Weekly Case Summaries: September 7, 2012

Supreme Court of Texas

In re commitment of Michael Bohannan

No. 10-06-05      08/31/12

Issue

Did the trial court improperly exclude a licensed professional counselor and sex offender treatment provider with a doctorate in family sciences and family therapy from testifying whether a person is a sexually violent predator (SVP) and, therefore, subject to civil commitment for outpatient treatment and supervision?

Holding

Yes. The witness was licensed to provide treatment for sexual offenders; spent more than 1,000 hours in that work to obtain her license; sees more than a 100 patients a week; receives continuing instruction, some of which is geared to applying and interpreting actuarial tests and to commitment assessments; is qualified to apply such tests; and has testified repeatedly in commitment proceedings. Indeed, a person is not disqualified from testifying as an expert in an SVP commitment proceeding merely because the person is not licensed as a physician or psychologist. Read opinion

Commentary

The Supreme Court has written a very thoughtful opinion defining the statutory standard for civil commitment of violent sex offenders and explaining why a testifying expert on the subject need not be a physician or psychologist. The Court did leave undecided whether some part of the opinion might require a medical diagnosis. And, of course, the absence of a medical or psychological degree might well be the foundation for successful cross-examination by the State. Look for the defense to take advantage of this opinion to expand the universe of experts providing a favorable defensive opinion.

Texas Courts of Appeals

Wiley v. State

No. 01-11-00147-CR      08/30/12

Issue

Did an officer violate the 4th Amendment when he seized an arrestee’s car keys and used them to trigger the car alarm so as to identify the associated car?

Holding

No, the arrestee had no reasonable expectation of privacy in the identity of his car and failed to demonstrate how triggering the car alarm button violated a reasonable expectation of privacy in the encrypted code, which the officers did not attempt to discover. Read opinion

Commentary

This officer did some outstanding police work. And the court of appeals does an excellent job of explaining the constitutional difference between triggering a keyless car alarm (no physical intrusion) and placing a GPS device under a car (physical intrusion, as explained in the recent United States v. Jones SCOTUS case). So, if the officer had gone down the block putting a physical key into cars and trying to unlock them, would he then have committed an intrusion that amounted to a “search”? A wonderful law school question that will no doubt trigger much discussion among the professors.

Ex parte Moreno

No. 02-11-00272-CR      08/30/12

Issue

Did a defendant demonstrate that he was prejudiced by counsel’s advice on the immigration consequences of his plea?

Holding

No, the defendant’s trial counsel had advised him to seek the advice of an immigration attorney, and the trial court did not find the defendant’s testimony credible. But “[t]his is not to say that a defendant’s failure to heed counsel’s warnings of possible immigration consequences and to consult outside immigration counsel will always disprove the prejudice prong of Strickland.” Read opinion

Commentary

Yet another court of appeals punts on the Padilla v. Kentucky retroactivity question. Nonetheless, this post-Padilla claim is doomed by the trial court’s inferred finding that the defendant is not being truthful (credible) when he claims that he would not have taken the plea bargain (of deferred adjudication for possessing more than a kilo of cocaine) if he had been told with more certainty that he would be deported. Will someone please explain how any lawyer can say with a straight face that anyone will be automatically deported for anything? There are some young illegal aliens who are this week applying for deferral of their deportation after President Obama issued an executive order changing immigration policy; their lawyers last week might have told them with certainty that they would be deported. Go figure.

Campbell v. State

No. 03-11-00834-CR      08/31/12

Issue

Did the trial court improperly admit Facebook messages created by the defendant?

Holding  

No. Sufficient authentication existed here as demonstrated by: the content of the messages, the speech pattern, the temporal proximity to the events discussed, access to the account limited to the defendant and the recipient, and the recipient’s testimony that she could not access the account. But Facebook—like MySpace—presents an authentication concern because a viewer has no way of knowing whether a profile is legitimate and whether the author of communications is in fact the profile owner. Read opinion

Commentary

This case has an excellent explanation of how to circumstantially authenticate an electronic communication. The defendant’s Jamaican vernacular (“i did you bad “) and utter inability to punctuate were perhaps his downfall. Behold another Facebook tragedy.

Wooten v. State

No. 14-11-00078-CR      08/30/12

Issue

In a murder case involving self-defense, was the trial court wrong in not instructing the jury on sudden passion?

Holding

Yes. “Self-defense and sudden passion are intricately intertwined, and except in rare instances, facts that give rise to a self-defense issue also give rise to a sudden-passion issue” so “trial courts are generally well advised to give both instructions.” Because there was evidence both of self-defense and sudden passion, a new punishment hearing is ordered. Read opinion

Commentary

Really? Arguing with a pimp over the nonpayment of a lap dance can inspire a sudden passion that overwhelms judgment and leads to gunplay? Is this really the sort of mitigation the Legislature had in mind when drafting this punishment issue? Doubtful. This was a trashy murder case with, at best, a weak self-defense claim. Moral of the story: Pay the girl for her time. Second moral of the story: Give the defendant any plausible jury charge and trust jurors to reject the nonsense.

Cone v. State

No. 14-11-00530-CR      08/30/12

Issue

Was a defendant’s constitutional right to confrontation violated by admitting a lab report and testimony regarding his blood alcohol concentration (BAC), which were calculated from the results of a blood test performed by an analyst who did not testify at trial and where the State never argued that the analyst was unavailable or that the defendant had a prior opportunity to cross-examine him?

Holding 

Assuming, without deciding, that the admission of the evidence was improper, the error was harmless because the State pled and proved both alternative methods of intoxication and the other circumstances demonstrating intoxication were compelling. Read opinion

Dissent

The admission of the evidence was harmful error. Read dissent

Commentary

The court of appeals neatly avoids the conundrum presented by Crawford and its progeny by taking a harmless error approach. But prosecutors should still be aware that SCOTUS has not yet provided any coherent theory for the admissibility of the opinion of a testifying expert who reviews the work of a nontestifying expert. Read the recent many opinions in Williams v. Illinois and proceed with caution.

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