Weekly Case Summaries: March 13, 2009

Texas Court of Criminal Appeals

Schmidt v. State

3/11/09 : Cite No. PD-0076-08 : Lesser Included Offenses

Issue

Are assault by bodily injury and assault by threat lesser-included offenses of retaliation by threat of striking?

Holding

Yes. Actual striking can constitute evidence of a threat to strike - assault by threatening to cause imminent bodily injury. The defendant therefore was entitled to lesser-included offense instructions on these offenses.
Read opinion.

Commentary

The State seems to have been caught by its own argument, one that was successful on the first PDR in reversing the court of appeals but successful against the State upon the second PDR. And this is the opportunity to repeat the best practice mantra: include all plausible lesser-included offenses in the jury charge and be prepared to voir dire on them. Perhaps the defendant would accept a misdemeanor assault offer on remand.

Weir v. State

3/11/09 : Cite No. PD-0616-08 : Court Costs

Issue

Was a court-costs provision valid when the trial court first orally sentenced the defendant to 10 years' imprisonment and then in its written judgment also required him to pay $530 in court costs?

Holding

Yes. Court costs are not punitive. Therefore, that provision did not have to be included in the oral pronouncement of the sentence as a precondition to including it in the trial court's written judgment.
Read opinion.

Commentary

It was baffling when the court of appeals opined that assessing a court cost was punitive. So, it comes as no surprise that a unanimous CCA tosses out that anomaly and returns calm to the sea of law. There are issues that need the attention of a court that has consistent experience in the nuances of criminal law. And that is probably one of the best reasons for retaining a CCA.

Baldwin v. State

3/11/09 : Cite No. PD-1630-07 : Search Incident to Arrest

Issue

Did the officer exceed his authority during the defendant's detention by asking the handcuffed defendant where his ID was and then reaching into the defendant's pocket to retrieve his wallet?

Holding

Yes. The defendant, clad entirely in black and walking around the neighborhood at 10:30 p.m. fit a 9-1-1 caller's general description of an unknown man looking into windows in her neighborhood. When the officer approached, the defendant began walking away very quickly, acted nervous, and refused to make eye contact. There had been several recent burglaries in the area. However, these circumstances did not give rise to probable cause to arrest, so the officer's reaching into the defendant's pocket was not justified as a warrantless search incident to arrest.
Read opinion.

Concurrence

Judge Cochran believes that the court should have addressed whether the defendant was arrested without probable cause when the officer handcuffed him. Looking at all of the circumstances, she believes that the defendant was arrested at the moment he was handcuffed.
Read concurrence.

Concurrence

Judge Keasler wrote in response to Judge Cochran's concurring opinion, arguing that this was not a valid arrest in the first place. Judge Keasler wrote that the defendant was illegally detained because the officer lacked even reasonable suspicion to detain and handcuff the defendant.
Read concurrence.

Commentary

An otherwise unremarkable bit of Fourth Amendment jurisprudence. The officer simply should have shown more patience in seeking ID. The more interesting exchange occurs between Judges Cochran and Keasler in dueling concurring opinions. Frankly, Judge Keasler raises an appropriate concern: why is Judge Cochran unnecessarily providing dicta that could be used against officers who are rightfully maintaining the safety of a scene by the cautious use of handcuffs? No other judge thought that was an important issue needing an opinion. Judges, Keasler seems to be saying, should restrain themselves from offering an opinion on an issue simply because it interests the judge and keep the case focused on the issue raised by the lawyers. Otherwise, the law becomes murky and more the result of personal opinion rather than a consensus of all the judges.

Texas Courts of Appeals

Agosto v. State - 1st COA

3/5/09 : Cite No. 01-08-00319-CR : Ineffective Assistance

Issue

Did the defendant receive ineffective assistance where defense counsel limited the defendant in his testimony on his own behalf during the punishment phase of the trial?

Holding

No. Defense counsel stated his concerns on the record that the defendant's testimony would be further evidence against him, given that the defendant had already stated that he had never been near the crime scene or seen the victim before, which was directly contradicted by evidence of his DNA at the crime scene and of the victim's identification of him.
Read opinion.

Commentary

Constant claims of ineffective assistance of counsel continue to erode the independent discretion and strategy of a licensed lawyer. It sometimes seems like trials are conducted by counsel to best please the defendant rather than to best present a case. So, it's good to see that this court of appeals recognized the difficult position of defense counsel in presenting testimony from a defendant who wanted to contradict the physical evidence and, perhaps, inflame the jury during the punishment stage of the trial.


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