Weekly Case Summaries: June 19, 2009

Texas Court of Criminal Appeals

Johnson v. State

06/17/09 : Cite No. PD-1187-07 : Victim Allocution

Issue

During the defendant's trial for two counts of indecency with a child, was it within the trial court's discretion to impose jail time as a condition of community supervision immediately after the judge heard an unsworn and un-cross-examined victim allocution that the victim wanted the defendant to go to jail?

Holding

No. Code of Criminal Procedure art.42.03 requires that a victim-allocution statement be read after the court has announced the terms and conditions of the sentence.
Read opinion.

Dissent

Presiding Judge Keller wrote that the law allows a trial judge to impose new conditions of community supervision at any time and that the plain meaning of "at any time" includes events occurring on the same day that the judgment is pronounced.
Read dissent.

Dissent

Judge Keasler wrote that the trial judge was correct in imposing 180 days confinement as a condition of the defendant's community supervision immediately after hearing the victim allocution because art. 42.12 §11(a) allows a trial judge to alter or modify the conditions of a defendant's community supervision at any time during the period of supervision.
Read opinion.

Commentary

This is not a particularly well written or reasoned decision. It is written in far too an informal fashion, and it leaves many questions unanswered. In many cases, trial courts impose conditions of probation or modify conditions of probation after the date that the sentence was imposed and after the date that the original conditions of probation were imposed. The majority seems to have a problem with the fact that the trial judge imposed the new conditions of probation "immediately" after the victim allocutions. How long should a trial judge now wait before he imposes new conditions of probation or modifies the conditions of probation? Is the majority saying that a trial judge can no longer impose new conditions of probation or modify the conditions of probation after the original conditions of probation have been imposed?

The majority seems to suggest just that when it states at the end of its opinion that the conditions of probation in this defendant's case cannot be modified until he proves to be "less than a perfect" probationer. But the majority also states just a few sentences earlier that a trial judge may impose new conditions of probation for any permissible reason, or perhaps for NO reason. Which is true? Can a trial judge impose new conditions of probation on this defendant for a permissible reason, or for no reason? Or must the trial judge wait and see if the defendant proves to be less than a perfect probationer? The majority notes that the trial judge stated on the record that the victim allocutions did not have any effect upon his imposition of the new conditions of probation? Are we to presume that the trial judge was lying? Is that the proper approach to take in a harm analysis? Is that proper harm analysis? Even in Batson cases, where the trial prosecutor has given a race neutral reason for a peremptory challenge, the defendant is supposed to present something that suggests that the trial prosecutor's race neutral reason is wrong or a sham or a pretext. The majority in this case draws an analogy to those cases in which a trial judge imposes a sentence based upon a defendant's race. But if the trial judge states that he imposed the conditions of probation for a reason other than the victim allocutions, are we supposed to automatically disbelieve him because he imposed them "immediately" after the victim allocutions? I am not saying that the majority necessarily got the result wrong in this case, or that the trial judge should not be chastised for doing what he did in the way that he did. This short opinion just leaves way too many questions unanswered. Hopefully no mischief will arise. What I am afraid will happen is that this decision will discourage victim allocutions, or it will discourage trial judges in imposing new conditions on their probationers, or both. Or that it will lead defendants to begin arguing that a trial court cannot impose new conditions on a defendant's probation unless and until there is a new permissible reason to do so.

Smith v. State

06/17/09 : Cite No. PD-0777-08 : Ineffective Assistance of Counsel

Issue

When the State filed a motion to adjudicate the defendant for new charges after his original plea and subsequent deferred adjudication, should the trial court have granted a hearing on the defendant's motion for new trial when the basis of the motion was ineffective assistance of counsel?

Holding

No. The defendant's motion for new trial and supporting affidavit raised an issue that could not be determined from the record: whether trial counsel was ineffective for failing to inform him of his right to testify on his own behalf and to enter certain medical records into evidence. The defendant failed to explain how counsel's allegedly unprofessional errors would have changed the trial court's finding of true on all three violations in the State's motion to adjudicate and failed to show that the result of the hearing to adjudicate guilt would have been different.
Read opinion.

Dissent

Judge Meyers wrote that in the 10 years since the court moved away from the Duffy standard of reasonably effective assistance of counsel standard, relief has not been granted in a single case raising ineffective assistance of counsel at the punishment phase. As long as the sentence is within the normative punishment range, the court can say that the defendant has not shown harm. Even if a defendant receives substandard representation, it is impossible for him to show that his sentence would be different if his counsel had not been deficient.
Read dissent.

Commentary

Be careful not to read this decision as requiring a defendant to prove that he would win in his motion for new trial before he is entitled to a hearing. He must only allege sufficient facts that reasonable grounds would exist that he COULD prevail.

Texas Courts of Appeals

Greer v. State - 5th COA

06/09/09 : Cite No. 05-08-00146-CR : Batson Challenges

Issue

Did the trial court correctly overrule two of the defendant's Batson objections to the State's use of peremptory strikes against African-American jurors during his trial for a drug offense?

Holding

No. The State used 100 percent of its peremptory strikes to eliminate African-American venire members when only 27 percent of the panel was African-American. One African-American panelist was struck after disclosing that a relative had been through the criminal justice system, while a white panelist with a similar experience was not and the State did not conduct any further individualized questioning of that African-American juror. The State then struck another African-American jury pool member based on his response to a question regarding officer credibility when the record reflects that several other jurors also expressed the same viewpoint.
Read opinion.

Commentary

One of the most difficult things that a trial prosecutor has to do is pick a jury - and it is one of the most important. It is difficult to develop principles that a prosecutor can follow to the letter and avoid reversals like this. I would just urge you to read the decision and strive to develop as many permissible reasons as you possibly can for exercising all of your peremptory challenges in the very short time that you have to conduct voir dire.

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