Court of Criminal Appeals
Foster v. State
12/08/10 : Cite No. PD-0001-10
Did the appellate court improperly apply the "as consistent with innocence as with criminal activity" standard when reviewing the defendant’s detention for possible intoxication?
Yes. Numerous factors including the time of night, the proximity to a bar district where DWI arrests have been made in the past, and the defendant’s aggressive driving were all relevant factors in determining reasonable suspicion. The officer articulated "something more than an inchoate and unparticularized suspicion or hunch" that objectively justified the defendant’s detention. Read Opinion.
This is a very short opinion with very little analysis, but it could prove to be very important. If your judge is challenging you on an officer’s vehicle stop, quote this language to the judge: "The Fourth Amendment totality-of-the-circumstances test requires only ‘some minimal level of objective justification’" for a traffic stop.
Texas Courts of Appeals
Ochoa v. State – 1st COA
12/02/10 : Cite No. 01-09-00189-CR
Do §§22.01(a)(1) and (b)(2)(A) of the Penal Code apply to same-sex relationships even though §21.06 penalizes same-sex intercourse?
Yes. "Dating relationships" do not necessarily include sexual intercourse, so there is no conflict between the Legislature’s criminalization of "deviate sexual intercourse" and its protection of persons in same-sex dating relationships from domestic violence. Neither the term "romantic" nor the term "intimate" is defined by statute.Read Opinion.
This is a very thorough and well-reasoned decision, and you should be comfortable relying upon it. But I fully expect that the Court of Criminal Appeals will want to review this holding.
Kibble v. State – 1st COA
12/02/10 : Cite No. 01-09-00480-CR
Did the trial court err by admitting evidence that the narcotic dog alerted on the defendant’s money, indicating that the money was in contact with illegal drugs, when the expert testimony surrounding it was unreliable?
Yes. The error was harmless because there was properly admitted evidence in the record establishing the same matter, including drugs bagged in quantities for resale and the defendant’s own admission that she intended to sell the drugs. Read Opinion.
This testimony was offered to support the State’s case that the illegal narcotics were possessed with the intent to deliver. There was other evidence to support that finding. This opinion does not go into why the expert testimony was unreliable, but I perceive that there may be an increased need to prove the reliability of canine detection-related testimony.
Woodruff v. State – 6th COA
12/03/10 : Cite No. 06-09-00086-CR
Should the defendant’s indictment have been dismissed when the district attorney’s office recorded and reviewed privileged attorney-client telephone calls?
No. While the defendant’s Sixth Amendment rights were violated, no evidence of value was uncovered. Additionally, although there was some evidence that telephone communication with the defendant’s attorney was "chilled," the defendant could communicate with his attorney through other means.Read Opinion.
It is common for prosecutors to gain access to jail inmate telephone calls, but it is important to have a system set up whereby the prosecutor does not gain access to calls made to and from the inmate’s attorney. Read this decision if you want to know some of the problems that can be created by a prosecutor’s knowledge of a defendant’s privileged communications with his attorney.
Hernandez v. State – 6th COA
12/03/10 : Cite No. 06-10-00085-CR
Was the conviction for aggravated kidnapping while using or exhibiting a deadly weapon improper when the defendant used a toy gun?
Yes. The evidence was legally insufficient. Because the toy gun was incapable of inflicting death or bodily injury as a firearm under Penal Code §1.07(17), the evidence was only sufficient to support a finding that the defendant threatened to use deadly force by displaying a pistol, which would have allowed a conviction for the lesser-included offense of kidnapping. Read Opinion.
The victim did not know that the gun was a toy and testified that she was afraid for her life when the gun was pointed at her. So a finding on the use of deadly force was proper, and the defendant could, therefore, be properly convicted of kidnapping.
Watkins v. State -10th COA
12/ 01/10 : Cite No. 10-10-00055-CR
Was the defendant entitled to a hearing for removal of his court-appointed counsel?
No. There was ample evidence that his appointed counsel was filing motions and preparing a defense. The defendant was not entitled to new counsel and the denial of his motion was not considered a "proceeding"; therefore, no hearing was required.Read Opinion.
The holding in this case as to whether a "proceeding" had occurred appears to have turned on the language of the order. If the order states that a matter "came on to be heard" before the judge, that would constitute a "proceeding." But if the order is merely a ruling, then perhaps a "proceeding" has not occurred, and the defendant and/or his attorney need not be present.
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