Weekly Case Summaries: July 25, 2008

Texas Courts of Appeals

Gordon v. State – 6th COA

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7/16/08 : 06-07-00167-CR : Prison Attire

Issue

Was it permissible for the trial court to require a witness to testify in prison attire and shackles solely because it did not want to interfere with the sheriff’s policy on inmates testifying?

Holding

No. It was an abuse of discretion for the trial court to require the inmate to testify in prison attire and shackles solely because the court did not want to interfere with the sheriff’s policy. However, because of the strong evidence against the defendant, the witness’s appearance in jail clothing did not contribute to the defendant’s conviction or punishment.

Commentary

A defendant's case can't be going well if he is depending on the word of a recently convicted felon to get him out of trouble. And nothing says you are a recently convicted felon like shackles and an orange jumpsuit. That's why it was harmless for the judge to let that happen. Frankly, it would have looked silly to dress him up in a pin- stripe suit. Note: this is not the same as putting the defendant, who has the presumption of innocence going for him, in shackles and jail clothing. That would not be harmless.

Crocker v. State – 12th COA

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7/16/08 : 12-07-00413-CR : DWI Enhancement

Issue

Was it a violation of the prohibition against ex post facto laws to enhance a DWI charge to a felony based on convictions that occurred prior to the felony enhancement provision in PC §49.09(b)(2)?

Holding

No. The changes to the law do not increase the defendant’s punishment for his prior convictions and therefore do not constitute an ex post facto law. The former ten year limitation on the use of DWI convictions was not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time.

Commentary

Man, losing that 10-year DWI rule in 2005 was magnificent. One can kind of understand why the defendant is kicking himself over getting caught after the law changed. Still, that doesn't make it unfair.

Wooten v. State – 14th COA

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7/22/08 : 14-07-00129-CR : Blood Tests

Issue

Are blood-alcohol tests using the Dimension RXL analyzer, which mixes the blood’s serum with enzymes to determine alcohol content, reliable?

Holding

Yes. It was within the zone of reasonable disagreement for the trial court to conclude that the State proved by clear and convincing evidence that the blood-alcohol results from the Dimension RXL were reliable.

Commentary

For this triple homicide, the drunk and drugged driver righteously got three sentences of 45 years in prison that should have been stacked. Yet, he whines about every single thing in the case -- blood test, accident reconstruction, drug recognition expert, medical records, admissions to medical personnel and even sufficiency of the evidence. The prosecutor professionally covered everything at trial and provides a magnificent blueprint for investigating and proving a manslaughter case. If you have such a case pending, print and read every bit of this case. Then call the prosecutor and see if he or she will come sign up as a special prosecutor on your case. Well done.

Garza v. State – 3rd COA

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7/24/08 : 03-07-00401-CR : Traffic Violations

Issue

Was there a valid stop where the defendant’s right brake light and the brake light on the cab of the truck were operating correctly but his left brake light was malfunctioning?

Holding

Yes. There was reasonable suspicion to stop the defendant for a traffic violation because his left brake light was malfunctioning. Even though Transp. Code §547.323 requires only two operating brake lights, Transp. Code §547.3215 adopts the federal motor vehicle safety standards, so that a violation of such standards constitutes a violation of the Transportation Code. The defendant violated federal standards by not having two operating brake lights at the same height and therefore, violated Transp. Code §547.3215.

Commentary

This defense attorney in this case obviously has read The Perfect Plea, because he protected himself from a motion for new trial, alleging ineffective assistance of counsel, by putting the unsuccessful results of plea bargaining on the record before the trial began. He anticipated the prototypical unhappy client who turns on the defense attorney after getting more years from a jury than he could have taken on a plea. (The conversation in the opinion is worth reading; the defense attorney has just the right amount of sarcasm in his voice.) Note: If the defense doesn't do this, the prosecutor should consider putting the same on the record before trial. The appellate division will thank you.