Weekly Case Summaries: February 13, 2009

Texas Court of Criminal Appeals

Pollard v. State

2/11/09 : Cite No. PD-0363-08 : Relevance

Issue

In the defendant's trial for retaliation by threat, was the victim's knowledge of the defendant's violent past relevant?

Holding

No. The victim did not testify that his knowledge that the defendant had actually killed a person contributed to his fear of the defendant or to his recantation of his initial statement implicating the defendant in a sexual assault. By itself, evidence that the defendant had killed a person did not make any fact of consequence more or less probable in the prosecution of retaliation by threat.
Read opinion.

Commentary

Does the victim actually need to testify that he was afraid of the defendant because the defendant had previously admitted to the victim that he had killed a person? Does that not go without saying, at least for the purposes of a relevance determination? The court finished its opinion with the statement, "The evidence that appellant had actually killed a person, standing alone, did not make any fact of consequence more or less probable in this retaliation-by-threat prosecution." Standing alone, maybe not. But what about coupled with the threat that the defendant actually made to the victim? Does evidence have to be relevant "standing alone" before it can be relevant?

Stokes v. State

2/11/09 : Cite No. PD-0417-06 : Presentment of Motion

Issue

Was a docket-sheet entry without a signed order sufficient to show "presentment" of a motion for new trial filed the same day the defendant claims to have presented it to the trial court?

Holding

Yes. A docket-sheet entry entitled "Motion New Trial presented to court no ruling per judge," was enough to show that the motion was presented to the trial court as required by Rule of Appellate Procedure 21.6. The rule does not expressly state that a judge's signature is necessary to satisfy the requirement.
Read opinion.

Commentary

This decision appears to make sense. Just because a recitation is in a docket sheet entry does not mean that it can be ignored.

Billodeau v. State

2/11/09 : Cite No. PD-0969-07 : Complainant's Threats Against Others

Issue

Did the trial court improperly deny the defendant the chance to cross-examine the complainant about threats the complainant made against others - including the threat that the complainant would make an accusation of molestation - thus preventing the defendant from presenting admissible rebuttal testimony to show a possible motive for accusing the defendant of sexual molestation?

Holding

Yes. There was testimony that the complainant had suffered from mental illness since the age of 4 and that his mental illness contributed to his acts of rage. The complainant testified that he had become angry when the defendant took back a gift he had given him, and that the very next day, the complainant accused the defendant of molesting him. The record showed that the complainant had threatened to accuse others of molestation. The jury could have found testimony from those threatened by the complainant helpful.
Read opinion.

Commentary

The victim's apparent threat to accuse others of molestation--standing alone--was not relevant. But, coupled with the fact that the victim's threat was accompanied by the victim's anger at perceived injustices (just as the defendant claimed was the case with him), the victim's threat became relevant.

Ivey v. State

2/11/09 : Cite No. PD-0552-08 : Community Supervision

Issue

Does Code of Criminal Procedure art. 42.12 give a defendant the right to avoid being placed on community supervision?

Holding

No. A trial court may place an eligible defendant on community supervision even if the defendant has elected to have his punishment assessed by the jury and the jury does not recommend it.
Read opinion.

Dissent

Presiding Judge Keller disagreed. She wrote that when a defendant elects to have the jury assess his punishment, the trial judge's imposition of community supervision is contrary to that election and contrary to the law.
Read dissent.

Commentary

Why even bother having a jury recommend prison time if the trial judge can undercut the jury and place the defendant on probation? Why was the jury there in the first place? Why did the trial judge even bother charging the jury on the defendant's punishment?

Texas Courts of Appeal

De La Paz v. State - 11th COA

2/5/09 : Cite No. 11-06-00146-CR : Confrontation Clause

Issue

In the defendant's trial for aggravated sexual assault of a child, did admission of notes taken by a social worker and a nurse who interviewed the child violate the defendant's confrontation clause rights?

Holding

No. The notes were not testimonial statements and their admission did not contribute to the defendant's conviction. The strength of other physical medical evidence, the defendant's behavior on the day of the assault, and his questionable credibility were sufficient so that the notes alone did not move the jury to convict.
Read opinion.

Commentary

The defendant clearly was not harmed by the introduction of the medical records into evidence. The victim had suffered a second-degree laceration to her vagina while she was in the defendant's care,and that laceration was consistent with penetration. The defendant was found with blood on his hands, and he acted suspiciously. He did not want the victim taken to the hospital, and he told his daughter to state that the victim had injured herself. The physical evidence was inconsistent with two written statements given by the defendant and his trial testimony.

Paulea v. State - 14th COA

2/10/09 : Cite No. 14-07-01044-CR : Motion to Suppress

Issue

In the defendant's trial for possession of a controlled substance, did the trial court improperly deny his motion to suppress evidence seized during an unlawful arrest?

Holding

Yes. Because the State did not produce the warrants, which were the stated basis for the defendant's arrest, and because the record did not contain adequate grounds to conclude that probable cause existed for the arrest, the defendant's motion to suppress should have been granted.
Read opinion.

Commentary

This case emphasizes the need to make sure that you get an arrest warrant introduced into evidence if you are relying--even in part--upon that arrest warrant as justification for the stop and/or arrest of the defendant.


Request for Attorney General's Opinion

Request from 25th Judicial District 

1/27/09 : Request RQ-0780-GA : County Office Space

Issue

Is there a conflict of interest or a violation of public policy if an elected official, other than a member of a county commissioners court, continues to occupy office space leased by the commissioners court in a building owned by the elected official's spouse?
Read request.


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