Weekly Case Summaries: October 21, 2011

Court of Criminal Appeals

Sweed v. State

NO. PD-0273-10 : 10/19/11

Issue:

In an aggravated robbery case, did the trial court fail to submit a lesser-included jury instruction for theft?

Holding:

Yes. The evidence presented was sufficient to raise a fact question concerning whether the defendant's use of the knife occurred in the course of or in immediate flight from the theft. The requested charge should have been submitted to the jury to determine whether theft was a valid and rational alternative to robbery. The case is remanded to the court of appeals for harm analysis.
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Commentary:

This is a strange fact situation in which the defendant left the scene of the theft and then returned.  That provided support for a claim—based upon the evidence—that the defendant was no longer in immediate flight from the theft when he committed the assaultive portion of the aggravated robbery.  That is why the court holds that the trial court should have granted the defendant’s request for a charge on the lesser offense of theft.  This is probably a holding confined to its unusual facts.

Court of Appeals 

Elizondo-Vasquez v. State          

No. 06-11-00143-CR : 10/18/11

Issue:

Did counsel provide ineffective assistance by failing to advise his client that his guilty plea would result in deportation?

Holding:

Yes, and “[a]dmirably, in this circumstance, the State has not only recognized the futility of blindly opposing what appears to be settled law, it has fulfilled its primary statutorily-imposed duty to see that justice is done in this case.  In doing so, the State has performed ethically and in the best tradition of the legal profession, a course of action we wholeheartedly commend.”
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Commentary:

This is a case in which the defendant’s claim under Padilla v. Kentucky has arisen in a direct appeal.  Most of the Padilla claims have arisen in probation and post-conviction writs of habeas corpus.  And there have been quite a few of such claims, notwithstanding the Supreme Court’s assertion that its decision in Padilla would not “have a significant effect on those convictions already obtained as the result of plea bargains.”

Rodriguez v. State

No. 09-10-00432-CR : 10/12/11

Issue:

Did the trial court incorrectly admit a videotaped recording depicting the nature of the victim’s injuries?

Holding:

No, because the defendant did not stipulate that the victim’s injuries were serious so the recording was relevant to proving serious bodily injury. Also, the probative value was not substantially outweighed by the danger of unfair prejudice because the video communicated that the victim’s injuries were serious in a non-technical way that was capable of being easily understood by laymen—something the other evidence did not do.
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Commentary:

Be careful with this decision.  Do not let defense counsel cite it for a simple proposition that, if a defendant stipulates to a particular element, the State is thereby precluded from introducing a particular piece of evidence in support of that element.  In making its statement concerning the absence of a stipulation in this case, the court was distinguishing this case from a prior decision from the Waco Court of Appeals.  The court of appeals in this case then went on to conduct a very thorough analysis of the trial court’s ruling under Rule 403 of the Rules of Evidence.  That is how an evidentiary ruling should be defended or challenged, by a full review of the case and how the particular piece of evidence affected the case.

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