Weekly Case Summaries: February 26, 2010

Supreme Court of the United States

Florida v. Powell

02/23/10 : Cite No. 08-1175

Issue:

Are the warnings that a suspect has "the right to talk to a lawyer before answering any of [the law enforcement officer's] questions" and that he can invoke this right "at any time . . . during th[e] interview" sufficient to satisfy Miranda?

Holding:

Yes, while the four warnings are "invariable," the Court has not dictated the words required. Taken together, these two warnings used by the Tampa police adequately conveyed the suspect's right to a lawyer at the outset and at all times during the interrogation. Despite this holding, the Court expressly notes that the standard warnings used by the FBI are "exemplary." Read Opinion

Dissent:

Justice Stevens states the warnings are not clear enough to inform the suspect he has an ongoing right to counsel during the interrogation.

Commentary:

This is quite similar to the holdings that the Court of Criminal Appeals has reached with regard to complying with the "warnings" mandated by Article 38.22 of the Code of Criminal Procedure, which apply in Texas. The Texas court has always held that an officer must only "substantially comply' with those warnings. He need not read them to the defendant verbatim from the statute.

Maryland v. Shatzer

02/24/10 : Cite No. 08-680

Issue:

Did the police violate an inmate's right to counsel by questioning him 30 months after the inmate initially invoked the right during an investigation about the same crime?

Holding:

No. Although under Edwards there is a presumption that, after a suspect has invoked his rights, any subsequent waiver in response to police questioning is involuntary, the passage of 14 days is sufficient to allow the person to "reacclimatize" to their "accustomed surroundings and daily routine" and "regain the degree of control they had over their lives before interrogation," even if the person was incarcerated the entire time. Read Opinion.

Commentary:

This is a decision that is long overdue from the Court. You may quarrel with the length of the 14-day rule. But the Court could have very easily held to a hard line on Edwards and held that an officer could never go back and talk with a defendant after he had requested a lawyer during interrogation. This should be helpful in many cases.

Texas Court of Criminal Appeals

Ex Parte Hood

02/24/10 : Cite No. AP-75,370

Issue:

Did the U.S. Supreme Court establish new precedent following Penry I, and was the defendant entitled to a subsequent writ and a new trial on punishment?

Holding:

Yes. The Court of Criminal Appeals has ruled in several cases since 2007 that death-row inmates were entitled to have the merits of their Penry claims addressed. Read Opinion.

Dissent:

Judge Keasler finds that the lead opinion ignores CCP 11.071 and the cases the court chooses to rely on can be distinguished. Read Dissent.

Commentary:

It may be that this decision is much more an equitable ruling more than anything else. Other issues in this now-well-publicized case (nationwide) may have led the Court to feel the need to grant some relief to the defendant, even though no relief could legally be granted on the conflict-of-interest claims that the defendant had made concerning the relationship between the prosecutor and the trial judge. The ruling on the merits is pretty straightforward, but watch out for defense lawyers who may attempt to use this case's procedural ruling to get their otherwise barred writ applications to be considered by the Court.

Gonzalez v. State

02/24/10 : Cite No. PD-0337-09

Issue:

Did the trial court: 1) err when it denied the defendant's motion for new trial without first conducting a hearing, and 2) violate the Fifth Amendment prohibition against double jeopardy by authorizing conviction, over the defendant's objection, for two counts of aggravated sexual assault?

Holding:

No. The trial court could determine the merits of the the defendant's motion for new trial wholly from the record. Additionally, the two counts of aggravated sexual assault were distinct events even if they happened during the same incident. Read Opinion.

Commentary:

This is a good double jeopardy ruling, in that it makes clear that two offenses of aggravated sexual assault of a child can be prosecuted, even though the acts occurred during the same criminal episode, and even though the statutory provision that prohibits the conduct falls within the exact same statutory provision. If a defendant penetrates the victim's anus and then, shortly thereafter, penetrates the victim's sexual organ, he has committed two offenses, both of which can be prosecuted.

Joseph v. State

02/24/10 : Cite No. PD-1111-08

Issue:

Did the defendant knowingly, intelligently, and voluntarily waive his rights under Article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona even though he did not record a waiver in writing?

Holding:

Yes. The totality of the circumstances shows that defendant did knowingly, intelligently, and voluntarily waive his rights under Article 38.22 and Miranda. Read Opinion.

Concurrence:

Presiding Judge Keller makes the distinction that the defendant's statements are evidence of the waiver and not the waiver itself. Read Concurrence.


Judge Cochran states that while an explicit waiver is not invariably necessary, that does not mean that an explicit waiver is never necessary. Read Concurrence.

Commentary:

This is a holding very much in line with the court's previous decisions on the matter-an express waiver of a defendant's rights is not required. But pay close attention to Judge Cochran's concurring opinion. It is clear that a significant number of the judges on the court would much prefer it if officers would ask a defendant if he wishes to waive his rights, rather than just proceed into questioning after the defendant has been informed of his rights. A closer case may result in a ruling from the court that the defendant did not knowingly and voluntarily waive his rights.

Smith v. State

02/24/10 : Cite No. PD-1805-08

Issue:

Did the trial court err when it denied the defendant's motion to quash, which alleged that the information was fundamentally defective for failing to allege the act or acts relied on to constitute recklessness?

Holding:

Yes. The defect in the information was a substance defect. Read Opinion.

Commentary:

You will be happy to know that exposure and masturbation of your sexual organ in the presence of another human being is not inherently reckless with regard to whether another person was present who would be offended by the act. That is the unanimous court's holding in this case. Apparently, the court would have the State also allege that the exposure and/or masturbation also occurred in a public place, even though the statute does not have a public place requirement.

Holmes et al v. State

02/24/10 : Cite Nos. PD-0453-07 through -0460-07

Issue:

Did the trial court err when it denied the defendants' pretrial motion to cross-examine the State's expert on the breath-testing machine, the Intoxilyzer 5000?

Holding:

Yes. The trial court's erroneous ruling denied the defendants the right to present a defense, and without the ability to present a defense, the defendants were forced to plead guilty. Read Opinion.

Commentary:

This holding just represents a reminder that, just because a defendant has entered a plea of guilty or no contest, does not mean that he will not be able to complain about rulings made by the trial judge that may have induced him to enter a plea, as opposed to going to trial.

 

Texas Courts of Appeal

Orr v. State - 2nd COA

02/18/10 : Cite No. 02-08-143-CR

Issue:

Did arson investigators obtain valid third-party consent from a deceased husband's parents to search a residence?

Holding:

Yes. After the fire, the defendant's wife did not live in the residence, her late husband's parents maintained the property, and she asked his parents to provide investigators with access. Thus, she made her in-laws her agents. Read Opinion.

Commentary:

This is a very thorough and helpful discussion of the issue of third party consent. And if you prosecute arson cases, you will definitely want to keep this decision close. It addresses thoroughly many of the issues that come up in an arson cases.

Bazanes v. State - 2nd COA

02/18/10 : Cite No. 02-08-358-CR

Issue:

Did the trial court submit an improper jury instruction on the offense of indecency with a child?

Holding:

Yes, this court joins two other courts of appeals now holding that a jury charge injecting "intentionally and knowingly" into the specific-intent offense of indecency with a child is error (albeit harmless error in this case). Read Opinion.

Commentary:

I cannot imagine how a defendant could ever be harmed by the State's taking on of a higher burden of proof than that required by the statute, by essentially being required to prove a culpable mental state that is not required.

In re John Roach - 5th COA - Unpublished

02/17/10 : Cite No. 05-09-01451-CV

Issue:

Does the State have a right to a jury trial even though the defendant wants to plead guilty?

Holding:

Yes, the State's written consent to the waiver of a jury trial is required. Mandamus conditionally granted. Read Opinion.

Commentary:

It has been a while since trial judges have had to be reminded that the State must consent to a defendant's waiver of his right to a jury trial. Why would the State care, you ask? Well, let's hope that you never have it come up. Suffice to say that there are times when you would rather have a jury deciding a defendant's case.

TDPS v. Bratcher - 7th COA

02/19/10: Cite No. 07-09-1257-CV

Issue:

Did a prosecutor's appearance on behalf of both the county attorney's office and DPS bind DPS to the order granting the expunction?

Holding:

No, the prosecutor was careful to explain that, although the county attorney's office did not oppose the expunction, DPS did. The order of expunction was reversed. Read Opinion.

Commentary:

A very unusual fact situation that may never happen again.

In the Interest of D.J.R., E.N.R., and A.D.R. - 8th COA

02/17/10 : Cite No. 08-07-354-CR

Issue:

Do misstatements in a medical examiner's resume disqualify him as an expert witness?

Holding:

Not automatically. The court found that evidence of mistakes in the resume went to the weight but not the admissibility of his expert testimony. Read Opinion.

Commentary:

A very short discussion, but it could be helpful if you are faced with an aggressive attack upon an expert witness' qualifications. Read Local News Coverage Here.

Texas Attorney General

Request from Texas House Committee on Urban Affairs

02/17/10 : Opinion No. GA-0760

Issue:

May a sheriff accept a fee from a private organization that contracts with the sheriff's county to operate the county jail?

Opinion:

No. Neither the Texas Constitution nor Texas statutes authorize the person holding the office of county sheriff to be paid an administrative fee by a private organization. Read Opinion.

 

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