Weekly Case Summaries: April 23, 2010

Texas Courts of Appeals

Jackson v. State - 1st COA

04/15/10 : Cite No. 01-09-00223-CR

Issue:

In the guilt/innocence stage of an engaging in organized criminal activity trial, did the court improperly admit evidence of (1) two offenses committed by other gang members but not Appellant, and (2) a handgun seized from Appellant a year before the charged offense?

Holding:

Yes, any probative value of the evidence was substantially outweighed by the danger of unfair prejudice and was harmful. Indeed, the evidence was not even admissible at the punishment stage. Read Opinion.

Commentary:

I really hope that the Court of Criminal Appeals takes this case on petition for discretionary review because prosecutors need guidance from the high court as to precisely what gang evidence is admissible in engaging-in-organized-criminal-activity prosecutions.

Hilburn v. State - 2nd COA

04/15/10 : Cite No. 02-08-00276-CR

Issue:

Is there a fatal variance between an intoxication manslaughter indictment alleging death caused by the defendant's car "driving into and against" the victim's car and evidence at trial showing the victim's death resulted from fumes from a fire caused by the impact?

Holding:

No, the variance (if any) is not material. Read Opinion.

Commentary:

This is a good decision to review when you are faced with a claim that there is a material variance between what was alleged and what was proved. But the court should have also pointed the reader to Section 6.04 of the Penal Code, which provides that a defendant is criminally responsible if the result would not have occurred but for his conduct, even if it operated concurrently with another cause. Under criminal law, it was the defendant's conduct, and not just the fire or the fumes, that caused the victim/officer's death.

Gallemore v. State - 2nd COA

04/15/10 : Cite No. 02-08-00481-CR

Issue:

Does double jeopardy bar retrial after the trial court granted a mistrial because one of the prior DWIs alleged in the indictment occurred after the charged offense?

Holding:

No, jurisdiction never vested in the district court because the indictment alleged only one prior DWI conviction. The mistrial was a manifest necessity, so the State can retry the case with appropriate prior offenses alleged. Read Opinion.

Commentary:

This case turns on whether the trial court had jurisdiction over the first charging instrument that was filed by the State, and the answer to that question turns on whether the State alleged two PRIOR driving while intoxicated convictions, as opposed to just one. It is a subtle distinction, but a distinction sufficient enough to allow the State to again prosecute the defendant for a felony.

Leonard v. State 11th COA

04/15/10 : Cite No. 11-09-00332-CR

Issue:

In an adjudication hearing, can a trial court admit-under Tex. R. Evid 703-an expert's testimony that the defendant was discharged from sex offender treatment for failure to pass successive polygraph tests?

Holding:

No, polygraphs and their results are inadmissible for any purpose. Read Opinion.

Commentary:

The underlying facts or data of an expert's opinion can be admitted under Rule 705(d), but only if there is no danger that the underlying facts or data will not be used for an improper purpose. One wonders if the polygraph results evidence really swayed the court in adjudicating the defendant's guilt. But when dealing with polygraph evidence, it is always best not to even try to admit it.

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