Weekly Case Summaries: April 10, 2009

Texas Court of Criminal Appeals

Hathorn v. State

04/08/09 : Cite No. AP-75,917 : Penry Claim

Issue

Was the defendant's direct appeal of his murder conviction barred by the procedural default created when he failed to file a supplemental brief of his Penry claim?

Holding

No. Because the defendant's direct appeal was pending while the U.S. Supreme Court was deciding the most recent appeal in Penry and the state of the law at the time of the defendant's trial, the claim is not barred. The defendant was entitled to separate consideration of mitigating evidence at trial. The jury likely believed that it needed to consider only two issues: whether he had acted deliberately and whether he would likely be dangerous in the future, disregarding any concern they may feel that, given his troubled childhood, he may not deserve the death penalty because of mitigating factors.
Read opinion.

Commentary

I know that we all like to require defendants to make the proper objection in order to preserve error. But if the Court of Criminal Appeals had not reached this decision in this case, the Fifth Circuit Court of Appeals or the United States Supreme Court certainly would have.

Pena v. State

04/08/09 : Cite No. PD-1411-07 : Due Course of Law Violation

Issue

Did the trial court improperly admit lab test results when the State had destroyed the substance tested before trial, creating a due course of law violation under the Texas Constitution?

Holding

Yes. However, the defendant did not preserve his due course of law provision claim for appellate review. Although the defendant eventually invoked the Texas due course of law provision when he objected to admission of the evidence, he did not argue that the Texas Constitution provided greater protection than the federal Due Process Clause. The defendant was obligated to put the trial judge on notice of the specific legal theory on which he intended to advocate because the federal constitutional standard was clearly established, the trial judge and the State unmistakably relied solely on the federal standard, and there was no independent interpretation on the subject of lost or destroyed evidence under the Texas Constitution.
Read opinion.

Dissent

Judge Holcomb wrote that the court should not have based its decision on the preservation issue after ordering the parties to address the Texas Constitutional issue. He wrote that the only reasonable explanation is the court's internal inconsistency. He concludes that the only clear message this opinion is that the court is consistent in its inconsistency.
Read dissent.

Commentary

As much as you should expect the refusal to follow the procedural default rules in the previous case, you should expect that the procedural default rules would be followed in this case. But unfortunately, this decision delays the inevitable holding from the Court of Criminal Appeals that the Texas Constitution does not provide greater protection than the United States Constitution with regard to the government's loss, destruction, or failure to preserve evidence.

Hayden v. State

04/08/09 : Cite No. PD-0860-07 : Inadmissible Character Evidence

Issue

Did the trial court correctly exclude evidence of the murder victim's status as a registered sex offender in another state during the punishment phase of the defendant's trial?

Holding

Yes. The defendant made no attempt to cross examine witnesses concerning their statements about the victim but waited until two witnesses finished testifying and then attempted to impeach their testimony through another witness. The victim's status as a sex offender was a collateral issue and not relevant to the jury's assessment of the appropriate sentence to impose on the defendant.
Read opinion.

Commentary

As is the case with most decisions from the court involving victim impact evidence and victim character evidence, this decision is very confusing. And I do not know that you can come away from this decision with any clear indication of what to expect for the future from the court. Apparently, the court does not approve of the phrase "negative victim impact evidence," but would prefer victim character evidence. The court has thankfully made clear that this type of "negative" victim character evidence is not relevant to a defendant's punishment and is also inadmissible under Rule 403 of the Rules of Evidence. Unfortunately, the court has held the door open for such negative victim character evidence when it is offered in rebuttal. We should always be able to successfully argue that this evidence should be excluded, but the court's refusal to issue a bright-line rule means that we are going to have to continue to fight this evidence.

Terrell v. State

04/08/09 : Cite No. PD-0922-07 : Due Course of Law Violation

Issue

In the defendant's conviction for indecency with a child by exposure where the State was unable to produce tapes of his interview with detectives, was he entitled to greater protection based on the due course of law provision in the Texas Constitution than that of the U.S. Constitution?

Holding

Yes. Based on the court's decision in Pena v. State (Pena IV), the court of appeals should have considered whether the defendant preserved his complaint for review and should reconsider whether his specific due course of law issue was timely and specific under T.R.App.P. 33.1.
Read opinion.

Commentary

Will it be this case where the Court of Criminal Appeals ultimately holds that the Texas Constitution does not provide greater protection than the United States Constitution with regard to the government's loss, destruction, or failure to preserve evidence? We shall see.

Hammer v. State

04/08/09 : Cite No. PD-0786-08 : Exclusion of Evidence

Issue

In a father's prosecution for indecency with a child (his daughter), did the trial court correctly exclude evidence of the daughter's other previous false accusations of rape?

Holding

No. The daughter, who had been removed from the mother's custody by CPS and sent to live with her father, was angry with him for imposing rules and a curfew. She had previously made an outcry to her father that someone else had sexually assaulted her, after which he took her to the hospital. She alleged that all of her mother's boyfriends had sexually molested her and claimed to have been held at knifepoint by five men who all raped her.
Read opinion.

Commentary

The bottom line is that, if a defendant in a child molestation prosecution wishes to offer evidence that the victim has made false allegations in other situations that can be analogized to the victim's allegations against the defendant, the trial court should probably not exclude the evidence. The court has issued two decisions in the recent past on this issue. And this is clearly the better organized decision of the two. Read this decision very carefully if you have this issue come up in one of your cases.

Texas Attorney General Opinions

Attorney General Opinion for the Wharton County Attorney

04/07/09 : Opinion No. GA-0703 : Authority of Commissioners Court

Issue

Does a county have the authority to remove fencing located within a county road right-of-way that the commissioners court determines interferes with the safety and transportation of the public?

Holding

Yes. Through Transportation Code §251.016, a county commissioners court is granted authority, subject to judicial review, to remove any objects that create a public safety hazard from a county road right-of-way.
Read opinion.

Attorney General Opinion for the Delta County Attorney

04/07/09 : Opinion No. GA-0704 : Sheriff's Accounts

Issue

May a sheriff refuse to provide certain documents related to his asset forfeiture fund when their production is requested by a county treasurer/auditor?

Holding

No. Under Local Government Code §115.901, a county treasurer is required to examine the accounts held by a county sheriff, including accounts containing forfeiture and commissary funds. The sheriff must provide the treasurer with access to bank statements for such accounts.
Read opinion.


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