Court of Criminal Appeals
Blackshear v. State
No. PD-0889-11 12/19/12
Did the trial court properly deny the defendant’s oral and unsworn motion for continuance to obtain a trial transcript after the court granted a mistrial on punishment?
Yes. CCP art. 29.03 requires a written motion for continuance with sufficient cause shown, and there is no due process exception to that requirement. The oral, unsworn motion did not properly preserve the issue for appeal, and the trial court’s judgment should be reinstated.
The defendant wanted to make the issue in this case about his need for a trial transcript, but he moved for a continuance. The law on an oral motion for continuance has become quite clear from the Court of Criminal Appeals: You cannot do it. The court appears to be pretty unwavering on this holding.
Texas Courts of Appeals
Hughes v. State
No. 07-12-0352-CR 12/14/12
Were a defendant’s pleas of “guilty” to violations of conditions of community supervision sufficient to support revocation?
Yes. Even though a plea of “true” is the usual response, a plea of “guilty” is an admission, the proceedings were administrative in nature, and the State was not required—as mandated for guilty pleas under CCP art. 1.15—to tender supporting evidence.
This was a rather novel approach by the defendant—trying to place the burden upon the State in the same way that the State has the burden to introduce evidence (usually a stipulation) to support a defendant’s guilty plea to a criminal conviction. But the law is otherwise well settled that an affirmative plea to allegations in a motion to revoke probation is sufficient to support the trial court’s granting of the motion, whether the defendant pleads “guilty” or “true.”
Gaitan v. State
Nos. 07-12-0049/0050-CR 12/17/12
Was the evidence sufficient to show that the defendant 1) attempted to conceal, destroy, or alter a weapon, or 2) possessed it?
Yes, even in light of recent opinions restricting the meaning of the word “conceal.”
Acquittal is appropriate. “I am bothered by the frequency with which prosecutors of this State have turned to §37.09 of the Texas Penal Code to ‘double-down’ on defendants by seeking a second conviction for “tampering with evidence” when an accused merely acts to dispossess himself or herself of evidence of another crime.” Read dissent
There is very little analysis in the majority or the dissenting opinion, so it is not clear whether this controversy will capture the attention of the Court of Criminal Appeals. I personally was not aware of the “frequency” with which prosecutors were filing “tampering with evidence” charges against defendants who had abandoned property. Nevertheless, as the majority has done in this case, I would let the jury decide.
Wilson v. State
No. 14-09-01040-CR 12/13/12 (not desig. for pub.)
In the wake of Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 (2012), what should an appellate court do about a 17-year-old capital murderer sentenced to life without parole?
A sentence that is not statutorily authorized cannot be reformed, so the case is remanded for a new punishment hearing.
This is a problem that must be remedied by the Legislature or the Governor. This case is remanded for a new punishment hearing because the sentence is not authorized. For juvenile offenders, the proper punishment is now life with parole. The problem is that, for those offenses committed before that change in the law or for those offenses to which the change in the law does not apply, the Legislature has not enacted an authorized punishment if the defendant was 17 years or younger at the time that he committed the capital murder. And the Governor has not commuted those cases to life with parole (yet). So a new punishment hearing is not really going to help in most of these situations. Keep your eyes on the Legislature this session to see what remedy gets proposed. Also be aware that defense lawyers are challenging mandatory punishments for juvenile offenders or others, claiming that the United States Supreme Court would require a range of punishment to be available to the jury, and not just life as the only possible punishment for capital murder. Stay tuned.