Weekly Case Summaries: November 12, 2010

Fifth Circuit

United States v. Jackson

11/08/10 : Cite No. 09-10850

Issue:

Did the government properly authenticate drug ledgers as non-testimonial business records or co-conspirator statements so that their admission did not violate the Confrontation Clause?

Holding:

No, the officer was not a qualified witness to sponsor the ledgers supplied by a co-conspirator because the officer lacked knowledge of the record-keeping process of the specific drug-trafficking cell. Read Opinion.

Commentary:

There is a lot of discussion in this case about Crawford and whether a drug ledger is "testimonial" insofar as triggering the Sixth Amendment's right to confrontation. That discussion is largely unnecessary because the government utterly failed to get past the first step: authenticate the ledger as legitimately coming from drug dealing connected to the defendant. Unlike most cases, this ledger was not seized during a search. It magically appeared during the government's plea negotiations with a co-conspirator. So, why in the world didn't the government require that co-conspirator to testify at Jackson's trial, providing the reliable authentication required to establish the ledger as a business record? The skepticism of the court of appeals is understandable.

Court of Criminal Appeals

State v. Wilson

11/10/10 : Cite No. PD-0008-09

Issue:

When the defendant accepted a plea agreement for an improperly enhanced felony DWI, was he estopped from filing a writ of habeas corpus?

Holding:

No. The defendant pled guilty to a felony conviction and the offense was in fact a misdemeanor, therefore the defendant was still entitled to relief. Read Opinion.

Commentary:

The Court of Criminal Appeals makes it clear that estoppel will prevent a defendant from attacking an illegal sentence only if the sentence was wrongfully too lenient. An illegal sentence that is excessive (e.g., outside the legal punishment range) will open the door to postconviction relief. The opinion is also worth reading to see the evolution of the meaning of "actual innocence", moving from a pure "did not commit the crime" to a murkier "committed a crime but maybe not this one" to an even murkier "committed some crime but punishment wrong."

Cardenas v. State

11/10/10 : Cite No. PD-1846-09

Issue:

Should the trial judge have allowed the defendant's challenges for cause when prospective jurors unequivocally stated they could not consider the minimum punishment in an aggravated sexual assault of a child?

Holding:

Yes. The question was proper as the jurors are required to consider the full range of punishment. The trial court abused its discretion by denying the defendant's challenges for cause. Read Opinion.

Commentary:

This kind of case is why the Legislature, in 2007, amended the Code of Criminal Procedure to make a defendant ineligible for probation from a jury for the offense of aggravated sexual assault of a child under the age of 14. That change was part of the package of changes to sex offender provisions called "Jessica's Law." Good stuff. As usual, Judge Cochran writes a good opinion, making sure to leave us with a clearer understanding of what is and is not an improper commitment question on issues involving punishment ranges.

Welsh v. State and McKithan v. State

11/10/10 : Cite Nos. PD-0969-09 & PD-0811-09

Issue 1:

Is offensive-contact assault a lesser-included offense of bodily-injury assault?

Issue 2:

Is bodily-injury assault a lesser-included offense of aggravated sexual assault in an indictment alleging that the complainant was compelled to submit and participate by the use of "physical force and violence"?

Holding:

No. Under the analysis set up in Hall v State neither of these are considered lesser-included offenses. In both cases the facts required to prove the lesser-included offenses are not the same as, or less than, those required to establish the offense charged. While evidence of other offenses may have been presented, the State was not required to prove these offense in establishing the charged offenses. Read Opinion.

Concurrence:

Judge Cochran would rephrase the issue as "Does proof of a bodily-injury assault by kicking (or the use of 'physical force and violence‘ in an aggravated sexual assault) necessarily require proof that the defendant intentionally caused physical contact with the victim that the defendant knew or reasonably should have known that the victim would regard as offensive or provocative?" Read Concurrence.

Commentary:

Oh, yippie, yet another dive into the cognate-pleadings approach to evaluating lesser-included offenses. Judge Hervey provides a very logical explanation of the law and applies it understandably. You should be very happy to learn that a Class C assault is not a lesser-included offense to Class A assault-family violence. Concurring Judge Cochran gets a shout out for describing the differences between the two types of injury (physical v. psychic) in down-to-earth language ("ouch" v. "yuck").

Texas Courts of Appeal

Sanchez v. State - 4th COA

11/03/10 : Cite No. 04-09-00605-CR

Issue:

After the pre-trial outcry witness became unavailable for trial, did the State use the proper outcry witness?

Holding:

No, although an outcry witness is "event-specific," not "person-specific," the witness did not testify to any offense facts that were different than those related by the pre-trial outcry witness. Although testimony of more than one outcry witness may be admitted, multiple outcry witnesses must testify to different facts rather than repeat the same general description of the event. Read Opinion.

Commentary:

Not surprisingly, we learn that you can't go down the list of outcry witnesses to the next in line just because the first one is unavailable. Fortunately, it was harmless. Even more fortunate, the state was able to present the testimony of the unavailable first outcry witness because it was preserved during a pretrial hearing. There is a good discussion of how the testimony was admissible because the defendant had ample opportunity to cross-examine during that hearing. Pretty cool.

Int'l Fidelity Ins. Co v. State

11/03/10 : Cite No. 03-09-00539-CR (not published)

Issue:

Has the State exercised due diligence in effecting service in a bond forfeiture suit 3 ½ months after the statute of limitations has expired if it files suit within the statute of limitations?

Holding:

Yes, if the State relies on the district clerk's database indicating that service has been timely made and, when it discovers that service has not been made, immediately accomplishes it. Read Opinion.

Commentary:

This opinion should be published as it addresses an important issue. Read this opinion if it is your job to handle bail bond (or even asset forfeiture) collections for your county. You need to make sure you have a good system for confirming that service of the lawsuit was promptly accomplished.

Texas Attorney General

Opinion for Potter County Attorney

11/04/10 : Opinion No. GA-0814

Issue:

Should revenue from the sale of prepaid phone cards in a county jail commissary be credited to the sheriff, as custodian of the commissary funds, or to the general fund of the county?

Opinion:

Revenue from the sale of prepaid phone cards in the county jail commissary should be credited to the sheriff for the use of county jail inmates rather than to the general fund of the county. Read Opinion.

Commentary:

This opinion will likely make sheriffs happy and commissioners sad.

Opinion for the Senate Chair of the Committee on Education and the Dallas County Auditor

11/04/10 : Opinion No. GA-0816

Issue:

Does the Dallas County Commissioners Court have the authority to retain independent legal counsel to represent Dallas County in civil matters where a conflict of interest exists for the Dallas County District Attorney, or where the Dallas County District Attorney has failed to act?

Opinion:

Although the Dallas County Criminal District Attorney has broad authority over most criminal matters and a duty to represent the state in those matters in Dallas County, he does not have a duty to represent Dallas County in all civil matters. However, the Dallas County Criminal District Attorney does have the power to select counsel and to determine the terms and duration of the engagement where the representation will include filing or defending a suit by or against the County.

While the Dallas County Criminal District Attorney is not barred from exercising this or any other power on account of his status as a state prosecutor under the statutory provision defining and constraining that office, he is subject to ethical rules governing conflicts of interest that could preclude him from selecting counsel. Whether such a conflict exists is a matter for the Criminal District Attorney and the County Commissioners to determine in the first instance and, barring agreement, as an ancillary matter for the civil court. Read Opinion.

Commentary:

There are now at least three counties in Texas where commissioners courts have hired outside counsel to provide ongoing advice, thereby bypassing the use of the elected county attorney. Politics is a tough game. This AG opinion reinforces the authority of the commissioners court to take that approach, but there are limitations when outside counsel is hired for the purpose of defending the county in a particular lawsuit.

 

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.