April 15, 2011

Court of Criminal Appeals

Blackman v. State

04/13/11 : Cite No. PD-0109-10


Was the evidence legally sufficient to convict the defendant of possession with intent to deliver a controlled substance when the cocaine was found behind the driver’s seat of a van in which defendant was a front-seat passenger?


Yes. A jury could have reasonably found that the defendant and the other two men traveled hundreds of miles together for the common purpose of purchasing cocaine. Other evidence included police surveillance showing behavior consistent with this purpose. A jury could reasonably find that the driver would not bring two innocent-bystander witnesses hundreds of miles to a large-scale narcotics transaction. A jury could also reasonably rely on the opinion of an experienced narcotics investigator that the appellant and the other two men acted like narcotics traffickers. Read Opinion.


Judge Meyers says the appellate court applied the Jackson standard correctly and there was not enough evidence to establish an affirmative link between the defendant and the cocaine. Read Dissent.


It is a little distressing that courts of appeals need to be reminded of the proper way to review the sufficiency of the evidence. It would perhaps make sense if the facts in this particular case were close, but they are not. This is yet another decision that you can show your judge if he is having second thoughts about the sufficiency of the evidence in a narcotics prosecution.

State v. McLain

04/13/11 : Cite No. PD-0946-10


Was the officer’s affidavit sufficient to support the search warrant when the grammatical structure of the affidavit could lead to confusion on what was actually being witnessed and reported?


Yes. It was the magistrate’s duty, not the court’s, to make the reasonable inferences and conclusions when reviewing the affidavit and warrant. Read Opinion.


Judge Johnson would use the plain language that the officer wrote down rather than attempt to “read the mind” and hold that the affidavit is not sufficient to support the warrant. Read Dissent.


It is also a little distressing that courts of appeals and trial judges still need to be reminded of the proper way to review the sufficiency of a search warrant affidavit and the importance of giving common-sense deference to the magistrate who signed the warrant. Again, there was more than enough evidence articulated within the affidavit to support a finding of probable cause. Another good decision to show your trial judge, but should this still be necessary?

Texas Courts of Appeals

Elizondo v. State – 7th COA

04/07/11 : Cite No. 07-10-00213-CR


Was the store’s loss prevention officer acting as a state agent when he obtained the defendant’s confession in the “Civil Demand Notice” and as a result a violation of the Fifth and Fourteenth Amendments and Article 38.22 of the CCP?


No. Even though the confession was obtained to help with the prosecution, it was also used to serve the store’s interests in civil and punitive actions. Police were not involved in or aware of the confession until after it was completed. Read Opinion.


This is a really good decision. The opinion does NOT deal with whether the defendant’s confession was voluntary, but only with the issue of whether the loss prevention officer was acting as a state agent for the purposes of Article 38.22. This opinion is a very good discussion of that case law.

Bernard v. State – 14th COA

04/12/11 : Cite No. 14-10-00044-CR


What standard should the court use to review a sufficiency claim for a finding of sudden passion?


Meraz v. State. While the Jackson standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt, the CCA determined in Meraz that when courts of appeals are called upon to review the factual sufficiency of the evidence on an issue that the defendant must prove by a preponderance of the evidence, the correct standard of review is whether, after considering all the evidence relevant to the issue at hand, the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Read Opinion.


This decision is important because it is a post-Brooks decision that re-affirms that the factual sufficiency standard of review still applies to a question on which the defendant bears the burden of proof by a preponderance of the evidence. By any standard of review, the jury was justified in rejecting the defendant’s sudden passion claim in this case. The defendant stabbed and killed the victim only second after asking to speak with her. No sudden passion, just a blank stare at the only witness to the crime.

Kirkpatrick v. State – 8th COA

04/06/11 : Cite No. 08-09-00253-CR (Unpublished)


Is the trial court allowed to sua sponte grant a directed verdict after it has already granted a mistrial and released the jury?


No. The trial court still had jurisdiction after declaring the mistrial and could have withdrawn it before it released the jury. Once the trial court release the jury, withdrawal of the order was not an option. Without a withdrawal of the mistrial, the entry of a directed verdict was barred. Read Opinion.


The key here is that the trial judge had released the jury after granting the mistrial. If the trial judge had not released the jury, he could have rescinded the order and then (apparently) granted the motion for directed verdict. The re-prosecution of the defendant before the same trial judge certainly seems problematic, but at least the State still has a chance.

Green v. Texas – 10th COA

04/06/11 : Cite No. 10-09-00241-CR (Unpublished)

Issue 1:

Was the evidence sufficient to support a conviction for sexual assault when there was no evidence of violence or fighting?

Issue 2:

Were the defendant’s rights affected when the jury was given a transcript, which was not entered into evidence, of a recording that was entered into evidence?

Holding 1:

Yes. The jury was free to review all testimony and come to the conclusion that the defendant had committed the offense. Read Opinion.

Holding 2:

No substantial right was harmed. The transcript was the same transcript the jury had seen in trial. Read Opinion.


This is not simply a case of “No” means “No,” although the victim certainly testified that she did not consent. The defendant claimed that he had only been with his wife, but DNA showed otherwise. 

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