Weekly Case Summaries: September 28, 2012

Court of Criminal Appeals

Robinson v. State

No. PD-0238-11      09/19/12

Issue:

Was the defendant entitled to a CCP art. 38.23 jury instruction when it was disputed at trial whether the officer had probable cause to conduct a traffic stop on the defendant’s vehicle after the defendant failed to signal his turn at an intersection?

Holding:

No. Whether the defendant was legally required to signal at the intersection in question, and whether the officer’s belief that the defendant committed a traffic violation was reasonable, were matters of law. There were no disputed issues of fact with regard to the physical nature of the intersection itself or whether the officer was mistaken as to the nature of the intersection. Read opinion

Commentary:

Congratulations to the State Prosecuting Attorney for saving this case. The courts of appeals continue to confuse legal disputes (whether a turn signal was required) with factual disputes (whether the driver used a turn signal). Judges should simply ask, “Is any fact being challenged by the evidence?” Most of the time, the challenge is merely a legal argument.

Riley v. State

No. PD-1531-11      09/19/12

Issue:

Did defense counsel’s erroneous pretrial advice regarding the defendant’s eligibility for community supervision if convicted of murder constitute ineffective assistance of counsel?

Holding:

No. Although the defendant showed deficient performance by his trial counsel, he failed to prove that, had defense counsel properly informed him of his ineligibility for community supervision, there was a reasonable probability his trial would have produced a different result. If the defendant had pled guilty or nolo contendere to the trial court, the possible results‑—finding the defendant not guilty, guilty of murder, or guilty of a lesser offense—would have been the same as the possible
outcomes at trial. Read opinion

Commentary:

With all the changes in law over the last decade, this defendant wasn’t eligible for any form of probation (community supervision, deferred or regular)—from a judge or jury. The defendant made no convincing case that the outcome would have been any different with a plea of no contest before a judge.

Crenshaw v. State

No. PD-1252-11      09/26/12

Issue:

Did the inclusion of the per se definition of intoxication in the abstract portion of the jury charge improperly expand the allegations against the defendant when the information alleged only the subjective definition?

Holding:

No. It is the application paragraph, not the abstract, which authorizes conviction. The application paragraph tracked the language of the information and restricted the jury’s consideration to only the allegations contained in the information. Additionally, the two definitions of intoxication are evidentiary in nature and not mutually exclusive; therefore, evidence of the defendant’s BAC at trial supported the theory of intoxication alleged in the information. Read opinion

Commentary:

Since 2008, the CCA has said that the State does not have to allege a particular subjective or objective definition of “intoxication” in the charging instrument. See State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008). So why not change your charging forms to simply state the defendant was “intoxicated” and avoid the problem of limiting your options at trial and in the jury charge by putting any narrowing language in the information?

Texas Courts of Appeals

Zuliani v. State

Nos. 03-10-00041-CR, 03-10-00042-CR      09/14/12

Issue:

Did reckless driving and deadly conduct convictions violate the prohibition against double jeopardy because they represented multiple punishments for the same offense?

Holding:

Yes. On original submission, the court determined that, under the cognate-pleadings approach to Blockburger, all of the elements of reckless driving were included in the elements of deadly conduct as charged in this case. On remand from the Court of Criminal Appeals, the court now decides that, under either the “clear-expression” or “Ervin-factors” standards, the legislature intended to punish reckless driving and deadly conduct only once. Read opinion

Commentary:

Gerald Zuliani must have some kind of record for appellate review. Since his original prosecution for injury to a child (he tortured a child to death), he has had at least 10 written opinions from Texas appellate courts on his various legal claims arising from numerous prosecutions.

Windom v. State

No. 09-11-00605-CR      09/12/12

Issue:

After an officer made a one-step entry into an apartment to arrest a trespasser, can a visitor seen inside next to drugs and arrested for possession successfully challenge the entry?

Holding:

No. The visitor: 1) was a commercial, not overnight, guest with a reduced expectation of privacy; 2) lacked standing under CCP art. 38.23 because the trespasser had the CCP art. 14.05 arrest rights; and 3) had no property or possessory interest in the apartment. Read opinion

Commentary:

After reading this case, drug dealers may start bringing an overnight bag to the delivery house, just in case they need standing to complain about a search. The court of appeals provides an excellent analysis of the doctrine of standing as it applies to mere guests.

State v. Dinur

No. 14-12-00406-CR      09/20/12

Issue:

Did a trial court wrongly dismiss charges on equal protection grounds after refusing to approve entry of any eligible first-time DWI offenders into the Harris County’s Direct Intervention using Voluntary Education, Restitution, and Treatment (DIVERT) program?

Holding:

Yes. There was no equal protection violation shown by 1) selective prosecution, 2) random assignment to Harris County Courts at Law, or 3) the pretrial diversion pilot program. Read opinion

Commentary:

This opinion provides an interesting explanation of the differences between pretrial diversion run exclusively through a DA’s office and pretrial diversion submitted for oversight through a court. The conflict between Judge Harmon and the DA’s office has already been documented in a previous case addressing whether he could be recused because of his view that a pretrial diversion program for DWI cases violates legislative intent that there be no deferred adjudication for DWI. See Mwalili v. State, No. 14-11-00018-CR (Tex. App. — Houston [14th Dist.] Dec. 15, 2011) (trial judge had discretion to reject plea agreement for placement in pretrial diversion program). At some point, the Legislature may need to codify its intent regarding such programs.

Texas Attorney General

Opinion for Montgomery County Attorney

Opinion No. GA-0967 : 09/14/12

Issue:

Does the transfer of a murder case to district court violate ex post facto law when the alleged assaultive acts causing the death occurred while the defendant was a juvenile and prior to the enactment of the current law allowing transfer?

Opinion:

A county or district attorney’s determination regarding the initiation of further proceedings in this case falls within the scope of prosecutorial discretion. Read opinion

Commentary:

This opinion was supposed to help Montgomery County prosecutors to decide whether to seek adult certification of a juvenile who is now an adult (the victim died of burn injuries years after the alleged crime occurred). Not surprisingly, the AG simply reminds prosecutors of their constitutionally authorized discretion. Media reports have indicated that prosecutors will proceed to seek adult certification.

Opinion for Midland County Attorney

Opinion No. GA-0971 : 09/24/12

Issue 1:

May a bail bond board suspend or revoke an attorney’s authorization to post bond under Occ. Code §1704.163 for any felony conviction?

Opinion 1:

No. A bail bond board may suspend or revoke the authorization granted to an attorney only if the conviction resulted from conduct involved with the practice of executing a bail bond or acting as a
surety.

Issue 2:

If the bail bond board determines an attorney committed a felony resulting from such conduct, what actions may the attorney take to remedy the felony conviction under Occ. Code §1704.163(b)?

Opinion 2:

The bail bond board has discretion to determine how an attorney may remedy a felony conviction and whether such remedial action has occurred in a given instance. Read opinion

Commentary:

This is a surprising opinion. In the past, attorneys have been entirely free of any regulation by bail bond boards, leaving the local sheriff to decide the validity of attorney bonds.

Request from Harris County District Attorney

RQ-1082-GA : 09/13/12

Issue 1:

May a district attorney petition a district court or inferior court for the destruction of blood seized during the investigation of an intoxication-related offense?

Issue 2:

Do district court judges and inferior court judges have authority to order destruction of blood seized during the investigation of an intoxication-related offense? Read request

Commentary:

The answer to this request for an opinion could have substantial financial consequences for agencies that have to store such evidence. Meanwhile, the Legislature might want to take a stab at codifying the laws on evidence retention and storage, providing some coherent answers to complex questions.

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