Weekly Case Summaries: October 1, 2010

Court of Criminal Appeals

Davis v. State

09/29/10 : Cite No. AP-74,393

Issue:

Was it proper for the trial court to allow testimony on the defendant's religious beliefs as evidence of future danger?

Holding:

Yes. The defendant was a Satanist and it was reasonable for the trial court's to decide the defendant's religious beliefs were relevant to the issue and outside the First Amendment's protection. Read Opinion.

Commentary:

Do not get carried away. If you desire to introduce such testimony at the punishment stage of your trial, make sure that you follow the procedures required by the case law and obeyed by the prosecutor in this case. This is a great decision and can apply to any type of association evidence that you desire to present at punishment, such as gang evidence.

Ex Parte Napper

09/29/10 : Cite Nos. AP-76,284 & AP-76,285

Issue:

Did the State present perjured testimony when a chemist from the crime lab gave "incorrect", "flawed," or "misleading" statistical data regarding the DNA analysis?

Holding:

No. There was no evidence in the record that the chemist intended to deceive. The chemist thought his information was accurate, even though it turned out to be flawed. Read Opinion.

Commentary:

The facts of this case are difficult, lengthy, and complex. The law concerning the use of perjured or false testimony is presented thoroughly here, so you will want to look closely at this decision if you have this type of claim raised by way of an application for a post-conviction writ of habeas corpus. Congratulations to the prosecutors involved in marshalling the lengthy facts in this quite difficult case. In this case also, the court rejected the habeas court's finding that there was bad faith in the destruction or consumption of what little DNA evidence remained. There were certainly mistakes made, but they did not rise to the level of preventing the testing of truly of exculpatory evidence.

Jones v. State

09/29/10 : Cite Nos. PD-0499-09, PD-0500-09

Issue:

Can the State indict separate counts of false statement to obtain property or credit under Penal Code section 32.32 for each false statement made in the same loan application?

Holding:

Yes. The proper unit of prosecution is not the application, but the false statements made in the application. Each "materially false or misleading statement" constitutes a separate offense. Read Opinion.

Commentary:

This is a wonderful decision for prosecutors. It is well written and researched. This should help greatly in "false statement" prosecutions. But make sure that you pay close attention to the actual wording of your controlling penal statute before you attempt to apply the thought processes of this decision to your case. For example, I am not certain that this decision necessarily applies to tampering with a governmental record or forgery. But it might because the wording of the statutes have some similarity.

Ex Parte Miller

09/22/10 : Cite No. AP-76,167

Issue:

Was the State required to present new evidence to justify an increase in sentencing to overcome the presumption of judicial vindictiveness when the defendant has a claim for ineffective assistance of counsel?

Holding:

Yes. Without evidence that was unknown to the State at the time of the first punishment hearing and that could not have been discovered by the State using due diligence at that time, the presumption of judicial vindictiveness remains. Read Opinion.

Dissent:

Judge Kealser states that it is inappropriate to place a burden on the State to provide new evidence justifying an increased sentence to rebut Miller's ineffective assistance claim. Read Dissent.

Commentary:

This is an ineffective assistance of counsel case that turned into a judicial vindictiveness case, so I can share some of Judge Keasler's consternation that the burden of proof was placed upon the State. Hopefully, the State will have access to new evidence that will justify a potentially higher sentence, but most trial judges are going to read this decision and refuse to increase a defendant's sentence in any event.

Holz v. State

09/22/10 : Cite No.PD 1786-09

Issue:

Does Elomary require expert testimony to prove the cost of a repair, or can a property owner's testimony about the cost of repairing or restoring his damaged property be sufficient to prove the pecuniary loss element of a criminal mischief offense?

Holding:

Elomary does not require expert testimony. The pecuniary loss can be shown by the owner's testimony. Read Opinion.

Commentary:

The bottom line of this decision, and apparently what we have been doing wrong all along, is that a property owner must testify as to cost of repair in a criminal mischief case. Not damage. The court did not overrule Elomary. It just clarified the decision. But this decision will now become the new standard by which other criminal mischief cases are decided. Elomary no longer.

Puente v. State

09/22/10 : Cite No. PD-0364-10

Issue:

Did an amendment to a judicial confession amount to an amendment to the indictment?

Holding:

No. Striking the phrase "a child younger than six years of age" from the confession allowed the defendant to plead to the lesser included offense where the victim is under the age of 14. There was no need to amend the indictment to allow for this. Read Opinion.

Concurrence:

Judge Kealser wrote that the defendant is estopped from making this claim because he was punished according to agreement and the punishment was authorized as a lesser included offense. Read Concurrence.

Concurrence:

Judge Hervey also states that this issue should not have been addressed on the merits as the defendant waived any requirements by his course of conduct. Read Concurrence.

Commentary:

This case should most emphasize in our minds that you do not need to amend an indictment in order to get a defendant to plead guilty to a lesser-included offense. And the decision also reminds us (even if it is only parenthetically) that, in order to effectively amend an indictment, you should probably actually change the indictment.

Winfrey v. State

09/22/10 : Cite No. PD-0987-09

Issue:

Can a dog scent lineup, standing alone, be sufficient to establish a person's guilt beyond a reasonable doubt?

Holding:

No. While the lineup can be compelling evidence, it is not sufficient by itself. Read Opinion.

Concurrence:

Judge Cochran also adds that the defendant did not object at trial to the dog scent lineup testimony; therefore, the admissibility of the lineup has not been reviewed.

Commentary:

The court does everything to express its displeasure with dog scent line-ups, and to distinguish such from dog tracking evidence or dog alerts (on things like narcotics). I would be very cautious about using any such evidence as anything more than merely persuasive. If it is the only evidence, or even the strongest evidence that you have against your defendant, you will be in trouble.

Campbell v. State

09/22/10 : Cite No. PD-1081-09

Issue:

When is an incarcerated pro se defendant deemed to have filed his pleadings?

Holding:

Pleadings are deemed filed by the incarcerated pro se defendant when he delivers them to the prison authorities rather than when the court clerk receives them. Read Opinion.

Commentary:

This a logical decision and in line with prior holdings from other courts. The so-called "mailbox rule" applies to incarcerated pro se defendants, as well as attorneys.

Texas Courts of Appeals

Ex parte Doan - 3rd COA

09/16/10 : Cite No. 03-08-00704-CR

Issue:

Does a trial court's denial of revocation of probation in County A on account of a new offense allegedly committed in County B collaterally estop County B from prosecuting the new offense?

Holding:

No. The county attorneys in the different jurisdictions were not the same party: They are independent of each other, and County B did not participate in County A's proceedings. Read Opinion.

Commentary:

This a great decision, and it should probably hold up if there is a petition for discretionary review. Identity of parties is an important requirement in a collateral estoppel claim, and it should not be forgotten.

Texas Attorney General

Opinion for Hood County Attorney

09/22/10 : Opinion No. GA-0799

Issue:

Who has the authority and responsibility to establish, increase, decrease, or eliminate the amount of compensation to be paid to the judges serving on the Juvenile Board of Hood County?

Opinion:

Pursuant to section 152.0034(b) of the Human Resources Code, the Hood County Commissioners Court has the authority to establish, increase, decrease, or eliminate the compensation paid to the judges serving on the Hood County Juvenile Board. Read Opinion.

Request for Opinion from Denton County

09/07/10 : Request No. RQ-0917-GA

Issue:

Whether information in a pre-sentence investigation report may be released to the Department of Family & Protective Services under particular circumstances? Read Request.

 

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