Weekly Case Summaries: February 04, 2011

Court of Criminal Appeals

Smith v. State

02/02/11 : Cite No. PD-0298-09

Issue:

Did enough non-accomplice evidence connect the defendant to the murder of her husband and father-in-law?

Holding:

Yes. There was evidence beyond that showing motive and opportunity. The non-accomplice evidence included the defendant's attitude towards her husband before and after the murder, the defendant's comments about the victims, and indications that the defendant disposed of the guns. Read Opinion.

Commentary:

This is one strange fact situation. But the holding should be very helpful in those cases where motive and opportunity is the great bulk of the non-accomplice evidence that you have. The decision is also helpful as to what makes one an accomplice witness in the first place. The case gives the trial court discretion to weigh conflicting facts concerning whether the charge was dismissed against the purported accomplice in exchange for his testimony against the defendant. Overall a very helpful decision if you have a close accomplice witness case.

Shipp v. State

02/02/11 : Cite No. PD-1346-09

Issue:

Does a store receipt constitute a "commercial instrument" for the offense of forgery under §32.21 of the Penal Code?

Holding:

Yes. The receipt documents a purchase and allows a purchaser to exit the store with the merchandise. A receipt is often necessary to return merchandise for other goods, cash, or store credit. These uses are sufficient to qualify a store receipt as a "document of commerce." The store receipt constitutes an "other commercial instrument" under §32.21(d), even by "the classic definition of the term." Read Opinion.

Concurrence:

Judge Meyers states that because a plain meaning for "commercial instrument" exists, the court should not have looked beyond the statutory language to consider legislative history. Read Concurrence.

Dissent:

Presiding Judge Keller states that a receipt neither creates nor discharges an economic obligation nor does a receipt transfer property and should not be considered a "commercial instrument." Read Dissent.

Commentary:

This is the second forgery case in recent memory in which a majority of the court has afforded a broad construction to documents that can be the subject of a forgery prosecution. So be thinking about whether your document can fall into one of the many categories set forth in the forgery statute, so as to raise the defendant's punishment.

Derichsweiler v. State

01/26/11 : Cite No. PD-0176-10

Issue:

Was the defendant's non-criminal behavior enough to justify an investigative stop without reasonable suspicion of a particular offense?

Holding:

Yes. There is no requirement to point to a particular offense, but rather reasonable suspicion that he was about to engage in criminal activity. Read Opinion.

Concurrence:

Presiding Judge Keller clarifies that the issue at hand is if the reasonable suspicion of a defendant who is "soon to be" engaged in a criminal activity is sufficient rather than a reasonable suspicion that a person actually "is" engaged in illegal activity. Read Concurrence.

Dissent:

Judge Meyers focuses on the lack of any first-hand observations by the police officer and instead relied only on facts given to the 911 operator. Read Dissent.

Commentary:

This is a great decision on reasonable suspicion. You can show this to your judge to emphasize that an officer does not have to identify a specific crime that provided the basis for his reasonable suspicion. But the opinion also helpfully makes clear that a 911 operator is part of the law enforcement team cooperating with one another. So the 911 operator need not communicate everything that he or she has heard to the other officers, but it can still be considered as part of the overall reasonable suspicion determination.

Texas Courts of Appeals

Jones v. State - 1st COA

01/31/11 : Cite Nos. 01-08-00828-CR, 01-08-01015-CR, 01-08-01016-CR

Issue:

Did the search warrant affidavit, which omitted the date of a controlled buy but stated that it occurred "recently," provide sufficient probable cause?

Holding:

Yes; while not a model affidavit by any means, it sufficed. The facts indicated a continuing criminal operation. Read Opinion.

Dissent:

The majority "confuses and conflates" staleness and specificity, i.e., timeliness and adequacy. Jones' complaint goes just to adequacy of the evidence showing the time of the event providing probable cause, not the remoteness of the event. Read Dissent.

Commentary:

This is a very thorough decision, and you should really examine it when confronted with a challenge to one of your search warrants. Make sure that your officers know to include dates (any everything else) necessary to establish probable cause. But that does not mean that a warrant should not be read in a common-sense manner. This is the number one rule that needs to impressed upon judges when they are reviewing a magistrate's determination of probable cause in a warrant.

Watson v. State - 11th COA and Smith v. State - 11th COA

01/27/11 : Cite No. 11-09-00039-CR and 01/27/11 : Cite No. 11-09-00050-CR

Issue 1:

Is the offense of dog mauling under Health & Safety Code §82.005(a)(1) unconstitutionally vague on its face or unconstitutional as applied?

Issue 2:

Does Rule of Evidence 404(b) apply to prior bad acts by a dog?

Holding 1:

No, agreeing with State v. Taylor, 322 S.W.3d 702 (Tex. App.-Texarkana 2010, pet. filed), and the lack of specific definitions does not alone render a statute vague.

Holding 2:

No, Rule 404(b) applies only to prior bad acts by people.
Read Watson here and read Smith here.

Commentary:

If you handle this kind of dog case, these decisions will be helpful. They are thorough and well-written. Do not place too much on the idea that Rule 404(b) only applies to human beings, although the holding may capture the attention of the Court of Criminal Appeals. The previous acts by the dog were necessary to show the defendant's knowledge of the nature of the dog and thus his negligence and culpability.

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