Weekly Case Summaries: May 7, 2010

Texas Court of Criminal Appeals

Valtierra v. State

05/05/10 : Cite Nos. PD-0906-09 through PD-0909-09

Issue:

Was the defendant's oral consent to come inside the defendant's apartment to talk to someone in the bathroom also consent for the officer to walk down the hallway?

Holding:

Yes. It was objectively reasonable for the officer to conclude that defendant's general consent to come inside the apartment to find and talk to the runaway included consent to walk down the open hallway to knock on the bathroom door. Read opinion.

Commentary:

How would you feel as an officer if you went into an apartment looking for a runaway and suddenly found yourself outnumbered by very nervous men who might have guns to protect their drugs? We ask an awful lot of our police under very dangerous and stressful circumstances. Fortunately, people like Judge Cochran are able to put those circumstances into perspective and provide a common sense explanation of how officers are justified through an implied consent to enter an apartment, walk down a hall and knock on a door. As Sergeant Phil Esterhaus used to say, "Let's be careful out there."

Bowley v. State

05/05/10 : Cite No. PD-0914-09

Issue:

Was the trial judge required to give a jury instruction to disregard a question by the prosecutor commenting on the plea negotiation because it was overly prejudicial or highly misleading?

Holding:

No. The defendant opened the door to such questioning by stating that he had accepted prior DWI pleas because he was actually guilty of those prior offenses. The prosecution was free to attack his credibility and illicit an alternative motive. Read Opinion.

Dissent:

Judge Price states the question was objectionable even if the defendant opened the door. Additionally, Judge Price contends the court should remand the case to the court of appeals as they never decided the issue. Read Dissent.

Dissent:

Judge Johnson dissents based on the prosecution's use of two prior convictions for DWI to increase the degree of the offense to a felony, then two more convictions for felony DWI to enhance the range of punishment to a first-degree felony. Read Dissent.

Dissent:

Judge Holcomb argues the question and potential answer would be inadmissible under Rule 403 even if the defendant had opened the door. Read Dissent.

Commentary:

From the original TDCAA commentary to the court of appeals opinion: "On second glance, the prosecutor may well have had a good reason for referring to plea negotiations: the defendant's testimony informed the jury that he had only admitted guilt in his two prior DWI's because he was guilty and for no other reason (such as finding the plea bargain attractive). That statement was designed to get the jury to believe that he was only pleading not guilty in his third DWI case and going to trial because he was an honest, principled sort of guy who would never try to fool the jury about his guilt." That's pretty much what Judge Keasler concluded in finding that such a strategy opened the door for cross-examination on the subject of plea bargaining. Keep this case handy for the next time a repeat offender tries to create a false impression with the jury about his past plea decisions. As for Judge Johnson's dissenting opinion, alleging that case law doesn't permit the use of prior felony DWI convictions to enhance a felony DWI to habitual status, WHAT THE HECK? Phillips v. State absolutely decided that issue (acknowledging the amendment of the Penal Code to permit such an enhancement). And, no, Phillips did not overrule Phifer, but that was only because the Legislature had CHANGED THE LAW. A baffling dissent.

Chadwick v. State

05/05/10 : Cite Nos. PD-0250-09 & PD-0251-09

Issue:

Did the trial judge improperly deny the defendant the right to represent himself in court?

Holding:

No. A judge can find that a defendant is competent to stand trial but not competent to represent himself and receive a fair trial. Read Opinion.

Commentary:

There wasn't much reason to grant PDR. The court of appeals applied the law and facts correctly, and the unanimous opinion of the CCA confirms the correctness of that decision. As for the defendant's claim that the record doesn't support the conclusion he was too mentally ill to represent himself, consider this nugget from the record: "At the end of the pretrial hearing on August 28th, Chadwick, apparently dissatisfied with the hearing, asked the judge, ‘Would it be inappropriate to curse you with every Israeli curse there is?' Chadwick's counsel advised him that it would be. Chadwick ignored the advice and stated, ‘May Yaweh curse you till the end and may I put an eternal indictment on you and I will prosecute you to eternity.'" On second thought, that is not a bad curse. May keep it in mind.

Texas Courts of Appeal

Miller v. State, -14th COA

04/29/10 : Cite No. 14-08-00763-CR on reh'g

Issue:

In an assault case, should the trial court have submitted the defendant's requested instruction on consent?

Holding:

Yes. The son testified that, after playing a football game, he was "jazzed up" and in an "aggressive mood," and he "kind of wanted [his father] to hit [him]." Also, after his father shoved him away, the son hit his father twice before his father hit back. Whether the son's injuries (blows to the head, possible loss of consciousness, and loosened teeth) threatened or inflicted serious bodily injury so as to bar the defense was a jury issue. Read Opinion.

Commentary:

Note that the son was an 18-year old, 210-pound football player who got mad at his parents after having his cell phone and car keys taken away and perhaps, accompanied by F-bombs, provoked the father to fight with him. Although the jury convicted, they sentenced Dad to one day in jail, probated for 30 days. Bet this doesn't get retried.

Texas Attorney General

Opinion No. GA-0772 

For the Tarrant County Criminal District Attorney

Issue:

Is 37 Tex. Admin. Code §87.85(g)(3)-authorizing TYC to require certain juveniles to register as sex offenders-inconsistent with article 62.352(c) of the Code of Criminal Procedure?

Opinion:

No. Because it has valid applications, the AG concluded that a court would likely hold that section is not facially inconsistent with article 62.352. Read Opinion.

Opinion No. GA-0773

For the Harris County Attorney

Issue:

May a district clerk accept assignment of a defendant's cash bail bond refund in payment of the defendant's fines and costs?

Opinion:

No. Under article 17.02 of the Code of Criminal Procedure, a district clerk may not accept an assignment of a defendant's cash bail bond refund in payment of the defendant's fines and costs. Read Opinion.

Commentary:

This is not a well-reasoned opinion. It completely ignores the right of a defendant to bypass a mandatory statute through a consensual agreement. For example, see Ex parte McJunkins, 954 S.W.2d 39 (Tex. Crim. App. 1997)(approving agreed consecutive sentences despite statute mandating concurrent sentences). Advise your clerks accordingly.

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