The Prosecutor, January-February 2009, Volume 39, No. 1

Court of Criminal Appeals update

2009

Questions

1

Carlos Landrian hosted a Christmas party at the clubhouse for the Camino Real Apartments. Luis Brizuela went to the party to pick up his cousin who worked at the apartment complex. Brizuela had a couple of beers and went outside when he got a call. As the party ended, Landrian and a drunk “party-crasher” got into a fight outside. At some point, Landrian threw a broken bottle at or in Brizuela’s direction. Glass from that bottle hit Brizuela and caused him to lose his left eye.

The State charged Landrian with the aggravated assault of Luis Brizuela by either 1) intentionally or knowingly causing bodily injury by using a deadly weapon, a bottle, or 2) recklessly causing serious bodily injury by throwing a bottle in his direction. Should the jury be charged in the conjunctive or disjunctive?

    ______ conjunctive    
    ______ disjunctive

2

Maria Del Carmen Hernandez, along with Cassandra Leffew and Dolores Rodriguez, kidnapped and murdered Robert Fernandez, the father of Hernandez’s youngest son. Hernandez, Leffew, and Rodriguez had previously met at a women’s shelter, and Hernandez had moved in with Leffew. Leffew thought that Mr. Fernandez had assaulted her daughter, and the woman convinced her friends to help her confront him. Leffew drugged Fernandez with alcohol and prescription drugs to get him to confess to assaulting her child. He maintained his innocence and eventually passed out, at which point the three women tied his hands and feet and put him in the trunk of a car. Hernandez and Rodriguez dropped Leffew off at Leffew’s home. Then, Hernandez and Rodriguez went to Rodriguez’s house. According to Hernandez, Rodriguez told her to smother Fernandez by putting a bag over his head. When that did not work, Rodriguez strangled Fernandez with pantyhose and drove away with the body.

At trial, Hernandez called two inmates to testify that Leffew had talked to them and taken credit for the murder. On rebuttal, the State introduced portions of Leffew’s statement to police wherein she told the police that Hernandez had strangled Fernandez. This hearsay statement, introduced pursuant to Rule 806, impeached the hearsay statements of Leffew that Hernandez had introduced through the two inmates. Does Crawford apply?

    ______ Crawford
    ______ No Crawford

3

Jared Littrell, who was driving a loud, older, two-toned Chevy pickup truck with a hood ornament of a bulldog, approached Kissy Stiger, a prostitute, and asked where he could obtain some cocaine. Kissy, accustomed to such requests from such men driving such trucks, hopped in, and the two drove away. While doing so, they passed Anthony Gilbreath, a friend of Kissy’s and a fellow seeker of cocaine. Littrell and Kissy stopped so Gilbreath could get in. Kissy, Littrell, and Gilbreath drove around town making several purchases of cocaine because it was apparently a seller’s market. Then, when the coke ran out, Littrell asked if there was anyone they could “jack” (rob). Kissy told him of a customer she had serviced earlier in the evening, Eric Seuss. Kissy knew Seuss had a large amount of money, and the trio drove to his hotel. Littrell forced his way into the room and began to fight with Seuss. During the brawl, Kissy grabbed Seuss’s wallet, ran from the room, and left the area. Littrell attempted to flee as well. As he did, Seuss followed. Littrell, while fleeing, shot at Seuss. A .22 caliber bullet struck him in the abdomen and killed him.

The State charged Jared Littrell with both felony murder and aggravated robbery. Eric Seuss was the victim in both cases. Count One charged Littrell with felony murder for committing an act clearly dangerous to human life (that resulted in Seuss’s death) in the course of committing or attempting to commit aggravated robbery. Count Two charged Littrell with the completed aggravated robbery from Count One. Does the charge violate Littrell’s rights against double jeopardy?

    ______ yes    ______ no

4

In 1986, Rosa Clark came home after running errands to find her 11-year-old daughter, Vanessa Villa, lying comatose on her bed. The child had been raped and strangled.

In 2000, a prison nurse took a blood sample from Juan Segundo, and his DNA profile was entered into the CODIS system. In 2005, a DNA profile from the semen sample collected from Vanessa’s body was entered into the CODIS system. Two days later a routine computer test matched Segundo’s DNA with the DNA from the semen. Additional testing confirmed the match. While Segundo had not been a suspect in the 1986 crime, he had known the family; he had even attended Vanessa’s wake and signed the guestbook.

During the guilt-phase of the trial, the State introduced evidence of another rape-murder that Segundo had committed in 1995 under the theory that the 1995 crime demonstrated Segundo’s M.O. The similarities between the two crimes were the fact that both Vanessa and the 1995 victim had been raped and strangled and the fact that Segundo’s DNA had been recovered in the victims’ vagina or mouth. Is this extraneous offense admissible to show identity?

    ______ M.O.    
    ______ N.o.

5

What about the admissibility of Segundo’s DNA test results? The blood sample was seized without a warrant while he was in prison pursuant to §411.148 of the Texas Government Code.

    ______ admit it
    ______ suppress it

6

Michael Reed got into a wrestling match with his twin brother Christopher over the installation of a deadbolt lock on a bedroom door in a home they both shared. At one point in the argument, Michael drew a gun (he was a security guard) and ended up firing into the hallway wall. The State charged Michael with deadly conduct because he discharged a firearm “at or in the direction of a habitation.” Does a person have to be outside of a house to commit deadly conduct by firing a gun “at or in the direction” of it?

    ______ yes    ______ no

7

Alfredo Pecina stabbed his wife and then himself. His wife’s sister found them and called the police. Police visited Pecina at the hospital and brought a magistrate with them to give him his Article 15.17 warnings. He was arraigned at the hospital. The magistrate told him in Spanish that the police wanted to speak with him and he nodded or said yes. Then the magistrate read him his rights and asked if he wanted an appointed attorney. Pecina said yes. The magistrate asked him if he still wanted to speak with the officers. Pecina said yes. Pecina also signed an Adult Warning Form, and a Spanish-speaking detective wrote on the form “I asked for a lawyer, but I also wanted to speak with the Arlington police.” At the suppression hearing, the magistrate testified that she had asked Pecina if he still wanted to talk to the police even after requesting court-appointed counsel and Pecina had said yes.

Can the police talk to Pecina without an attorney and without violating his Sixth Amendment right to counsel?

    ______ yes    ______ no

8

Marcus Tucker got into a physical fight with his business partner. Tucker was known to carry a two-inch folding knife. When police arrived after the fight, they saw the victim’s shirt was soaked in blood. The victim had a puncture wound to the back of her neck near her spine and a through-and-through laceration in her arm suggesting that Tucker had stabbed her through the arm. The victim testified she didn’t see Tucker use anything other than his fists during the fight, but the officer on the scene said the injuries were inconsistent with fists. The knife was not collected, though the officer described a knife with a two-inch blade that the victim said Tucker often carried with him. The State charged Tucker with aggravated assault by using a deadly weapon.

Did the State prove that Tucker had used a deadly weapon even though no weapon was introduced and no one could say what weapon was used?

    ______ yes    ______ no

9

Arthur Williams was riding in a car with his buddy Darrell Fields who stopped in front of a known crack house in a high-crime area. Unfortunately for them, Fields parked the car on the wrong side of the road. An officer saw this and pulled up behind the car. As the officer approached, he saw Williams move his hands around his waistband, which made the officer suspect that Williams had a weapon. The officer performed a pat-down on Williams during which a crack pipe hit the ground. Both the officer and Williams looked at it. Then Williams stomped on it.

The jury convicted Williams of tampering with evidence. Williams argued that he could not have intended to prevent the use of the pipe in the investigation because the State alleged he was being investigated for weapons and the crack pipe wouldn’t be evidence in that investigation. Did the State have to prove that Williams had evaluated and correctly assessed the pipe’s evidentiary status upon its destruction to convict Williams of tampering with evidence?

    ______ yes    ______ no

10

Police stopped Roy Bob Bartlett for speeding. The officer suspected intoxication. Bartlett, a repeat DWI offender, refused to take a breath test without his attorney. The State charged Bartlett with felony DWI.

At trial, the court charged the jury that it was permitted to consider Bartlett’s refusal to submit to a breath test. The first paragraph of the court’s charge said the State can introduce evidence of a breath test refusal. The second paragraph described generally what the State and the defense wanted the jury to infer from the refusal evidence. The State wants the jury to infer guilt, and the defense wants the jury to not infer guilt. The third paragraph said the evidence standing alone wasn’t sufficient to establish guilt, but it could be considered by the jury. However, the charge ended with a statement explaining that the significance of the refusal is for the jury to determine. Should the trial court have given this instruction?

    ______ yes    ______ no

Answers

1

Disjunctive. A jury was not required to unanimously decide that Landrian either intentionally or knowingly caused bodily injury with a deadly weapon or that he recklessly caused serious bodily injury. Landrian v. State, No. PD-1561-07, 2008 WL 4489254 (Tex. Crim. App. October 8, 2008)(Cochran) (5:2/3:0). In Landrian’s case, the jury was charged in the disjunctive so the jury wasn’t required to agree on whether Landrian had intentionally assaulted Brizuela with a deadly weapon or recklessly caused serious bodily injury.

Judge Cochran, writing for the majority, upheld the jury charge by applying the eighth-grade grammar test (which will have to be adjusted to a sixth-grade grammar test in 10 years thanks to the Flynn effect). Based upon grammar rules, the gravamen of aggravated assault is merely causing bodily injury to one person. The use of a deadly weapon or causing serious bodily injury are aggravating factors that the jury does not have to agree upon. Thus, there was only one criminal act regardless of which facts the jury believed, namely blinding Brizuela with a beer bottle (pardon the alliteration).

Judge Womack concurred along with Judge Keasler and Presiding Judge Keller to note that there was no way for the jury to reach a non-unanimous verdict because there’s no way to cause serious bodily injury without using a deadly weapon. Judge Price also authored a concurring opinion that Judge Meyers joined to express reservations about the use of the “eighth-grade grammar” test to resolve jury unanimity issues. Despite these reservations, however, the jury’s affirmative answer to a deadly weapon special issue insured that the jury unanimously agreed that Landrian had intentionally assaulted Brizuela with a deadly weapon. That is why Judges Price and Meyers concurred with the majority’s result.

2

No Crawford problem here. The use of hearsay statements to impeach other hearsay statements does not violate a defendant’s Sixth Amendment right to confront the witnesses against her because they are not offered for the truth of the matter asserted. Del Carmen Hernandez v. State, No. PD-1879-06, 2008 WL 4569865 (Tex. Crim. App. October 15, 2008)(Womack) (8:0). The court first noted that Leffew’s statements to police during custodial interrogation were clearly testimonial under Crawford and Davis v. Washington. However, the court unanimously held that the statement was admissible over a Crawford objection because it was not offered for the truth of the matter asserted. The court noted that the Supreme Court expressed its approval in Crawford of its prior decision in Tennessee v. Street, which held that use of testimonial statements for purposes other than the truth of the matter asserted does not violate the Confrontation Clause. Here, Leffew’s statement was redacted to include only those portions of Leffew’s police statement that were inconsistent with the hearsay offered by Hernandez’s jailhouse witnesses. According to the opinion, Leffew’s prior statement was not offered for the truth of the matter asserted and the jury could have looked at the two inconsistent statements and discounted both of them.

3

Yes. Charging Littrell with felony murder based upon a predicate aggravated robbery and that same aggravated robbery against the same victim violated Littrell’s double jeopardy rights. Littrell v. State, No. PD-1555-07, 2008 WL 4569886 (Tex. Crim. App. October 15, 2008) (Price)(8:1). The majority explained that the aggravated robbery in Count Two was a lesser-included offense of the felony murder in Count One because all of the elements of the aggravated robbery were subsumed in the elements of the felony murder. The majority also noted that had the State charged Littrell with intentional murder (instead of felony murder), then aggravated robbery would not have been a lesser-included offense and therefore would not have violated double jeopardy. Moreover, the court found no legislative expression that a defendant could be punished for both offenses. The court set aside the aggravated robbery because it was the lesser sentence and affirmed felony murder.

Presiding Judge Keller dissented because the State had to prove a completed aggravated robbery in Count Two, but the State had to prove only an attempted aggravated robbery in Count One. Thus, the dissent reasoned, Count Two was not a lesser-included offense of Count One because each count required proof of different elements.

4

M.O. The Court of Criminal Appeals upheld the admission of the extraneous rape-murder to show that Segundo had raped and murdered Vanessa Villa consistent with his modus operandi of raping women and then strangling them. Segundo v. State, No. AP-75,604, 2008 WL 4724093 (Tex. Crim. App. October 29, 2008)(Cochran)(9:3:0). The court ultimately decided that identity was contested because Segundo had requested lesser-included offense instructions under the theory that his cross-examination called the identity of the murderer in question. Then, the court noted that generally a modus operandi theory of admissibility relies upon an accretion of seemingly small, sometimes individually insignificant details that show the crime to be the handiwork of a particular criminal. If the similarities are generic, then they don’t constitute a signature crime. If the similarities center on a remarkably unusual fact, that single detail suffices to establish identity through a calling card. (Judge Cochran compares this to “The Mark of Zorro.”) Here, Segundo’s calling card was his DNA profile, and, under the doctrine of chances, it is extraordinarily implausible to think that the two victims would’ve had sexual intercourse with him and that someone else had strangled them shortly afterwards.

Judge Price concurred along with Judges Meyers and Holcomb to note that while the relevance question wasn’t close, the Rule 403 balancing presented a more difficult question. According to Price, showing previous rapes that ended in murder tended to suggest the defendant had murdered the victim in this case, but the DNA calling card evidence only tends to establish sexual assault. Also, the State’s need for the evidence wasn’t great, according to the concurrence, because the medical examiner said the murder occurred contemporaneously with the sexual assault. Nevertheless, given the substantial efforts of the defense to argue that the State’s evidence did not establish that the appellant both raped and murdered the victim, Judges Price, Meyers, and Holcomb reluctantly agreed that the trial court did not abuse its substantial discretion in admitting the evidence.

5

Admit it. Though taking the blood was clearly a search, the court held the search was reasonable under the totality of the circumstances. Segundo v. State, No. AP-75,604, 2008 WL 4724093 (Tex. Crim. App. October 29, 2008) (Cochran)(9:3:0). First, the court noted that all 50 states and the federal government have some form of statutory scheme designed to collect evidence for a DNA database to be used in situations just like this. Other jurisdictions interpreting Fourth Amendment challenges to the warrantless taking of blood pursuant to such statutes have been nearly unanimous in upholding such seizures. Given the government’s interest in the evidence, the search was reasonable because the intrusion was minimal and Segundo’s status as a prisoner when the blood was taken gave him a lesser expectation of privacy.

Moreover, the court rejected Segundo’s claim that the evidence should’ve been suppressed because a prisoner’s DNA can be kept in the DNA database even after the prisoner finishes his term of confinement. If the initial search complies with the Fourth Amendment, the storage of the obtained information does not give rise to a separate constitutional claim. Finally, the court also rejected Segundo’s claims centering on the nurse who took the sample. The blood sample card listed the woman taking the sample by name and agency, but it did not specify that she was a registered nurse. However, the woman looked like a nurse (in Segundo’s own words), worked in the prison infirmary, and stated on the card that her agency was the Texas Tech University Health Science Center, all of which supported the trial court’s implicit finding that she was a nurse. (Note:  If you have a “cold case” like this one that is based upon a CODIS hit, reading Segundo is a good starting point as it addresses several of the types of challenges you may face.)

6

Yes. A person must be outside the house he is firing at to commit deadly conduct for firing at or in the direction of a house. Reed v. State, No. PD-366-07, 2008 WL 4724117 (Tex. Crim. App. October 29, 2008)(Johnson)(5:2/1:3) The majority looked at the deadly conduct statute and determined that the plain meaning of the phrase “at or in the direction of” contemplates that the firearm is discharged from some location other than the habitation itself. There’s really not much more analysis than that other than the court’s opinion that taken in context, “at or in the direction of” contemplates being outside. Judge Cochran (joined by Judge Womack) authored a colorful concurring opinion that dilates upon the meaning of the preposition “at”. (Yes, I just ended my sentence with a preposition.) Noting that you can fire “at” a person as well as “at” a habitation, Judge Cochran explained that the person shooting “at” must have the same spatial relationship to the individual that the person shooting “at” the habitation must to commit deadly conduct. So, the person cannot be “inside” an individual and still shoot “at” him or her, and neither can a person be “inside” a house and still fire “at” it. Moreover, if we look at the ordinary usage of “at,” the word usually refers to a point, while “in” refers to an enclosed space. Thus, shooting “at” a house must mean shooting at a point called a house. Finally, Reed could’ve still been prosecuted for deadly conduct (though not under the enhanced-punishment provision as was done in this case) for recklessly engaging in conduct that places another in imminent danger of serious bodily injury. Judge Cochran suggests that this provision was the appropriate deadly conduct charge for Reed’s conduct. (Note: Judge Cochran cites to TDCAA’s Diane Beckham for support that the provision dealing with shooting at houses is designed to criminalize “drive-by shootings.”) Presiding Judge Keller concurred without an opinion. Judges Keasler, Hervey, and Holcomb dissented without an opinion.

7

No. The court held that Pecina’s statement to police should’ve been suppressed because the police questioned him after his Sixth Amendment right to counsel had attached and he had invoked that right by requesting a court-appointed attorney. Pecina v. State, No. PD-1159-07, 2008 WL 4724214 (Tex. Crim. App. October 29, 2008) (Meyers)(8:1). The majority rejected the State’s argument that Pecina’s request for court-appointed counsel only referred to representation at a future legal proceeding and wasn’t an invocation of his right to have counsel present during interrogation. The court noted the same argument had been suggested and rejected by the United States Supreme Court in Michigan v. Jackson, 475 U.S. 625 (1985). In short, the court held that Pecina invoked both his Fifth and Sixth Amendment rights to counsel by requesting court-appointed counsel despite the fact that he had also indicated his desire to speak with the police. Moreover, Pecina’s Sixth Amendment right to counsel had attached when he was arraigned by the magistrate, so the only way the statement could come in would be if Pecina had initiated contact with the police. The court held that Pecina did not initiate contact with the police by merely responding “yes” to the magistrate’s question of whether he wished to speak with the police. Therefore, the statement should not have been admitted.

Presiding Judge Keller dissented on the ground that the only way to make sense of Pecina’s conflicting answers was to regard his invocation as an ambiguous request that merited clarifying questions from the magistrate. Those clarifying questions revealed, according to the dissent, that Pecina did not wish to have counsel present during interrogation, though he may have wanted counsel to assist him at trial. (Note: The majority relies upon the recent Supreme Court case of Rothgery v. Gillespie County in determining that Pecina’s Sixth Amendment right attached when he was “arraigned” by the magistrate at the hospital. It appears this was an Article 15.17 or “magistration” hearing as Pecina was merely being arrested pursuant to a warrant rather than being taken before a magistrate after being formally charged. In light of both this opinion and Rothgery, it appears the court regards this as a distinction without a difference. Whether a defendant is “arraigned” or “magistrated,” if he requests court-appointed counsel at either hearing, he has invoked his Sixth Amendment right to counsel and he must be the one to voluntarily initiate contact with law enforcement.)

8

Yes. A unanimous court held that there was sufficient evidence that Tucker had used a deadly weapon that was capable of causing serious bodily injury even though 1) the weapon was never introduced; 2) no one testified to what was used; and 3) the weapon didn’t actually cause serious bodily injury. Tucker v. State, No. PD-0742-07, 2008 WL 5047699 (Tex. Crim. App. Nov. 26, 2008)(Keller)(9:0). As many frequenters of the TDCAA user forums know, even a frog can be a deadly weapon, so long as the person uses the frog in a way that is capable of causing serious bodily injury. According to the court, the court of appeals failed to appreciate that the nature of the injuries themselves suggested that the object had been used in a manner capable of causing death or serious bodily injury. The court explained that the through-and-through wound to the victim’s arm could’ve severed a major blood vessel or nerve. The injury to the back of the neck caused a great deal of pain and, given the location of the wound, carried the potential of causing paralysis. Though these wounds didn’t result in such worst-case-scenario injuries, they showed that the weapon used was capable of causing them. Moreover, the court observed that both of the officers involved in the investigation agreed that whatever weapon was used it was capable of causing serious bodily injury or death.

The lower court had focused on the lack of detail about the weapon. Consequently, it failed to account for the possibility that the nature of the object could be inferred from the injuries themselves. Thus, the court held the evidence legally sufficient to establish that Tucker had used a deadly weapon during the assault.

9

No. To prove that a defendant tampered with evidence to impair its availability as evidence in an investigation, the State is not required to show that a defendant knew the title of the investigation in progress. Williams v. State, No. PD-0470-07, 2008 WL 5047674 (Tex. Crim. App. November 26, 2008) (Meyers)(5:1/1/2:1). The quirky thing about this case was that the State had specifically alleged that the crack pipe had been destroyed to prevent its availability in a “weapons” investigation. The majority appeared to regard this labeling of the type of investigation as mere surplusage. The majority specifically rejected Williams’ argument because §37.09 has only two culpable mental state requirements. The State must show the defendant knows he’s being investigated and that he destroyed evidence to impair its availability in that investigation. Basically, Williams’ argument sought to graft an extra culpable mental state onto the statute, namely that Williams knew what he was being investigated for. The majority didn’t go for it.

The court also held that Williams had destroyed the pipe by crushing it under his foot. Even though the State ultimately introduced the broken pieces of the pipe at trial, it was still ruined and useless and had lost its identity as a crack pipe. Judge Womack wrote a separate concurrence to note that under the statute “destroyed” and “altered” are not mutually exclusive terms. Presiding Judge Keller joined the majority, but not as to footnote 2, which seems to intimate that the allegation of the type of investigation was surplusage and that any discrepancy between the pleading and the proof should be analyzed under the fatal variance doctrine. However, the footnote also goes on to explain that there was not a fatal variance between the proof and the charging instrument because the State proved that the evidence was collected during a “weapons” investigation. Presiding Judge Keller did not explain why she did not join this part of the opinion, though. Judges Price and Cochran concurred in the judgment without an opinion. Judge Johnson dissented without an opinion.

10

No. The Court of Criminal Appeals reversed because the breath-test refusal instruction singled out a particular piece of evidence for consideration. Bartlett v. State, No. PD-1461-07, 2008 WL 5047703 (Tex. Crim. App. Nov. 26, 2008)(Price)(8:1:1). Unlike statutorily required instructions such as the accomplice-witness instruction, this instruction singled out a piece of evidence for special attention when no statute required refusal evidence to be given particular weight or special consideration. While the Transportation Code makes the evidence admissible, the court explained that the statute doesn’t attach any weight to that refusal. This type of statute also does not authorize a jury instruction. Because the trial court singled out this type of evidence, it had the potential to obliquely or indirectly convey some sort of judicial opinion on the weight of the evidence by singling it out and inviting the jury to pay attention to it. Thus, the trial court should not have included it in the jury charge.

Judge Johnson concurred to say that the first paragraph of the instruction was fine because it properly set out the law, but the second two paragraphs were comments on the evidence. Judge Hervey dissented to say that the instruction did draw attention to the evidence, but it was nevertheless neutral because the instruction gave no indication of what weight the jury should give the refusal evidence. ✤