U.S. Supreme Court
Padilla v. Kentucky
03/31/10 : Cite No. No. 08-651
Does a noncitizen defendant have a Sixth Amendment right to be informed by counsel about the likely deportation consequences of a plea?
Yes, defense counsel must inform their clients of this risk. Relief depends on prejudice to the defendant, and the case is remanded for that determination. Read Opinion.
Justice Alito stresses that defense counsel should be obligated to warn of potential dangers of deportation, but not be required to advise on the actual immigration law.
Justice Scalia argues that the Sixth Amendment only guarantees counsel for the criminal prosecution and not any collateral consequences.
Notwithstanding Justice Alito’s concurrence, the majority opinion makes it clear that a criminal defense attorney must inform his client of the "clear" consequences of a criminal conviction, and the majority even suggests that the defense lawyer in this case should have read the statute that commanded the defendant’s deportation. The majority does suggest that, if deportation is not "clear," defense counsel may only need to advise his client that a pending criminal charge might carry a risk of adverse immigration consequences.
U.S. District Court for the Western District of Texas
McKinley and Villasana v. Greg Abbott as AG
03/25/10 : Cite No. A-09-CA-643-LY
Are the bans on written solicitation created by Penal Code §38.12(d)(2)(A) and (C) constitutional?
No, they ban more speech that is needed to meet the State’s interests and create too large a gap between the harm and the speech that is banned.
The federal district court relied upon a decision from the Fourth Circuit Court of Appeals and drew a distinction between bans on solicitations made by plaintiff’s attorneys and the bans in this case on solicitations made by criminal and traffic defense attorneys. The decision may be subject to review, however, because the Fifth Circuit Court of Appeals had largely upheld the constitutionality of a prior version of Section 38.12. Read Opinion.
Texas Court of Criminal Appeals
Juarez v State
03/31/10 : Cite No. No. PD-0666-09
Can a defendant admit to the conduct alleged in the charge but deny the required mental state and still receive a jury instruction on necessity?
Yes, if it can be reasonably inferred from other testimony that the defendant has in fact admitted to the requisite conduct and mental state.Read Opinion.
Judge Holcomb clarifies what testimony specifically allows the jury to infer an admission to the mental state even when the defendant testified that it was an accident. Read Opinion.
The defendant testified that he did not intentionally, knowingly, or recklessly bite the officer’s finger-the conduct that was the basis for the charge against the defendant. But the defendant also testified that he bit the officer in order to get the officer off him because he was concerned for his life. From that, the jury allegedly could have inferred a culpable mental state on the part of the defendant. Still, this decision should be helpful to the State because it makes clear that a defendant must admit all of the elements of the offense-including the culpable mental state-in order to be entitled to a jury charge on the necessity defense and other similar defenses.
Ex Parte Carlos Hiracheta
03/31/10 : Cite No. AP-76,282
May a judgment of conviction ordering community service be collaterally attacked by a writ application filed under CCP Art. 11.07?
No, a writ application under Article 11.07 may only challenge a final conviction. To challenge a probated sentence, the writ application must be filed under Art. 11.072. Read Opinion.
Article 11.072 is a relatively recent addition to the Code of Criminal Procedure, so some defense lawyers may not be aware of it. It is the means by which a defendant must raise a collateral attack upon a "conviction" that has a probated sentence.
Texas Courts of Appeals
Martinez v. State
03/24/10 : Cite No. 07-07-00523-CR
Did the testimony of the Chief ME, who was substituting for the ME who conducted the autopsy, violate Martinez’s right to confrontation?
Yes, because it was reasonable for the ME conducting the autopsy to assume the autopsy report would be used prosecutorially, the resulting report, even though it was not admitted, was a testimonial statement and the Chief ME disclosed some of its contents in violation of Martinez’s confrontation rights. Nevertheless, given that most of the Chief ME’s testimony was based on his independent review of the autopsy photographs, and that the information from the autopsy report was cumulative of other evidence, the error was harmless. Read Opinion.
The Court of Criminal Appeals will need to review this decision, but it does not bode well for the admissibility of the typical autopsy report (if the report was prepared by someone who cannot testify). The court of appeals does make clear that the testifying expert witness, after reviewing the autopsy report, can render his own independent opinion as to cause of death, but he cannot merely recite portions of the autopsy report.
Texas Attorney General
Request from Randall County
03/26/10 : Opinion No. GA-0765
Does the defense listed under Penal Code §43.24(c)(2) apply to parents who shows pornographic materials to their children?
The opinion never answers the question. Without addressing the interpretation of that section, the opinion states that the potential existence of a defense does not automatically prevent prosecution, which is always within a prosecutor’s substantial discretion. Read Opinion.