Weekly Case Summaries: May 28, 2010

Texas Court of Criminal Appeals

Hubert v. State

05/26/10 : Cite No. PD-0493-09

Issue:

Did the defendant's grandfather have the authority to allow the police to search the defendant's bedroom?

Holding:

Yes. There was testimony that the grandfather was the exclusive owner of the home and the defendant did not provide any evidence that the bedroom was under his exclusive control. The defendant had no proprietary or possessory interest and assumed the risk that his grandfather would search his room. Read Opinion.

Dissent:

Judge Myers would apply Vennus v. State and hold that the State is estopped from claiming error it invited by preventing the appellant from showing his proprietary and possessory rights to the house Read Dissent.

Commentary:

This is a relatively uncontroversial decision that simply applies well-established law on apparent or actual authority regarding consent to search. (Judge Myers does add another in a growing line of lone dissents, signaling a developing libertarian streak.) By the way, everyone acted exactly as the public would reasonably expect: a relative snitched off a parolee; the parole officer got a warrant; a constable executed the warrant; and the parolee was removed from the community before he used guns to commit a new felony crime. One suggestion: the Parole Board should impose a condition of parole in every case, requiring a parolee to consent to a search of his home. See Samson v. California, 547 U.S. 843 (2006); United States v. Knights, 534 U.S. 112 (2001). Maybe the Board did in this case and no one checked the conditions.

Kuciemba v. State

05/26/10 : Cite No. PD-0512-09

Issue:

Was there sufficient evidence to prove the defendant was intoxicated at the time of his one-vehicle accident?

Holding:

Yes. Circumstantial evidence-including the defendant's lack of braking, presence behind the wheel, a BAC of more than twice the limit with no liquor or liquor containers in the area, and the fact that the defendant was still bleeding-support this finding. Read Opinion.

Dissent:

Judge Myers states that, absent testimony that the defendant's engine was warm or that it was still running, the evidence presented was legally insufficient to support a finding that the defendant was intoxicated at the time he was driving. Read Dissent.

Commentary:

Halleluiah, common sense wins the day. Every prosecutor has faced the difficult task of connecting an intoxicated individual to the operation of a vehicle in the absence of an eyewitness to an accident. And it has been amazing how readily appellate judges imagine scenarios of innocence that defy common sense and reject circumstantial inferences that have obvious credibility. This case provides a strong factual description of the circumstantial connections that make up a sufficient case. And add one more libertarian dissent for Judge Myers. How can one judge so quickly establish a series of lone dissents?

Perez v. State

05/26/10 : Cite No. PD-0560-09

Issue:

Was the defendant prejudiced when his appointed counsel failed to call an alibi witness?

Holding:

No. There was no reasonable probability that the witness's testimony would have changed the outcome of the trial. Read Opinion.

Commentary:

Given that the CCA agrees the court of appeals got the decision right, why was PDR granted? This opinion doesn't add anything to the law of ineffective assistance, except to suggest that a vague alibi witness isn't worth much.



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