Weekly Case Summaries: August 20, 2010

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Texas Courts of Appeals

Ex parte Castellano - 2nd COA

08/12/10 : Cite No. 02-10-011-CR

Issue:

After an individual has been released on personal bond because the State failed to indict him within 90 days of arrest, can bond be reset or reinstated after an indictment?

Holding:

Maybe, but not under art. 17.151 because the State cannot restart another 90-day period by obtaining an indictment. Also, there is no evidence that the State invoked art. 17.09, §3 to revoke and reset his bond. Read Opinion.

Commentary:

This case is interesting in that it offers Article 17.09, §3 as an alternative to the harsher application of Article 17.151. Although the State has lost this particular case, this decision might be used to help the State in other cases in the future.

Castillo v. State - 3rd COA

08/13/10 : Cite No. 03-09-00371-CR

Issue:

Was it error for the trial court to permit two alternate jurors to remain present during deliberations?

Holding:

No, there was no state constitutional error and no error under art. 33.01. Also, any error under art. 36.22 was harmless: The trial court gave a supplemental admonition to the jurors during deliberations, which, it is presumed, they followed. Read Opinion.

Commentary:

Until the Legislature makes it clear what should be done with an alternate juror while the regular jurors are deliberating, the best practice is probably to have the alternate juror be outside the jury room while the regular jurors are deliberating, so as not to run afoul of Article 36.22. But this decision should be very helpful if you have a situation in which the alternate jurors have been with the regular jurors during deliberations. That is assuming that your trial judge has given the very helpful instruction that the trial judge gave in this case.

Jackson v. State - 6th COA

08/12/10 : Cite No. 06-09-00115-CR

Issue: In a capital murder (life) trial involving a pawn shop robbery, was an extraneous offense of a grocery store robbery admissible to prove identity or intent, or to rebut a defensive theory?

Holding:

No, the offenses were not so similar as to indicate the modus operandi of a single person; Jackson's intent was never placed in issue and, even if it had been, the probative value of the evidence would have been substantially outweighed by the danger of unfair prejudice; and the trial court did not give a limiting instruction on using the evidence to rebut a defensive theory. Despite the overwhelming evidence of guilt, the extraneous offense evidence from 15 witnesses took an extra two-and-a-half-days and could have had a profound effect on the jury's view of the credibility of two critical witnesses. Read Opinion.

Commentary:

When offering an extraneous offense, it is very important to make sure that the reasons for the admissibility of the extraneous offense are very clear on the record. And those reasons should be set forth in a trial court's instruction concerning the jury's consideration of the extraneous offense.

Hernandez v. State - 13th COA

08/12/10 : Cite No. 13-09-00331-CR

Issue:

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

Holding:

Yes. Together Hernandez-"I have to do it myself"-and his counsel-advising that his client wished to proceed "as his own representative"-clearly and unequivocally asserted Hernandez's right to self-representation. Read Opinion.

Commentary:

If a defendant-as ill-advised as it may be-has stated that he wants to represent himself, he must be permitted to do so after the trial judge has warned as to the dangers and disadvantages of self-representation. The only exception to that might be if the trial judge finds that the defendant is not mentally competent to represent himself. See Chadwick v. State, 309 S.W.3d 558 (Tex. Crim. App. 2010).

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