Please Note : There will be no Case Summaries for the next two weeks
Texas Court of Criminal Appeals
Williams v. State
12/16/09 : Cite No. AP-75,811
Was it proper for the trial court to allow 12 photos of the "gruesome" crime scene over the defense attorney’s objection?
Yes. The photographs were introduced to assist the medical examiner in explaining the injuries and to rebut defendant’s self-defense argument. Although the photographs were gruesome, the nature of the murder-including 17 bullet wounds-means the photos portray no more than the gruesomeness of the injuries inflicted by the defendant. Read Opinion.
The defendant was convicted of murdering two people, who were Hurricane Katrina refugees from Louisiana. The defendant was also involved in the shooting and killing of a victim at a convenience store before the charged murders, and he was the murderer of a friend at the same apartment complex where the charged offense occurred. It is small wonder that the State had a significant amount of photographic evidence of the defendant’s conduct, and the jury had a right to see all of it.
Ex Parte Broadway
12/16/09 : Cite Nos. AP-76,059 & AP-76,060
Can a defendant voluntarily waive his entire appeal as a part of a plea when sentencing is not agreed upon and where consideration is given by the State for that waiver?
Yes. If the State gives consideration for the waiver and the waiver is voluntarily, knowingly, and intelligently waived, the waiver is valid. Read Opinion.
Here, as expressly admitted by one of the defendant’s attorneys, the consideration given by the State was its agreement to allow the defendant to waive his right to a jury trial without opposition. The trial court proceeded to assess the defendant’s punishment at the minimum-25 years. But the defendant got the benefit of his bargain, so his waiver of his right to appeal was valid.
The concurring opinion discusses the term plea bargain and how it has been expanded
Ex parte Lane
12/16/09 : Cite No. AP-76,141
Was the testimony of a DEA agent about the dangers and societal costs of methamphetamine, including the fact that as many as 45,000 methamphetamine users would be served by the amount of meth that the defendant possessed, objectionable?
Yes. The agent stated scientific conclusions without citing any basis for them except his limited personal experience and training. The agent’s testimony that 45,000 people could get high with 225 grams of methamphetamine was also inaccurate and misleading, and failure to object to the agent’s testimony at trial constituted ineffective assistance of counsel. Read Opinion.
Read this opinion, and you will see a number of instances of failure to object on the part of defense counsel that ultimately led to the defendant receiving a new punishment hearing. It could have been worse. Proof positive that a defendant’s case can be reversed, even though defense counsel does not make the appropriate objections.
Ex parte Watson
12/16/09 : Cite No. PD-0294-08
Under Hall’s cognate pleadings approach, was the traffic offense of failing to yield the right of way-to which the defendant pled guilty-a lesser-included offense of the intoxication assault offense with which the defendant was subsequently charged?
No. In this case, the indictment for intoxication assault does not expressly allege all of the elements of the potential lesser offense of failure to yield the right of way, nor may the missing elements reasonably be deduced from the descriptive charging language used. Read Opinion.
This opinion was issued on the defendant’s motion for rehearing. If you have notes from the original opinion, throw them away because the court has rejected that decision in favor of this new opinion that more closely follows the "cognate pleadings" approach that the court adopted in Hall. The opinion is pretty technical, and the decision makes clear that the determination of what is and is not a lesser-included offense is not always going to be an easy calculation.
State v. Joseph Votta , A/K/A Joseph Vital
12/16/09 : Cite Nos. PD-1366-08, 1367-08, 1368-08, 1369-08
Was the defendant’s motion to dismiss enough to constitute a request to be returned to the State of Texas for final disposition of pending charges under C.C.P. article 51.14, the Interstate Agreement on Detainers Act (IADA)?
No. A motion to dismiss is clearly not a request to waive extradition and stand trial, which is the purpose of the IADA. Read Opinion.
If you have an interstate detainer case, you will need to be very familiar with this decision. But the most important part of this decision has nothing to do with interstate detainers. In this case, the court has expanded its holding in State v. Cullen to state that a trial court can err in refusing to make findings of fact in a non-motion to suppress situation.
Evans v. State
12/16/09 : Cite No. PD-0147-09
Is indecency with a child is a lesser-included offense of aggravated sexual assault of a child when both offenses are predicated on the same act?
Yes, when the particular elements of two cases are established by the same act. Read Opinion.
For those of you who read the court’s recent decision in Hall v. State and hoped that the court might overrule Cunningham v. State, which was criticized in Hall, your hopes have failed you. I thought that Cunningham would be overruled, and its analysis was certainly rejected in this case. But not the result. Indecency with a child is still a lesser-included offense of aggravated sexual assault of a child, even though the lesser offense includes the element of "intent to arouse or gratify the sexual desire." The court holds that this element is essentially implied within the greater offense of aggravated sexual assault of a child.
Lovill v. State
12/16/09 : Cite No. D-0401-09
Is an objection that the State sought to revoke the defendant’s probation only because the defendant is pregnant enough to preserve for appellate review a gender-based selective prosecution complaint?
No. While the defendant used the facts in argument during punishment, she did not assert a particular legal theory and did not use the requisite specificity to bring the constitutional issue to the trial court’s attention. Read Opinion.
While Ex parte Lane is proof positive that the State can still lose a case, even though defense counsel does not object, this decision is proof positive that a defendant can still lose if her defense counsel does not timely object. A timely objection would not have made a difference in this case any way because the defendant’s probation was not revoked; she was only placed on a more intensive substance abuse probation because of her clear substance abuse problem.
Judge Johnson wrote that revocation must be because of the pregnancy for the defendant to have a legitimate claim of selective prosecution. Read Concurrence.
Texas Court of Appeals
Bishop v. State – 4th COA
12/16/09 : Cite No. 04-08-00693-CR
Can a defendant’s statements asserting his Fourth Amendment rights against unreasonable search and seizure be used during trial as evidence of guilt?
Yes. Although Fourth Amendment rights can be analogized to those under the Fifth and Sixth Amendments, cases excluding evidence of a defendant’s assertion of a constitutional right to counsel or to remain silent do not necessarily extend to statements objecting to a search. Read Opinion.
This is a very interesting decision, and I cannot wait to see if Court of Criminal Appeals will want to review it.
State v Almendarez – 13th COA
12/10/09 : Cite No. 13-09-282-CR
Is an order to pay restitution to Animal Control for costs associated with seizing horses for neglect and abuse enough to bar prosecution for animal cruelty based on double jeopardy?
No. The sanctions in this case were not so punitive as to change them from a civil penalty to a criminal punishment. Read Opinion.
This is a very straight-forward and thorough application of double jeopardy law when a defendant has previously been involved in a related civil proceeding. Keep it handy if you have that issue arise in one of your cases.
Alberts v State – 6th COA
12/11/09 : Cite No. No. 06-09-00059-CR
Is indecency with a child by exposure a lesser-included offense of indecency with a child by contact when both offenses are predicated on the same act?
Yes, when the particular elements of two cases are established by the same act. Read Opinion.
If a defendant exposes his genitals or causes a child to do the same, he has committed the offense of indecency with a child by exposure. But if then moves on to cause the child to contact his genitals or himself touches the child’s genitals, he has not committed a separate offense. The indecency with a child by exposure offense has been subsumed by the indecency with a child by contact offense.
State v. Vasquez – 13th COA
12/10/09 : Cite No. 13-08-00602-CR
When there is conflicting testimony about an allegedly friendly interview, can the trial court find that the defendant was subjected to a custodial interrogation?
Yes, if the trial court finds evidence to support that the defendant was deprived of his freedom of action in a significant way. Read Opinion.
There is nothing really to do about a case like this. If the trial judge does not believe your officers, you can really be hurt.
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