Weekly Case Summaries: September 14, 2012

Texas Court of Criminal Appeals

State v. Duarte

No. PD-1511-11      9/12/2012

Issue:

Did a tip by a confidential informant of unknown reliability provide sufficient basis for a finding of probable cause to search the subject’s home?

Holding:

No. The search warrant affidavit was based entirely on the hearsay statements of a first-time confidential informant providing information with the expectation of leniency on his pending criminal charges. An informant’s reliability must be corroborated by additional evidence, such as statements against the informant’s penal interest, consistent information from other informants, first-hand observations by law enforcement, accurate predictions of the subject’s future behavior, or a successful informant track record. Read opinion

Commentary:

This search warrant was doomed from the moment the officer relied solely on information from an unproven CI. Frankly, it is surprising the court of appeals didn’t follow what is fairly standard caselaw in this area and affirm the trial court’s decision to suppress the evidence. To use an unproven CI, the officer needed only to add some corroborating detail, as listed by the CCA’s opinion. Or name the CI.

Outland v. State

No. PD-1400-11      9/12/12

Issue:

Is the Utah offense of “exploitation of a child” substantially similar to the Texas offense of “possession or promotion of child pornography,” so that it can be used for punishment enhancement purposes in an aggravated sexual assault case?

Holding:

Yes. To determine whether two offenses have “substantially similar” elements for the purposes of punishment enhancement under Penal Code §12.42(c)(2), the court considers whether the two offenses have a high degree of likeness with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offense. Although the Utah statute contains a scienter element and the Texas statute focuses on the nature of the conduct depicted, both advance the individual interest of protecting children from sexual exploitation and the public interest of protecting the public from dissemination of child pornography. Read opinion

Commentary:

These opinions—comparing out-of-state statutes—don’t add much to Texas law because of the unlikely repetition of such a specific criminal history. Given that the court of appeals got it right and not even one judge dissented, why did the CCA even bother granting PDR? What is the statewide issue needing resolution by the CCA?

Hamal v. State

No. PD-1791-11      9/12/12

Issue 1:

Was the defendant entitled to a jury instruction under CCP art. 38.23 on the basis of a disputed issue of fact at trial, i.e., whether, during a stop for speeding, the defendant understood the officer’s question about her criminal history?

Holding 1:

No. The proper inquiry is whether a reasonable officer would believe the defendant might be lying. There was no dispute about what the officer “did, said, saw, or heard”; therefore, no instruction was required.

Issue 2: 

Did an officer have reasonable suspicion to prolong the stop for a canine sniff while checking the defendant’s criminal history?

Holding 2:

Yes, the defendant’s claim that she misunderstood the officer’s question about her criminal history did not negate the reasonable suspicion. Read opinion

Dissent (Womack, J.):

There was a disputed issue of fact as to whether the arresting officer behaved reasonably in deciding that the defendant was lying.   Read dissent

Commentary:

This search is saved by the clarity of the video recording. Prosecutors should use cases like this one to encourage officers to record key events and statements. This case also helps to suppress (pun intended) some of the confusion created by Madden as to when a fact issue justifying a jury instruction is raised by the evidence.

Texas Courts of Appeals

Duran v. State

No. 04-11-00812-CR      09/05/12 (not published)

Issue:

Did the trial court improperly sign a judgment imposing a sentence of two years in a state jail facility after orally pronouncing a sentence of four years confinement in the TDCJ-ID where the defendant was not present when the sentence was modified?

Holding:

Yes. A defendant (and the State) must be present at sentencing whether involving an original or modified punishment. Here, absent the defendant’s opportunity “to hear or respond to the imposition of the modified sentence,” he is entitled to a new punishment hearing. Read opinion

Commentary:

Given the difference between four years in prison (with nearly immediate parole) and two years in state jail (with no parole), one is likely to agree the defendant should be present when the sentence is imposed, if for no other reason than to hear him say, “Crap, can he do that?” And that’s about what re-sentencing will likely soon sound like.

Ex parte Alfaro

No. 09-12-00225-CR      09/05/12

Issue:

Did the trial court wrongfully deny an evidentiary hearing on a writ of habeas corpus where the defendant alleged that he received ineffective assistance of counsel because his trial counsel failed to tell him that his temporary protective status under the Immigration and Nationality Act would be revoked automatically if he pled guilty to committing unlawful restraint, a Class A misdemeanor, after having previously been convicted of another misdemeanor?

Holding:

No. The merits of the application could be determined without a hearing. The trial court could determine from the petition that the defendant’s right to be in the U.S. would not automatically be revoked under the circumstances presented in his application. Read opinion

Commentary:

Anyone seeing the irony in how we are all becoming immigration/deportation law experts by reading endless opinions on post-Padilla writs that describe alleged defense incompetence? Any lawyer, even those who really are experts in this area, who claims he knows when an automatic deportation will take place is fooling only himself.

Franklin v. State

No. 14-11-00961-CR      9/06/12 (not published)

Issue 1:

Was a DWI blood draw sample obtained under a defective warrant because the officer did not personally swear an oath in the presence of a magistrate?

Holding 1:

No. Assuming—without deciding—that the affidavit was defective, the good faith exception to the warrant requirement of CCP art. 38.23(b) applies. There is no need to reach the issue pending before the CCA: whether an oath must be sworn in the physical presence of a magistrate before a warrant can issue.

Issue 2:

Was the blood draw performed using unreasonable means?

Holding 2:

No, the defendant offered no evidence that she told the professionals drawing her blood of any existing medical conditions that might make the blood draw unreasonable, and she was restrained because she was combative. Read opinion

Commentary:

Finally, a real live application of the Texas good faith exception! How refreshing to see how far Texas has come in collecting scientific evidence of intoxication. No longer is the typical drunk refusing a breath test and arguing insufficiency of evidence. On the other hand, look for more and more drunks to proclaim loudly, “Hey, I’m a bleeder!”

Office of the Attorney General

Opinion for Brazoria County Criminal District Attorney

Opinion No. GA-0966  :  9/12/12

Issue:

Under what circumstances may golf carts be operated in accordance with the Transportation Code?

Opinion:

Transportation Code §551.403 provides for operation of golf carts in master-planned communities, on public or private beaches, and on public highways with certain speed and distance requirements. No Texas statute or rule defines the term “master-planned community”; however, subsection 551.403(a) provides a description consistent with the only court decision discussing the term. A golf cart may be operated on a public highway only if it is operated during the day, not more than two miles from the location where it is usually parked, and only for the purpose of transportation to or from a golf course. Read opinion

Commentary:

Retired golfers across Texas are no doubt meeting to debate whether they live in a “master-planned community.” This is serious business.

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