April 16, 2010

Texas Court of Criminal Appeals

Stringer v. State

04/14/10 : Cite No. NO. PD-1569-08


Did the court violate the defendant’s Sixth Amendment right to confrontation when it overruled an objection to information about an unadjudicated offense contained in the PSI?


No. When the sentence is determined by the judge, the information in a PSI is not subject to the Confrontation Clause. Read Opinion.


This is the way that the decision had to be made, unless the court wanted to get rid of much of the pre-sentence investigation report practice. And the court’s holding is consistent with federal decisions and how the United States Supreme Court would decide this issue. Nevertheless, because of the unique adversarial nature of most sentencing hearings in Texas, do not expect this holding to be expanded to other sentencing evidence-especially to those sentencing hearings that are held in front of a jury.


Texas Courts of Appeals

Romo v. State – 2nd COA

04/08/10 : Cite No 02-09-153/154/155-CR

Issue 1:

Was a drug dog’s sniffing outside a residence’s fence and garage door an illegal search?


No, the sniffing from the public alley was not even a search-a person has no legitimate expectation of privacy in the odor of illegal drugs, nothing else was exposed by the sniffing, and the areas sniffed were not protected from observation by passersby. Read Opinion.

Issue 2:

Were jury instructions on the propriety of the searches required under art. 38.23?


No, there was no affirmative evidence creating disputed fact issues. Read Opinion.


This case should be helpful to allow the "alerts" of narcotics detection dogs to be used as the basis for a warrant to search a residence. And the decision also holds that the dog’s "alert" was sufficient-standing alone-to provide the probable cause for the search, although there was admittedly other evidence that was included in the search warrant affidavit.

State v. Clark – 11th COA

04/08/10 : Cite No. 11-09-00042-CR


Did an officer have reasonable suspicion to stop and detain the defendant’s vehicle, which was spinning its tires so much that they smoked profusely and squealed loudly?


Yes, although the defendant was not "racing" under the Transportation Code, he was violating the city’s municipal ordinance against "disturbance by a motor vehicle"; thus, the officer’s stop was objectively reasonable. Read Opinion.


This case is interesting because it reinforces the idea that an officer only needs reasonable suspicion-not probable cause-to conduct a stop of a vehicle. It is also interesting because it upholds the officer’s actions for a basis that was in the record, but for a basis that was different from that stated by the trial court. The court also refuses to discuss the defendant’s challenge to the constitutionality of the city ordinance because such a challenge was not raised at trial. Because this is a State’s appeal, I expect that the Court of Criminal Appeals may want to review this decision to determine if court of appeals opinion can be justified. If it holds up, it should be very helpful for prosecutors.

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