Texas Court of Criminal Appeals
McFatridge v. State
01/27/10 : Cite No. PD-1494-08
Did the trial court properly find the defendant was not indigent for purposes of obtaining a free record and the assistance of counsel for appeal?
Yes. After taking into account the value of all of the defendant’s assets and subtracting the child support lien, the defendant was still above the standard for indigency. Read Opinion.
The concurrence notes that an indigency determination is either right or wrong and is not in some zone of disagreement. Read Concurrence.
Why did the CCA grant PDR and write this opinion saying the court of appeals and the trial judge did a good job of detailing their decisions? The opinion adds nothing new in the law and duplicates previous decisions on the same subject. Tip for defendant: don’t try to barter for record with court reporter.
Jennings v. State
01/27/10 : Cite No. PD-0261-09
Is the verdict form a part of the jury charge?
Yes. If the verdict form contains mistakes or omissions, those errors are analyzed for harm under the Almanza standards of review. All jury-charge errors, including errors in the verdict form, are cognizable on appeal under Almanza. Read Opinion.
Judge Keller would remand for a determination of whether there is error
and, if necessary, for a harm analysis under Almanza. Read Concurrence.
Judge Cochran takes us for a trip down the legal version of memory lane, reminding the court of appeals that verdict forms have been part of the jury charge for over 100 years. And, in the kind of teacher’s voice only she can use, Judge Cochran concludes that this is really, really simple stuff (so simple that the prosecutor and defense attorney ended up agreeing to everything at oral argument).
Supreme Court of Texas
In re J.H.G.
01/22/10 : Cite No. 09-053101
In a parental termination case, should the court of appeals have addressed the mother’s claim that the trial court improperly extended the statutory deadline for dismissal?
No, a court of appeals may not address an issue that does not appear in a timely filed statement of points. See Tex. Fam. Code §263.405(i). The mother waived the issue. Read Opinion.
Another win by procedural default. Have to wonder why the mother didn’t raise the issue in the brief after complaining so hard at trial.
Texas Courts of Appeals
Dewalt v. State – 3rd COA
01/22/10 : Cite No. 03-06-00454-CR
At the mother’s aggravated kidnapping trial for taking her child to live in Mexico after her husband was made sole managing conservator, did the trial court properly exclude evidence that she had acted to protect her child in attempting to raise a necessity defense?
Yes, the evidence reflected-over a period of years-a calculated and ongoing decision by the mother to ignore and avoid the law. The evidence did not amount to necessity. Read Opinion.
This is a good opinion to keep handy in those cases where the defendant attempts a necessity defense. There is helpful language on the lack of proof of imminent harm. Defendant essentially wanted to litigate the issue of whether the father would have physically or sexually abused the kidnapped child.
Powell v. State – 9th COA
01/20/10 : Cite No. 09-08-00243-CR
Did the trial court abuse its discretion in trying the defendant shirtless, thereby revealing tattoos, and in shackles?
Yes. Although Powell’s disruptive conduct in the holding cell and the courtroom was the cause of both, the trial court should have permitted counsel to provide him a shirt. But the error was harmless-in part because the trial court efficiently instructed the jury to disregard Powell’s toplessness. Read Opinion.
The defendant, who was on trial for cutting a guard’s face and causing 65 stitches, tore his shirt and used it to wipe his butt. He had already been shackled and equipped with a shock belt. He refused to keep a jacket on to cover his tattoos. This judge showed more patience than Job. And they say the death penalty has no real purpose…
Clark v. State – 14th COA
01/26/10 : Cite No. 14-07-01301-CR
In the defendant’s capital murder trial for allegedly killing his pregnant lover, did the trial court abuse its discretion in excluding evidence-purportedly supporting the defensive theory of suicide-about the custody status of the victim’s child and CPS records?
No. A trial court can place reasonable restrictions on the evidence a defendant presents. Although Clark was not able to present his case to the extent and in the form he desired, he was able to present his defensive theory of suicide. Read Opinion.
It’s becoming common for a defendant to claim he was not allowed to present his defense. This time the defense was suicide by a pregnant mom — shooting herself behind her left ear next to her motorcycle.
Langford v. State – 3rd COA – Unpublished
01/27/10 : Cite No. 03-08-00456-CR
Were the defendant’s admissions to gambling and trading sexual favors for money considered a statement against the defendant’s interest?
No. While they would expose the defendant to criminal liability for prostitution as well as possible disgrace in the community, the statements were made in an attempt to shift blame for the greater offense of aggravated sexual assault. Read Opinion.
Good explanation of the difference between admissions of a party opponent and self-serving lies to a police officer when caught committing a crime.