Weekly Case Summaries: July 2, 2010

Court of Criminal Appeals

Weinn v. State

06/30/10 : Cite No. PD-0338-09

Issue:

Can a defendant be convicted and punished for both the manufacture of, and the simultaneous possession with the intent to deliver, the same quantity of controlled substances?

Holding:

No.  Health and Safety Code §481.112 (Manufacture or Delivery of PG1 Substance) does not allow for more than one "allowable unit of prosecution" for a single simultaneous act of manufacturing and possessing with intent to deliver the same controlled substance.  Read this opinion.

Dissent:

Presiding Judge Keller disagrees with the majority opinion's use of the Lopez "continuum theory" of drug trafficking which allows a person to manufacture, then later distribute, a controlled substance with no additional offense being committed.  Read this dissent.

Dissent:

Judge Keasler states that the facts here are indistinguishable from those in Guerrero, in which the Court recently held that convictions for manufacturing and possessing with intent to deliver the same cache of methamphetamine did not violate the Double Jeopardy Clause.  Read this dissent.

Commentary:

In reconciling the decision in Guerrero, the majority is left with a holding that states that if a defendant has the foresight to put together all of his illegal narcotics, he has committed only one offense.  But if a defendant has stupidly broken his illegal narcotics up into separate batches, he can be prosecuted with both manufacture of one of those individual batches and also possession with intent to deliver another of those individual batches.  THAT is what the Legislature intended?  I do not know that I have that much a problem with the ultimate holding in this particular case, but why did not the majority just overrule Guerrero, instead of attempt to leave it standing?  That just confuses me.

Monge v. State

06/30/10 : Cite No. PD-0154-09

Issue:

Should the defendant's confession to a capital murder have been suppressed because of an illegal arrest?

Holding:

No. While his confession was made soon after an illegal warrantless arrest, the defendant was properly Mirandized, he knew that his co-defendant had already confessed, and there was no police misconduct, so this confession was sufficiently attenuated from the taint of the illegal arrest.  Read this opinion.

Commentary:

This is a simple, straightforward application of the four-factor test for "attenuation of the taint" in Brown v. Illinois. This opinion will be a good reference if you have that issue come up in one of your cases.

Crain v. State

06/30/10: Cite No. PD-1262-09

Issue:

Was the defendant's interaction with the police an "encounter" or a "detention" for Fourth Amendment purposes?

Holding:

A reasonable person in the defendant's situation would not have felt free to leave or decline the officer's order to "come over here and talk to me."  Therefore, the defendant was detained at that point, and the officer's lack of reasonable suspicion for that detention means that the weapon found during the subsequent search is inadmissible.  Read this opinion.

Concurrence:

Judge Cochran emphasizes that the specific words used by the officer ("Come over here and talk to me") were a command that required obedience.  Read this concurrence.

Dissent:

Presiding Judge Keller would defer to the trial court's determination that the officer did not issue a command. She also notes that the defendant must not have thought the officer was issuing a command because he initially failed to heed the request.  Read this dissent.

Dissent:

Judge Keasler would defer to the trial judge's determination, based on the officer's tone and credibility, that the encounter was consensual.  Read this dissent.

Commentary:

This is a very unfortunate decision. Is this the message that we seek to deliver to our community about police officers--that, if an officer would like to talk with me, I should automatically feel coerced?  Really?  How do we know what tone of voice the officer used with the defendant?  Maybe he was entirely pleasant.  Couldn't an officer be terribly menacing by using an interrogative, as opposed to an imperative?  The bottom line is that we are supposed to be giving deference to our trial court judges when faced with factual questions like this one.  The officer testified that he would have let the defendant go if the defendant had refused to speak with him.  Why are we so quick to disbelieve the officer's testimony?  Why could we not just give deference to the trial court in that regard?  I am afraid that this decision is going to lead to a great deal of mischief.

Mahaffey v. State

06/30/10 : Cite No. PD-1491-09

Issue:

Can an officer stop a driver who was merging pursuant to a "Lane Ends, Merge Left" sign on the basis that the driver failed to use his turn signal to make a "turn" as required by Transportation Code §545.104 (Signaling Turns; Use of Turn Signals)?  Read this opinion.

Holding:

No.  In this situation, the merge was not a "turn."  The case is remanded to the appellate court to determine whether the merge was a "lane change" that required a signal under that same statute.

Dissent:

Presiding Judge Keller states that the court should not use the Texas Driver's Handbook as an administrative agency's construction of a statute.  Further, even using the handbook in this manner should not lead to this outcome.  Read this dissent.

Commentary:

This case should not have ended up like this.  The defendant failed to signal, sure.  But then he also almost struck a guardrail on a bridge.  Aren't those enough facts to allow the officer to stop the defendant to briefly check him out, without us parsing and straining over whether this was a turn, a lane change, or neither?

Texas Courts of Appeals

Hennings v. State - 8th COA

06/23/10 : Cite No. 08-08-00168-CR

Issue:

Was the evidence legally and factually sufficient to show that the defendant was intoxicated at the time he wrecked his motor vehicle in a public place?

Holding:

Yes.  Despite expert testimony that the defendant's impairment at the scene was attributable to the concussion and broken neck he suffered in the accident, the jury could have reasonably concluded that the defendant's behavior was actually due to him drinking Jagermeister while taking Valium and Seroquel.  Read the opinion.

Commentary:

We did not have an expert witness to testify to the combined effects of Jagermeister and Valium and Seroquel?  Just kidding.  This is actually a very helpful decision if you have a DWI defendant presenting expert testimony trying to explain away the defendant's intoxicated behavior.  Let the jury decide.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected] In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.