Weekly Case Summaries: February 12, 2010

Please check out the information on NDAA's "Prosecuting Homicide Cases " Seminar.  Click here for details.

Texas Court of Criminal Appeals

Swearingen v. State

02/10/10 : Cite No. AP-76,073

Issue:

Did the court correctly deny the defendant's third motion for DNA testing when there was a "mountain of inculpatory evidence" even if the DNA evidence might be exculpatory?

Holding:

Yes. Because of the overwhelming evidence of guilt independent of any potentially exculpatory DNA testing and the appellant's inability to show a 51-percent probability that he would not have been convicted, the court was correctly denied the motion. Read Opinion.

Commentary:

This is a very good decision for prosecutors who are forced to respond to requests for post-conviction DNA testing from defendants who are really not entitled to any such testing. The opinion makes it very clear the burden that is placed on the defendant, and it also makes clear that a trial court can deny a motion for post-conviction DNA testing based--at least in part--upon a finding that the defendant was merely delaying in his request for testing. This defendant waited until just before he was scheduled to be executed to make his THIRD request for testing, when he could have made that request during his first or second requests. Read the facts of this case, and you will realize that the defendant is definitely the man who kidnapped, raped, and killed this poor college student, and then left her body in the forest. No amount of DNA testing would change that fact. 

State v. White

02/10/10 : Cite No. PD-0193-09

Issue:

Did the trial judge properly quash an indictment after 17 years based on the judge's speculation that the defense might have difficultly in presenting its case?

Holding:

No. There was no evidence that the delay was intentional nor that any evidence had been lost in bad faith. Mere speculation that the 17-year delay had substantially prejudiced White's defense was not enough to violate the Sixth Amendment's speedy trial guarantee. Read Opinion.

Commentary:

This defendant was faced with a 17-year delay in being prosecuted, and he never once cited Barker v. Wingo or his Sixth Amendment right to a speedy trial? What was he thinking? 

Kisch v. State

02/10/10 : Cite No. PD-0379-09

Issue:

Did the trial court err when it instructed the jury that the defendant's BAC test results could be considered only "for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test"?

Holding:

Yes. While the limiting instruction was improper and misleading, it did not actually prevent the jury from using the test results, along with other evidence, to conclude that the defendant was per se intoxicated. Read Opinion.

Dissent

The dissent agrees that the limiting instruction was improper, but because the instruction was given, the jury was required to follow it. There was no evidence of a per se intoxication as required by the jury instruction and the verdict may have been the result of the jury considering the wrong theory of intoxication.Read Dissent.

Commentary:

Maybe now--once and for all--we can all--prosecution, defense, and trial judge--realize that the State can introduce the results of a defendant's blood alcohol concentration test, even though the State cannot produce any retrograde extrapolation testimony. And the defendant will not be entitled to any limiting instruction. The jury is free to consider the results of the test as probative of whether the defendant was intoxicated at the time that he was driving. If you prosecute driving while intoxicated cases, make sure that you have this decision readily available. The court also makes clear in this opinion that any limiting instruction given by a trial judge must be based upon a statutory provision. Otherwise, such an instruction cannot be given because it would constitute a comment on the weight of the evidence. 

Texas Courts of Appeals

DPS v. Dahlquist - 1st COA

02/04/10 : Cite No. 01-08-00559-CV

Issue:

Was DPS entitled to review by restricted appeal under Tex. R. App. P. 26.1(c) to challenge a trial court's ruling granting an expunction to a person placed on deferred adjudication probation?

Holding:

Yes. DPS 1) filed notice of appeal within six months after the judgment or order was signed; 2) was a party to the underlying suit; 3) did not timely file a post-judgment motion or request for findings of fact or conclusions of law, or a notice of appeal; and 4) did not participate in person or through counsel in the trial. The trial court erred, and the error is apparent from the face of the record. Read Opinion.

Commentary:

A restricted appeal is an unusual animal, even in civil cases. But you need to be aware of the provisions for it, especially if you prosecute civil cases and they often result in default or summary judgment. 

Lopez v. State - 4th COA

02/03/10 : Cite No. 04-08-00695-CR

Issue:

Should the trial court have suppressed an officer's testimony that the defendant nodded her head when the officer asked her if she shot her husband?

Holding:

No. Although Lopez had been read her warnings, the record implicitly supports a finding that she was not in custody. Read Opinion.

Commentary:

If this had been a State's appeal, you might expect a different result. But the fact the defendant admitted that she voluntarily went to the police station appears to be difference maker in this case, suggesting that she was in fact not in custody at the time that she made the "statement." 

Hartsfield v. State - 6th COA

02/04/10 : Cite No. 06-09-0006-CR

Issue:

Did the trial court properly admit extraneous offenses at the guilt stage of the trial of a person charged with the infamous "KFC murders?"

Holding:

Yes. The defendant put his identity in issue by asserting someone else perpetrated the crimes, there was sufficient similarity between the crimes, and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice in this case of largely circumstantial evidence. Read Opinion.

Commentary:

The Court of Criminal Appeals may want to review this decision, but hopefully the decision will help to continue to bring some closure to a heinous offense that occurred so long ago in 1983.

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 casesummary@tdcaa.com. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.