Weekly Case Summaries: November 7, 2008

Texas Courts of Appeals

Garza v. State - 1st COA

10/30/08 : Cite No. 01-07-00740-CR : Mistrial / Double Jeopardy

Issue

Did the trial court err when, after the jury was sworn and impaneled, it sua sponte declared a mistrial following the hospitalization of one juror and the discovery that another would be unavailable later in the week?

Holding

Yes. The defendant's retrial for driving while intoxicated is barred by double jeopardy. The trial court could have considered the less-drastic alternative of proceeding to trial with five jurors upon receiving a written waiver from the State and the defendant.
Read opinion.

Commentary

The court of appeals prevents a retrial because it thinks the record "suggests" that the State would have agreed to proceeding with five jurors. Excuse me? The only thing reflected in the record is that the State withdrew its motion for mistrial. That might have been based on the hope that a trial with all six jurors could reconvene. Surely an appellate court can't simply guess how the State would have responded before preventing the State from retrying the defendant. Still, once again, judges learn that they proceed sua sponte for mistrial at great risk. This defendant may have won the appellate lottery.

Cantrell v. State - 7th COA

10/29/08 : Cite No. 07-07-0472-CR : Vehicle as a Deadly Weapon

Issue

Was the evidence legally sufficient to show the use of the car as a deadly weapon in the defendant's DWI when he did not violate any traffic laws and was traveling in little to no traffic?

Holding

No. Testimony from the officer who made the stop and from the DPS officer who performed the standard field sobriety tests indicated that the defendant did not violate any traffic laws and was not driving dangerously. There was no testimony about any other vehicles on the road and only a general observation that traffic was moderate at the time of the stop. This evidence posed only a hypothetical risk to the driving public and did not rise to the level of using a deadly weapon.
Read opinion.

Commentary

Take note of the re-affirmed legality of a blood search warrant. Likely no conviction would have occurred without the .09 result. As to the car as a deadly weapon, well, you gotta have something more than the theoretical danger of a drunk driver. Need a near miss, weaving into oncoming lane, etc. Good effort, though.

Llamas v. State - 7th COA

10/30/08 : Cite No. 07-07-0281-CR : Chain of Custody

Issue

Did the State meet the evidentiary predicate to admit a surveillance video duplicated onto a DVD without establishing a full chain of custody?

Holding

Yes. Testimony was heard regarding how the data came to be captured on the hard drive of the computer at the scene, how the data was transferred from the hard drive to a CD- Rom, and when and how the police took possession of the CD-Rom. The officer who transferred the data to the DVD testified that it was an exact copy of the data contained on the CD-Rom.
Read opinion.

Commentary

Since when do you have to establish the "chain of custody" of an image -- regardless whether it is a photograph or moving image, analog or digital? This defendant is confused by the transition to the digital world. But the court of appeals recognizes that the Rules of Evidence, as to authentication of an exhibit, simply require someone with knowledge to say that the duplicate is a true and accurate copy of the original. That's it, absent some indication of tampering. Kind of cool to see that the images went from video to CD to DVD. Aren't we getting modern?

Texas Attorney General Opinions

Opinion No. GA-0677

Issue

May an individual who is both a retired state employee and an active state employee with a different state agency receive two separate state contributions under the group benefits plan offered by the state?

Holding

No. If an individual is receiving a state contribution as an annuitant under the group benefits plan created by Ch. 1601 of the Insurance Code, she may not also receive a state contribution as a current employee under Ch. 1551. However, that person may elect to receive her contribution either as an active employee or as an annuitant.
Read opinion.

Texas Attorney General Opinion Requests

Opinion Request from Senator Jeff Wentworth - RQ-0752-GA

Does Hidalgo County's execution and performance of a contract with a private law firm for the collection of delinquent fines, fees, and court costs arising from its justice, county, and district courts interfere with or abrogate the authority of the Hidalgo County Criminal District Attorney with respect to either the pending or adjudicated criminal cases referred to the private firm for collections assistance?
Read opinion request.

Opinion Request from Delta County - RQ-0753-GA

May a sheriff refuse to provide certain documents related to his asset forfeiture fund when their production is requested by a county treasurer/auditor?
Read opinion request.

Anyone with input on these issues may contact the Attorney General's Office.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected] In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum. The U.S. Supreme Court and the Fifth Circuit have not released any relevant opinions this week.