Weekly Case Summaries: October 15, 2010

Court of Criminal Appeals

Coble v. State

10/13/10 : Cite No. AP-76,019

Issue:

During the defendant’s retrial for punishment, did the trial court improperly allow expert testimony regarding the defendant’s future danger when the psychiatrist did not follow methods that the forensic psychiatric community accepted as valid?

Holding:

Yes. While the factors the doctor considered may have a common-sense appeal, there was no evidence that they were accurate predictors of future danger.  However the court also ruled that the testimony did not have a “substantial and injurious” effect on the jury’s deliberations. Read Opinion.

Concurrence:

Presiding Judge Keller points out that non-scientific “specialized knowledge” is encompassed by Rule 702 and may be admissible under that rule to assist the trier of fact. Read Concurrence.

Commentary:

This decision opens a can of worms on establishing the reliability of soft sciences, especially psychiatric or psychological testimony. Make sure everyone has a copy before your next capital murder trial. Meanwhile, can prosecutors use this case to challenge the endless opinions of defense psychiatrists attempting to negate the mental state of a defendant in noncapital cases? And, turning this decision on its head, why not use it to challenge the admissibility of defense “mitigation” experts?

Ex Parte Amador

10/13/10 : Cite No. PD-1072-09

Issue:

When both adult and child victims are present, does double jeopardy prevent the State from pursuing a conviction for indecency with a child by exposure after the defendant has already been convicted of the lesser-included offense of indecent exposure?

Holding:

Yes. The court reaffirmed its ruling in Briceno that indecent exposure is a lesser-included offense of indecency with a child by exposure. Read Opinion.

Concurrence: 

Judge Cochran clarifies that it is the act of exposing oneself that measures the offense, not the number or type of people who view the exposure. Read Concurrence.

Dissent:

Presiding Judge Keller states that with adults and children present there are different units of prosecution and double jeopardy should not bar prosecution. Read Dissent.

Commentary:

Judge Cochran’s concurring opinion focuses on “wagging the weenie” as the gravamen of the offense. Judge Keller’s dissent focuses on the object of the wagging, adult or child, as the gravamen. Remember the old law school case about pointing a gun at a stadium full of people, leading to charges for every person threatened by the gun? Well, apparently a weenie ain’t a gun.

Texas Courts of Appeals

Washington v. State – 1st COA

10/07/10 : Cite No. 01-10-00598-CR

Issue:

Did the improper conduct of a State’s witness, which resulted in a mistrial, bar a retrial under double jeopardy principles?

Holding:

No, the witness acted independently from the prosecution and the prosecution did not goad Washington into obtaining a mistrial. Read Opinion.

Commentary:

The victim of a burglary of his business, suffering from food poisoning and a three-year wait for trial, cussed out everyone in the presence of some jurors. That won’t result in double jeopardy, but it probably added another year to his wait for a trial.

Alfaro v. State – 4th COA

10/06/10 : Cite Nos. 04-09-00684-CR, 04-09-00685-CR

Issue:

Did the trial court improperly deny an instruction on mistake of fact in a resisting arrest case?

Holding:

No. The mistake of fact defense applies only if the defendant’s mistake affected his culpable mental state. Rather than saying that he mistakenly believed the officer had not tried to arrest him, the defendant said that the officer in fact did not try to arrest him. This is a dispute about the facts that occurred rather than a mistake involving the defendant’s culpable mental state. Read Opinion.

Commentary:

Alfaro told too many lies. Frankly, it is hard to believe the jury didn’t convict him for the initial assault as well. Once again, a defendant (this time also a police officer) makes a bad case worse by lying, running away and resisting arrest.

Texas Attorney General

Request for Opinion from Hale County Attorney

Issue:

Which events trigger running the deadline for filing a salary grievance by a county or precinct officer? Read Request.

 

 

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