Weekly Case Summaries: April 30, 2010

Texas Court of Criminal Appeals

Mays v. State.

04/48/10 : Cite No. AP-75,924

Issue 1:

Would the defendant's alleged mental illness make his eventual execution a "cruel and unusual punishment" under Atkins v Virginia?

Holding 1:

No. The CCA held "there is no authority from the Supreme Court or this Court suggesting that mental illness that is a ‘contributing factor' in the defendant's actions or that caused some impairment or some diminished capacity, is enough to render one exempt from execution under the Eighth Amendment." Read Opinion.

Issue 2:

Did the defendant suffer any harm when court gave an instruction limiting the jury from considering whether the defendant's possible mental conditions created a lack of capacity to act knowingly or intentionally?

Holding 2:

No. The defendant offered no evidence that he did not intend to shoot the officers. Read Opinion.

Commentary:

If you have a murder case where the defendant has mental issues that do not rise to the level of insanity, you need to read this decision. The defendant in this case has raised several issues that would come up in such a trial, and the court disposes of them well. There may come a time when the United States Supreme Court confronts the issue of the propriety of executing a defendant who may have committed his crime based-at least in part-upon his mental illness. But this is not that case. This defendant killed two police officers in cold blood, but he showed no more mental difficulty than many murder defendants do. One last note-the officers first arrived at the defendant's residence in response to a domestic disturbance call. How many times do we see some of the most violent, heinous crimes committed by someone involved in a domestic dispute? Texas has the death penalty, and the death penalty is certainly reserved for men such as this defendant.

Ex Parte Smith

04/28/10 : Cite No. AP-76,035

Issue:

Was there constitutional error in the punishment phase of this death penalty trial when the special instructions did not allow the jury to consider mitigating evidence of the defendant's drug addiction, victimization and poverty-stricken past?

Holding:

Yes. The evidence was a "mitigating factor that reduces a criminal defendant's moral culpability outside its relevance to the special issues" and the nullification instruction in the court's charge did not to provide a vehicle for the jury to consider the evidence. Read Opinion.

Commentary:

It is not altogether clear that the result reached in this case is mandated by the federal appellate court decisions upon which it relies. But the result is still predictable. If a capital murder defendant tried during this previous time period has any mitigating evidence, the odds are that he will be receiving a new punishment hearing.

Ex Parte Calderon

04/28/10 : Cite No. AP-76,160

Issue:

Is an affidavit containing a recantation "newly discovered evidence" of actual innocence that authorizes the court to set aside the defendant's conviction?

Holding:

Yes. The affidavit was not known, discoverable, or available to the defendant at the time of his plea, and the record shows that it is highly unlikely the parties would have agreed to the plea bargain had they known of the affidavit at the time of the plea. Read Opinion.

Commentary:

This opinion does not stand for the proposition that all recantation affidavits necessarily constitute newly discovered evidence that would result in a new trial for the defendant. The unique facts of this case reveal that the defendant probably would not have pleaded guilty concerning the sexual molestation charge made by one girl in light of the fact that he did not enter a plea of guilty concerning sexual molestation charges made by another girl because he was in fact aware of that second girl's recantation.

Ex parte Hearn

04/28/10 : Cite No. P-76,237

Issue:

Can alternative assessment measures be substituted for full-scale IQ scores in supporting a finding of subaverage intellectual functioning under Atkins and Briseno?

Holding:

No. Defendants may not use alternative means to establish mental retardation if their full-scale IQ score materially exceeds the threshold of 70 used in the current definition of mental retardation. Read Opinion.

Commentary:

Good job by the court in sticking to its now-well-settled definition of mental retardation in death penalty cases. The alternative means may be used by a defendant to show that his IQ score is within the appropriate margin of error, but the alternative means may not be used by a defendant as a REPLACEMENT for his IQ scores.

Gonzales v. State

04/28/10 : Cite No. PD-0882-08

Issue:

Was the defendant's 1987 DWI offense a final conviction for enhancement purposes when the judgment language included the phrase "that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of two years?'"

Holding:

Yes. The two proceeding paragraphs showed that it was a final conviction and this language was only added for the purpose of imposing community supervision. Read Opinion.

Commentary:

This opinion stands in support of general DWI law in Texas that a prior probation constitutes a conviction for enhancement purposes. And of course there is no such thing in Texas as "deferred adjudication" probation in DWI cases.

 

Ex parte Ellis and Colyandro

04/28/10 : Cite Nos. PD-529-09 through PD-545-09

Issue 1:

Did the appellate court err when, as part of an interlocutory appeal of a pretrial writ of habeas corpus, it held that the money laundering statute did not apply to checks?

Holding:

Yes, the court's ruling was premature. Once the court determined that the term "funds" was sufficient to defeat a facial vagueness challenge, there was no need to decide that "funds" only covered cash. Read Opinion.

Issue 2:

Are the provisions in the Election Code governing corporate political contributions unconstitutionally vague and overbroad with respect to protected First Amendment expression?

Holding:

No. The court of appeals was correct to find the phrasing of the provisions in the Election Code are neither vague nor overbroad, and the recent Supreme Court ruling in Citizens United does not alter that opinion. Read Opinion.

Commentary:

Along with the defendants in these cases, some have suggested that the broad language in Citizens United reflects an indication by the United States Supreme Court that it will soon give greater First Amendment protections to corporate campaign CONTRIBUTIONS, and not just the corporate campaign EXPENDITURES so significantly affected by Citizens United. That may be the case. But we are going to have to wait for the Supreme Court to actually say so. This is a VERY lengthy opinion, but if you are interested in the validity of corporate campaign contributions, this has probably become the seminal Texas state court decision on the matter-at least in the criminal-law context.

 

Texas Courts of Appeals

Witkovski v. State - 2nd COA

04/22/10 : Cite No. 02-08-00259-CR

Issue:

Did the trial court abuse its discretion in revoking the defendant's community supervision?

Holding:

Yes, because the alleged violation was based on a modification of the terms and conditions of community supervision that had never been approved by the trial court. Read Opinion.

Commentary:

What, you say? Well, the court's opinion is a faithful application of Sections 10(d) and 10(e) of Article 4212 of the Code of Criminal Procedure. It is probably best for the trial judge to be the one who actually modifies the conditions of a defendant's probation. But if that does not happen-for example, if the probation officer makes the modification-the requirements of these two subsections need to be followed.

Byrd v. State - 4th COA

04/21/10 : Cite No. 04-08-00226-CR, Op. on reh'g en banc

Issue:

Was the evidence legally sufficient to support a conviction for theft where one "Morales" was identified as the property owner in both the information and jury charge, but the evidence demonstrated Wal-Mart owned the items and no relationship was shown to exist between Morales and Wal-Mart?

Holding:

Yes, the property owner's name is not a substantive element of theft; there is no material variance because the charge sufficiently informed Byrd of the offense, and double jeopardy will bar retrial for the same crime, so the property owner's name was not required to be alleged in the hypothetically correct jury charge.  Read Opinion.

Dissent:

Justice Simmons would hold that there is both a failure of proof and a material variance, further stating that "[t]his is an astonishing result. The consequence of the majority opinion is to permit the conviction of a defendant for theft without regard to the identity of the owner." Read Dissent.

Commentary:

Wow. This is a 4-3 decision issued by the en banc court. We had initially reported on the panel decision back in January of 2009 (http://www.tdcaa.com/node/3869), so the case has been pending on rehearing for quite some time. You can almost guarantee that the Court of Criminal Appeals will take this case on petition for discretionary review. And that decision will then become (hopefully) the court's primary decision on "material variance law" in criminal cases. But until then, this decision will have to do, at least in the Fourth Court of Appeals District. And it is a very thorough and well-written opinion by Justice Hilbig. It is a logical extension of prior decisions from the Court of Criminal Appeals, and it makes sense. As long as the variance is not material (the defendant was not surprised or harmed), it should not matter that the State alleged a store or company employee, as opposed to the store or company itself. Prosecutors have always struggled over whom to allege as the owner in such theft cases. Hopefully, that struggle will no longer be necessary after this case has been reviewed by the high court in Austin.

 

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