Case of the Week Archive
Trial counsel was not ineffective for failing to request a jury instruction on the mistake of fact defense in defendant’s trial for forgery of money. Forgery of money requires the State to prove intent to defraud or harm another, which also requires the State to show the defendant knew the bills were forged. Proof of the culpable mental state necessarily proves lack of mistake regarding authenticity of the bills, so trial counsel was not objectively unreasonable in failing to request the instruction.
A court may consider the totality of the circumstances in determining whether a long-delayed habeas application is barred by the doctrine of laches. The federal standard requiring the State to show particularized prejudice and a complete inability to answer the application is no longer workable. The courts can consider other forms of prejudice, such as the State’s inability to retry the defendant, and weigh them against equitable considerations in favor of granting relief, like new evidence of actual innocence.
In a trial on the offense of aggravated assault with a deadly weapon where the defendant was instead convicted of the lesser-included offense of deadly conduct, the court, which had submitted a self-defense instruction for the primary charge, wrongly failed to apply the instruction to the lesser-included offense. The language in the abstract instruction on self-defense, “as set above,” did not reach deadly conduct. Even though the defendant failed to object to the charge, the error was harmful and a new trial is required.
The State cannot appeal from a trial court’s order rejecting a plea-bargain agreement and signing a judgment finding the defendant not guilty. The trial court’s ruling reached the merits of the case and constituted an acquittal. The State cannot appeal from an acquittal, and the judgment did not constitute a dismissal of an indictment.
The inevitable dissipation of alcohol in blood alone does not constitute an automatic exigency to support a non-consensual, warrantless blood test during a DWI investigation, but depending on the “totality of the circumstances” in a particular case—an exigency may develop. Otherwise, a warrant is required.
Probable cause to believe that illegal drugs are in a home, coupled with an odor of marijuana emanating from the home and a police officer making his presence known to its occupants, does not justify warrantless entry under the exigent circumstances exception to the warrant requirement without some proof of imminent destruction based on affirmative conduct of the occupants. The five factors for consideration established in McNairy v. State, 835 S.W.2d 101 (Tex. Crim. App. 1991), are no longer adequate.
To establish prejudice in an ineffective assistance of counsel claim involving plea-bargaining, the habeas applicant must show a reasonable probability that: 1) he would have accepted the earlier offer if counsel had not given ineffective assistance; 2) the prosecution would not have withdrawn the offer; and 3) the trial court would not have refused to accept the plea bargain.
The trial court did not violate a defendant’s confrontation rights by admitting 1) the testimony of an alleged surrogate analyst who was not employed during the time defendant’s breath sample was provided and analyzed, and 2) the breath-test results and Intoxilyzer maintenance reports. Under Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), cross-examination of the person mixing the reference solution is not required before the admission of breath-test results. And, following Settlemire v. State, 323 S.W.3d 520 (Tex. App.—Fort Worth 2010, pet. ref’d), the admission of the Intoxilyzer maintenance records and breath test results does not violate confrontation rights.
Padilla v. Kentucky, 130 S.Ct. 1473 (2010)—holding that defense counsel can render ineffective assistance of counsel for failing to adequately admonish a defendant of the immigration consequences of his guilty plea— does not apply retroactively to cases already final on appeal. Padilla broke new ground by changing the law in most jurisdictions; thus, it “developed” new law. Under Teague v. Lane, 109 S.Ct. 1060 (1989) a new law does not apply to convictions already final on direct appeal.
The “allowable units of prosecution” test should be applied in cases charging two violations of the same statutory provision. The allowable unit of prosecution under PC §19.03(a)(7)(B) is the killing of two or more persons, not each individual victim. Criminal attempt offenses acquire their allowable unit of prosecution from the offense attempted. Each attempted capital murder conviction under PC §§ 19.03(a)(7)(B) and 15.01(b) requires at least two victims not included as victims in other attempted capital murder provisions under the same penal code sections.
Even after the advent of HIPAA, a person lacks standing to complain about the use of a grand jury subpoena to obtain his blood-alcohol test results; however, he may challenge how the State obtained his medical records. Although the grand jury subpoena used in this case was invalid, the taint of the illegal subpoena was attenuated by the subsequent valid clerk’s subpoena, so the remaining medical records were admissible.
The trial court properly released a stressed-out and vomiting juror during deliberations and required continuation with an alternate juror. The trial court’s finding that the juror was physically ill so as to prevent her continuing satisfied CCP art. 36.29(c). There was no evidence that the trial court was motivated to dismiss the juror based on her refusal to deliberate or her evaluation of the sufficiency of the evidence, and the defendant was not denied his state constitutional right to jury unanimity because the alternate juror was properly employed under CCP art. 33.011(b). Finally, the trial court did not wrongly deny a motion to unseal the juror’s personal information to permit a defense investigation because no outside influence was shown.
Romero v. State Read opinion
The State is entitled to mandamus relief when a trial judge has refused a jury instruction on a theory of party liability alleged by the State and increased the State’s burden of proof with regard to the conspiracy theory of party liability. The State has no other remedy at law, and the judge has a ministerial duty to submit the requested instructions if they are applicable to the offense as charged and supported by the evidence.
Neither the 4th Amendment nor the language of CCP art. 18.01 prohibits a magistrate from telephonically administering the oath to an affiant seeking a search warrant, so long as sufficient care is taken to preserve the same or an equivalent solemnizing function of the oath that physical presence accomplishes.
Clay v. State Read opinion
The trial court improperly granted a motion for new trial in the interest of justice on the ground that the jury did not hear exculpatory testimony from an alleged eyewitness; defense counsel was “undisputedly aware of the exculpatory evidence before trial but consciously decided, on the record, not to call the witness at trial.” An argument that counsel was ineffective was expressly abandoned, and another that the sentence was grossly disproportionate was not presented to the trial court.
The trial court properly denied the defendant’s oral and unsworn motion for continuance to obtain a trial transcript after the court granted a mistrial on punishment. CCP art. 29.03 requires a written motion for continuance with sufficient cause shown, and there is no due process exception to that requirement. Blackshear v. State Read opinion
The trial court wrongly found an officer’s information at the time of a defendant’s arrest—that the defendant, who had a common name, had two prior DWI convictions—unreliable under Tex. Transp. Code §724.012(b)(3)(B). The later discovery that the information obtained from NCIC/TCIC was wrong does not make it unreliable at the time the officer used it in the field.
The trial court's order granting the motion to quash in a sexual assault case was reversed because the State adequately alleged the bigamous conduct elevating the offense from a second- to first-degree felony. The State tracked the statutory language in the indictment and was not required to plead the constituent elements of the offense of bigamy so as to provide adequate notice.
State v. Hernandez Read opinion
The CCA overruled its earlier holding in Erdman v. State and clarified that a court must consider the totality of the circumstances in determining whether an extra-statutory warning bears a causal relationship with the decision to provide a breath specimen. In this case, the officer was merely responding to the defendant’s questions and did not provide any untrue information when stating her intent to get a blood warrant; based on the totality of the circumstances, the statements were not coercive. Fienen v. State Read opinion
A writ of mandamus is an appropriate remedy where the trial court refuses to submit the issue of punishment to the jury after a plea of guilty to the jury. Upon a plea of guilty to the jury, the trial becomes unitary, and the trial judge has a ministerial duty to instruct the jury to return a verdict of guilty and assess the punishment. In re State ex rel. Tharp Read opinion
The admissibility of an expert’s testimony regarding future dangerousness is not a cognizable issue for habeas corpus review. Although the court found the expert’s testimony inadmissible under TRE 702 in an unrelated case on direct appeal, claims regarding the admissibility of evidence under the rules of evidence are not appropriate for habeas review. Ex parte Ramey Read opinion
Under the “functional-equivalent” test, manslaughter is a lesser-included offense of murder as charged under PC §19.02(b)(2) because the elements of manslaughter differ only in that a less culpable mental state (recklessness) suffices to establish its commission; however, there was no evidence raised at trial that would permit a rational jury to find the defendant guilty only of manslaughter, so the trial court properly denied the instruction in this case. Cavazos v. State Read opinion
An officer's testimony that if the car in front had stopped, the car following would have been unable to do so without colliding, established he had reasonable suspicion to make a traffic stop. The facts exceeded those in Ford v. State where an officer's conclusory testimony that a car was following another too closely was insufficient for reasonable suspicion. Young v. State Read opinion
The trial court properly dismissed a lawsuit alleging a violation of the due process and due course of law provisions, purportedly arising from the criminal district attorney’s (and his predecessor’s) failure to disclose exculpatory information. The CDA was entitled to sovereign immunity, and summary judgment was appropriate because, as the CDA did not possess the evidence at issue, the dispute was moot. Charleston v. Clint Allen, CDA Cass County Read opinion
The trial court improperly excluded affidavits and testimony regarding a juror’s Internet research on date rape drugs under TRE 606(b) at a hearing on the defendant’s motion for new trial because the Internet research occurred outside the jury room deliberations and was an “outside influence” for the purposes of TRE 606(b). McQuarrie v. State Read opinion
A capital murder defendant’s federal and state rights of confrontation were not denied when the trial court permitted an overseas, active-duty soldier to testify by live video conference (Skype). The preference for having witnesses testify in the courtroom must give way to the practical considerations involving a witness’s military obligation that made his physical presence impractical. Rivera v. State Read opinion
Inclusion of the per se definition of intoxication in the abstract portion of the jury charge did not improperly expand the allegations against the defendant when the information alleged only the subjective definition because the application paragraph tracked the language of the information and restricted the jury’s consideration to only the allegations contained in the information. Crenshaw v. State Read opinon
A defendant (and the State) must be present at sentencing whether involving an original or modified punishment; absent the defendant’s opportunity “to hear or respond to the imposition of the modified sentence,” he is entitled to a new punishment hearing. Duran v. State Read opinion
The trial court properly admitted Facebook messages created by the defendant because the content of the messages, the speech pattern, the temporal proximity to the events discussed, and the limited access to the account sufficiently demonstrated the messages' authenticity. Campbell v. State Read opinion
An officer did not 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; 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.
The admission of 9-1-1 calls reporting an ongoing drug deal, not an emergency, did not violate the Confrontation Clause because the statements were not testimonial; the primary purpose of the interrogation was not to create an out-of-court substitute for trial testimony.
U.S. v. Polidore: Read Opinion
The Confrontation Clause is not violated when a police forensic laboratory specialist testifies that a sample of the defendant’s blood obtained by her laboratory matched a DNA profile contained in another laboratory’s report if the report had the “primary purpose” of determining the identity of a suspect in a rape rather than accusing a targeted individual and (concurrence) lacks indicia of solemnity/formality.
Williams v. Illinois. Read Opinion
The trial court wrongly granted a provision of a defense omnibus discovery motion requiring the State to turn over NCIC and TCIC records of law enforcement officers for an in camera inspection. Although the State failed to advise the trial court that no such record existed (so the trial court was denied the opportunity to rule on the issue that the State would have to create the document), neither Brady v. Maryland, nor CCP art. 39.14 impose a duty on the State to acquire the information. Moreover, there were 1) no oral or written request for the records, 2) no oral or written showing of “good cause” for the records, 3) no oral or written showing why those records were material to the defense, and 4) no oral or written showing that those records were in the State's possession.
In re Craig Watkins
Enzyme multiplied immunoassay technique (EMIT) drug test results are reliable without a confirmation test under the first two prongs of Kelly. EMIT, with or without a confirmation test, is reliable scientific evidence. EMIT testing is highly accurate, has a low rate of error, and is widely accepted and extensively used as a reliable presumptive screen for the presence of drugs.
Somers v. State
The Double Jeopardy Clause does not prohibit retrying a defendant for capital murder and first-degree murder when the trial judge granted a mistrial after the jury informed him that it unanimously agreed the defendant was not guilty of those offenses, but hung on the lesser-included offense of manslaughter. The defendant was not acquitted of the greater charges. The jury had not finally resolved anything and could have revisited the greater charges before rendering a verdict.
Blueford v. Arkansas
The discovery of an outstanding arrest warrant in between an illegal traffic stop and the seizure of contraband served as an intervening event sufficient to attenuate the taint of the initial stop. The behavior of the arresting officers, although clearly unlawful at the outset, was not so purposeful and flagrant that the discovery of the defendant’s outstanding arrest warrants did not serve to break the causal connection between the illegal stop and the discovery of the ecstasy.
State v. Mazuca
A blood draw search warrant to be executed in a designated county may not be issued by a statutory county court judge of a different county. Statutory county court judges lack the authority to issue a search warrant to be executed outside of their own county.
Sanchez v. State
There was not reasonable suspicion to stop the defendant after he drove on an improved shoulder to pass a car that had slowed at a railroad crossing in violation of Transportation Code §545.058(a). The officer did not testify that the defendant was driving in a manner inconsistent with §545.058(a)(4) (using the shoulder to pass another vehicle that is slowing on the main portion of the highway). Driving on an improved shoulder is not prima facie evidence of an offense. The offense of illegally driving on an improved shoulder is committed when driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on the improved shoulder could not have been done safely.
Lothrop v. State
The defendant was not entitled to a new trial because she was denied adequate funding to hire additional and better qualified experts, and because trial counsel was ineffective by failing to retain or make a written request for additional qualified experts. A defendant is not entitled to the best or most expensive expert, but is entitled to at least one expert upon a showing that the expert can provide assistance which is likely to be a significant factor at trial. The defendant forfeited consideration of her constitutional claim on habeas review by failing to file a proper written Ake motion and ensuring the trial judge formally ruled on it. The defendant does not have a constitutional right to a “team of experts” paid for by the taxpayers, and defendant’s counsel was not ineffective in failing to request such a team.
Ex parte Jimenez
The 5th Amendment right against compelled self-incrimination does not apply to pre-arrest, pre-Miranda silence used as substantive evidence of guilt in cases in which a defendant does not testify. In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled. The 5th Amendment right against compulsory self-incrimination is irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak. Prosecutors may comment on such silence regardless of whether a defendant testifies.
Salinas v. State
When a defendant appeals his conviction, the State does not need to file its own notice of appeal when it raises a cross point concerning a ruling on a question of law under CCP art. 44.01(c). Once a convicted defendant files a timely notice of appeal, the appellate courts have jurisdiction to address any pertinent “cross-appeal“ or ”rebuttal“ issues raised by the State. There is no statutory provision for filing a notice of appeal for “cross-appeals” under art. 44.01(c) and no evidence that the legislature intended for the State to file a notice of appeal. There is no persuasive rationale for requiring such notice of appeal when the State's right to have the court of appeals address its issue on a trial court's ruling of law is contingent upon the defendant obtaining relief from his conviction.
Pfeiffer v. State
The trial court properly denied a pretrial writ of habeas corpus alleging a violation of double jeopardy where, previously, a mistrial had been granted due to the State's delayed disclosure of photographic evidence obtained by a sexual assault nurse examiner. The decision to declare a mistrial, even if "improvidently quick" was manifestly necessary. Where a trial judge faces the options of either 1) excluding the photographs and thereby creating a potential ineffective assistance of counsel claim or 2) continuing the proceedings for an indeterminate but lengthy period of time, the decision is within the zone of reasonable disagreement.
Ex parte Rodriguez
The trial court did not violate a defendant’s rights to due process and due course of law by refusing to answer a jury question regarding consequences of a verdict of not guilty by reason of insanity. The policy decisions of other courts throughout the nation do not rise to the level of a due process right or a due course of law right. CCP art. 46C.154, as the trial court applied it here, does not “offend some principle of justice so deeply rooted in the traditions and conscience of our people as to be ranked as fundamental,” and the defendant has failed to establish that the trial court applied the mandatory prohibition of article 46C.154 in a manner that deprived appellant of fundamental fairness.
Lockard v. State
Filing a frivolous lawsuit does not constitute an “unlawful” act—one that is criminal or tortious—required for the offense of retaliation. Filing frivolous pleadings and motions is sanctionable but does not constitute a tortious act, and the criminality of the act was not raised. Thus, filing a frivolous lawsuit is not unlawful, the trial court’s judgment is reversed, and a judgment of acquittal is entered.
Merritt v. State
Counsel provided ineffective assistance by recommending rejection of a plea bargain. Under the prejudice prong of the ineffective assistance of counsel test, the defendant will have to show that there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction, sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Possible remedies include the trial court conducting a hearing to determine 1) whether the defendant would have accepted the plea and, if so, deciding what the appropriate sentence should be (that was assessed, was pled to, or something in between), or 2) where lesser offenses were offered, deciding whether to vacate and accept the plea or let the conviction stand. Here, because the sentence assessed was 3½ times that offered, the State should reoffer the plea agreement.
Lafler v. Cooper