Weekly Case Summaries: September 4, 2009

Texas Court of Appeals

Sawyer v. State 9th COA

08/29/09 : Cite No. 09-08-00229-CR :Deferred Adjudication

Issue:

Does §5(b) of Article 42.12 control over §15(a)(1) when dealing with adjudicating guilt and imposing sentence in deferred adjudication cases?

Holding:

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.

Commentary:

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

Issue:

Is a defendant's nervousness enough to establish reasonable suspicion for a detention when the defendant is on parole?

Holding:

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.

Commentary:

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

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