Weekly Case Summaries: November 19, 2010

Court of Criminal Appeals

Ex Parte Rendon

11/17/10 : Cite No. AP-76,352

Issue:

Must an applicant personally verify a post-conviction application for a writ of habeas corpus presented on his behalf?

Holding:

No. The applicant need not personally verify a post-conviction writ application; by express statutory provision, a petitioner who is not the applicant may verify the application and may do so "according to [his] belief[.]" The inmate/applicant may sign the Oath Before a Notary Public (and actually do so before a notary public) to verify the writ application according to his belief. Alternatively, he may sign the "Inmate's Declaration" attesting to the truth of the allegations without a notary public -- again, according to his belief. Or, finally, the applicant's attorney (or any other person), as petitioner, may sign the Oath Before a Notary Public in the presence of a notary public, attesting to the truth of the allegations according to his belief. But the a non-applicant petitioner should strike the word "applicant" from beneath the prescribed signature line under "Oath Before a Notary Public" and substitute the word "petitioner" there. Any of these three methods serve to properly verify the writ application. Read Opinion.

Dissent:

Judge Johnson would consider the merits of the application rather than requiring it to be refiled under the new rules created by this opinion. Read Dissent.

Commentary:

The method approved here for verifying the accuracy of a petition virtually releases the accused from any personal responsibility for stating the truth in an application for relief. Expect future petitions to be signed by a third party who merely professes a "belief" that the facts are true, thereby avoiding any prosecution of the accused for aggravated perjury.

Uranga v. State

11/17/10 : Cite No. PD-0385-08

Issue:

Does the doctrine of "implied bias" apply when it is discovered during the punishment stage that a juror was a victim of the appellant's extraneous, unadjudicated offense?

Holding:

No. After reviewing the video tape showing the defendant's car damaging the juror's lawn, the trial court allowed additional questioning. The juror repeatedly promised that he would not use the incident against the defendant. Read Opinion.

Concurrence:

Judge Myers states that the trial court's hearing was unnecessary as article 37.07 of the Code of Criminal Procedure allows the jury to consider extraneous unadjudicated offenses. Read Concurrence.

Dissent:

Judge Price would find that the Sixth Amendment implied bias doctrine applies. Read Dissent.

Commentary:

This case is a reasonable summary of a trial judge's cautious effort to evaluate a trial surprise. Nonetheless, Judge Myers gratuitously informs the public that he has never liked the 1993 amendment to article 37.07, which was revolutionary in providing truthful information to sentencing jurors about a defendant's criminal history. Through a growing number of concurrences and dissents (see also dissent in Meadoux), he is showing himself to be out of touch with mainstream legal thinking.

Meadoux v. State

11/17/10 : Cite No. PD-0123-10

Issue:

Does sentencing a juvenile to life without parole constitute cruel and unusual punishment?

Holding:

No. The defendant was unable to establish that there is a national consensus against imposing life without parole on a juvenile for the offense of capital murder. Life without parole for juvenile capital offenders is not grossly disproportionate to the offense. Read Opinion.

Dissent:

Judge Meyers states that this defendant's situation is similar to the situation after Penry I and the defendant should be given a new punishment hearing. Read Dissent.

Commentary:

Despite (or perhaps because of) this opinion, the legislature is likely to consider a bill to retroactively convert 20 or so sentences of life without parole for juveniles into life with parole (after 40 years). That would be the ultimate proof that there is no such thing as life without parole. Meanwhile, shouldn't there be some consideration for the victims and how these cases were resolved through a plea bargain? On a side note, in a recent Florida resentencing of a juvenile, who had a life without parole sentence reversed by SCOTUS, the trial judge said, "Let me start out by saying, what's wrong with this picture? Shouldn't our focus be first and foremost on the welfare of the victims? Is it not cruel and unusual punishment for the victims to have endured the rage, the brutality, the terror that your client exacted upon them?" The judge then stacked a 65 year sentence on a pending 27 year sentence, making the juvenile eligible for parole at age 91.

Texas Courts of Appeals

Ervin v. State

11/10/10 : Cite No. 01-10-00054-CR

Issue:

Was the evidence legally and factually sufficient to support a murder conviction in light of the Court of Criminal Appeals' recent decision in Brooks v. State?

Holding:

Yes, the evidence is legally sufficient. Brooks did not abolish factual sufficiency; rather, the Jackson standard of review for legal sufficiency reabsorbed the Clewis standard of review, so that there is but a single standard for assessing legal and factual sufficiency claims. Read Opinion.

Concurrence:

Brooks has rendered the factual conclusivity clause of the Texas Constitution a dead letter in criminal appeals and, as a result, the intermediate courts are now prohibited from deciding questions of fact in criminal cases. Read Concurrence.

Commentary:

Seems at least one court of appeals is pouting over the loss of factual sufficiency review power in criminal cases. Justice Jennings even goes so far as to send out a call to arms to the Legislature, demanding that such power be returned. No mention that the Legislature already made it clear in other statutes that the JURY should have the final word in criminal cases as to the facts. Stay tuned.

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