Weekly Case Summaries: January 9, 2009

Texas Courts of Appeal

Garza v. State - 1st COA

12/18/08 : Cite No. 01-07-00740-CR : Sua Sponte Mistrial

Issue

After the jury was sworn and impaneled, did the trial court improperly declare a mistrial sua sponte following the hospitalization of one juror and the discovery that another would be unavailable later in the week?

Holding

Yes. After the State filed a petition for review to the Court of Criminal Appeals, the court of appeals withdrew its original opinion and judgment and replaced them with this decision to respond to a new argument in that petition. In response to the State's argument that Ballew v. Georgia requires six jurors to hear a misdemeanor case, the court ruled that Ballew does not apply because Texas law conforms to the federal constitutional requirement that misdemeanor juries be composed of six people. Nothing in Ballew suggests that a defendant may not knowingly waive his right to a jury of six people if he makes a written waiver in person, in open court, and with the consent and approval of the court and the prosecuting attorney, as happened here. This defendant asked the court to proceed to trial with fewer than six, where Ballew requested that the court not proceed. Therefore, the trial court erred in granting a mistrial for manifest necessity, and double jeopardy prevents any further prosecution of this defendant for the alleged offense of driving while intoxicated.
Read opinion.

Commentary

In general, a judge will do the least harm in such situations by simply following the defendant's wishes. On the other hand, how many jurors can the defendant surrender before there is no "jury"? Could the defendant force the court to proceed to trial with a single juror remaining? Although in this case the state did not press for the mistrial, would it have made a difference if the state had demanded that the state's right to a full jury trial be satisfied by picking another six jurors? On the other hand, given that it was a single officer, one-day misdemeanor DWI trial, the case likely could have been reset for six months without any real harm to either side. This case is headed for PDR.

Ex parte Ellis; Ex parte Colyandro - 3rd COA

12/31/08 : Cite No. 03-05-00585-CR and others : Recusal

Issue

Should an appellate judge have recused himself when prior to becoming a judge he had filed documents in a civil suit containing assertions that were allegedly prejudicial to the State concerning the same or similar conduct at issues in this criminal case?

Holding

No. Tangential statements filed by the judge on behalf of his previous client who was not a party to and was not alleged to have been involved in the subject matter of the case now before the court were insufficient to warrant his recusal. The State's motion seeking recusal was also untimely because it was not filed until after the court's original opinion was released.
Read opinion.

Commentary

Politics and intrigue in the court of appeals. This issue in this case is related to the prosecution of Tom Delay, former Republican congressman indicted in Travis County for alleged money laundering through suspect campaign fundraising methods. Former Travis County DA Ronnie Earl sought to recuse the author (and Republican judge) because of an opinion that could lead to the dismissal of that indictment. Setting aside the politics and intrigue, the opinion does a good job of discussing the reality facing lawyers who run for judge and how they separate their prior advocacy for a client from their new job of impartiality. For more juicy intrigue, read the dissenting opinions authored by the two Democrat judges.
Read Justice Henson's dissent
Read Justice Patterson's dissent.

Wilson v. State - 4th COA

12/17/08 : Cite No. 04-07-00737-CR : Invalid Confession

Issue

Did the trial court improperly deny the defendant's motion to suppress based on the defendant's argument that the police violated the law to obtain his confession?

Holding

Yes. It was a violation of Penal Code §37.09 (Tampering With or Fabricating Physical Evidence) for the interrogating officer to fabricate a forensic report and use it to obtain the defendant's confession in this capital murder case. Therefore, the confession was obtained in violation of state law and must be excluded under Code of Criminal Procedure Art. 38.23.
Read opinion.

Commentary

A shockingly bad decision. "Statements" are admissible if they are voluntary and comply with article 38.22, CCP. The exclusionary rule, contained in the sequentially-numbered article 38.23, CCP, focuses on "evidence", meaning illegally obtained PHYSICAL evidence. This defendant's confession in this case is clearly a constitutionally voluntary, true and reliable statement of guilt that was recorded in compliance with article 38.22, not an item of physical evidence obtained through some illegality. PDR, please! This is a very significant opinion that, if left standing, will lead to tremendous disruption of proper police interrogation. How long before any misstatement of fact by an interrogating officer is an illegality tainted a confession? Who in the world do they think the police are questioning, church deacons?

Subrias v. State - 4th COA

12/17/08 : Cite No. 04-07-00788-CR thru 04-07-00791-CR : Motion to Suppress

Issue

Did the trial court err incorrectly deny the defendant's motion to suppress the results of two DWI blood draws taken after the defendant rolled her vehicle, injuring her passengers and others?

Holding

No. The defendant's claim that she was not under arrest at the time of the first blood test, as required under Transportation Code §724.012, and that the second test was invalid because the statute only permits one blood draw, were irrelevant because she consented to the tests taken at the request of an officer.
Read opinion.

Commentary

If the defendant pleaded guilty, why is the court of appeals discussing the other issues raised regarding the admission of expert testimony on intoxication? And, how did the defendant get only 10 years in prison for driving drunk and killing two people and seriously injuring two other people? As for the blood draw issues, it's kind of amazing that there were THREE blood draws at the hospital. What is that, a couple of pints? Heck, some of us are tickled pink with one breath test, much less multiple blood samples.

Stephens v. State - 7th COA

12/29/08 : Cite No. 07-07-0434-CR : Juror Disability

Issue

Did the trial court abuse its discretion when it found a juror disabled and continued with only 11 members?

Holding

No. The trial court was able to see and hear the juror's reactions and demeanor. It could have reasonably determined that hearing further evidence in the case would have created an emotional state that would have prevented her from fully and fairly performing a juror's function. Therefore, the trial court could proceed with only 11 jurors, as permitted under Code of Criminal Procedure Art. 36.29.
Read opinion.

Commentary

This case has a good discussion of how a seeming bias or prejudice, discovered after a juror has been sworn, can also be an emotional disability that would hinder the juror from performing her duty. The key is that the judge made a good record of the juror's emotional state and connected it to the juror's statement that she could not serve.

Ex parte Doster - 10th COA

12/31/08 : Cite No. 10-08-00276-CR : Interstate Agreement on Detainers

Issue

Was the capital murder defendant entitled to relief when his case did not go to trial within the 120-day window required by the Interstate Agreement on Detainers (IADA)?

Holding

Yes. After extraditing the defendant back from Alabama, the State did not demonstrate good cause for the delay nor did it show that setting the trial after the 120-day period was reasonable or necessary. The Texas case must be dismissed with prejudice and the defendant returned to Alabama (where he has already been sentenced to death).
Read opinion.

Dissent

Chief Justice Gray dissented. He wrote that the IADA did not apply to this defendant and that even if it did, caselaw still supports the State's argument. He would have held that by agreeing to a trial date well after the 120-day period in which the defendant would otherwise have been tried under the IADA, the defendant waived the benefits of the IADA.
Read dissent. 

Commentary

Chief Justice Gray may have another PDR-winning dissent on this one. There is no evidence in the record that IADA was even invoked. And defendant even agreed to a trial date beyond the IADA deadline. One would hope that the ability to bring a capital murderer to justice would not evaporate with such gamesmanship. But, then again, the defendant may be executed in Alabama before this is over.

Lovill v. State - 13th COA

12/22/08 : Cite No. 13-07-00529-CR : Equal Protection Claim

Issue

Did the trial court improperly find that the pregnant defendant did not sustain her burden of proof in showing an Equal Protection / selective prosecution violation involving a modification of her probation that sent her to a SAFP facility?

Holding

Yes. The trial court should have required the State to respond to the Equal Protection claim and should have determined the appropriate level of scrutiny. The court also should have made specific findings of fact and conclusions of law to set out its ruling on whether the State met its burden of proof to justify its allegedly discriminatory treatment of the defendant based upon her status as a pregnant woman.
Read opinion.

Commentary

This is one messed up opinion. The court of appeals suggests there could be some constitutional violation present when a probation department acts to protect a fetus by placing the drug-abusing mother into inpatient treatment. How hard is it to see the difference between a male or nonpregnant female who continues to abuse drugs (thereby only harming themselves) and a pregnant female who continues to abuse? This is a stunningly twisted bit of legal manipulation. It must be a PDR kind of week.

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