of facts and conclusions of law, the State was still aware of those arguments at trial and responsible for preserving any error related to them for later review. The State procedurally defaulted its length-of-detention argument because, although it was a theory of law applicable to the case, the State failed to advance that argument on appeal. Read.
Dissent (Keller, P.J.):
Judge Keller disagreed that the State was responsible for preserving error in this case and argued that the proper procedure would have been for the appeals court to remand the proceedings for further findings of fact and conclusions of law because the original ones were incomplete in that they did not address the length-of-detention claim. Read.
The bottom line in this case is that the State should argue and present evidence—both at trial and on appeal—on all legal theories that support the trial court’s denial of the defendant’s motion to suppress. That can seem awfully unfair in some cases, especially when all parties focused on one theory at trial, only to find that there was another theory raised on appeal that everyone initially took for granted.
No. PD-1652-15 10/12/16
Was the court of appeals required to address Heien v. North Carolina in its decision on whether to grant a motion to suppress?
Yes. Because the State argued that an officer’s reasonable mistake of law was enough to justify a traffic stop under Heien, the court of appeals should have addressed that argument in its decision to grant the motion to suppress. Read.
The court of appeals should have addressed the State’s argument regarding Heien. Now the court will be forced to do so. One hopes that the State will have better fortune next time around. If this is a purely legal issue, as it appears to be, the State should prevail, even though this was a State’s appeal.
Courts of Appeals
Chambers v. State (6th COA)
No. 06-16-00052-CR 10/12/16
Does the term “breast” in the Indecency with a Child statute, Penal Code §21,11, apply to children who have not yet developed adult breasts?
Yes. A plain reading of the statute makes clear that it is intended to criminalize touching a prepubescent child’s breasts with the intent to “arouse or gratify.” Read.
This is a great decision and nothing more than a straightforward application of the clear wording of the statute. And the defendant received a 30-year prison sentence for his trouble. (He also received a 60-year prison sentence for an aggravated sexual assault conviction that he did not challenge on appeal).
Cabrera v. State (14th COA)
No. 14-15-00663-CR 10/11/12
Did the trial court improperly refuse to consider the full range of punishment?
Yes. The statement by the court to the defendant, before any evidence was presented—“I hope you’re not under any illusion you are going to get 30 days after trial, are you?”—shows a refusal by the court to consider the full range of punishment available to the defendant. Read.
Dissent (Frost, C.J.):
Justice Frost disagreed with the majority that the record successfully rebutted the presumption that the trial court considered the full punishment range. Read.
This is not a case in which the trial judge did not consider the full range of punishment. The defendant in this case stated that he was hoping for a 30-day jail term for a burglary of a vehicle, and the trial judge in fact stated that he was open to such a term. The State reported that it was hoping or a 180-day jail term based upon the facts of the case. It was in that context that the trial judge told the defendant that he should not necessarily expect the sentence that he had hoped for. With a dissenting opinion, hopefully the State will be able to get this decision changed on motion for rehearing or with a petition for discretionary review.
Ramirez-Tamayo v. State (7th COA)
No. 07-15-00419-CR 10/5/16
Is it necessary to elaborate on an officer’s “training and experience” when relying on that experience to support the officer’s decision to prolong a traffic stop?
Yes. In this case, the officer chose to prolong a traffic stop and initiate a dog-sniff of a vehicle based on multiple lawful behaviors by the defendant, which the officer stated were indicia of drug-smuggling, based on his “knowledge, training and experience.” However, the officer did not elaborate on his knowledge or training enough to give him the reliability of an expert. Read.
Dissent (Campbell, J.):
Justice Campbell would have found reasonable, particularized suspicion to prolong the search of the vehicle based on the specific facts of the officer’s observations about the vehicle. Read.
Read the first few words of the majority opinion, and it will be clear to you that the majority has completely missed the point of a proper “totality of the circumstances” analysis—the measure by which all reasonable suspicion and probable cause determinations should be reviewed. The majority cites no real authority for the proposition that an officer needs to detail the particular expert basis for each articulable fact that he has identified in support of his reasonable suspicion determination. An officer testifying based upon his training and experience is not offering an expert opinion, as we understand it in the law. The court of appeals may disbelieve the officer, but the credibility determination is for the trial court who presided over the witness testimony and ruled on the motion to suppress. From page 14 of the majority opinion, the individual articulable facts upon which the officer relied in support of his reasonable determination were each rejected in turn. The Court of Criminal Appeals has repeatedly rejected this isolated “divide and conquer” approach to reviewing a reasonable suspicion or probable cause determination. An officer’s actions must be reviewed by considering all of these articulable facts together—the totality of the circumstances. Based upon the shortness of the hearing at trial, and the facts of this case, the result may not change if this case is reviewed by the Court of Criminal Appeals. But one certainly hopes that a better analysis is employed to deal with these facts.