Weekly Case Summaries: October 8, 2010

Court of Criminal Appeals

Sanchez v. State

10/06/10 : Cite No. PD-0961-07

Issue:

Was it error for the jury charge to contain the language that a murder was committed by a "manner and means to the grand jury unknown?"

Holding:

Yes, but the court found the charge error harmless in nature. Read Opinion.

Commentary:

I am afraid that this case is going to cause a lot of confusion. But like it or not, it is the new standard for how to treat "unknown" allegations in an indictment. Hicks v. State, the previous standard that we thought was overruled has now been officially overruled (again). In its place is the requirement of a pre-trial hearing and/or a hearing after all of the evidence has been heard to determine the validity of the State's "unknown" allegation in the indictment. What may be confusing is that the court has created a distinction between what is "unknown" and what is "unknowable." Does that mean that the court wishes us to allege that a manner and means or a deadly weapon is "unknowable," instead of "unknown"? The court does not say, but states only that the jury charge was erroneous. The court stresses that it does not wish to restrict the use of the "unknown" allegation, but I am afraid that the court has done just that.

Brooks v. State

10/06/10 : Cite No. PD-0210-09

Issue:

Is there a meaningful distinction between Jackson v. Virginia legal-sufficiency review and Clewis factual-sufficiency review?

Holding:

No. The court held that there is no meaningful distinction between a Clewis factual-sufficiency standard and a Jackson v. Virginia legal-sufficiency standard. Read Opinion.

Concurrence:

Judge Cochran expands on why the Clewis standard is an unworkable attempt to merge civil standards with criminal standards for review. Read Concurrence.

Dissent:

Judge Price states that the plurality-a term he uses 27 times in his dissent-ignores stare decisis by overruling Clewis. Read Dissent.

Commentary:

There is good news and bad news about this decision. First, the good news. A majority of the court has overruled the factual sufficiency standard of review for the State's burden of proof in criminal cases. Do not let a defense lawyer suggest to you that it was only a plurality; a majority of the court has overruled Clewis, and a jury's verdict now regains some of the respect that it deserves. But there is also bad news. This should have happened a long time ago. Let me repeat that. This took way too long for the court to recognize after issuing confusing decision after confusing decision. The court also now suggests that prior findings of factual insufficiency might now actually be a double jeopardy bar to future prosecution. You should expect those defendants to file post-conviction writs of habeas corpus, claiming that their double jeopardy rights have been violated.

Scott v. State

10/06/10 : Cite Nos. PD-1069-09 & PD-1070-09

Issue:

Does Penal Code §42.07(a)(4) improperly criminalize communication that is protected by the First Amendment?

Holding:

No. The court held that the statute does not implicate the free-speech guarantee of the First Amendment. Read Opinion.

Concurrence:

Judge Johnson comments that the statute addresses the intent of the speaker, not the mind of the listener. Read Concurrence.

Dissent:

Presiding Judge Keller believes that parts of the harassment statute implicate First Amendment freedoms and that those parts violate the Constitution. Read Dissent.

Commentary:

The majority cites its previous decision in Long v. State and the decision of the Fort Worth Court of Appeals in Karenev v. State in a footnote, even though the defense relied upon them specifically, and even though they appeared to at least strongly impact the result in this case. It now appears with this decision that a prosecution under §42.07(a)(4) is permissible. But there is no meaningful distinction between the language in §42.07(a)(4) and §42.07(a)(7). Are prosecutions permitted under both sections?

Mercier v. State

10/06/10 : Cite No. PD-1121-09

Issue:

Is a harm analysis necessary when a trial court fails to grant a motion to quash an indictment that does not toll the statute of limitations?

Holding:

Yes. A harm analysis under Rule of Appellate Procedure 44.2(b) is necessary when an indictment is defective due to the lack of a tolling provision. Read Opinion.

Commentary:

We pretty much knew the answer already. But the court now clearly holds that a harm analysis is required for defects in an indictment or information of "substance," as well as defects in an indictment or information of "form."

Isassi v. State

10/06/10 : Cite No. PD-1347-09

Issue:

Did the court of appeals misconstrue the intent requirement of Penal Code §36.04 (improper influence) and improperly order an acquittal of a former county attorney on improper influence charges?

Holding:

Yes. The jury was able to infer that phone calls made by a former county attorney relating to a criminal case against his aunt were not made in the course of his routine duty, but rather with the intent to manipulate and influence the judicial system. Read Opinion.

Dissent:

Presiding Judge Keller states that the words spoken-not the intent of the call-should be used to prove improper influence. Read Dissent.

Commentary:

The facts of this case appear to be clear. The majority's decision otherwise stands for the rather unremarkable proposition that a defendant's unlawful intent can be inferred from all of the evidence and is not confined to just the actual words that he uses.

Mason v. State

10/06/10 : Cite No. PD-1373-09

Issue:

Was the questioning of a witness before the grand jury by two police officers harmful error?

Holding:

No. While Code of Criminal Procedure Articles 20.011 and 20.04 prohibit this type of questioning, the small amount of questioning by the officers did not substantially influence the grand jury's decision to indict. Read Opinion.

Concurrence:

Judge Womack would follow the reasoning of the Supreme Court's opinion in United States v. Mechanik rather than Justice O'Connor's concurring opinion. Read Concurrence.

Commentary:

Saved by the harm analysis. And a good thing too: The offense was a particularly brutal beating to death of an 8-month-old baby.

Woodard v. State

10/06/10 : Cite No. PD-0130-10

Issue:

Where the defendant was indicted for murder, did the trial court incorrectly submit a jury instruction on an unindicted conspiracy to commit aggravated robbery offense?

Holding:

Yes; however, the record showed the defendant had some responsibility for the jury instruction on the unindicted conspiracy to commit aggravated robbery offense. In this case, the court held that the defendant could not complain for the first time on appeal that the trial court erred by instructing the jury on the unindicted conspiracy to commit aggravated robbery offense. Read Opinion.

Concurrence:

Presiding Judge Keller suggests that the court should adopt the doctrine of beneficial acquiescence, which bars a defendant who fails to object to an instruction on a lesser-included offense from complaining about it on appeal. Read Concurrence.

Concurrence:

Judge Cochran comments on the evidence supporting the defense's involvement in the jury charge. Read Concurrence.

Commentary:

The court needs to adopt Judge Keller's concurring opinion. A defendant should not be permitted to complain about a charge on a lesser offense if he was or would have been the beneficiary of that part of the jury charge. This defendant was prevented from complaining because the record showed that defense counsel took part in drafting of the jury charge, but too often the record does not reflect that. A defendant should not be permitted to complain in that instance either.

Martinez v. State

10/06/10 : Cite Nos. PD-0622-09 through PD-0626-09

Issue:

When dealing with criminal street gang activity, could the trial court impose a provision in an injunction prohibiting the defendant from making gang hand signs and wearing gang clothing under Civil Practice and Remedies Code §125.065(a)(2)?

Holding:

Yes. While the judge's injunction includes a limitation on free speech, it was narrowly tailored to serve a compelling state interest. Read Opinion.

Commentary:

This is a very helpful decision for those of us who are confronted with gang activity. Get familiar with these statutes and get your judges familiar with them. They can be very helpful.

Padilla v. State

10/06/10 : Cite No. PD-1283-09

Issue:

Was the evidence legally sufficient to support the defendant's conviction for capital murder when none of the factors cited by the appellate court related to the robbery in the course of murder or the murder itself and were also consistent with the defendant's claims of complicity in a theft that occurred after the murder was completed by another?

Holding:

Yes. The court held that the jury's verdict was rationally supported by common sense, logical references from the circumstantial evidence, and legally sufficient evidence. Read Opinion.

Commentary:

This is a very circumstantial case, but it was aided by the medical examiner's testimony that the victim's murder could have been caused by more than one person and by the fact that it was unreasonable to suggest that the co-defendant would bring the unknowing and otherwise innocent defendant to the victim's residence to commit a murder.

Texas Supreme Court

In re B.T., a juvenile

10/01/10 : Cite No. 10-0383

Issue:

May a juvenile charged with murder petition for a writ of mandamus if a trial court fails to obtain a complete diagnostic study before conducting a transfer hearing?

Holding:

Yes; writ issued conditionally. The juvenile lacked any plausible appellate remedy, Family Code §54.02(a) requires a complete diagnostic study, and the commissioned report declared itself insufficient. Read Opinion.

Commentary:

Lest you think that the court is being a little nitpicky here, note that the State and the defense both wanted the required diagnostic study to be completed, but the trial court refused. The State rather admirably conceded that mandamus relief was appropriate. The court's decision is thorough, and it appears to be unanimous.

Texas Courts of Appeals

Weems v. State - 11th COA

09/30/10 : Cite No. 11-09-00076-CR

Issue:

Did the State provide legally and factually sufficient evidence that the defendant was operating a truck while intoxicated?

Holding:

Yes, the evidence was legally and factually sufficient to establish that Weems operated the vehicle in question while intoxicated. After finding no driver at the scene of a one-vehicle accident, officers encountered an injured Weems at his nearby residence; he demonstrated paranoia and later tested positive for two controlled substances; Weems's mother owned the truck but Weems typically drove it and had done so on the night of the wreck; the wreck was in a very rural area; and no one else was found in the area of the wreck. Read Opinion.

Commentary:

Wow. The facts of this case are admittedly unusual, and you might never see them again. But what a job by the State in "wheeling" the defendant when he was found 4/10 of a mile from the vehicle! Remarkable job.

Texas Attorney General

Opinion for Denton County Criminal District Attorney

10/05/10 : Opinion No. GA-0809

Issue:

Does the Denton County Commissioners Court or a fresh water supply district have statutory authority to adopt traffic regulations to regulate traffic on non-county maintained public roads in subdivisions located within the fresh water supply district in an unincorporated area of Denton County?

Opinion:

The Denton County Commissioners Court has no authority under Transportation Code §§251.151, 251.154, 251.155, 251.156, and 542.007 to post speed limits, provide restricted traffic areas for school zones, install traffic control devices, and impose parking restrictions on non-county maintained public roads in subdivisions located within a fresh water supply district in an unincorporated area of Denton County. Neither party likely has authority under Transportation Code §251.016; however, a court could find differently. Additionally, a fresh water supply district has no authority for these actions under Water Code chapters 49 and 53. Read Opinion.

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 casesummary@tdcaa.com. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.