Weekly Case Summaries: August 21, 2009

Texas Courts of Appeals 

McMillon v. State - 6th COA

08/12/09 : Cite No. 06-08-00201-CR : Impeachment Testimony

Issue

In the defendant's trial for intoxication assault did the trial court correctly refuse to allow him to attempt to impeach an expert witness, a former patrol officer with the Texas Department of Public Safety, by introducing evidence of his prior misconduct?

Holding

Yes. The defendant did not make any connection between the former DPS officer's alleged misconduct and any motive that the officer might have had to lie or demonstrate bias in the defendant's case. The defendant's request was properly barred as impeachment testimony and the incident he sought to bring up did not bear on the former officer's reputation for truthfulness.
Read opinion.

Commentary

The court of appeals did note that the defense did not argue or show that the officer's previous "phantom" warning citations would demonstrate his bias or his motive to lie in the defendant's case. It is not clear that the defendant would have been able to prevail, even if he had attempted to make such a connection. The case law--what little there is--routinely prevents a defendant from impeaching an officer with prior specific acts of misconduct.

Keith v. State - 11th COA

08/13/09 : Cite No. 11-08-00140-CR : Presumption of Innocence

Issue

Did the trial court's decision to use visible restraints on the defendant, who was charged with killing his mother and then setting her on fire, unduly compromise his presumption of innocence?

Holding

No. The defendant had previously assaulted two deputies; kicked the windows out of a jail van; had been convicted of retaliation for threatening two peace officers, of unlawfully carrying a weapon on licensed premises, and of aggravated assault; and had been involved in fights with other inmates over card games while awaiting trial. Other inmates were afraid to turn their backs to him and jail personnel had to pre-empt further violence by housing him in a high-risk to super-max classification and by bribing him with extra food to take his medication. The trial court's concern over the possibility of a violent outburst in light of the defendant's history outweighed any assumption by jury members.
Read opinion.

Commentary

Okay, this case should be the exception that proves the rule. A trial judge should generally never permit a jury to see the defendant restrained in court. But good grief this defendant did everything to demand the need for restraints. Nevertheless, you should be very cautious about acquiescing to a trial judge's restraint of one of your defendants.

Le v. State - 14th COA

08/13/09 : Cite No. 14-08-00582-CR and 14-08-00583-CR : Habeas Corpus

Issue

Did the trial court have jurisdiction to consider the habeas corpus appeal of a resident alien who, after pleading guilty to two counts of misdemeanor theft, was detained not by the state of Texas but by the federal government?

Holding

Yes. Code of Criminal Procedure Art. 11.09 allows a person confined on a misdemeanor charge to apply for habeas relief. That the defendant was not held in the custody of the state of Texas did not deprive a Texas trial court of jurisdiction over her habeas applications as long as she faced a collateral legal consequence resulting from her Texas misdemeanor convictions.
Read opinion.

Commentary

As noted by this decision, Houston's appellate courts have always given a very broad construction of what constitutes being "confined," for the purposes of a pre-trial or misdemeanor writ of habeas corpus. But I would not hold my breath with the expectation that the Court of Criminal Appeals will attempt to restrict that construction.

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