Weekly Case Summaries: April 24, 2009

United States Supreme Court

Arizona v. Gant

04/21/09 : Cite No. 07-542 : Search Incident to Arrest

Issue

After a suspect has been arrested, handcuffed, and placed in a patrol car, may officers automatically search his vehicle as a search incident to arrest?

Holding

No. Police may search the passenger compartment of a vehicle as a search incident to arrest only if: (1) it is reasonable to believe the suspect might access the vehicle at the time of the search or (2) the vehicle contains evidence of the offense for which the suspect was arrested.
Read opinion.

Concurrence

Justice Scalia agrees with the four-justice majority that previous holdings in New York v. Belton, 453 U.S. 454 (1981) do not mean that it is reasonable for arresting officers to conduct an automatic search of a suspect's vehicle incident to arrest. Belton and Thornton v. United States, 541 U.S. 615 (2004) instead were concerned with car frisks for officer safety. "When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety-and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car."

Dissent

Justice Alito (along with Chief Justice Roberts and Justices Kennedy and Breyer) wrote that the facts in this case do not justify abandoning the Court's holding in Belton and the many cases that follow it. Justice Alito wrote that although the four-justice plurality does not explicitly overrule Belton and Thornton, "there can be no doubt that it does so." In a separate dissenting opinion, Justice Breyer agreed that the Court should not ignore its previous holdings under Belton.

Commentary

If you have not already done so, you need to get this decision out to your officers as soon as possible. Prior to this decision, many searches of automobiles were justified as searches incident to the driver's arrest. No longer. Now the typical search of an automobile must be based upon probable cause (the "automobile exception"), reasonable suspicion (search for weapons), inventory, or consent. You should expect these areas of the law to be heavily litigated with regard to automobile searches in the coming years, so you should likewise shore up your knowledge of the law for these types of automobile searches. This decision is not a disaster, or at least we do not have to treat it like one. It is just going to change the way that we do business.

Texas Court of Criminal Appeals

Young v. State

04/22/09 : Cite No. AP-75,352 : Jury Unanimity

Issue

In the defendant's trial for capital murder, were the jurors correctly charged on the issue of unanimity when the trial court failed to give them the statutory instruction?

Holding

Yes. While the jury was not given the statutorily required instruction that they did not have to agree on the particular mitigating evidence provided, they did unanimously find that nothing they heard warranted a life sentence.
Read opinion.

Concurrence

Judge Cochran wrote that although the trial judge omitted a portion of the statutory language related to the mitigation issue, she found nothing to support a finding that the defendant suffered actual, rather than merely theoretical, harm from the jury instruction error.
Read concurrence.

Dissent

Judge Price could not rule out a possibility that theoretical harm ripened into actual harm. He wrote that while there is no burden of proof for analysis of egregious harm, when a case is close and the death penalty has been assessed, the court should err on the side of caution. He would reverse the conviction and remand for a new punishment hearing.
Read dissent.

Commentary

This issue is saved by the application of a "harmless error" analysis. It is not clear why the statutorily required instruction was not given, but it was clear from the jurors' unanimous answer to the particular special issue that there was no mitigating evidence in this case that warranted only the imposition of a life sentence.

Mays v. State

04/22/09 : Cite No. PD-0670-07 : Offer of Proof

Issue

When a trial judge indicates that he will exclude all of the defendant's diminished capacity evidence but invites the defense to proffer evidence during voir dire, may the defense's proffer cover only the questions he would have posed during voir dire to preserve error??

Holding

No. Because the trial judge clearly intended his ruling excluding all diminished capacity evidence to apply to the entire trial, the defendant was obligated to offer proof that went past the anticipated voir dire questions to preserve error under T.R. Evid. 103.
Read opinion.

Dissent

In Judge Holcomb's opinion, the defendant made it quite clear court that he intended to offer proof from a mental health expert that he suffered from schizophrenia and that the condition distorted his view of reality and left him unable to form the required mens rea for the crime.
Read dissent.

Commentary

This case is interesting because the State apparently raised the defendant's failure to make a sufficient offer of proof for the first time in the State's petition for discretionary review. While I would not recommend that the State wait until presenting a case to the Court of Criminal Appeals before it argues a defendant's failure to preserve error, this decision did give the court the opportunity to re-affirm what it had held in the past. Because preservation of error is a "systemic requirement," it can be raised for the first time on petition for discretionary review to the Court of Criminal Appeals.

Vennus v. State

04/22/09 : Cite No. PD-1540-07 : Motion to Suppress

Issue

In the defendant's trial for possession of a controlled substance with intent to deliver, the defendant lost his motion to suppress. Could he later assert on appeal that the State failed to carry its burden to prove the reasonableness of his detention and the search of his car when he prevented the State from carrying this burden through his objections at the suppression hearing?

Holding

No. The defendant invited the supposed error that he raised on appeal regarding the State's failure to prove facts that led the officer to believe that there was contraband in his car. The suppression-hearing record reflects that he prevented the State from fully presenting those facts by making multiple general, nonspecific, and meritless objections.
Read opinion.

Concurrence

Judge Price would reverse by simply ruling that the search was justifiable as a search incident to arrest, the State's second ground for review. He questions the Court's disposition of the estoppel/invited error issue and expressed concern about the implication for future cases.
Read concurrence.

Dissent

Judge Meyers wrote that the State did not appreciate its advantage because the Rules of Evidence do not apply to suppression hearings. He saw a lot of invited error in the record but noted that the State sent out the invitations.
Read dissent.

Commentary

When the prosecutor asked the officer if he had a reasonable belief that the defendant had contraband in his vehicle, the officer said that he did. When the prosecutor asked the officer upon what was that reasonable belief based, the defendant's attorney objected, and the trial court inexplicably sustained the objection. On appeal, the defendant had the gall to claim that the State had failed to prove that the officer had reasonable suspicion to continue a detention of the defendant. Why in the world did the defense believe that they could get away with that?

Hardy v. State

04/22/09 : Cite No. PD-608-08 : Obstruction of Highway or Other Passageway

Issue

Where the defendants set up a tent in the right-of-way of a county road during a protest march, which violated a county ordinance, were they then properly charged and convicted of violating Penal Code §42.03 (Obstructing Highway or Other Passageway)?

Holding

No. While the county ordinance barred structures in the right-of-way, the statute under which the defendants were charged prohibits obstruction of only part of a road easement used for vehicular travel. People who sat in chairs next to the tents were not arrested or charged with obstructing a highway because a chair usually isn't large enough to obstruct another's view. When protestors were initially warned, they were told to stay in the bar ditches and off of the road, indicating that the bar ditches were not considered by the officers to be a part of the road and that the demonstrators would not obstruct the highway if they remained in the bar ditch.
Read opinion.

Dissent

Presiding Judge Keller wrote that there were discrepancies between the trial record and the Court's opinion that affect the overall picture of the situation. The protesters were told to stay off the road and that they would be arrested if they got into a tent. The ones who stayed off the road and did not get into a tent were not arrested. The defendants entered a tent and were arrested.
Read dissent.

Commentary

This decision should be helpful if you seek to advise officers as to whether a violation of Section 42.03(a)(2) of the Penal Code has occurred or will occur.

Karenev v. State

04/22/09 : Cite No. PD-0822-08 : Harassment Statute

Issue

After the defendant's conviction for harassment, could he assert a facial challenge to the constitutionality of the harassment statute for the first time on appeal?

Holding

No. A facial challenge to a statute's constitutionality does not involve a question of jurisdiction. The Texas Constitution clearly defines an indictment or information and provides that the presentment of an indictment or information to a court invests the court with jurisdiction of the cause.
Read opinion.

Concurrence

Judge Cochran concurred but disagreed with the iron-clad conclusion that a defendant may not raise a facial challenge to a statute's constitutionality for the first time on appeal. This defendant did not, in fact, raise a facial challenge to the constitutionality of the harassment statute, so, in the words of Judge Cochran, this was an "all hat and no cattle" theoretical issue.
Read concurrence.

Commentary

This is a wonderful decision. No more can a defendant raise a challenge to the constitutionality of a statute for the first time on appeal. Those decisions that have held otherwise have been overruled.

Texas Courts of Appeals

Jackson v. State - 6th COA

 04/16/09 : Cite No. 06-08-00126-CR : Jury Charge

Issue

In the defendant's manslaughter trial, was the jury charge during guilt/innocence an improper comment on the weight of the evidence when it stated that manslaughter was a second-degree felony and that deadly conduct, which both parties incorrectly believed to be a lesser-included offense of manslaughter, was labeled as a third-degree felony?

Holding

No. During voir dire, the trial court told the jury that the defendant was charged with manslaughter, naming it as a second-degree felony, and later informed them of the range of punishment for a second-degree felony. While the degree of the crime and the severity of potential punishment is, at best, not relevant to the guilt/innocence stage, because the jury had already been made aware of all this information from the beginning of the trial, a later delivery of the same information by including it in the charge on guilt/innocence was not harmful.
Read opinion.

Commentary

This opinion is most important because of its first sentence. You may want to use it when arguing your next manslaughter case. I won't quote it here. Read it for yourself.

Canty v. State -12th COA

04/15/09 : Cite No. 12-08-00257-CV : Expunction

Issue

Did the defendant have a constitutional right to an expunction of the dismissed indictment where he was charged with assault of a public servant?

Holding

No. The right to expunction is a statutory privilege, not a constitutional right. Code of Criminal Procedure Ch. 55 establishes the requirements for an expunction petition. By failing to provide the required information, the defendant lost his opportunity for relief.
Read opinion.

Commentary

The court held that the hearing to which the defendant was entitled was essentially held when the trial court reviewed the defendant's (insufficient) pleadings.

Texas Attorney General Opinions

Attorney General Opinion for the Honorable Pete Gallego

04/20/09 : Opinion No. GA-0709 : Authority of County Attorneys

Issue

May a county attorney commission reserve or nonpaid peace officers?

Holding

No. Occupations Code Ch. 1701 and Code of Criminal Procedure Art 2.12 specifically identify officers with the authority to appoint "reserve" peace officers. Public officers, such as a county attorney, possess only such powers as are expressly conferred upon them by law or are necessarily implied from the powers they're given. A county attorney is not authorized to appoint reserve peace officers.
Read opinion.


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