Texas
Courts of Appeals
Kennedy v. State – 1st COA
7/31/08 : Cite No. 01-06-00751-CR : Retrograde Extrapolation
Testimony
Issue
Did the trial court err by admitting the inconsistent
testimony of two experts on retrograde extrapolation?
Holding
No. Because the expert acknowledged and offered an
explanation to reconcile his testimony, it was within the court’s discretion to
conclude the underlying technique of retrograde extrapolation was valid and
reliable.
Commentary
This opinion represents a good application of the controlling decision of
the Court of Criminal Appeals in Mata v. State, 46 S.W.3d 902 (Tex.
Crim. App. 2001). But Mata is frankly far too restrictive in allowing for the
admissibility of retrograde extrapolation testimony of an expert witness. At
some point, that decision needs to be revisited, so that its requirements can
be relaxed. In this case, the defendant barely missed a minivan carrying six
people–so closely that the driver of the minivan told his wife to brace for
the impact, which thankfully for them never came. The defendant continued to
drive so aggressively that he forced other drivers off the freeway and onto the
shoulder. The defendant was weaving in and out of traffic when he cut
completely across the freeway from lane four on the left side to the breakdown
lane on the right side and then proceeded to accelerate. The defendant then
crashed his truck into the rear of the victims’ vehicle, killing two children
and severely injuring a third. The other two occupants of the victims’ vehicle
received broken bones. While emergency medical personnel and law enforcement
officers attempted to deal with the chaos that the defendant had created, the
defendant helpfully proceeded to fall asleep in the back seat of an officer’s
patrol car.
in general, and
needs help in confronting the serious problem that is drunk driving. It would
be nice if our case law provided that help.
Muniz v. State – 1st COA
7/31/08 : Cite No. 01-07-00129-CR : Blood Search Warrants
Issue
Does a justice of the peace have authority under CCP
art. 18.01(i) to grant a blood search warrant under CCP
art. 18.02(10) if two municipal judges in the county are lawyers?
Holding
Yes. CCP
art. 18.01(i) allows any magistrate to sign a CCP
art. 18.02(10) search warrant if the only judges serving a county who are
licensed attorneys and who are authorized to issue art.
18.02(10) search warrants are district judges serving more than one county.
Here the municipal judges are not municipal courts of record and therefore
cannot sign
18.02(10) search warrants.
Commentary
This decision construed a version of Article 18.01(i) of the Code of
Criminal Procedure that is no longer in effect. That version of the statute,
and this opinion, were written to emphasize that a police officer does not have
to travel to another county in order to get a search warrant signed. Hopefully,
the current version of the statute will be construed in the same fashion.
Trinidad
v. State – 4th COA
7/30/08 : Cite No. 04-07-00799-CR : Alternate Juror
Issue
Are alternate jurors allowed in the jury room during
deliberations?
Holding
No. Although the defendant did not object at trial, the
right to a 12-member jury is a waivable-only right that does not require timely
objection. Furthermore, the right to a 12-member jury is protected by the Texas
Constitution in Art.
V, §13. This right precludes the deliberation of more than 12 jurors. Using
a harm analysis, it could not be found, beyond a reasonable doubt, that the
alternative juror did not contribute to the defendant’s conviction or
punishment because she was instructed by the court to participate in
deliberations.
Commentary
Part of the blame for this reversal must be laid at the feet of the Texas
Legislature, which recently amended CCP
art. 33.011(b) to allow alternate jurors to deliberate during the
punishment stage if a juror is forced to leave during or before that stage of
the trial. The problem is–what do you do with the alternate juror while the
jury is deliberating guilt-innocence? Well, you certainly do not allow the
alternate juror to sit in on deliberations because that would violate CCP
art. 36.22, which was NOT amended. This opinion points out that the
legislative intent behind the amendment to CCP
art. 33.011(b) was for an alternate juror to be directed by the trial judge
to separate from the regular jurors and not participate in deliberations. It
certainly would have been nice if the Legislature had actually said this,
however, either in art.33.011
or art.36.22,
or both. An argument can be made that an alternate juror should be permitted to
sit in on deliberations, so that he will have the benefit of the other jurors’
deliberations if he is ultimately called upon to replace one of the jurors. But
such a procedure would require an amendment to art.
36.22. The bottom line is that, if you have an alternate juror, make sure
that your judge instructs him to not sit in during jury deliberations.
Hall v. State – 10th COA
7/30/08 : Cite No. 10-07-00213-CR : LIDAR
Issue
Is LIDAR technology, which uses lasers to measure the speed
of a vehicle, novel scientific evidence that must be subjected to a gatekeeping
hearing?
Holding
Yes. The prosecution failed to offer any evidence of the
LIDAR technology as a means of measuring the speed of a vehicle and there are
no
authorities confirming its reliability. LIDAR technology is novel scientific
evidence which may be admissible only after its reliability has been judicially
determined in a full-blown gatekeeping hearing.
Commentary
This case stands for the proposition that LIDAR (LIght Detection And
Ranging) and RADAR (RAdio Detection And Ranging) are not the same thing. I
frankly have no idea. Nevertheless, if your police officer has utilized LIDAR,
its reliability and the propriety of the officer’s application of it, may need
to be shown if the defendant so requests.
State v. Stauder – 10th COA
7/31/08 : 11-07-00375-CR : Inventory / Search Incident to
Arrest
Issue
Did police conduct a valid inventory, or in the alternative
a valid search incident to arrest, when they searched the defendant’s car after
his arrest to prepare it for impoundment?
No. The inventory was invalid because the police officer, by
not completing an inventory sheet, did not comply with established procedures.
In addition, the search incident to arrest was invalid because the officer’s
testimony made clear that the evidence was found during an inventory and there
was no evidence that the items seized in the bed of the pickup were in the
defendant’s immediate area of control.
opinion
I suppose that, if your law enforcement agency’s inventory policy requires
that an inventory form be filled out, then the inventory form must be filled
out–at least so as to ensure that a proper accounting be made for the driver’s
property. However, if you draw an analogy to a search warrant, the failure to
fill out the search warrant return will not necessarily invalidate the search.
If an inventory form has not been filled out, should that really necessitate
the exclusion of any incriminating evidence that is uncovered during the
inventory?
Texas Attorney General Opinion Requests
RQ-0729-GA
8/1/08 : Right-of-way
County Attorney, submitted a request for an opinion on whether a commisioners’
court has the authority to remove from county right-of-way structures it deems
to be a safety.
If you would like to express your opinion on this matter, please contact the
Attorney General’s Opinions Committee.
RQ-0730-GA
8/7/08 :
Representative Joe Driver (R-Garland), Chairman of the House Committee on Law
Enforcement, has requested an opinion from the Attorney General on the
authority of a county attorney to issue commissions for reserve or nonpaid
peace officers.
If you would like to express your opinion on this matter, please contact the
Attorney General’s Opinions Committee.
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