Court of Criminal Appeals
Doster v. State
02/03/10 : Cite No. PD-0504-09
Issue:
Is a pretrial habeas corpus proceeding, followed by an interlocutory appeal, appropriate for raising a claim that the prosecution should be dismissed because the State failed to comply with the Interstate Agreement on Detainers (IAD)?
Holding:
No. If the IAD has been violated, a pretrial disposition of the claim would satisfy the underlying purposes of the IAD. If a trial court believes that the IAD has been violated, then it should rule in the defendant’s favor in a motion to dismiss. Read Opinion.
Commentary:
One wonders if the court’s holding was made any easier by the fact that there was little equitable merit to the defendant’s IAD claim. The defendant clearly agreed to a trial setting well outside the time limits set forth in the IAD, and then backed off that agreement two months later. The court does suggest that a defendant could pursue a "indisputable" IAD claim by way of an application for a writ of mandamus. So look for defendants to pursue this avenue and claim that they have an "indisputable" right to relief under the IAD.
Texas Courts of Appeals – Civil
Texas Ethics Commission v. Goodman
01/28/10 : Cite No. 02-09-094-CV
Issue:
Can reliance on an advisory opinion from the Texas Ethics Commission provide a reasonable reliance affirmative defense to prosecution by the Texas Ethics Commission?
Holding:
Yes. Citing Gov’t Code §571.097, the court concluded that reliance is reasonable when: 1) the written opinion relates to the provision of law the person is alleged to have violated, 2) the written opinion relates a fact situation substantially similar to the fact situation in which the person is involved, or 3) both. The court concludes that the purpose of a TEC advisory opinion is not to make specified conduct illegal but to provide those who reasonably rely on the opinion a defense in a civil action. The former legislator demonstrated that he relied on Ethics Advisory Opinion No. 319 in using political contributions to pay rent to his wife for a condo that was her separate property and that his reliance was reasonable. Read Opinion.
Commentary:
Three lessons can be learned from this case. First, the court reaffirms what many of us instinctively know: The Ethics Commission is not a leading player in the creation or application of criminal offenses. Those roles belong to the Legislature, prosecutors, and courts. Instead, an ethics advisory opinion may provide a potential defense. Under §571.097, that defense is applicable not only to civil penalty proceedings by the commission, but also to prosecution of an offense within the commission’s jurisdiction. For those unfamiliar with that jurisdiction, it includes chapters 302, 303, 305, 572 and 2004 of the Government Code, subchapter C of chapter 159 of the Local Government Code (as to county judicial officers who elect to file financial statements with the commission), Title 15 of the Election Code and, for opinion purposes, chapters 36 and 39 of the Penal Code. So, if you’re prosecuting an offense under any of those chapters, you would be well advised to find out if there’s an ethics opinion bearing on the statute at issue or relating to the gist of your facts. Second, it’s a reminder that prosecution isn’t the whole story. The commission has jurisdiction to impose fairly hefty civil penalties for violations of the laws within its jurisdiction (up to $5,000 or triple the amount at issue under the relevant law, whichever is more, per violation). It can also refer a matter for prosecution. Recall here that the laws we’re talking about relate in part to lobbyist registration, financial disclosures by district attorneys and criminal district attorneys, and the byzantine world of campaign finance. Finally, it reminds us that this complex dance often will not have a happy ending. The former representative in this case avoided the commission’s civil penalty, but he is no longer serving in the Legislature.
Editor’s note: Special thanks to Scott Brumley for providing the commentary to this week’s civil case.
Texas Courts of Appeals – Criminal
Lopez v. State – 1st COA
01/28/10 : Cite No. 01-08-00302-CR
Issue:
Was trial counsel ineffective when he failed to object 1) under Code of Criminal Procedure art. 38.072 and 2) to inadmissible opinion testimony?
Holding:
Yes-despite recognizing that the record on direct appeal is rarely adequate to address such claims and that the record is silent as to counsel’s reasons. Counsel failed to invoke the mandatory hearing requirement of art. 38.072 and acquiesced to the admission of "extensive, inadmissible testimony" bolstering the State’s case. Also, counsel allowed inadmissible direct opinion testimony on the truthfulness of the child victim. These omissions could not be considered sound trial strategy and were prejudicial. Read Opinion.
Commentary:
Any one of the alleged errors committed by the defendant’s trial attorney in this case–standing alone–might not have led to a reversal of the defendant’s conviction. But altogether, it was just too much that defense counsel failed to the object to the "outcry" testimony from three "outcry" witnesses about the same criminal conduct, defense counsel’s failed to object to the absence of a hearing required by Article 38.072, and defense counsel’s failed to object to opinion testimony concerning the victim’s credibility. Such a shame, because this victim appeared to have been a very good witness who had been sexually assaulted by the defendant (her stepfather) on numerous occasions from the time that she was four or five years old until she was twelve. It is important to remember that we watch the legal requirements for the admissibility of our evidence, even if defense counsel may not.
McLean v. State – 1st COA
01/28/10 : Cite No. 01-08-00466-CR
Issue:
Did the trial court’s comments during voir dire-relating the number of prior prostitution cases in his court and that the offense was not a victimless crime because of "deadly STDs"-taint the presumption of innocence, abrogate its role as an impartial observer, improperly convey its opinion in a prejudicial manner, and constitute plain or fundamental error?
Holding:
No. Finding the complaints were not timely preserved, the court held the comments did not rise to "such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury"; therefore, it did not reach the "unresolved" issue of whether it could address the question of fundamental error. Read Opinion.
Commentary:
A majority of the Court of Criminal Appeals needs to settle once and for all whether there is such a thing as "fundamental" or "plain" error in Texas with regard to certain errors that may occur during trial. We have the preservation rules for a reason. If a defendant’s attorney does not believe that an alleged error is important enough to raise an objection, then the defendant should not be able to raise that alleged error on appeal.
Morgan v. State – 7th COA
02/01/10 : Cite No. 07-08-0511-CR
Issue:
Did an officer have reasonable suspicion to detain a defendant outside school premises after the officer heard rumors that the defendant planned to engage in a shooting on school property?
Holding:
Yes, because the officer received information through face-to-face encounters with students, some of whom were known to have provided credible and reliable information in the past, there had been prior violence, and the defendant appeared as predicted. The defendant’s presence on the school’s immediate perimeter on the day the violence was planned required immediate action to assure students’ safety. Read Opinion.
Commentary:
This is a wonderful opinion, both for investigative detention law in general, and school detentions in particular. Read this one, and keep it mind. It is well researched and well presented factually.
State v. Cotto – 8th COA
01/29/10 : Cite No. 08-08-00056-CR
Issue:
Does collateral estoppel bar the State from trying Cotto for manslaughter after one of his two co-defendants was acquitted of the same offense?
Holding:
No, acquittal of one co-defendant does not prevent prosecution of another co-defendant for the same offense, using the same evidence. Also, although Cotto was a party to the offense, he was not a party to the prosecution of his acquitted co-defendant. Read Opionion.
Commentary:
As a straightforward application of a collateral estoppel law, this result is not difficult at all. The parties are not the same from one proceeding to the other. That is absolutely essential for collateral estoppel to apply. If the parties are not the same, collateral estoppel cannot be involved.
Redwine v. State – 14th COA
01/28/10 : Cite No. 14-08-00731-CR
Issue:
Was the evidence legally sufficient to support a conviction for evading arrest using a vehicle?
Holding:
No. Despite misgivings about the standard of review as it is applied in Texas, the court concluded there was insufficient evidence that Redwine knew officers were attempting to arrest or detain him because the officers did not use their vehicle’s overhead lights during the pursuit. Read Opinion.
Commentary:
The court suggests that this prosecution could have been saved if the State had pleaded something other than the vehicle as the means by which the defendant evaded detention. By his own admission, the defendant was attempting to avoid the officers, but they never made it clear that they wanted to stop him until the defendant had already gotten out of the vehicle. But then he ran off into the forest while the deputies yelled "Sheriff!" Can the State retry him for "real" evading detention without implicating the defendant’s right against double jeopardy?
In re: State of Texas – 8th COA
01/29/10 : Cite No. 08-09-00181-CR – Unpublished
Issue:
Did the trial court lack jurisdiction to issue 1) a writ of habeas corpus under Code of Criminal Procedure art. 11.09 and 2) an order granting the defendant’s bench warrant-a writ of habeas corpus ad testificandum-where, as a result of his conviction, the defendant faced deportation?
Holding:
A writ of habeas corpus would lie because the defendant was challenging his state conviction, not his federal custody. But, because the state court has no authority to compel the release of an inmate in federal custody, it lacked jurisdiction to issue a bench warrant. Accordingly, the petition for mandamus is conditionally granted. Read Opinion.
Commentary:
So–if you are the defendant–what is the moral to this story? Do not wait until you are in federal custody for possible deportation in order to complain about your state conviction by way of an application for a writ of habeas corpus. Good job by the District Attorney in this case.
Texas Attorney General
Request for Opinion from the Committee on Licensing and Administrative Procedures
RQ-0852-GA
Issue:
Does a particular activity, one similar to an office pool for the Super Bowl, constitute an offense under chapter 47 of the Penal Code, which proscribes certain forms of gambling, or under chapters 2001 and 2002 of the Occupations Code, which regulate bingo? Read Request.