Weekly Case Summaries: May 1, 2009

Texas Court of Criminal Appeals

Ex parte Reedy

04/29/09 : Cite No. AP-75,862 : Writ of Habeas Corpus

Issue

May a defendant, under a plea agreement, waive his right to file an application for writ of habeas corpus?

Holding

Yes. However, a blanket waiver of all habeas corpus relief may not be enforceable as to claims that the defendant could not reasonably have known about at the time of his waiver, because he could not have voluntarily, knowingly, and intelligently waived them.
Read opinion.

Commentary

The court suggests that the claims that a defendant could not waive might be actual innocence based upon newly available evidence, the suppression of material exculpatory evidence, and ineffective assistance. The trick will being able to show that the defendant knew about the allegedly waived matter when he waived his right to file the writ of habeas corpus.

Holmes v. State

04/29/09 : Cite No. PD-0453-07 et seq. : Preserving Error

Issue

Are general statements from defense counsel sufficient to preserve error under T.R. Evid. 103(a)(2) when a trial court denies a defense motion to cross-examine a State's expert witness?

Holding

No. The record must show the excluded evidence so that the appeals court can judge its admissibility and determine whether the trial court abused its discretion by excluding it. Counsel's statements do not qualify as a reasonably specific summary of the evidence offered, especially when the statements seem to question the underlying science rather than the expert's credibility, and the complainant on appeal deals with the expert's credibility.
Read opinion.

Commentary

This decision is a technical preservation-of-error case that may be of interest to appellate lawyers. It holds that a defendant must make a specific offer of proof if he is challenging the credibility of the substance of a witness' testimony. But if he is attacking the witness' credibility, a defendant only needs to show that he intended to cross-examine the witness about a matter that showed the witness' malice, ill-feeling, ill-will, bias, prejudice, or animus.

Simmons v. State

04/29/09 : Cite No. PD-0791-08 : Non-accomplice Testimony

Issue

In the defendant's trial for aggravated robbery, did non-accomplice testimony under Code of Criminal Procedure Art. 38.14 sufficiently connect him to the crime?

Holding

Yes. The masked robber's first and middle names were the same as the defendant's names. The defendant wrote a threatening letter to the accomplice witness while both were in jail. The defendant attempted to get the accomplice witness to sign an affidavit exonerating him and then tried to persuade two jail employees to falsely swear that they saw the accomplice witness sign the affidavit.
Read opinion.

Commentary

This decision is important because it allows us to argue that non-accomplice evidence tends to connect a defendant to the commission of the charged offense based upon a reasonable inference that can be drawn from that evidence. It would not matter that an inference could also be drawn from the particular piece of evidence that was favorable to the defendant.

Barrios v. State

04/29/09 : Cite No. PD-0891-08 : Jury Charge

Issue

In the defendant's trial for capital murder, was the jury charged correctly when jurors were allowed to consider the entire charge as a whole and were not required to unanimously agree that the defendant was not guilty of the greater offense before considering a lesser-included offense?

Holding

Yes. The trial judge correctly read the entire charge to the jury before it retired to deliberate. Therefore, jurors heard the instruction on reasonable doubt before considering the issue of guilt on any of the offenses included in the charge.
Read opinion.

Commentary

This decision makes clear that a jury can begin to consider a defendant's guilt of a lesser included offense before making a final decision as to the defendant's guilt of the greater charged offense. I would stay away from arguments that the jurors must UNANIMOUSLY agree that the defendant is not guilty of the charged offense before they can begin to consider the defendant's guilt of the lesser offense.

Villarreal v. State

04/29/09 : Cite No. PD-0984-08 : Protective Orders

Issue

In the defendant's trial for violation of a protective order, did the court correctly instruct the jury, over the defendant's objection, that family violence meant dating violence and in defining the terms "dating violence" and "dating relationship"?

Holding

Yes. The jury charge stated that a person commits the offense of violating a protective order if he knowingly or intentionally commits family violence and the person has violated the protective order by committing an assault. While the Code's definitions of "dating violence" and "dating relationship" affect the meaning of the family violence element of the offense, the defendant's actions in striking and pushing his girlfriend still qualified as assaultive element.
Read opinion.

Concurrence

Judge Hervey joined in the court's opinion, but disagreed to the extent that it could be read as deciding that the protective order did not reasonably convey the information to the defendant, but that any reasonable person in the defendant's position reading the protective order should nonetheless have gleaned the information from it. She also disagreed with the Court's suggestion that the person to whom a protective order is directed must actually know the contents of the protective order in order to be liable for violating it.
Read concurrence.

Commentary

This case emphasizes the need to go over your protective orders carefully to make sure that they provide all that you want them to provide. It did not present a problem ultimately in this case because the order could be read as a whole to prohibit the defendant's conduct.

Texas Courts of Appeals

Townes v. State - 4th COA

04/22/09 : Cite No. 04-08-00392-CR : Warrantless Search of Probationer

Issue

Where the accepted conditions of the defendant's probation included that he consent to any warrantless search of his person, residence or any vehicle which he operated, occupied or possessed at any time by any probation officer, without prior notice, did the trial court correctly deny his motion to suppress evidence of a gun found in his possession?

Holding

Yes. The conditions of his probation expressly prohibited him from possessing any contraband, including illegal weapons, controlled substances or illegal drugs. The terms of his probation authorized a search by any probation officer to determine whether he was complying with the specified conditions. The evidence established the search, conducted by a probation officer, was to determine whether he had any illegal drugs or weapons and was valid.
Read opinion.

Commentary

This is a great decision upon which you can rely if you have a case in which a probation officer has been forced to conduct a search of your defendant. It will be interesting to see if the court of criminal appeals wishes to review this decision.

Christian v. State - 6th COA

04/24/09 : Cite No. 06-07-00163-CR : Felony Murder

Issue

Where the defendant was convicted of murder committed in the course of delivering a controlled substance, did Penal Code §1.03 bar the use of a violation of a drug offense in the Health and Safety Code as the felony required to prove an element of murder?

Holding

No. The felony offense of murder, contained in the Penal Code, was charged by the indictment and the manner and means of proving this form of murder was by the commission of a felony. The felony drug offense supplied the intent for felony murder and no new offense was created in the indictment.
Read opinion.

Commentary

This is yet another in a now long line of decisions that at least theoretically allows any felony to be the underlying offense for felony murder, just as long as it is not manslaughter or a lesser included offense of manslaughter.

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