Weekly Case Summaries: October 25, 2013

Court of Criminal Appeals

Chambless v. State

No. PD-0768-12        10/23/13

Issue:

Did the jury charge correctly instruct the jury on the punishment range applicable to criminally negligent homicide with a deadly weapon?

Holding:

Yes. The provisions in PC §§19.05(b) (defining the offense of criminally negligent homicide as a state jail felony) and 12.35(c)(1) (providing third-degree felony punishment for SJF offenses committed with a deadly weapon) are not in conflict. And contrary to the defendant’s argument, not all instances of criminally negligent homicide will necessarily involve a deadly weapon, so PC §12.35(c)(1) does not undermine legislative intent to punish criminally negligent homicide as a state jail felony.
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Commentary:

This opinion can be read to suggest that every criminally negligent homicide committed by an act (as opposed to an omission) would include a deadly weapon finding based upon language in the court’s opinion in Crumpton v. State, 301 S.W.3d 663 (Tex. Crim. App. 2010). And you can make a convincing argument in support of such a position. But to be safe, if the criminally negligent homicide that you are prosecuting was not committed with a firearm, you might want to include a specific deadly weapon allegation in your charging instrument, or have the jurors make a specific deadly weapon finding. The bottom line of this decision is that it is appropriate to punish most state jail felonies of criminally negligent homicide as third-degree felonies under §12.35(c)(1).

Zamora v. State

No. PD-1395-12        10/23/13

Issue:

Must a trial court sua sponte give an accomplice-witness instruction when the evidence raises the issue under the theory that the witness was a party as a co-conspirator?

Holding:

Yes. The courts have defined “accomplice-witness” broadly enough to cover co-conspirator parties. Because an accomplice-witness instruction is “law applicable to the case” rather than a defensive issue, CCP art. 39.14 requires the court to include the instruction when it is implicated by the evidence.
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Commentary:

This is a rather technical decision, and it can therefore be a little confusing. It essentially makes clear that the court wants trial judges to instruct jurors on the corroboration of accomplice witness testimony, even if the purported accomplice could only possibly be guilty as a party (under any theory of the law of parties). And because of the court’s long-standing decision in Almanza v. State, a defendant can raise a trial judge’s failure to instruct the jury accordingly for the first time on appeal. So when you have a witness who could possibly be guilty as a party, make sure that the trial court’s charge to the jury includes an accomplice witness instruction for that witness.

Rivas v. State

Nos. PD-0490-13 & PD-0491-13        10/23/13 (per curiam)

Issue:

Did the trial court properly deny the defendant’s motion to suppress the controlled substances recovered from his home after a warrantless dog sniff at his front door? 

Holding:

Maybe. The court of appeals did not have the benefit of Florida v. Jardines, 133 S.Ct. 1409 (2013) when it upheld the trial court’s decision. The court must now consider the case in light of Jardines.
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Commentary:

You have to read the November 2012 opinion from the court of appeals in a prior appeal of these cases to read the complete facts of what occurred. It appears that—even apart from the dog sniff—the officers still had more than enough basis to validate the search warrant for the defendant’s residence. So it is at least possible that an application of Florida v. Jardines will not be necessary on remand before the court of appeals. We shall see.

State v. Saenz

No. PD-0043-13        10/23/13

Issue:

Did the court of appeals apply the proper standard of review in upholding the trial court’s suppression of statements it determined were made while the defendant was in custody?

Holding:

No. The court of appeals improperly deferred to the trial court’s conclusions of law based on incomplete findings of fact. The trial court must consider whether, under all of the objective circumstances, the defendant reasonably believed he was in custody. Because the trial court did not consider the totality of the circumstances, there was an inadequate record to support the decision of the court of appeals.
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Commentary:

This was a good strategy by the State in complaining to the Court of Criminal Appeals that the trial judge’s findings of fact were inadequate to assist in reviewing the legal issues on appeal. And the court has provided extensive guidance to the trial judge in what additional findings should be made on remand. Keep in mind that defendants can make this same claim in their appeals, so it is important that trial judges make very complete findings of fact when requested to do so. After an appeal is taken, memories may fade, judges may leave the bench, and attorneys may move on, so when findings are requested, make sure that they get done, and make sure that they are thorough.

Vasquez v. State

No. PD-0497-13        10/23/13

Issue:

Was the trial court required to enter findings of fact after it concluded custodial statements made by the defendant were voluntary, in spite of the fact police used an unconstitutional “question first, warn later” tactic?

Holding:

Yes. CCP art. 38.22, §6 clearly requires a trial court to file findings of fact and conclusions of law after evaluating the voluntariness of a custodial statement, regardless of whether a party requests them. The court of appeals was not in the position to overturn the trial court’s decision without these findings.
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Commentary:

Read along with State v. Saenz mentioned above, this decision makes clear that findings of fact must be made by the trial judge—whether requested or not—in certain limited situations when they are required by law. The most common of these situations deals with the voluntariness of a defendant’s statement. Article 38.22, §6 of the Code of Criminal Procedure requires that findings of fact be made in such situations—whether requested or not. And as made clear by Saenz, those findings must be complete and thorough.

Texas Courts of Appeals

Whatley v. State

No. 06-12-00117-CR       10/16/13

Issue:

Was there sufficient evidence to show the defendant voluntarily committed sexual assault when the victim testified that the defendant was asleep each time the assaults occurred?

Holding:

No. The jury was free to disbelieve the victim’s testimony, but it could not use the testimony to arrive at the opposite conclusion. Because the State provided no evidence to show the defendant was actually awake or to show that it was impossible or unlikely he could have behaved in such a manner while asleep, there is insufficient evidence to support the conviction.
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Commentary:

This is a very strange decision. The facts are so unique that it is unlikely that they would reoccur. The victim appeared to be certain that the defendant was asleep when he engaged in the otherwise illegal conduct. The Court of Criminal Appeals may want to review this decision to test the apparent assumption by the court of appeals that an asleep person could engage in such conduct and that a juror could not reasonably infer that such a person must have been awake. In the meantime, if the defense cites this decision to you, claiming that your defendant’s conduct was not voluntary, point out to the trial judge the very unusual nature of these particular facts.

Brister v. State

No. 09-12-00247-CR        10/16/13

Issue:

Was the evidence sufficient to support the jury’s finding that the defendant used or exhibited his car as a deadly weapon while committing felony DWI?

Holding:

No.  There must be evidence that the defendant’s car posed an actual, not merely hypothetical, danger of death or serious bodily injury. In this case, there was no evidence that any other cars or people were in the vicinity when the defendant’s car crossed the center line into the lane of “oncoming traffic.”
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Commentary:

It will be interesting to see if the Court of Criminal Appeals reviews this decision to further limit when deadly weapon findings can be made in certain cases. The court recently imposed a (perhaps) minor limitation in Plummer v. State on October 9, 2013. Be careful in seeking deadly weapon findings in each and every case. Make sure that it is particularly warranted by the facts of your case.

Arabie v. State

No. 10-12-00439-CR       10/17/13

Issue:

Was the defendant entitled to a punishment mitigation instruction on temporary insanity by intoxication in his trial for murder?

Holding:

No. To be entitled to the instruction, the evidence must show more than extreme intoxication; it must show the defendant was not aware his conduct was wrong at the time of the offense. Although evidence showed the defendant was intoxicated when he was detained and may have been confused, there is no evidence he was not aware his actions were wrong when he committed the murder.
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Commentary:

This is a thorough and straightforward application of the law concerning temporary insanity. There must be some evidence that the defendant’s intoxication made it so that the defendant did not know that his conduct was wrong. This may have been a compelling case as to the former (intoxication), but it was not a compelling case as to the latter.

Texas Attorney General

Request from Chair of the Committee on Homeland Security & Public Safety

No. RQ-1158-GA        10/21/13

Issue:

May a school district authorize an employee or trustee to carry and use a concealed handgun at any meeting of a governmental entity or on the premises of school property where a sporting or interscholastic event is taking place, in spite of the prohibition in PC §46.035?
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