Weekly Case Summaries: March 5, 2010

Texas Court of Criminal Appeals

State v. Powell

03/03/10 : Cite No. PD-1205-08

Issue:

Did police officers unlawfully seize two safes that were not specifically mentioned in the search warrant for the defendant's home?

Holding:

No. While the warrant did not name those specific safes, it did instruct officers to "search for the property described in the affidavit, and to seize the same," and a safe was mentioned in the affidavit. Additionally, the other named items to be searched for could reasonably have been inside the safes, making exclusion of any evidence obtained an improper remedy even if the defendant's Fourth Amendment rights were violated. Read Opinion.

Concurrence:

Judge Womack would not reach the issue of the applicability of the exclusionary rule. Read Concurrence.

Dissent:

Judge Price agrees with the lower court's finding that the officers could have searched the safes while they were on the premises, but they could not remove the safes to a different location to conduct the search absent exigent circumstance. Read Dissent.

Commentary:

Look for this case to show up on the next specialization exam. Moral of the story is to bring a locksmith or dynamite to the search of a home that could have a safe. Also, try to think of every place where evidence could be hidden and get permission to seize it.

Wilson v. State

03/03/10 : Cite No. PD-0307-09

Issue:

Does Code of Criminal Procedure article 38.23 bar the admissibility of a confession if the interrogating officer fabricates a forensic lab report in violation of Penal Code section 37.09 (tampering with or fabricating evidence) and uses it to persuade a suspect to confess?

Holding:

Yes. While oral trickery is allowed during interrogations, Section 37.09 is intended to prohibit this type of conduct during investigations. Unlike oral misrepresentations, fabricated documents have the appearance of authenticity and may end up being retained. Read Opinion.

Dissent:

Judge Myers states the detective could not be convicted of fabricating physical evidence and as a result the confession should not be suppressed. Read Dissent.

Dissent:

Judge Keasler finds the error was not properly preserved. Read Dissent.

Dissent:

Judge Hervey states that the defendant had no standing to complain about the alleged Section 37.09 violation because the interrogating officer did not violate any of the defendant's personal or property rights, as required to get relief under Article 38.23. Read Dissent.

Commentary:

Texas continues to discover new meaning in the statutory exclusionary rule. Doesn't anyone on the CCA think that 38.23 was written for the exclusion of only evidence obtained through an unlawful search or seizure and NOT a law violation connected to an interrogation? Most objectionable is the summary conviction of an officer without a trial for an act that is perfectly fine if done verbally. A footnote suggests that the prosecutor could have raised an additional argument of attenuation. Every officer in the State should read this opinion.

Langham v. State

03/03/10 : Cite No. PD-1780-08

Issue:

Did the trial court err in allowing an officer to testify about the out-of-court statements of the confidential informant regarding the criminal activities at the defendant's home?

Holding:

Yes. The confidential informant's statements were testimonial in nature, were put to evidentiary use for the truth of the matter asserted, and the State failed to show that the out-of-court declarant was unavailable to testify at trial and that the appellant had a prior opportunity to cross-examine him. Therefore, admission of the statement violated the defendant's Sixth Amendment right to confrontation. Read Opinion.

Dissent:

Presiding Judge Keller disagrees with the finding that there was more detail than was necessary in the out-of-court statements and with the decision to remand for another harm analysis. Read Dissent.

Dissent:

Even assuming a Confrontation Clause violation, Judge Hervey states the proper course of action would have been to request a limiting instruction on the testimony. Read Dissent.

Commentary:

Judge Hervey makes a strong point that the evidence was admissible on a separate, independent legal theory. She also is right that appellant had a duty to request a limiting instruction. Unfortunately, the majority punts on those issues. Not to worry, everything is very likely again to be held harmless on remand.

Safety National Casualty Corporation v. State

03/03/10 : Cite Nos. PD-0245-09 & PD-0246-09

Issue:

Is it proper to assess civil appellate filing fees in criminal bond-forfeiture cases on appeal?

Holding:

No. Civil filing fee statutes do not apply in criminal matters. Read Opinion.

Concurrence:

Presiding Judge Keller adds that the language changes in the statutes do not promulgate any filing fees. Read Concurrence.

Concurrence:

Judge Myers notes the arguments of the Amicus Curiae provided by the Professional Bondsmen of Texas which discuss the difference between ‘rules' and ‘statutes'. Read Concurrence.

Dissent:

Judge Holcomb states that according to CCP Article 44.44, the appeal should be governed by the rules of civil procedure which allow the assessment of filling fees. Read Dissent.

Commentary:

Weird that a civil case ends up being a criminal matter.

Texas Courts of Appeals

Sweed v. State

02/25/10 : Cite No. 01-08-00349-CR

Issue:

In an aggravated robbery trial, should the trial court have submitted an instruction on the lesser-included offenses of theft and assault?

Holding:

No. There was no evidence from which a rational jury could find that, when the defendant used the knife, he lacked the intent to maintain control over the stolen property. Read Holding.

Dissent:

Yes. A jury could have decided that the assault did not happen in the immediate flight from the theft. The offenses were separated by time, location, and intervening events. Read Dissent.

Commentary:

Nothing new here. The standard two-prong test for a lesser-included offense, Still, who steals a nail gun at knifepoint from a construction site?

State v. Reyes

02/24/10 : Cite No. 08-08-00164-CR

Issue:

In a theft case enhanced by two prior theft convictions to a state jail felony, did the trial court improperly grant a motion to quash on grounds that it lacked felony jurisdiction?

Holding:

Yes, the State is not required to prove up the prior convictions at a hearing on a motion to quash because they are jurisdictional elements of the alleged offense. Read Opinion.

Commentary:

The court of appeals is dead on right. Nonetheless, the issue of whether a probated theft case is a conviction for the purpose of elevating the case to a felony is the subject of ongoing litigation. For a discussion of that litigation, check out the TDCAA User Forum here.

Sandoval v. State

02/26/10 : Cite No. 08-08-00189-CR

Issue:

Did the trial court improperly deny a motion to quash where the State alleged a felony driving while intoxicated offense as the underlying felony for a felony-murder charge?

Holding:

No, a felony driving while intoxicated offense may serve as the underlying felony in a felony-murder prosecution. Read Opinion.

Commentary:

The opinion slams the door on CCA's Judge Johnson dissent in Lomax. Well reasoned and consistent with other courts of appeals.

 

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