Weekly Case Summaries: December 5, 2008

Court of Criminal Appeals

Bartlett v. State

11/26/08 : Cite No. PD-1461-07 : Comment on Weight of Evidence

Issue

Did the trial court commit a jury-charge error when it singled out evidence of the defendant's refusal to take a breath test in the charge?

Holding

Yes. A court is allowed to admit evidence that a defendant refused to take a breath test, but there is no statutory language directing a jury to attach any special weight or significance to that evidence. Texas law does not establish any presumption in a DWI case stemming from a defendant's refusal to take a breath test. With no presumption, the trial court committed error in instructing the jury on inferences that it could or could not have drawn from the evidence presented to ultimate or elemental facts.
Read opinion.

Concurrence

Justice Johnson wrote that a trial court should use language in the jury charge that tracks the language of the statute, but should not, by language in the charge, appear to accentuate the importance of a piece of evidence. Discussion of the breath test refusal and a lack of discussion about other evidence raised a high probability that the discussion affected the weight given to that piece of evidence by the jury.
Read concurrence.

Dissent

Justice Hervey wrote in her dissent that under the plain language of Code of Criminal Procedure article 36.14, she would have decided that the neutral instruction in this case, even though it may have noted the evidence of the defendant's refusal to take the breath test, did not comment on the weight of that evidence.
Read dissent.

Commentary

This decision notes that there are only three types of situations in which a comment on the weight of the evidence can be permissible. This holding goes against the State, but it is consistent with other cases, which have gone against the defendant, and which have held that similar instructions constitute impermissible comments on the weight of the evidence.

Williams v. State

11/26/08 : Cite No. AP-75,541 : Mental Retardation

Issue

Was the jury instruction on mental retardation inconsistent and therefore harmful to the defendant in his trial for capital murder?

Holding

No. The jury instruction appropriately tracked the definitions of mental retardation provided by the American Association on Mental Retardation and in Briseno. Extensive testimony was presented by former teachers, employers and psychiatrists and the parties' closing jury arguments made clear that the issue was litigated before the jury.
Read opinion.

Concurrence

Justice Womack wrote to emphasize that the Court was not asked to decide whether the instruction on mental retardation violated Code of Criminal Procedure article 36.14, which requires the trial judge to deliver a written charge setting out the law and not summing up the testimony, [or] discussing the facts.
Read concurrence.

Commentary

This decision should be very helpful to you if you have to try a death penalty case in which the defendant has raised a mental retardation claim. The facts are extremely thorough because the issue was heavily litigated and hotly contested. The court pretty much approves of the instruction that was given, so it could provide at least a foundation for similar mental retardation instructions in the future. That is assuming that the Legislature does not finally issue its own rules as to how to deal with mental retardation claims in death penalty cases. The court notes that it is not constitutionally required for a jury to decide this issue, but that is probably the best way to handle it.

Ex parte Webb

11/26/08 : Cite No. AP-75,804 : Finality of Conviction

Issue

Was the defendant's death penalty conviction final when the Court of Criminal Appeals refused his out-of-time petition for discretionary review (PDR) after previously granting him the right to present it?

Holding

Yes. A conviction from which an appeal has been taken is final for the purposes of Code of Criminal Procedure article 11.07 when the clerk of the court of appeals issues that court's mandate. When the clerk of the Court of Criminal Appeals issued a mandate to the court of appeals that the defendant's appellate process had been reinstated, that action held the court of appeals' mandate temporarily dormant until the higher court could dispose of the defendant's out-of-time PDR. The appellate court was not required to recall its mandate or have its clerk issue a new mandate once the higher court refused the PDR.
Read opinion.

Commentary

This holding is consistent with other holdings in similar cases. A conviction in which an appeal has been taken is not final until the court of appeals has issued its mandate to the trial court. This holding does present a problem when a defendant seeks to file an out-of-time petition for discretionary review, but I suppose that it would not be often that a defendant would attempt to file a writ of habeas corpus while simultaneously attempting to pursue an out-of-time petition for discretionary review.

Tucker v. State

11/26/08 : Cite No. PD-0742-07 : Deadly Weapon

Issue

Was the evidence legally sufficient to show that the object that caused the victim's wounds was a deadly weapon?

Holding

Yes. While the use of a deadly weapon cannot be inferred solely from a victim's injuries, a jury could still conclude that the defendant used a knife as a deadly weapon even when the knife was not introduced into evidence. The victim had a stab wound going all of the way through her arm, which could have severed a major blood vessel or nerve, placing the victim's life, or at least the use of her arm, in jeopardy. In addition, a stab wound to the back of the victim's neck near her spine could carry at least some potential for serious bodily injury, paralysis, or death. Two police officers, one from the homicide division and both with lengthy experience, testified that the injuries were inflicted with a deadly weapon.
Read opinion.

Commentary

This decision confirms what most of us already knew--that practically anything can be proven by circumstantial evidence. You do not absolutely have to have expert medical testimony for a knife or other object to be found to be a deadly weapon. And when you have stabbed a woman in her neck near her spine and stab that same woman in her arm with such force that the knife goes all the way through her harm--you have used a deadly weapon.

Williams v. State

11/26/08 : Cite No. PD-0470-07 : Tampering with Evidence

Issue

Did the title of the investigation and the evidence destroyed need to match in an indictment alleging tampering with or fabricating physical evidence under Penal Code §37.09(a)(1)?

Holding

No. As long as the offender destroyed something with intent to impair its availability as evidence in an investigation that he knew was in progress, the elements of the offense were satisfied.
Read opinion.

Concurrence

Justice Womack concurred with the Court's statement that "destroy" is distinct from "alter," and the two may not be mutually exclusive. When something is destroyed, it has also been altered.
Read concurrence.

Commentary

This may turn out to be the seminal decision in tampering cases. It is especially important because it disagrees with (if not outright overruling) other appellate court decisions that have been far too technical in their treatment of tampering cases in the past.

Texas Courts of Appeals

Carmen v. State - 1st COA

11/20/08 : Cite No. 01-07-00069-CR : Self-Defense Instruction

Issue

Was the defendant's request for a self-defense instruction enough to alert the trial court that he was requesting the justification defense of deadly force in defense of one's person?

Holding

Yes. The defendant's objection to the omission of self-defense from the charge was specific enough to place the trial court on notice that he was requesting the charge of deadly force in defense of one's person. Here, the defendant was the victim's target of frequent abuse and starvation which led to multiple CPS interventions, he had been repeatedly threatened with death by the victim, and he had indicated to others that he was afraid of the victim. The request for self-defense could only have meant a request for an instruction concerning self-defense with use of a deadly weapon or deadly force, or deadly force in defense of one's person.
Read opinion.

Dissent

Justice Taft wrote separately to dissent, comparing the facts of this case to those of Bennett v. State. Self-defense and deadly force in defense of person are separate defenses, outlined in separate sections of the Penal Code. A request for the former alones does not alert the trial court that the latter is being requested as well.
Read dissent.

Commentary

Time and time again courts have made it clear that an objection to a trial court's charge or a request for a particular instruction will be very liberally construed to allow for the preservation of error on appeal. If you hear of such an objection or request, make sure that your trial judge does not ignore it.

Jabari v. State - 1st COA

11/20/08 : Cite No. 01-07-00922-CR : Brady

Issue

Did the State have a duty to produce evidence for which there was no proof that the evidence ever existed?

Holding

No. Where a witness testified that she thought the defendant had taken a drink from a glass, an officer did not recall seeing the glass at the scene, no glass was taken into evidence, and no evidence was presented that the State ever actually possessed and/or withheld the glass, the defendant failed to meet his burden in showing that a Brady violation occurred.
Read opinion.

Commentary

This conviction was largely upheld because the facts of the case were similar to extraneous offenses that were admitted into evidence. If you need a decision to support the admissibility of extraneous offenses in a sexual assault prosecution, you should give this opinion some strong consideration.

Loun v. State - 6th COA

11/20/08 : Cite No. 06-07-00174-CR : Out of State Witness

Issue

Did the trial court commit harmful error when it admitted the prior recorded testimony of an eyewitness during the punishment phase of the defendant's murder trial when there was debate as to whether the now out-of-state witness was unavailable under Rule of Evidence 804(a)(5)?

Holding

Yes. The State must make some good-faith attempt to produce the witness at trial or to show that any efforts would have been futile. The State argued that it would have been too expensive to bring the witness in from out of state and in the alternative that it should not be required to subpoena the witness because a subpoena does not reach across state lines. Because there is no evidence of any good-faith effort on the State's part to secure the witness, the trial court abused its discretion by admitting the prior recorded testimony.
Read opinion.

Commentary

This issue arose because the State failed to pursue an out-of-state subpoena. The decision should be helpful in reminding us that unavailability can be difficult to prove, especially when we wish to introduce hearsay from the allegedly unavailable witness. The punishment in this case was also reversed because the trial court failed to instruct the jury in accordance with the statutorily required parole charge. I thought that judges had stopped failing to give that instruction, but I guess that I was wrong.

Texas Attorney General Opinions

Requests for AG Opinions

Request from Tarrant County Criminal District Attorney RQ-0760GA

Does the Texas Youth Commission have the authority under Texas Administrative Code Title 37 §87.85(g)(3) to require registration as a sex offender, notwithstanding that provision's conflicts with the juvenile court's authority under article 62.352(b)(1) and (c) of the Code of Criminal Procedure, when the juvenile court has opted to exercise its authority to defer a decision on registration?
Read request.

Request from Kerr County Attorney RQ-0761GA

May a non-profit organization sponsor a combination dinner/poker tournament? May a privately leased community building qualify as a "private place"?
Read request.

Request from Brazos County Attorney RQ-0762GA

On a plea of guilty or nolo contendere or on a finding of guilt on the charge of failure to attend school under Education Code §25.094, may a justice of the peace defer further proceedings, place the individual on probation, and enter an order requiring the individual to wear an electronic monitoring device as a reasonable condition of the deferral under Code of Criminal Procedure article 45.051(b)(10)?
Read request.

Request from Kendall County Attorney RQ-764GA

Can a justice of the peace in a county without a medical examiner be required to amend the death certificate of a deceased person to reflect homicide as the cause of death, where the justice of the peace of that county had previously determined, following a full inquest and autopsy, that the cause of death was suicide?

Does a county court at law judge have the authority to order the Vital Statistics Unit of the Texas Department of State Health Services, a non-party, to "take all actions necessary to amend the death certificate" of a deceased person to reflect homicide as the cause of death?

Does a county court at law judge's order requiring the Texas Department of State Health Services to "take all actions necessary to amend the death certificate" have any force or effect over the actions of the justice of the peace responsible for conducting the inquest?
Read request.

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

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