April 22, 2011

Court of Criminal Appeals

Ex Parte Spencer

04/20/11 : Cite No. AP-76,244


Was the testimony of the forensic visual science expert based on advances in science and technology, and could it be used to establish actual innocence?


No to both questions. While forensic visual science may be new, the evidence being tested must be the same as it was at the time of the offense. There is no way for the forensic visual expert to test the conditions as they existed at the time of the offense because there is no way to replicate the lighting conditions. The expert report saying that it was too dark and the car was too far away for eyewitnesses to have seen the defendant does not affirmatively establish his innocence, it attempts only to discredit the witnesses who stated that they saw defendant get out of the victim’s car. Read Opinion.


Judge Price emphasizes the importance of the CCA taking time to carefully evaluate post-conviction habeas corpus claims. Read Concurrence.


This decision can be helpful if such a defense expert is presented at a motion for new trial, as well as on a writ of habeas corpus. You should expect eyewitness identification testimony to be challenged more and more in the courtroom, and we will need to be ready to uphold the validity of our eyewitness’ testimony.

Texas Courts of Appeal

Jones v. State – 1st COA

04/14/11 : Cite Nos. 01-08-00828-CR, 01-08-01015-CR, 01-08-01016-CR


Originally summarized 2/4/11. On rehearing, the court reaches the same result. Did the search warrant affidavit, which omitted the date of a controlled buy but stated that it occurred “recently,” provide sufficient probable cause?


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


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.


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.

This was emphasized again by the Court of Criminal Appeals just last week in State v. McLain.

Dao v. State – 14th COA

04/14/11 : Cite No 14-10-00369-CR


Should the trial court have instructed the jury under Code of Criminal Procedure art. 38.23 that it must disregard evidence of the field sobriety tests (FSTs) if it decided that the tests were conducted unconstitutionally due to a language barrier between the officer and the defendant?


No, because the law does not require that the FSTs be conducted in the suspect’s first, or preferred, language. Read Opinion.


The defendant claimed that a fact issue was raised as to whether the defendant’s inability to perform the tests was due to his inability to understand English, rather than intoxication. But he had no authority to support his claim on appeal. The Court of Criminal Appeals may want to review this decision because the defendant’s claim was so novel.

Texas Attorney General

Request for Opinion from Wharton County District Attorney

04/13/11 : Request No. RQ-0959-GA


Does a constitutional county court judge who attended law school and passed the bar exam but never activated his law license qualify as “an attorney licensed by the state” for purposes of Article 18.01(i) of the Texas Code of Criminal Procedure? Read Request.

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