Weekly Case Summaries: September 30, 2011

Court of Criminal Appeals

Pena v. State

NO. PD-0852-10 : 09/28/11

Issue:

Does Brady apply when the State unintentionally fails to disclose the audio portion of a videotape containing exculpatory statements the defendant made to police?

Holding:

Yes. The duty to disclose existed because the audio recording was known to the police but unknown to the defendant, it supported his defense, and the State failed to disclose the audio portion of the videotape.
Read Opinion

Commentary:

Typically, a recording of a defendant's denial of a crime would not be Brady material because the defendant would obviously be aware of the statement and could only present such a statement by testifying in court. Under this very unique set of facts, however, the denial included a request for testing the controlled substance to show it was hemp and not marihuana. Anyone want to guess how many future drug smugglers will proclaim they thought they were transporting hemp? (Oh, and don't destroy the drugs until AFTER the trial.) 

Snowden v. State

NO. PD-1524-10 : 09/28/11

Issue:

Did the prosecutor’s closing remark on the defendant’s lack of in-court remorse constitute harmful error?

Holding:

No. This error was isolated and imbedded within a legitimate argument that invited the jury to draw an inference of lack of remorse at the time of the offense. In revisiting the Harris analysis for constitutional error, the source of constitutional error and whether declaring the error harmless would encourage future misconduct are factors that have no logical bearing on whether a particular constitutional error contributed to the verdict.
Read Opinion

Commentary:

Prosecutors must choose their words very carefully during final argument. This argument was fine, until the prosecutor described the punches as "without remorse, just like he is today." Five little words too far. Fortunately, the CCA uses this case as an opportunity to review how harmless constitutional error review should occur, dropping some of the more meaningless steps and concluding that the error was harmless. (Trial judge also could have avoided all of this by sustaining the objection and instructing the jury to disregard.)

State v. Weaver

NO. PD-1635-10 : 09/28/11

Issue:

Were police officers legally on the business premises at the time the officers conducted a dog sniff around the defendant’s van?

Holding:

No. The van was not parked in a public parking lot or on any part of the business premises open to the public. The defendant’s initial consent to search the premises was terminated after he unequivocally refused to consent to any further search of the van.
Read Opinion 

Dissent:

Presiding Judge Keller writes that no 4th Amendment violation occurred because the dog sniff is not a search and the defendant never withdrew consent to the officer’s presence on the premises.  
Read Dissent

Dissent:

Judge Keasler would remand the case so that the trial court could enter a finding of fact on whether the van was parked in a public lot.
Read Dissent

Commentary:

This case provides a good summary of the law regarding consent to search and the scope of that consent. Once again, we learn that search and seizure appeals largely favor the trial court if the appellate court defers to factual findings made by the trial court.

Ex parte Warren

NO. AP-76,435 : 09/28/11

Issue:

Is an applicant with prior sex-offense convictions entitled to notice and a hearing before TDCJ places sex-offender provisions on his parole?

Holding:

No. The computerized criminal history file, maintained by DPS and relied on by TDCJ, and which was corroborated by police agency records, established that the applicant had prior sex-offense convictions from Illinois that qualify under Texas's sex-offender registration law.  A parolee with prior sex-offense convictions is not entitled to procedural due process before TDCJ imposes sex-offender parole conditions.
Read Opinion

Commentary:

The Parole Board must be relieved finally to win a post-conviction writ arguing for yet another due process hearing before imposition of sex offender conditions. For the thousands of other parolees who don't have an actual prior sex offender conviction, a hearing must be held.

Texas Court of Appeals

Hamal v. State - 2nd COA

No. 02-09-00448-C : 9/22/11

Issue:

Did the trial court improperly deny a written instruction under art. 38.23? 

Holding:

Yes. The evidence demonstrated a factual dispute as to whether the officer’s belief that the defendant had understood his question and was lying about having been arrested in the past was reasonable. Moreover, the factual dispute was material to the determination of reasonable suspicion to continue detaining the defendant for a canine sniff.  The harm was egregious.
Read Opinion

Commentary:

This is nonsense. The question of whether the officer's basis for reasonable suspicion was supported by the record is a question of law that should be determined by a judge. By what standard would a jury even decide whether an officer used ambiguous information as a pretext or a true basis for detention? This sort of micro decision-making without the benefit of a law degree is an injustice. The trial court properly denied the charge because there was no factual dispute to decide.

Mendoza v. State - 5th COA 

No. 05-09-01290-CR : 9/15/11

Issue:

In a murder case involving self-defense, did the trial court incorrectly submit an instruction on “provoking the difficulty?”

Holding:

Yes. There was insufficient evidence of the defendant’s acts causing the deceased to attack him. Also, because the defendant objected to the instruction’s inclusion and the jury could have found he acted in self-defense, reversal is required.
Read Opinion

Commentary:

The arguments about how the charging error was harmful seem weak. If there was no evidence to support the provocation issue, then how could it harm the defendant to have that surplusage in the jury charge? Why does the appellate court presume that the jury would leap to applying the instruction merely because the option is in the charge?

Mechell v. State - 10th COA 

No. 10-10-00416-CR : 9/14/11

Issue 1:

Can a dumpster in which a live baby is discarded support a deadly weapon finding in an aggravated kidnapping case?

Issue 2:

Do convictions for aggravated kidnapping and abandonment of a child arising from the same course of conduct violate double jeopardy?

Holding 1:

Yes, the dumpster was capable of inflicting serious bodily injury and, in this instance, actually caused serious bodily injury.

Holding  2:

No, because the two offenses are not the same under either Blockburger or a legislative analysis.
Read Opinion 

Commentary:

This is a very creative use of a deadly weapon allegation. The prosecutor provided strong expert testimony that using the dumpster to contain the child placed the child in danger of serious bodily injury or death. This case provides an excellent discussion of the concepts surround a deadly weapon allegation. Share a copy with the prosecutors in your office.

Texas Attorney General

Opinion Request from Erath County Attorney

RQ-0995-GA : 09/21/11

Issue:

Whether an eight-liner machine that dispenses tickets for prizes redeemable only at the bingo hall in which the machine is located is a “gambling device” within the meaning of §47.01(4) of the Penal Code.
Read Request

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