Weekly Case Summaries: August 7, 2009

Texas Courts of Appeals

Carballo v. State - 1st COA

07/30/09 : Cite No. 1-07-00824-CR : Testimony of Defendant

Issue

In the defendant's trial for aggravated robbery, did the trial court correctly rule that the defendant could not read his own written statement about the events?

Holding

Yes. The trial court itself did not actually prevent the defendant from testifying because the trial court did not have a duty to interfere with defense counsel's trial strategy not to question the defendant. Evidence showed that the defendant approached the victim and engaged him in conversation before demanding his car keys. The defendant then pulled a handgun from his pocket and shot the victim five times during the subsequent struggle. The victim, who was able to see the defendant run to a vehicle and leave the scene, called his wife and then 9-1-1 and described the defendant to officers before he collapsed. After spending a month in a coma, the victim picked the defendant out of a photographic lineup.
Read opinion.

Concurrence

Justice Jennings agreed that the defendant failed to demonstrate that actual harm resulted from defense counsel's failure to abide by the defendant's decision to testify.
Read concurrence.

Commentary

The defendant based his desire to read his statement into evidence upon his constitutional right to testify in his own behalf. The court of appeals treated the defendant's request as a request to represent himself, so it rejected the defendant's claim because no defendant is entitled to hybrid representation. The court of appeals also noted that the defendant does not have a right to read a statement free from cross-examination. The court of appeals is correct about both propositions, of course. But it may not be that simple. If the issue gets framed as a defendant's right to testify to his own version of events, the Court of Criminal Appeals may take interest on a petition for discretionary review.

Sumrell v. State - 5th COA

07/30/09 : Cite No. 05-08-00732-CR : Jury Selection

Issue

During the defendant's trial for delivery of a controlled substance, should he have been present during individual questioning of prospective jurors?

Holding

Yes. While the trial court informed the defendant that if he continued his unruly behavior he would be placed in a holding cell, the court did not later find him disruptive and commented on his improved behavior during defense counsel's general voir dire. Nothing in the record indicates that the defendant waived his right to be present. Remarks by defense counsel indicated that the defendant wanted to be present and no explanation was provided for the defendant's absence from individual questioning during voir dire.
Read opinion.

Commentary

Excluding a defendant from a courtroom should be an absolute last resort. And during jury selection, it should not be an option at all. This decision was based upon constitutional grounds, but under Article 33.03 of the Code of Criminal Procedure, not even the defendant can waive his presence during jury selection.

Stewart v. State - 6th COA

07/31/09 : Cite No. 06-08-00009-CR : Charging Error

Issue

Was the defendant incorrectly sentenced when the jury was instructed that he would not become eligible for parole until the actual time he served plus any good conduct time earned was equal to one-fourth of the sentence it imposed, an incorrect statement regarding parole law?

Holding

No. The jury did not have any questions regarding either the meaning or the application of the parole law. Nothing suggests that the misinformation regarding parole affected the jury's decision in sentencing or that it did not follow the trial court's instruction to not consider how good conduct time might apply to the defendant.
Read opinion.

Concurrence

Justice Carter emphasized that the numbers given the jury must be correct. While this particular error deprived the defendant of the right for the jury to be properly instructed of the percentage of the sentence that he must serve prior to parole eligibility and that this was egregious harm, the court was bound by the precedent of Igo.

Commentary

It would appear that the concurring opinion would have the Court of Criminal Appeals revisit one of its prior decisions that would hold that the jury charge error was harmless. Even if the high court does take this case on petition for discretionary review, however, I would not expect the result to change.

Isassi v. State - 13th COA

07/30/09 : Cite No. 013-08-00510-CR : Improper Influence

Issue

Did a county attorney commit improper influence during multiple conversations with court personnel regarding the possible prosecution of his aunt for evading arrest with a vehicle?

Holding

No. The defendant did contact court personnel and advised them that the arresting constable was under investigation, and that the assistant district attorney did not intend to prosecute his aunt for that reason, however there was no evidence that the he offered to do anything, as county attorney, in exchange for a favorable result in his aunt's case. Neither was there evidence that the defendant gave any information to court personnel that those individuals could not lawfully use in determining how to exercise their official discretion in the case.
Read opinion.

Commentary

After the defendant's aunt had been arrested for committing the offense of evading arrest, the defendant told a pre-trial services coordinator that the defendant's aunt did not need to report to pre-trial services because the case against his aunt was going to be dismissed. The defendant also told the assistant district attorney who was going to prosecute the case that the case was going to be dismissed by her boss. The defendant based his actions upon the assertion that the arresting officer was being investigated by the District Attorney's Office. It is not clear that this was true. The court of appeals may or may not be correct that the defendant's actions did not constitute the offense of abuse of official capacity. But there is no way--as claimed by the court of appeals--that the defendant's contact of the pre-trial services coordinator and his contact with the assistant district attorney constituted nothing more than "routine communications with law enforcement officials." This is embarrassing.

Ex parte Wolf - 14th COA

08/04/09 : Cite No. 14-08-00078-CR : Habeas-Corpus Relief

Issue

Did the trial court correctly grant the defendant's petition for habeas-corpus relief based on an ineffective assistance of counsel claim four years after his adjudication for stealing clothing from a department store while in college?

Holding

Yes. At the time of the original trial, the defendant told defense counsel that he needed to resolve the case in a way that would enable him to clear his record so that he could work in the banking and securities industry after college. Defense counsel did not pursue either of the options (a pretrial diversion or a Class C special expense) that would have allowed for a later expungement of the defendant's record.
Read opinion.

Commentary

The defendant's trial attorney testified that he did not apply for pre-trial diversion because he did not think that the defendant would receive it. The presumption that the defendant's trial attorney acted reasonably may have held up if the defendant was the appealing party. But in this State's appeal, the court of appeals went with other evidence that the District Attorney's Office--on occasion--would impose a Class C special expense (which would allow for an expunction), instead of pre-trial diversion (which would not).


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