Weekly Case Summaries: December 3, 2010

Texas Courts of Appeals

Hogan v. State

11/18/10 : Cite No. 02-09-00387-CR

Issue:

Did sufficient probable cause support a DWI blood search warrant and did the affidavit satisfy the constitutional and statutory requirements?

Holding:

Yes and yes. Although the affidavit could have been more explicit, it provided probable cause and fulfilled the constitutional and statutory requirements. Read Opinion.

Commentary:

If your jurisdiction commonly uses or wants to commonly use search warrants in order to obtain the blood of intoxicated defendants, you need to read this decision. The warrant here was sufficient, but there is no reason why you cannot make a warrant better. Educate your officers to avoid the potential defects that are outlined in this opinion: (1) Avoid the use of acronyms with which a court of appeals judge may be unfamiliar, (2) Make sure that the affidavit clearly identifies the defendant's actions as the defendant's, and (3) Make sure that the affidavit spells out the officer's experience with intoxication investigations. Or draw the warrants up yourselves if you can.

Ex parte Perusquia

11/24/10 : Cite No. 04-10-00164-CR

Issue:

Did a deadlock during jury deliberations constitute a manifest necessity for a mistrial so as to permit a retrial?

Holding:

Yes. In granting the mistrial, the trial court considered -and employed some-other less drastic measures including an Allen charge, allowing additional time for deliberations, and sequestration. Read Opinion.

Commentary:

This was a murder case in which the defendant/wife claimed that she had been abused and had acted in self-defense in killing the victim/husband. This is a case where even the best of juries might be expected to "hang." This careful trial judge did a great job in giving the jury every opportunity to come to a conclusion before declaring a mistrial. Good case.

Clinton v. State

11/17/10 : Cite No. 06-10-0090-CR

Issue:

In a credit card abuse case alleging the defendant "used" the credit card, was the State's proof that the defendant "presented" the card legally sufficient to support the conviction?

Holding:

No. Under the statute, the terms "use" and "present" are mutually exclusive and the State was bound by the allegations contained in the indictment. Read Opinion.

Commentary:

This does not make any sense. Why are the two words necessarily "mutually exclusive"? The Legislature could just have easily (and more probably) placed both words in the statute to make sure that the broadest possible scope of a defendant's conduct with regard to someone else's credit card would be criminalized. The review of the evidence by the court of appeals also appears not to be in the light most favorable to the verdict. The Court of Criminal Appeals needs to take a look at this decision.

Sommers v. State

11/24/10 : Cite No. 10-09-00387-CR

Issue:

In an intoxication manslaughter case, did the trial court properly exclude evidence of the victim's drug usage?

Holding:

Yes. EMIT test results are merely for screening purposes, which are unreliable absent a confirmation test, and the confirmation test was negative. Read Opinion.

Dissent:

No. The exclusion of the EMIT test results violated Sommers' right to present a defense, i.e., that the victim died from a drug-induced heart attack before Sommers hit her car. Read Dissent.

Commentary:

The analysis in the majority opinion is pretty sparse. But it appears to be correct in light of the unreliability of the initial test in the absence of a positive result in the confirmation test. It would appear that a trial judge could properly exclude such evidence under Rule 403 of the Rules of Evidence.

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