Weekly Case Summaries: August 28, 2009

Texas Courts of Appeals

Mbugua v. State - 1st COA


08-21-09 : Cite No. 01-01-00690-CR : Murder : Custodial Interrogation

Issue:

In the defendant's murder trial, did the trial court correctly admit the defendant's videotaped statement during questioning at the police department's homicide division?

Holding:

Yes. The defendant's mere question to officers asking if he could wait until his lawyer got there was not enough. He needed to unequivocally and unambiguously request an attorney. Read Opinion.

Concurrence:

Justice Sharp wrote that the defendant's statements were clearly made while in custody. That the police say he was not under arrest is not enough. The defendant's guilt was not in question so the use of the suspect statement was unnecessary.  Read Concurrence.

Commentary:

This decision is very fact-intensive, but it still should be very helpful when you are confronting an issue whether the defendant invoked his right to counsel. But the defendant's videotaped statement certainly was not the only evidence that the defendant had. After the victim had apparently crawled--covered in blood--from the defendant's vehicle, the defendant calmly walked over to the victim and repeatedly stabbed him in the back. The defendant then lifted the victim's head and slit his throat twice.

Lemon v. State - 4th COA

08-19-09 : Cite No. 04-08-00405-CR : Aggravated Sexual Assault : Improper Jury Argument

Issue:

Did the trial court allow an improper jury argument when the prosecutor commented that the defendant had a designated DNA expert but did not call him to testify?

Holding:

Yes. However, the comment regarding the defense's failure to put on the expert did not call for reversal. Ample evidence, including the DNA results and the victim's testimony that the defendant sexually assaulted her continuously over three years, supported the guilty verdict.  Read Opinion.

Commentary:

A prosecutor can comment on a defendant's failure to call a witness, but the record should typically reflect that the jury was aware that the witness existed. Once again, it is great to be saved by the harmless error rule.

Newton v. State - 10th COA

08-19-09 : Cite No 10-06-00160-CR : Aggravated Sexual Assault : Remoteness of Extraneous Offenses

Issue:

Was the trial courts admission of evidence of extraneous offenses proper when the defendant claims the offense was not related to the current charge and is too remote?

Holding:

Yes. The evidence that he had previously sexually assaulted a different stepdaughter showed a pattern. Both were the same age (10) when the defendant assaulted them, and both had similar appearances. The defendant's manner was the same in both situations, as even the defendant admitted. Read Opinion.

Commentary:

This is a well-researched opinion, and it is made all the more satisfying by the fact that it had originally been reversed. You should keep this decision on remand close if you often try child sexual assault cases, where the need to offer extraneous offenses often arises.

Smiles v. State - 14th COA

08-20-09 : Cite No 14-08-00617-CR : Theft of property between $1500 - $20,000 : Value of Property

Issue:

May the prosecutor prove the value of a replacement item rather than the item that was actually stolen if the stolen item is no longer available?

Holding:

No. The prosecution had evidence of the cost of a similar air conditioner unit but never introduced evidence of the actual value of the property stolen. The defendant stole only the exterior portion of the unit and left the now-useless interior unit behind. Because only part of the unit had been stolen, the prosecution needed to show the value of that portion, not the total value of the ruined unit. Read Opinion.

Commentary:

This is an interesting argument from the State, and I would like to see the Court of Criminal Appeals review it. If a defendant takes a part of something and renders the whole lost to the victim, is that at least some evidence that the defendant withheld the whole property from the owner for so extended a period of time that a major portion of the value or enjoyment of the property was lost to the victim? That is one of definitions for "deprive" in Chapter 31 of the Penal Code.

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