Weekly Case Summaries: March 27, 2009

Texas Court of Criminal Appeals

De La Paz v. State

3/25/09 : Cite Nos. PD-0292-08 & PD-0295-08 : Extraneous Offense Evidence

Issue

In a former police officer's trial for tampering with physical evidence for knowingly making false statements in a police report and aggravated perjury for making the same false statements under oath, did the trial court's admission of extraneous-offense evidence violate Rule of Evidence 404(b)?

Holding

No. The defendant claimed to have seen three separate drug deals at three different times, but no one else involved in the undercover operation (including the confidential informant and the object of the sting) did. Under the doctrine of chances, the strong extraneous act evidence decreases the likelihood that the former officer saw any drug deal and therefore increases the likelihood that he knew his statement about seeing one between two of the arrestees was false.
Read opinion.

Commentary

Another strong, unanimous opinion by Judge Cochran on a Rule of Evidence. She really gets those rules. This time, we are treated to a very clear explanation of the Doctrine of Chances and its application to the admissibility of extraneous conduct. And you have to like any opinion that quotes Goldfinger: "Once is happenstance. Twice is coincidence. The third time it's enemy action." (See footnote 40).

Keehn v. State

3/25/09 : Cite No. PD-0002-08 : Warrantless Seizure

Issue

Was the warrantless seizure of an anhydrous ammonia tank from inside a van parked in the defendant's driveway lawful?

Holding

Yes. The automobile exception gave the officer the right to enter the van and seize the tank. According to the defendant, he had used the van in the days before the search, indicating that it was readily mobile. Based on the officer's training and investigative experience regarding methamphetamine production and the condition of the tank as viewed through the window, the officer had probable cause to believe that the tank contained anhydrous ammonia.
Read opinion.

Commentary

Be careful about reading too much into this opinion's focus on the automobile exception. The automobile exception provides the justification for conducting a warrantless search and seizure. It does not explain how the officer reasonably obtained the information (probable cause) needed to conduct that search. The simple explanation for that part of the equation is that the anyone had the right to walk on the defendant's driveway, especially as part of a trip to the front door, and stare through the window of a van. If that van had been parked in a garage or if the officer needed to open a door of the van, the officer would have needed more justification (e.g., a search warrant or a legitimate excuse for walking through the garage or opening the door).

Texas Courts of Appeals

State v. Collier - 1st COA

3/19/09 : Cite No. 01-08-00209-CR : Tolling Statute

Issue

Should the trial court have allowed the defendant's 2002 indictment for tampering with a governmental record to toll the limitations period for the State's 2008 re-indictment of the offense as the state jail felony of tampering with a governmental record?

Holding

Yes. Although the original misdemeanor indictment for tampering with a governmental record pleaded elements constituting a misdemeanor, the indictment also invoked the district court's subject matter jurisdiction because the original indictment showed an intent to charge the defendant with felony tampering. The original indictment was in a court of competent jurisdiction and tolled the limitations period for the felony re-indictment.
Read opinion.

Commentary

The State benefited from the incredibly lucky timing of a decision in the recent Kirkpatrick case, included in last week's case summaries. However, the nearly 7-year delay in prosecution does beg the question, "How many resets do you get before a motion to quash is heard?"

Hirsch v. State - 2nd COA

3/19/09 : Cite No. 2-08-121-CR : Statutory Authority of Trial Court

Issue

Did the trial court have statutory authority to impose sex offender registration on the defendant after his conviction for online solicitation of a minor?

Holding

Yes. In 2005, HB 2228 created the offense of online solicitation of a minor and required anyone convicted of it to register as a sex offender. In that same session, the legislature enacted HB 867, which amended the same section of the registration statute but without any reference to online solicitation of a minor as an offense subject to registration requirements. HB 867, however, did recite the full registration statute while amending it, which, under the principles of code construction, reenacts the statute, regardless of the terminology used to do so.
Read opinion.

Commentary

The opinion is a well-reasoned application of the Code Construction Act to an issue that arises more frequently than you would like to think: multiple bills in the same session amending the same law. You should be hearing about the principles discussed in this case during the TDCAA Legislative Update this summer.

Quesada v. State - 4th COA

3/18/09 : Cite No. 04-07-00615-CR : Jury Charge

Issue

In the defendant's trial for misdemeanor possession of marijuana, did the trial court incorrectly charge the jury by instructing that it could impose a minimum sentence where none was required by statute, and further that it could both fine and incarcerate the defendant without the option of choosing one or the other?

Holding

Yes. The charge failed to give the jury the option of assessing the less-severe minimum punishment of only a fine or only a term of confinement, but not both.
Read opinion.

Commentary

This case points out the problem with using forms instead of writing a jury charge and reading it out loud before trial. No one reads forms for accuracy. The charge used in this case likely came from an old DWI case, which has a mandatory minimum confinement of 3 days. But there is no excuse for not telling the jury that it had a choice of fine, confinement or both.

Texas Attorney General Opinions

Attorney General Opinion for the Honorable Frank J. Corte, Jr.

3/19/09 : Opinion No. GA-0699 : Legislative Authority

Issue

Does the Texas Legislature have the authority to deter local governments from adopting policies or the authority to invalidate existing policies that would hinder state enforcement of federal immigration laws?

Holding

Yes. Nothing prohibits the Texas Legislature from adopting some form of legislation designed to compel local governments to comply with any duties they may have under federal immigration laws, so long as the legislation is consistent with federal law.
Read opinion.

Attorney General Opinion for the Waller County Criminal District Attorney

3/19/09 : Opinion No. GA-0700 : Official Duties of Court Reporter

Issue

Does Government Code §52.055 (Expenses of District Court Reporters) set exclusive limits on reimbursement for the expenses of court reporters who serve in a multi-county district? May counties within that district pay court reporter expenses equivalent to those paid other county officers and employees?

Holding

When an official court reporter performs official duties in a county other than the court reporter's county of residence, she is entitled to reimbursement by the other county for actual and necessary expenses under Government Code §52.055, subject to statutory limits. Further, Local Government Code §152.011 does not authorize the commissioners court to set and pay the expenses of the court reporter for a district court.
Read opinion.

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