Texas Court of Criminal Appeals
Davis v. State
2/25/09 : Cite No. PD-0613-08 : Accomplice Witness Testimony
After the defendant’s conviction for burglary of a habitation, should the trial court have granted him a new trial based on his claim of ineffective assistance of counsel for his attorney’s failure to request an instruction on accomplice-witness testimony?
No. The question of whether there was a reasonable likelihood that, except for the defense attorney’s failure to request the instruction, the result of the guilt stage would have been different did not turn on whether the non-accomplice evidence was enough to tie the defendant to the crime or even whether such evidence alone would support a guilty verdict. The defendant was seen hanging around the victim’s apartment complex with the accomplice near the time of the crime. He walked around and acted suspiciously near the victim’s apartment for several hours shortly before the crime. Shortly after and not far from the victim’s apartment, he sold a video-game player that matched the description of that taken during the burglary.
This decision will really only be of importance to appellate and writ lawyers, but the court does reach an important holding. When determining if a defendant’s attorney has rendered ineffective assistance of counsel for failing to request a necessary accomplice witness instruction, the test will be whether there was a substantial amount of non-accomplice evidence and whether there is any rational basis for the jurors to have doubted or disregarded that non-accomplice evidence. It is not enough that the non-accomplice evidence was enough to support the defendant’s conviction. It must be strong enough evidence that a rational juror would not doubt it.
Texas Courts of Appeals
Hall v. State – 3rd COA
2/19/09 : Cite Nos. 03-07-00626-CR thru 00627-CR : Brady
In the defendant’s convictions for tampering with physical evidence and hindering apprehension in connection with a murder, did the State impermissibly withhold evidence of a punishment-phase witness’s inability to identify the defendant in a photo line-up and that prosecutors had thereafter prepped the witness before trial by showing him a single photo of the defendant?
Yes. The potential impeachment evidence against the taxi driver who testified to the defendant’s comments and demeanor was material. Had this evidence been disclosed and used effectively, it would have placed the State’s case for punishment in a different light, giving rise to a potentially different outcome.
This is the high-profile case involving the woman who hindered the apprehension of the defendant who killed Jennifer Cave. The court of appeals believed that, if the undisclosed evidence had been presented to the jury at the punishment stage of the trial, the jurors might have recommended probation for the defendant for both her convictions of tampering with evidence and hindering apprehension. I am not certain that probation could have been an ultimate conclusion for this jury, but this case does underscore the importance of evaluating all of your evidence very carefully and determining what should be disclosed to the defense.
Schoor v. State – 7th COA
2/19/09 : Cite No. 07-08-0170-CR : Competency
Should the trial court have conducted an informal inquiry into the defendant’s competency when a doctor testified that while the defendant’s verbal ability limited him to the mentally retarded range, he was not otherwise mentally retarded?
No. The trial court made sufficient inquiry by observing the defendant throughout the punishment hearing and by speaking with him about the punishment range, sexual offender registration requirements, and his right against self-incrimination.
It appears that appellate courts are placing very little requirements upon a trial court’s "informal inquiry" into a defendant’s competence to stand trial. In other words, the inquiry by the trial court can truly be "informal." But be careful. If an "inquiry" becomes too "informal," it becomes no inquiry at all.
Baker v. State – 14th COA
2/24/09 : Cite Nos. 14-08-00119-CR thru 00120-CR : Sentencing
Was the defendant’s sentence void and illegal where the jury sentenced him to three years more than the state jail felony punishment range allows and the written judgment corrected the jury’s miscalculation?
Yes. The charge to the jury on punishment informed them that the offense was a state jail felony, punishable by between 180 days and two years in a state jail facility plus a fine of up to $10,000. The jury then assessed five years and a $10,000 fine but recommended that the defendant be placed on community supervision and the fine probated, which differed from the written judgment listing the sentence as two years in a state jail facility plus a $10,000 fine, with community supervision and probation for five years.
This case answers the question of whether a sentence is imposed, even though it is suspended. The answer appears to be "yes." This case does emphasize the need to make sure what punishment range is available for each of our offenses.
Texas Attorney General Opinion Requests
Request from the Kerr County Attorney’s Office
2/6/09 : Request No. RQ-0783-GA : Video Recording Room
Must the Kerr County Jail continue to maintain a dedicated room containing video recording equipment for the purpose of recording intoxicated drivers under S.B. 1, Acts 1983, Ch. 303 §24, 68th Legislature, Regular Session, and if so may the room be utilized for other purposes?
Members with input on this issue may contact the Attorney General’s office.
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