Weekly Case Summaries: August 8, 2008

Texas Courts of Appeals

Kennedy v. State – 1st COA

7/31/08 : Cite No. 01-06-00751-CR : Retrograde Extrapolation Testimony

Issue

Did the trial court err by admitting the inconsistent testimony of two experts on retrograde extrapolation?

Holding

No. Because the expert acknowledged and offered an explanation to reconcile his testimony, it was within the court’s discretion to conclude the underlying technique of retrograde extrapolation was valid and reliable.

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Commentary

This opinion represents a good application of the controlling decision of the Court of Criminal Appeals in Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001). But Mata is frankly far too restrictive in allowing for the admissibility of retrograde extrapolation testimony of an expert witness. At some point, that decision needs to be revisited, so that its requirements can be relaxed. In this case, the defendant barely missed a minivan carrying six people--so closely that the driver of the minivan told his wife to brace for the impact, which thankfully for them never came. The defendant continued to drive so aggressively that he forced other drivers off the freeway and onto the shoulder. The defendant was weaving in and out of traffic when he cut completely across the freeway from lane four on the left side to the breakdown lane on the right side and then proceeded to accelerate. The defendant then crashed his truck into the rear of the victims' vehicle, killing two children and severely injuring a third. The other two occupants of the victims' vehicle received broken bones. While emergency medical personnel and law enforcement officers attempted to deal with the chaos that the defendant had created, the defendant helpfully proceeded to fall asleep in the back seat of an officer's patrol car. Texas in general, and Houston in particular, needs help in confronting the serious problem that is drunk driving. It would be nice if our case law provided that help.

 

Muniz v. State – 1st COA

7/31/08 : Cite No. 01-07-00129-CR : Blood Search Warrants

Issue

Does a justice of the peace have authority under CCP art. 18.01(i) to grant a blood search warrant under CCP art. 18.02(10) if two municipal judges in the county are lawyers?

Holding

Yes. CCP art. 18.01(i) allows any magistrate to sign a CCP art. 18.02(10) search warrant if the only judges serving a county who are licensed attorneys and who are authorized to issue art. 18.02(10) search warrants are district judges serving more than one county. Here the municipal judges are not municipal courts of record and therefore cannot sign 18.02(10) search warrants.

Read opinion

Commentary

This decision construed a version of Article 18.01(i) of the Code of Criminal Procedure that is no longer in effect. That version of the statute, and this opinion, were written to emphasize that a police officer does not have to travel to another county in order to get a search warrant signed. Hopefully, the current version of the statute will be construed in the same fashion.

 

Trinidad v. State – 4th COA

7/30/08 : Cite No. 04-07-00799-CR : Alternate Juror

Issue

Are alternate jurors allowed in the jury room during deliberations?

Holding

No. Although the defendant did not object at trial, the right to a 12-member jury is a waivable-only right that does not require timely objection. Furthermore, the right to a 12-member jury is protected by the Texas Constitution in Art. V, §13. This right precludes the deliberation of more than 12 jurors. Using a harm analysis, it could not be found, beyond a reasonable doubt, that the alternative juror did not contribute to the defendant’s conviction or punishment because she was instructed by the court to participate in deliberations.

Read opinion

Commentary

Part of the blame for this reversal must be laid at the feet of the Texas Legislature, which recently amended CCP art. 33.011(b) to allow alternate jurors to deliberate during the punishment stage if a juror is forced to leave during or before that stage of the trial. The problem is--what do you do with the alternate juror while the jury is deliberating guilt-innocence? Well, you certainly do not allow the alternate juror to sit in on deliberations because that would violate CCP art. 36.22, which was NOT amended. This opinion points out that the legislative intent behind the amendment to CCP art. 33.011(b) was for an alternate juror to be directed by the trial judge to separate from the regular jurors and not participate in deliberations. It certainly would have been nice if the Legislature had actually said this, however, either in art.33.011 or art.36.22, or both. An argument can be made that an alternate juror should be permitted to sit in on deliberations, so that he will have the benefit of the other jurors' deliberations if he is ultimately called upon to replace one of the jurors. But such a procedure would require an amendment to art. 36.22. The bottom line is that, if you have an alternate juror, make sure that your judge instructs him to not sit in during jury deliberations.

 

Hall v. State – 10th COA

7/30/08 : Cite No. 10-07-00213-CR : LIDAR

Issue

Is LIDAR technology, which uses lasers to measure the speed of a vehicle, novel scientific evidence that must be subjected to a gatekeeping hearing?

Holding

Yes. The prosecution failed to offer any evidence of the LIDAR technology as a means of measuring the speed of a vehicle and there are no Texas authorities confirming its reliability. LIDAR technology is novel scientific evidence which may be admissible only after its reliability has been judicially determined in a full-blown gatekeeping hearing.

Read opinion

Commentary

This case stands for the proposition that LIDAR (LIght Detection And Ranging) and RADAR (RAdio Detection And Ranging) are not the same thing. I frankly have no idea. Nevertheless, if your police officer has utilized LIDAR, its reliability and the propriety of the officer's application of it, may need to be shown if the defendant so requests.

 

State v. Stauder – 10th COA

7/31/08 : 11-07-00375-CR : Inventory / Search Incident to Arrest

Issue

Did police conduct a valid inventory, or in the alternative a valid search incident to arrest, when they searched the defendant’s car after his arrest to prepare it for impoundment?

Holding

No. The inventory was invalid because the police officer, by not completing an inventory sheet, did not comply with established procedures. In addition, the search incident to arrest was invalid because the officer’s testimony made clear that the evidence was found during an inventory and there was no evidence that the items seized in the bed of the pickup were in the defendant’s immediate area of control. Read opinion

Commentary

I suppose that, if your law enforcement agency's inventory policy requires that an inventory form be filled out, then the inventory form must be filled out--at least so as to ensure that a proper accounting be made for the driver's property. However, if you draw an analogy to a search warrant, the failure to fill out the search warrant return will not necessarily invalidate the search. If an inventory form has not been filled out, should that really necessitate the exclusion of any incriminating evidence that is uncovered during the inventory?

Texas Attorney General Opinion Requests

RQ-0729-GA

8/1/08 : Right-of-way Robert Vititow, Rains County Attorney, submitted a request for an opinion on whether a commisioners' court has the authority to remove from county right-of-way structures it deems to be a safety.

If you would like to express your opinion on this matter, please contact the Attorney General's Opinions Committee.

 

RQ-0730-GA

8/7/08 : Commissions State Representative Joe Driver (R-Garland), Chairman of the House Committee on Law Enforcement, has requested an opinion from the Attorney General on the authority of a county attorney to issue commissions for reserve or nonpaid peace officers.

If you would like to express your opinion on this matter, please contact the Attorney General's Opinions Committee.

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