Texas Court of Appeals
Sawyer v. State 9th COA
08/29/09 : Cite No. 09-08-00229-CR :Deferred Adjudication
Does §5(b) of Article 42.12 control over §15(a)(1) when dealing with adjudicating guilt and imposing sentence in deferred adjudication cases?
Yes. Although the 2007 version of Article 42.12, §15 called for mandatory community supervision in some drug cases, §5(b) is the more specific (and therefore controlling) statute in deferred adjudication cases. The Beaumont court joins the Dallas Court of Appeals in holding that §5(b) controls over §15(a)(1) in deferred adjudication cases. Read Opinion.
So, for 15 years we have been unnecessarily placing people on mandatory probation for SJF POCS following adjudication? Although the result is satisfactory enough, the court of appeals fails to deal with the meaning of the 2007 amendment placed in section 15 (dealing with state jail felony automatic probation) that authorized a direct sentence following adjudication, for convictions after 8/31/07, regardless whether the defendant had a prior felony conviction. (The Dallas court of appeals opinion in Dudley even referenced that change in a footnote, presumably as proof of what the Leg meant all along.) But isn't that change some evidence that the Legislature thought section 15 trumped section 5 and needed to be amended to extend such authority? Otherwise, the amendment was a useless act, and we all know the Legislature is presumed not to do a useless act.
State v. Wilson 11th COA
8/28/09 Cite No. 11-08-00126-CR Reasonable Suspicion
Is a defendant's nervousness enough to establish reasonable suspicion for a detention when the defendant is on parole?
No. Nervous behavior, including fidgeting, is a pertinent factor in determining reasonable suspicion, but nervousness alone is not sufficient to provide reasonable suspicion. After the traffic stop's purpose was complete and the defendant refused to consent to a vehicle search, there was no reason to detain the defendant. Read Opinion.
This is a very poorly reasoned opinion. A dog sniff search of the exterior of a car within 13 minutes of an officer stopping a parolee (for a drug offense) for speeding, and before a return on a warrant request to dispatch, is easily a reasonable search or seizure under the Fourth Amendment. (And much of the delay was because the parolee couldn't find his insurance card.) Unfortunately, the trial court's decision is subject to review with great deference as to the historical facts. That makes it very unlikely the case will get review on PDR. For a discussion of this and related cases and the etymology of "barrow ditch", go to the TDCAA User Forum here.
TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to firstname.lastname@example.org. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.