Court of Criminal Appeals
No. PD-0344-12 1/30/13
Did the defendant preserve for review his challenge of the trial court’s second sentencing pronouncement after bringing back a discharged jury for additional sentencing deliberations?
Yes. The motion for mistrial was timely because it was made as soon as the judge sent the jury out for the second deliberation and was sufficiently specific to alert the trial court and prosecution to his complaint. The appropriate remedy is to reinstate the trial court’s initial sentence of six years’ confinement, probated, because the motion for mistrial could not reasonably be interpreted as a request for a new punishment hearing when the original sentence was valid and the punishment hearing had concluded when the jury was initially discharged.
Concurrence (Keller, P.J.):
The court makes an unwarranted assumption that the defendant’s motion for mistrial clearly conveyed an implied objection to bringing the jury back for deliberations and misinterprets the meaning of the term “mistrial.”
Concurrence (Hervey, J.):
Although it is unclear whether the confusion occurred before or after the jury was recalled by the trial court, the record clearly indicates the jury had difficulties with the verdict form. Under CCP art. 37.04, the trial judge would not have erred in sending the jury back to re-deliberate if the defendant had not objected.
The court clearly wanted to get to the merits of what occurred. That appears to be a significant basis for the preservation ruling, which—in the long run—will be of interest to appellate lawyers only. The significance of this ruling lies in the remedy advocated by the defendant on appeal and adopted by the Court of Criminal Appeals. If you believe that your jury has made a mistake in its verdict, the record will have to be made very clear as to the basis for your concerns with the court reporter taking everything down. The absence of a real explanation for why the jury was sent back to deliberate again doomed this appeal for the State.
Texas Supreme Court
No. 11-0642 1/25/13
Did the intermediate court properly uphold the trial court’s ruling granting summary judgment to an owner trying to recover his forfeited vehicle and money following a traffic stop?
No. The intermediate court wrongly held that the State did not produce evidence of probable cause to seize the property. The owner’s affidavit—his only summary judgment evidence—failed to address “whether the officers had a reasonable belief that the property had or would have a substantial connection with illegal activity as pleaded by the State.”
This is a good, albeit brief, explanation of summary judgment law that often needs to be applied in asset forfeiture cases. This defendant’s affidavit was simply insufficient to allow the granting of a summary judgment. The defendant may raise an innocent-owner defense in a subsequent trial or further buttress his affidavit, but this is a good victory for the State. The facts may need to be more fully developed, but it is still the case that the defendant appeared to be in possession of a large amount of cash to which a trained narcotics detection dog made a positive alert.
Texas Courts of Appeal
Nos. 14-11-00927-CR & 14-11-00928 1/24/13
Did the trial court properly release a stressed-out and vomiting juror during deliberations and require continuation with an alternate juror?
Yes. The trial court’s finding, after investigation, that the juror was physically ill so as to prevent her continuing satisfied CCP art. 36.29(c). There was no evidence that the trial court was motivated to dismiss the juror based on her refusal to deliberate or her evaluation of the sufficiency of the evidence. Also, the defendant was not denied his state constitutional right to jury unanimity because the alternate juror was properly employed under CCP art. 33.011(b). Finally, the trial court did not wrongly deny a motion to unseal the juror’s personal information to permit a defense investigation because no outside influence was shown.
This decision provides a good counterpoint to the recent decisions by the Court of Criminal Appeals in Scales v. State and McQuarrie v. State, both mentioned in the opinion. The trial judge made the determination that the dismissed juror could not physically continue. It may be that some of her illness was motivated by her difficulty in deliberating, but because the trial judge dismissed the juror because of her physical inability to continue, he did not err. And there was no evidence that the dismissed juror or any other juror had succumbed to any “outside influence” during their deliberations for the purposes of Rule 606(b) of the Rules of Evidence. Therefore, the defense did not show “good cause” for unsealing the juror information sheets. You might expect this decision to be reviewed by the Court of Criminal Appeals, but it should hold up. And it should be of great assistance to prosecutors.
Texas Attorney General
Whether a county office that has possession of protected health information is considered a “covered entity” under Texas Health and Safety Code §181.001(b)(2) if the office is not regularly engaged in the business of assembling, collecting, analyzing, using, evaluating, storing, transmitting, obtaining, or disclosing for marketing or financial gain the protected health information.
The statute states that a “covered entity” includes a “governmental unit,” and §181.006 specifically applies to “governmental units.” We shall see how the Attorney General construes these statutes, but they all relate to HIPAA.