Weekly Case Summaries: January 15, 2010

Texas Courts of Appeals

In re Morton - 3rd COA

01/08/10 : Cite No. 03-08-00585-CR

Issue:

Did the trial court properly deny Morton's motion for DNA testing?

Holding:

Yes, partly. The trial court properly denied testing of 1) evidence collected in connection with a separate but similar murder because the evidence was not secured in relation to Morton's charged crime and 2) fingerprints because they did not contain biological evidence. But testing of a blood-stained bandana found behind the murder-scene house should be permitted. Morton established by a preponderance of the evidence that he would not have been convicted if exculpatory results were obtained from the test. Read Opinion.

Commentary:

Be glad the court of appeals decided that the defendant may not demand testing in totally unrelated cases in a wild attempt to find someone else to blame. As for the bandana, this is still a long shot. It was found a football field away, through some woods, at a construction site, where a construction worker certainly was likely to have left it. Testing would have to show that it contains DNA from both the victim and a new, undiscovered third-party before it could even theoretically be exculpatory. And, even then, we would have to jump to the conclusion that the third-party is the killer. Of course, the third-party could have just blown his nose on the bandana and have had nothing to do with any of this. (Meanwhile, the opinion fails to mention that previous DNA testing of semen and hair have strengthened the State's case by confirming previous arguments that those items belonged to the defendant.) You will see this case mentioned next Legislative session when defense attorneys try to amend the DNA law to expand access to testing.

Arizpe v. State - 4th COA

01/06/10 : Cite No. 04-09-00131-CR

Issue:

Did the trial court properly deny a motion to suppress asserting a lack of reasonable suspicion for a traffic stop?

Holding:

Yes. Unsolicited, the anonymous citizen with no police connection made face-to-face contact with the officer to give a detailed description of the dangerous driving conduct and identified the car in question. This provided sufficient indicia of reliability for her tip. Moreover, the officer saw the car, noticed its position at the light between two lanes of traffic, and had the tip information, so he possessed reasonable suspicion to stop it. Read opinion.

Commentary:

Why does every search and seizure issue have to include some list of factors for everyone to thereafter follow? The list is always based on an isolated fact pattern and never covers everything that could happen. And then it becomes some sort of new legal mantra (anyone remember "affirmative links"?) that can never be changed. The only test should be: did the facts justify the officer concluding he had reasonable suspicion to stop the car. When driver takes the time to stop and give detailed information to an officer, including pointing to the object of that information, then of course the officer had reasonable suspicion.

Daniels v. State - 10th COA

01/06/10 : Cite No. 10-08-00337-CR

Issue:

In a murder case, should the trial court have submitted a lesser-included offense instruction on deadly conduct?

Holding:

No. While deadly conduct is a lesser-included offense of murder, a rational juror could not have found that Daniels, if guilty, was guilty only of deadly conduct. Daniels' own argument raised the intermediate offenses of manslaughter or criminally negligent homicide. Read Opinion.

Commentary:

The Waco Court of Appeals, at least for two of the judges, seem to still be irritated over a reversal for procedural default in the Pena case (due process and destruction of evidence), all of which has nothing to do with this case, as Chief Justice Gray points out. Defendant loses because there are no facts that would make him guilty only of deadly conduct. At best, he could have gotten a manslaughter charge, but he didn't ask for that. By the way, a good judge will encourage the defense attorney to provide some more detailed explanation as to why a lesser-included charge is warranted.

Lopez v. State - 10th COA

01/06/10 : Cite No. 10-08-00400-CR 

Issue:

Did the charge incorrectly instruct the jury on the punishment for a first-degree offense when the indictment alleged a second-degree offense?

Holding:

Yes. The record did not contain an order granting the State's motion to amend the indictment; thus, the jury charge submitted a greater offense (and punishment) than alleged in the indictment. Read Opinion.

Commentary:

The Waco Court of Appeals continues its assault on the Court of Criminal Appeals over the Pena reversal by trying to use it in justifying reversal on direct appeal without any briefing on an issue. Chief Justice Gray, who has been quiet recently, may have to resume his dissenting status. Nonetheless, the State did fail to amend the indictment by making changes to the face of the indictment.

Dissent:

As in Daniels (also summarized today) the Court does not agree on the application of Pena. Chief Justice Gray also takes issue with the majority reaching an issue raised, briefed, argued, and decided without the parties' input.

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