Weekly Case Summaries: October 23, 2009

Texas Court of Criminal Appeals

Gardner v. State

10/21/09 : Cite No. AP-75,582 : Police Custody

Issue:

Was the court correct in admitting the defendant's statements made to the detective when the defendant was the "focus" of the investigation?

Holding:

Yes. Being the "focus" of the investigation does not necessarily render a person "in custody" for purposes of receiving Miranda warnings or those required under article 38.22 of the Code of Criminal Procedure. The defendant voluntarily spoke with the detective who told the defendant that he was not under arrest. Read Opinion.

Commentary:

This case involves a very sad domestic violence situation that ended in a capital murder. The brief facts of the case tell a story of a wonderful woman whose life was gradually and then literally swallowed whole by this waste of a defendant. The defendant's statement was not particularly strong for the State's case. When the investigating officer told the defendant that the victim was still alive, the defendant replied that she could tell the officer what had happened if she wanted to do so. But interestingly in this case, the opinion includes a rather thorough discussion concerning the admissibility of the murder victim's 911 call as a dying declaration.

Resendez v. State

10/21/09 : Cite No. PD-0917-08 : Taping Requirements

Issue:

Does a motion to suppress, arguing that videotaped statements "were taken without the safeguards required by and in violation of" CCP Article 38.22, sufficiently preserve for appeal an argument that police failed to tape Miranda warnings as required by Article 38.22, §3(a)(2)?

Holding:

No. A statutory argument about violation of Article 38.22, §3(a)(2) is legally distinct from a constitutional argument about Miranda. The argument that the defense made at trial focused more on a police violation of his rights under the U.S. and Texas Constitutions by failing to Mirandize him at all. Read Opinion.

Dissent:

Judge Holcomb would find that the majority applied the preservation of error rule in T.R.App.P. 33.1 too strictly and placed too large a burden on defense counsel. Read Dissent.

Commentary:

This decision may really only help you on appeal if you confront a situation in which defense counsel has not properly preserved error. But the decision also emphasizes the importance of first knowing and then making the correct legal arguments. 

Ford v. State

10/21/09 : Cite No. PD-1753-08 : Hearsay in Suppression Hearings

Issue:

May a trial judge rely on an unsworn police offense report in ruling on a pretrial suppression motion?

Holding:

Yes. In a pretrial motion to suppress hearing, a trial court may rely on any relevant, reliable, and credible information, including unsworn hearsay. There is no requirement in CCP Article 28.01, §1(6) that all information a trial judge considers must be accompanied by affidavit or testimony. Read Opinion.

Concurrence:

Judge Price agrees that Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002), mandates the result in this case, but he notes that following the rule of stare decisis "does not compel me to be particularly sanguine about it." Read Concurrence.

Dissent:

Judge Meyers wrote that the court of appeals should be given the opportunity to review the arrest report and decide whether it supports the trial court's findings of fact in the State's favor. He further would find that no exception to the warrant requirement authorized a search of the defendant's vehicle in this case. Read Dissent.

Commentary:

First of all, do not attempt to apply this holding concerning motions to suppress to other motions. Article 28.01 essentially makes motions to suppress a very special animal. But I would not recommend in the typical case just introducing your offense report and resting on a defendant's motion to suppress. The trial judge is not REQUIRED to accept such evidence, and the court also suggests that the trial court could abuse its discretion in considering such evidence if the defendant was able to suggest that the offense report was unreliable. But in this case, the defense made no argument that the offense report was, in any way, unauthentic, inaccurate, unreliable, or lacking in credibility. The defense only suggested that the offense report should have been accompanied by a sponsoring witness or an affidavit. Remember that this rule concerning motions to suppress works both ways. A trial court has the authority to rule on a motion to suppress based SOLELY on the motion itself, and the State might be required to rebut all kinds of things that the defense has put in its motion.

Kennedy v. State

10/21/09 : Cite No. PD-1318-08 : Appealing Plea Bargains

Issue:

If the parties entitle plea papers "open plea" but the record shows that the parties treated the plea proceeding as a charge-bargain agreement, which subsection of T.R.App.P. 25.2 governs the defendant's right to appeal?

Holding:

Rule 25.2(a)(2), which allows a defendant to appeal: 1) matters raised by written motion filed and ruled on before trial (such as the suppression motion in this case) or 2) after getting the trial court's permission to appeal. Citing Shankle v. State, 119 S.W.3d 808 (Tex. Crim. App. 2003), the court concluded that merely titling the plea papers "open plea" does not convert a charge-bargain case into an open plea case. Read Opinion.

Commentary:

You may think that you have an "open plea" or a plea without an agreed recommendation from the State as to punishment, but if you agree to dismiss two of the defendant's other cases in exchange for his plea of guilty (a charge bargain), you have effectively turned the "open plea" into a plea bargain that is covered by different rules concerning the defendant's right to appeal. 

Texas Courts of Appeals

 

Rogers v State : 1st COA

10/15/09 : Cite Nos. 01-04-01252-CR and 01-04-01253-CR : Lesser Included Offenses

Issue:

Does the similarity of the required underlying evidence make aggravated assault a lesser-included offense of attempted aggravated sexual assault?

Holding:

No. Determining whether an offense is a lesser-included offense of the alleged offense is a question of law that does not depend on the evidence to be produced at trial but, rather, on the elements in the charging instruments. For aggravated assault, the State must show the defendant threatened imminent bodily injury with a deadly weapon, as compared to attempted aggravated sexual assault, which requires a lesser burden of using or exhibiting a deadly weapon in the course of the same criminal episode. Read Opinion.

Commentary:

In addition to holding a knife to the victim's throat and ripping off her blouse, he was found to be in possession of a leash, a roll of electrical tape, a roll of duct tape, a stocking, and an item that appeared to be a gag. It appears that the defendant was contemplating committing a number of different offenses, and not just one.

Tenorio v State - 7th COA

10/13/09 : Cite No. 07-09-0055-CR : Value of Property in Theft Cases

Issue:

When the manner of theft includes paying for a portion of the property (in this case, paying for only some of the items taken from a retail store), is the State obligated to show the value of any consideration given?

Holding:

No. The defendant has the burden to show both that consideration was given and how much it was. Neither burden is on the State. After stealing goods from the retail store (by placing a number of items inside a box containing a large item, then only paying the cashier for the large boxed item), the defendant failed to do more than provide evidence that she paid the cashier some money. Read Opinion.

Commentary:

This is a very short opinion, but it is a good and faithful interpretation of Section 31.08(d) of the Penal Code. It should be very helpful if you have to prosecute this type of theft case. 

 

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