Weekly Case Summaries: June 26, 2009

Texas Courts of Criminal Appeals

Whitaker v. State

06/24/09 : Cite No. AP-75,654 : Proffer and Plea Negotiations

Issue

In the defendant's trial for the capital murder of his family, were the State's references to the defendant's proffer and the court's exclusion of it in the record permissible?

Holding

Yes. The proffer and the plea negotiations were a significant part of the defendant's mitigation case at punishment. They showed that he was willing to plead to as many life sentences as the State was seeking to take responsibility for the crime and to spare his remaining family members the ordeal of a trial. The defendant testified that his guilt was never an issue and that he never planned to present a defense to the charges against him at the guilt-innocence phase of trial. The defendant made no objection to the State's references to the proffer and to the plea negotiations and therefore waived any error.
Read opinion.

Commentary

It is not a huge surprise that the defendant had little to raise in his appeal. His most significant point dealt with the State's elicitation of evidence to which the defendant had clearly already opened the door. You will be hard pressed to find a more despicable fiend for a defendant than this one. He lied to his family about being in college and graduating. After he celebrated with his family for "graduating" from "college," he led them to his residence, where his roommate proceeded to gun the defendant's family down. The defendant had been planning the execution of his family in order to gain money. If you ever have someone question whether the death penalty is appropriate for someone who did not "pull the trigger," show them this defendant.

Ex parte Arce

06/24/09 : Cite No. AP-76,098 : Sex Offender Registration

Issue

In the defendant's trial for failure to register as a sex offender, was he required to register when his sexual assault sentence had discharged before the September 1, 1997, effective date of the relevant amendment to the registration statute?

Holding

Yes. In determining whether a defendant must register as a sex offender, revocation of mandatory supervision for sentences that were stacked under the old statute places the releasee in the same position he was in when he was released. The defendant's sentence had not yet discharged when he was released, so it remained undischarged when his mandatory supervision was revoked. He was in custody on the sexual assault offense on the effective date of the statute requiring sex-offender registration.
Read opinion.

Commentary

My brain still hurts when I try to figure out how the Court of Criminal Appeals and the Department of Criminal Justice construe when a defendant is subject to being released or discharged from prison or parole. This decision will only be of importance to those who deal with post-conviction writs of habeas corpus, and then only for those defendants who have a charge that is still affected by the law as it existed in 1987.

Texas Courts of Appeals

Walker v. State - 6th COA

06/23/09 : Cite No. 06-08-00232-CR : Notice of Hearing

Issue

In the defendant's trial for bail jumping, had he received sufficient notice of his felony arraignment hearing when the formal notice was not mailed to the address he provided at the time of his arrest, but to an address differing only in the usage of "street" vs. "lane" and was not returned as "undelivered" to the clerk?

Holding

Yes. While the notice was sent to an address on Walker Lane (the address the defendant provided at the time of his booking and the actual location of the defendant's residence), there is little doubt that in the town of 1,500 it would not have been correctly delivered when addressed as Walker Street. The bondsman also spoke with the defendant's relative who said that the defendant had received the notice and would contact the bondsman before that hearing date.
Read opinion.

Commentary

The State is not technically required to prove that the defendant had notice of a particular setting, but the State IS required to prove that the defendant intentionally and/or knowingly failed to appear, and the State is required to prove (if the defense is raised) that the defendant did not have a reasonable excuse for failing to appear. This will be a good decision to use if you have a defendant challenging his guilt in a bail jumping case.

Kacz v. State - 14th COA

06/23/09 : Cite No. 14-07-00841-CR : Invocation of Rights

Issue

In the trial of an off-duty police officer for deadly conduct, should the court have granted a mistrial when the State inquired about the defendant's invocation of his right to remain silent and his right to counsel?

Holding

No. The prosecutor never asked the witness if the defendant actually invoked his right to silence; he merely mentioned that the defendant stopped talking. The witness never answered the State's question about remaining silent and the right to counsel, so the jury never heard whether the defendant had invoked any constitutional rights.
Read opinion.

Commentary

But it is still a good idea not to ask a witness whether a defendant invoked his constitutional right, particularly his right to an attorney.

Attorney General Opinions

Opinion Request from the Delta County Attorney

06/04/09 : Cite No. RQ-0807-GA : Use of County Property

Issue

Is it legal for a county employee to use a county vehicle to transport a non-county employee both during and after work hours?
Read opinion request.


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