Weekly Case Summaries: September 27, 2013

Court of Criminal Appeals

Ex parte Parra

No. AP-76,871        9/18/13

Issue:

Was trial counsel ineffective for failing to object to the trial court’s threat to place jurors in jail if they refused to deliberate and for failing to question a juror about her experiences as a victim of domestic and sexual abuse?

Holding:

No. Although the trial judge did not precisely follow CCP art. 36.27 in his response to the jury question, nothing indicates the result would have been different if counsel had objected. And nothing in the record indicates that the juror was biased against the defendant because of her experiences.
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Dissent (Meyers, J.):

There is no reasonable strategy to explain counsel’s failure to object to the CCP art. 36.27 violation, and counsel’s ineffectiveness likely affected the judgment against the defendant.
Read dissent

Commentary:

A rare habeas opinion that will be useful in the future. The trial court issued a pretty strong note in response to a threatened walk-out by two jurors. The CCA holds that the strong note—indicating that jurors who walked out would be sequestered in the county jail rather than with the rest of the jury—was not improperly coercive such that trial counsel was not deficient for failing to object. Furthermore, the applicant failed to demonstrate prejudice with regard to apparent irregularities in the handling of the jury note. The more valuable holdings may be those related to voir dire. A juror indicated on a questionnaire that she had not been a crime victim. The trial court and trial counsel asked general questions about whether the jurors could be fair in the trial. In the writ, the applicant brought forward evidence that the juror in question told other jurors she had been a victim of sexual abuse at the hands of her father and a protective order application indicating she may have been a victim of domestic violence. The CCA found that the applicant had not established prejudice on this record. Furthermore, the CCA applied Rule 606 and refused to consider the affidavit of another juror regarding the revelation of the sexual abuse during deliberations.

Bell v. State

No. PD-0087-12        9/18/13

Issue:

Was the defendant’s right to due process violated because he was shackled during trial, although the restraints were not visible to the jury?

Holding:

No. Although the court should have made a particularized finding of the need to shackle the defendant, a constitutional violation did not occur because the record does not show a reasonable probability that the jury was aware of the restraints. The bailiff made sure the restraints could not be seen from the jury box, and briefcases were used to obscure the jury’s view of the defendant’s legs.
Read opinion

Dissent (Meyers, J.):

This amounts to constitutional error, and because the court cannot determine that the jury did not see the shackles beyond a reasonable doubt, the error is not harmless.
Read dissent

Commentary:

During oral argument, all the judges seemed concerned about arbitrary shackling of defendants in court. Interestingly, the CCA did not discuss another traditional concern about shackling that the Supreme Court discussed in its last shackling opinion—pain and discomfort. Some methods of immobilizing defendants may still cause discomfort—stun belts and leg restraints that immobilize the defendant at the counsel table, i.e., chaining him to the floor. Also, what if the defendant’s restraints are not visible, but rather audible? What if the defendant contributes to the jury seeing the restraints? I worry that judges and sheriffs won’t take this opinion seriously.

Arguellez v. State

Nos. PD-0997-12 & PD-0998-12        9/18/13

Issue:

Did officers have reasonable suspicion to stop the defendant’s car based on a report from a city swimming pool manager that a suspicious person was taking photographs of pool patrons from a car whose description matched that of the defendant?

Holding:

No. Photographs are routinely taken in public places, including public beaches, where bathing suits are commonly worn. Nothing in the record suggests that because the appellant was taking pictures in a public place that he was, had been, or soon would be engaged in criminal activity.
Read opinion

Dissent (Keasler, J.):

The majority disregards the fact that circumstances giving rise to reasonable suspicion need not themselves be criminal. Here, it was reasonable for the officer to infer from the facts that the defendant was photographing pool patrons without consent and with intent to gratify the sexual desires of any person.
Read dissent

Commentary:

This decision is very hard to square with decisions like Woods and Derichsweiler. The real difference between them may be in the underlying offenses: UCW and DWI are “regular” crimes, but improper photography is much squishier because it is based upon an otherwise non-criminal act (photographing someone without consent) coupled with facts often lacking objective proof (the intent to arouse or gratify sexual desire). Perhaps some judges on the CCA are troubled enough by this crime that they have joined an opinion requiring more reasonable suspicion that other crimes?

Cortez v. State

No. PD-1349-12        9/18/13

Issue:

Did the court of appeals correctly dismiss the defendant’s appeal because it lacked a certification of the defendant’s right to appeal?

Holding:

No. The Rules of Appellate Procedure require the appellate court to order the trial court clerk to supplement the record with the proper certification. The court of appeals should have exhausted the avenues provided by the rules for curing a defective record before dismissing the appeal under Rule 25.2.
Read opinion

Commentary:

If the trial court enters an order appealable by a defendant—e.g., a judgment of conviction, deferred adjudication, probation, denial of an appealable writ, or denial of DNA testing—a certification of the right to appeal is required. It must be signed by the defendant, the defense attorney, and the judge. Several people should be embarrassed about this opinion—none of them is a prosecutor on the case.

Pawlak v. State

No. PD-1616-12        9/18/13

Issue:

Did the trial court correctly admit thousands of pornographic images as extraneous-offense evidence over a TRE 403 objection at the defendant’s trial for sexual assault?

Holding:

No. Although the evidence may have been relevant to rebutting the defendant’s claim that he was not sexually interested in men or boys, the State’s need for the evidence was not great because of the number of complainants and the corroboration of their testimony. The sheer volume of the extraneous evidence in this case was unfairly prejudicial.
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Commentary:

The old truism seems to apply: “Pigs get fat; hogs get slaughtered.” The State offered 9,900 pornographic images to rebut a defense. Instead, the State’s computer forensic examiner could have rebutted the defendant’s claim he wasn’t interested sexually in males by testifying that he recovered many images of pornographic images of males. Or perhaps the State might have selected a representative sample of images, say, less than 20 or even less than 10.

Reeves v. State

No. PD-1711-12        9/18/13

Issue:

Did the trial court improperly include a jury instruction on provocation, in addition to an instruction on self-defense, at the defendant’s trial for murder?

Holding:

Yes. There was no evidence at trial to support the instruction, and the defendant was harmed by its inclusion because the issue of self-defense was hotly contested at trial.
Read opinion

Commentary:

Try to budget at least as much time to review your charge as you are allowed to argue that charge to the jury. Also, if you believe the defendant provoked the difficulty, you must read Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998) so that you can understand what that limitation on self-defense actually means. “Starting the fight” is not equivalent to the defendant “provoking the difficulty” such that he cannot rely on self-defense. It is only part of the equation.  The court has another lawgasm about the State Bar Pattern Jury Charges. The lesson I take from this case is to be careful about requesting charges that are limitations on defenses—and make sure your trial file is ready to try the case again if you are wrong.

Thomas v. State

No. PD-1454-12        9/25/13

Issue:

Did trial counsel waive the issue of admissibility of certain evidence for appeal when he stated he had “no objection” to its admission at the punishment hearing, despite the fact it had been previously preserved at a suppression hearing?  

Holding:

No. The rule that a previously preserved issue is waived by an affirmative “no objection” statement should not be applied mechanically. An appellate court should consider the entire appellate record to determine if the intent was to waive. Here, it is clear that neither the defendant nor the trial court interpreted the statement as a waiver of the issue because the court certified the issue for appeal.
Read opinion

Commentary:

This one may be difficult for us appellate types to apply. I admit that I always love it when I see a defense lawyer say “no objection” to an offer of evidence.

Wiley v. State

No. PD-1728-12        9/25/13

Issue:

Did the defendant waive the issue of insufficiency of the evidence to support the court’s order to repay the costs of his court-appointed attorney when he did not appeal the cost until his probation was revoked?

Holding:

Yes. The court resolved a split among the lower courts of appeals and held that although no objection is needed at the time of the imposition of the cost, the sufficiency of the evidence to support the cost must be raised on direct appeal of the judgment imposing community supervision.
Read opinion

Commentary:

Mostly of interest to appellate prosecutors. Court costs are a hot topic right now—that alone should encourage you to buy your appellate prosecutor a drink tonight.

Texas Courts of Appeals

Cameron v. State

No. 04-12-00294-CR        9/18/13

Issue:

Was the defendant entitled to a new trial because her right to a public trial was violated when her mother and family members were not allowed to view voir dire?

Holding:

Yes. Trial courts have a duty to take action in considering and providing all reasonable accommodations to keep a trial open to the public. Here, the court considered only one alternative – opening the courtroom doors to allow observation from the foyer – but nothing in the records shows this actually occurred.
Read opinion

Commentary:

Another scary opinion reversing a conviction because arguably someone was excluded from the courtroom during voir dire. This was a better record in defense of the trial court’s actions than in Steadman or Lilly, but not enough. Trial judges, beware—you cannot abdicate security decisions to the bailiff in situations like this. This is another case where the bailiff’s words—apparently outside the hearing of the judge—help get the case reversed.

Price v. State

No. 09-11-00592-CR        9/18/13

Issue:

Did the defendant’s convictions for continuous sexual abuse of a child and attempted aggravated sexual assault violate double jeopardy because the acts alleged arose out of the same period of time?

Holding:

Yes. Aggravated sexual assault is an offense specifically listed in the continuous sexual abuse statute and is a lesser-included offense. The allowable unit of prosecution for the offense attempted is what governs, and it is clear the legislature did not intend to allow punishments for both offenses.
Read opinion

Texas Attorney General

Request from Bexar County Criminal District Attorney

No. RQ-1151-GA        9/17/13

Issue:

When must district clerks begin collecting fees for electronic filing under HB 2302?
Read request

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