Weekly Case Summaries: February 20, 2009

Texas Courts of Appeals

Oursbourn v. State - 1st COA

2/12/09 : Cite No. 01-05-00141-CR : Voluntariness Instruction

Issue

In the defendant's trial for aggravated robbery, should the trial court have given the jury a Code of Criminal Procedure art.38.22(6) general voluntariness instruction relating to the defendant's inculpatory videotaped statement?

Holding

Yes. The victims each identified other people as the assailant in both the photo lineup and the live lineup, and another witness identified someone else when she viewed a photo lineup. At least six hours passed between the robbery and when the stolen car was found at the defendant's girlfriend's apartment complex. Other than one in-court identification, the only direct evidence of the defendant's guilt was his videotaped confession. Omission of the voluntariness instruction seriously affected a defensive theory and the basis of the case.
Read opinion.

Commentary

If you have not done so already, you should read the decision of the Court of Criminal Appeals in this case upon which this decision is based. The opinion by the Court of Criminal Appeals may be a little difficult to follow, but it has quickly become the standard to determine what kind of jury charge to which a defendant might be entitled concerning the admissibility of his statement to law enforcement. In this case, the court of appeals had very little choice but to reverse the defendant's conviction because the jury was not given a general voluntariness charge on the admissibility of the defendant's statement. The State relied upon the statement in support of the defendant's conviction, and the defendant had a strong argument that his confession might have been involuntary. The jury almost certainly would have rejected the defendant's claim that his statement was involuntary, but the defendant did not have the ability to urge the jurors to decide in favor of his defense through the guidance of the jury charge.

Williams v. State - 1st COA

2/12/09 : Cite No. 01-07-00296-CR : Double Jeopardy

Issue

In the defendant's trial, did the State violate double jeopardy by trying the defendant for both capital murder and serious bodily injury to a child by omission?

Holding

No. The trial court's decision to allow both indictments to proceed to trial at the same time did not violate double jeopardy. Injury to a child by omission is not a lesser-included offense of capital murder because the two offenses have different elemental requirements. Where capital murder requires no special relationship to the victim, injury to a child by omission requires the actor to have a legal or statutory duty to act or to have care, custody, or control of the victim. Capital murder requires the death of the child, while injury to a child by omission does not.
Read opinion.

Commentary

Lest you think that the State was piling on and attempting to get two convictions for the price of one in this case, you need not fear. The child had multiple new and old injuries and severe head injuries. The child was covered in cuts, bruises, and puncture wounds. When the defendant brought the victim to a garage, the child appeared to be unconscious. Several people told the defendant that the child needed medical attention and offered to call an ambulance or drive them to the hospital. The defendant declined, explaining that she would call the ambulance. She did not do so. Paramedics were not called until late on the following morning, after rigor mortis had already set in. The child had been dead for at least 12 hours. Two distinct offenses were committed here--an intentional killing and an omission to do anything to get the child to the hospital. So do not weep for the defendant's double jeopardy claim. She does not deserve it.

Thierry v. State - 1st COA

2/12/09 : Cite No. 01-07-00712-CR : Preservation of Error

Issue

In her trial for fraudulent use or possession of identifying information, did the defendant preserve any error regarding the prosecutor's comments about the victim's cancer during opening statement and closing argument?

Holding

No. The trial court never ruled on the defendant's objection, and the defendant did not press the court for a ruling nor did she object to the lack of a ruling. The court even gave the jury an instruction that addressed the defendant's stated concern, although it was not an instruction to disregard.
Read opinion.

Commentary

The victim arrived at the oncology doctor's office for chemotherapy after she had been forced to undergo surgery for breast cancer. The defendant--who was an employee of the oncologist--rewarded the victim's predicament by stealing her identity and using it to secure a department store credit card. And now on appeal the defendant is worried that the State introduced evidence of the medical history of the victim whose identify she stole. The defendant believes that the State should not have emphasized the victim's illness that brought her to the place where the defendant worked or the frequency of the victim's visits to the place where the defendant worked. I would not shed too many tears for this defendant either.

Brown v. State - 2nd COA

2/12/09 : Cite No. 2-08-041-CR : Involuntary Intoxication

Issue

Did the trial court improperly deny the defendant's request for a special jury instruction on involuntary intoxication during his trial for DWI?

Holding

No. The defendant's mental state was not an element of the offense. The Legislature has not included a culpable mental state in its definition of DWI, and proof of a culpable mental state is expressly not required for conviction of an offense dealing with intoxication and for alcoholic beverage offenses. Other Texas courts have held that the offense of DWI does not require a culpable mental state and have further held that involuntary intoxication is not a defense to DWI.
Read opinion.

Dissent

Justice Dauphinot wrote that she agrees that a DWI defendant is not entitled to a jury instruction on involuntary intoxication because that jury instruction is on the affirmative defense of insanity, going only to a culpable mental state. However, she felt that the majority was too broad in holding that a DWI defendant may never raise the defense of involuntary intoxication. A person must voluntarily operate a vehicle and voluntarily ingest intoxicants.

Commentary

The defendant testified that he had consumed two tumblers of whiskey on the night of his arrest. Sometime during the night, he woke up to take blood pressure medicine, but mistakenly took Ambien. Ummm. Is that "involuntary" intoxication? Oh, I almost forgot. The defendant claimed that he did not remember drinking even more liquor or driving his car. Well, you see, that is why we have Chapter 49 of the Penal Code. Because drinking too much makes you forget and lose the normal use of your faculties. And that is why offenses under that chapter do not require a culpable mental state, and why allegedly involuntary intoxication is not a defense.

Texas Attorney General Opinion Requests

Request from Harrison County Criminal District Attorney

2/4/09 : Request No. RQ-0782-GA - County Court Jurisdiction

Issue

Is a county court at law judge whose jurisdiction is limited to misdemeanors one of the judges authorized to establish a community supervision and corrections department and to approve the department's budget and community justice plan as described by Government Code §76.002, Establishment of Departments?

Holding

Members with input on this issue may contact the Attorney General's office.


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