Weekly Case Summaries: October 7, 2011

Fifth Circuit

United States v. Macias

No. 10-50614 : 9/27/11

Issue:

Did a trooper unconstitutionally prolong a suspect's detention by asking irrelevant and unrelated questions without reasonable suspicion of criminal activity?

Holding:

Yes. The questions were unrelated to the seat-belt violation stop. Before the trooper ran computer checks, he engaged in detailed questioning about whether the suspect was currently employed, the type of work he did, whether he owned his own business, and whether he had been in "trouble" previously. These were questions about matters unrelated to Macias's driver's license, his proof of insurance, the vehicle registration, or the purpose and itinerary of his trip.
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Commentary:

This is the next in a long line of decisions in which an officer has asked too many questions during an otherwise valid traffic stop in an attempt to gain additional reasonable suspicion in order to prolong a temporary investigative detention.  If an officer’s suspicions were so aroused that he felt it necessary to ask so many questions, perhaps it might have been better just to request consent to search at the very beginning and hope that the defendant consented (which he ultimately did anyway).  If you have a traffic stop case where the detention has been prolonged, expect defense counsel to raise this and other Fifth Circuit decisions.

Court of Criminal Appeals

Tillman v. State

No. PD-0727-10 : 10/05/11

Issue:

Did the trial court properly exclude eyewitness-identification testimony of the defendant's proffered expert?

Holding:

No. The expert's testimony, based on psychological knowledge and applied hypothetical scenarios, was both reliable and relevant. The testimony would assist the jury's awareness of prejudicial factors in eyewitness identification, and its exclusion was an abuse of discretion.
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Commentary:

Does this decision stand for the proposition that expert testimony on the reliability of eyewitness identification is always going to be admissible in a case in which pretrial eyewitness identification was obtained?  No.  Does this decision stand for the proposition that the testimony of Dr. Malpass from UTEP will be admissible in such a case?  Probably.  What this decision certainly does is give the bench and bar a roadmap for the admissibility of expert testimony on eyewitness identification.  The court cites to legal articles in its unanimous opinion and repeatedly notes that eyewitness identifications have been present and erroneous in the vast majority of cases in which we know that the defendants were innocent of the offense.  The court is signaling that we should expect to see this testimony much more often in our cases, and we should.  Every prosecutor should get to know this opinion and begin to learn the growing field of psychology that has focused on the reliability of eyewitness identification.  If you have a case that involves pretrial eyewitness identification, do not panic.  Just get to know the some of the factors that have suggested that eyewitness identification is unreliable.  Article 38.20 of the Code of Criminal Procedure is a good place to start.

Rushing v. State

No. PD-0773-10 : 10/05/11

Issue:

Does a prior sex-offense conviction under the Uniform Code of Military Justice qualify as a "conviction under the laws of another state" for enhancement purposes under PC §12.42(c)(2)(b)(v)?

Holding:

Yes. Gov't Code §311.005(7) defines "state" to include any area subject to the legislative authority of the United States. A UCMJ conviction is deemed to have taken place on United States soil and the defendant's subsequent conviction was properly enhanced under PC §12.42(c)(2)(b)(v).
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Commentary:

It is troubling to know that someone with even a military background has repeatedly committed serious sexual molestation offenses against young children.  But it is good to know that we can use such prior criminal conduct to enhance their punishment.  The mandatory life sentence enhancement was created for such gentlemen.

Soliz v. State

No. PD-0117-11 : 10/05/11

Issue:

Does PC §21.02(e)(3)(continuous sexual assault) create an exception for the jury to determine as a preliminary matter whether an offense is a lesser-included offense?

Holding:

No. The legislature did not intend to create an exception to the normal rule that that the trial judge determines whether a lesser offense should be submitted to the jury. A discrete sexual offense must either be charged in the alternative, fall outside the time period for the §21.02 count, or be submitted as a lesser-included offense.
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Commentary: 

This was a clever argument by the defendant that viewed the words of the relatively new continuous sexual abuse of a child statute in a hyper-technical manner.  Good job by the court to dispense with the defendant’s argument quickly.

Adames v. State

No. PD-1126-10 : 10/05/11

Issue:

Did the court of appeals apply the proper standard in conducting its evidentiary sufficiency review?

Holding:

Yes. The court of appeals correctly applied the Jackson standard to the hypothetically correct jury charge and found the evidence legally sufficient to support the defendant's conviction as a party. Malik is not an independent standard but simply the application of Jackson under state law. Although the parties theory was not pled in the indictment, due process does not require a defendant's culpability as a party to the offense to be pled in the charging instrument.
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Commentary: 

This is a case that, many years ago, would have been reversed with an order of acquittal because the evidence was insufficient according to the jury charge that was given.  Thankfully, that is no longer the law.  Still, it is important to review your jury charge to make sure that it is accurate.  This jury charge allowed the defendant’s conviction for capital murder as a party if the jury found that the defendant was guilty of aggravated kidnapping as a party.

State v. Davis

No. PD-0042-11 : 10/05/11

Issue:

Did the trial court have authority to grant a motion for reconsideration or reduction of sentence and modify the original sentence without a hearing and outside the presence of the parties?

Holding:

No. The trial court's order granting the motion was the functional equivalent of granting a motion for new trial on punishment. Once a trial court grants a motion to reconsider, it is required to hold a new punishment hearing in open court in the presence of all parties.
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Commentary:

The mistake that the trial judge made here was to impose the newly reduced sentence without orally pronouncing it in the defendant’s and the State’s presence.  The sentence must always be pronounced orally in the defendant’s and the State’s presence.  The bad news for the State is that the trial judge may impose the reduced sentence after a new hearing is held on the defendant’s punishment.

Geick v. State

No. PD-1734-10 : 10/05/11

Issue:

Must the State prove the offense as charged if the indictment uses the statutory definition of deception to specify how the theft was committed?

Holding:

Yes. When the State pleads a statutory definition that narrows the manner and means by which an offense may be committed, that definition is "the law authorized by the indictment," and the allegation must be proved beyond a reasonable doubt.
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Commentary: 

It appears to have been an oversight that the phrase “by deception” was included in the indictment when there was absolutely no evidence that the defendant used deception in order to steal the equipment in this case.  It seems a rather harsh remedy that the defendant gets a complete acquittal out of that mistake.  Just as it was important to carefully read the jury charge in Adames above, it is also important to read your indictment very carefully.

Texas Court of Appeals

Johnson v. State – 4th COA

No. 04-10-00892-CR : 9/28/11 (not published)

Issue:

Was police entry into a residence made without consent where the defendant objected to their entry but his roommate—who had called the police to protect him while he moved out his possessions—allowed entry?

Holding:

No, the facts triggered the domestic violence exception recognized in Georgia v. Randolph, 547 U.S. 103, 122-23 (2006) (in non-domestic violence case, wife's consent to enter residence invalidated by husband/defendant's objection).
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Commentary:

This is a great decision.  Short analysis, but very helpful.  It probably should be published, as it could be helpful to Texas prosecutors and law enforcement when dealing with domestic violations and other similar situations.

Johnson v. State – 14th COA

No. 14-10-00292-CR : 9/29/11

Issue:

Did the trial court abuse its discretion by denying defense counsel's motion to withdraw?

Holding:

No, not after an evaluation of: (1) whether counsel offered good cause to withdraw; (2) the necessity for the withdrawal; (3) the client's Sixth Amendment right to counsel of choice; (4) the client's Sixth Amendment right to call witnesses in his own defense; (5) the disruption that may result to the trial proceedings as a result of counsel's withdrawal; and (6) counsel's role, if any, in creating the need to withdraw.
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Commentary:

This is a VERY thorough decision supporting the trial court’s decision refusing to let defense counsel to withdraw.  So keep it in mind if ever have such a situation come up.  Especially keep it mind if you have a defense attorney who is inclined to conduct his own investigations and thus make himself a witness in the case, as was the apparent case here.

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