Court of Criminal Appeals
Ex Parte Martinez
01/12/11 : Cite No. AP-76,413
Was the defendant’s counsel ineffective by failing to object to all gang-related evidence?
No. While gang-related evidence tends to be irrelevant and prejudicial, failure to object was not harmful because there was ample evidence for the jury to find the defendant guilty. The defendant was not prejudiced by counsel’s performance. Read Opinion.
The opinion suggests that the evidence would have been unobjectionable if the expert had been asked to explain how membership in a gang is connected to the violent activities of that gang. Here, there was only evidence of gang membership. Still, the overall strength of the case prevented any real prejudice. Prosecutors would do well, though, to follow the blueprint set out in this case for how to present expert testimony on gang membership.
Lykos v. Fine
01/11/12 : Cite Nos. AP-76,470 & AP-76,471
May a trial judge hold a pretrial hearing on the constitutionality of the death penalty?
No. There is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the "as applied" constitutionality of a state penal or criminal procedural statute. Read Opinion.
Congratulations to Harris County District Attorney Pat Lykos and her appellate prosecutors (with a huge shout out to Alan Curry) for bravely defending the rule of law. A basic principle for our judiciary requires that legal issues only be litigated within the context of the facts of an individual case; the courtroom is no place for broad social claims to be decided on personal grounds. And that includes the death penalty. This victory is just as significant as the recent successful writ of mandamus litigated by Navarro County District Attorney Lowell Thompson against Travis County now-retired Judge Charlie Baird. Thompson defended a conviction from his jurisdiction and prevented the use of a court of inquiry as a forum for debating the death penalty. While the media and pundits will no doubt side with the anti-death penalty advocates, take heart that the rule of law prevailed. That is a far nobler victory.
Lujan v. Texas
01/12/11 : Cite No. PD-0303-10
Was evidence illegally obtained when a checkpoint for checking drivers’ licenses and insurance also had the added presence of a K-9 unit?
No. If the primary purpose of the checkpoint is lawful-a license check as opposed to general law enforcement-police can legally develop reasonable suspicion through other information that arises at the stop. Read Opinion.
Judge Johnson states that while the drug dog undermines the legitimacy of the checkpoint, the drugs would have been discovered without the dogs’ alert. Read Concurrence.
Judge Meyers states that because drug-sniffing dogs have no place at a checkpoint designed for license and insurance verification, the evidence should have been determined to be obtained illegally. Read Dissent.
The key to this case is the deference given to the implied conclusion of the trial judge that the primary purpose of the checkpoint was to check for drivers’ licenses and liability insurance. The court of appeals simply had no authority to change that conclusion by re-interpreting the facts and applying their own view of the evidence. This case does not state any new legal principles, but it should make for interesting caselaw in the current legislative session, where a bill to expand checkpoint authority is pending for consideration.
State v. Posey
01/12/11 : Cite Nos. PD-0034-10 and PD-0035-10
Must a defendant be eligible for regular judge-ordered community supervision under Article 42.12, §3 to be eligible for shock community supervision under Article 42.12, §6?
Yes. The jury verdict included an affirmative finding of the use of a deadly weapon. The trial judge could not grant community supervision without a recommendation from the jury. A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered community supervision. Read Opinion.
Judge Keasler comments that to hold otherwise would raise the added concern of defendants choosing a jury trial simply to remain eligible for shock probation. Read Concurrence.
This is a very good, common sense application of the probation laws (which can get complicated) to conclude that a judge can’t bypass the rules limiting judge-ordered probation simply because original sentencing came from a jury. Gotta love the 3g law.
Texas Courts of Appeals
Farhat v. State
01/06/11 : Cite No. 02-10-00030-CR
Was the blood-draw search-warrant affidavit supported by probable cause of intoxication?
No, despite the affidavit stating that, at 12.50 a.m., the officer saw a car with dealer plates driving at 30 mph in a 40 mph area, weaving from side-to-side, traveling in the left lane for a ½ mile, and signaling right to turn left. Also, when he approached the driver, the officer noticed two pill bottles on the dashboard and the driver refused any FSTs. According to the unanimous court, "the affidavit is totally devoid of any of the officer’s specific personal observations of Farhat, the affidavit contains no facts within its four corners from which the magistrate could have reasonably inferred from Farhat’s demeanor, behavior, or appearance that there was fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat’s blood." Read Opinion.
The description of the basis for believing the defendant was intoxicated on a substance that might be found in the defendant’s blood is, indeed, quite thin. The officer only needed to add something like, "I did smell alcohol on his breath, found his words to be slurred and believed he was intoxicated on some substance that could still be in his blood, available for testing. And, in my experience, habitual drunks, especially those who have hired lots of defense attorneys, tend to refuse to cooperate with anything." Sure is a good thing that police can now make a warrantless seizure of blood upon an arrest for a felony DWI.
Wendell v. State
01/12/11 : Cite No. 03-09-0053-CR (not published)
Did the trial court improperly exclude evidence of a non-testifying co-defendant’s plea-bargained sentence?
No. The State did not "open the door" to the excluded evidence because it restricted its exchange with Wendell to his specific offense and avoided any mention of the driver’s sentence. Moreover, compared to the risk of unfair prejudice, the probative value of the co-defendant’s sentence was minimal. Read Opinion.
Although an unpublished case, the opinion provides a good discussion of why the plea-bargained sentence of a co-defendant is not admissible, assuming the state has not opened the door to its admission. Of course, if the co-defendant was testifying against the defendant, that plea-bargained sentence might become relevant and admissible for impeachment. The defendant displays an interesting perspective on punishments serving as messages for crooks: "Well, I think the people that you are speaking of don’t even read the newspaper."