Weekly Case Summaries: December 19, 2008

Court of Criminal Appeals

Ex parte Reed

12/17/08 : Cite No. AP-75,693 : Brady violation

Issue

Did the State commit a Brady violation in the defendant's capital murder trial when the State received additional witness statements following the defendant's conviction?

Holding

No. This evidence was provided after the defendant's trial so the State did not possess the evidence prior to or during trial, as required by Brady. The defendant also did not meet the requisite gateway standard of innocence. Under Code of Criminal Procedure art. 11.071 §5(a)(2), the defendant did not show that it was more likely than not that no reasonable juror would have convicted him in light of the new evidence not presented at trial.
Read opinion.

Concurrence

Presiding Judge Keller wrote that the Court could have resolved the case by deferring to the trial court's original findings and she expressed concern with the majority's language that would allow the Court not to defer to the trial court in a "rare exception" without setting out what would create that exception.
Read concurrence.

Concurrence

Judge Price concurred to take issue with Presiding Judge Keller's concurrence, saying that the Texas Constitution and the Legislature have vested the Court with original jurisdiction over writs, therefore it would be an abandonment of the Courts' constitutionally and statutorily assigned authority to blindly defer to the trial court's findings in every instance.
Read concurrence.

Commentary

The facts in this case are quite lengthy, so much so that it may be difficult for anyone to find any guidance from this decision, unless you have a similar Brady claim, or unless you handle post-conviction writs of habeas corpus on a regular basis. But Judge Keller's warning in her concurring opinion should be taken seriously. The language in the majority's opinion about not providing deference to the trial court's findings is dangerous. I know that the majority states this lack of deference will occur only in a very rare case. But you know what the typical defendant will claim--that he (surprise!) has that rare case. With little guidance from the majority as to what would trigger that rare case of lack of deference, we will have to litigate that in future cases. I guess the best way to avoid this is, when preparing your proposed findings of fact, make sure that they are clearly supported by the record.

Ex parte Johnson

12/17/08 : Cite No. AP-76,062 : Pre-sentence Jail Credits

Issue

Did the trial court err when - in agreement with the Parole Division - it did not credit the defendant for the time he spent released on mandatory supervision, when he reached the midpoint of the supervision period?

Holding

Yes. The defendant began serving his sentence on the day it was pronounced. He did not begin serving his sentence before the pronouncement just because he received pre-sentence jail credits. Even though he was serving a sentence described by Government Code §508.149(a) when he was returned to prison, that alone does not mean that he was ineligible for the time credits.
Read opinion.

Commentary

This is a very brief opinion. But the important thing to remember is that the controlling statute, and the opinions construing them are remarkably confusing. Nevertheless, the statute is read to give a defendant credit for jail while he is released on mandatory supervision. That is apparently the Legislature's intent because there are bills introduced to expand the effect of the statute.

Kirkpatrick v. State

12/17/08 : Cite No. PD-0873-07 and PD-0874-07 : Subject Matter Jurisdiction

Issue

Did the district court have subject-matter jurisdiction of forgery-related offenses when the offenses were charged as misdemeanors?

Holding

Yes. Although the indictment properly charged a misdemeanor but lacked an element necessary to charge a felony, the defendant potentially could have been charged with a felony offense and the indictment's return in a felony court put the defendant on notice that the State intended to charge a felony offense.
Read opinion.

Commentary

The State Prosecuting Attorney's Office did a remarkable job in arguing the State's position in this case. But the facts of this case still remind us of the great need to read our charging instruments very carefully to make sure they include all of the elements necessary to allege the charge that we want the charging instruments to allege.

Martinez v. State

12/17/08: Cite No. PD-1917-06 : Miranda warnings

Issue

Did the officers' failure to Mirandize the defendant before his initial interrogation and polygraph examination render later Miranda warnings ineffective and make his second statement inadmissible?

Holding

Yes. The officers should have applied curative measures at the beginning of the second interview, or at the very least, when they referred to the defendant's first interrogation. Some curative measure would have allowed the defendant to recognize that the questioning had taken a different path.
Read opinion.

Concurrence

Judge Price concurred to point out that this case was tried more than a year before the United States Supreme Court issued its opinion in Seibert and that this defendant's brief to the court of appeals was filed one week before that decision. Therefore, the court of appeals' resolution of the only claim on appeal was hindered by a record developed in anticipation of a Supreme Court opinion, rather than based on already-established Supreme Court precedent.
Read concurrence.

Dissent

Judge Hervey's dissent would reject the defendant's claim that despite receiving Miranda warnings before he voluntarily made a custodial videotaped statement to the police, the warnings somehow failed to "adequately and effectively" advise him of his rights because he failed to adequately raise that issue at trial, and because his claim is inadequate under both the plurality and concurring opinions issued in Seibert.
Read dissent.

Commentary

The holding in this case is made a little difficult to swallow because it attempts to apply the badly fractured decision of the United States Supreme Court in Missouri v. Seibert. Who knows? Maybe the Supreme Court will be interested in reviewing this case in order to clear some of the confusion that has arisen from the various different opinions that arose out of Seibert. in the meantime, we should be instructing all of our officers to cease a strategy of talking with and questioning a suspect without that suspect ever having first been informed of his rights under Miranda v. Arizona and Article 38.22 of the Code of Criminal Procedure.

Roberts v. State

12/17/08: Cite No. PD-1054-07 : Transferred Intent

Issue

Did the defendant have the specific intent required under Penal Code §6.04(b)(2) to commit capital murder when he shot a pregnant woman and her 2-year-old, killing both, along with the unborn baby the woman was carrying?

Holding

No. If the defendant did not know that the victim was pregnant, he could not form a separate specific intent to kill the fetus. Neither does the intent to kill the toddler, even if proven, transfer to the fetus.
Read opinion.

Concurrence

Judge Price wrote separately, emphasizing that a defendant who intentionally or knowingly caused the death of his intended victim should not also be liable for the murder of another victim whom, by the same act, he also killed, albeit inadvertently. At most, the inadvertent homicide would be manslaughter.
Read concurrence.

Dissent

Presiding Judge Keller dissented. She wrote that from a sufficiency of the evidence perspective, the correct question was not whether the defendant's culpable mental state with respect to the woman could be transferred to her unborn child. She felt that the appropriate question was whether the defendant's culpable mental state with respect to anyone can be transferred to the unborn child and would answer that question, "yes."
Read dissent.

Dissent

Judge Hervey also dissented, writing that the issue was whether transferred intent principles apply in a multiple-victim capital-murder prosecution when the defendant murders his intended victim and an unintended victim (in this case a mother and her unborn child). The Court settled this issue several years ago when it interpreted §6.04(b)(2) to allow the application of transferred intent principles.
Read dissent.

Commentary

This decision does not make any sense. A witness testified that she heard the victim scream, "Not my baby. Not my baby," as the defendant prepared to shoot the pregnant victim. The majority states that the victim must have been talking about the victim's two-year-old daughter who was also present at the time. Why was the jury required to believe that? It was certainly reasonable for the jurors to infer that the victim was indeed referring to her two-year-old daughter, as the majority claims, but it was also reasonable to infer--with the evidence being viewed in the light most favorable to the verdict--that the victim was referring to her unborn baby. And the majority spends so much time wondering whether the defendant's intent to kill the two-year-old daughter could be transferred to the unborn child. As noted by the dissenting opinions, the majority should have spent much more time on whether the defendant's intent to kill the adult mother transferred to her unborn child (a permitted victim under the Penal Code). Why cannot a defendant commit multiple acts of homicide with only one act?

Courts of Appeals

Banks v. State - 5th COA

12/11/08 : Cite No. 05-05-01050-CR thru 05-05-01056-CR : Duties of Court Reporter

Issue

When the reporter's record has been lost or destroyed through no fault of appellant, can the State salvage its multiple convictions by claiming that the duties of a court reporter under Rule of Appellate Procedure 13.6 are trumped by the duties established in Government Code §52.046(a)(4)?

Holding

No. Under the Government Code, a court reporter is required upon request to preserve the notes of a trial for three years from the date on which they were taken. The record does not show any request by the defendant until years after the time limit had expired, so the court reporter's duty under that statute to retain the record for three years did not apply. However, Rule 13.6 does apply and the court reporter was under the obligation to file the untranscribed notes with the district clerk to be retained for 15 years in accordance with that rule. Therefore, the fact the records cannot be found in the district clerk's office either because the court reporter failed to file them or the records have been lost while in the custody of the district clerk's office is not the fault of the appellant, who is entitled to relief. Read opinion.

Commentary

In this case, the defendant had been granted an out-of-time appeal, the court reporter had died, and her notes could not be located. It might be helpful if court reporters were required to keep their notes at a central location, so that it would be less likely that those notes would be lost or destroyed. The legislative session is coming up.

Walters v. State - 6th COA

12/08/08 : Cite No. 06-05-00014-CR : Exclusion of Recorded Conversation

Issue

Did the trial court err in excluding a recording of the defendant's telephone conversation with a sheriff's deputy immediately following the defendant's murder of his brother?

Holding

Yes. The defense was built on the long-standing feud between the defendant and his brother, the brother's past violent and threatening behavior, and the defendant's subsequent reasonable fear of attack from his brother. That defense acquired whatever credibility it may have had based on the defendant's behavior and his state of mind at or near the time of the shooting. His statements to the deputy during a telephone call immediately following the incident provided the best evidence of the defendant's vocal inflections, tone of voice, and reactions.
Read opinion.

Commentary

When a defendant attempts to enter his own statements into evidence, it is important to listen carefully to the basis upon which he wishes to introduce those statements. In this case, the statements were offered to rebut an allegedly false impression created by the State by the introduction of other statements made by the defendant. The defendant's state of mind and the rule of optional completeness are other bases that might support the admission of a defendant's otherwise inadmissible statements. Do not just object on the basis that the statements constitute "self-serving hearsay" without first considering the defendant's argument. This case was reversed because the statements that the defendant sought to admit went to the basis for his whole defense.


Attorney General Opinions

Request from State Representative Tony Goolsby - RQ-0765-GA

May a municipality or county enact breed-specific legislation with regard to dogs within its jurisdiction?
Read request.

 

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