Weekly Case Summaries: August 15, 2008

Texas Courts of Appeals

Kennedy v. State - 3rd COA

8/13/08 : Cite No. 03-07-00134-CR : Guilty Pleas

Issue

Did the defendant waive his right to appeal the court's denial of his motion to suppress by pleading guilty?

Holding

Yes. A vaild plea of guilty or nolo contendre waives the right to appeal when the guilty judgment is independent of, and not supported by, the error. Here, none of the evidence admitted over the defendant's motion to suppress proved any of the elements of the offense the defendant pled guilty to and on their own do not establish his guilt for the crime alleged.

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Commentary

This was a plea without an agreed recommendation from the State as to punishment (there was no plea bargain agreement); therefore, T.R.A.P. 25.2(a)(2) is not implicated. The difficulty with this case--not mentioned by the court of appeals--is whether the defendant's plea of guilty was voluntary. When making his plea, the defendant was under the assumption, which was shared by the State, that he would be allowed to contest the trial court's ruling on his motion to suppress on appeal. Moreover, both the defendant's and the State’s arguments on appeal assumed that the defendant had the right to contest the trial court’s ruling, and neither party mentioned the concept of waiver. If the defendant entered his plea of guilty with the belief that he was going to be permitted to appeal the trial court's ruling, the plea could be held to be involuntary later. When your defendant is entering a plea of guilty, make sure that he is not laboring under a mistaken belief that he can appeal the trial court's ruling on a motion that he has pursued.

 

Reyes v. State - 4th COA

8/6/08 : Cite No. 04-07-00203-CR : Outcry Witness

Issue

Was admission of the outcry witness's testimony valid even though she was the second adult the victim told about the assault?

Holding

Yes. To qualify as an outcry statement, the statement must be more than a general allusion to sexual abuse; the child must tell the how, when, and where of the assualt. Here, the child's first statement to a social worker did not describe the alleged offense in great detail but instead was a general confirmation of the abuse. Therefore, the child's later statement that contained much more detail and specifics about the assault wasproperly admitted.

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Commentary

This is a typical case involving the sexual abuse of a child with typical facts and typical allegations by the defendant. This should be helpful if you prosecute child sex abuse cases, especially in the San Antonio Court of Appeals district. One of the State's witnesses--a doctor--testified that the victim's physical condition was consistent with the abuse that she later described. The doctor also explained why a delay in reporting the abuse is not uncommon. But the doctor did not testify that the victim was abused or that she was telling the truth.

 

Wood v. State - 4th COA

8/13/08 : Cite No. 04-07-00372-CR : Necessity

Issue

Was the defendant entitled to a necessity instruction in her manslaughter trial although she did not admit to the charged conduct?

Holding

Yes. The court withdrew its previous opinion that held the defendant was entitled to a necessity instruction but there was no harm. In this opinion, the court again found that the defendant was entitled to a necessity instruction because there was enough evidence from other sources that the defendant acted intentionally. However, the court found harm because the defendant admitted to intentionally acting and the jury had no instruction on necesssity; therefore, the jury had to convict the defendant.

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Commentary

It is always very dangerous to deny a defendant a requested necessity instruction, even in homicide cases when you would expect a defendant to be relying only upon self-defense. This case stands for the proposition that, if any evidence can be construed to reveal that the defendant admitted to the charged offense, then the defendant should be entitled to the requested instruction if the evidence raises it. The Court of Criminal Appeals needs to clarify to what degree a defendant must admit to the charged offense in order to be entitled to a requested necessity instruction.

 

Guerrero v. State - 4th COA

8/13/08 : Cite Nos. 04-07-00583-CR & 04-07-00584-CR : Double Jeopardy

Issue

Was the defendant's protection against double jeopardy violated by being convicted of of possession, possession with intent to deliver, and manufacture of the same quantity of methamphetamine?

Holding

Yes. The conviction for possession should be vacated because it is a lesser-included offense of possession with intent to deliver. In addition, possession with intent to deliver should be vacated because the legislature did not intend for individual steps taken toward a single sale of a single quantity of a controlled substance to constitute more than one violation of Health & Safety Code §481.112(a). Therefore the defendant may be prosecuted only once for the same drug sale, and the most serious offense of manufacturing should stand.

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Commentary

You may be thinking that, if a defendant manufactures an illegal substance and then subsequently possesses that substance with the intent to deliver, has he not committed two separate offenses? The two offenses may not be the "same offense" for the purposes of Blockburger. But the decision appears to be a faithful following of precedent from the Court of Criminal Appeals. Think of the situation in which indecency with a child by contact goes on to lead toward aggravated sexual assault of a child. The State cannot get a conviction for both offenses in that situation because the indecency case has been "subsumed" by the aggravated sexual assault case. Similarly, if a manufacturing offense goes on to lead to possession of the same substance by the same defendant, the State cannot get a conviction for both offenses. The analogy is not perfect, but it is similar. The Court of Criminal Appeals may want to take a look at this issue nevertheless.

 

 

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