United States Court of Appeals – Fifth Circuit
Hoog-Watson v. Murray-Kolb, et al.
12/16/09 : Cite No. 08-50077 : Prosecutorial Immunity
Does a prosecutor have absolute immunity when she participates in the search and seizure of evidence?
No. If the prosecutor participates in a search and seizure or performs investigative functions normally reserved for the police, she may receive only qualified immunity. Read Opinion.
This county attorney must defend herself in district court because there was evidence raised by the plaintiff from which "a reasonable finder of fact could conclude that [she personally] entered and inspected [the plaintiff’s] property, participated in the decision to execute the seizure by rendering legal advice, planned the conduct of the seizure, and participated in the physical act of removing animals." The plaintiff is permitted to bring the county attorney into court because there were enough facts alleged to say that she may have crossed the line from the judicial to the investigative phase of a case, moving outside the protection of absolute immunity. Note: the county attorney still has several defenses, any one of which are likely to be successful (e.g., collateral estoppel; good faith immunity; exigent circumstances and winning on the merits); however, those defenses will require further, expensive litigation to a judge and jury. The beauty of absolute immunity is the avoidance of any litigation. While there really is nothing new in this case regarding the concepts of absolute v. good faith immunity, any prosecutor who wants to avoid any chance of being sued should read this opinion. Final recommendation: get a warrant or consent before entering a home.
Texas Courts of Appeals
Ex Parte Chamberlain – 2nd COA
12/17/09 : Cite No. 2-09-079-CR : Sex Offender Registration
Does Texas’ sex offender registration program violate a defendant’s substantive 14th Amendment due process rights by requiring lifetime registration?
No. The initial compulsory registration requirement is rationally related to and furthers a legitimate State interest, and the program contains a mechanism that allows sex offenders who are purportedly not dangerous and who pose a low risk of re-offending to petition for early termination of the registration requirements. Read opinion.
Seven years after finishing a gift of 4 years of deferred adjudication for rape, the defendant alleges that his original guilty plea was involuntary because he didn’t know about sex offender registration. Seems he also is sick and tired of sex offender registration damaging his alleged substantive due process right to "restore his dignity." The court of appeals should never have addressed these issues, as they involve the collateral consequences of a guilty plea. Indeed, article 26.13(h), CCP, says, "The failure of the court to comply with [the sex offender registration admonition requirement] is not a ground for the defendant to set aside the conviction, sentence or plea." Still, an easy answer would have been that the admonition was contained in written plea papers. For a proper form, see The Perfect Plea.
Gokey v. State – 4th COA
12/23/09 : Cite Nos. 04-08-00214-CR & 04-08-00215-CR : Enhancement Allegations
Does a variance between enhancement allegations and the actual conviction used for enhancement prejudice the defendant?
No. In this case the variance was the location of the felony statutory burglary. The defendant was not prejudiced and the variance was not material. Note that in other cases, however, the variance might provide a lack of notice to the defendant. Read Opinion.
Judge Hilbig provides a good application of the material variance rule. By the way, the variance is understandable in another way. Turns out (according to the always reliable Google), the City of Colonial Heights, Virginia, (the place set out in the burglary judgment) is an autonomous government, entirely independent of any county but is bounded on the north, west and east by Chesterfield County (the place set out in the indictment). So, the notice was pretty darn close to accurate.
Meekins v. State – 7th COA
12/17/09 : Cite No. 07-09-0144-CR : Consent to Search a Vehicle
Did the defendant consent to the search of his vehicle when he answered "Yes" to an officer’s question, "Do you mind if I look?"
No. The defendant would not commit to an answer when asked the first six times. The officer’s last request was answered in a manner that, despite being affirmative, was neither positive nor unequivocal. Read Opinion.
Given the series of unclear answers from the defendant, the majority opinion properly concludes there was insufficient evidence to say that consent was given in a "clear and convincing" manner. The heightened standard of proof adopted by the CCA for consent is the key to this case. Things might have gone differently if the officer had asked the defendant to step out of the car before seeking consent to search.
The dissent focuses on the fact that as a routine matter, an officer may ask an occupant to step out of a vehicle after a traffic stop. Read Dissent.
Hereford v. State – 7th COA
12/30/09 : Cite No. 07-08-0315-CR : Excessive use of Force
Were the defendant’s due process rights violated when officers repeatedly tased him for up to 20 seconds at a time to retrieve drugs from the defendant’s mouth?
Yes. In this case, the excessive use of force (including multiple uses of the taser) in violation of the police department’s policy, while the defendant was in handcuffs and then again while at the hospital was a violation of the defendant’s rights. Read Opinion.
Just how far may police go in recovering evidence from a suspect’s mouth? Apparently, not this far. Interesting that the court, though, is jiggy with a choke-hold, just not electricity. So, could the defendant still be prosecuted for tampering with evidence or resisting a search? Next up is one whomping big civil lawsuit.
Archie v. State – 10th COA
12/16/09 : Cite No. 10-07-00135-CR : Improper Jury Argument
Was the district attorney’s closing argument a comment on the defendant’s failure to testify when the DA used rhetorical questions?
Yes. Asking, "Do you still hear it, Trent? Do you still hear her screaming? How do you know she screamed?" was a comment on the defendant’s failure to testify and should have resulted in a mistrial in this case. Read Opinion.
Nonsense. The opinion indicates that the evidence included a note written by the defendant, stating he heard the victim’s girlfriend scream, presumably when the defendant shot the victim. The prosecutor’s argument is rationally connected to that evidence and does not amount to a comment on his failure to testify. Even if it did, two witnesses testified that the defendant confessed to the murder, making the isolated argument harmless. PDR, anyone? (By the way, pointing at the defendant will almost always draw an objection.)
Amspacher v State – 10th COA
12/30/09 : Cite No. 10-09-00221-CR : Illumination of Aircraft by Intense Light
Is it necessary for an aircraft to be in immediate danger of crashing to be considered "impaired" under Penal Code §42.14?
No. The spotlight was enough to interfere with the pilot’s ability to spot potential aircraft, wires, and towers and to interfere with the pilot’s night vision. Read Opinion.
Wow. Who knew that someone would someday actually get a chance to prosecute this Class C misdemeanor? Unfortunately, yet another court of appeals mangles the factual sufficiency review standard by focusing on the court’s role as a "thirteenth juror" and the need for a "high level of skepticism about the jury’s verdict"? What the heck does that mean? That is really no standard at all. Death to factual sufficiency review.
Texas Attorney General
12/28/09 : Opinion No. GA-0753
Is a peace officer who takes a person into custody under Health & Safety Code chapter 573 required to transport that person to a medical facility for a medical evaluation before taking that person to a mental health facility?
An inpatient mental health facility or a mental health facility is not statutorily authorized to require a peace officer to transport a person in custody under chapter 573 to a medical facility for a medical evaluation prior to taking that person to the mental facility. Read Opinion.
The Legislature is going to have to respond to this opinion. State hospitals don’t want a patient before medical issues have been addressed; peace officers don’t want the liability of forcing medical treatment on mentally ill individuals. A conundrum.
01/07/10 : Opinion No. GA-0754
Can the governor grant a posthumous pardon if the Board of Pardons and Paroles gives him that recommendation?
Yes. The Board of Pardons and Paroles is authorized to recommend that the governor grant a posthumous pardon. Read Opinion.
This opinion will soon lead to Governor Perry issuing the first posthumous pardon to Timothy Cole, who died in prison before he was exonerated. A previous attorney general opinion had held that such a pardon was not constitutionally permitted. Good that the pardon is now permitted.
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