Weekly Case Summaries: September 9, 2011

Texas Court of Appeals

State v. Banda - 3rd COA 

No. 03-10-00729-CR 8/31/11 (not published)


Issue:

Did the trial court properly dismiss the State's case with prejudice for violation of a discovery order?


Holding:

No. While suppression of the evidence might have been appropriate, the trial court lacked constitutional and statutory authority to dismiss a case with prejudice for violation of a discovery order.
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Commentary:

The court of appeals quite properly protected the State's authority to move for a dismissal without prejudice, even on the date of trial. Banda seems to have engaged with the judge in gamesmanship, conveniently forgetting the two continuances for the defense that were previously granted unopposed. 

Tollefson v. State - 4th COA

No. 04-10-00286-CR 8/31/11


Issue:

Was expert opinion testimony—based on testing performed by a non-testifying witness—admissible?

Holding:

Yes, notwithstanding Bullcoming v. New Mexico. Not only was the expert present when the non-testifying witness test-fired the weapon, but she was also the one who analyzed the findings and prepared the report on those findings. The non-testifying witness merely fired the weapon at the expert's request.
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Commentary:

The defendant made a lame attempt to raise a Crawford issue because the non-testifying individual did nothing more than fire the murder weapon in the presence of the testifying expert. The pending Williams v. Illinois SCOTUS case will more directly address this issue of when an expert can testify when relying on the lab work of another person who was not personally observed.

Ex parte Joel De Los Reyes - 8th COA 

No. 08-10-00239-CR 8/31/11

Issue:

Did counsel render ineffective assistance by failing to adequately admonish a permanent resident about the immigration consequences of his guilty plea?

Holding:

Yes. Padilla v. Kentucky applies retroactively in post-conviction habeas proceedings and, although the plea papers stated the possibility of deportation, counsel did not advise the permanent resident that deportation was a virtually inevitable consequence of his plea to a second theft offense.
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Commentary: 

A defendant lies about his criminal history to his lawyer. The lawyer fails to anticipate SCOTUS litigation and immigration policy that will not happen for several years. And so the defendant gets relief because of today's difference between he "may" be deported and he "will" be deported. Of course, a recent shift in immigration policy may well have changed "will" back to "may". This is the insanity of basing the voluntariness of a guilty plea on immigration advice. Perhaps the best admonition would be: "Regardless of your understanding of immigration/deportation law, would you be pleading guilty even if your case results in your deportation?" That way, at least you can argue the issue of immigration/deportation did not influence the voluntariness of the plea. Padilla is an unworkable decision that will eventually be rejected by SCOTUS. This case should be reviewed on PDR.

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