June 04, 2010

Supreme Court of the United States

Berghuis v. Thompkins

06/01/10 : Cite No. 08-1470 06/01/10          5-4


Must a defendant’s invocation of his right to silence be unambiguous?


Yes, the invocation of the right to silence must now be invoked in the same manner as the invocation of the right to counsel. After Thompkins had been administered the Miranda warnings and demonstrated he understood them, his brief and infrequent answers during a three-hour interview did not constitute an unambiguous assertion of the right to silence but rather an implied waiver of his right to silence. Thompkins should have remained mute or affirmatively invoked his right to silence to secure its protection. Read Opinion.


The majority has engaged in a "substantial retreat" from the safeguards afforded by Miranda. It also downplays Thompkins’ silence through most of the questioning. The case is really about an invalid waiver of the right to silence rather than the invocation of the right to silence. Thompkins’ refusal to sign the waiver indicates his desire not to waive his rights.


The first part of the Court’s decision stands for the rather unremarkable proposition that, if a defendant wants to invoke his right to remain silent, he must . . . invoke his right to remain silent. When one is merely silent, he is not invoking anything. He is just silent. The real issue in this case is whether the defendant waived his Miranda rights. But the Court held–as the Court of Criminal Appeals has always held–that a defendant’s waiver of his Miranda rights can be implied. It does not have to be explicit.



Texas Courts of Appeals

Hutton v. State – 7th COA

05/25/10 : Cite No. 07-09-0019-CR


Was the evidence legally and factually sufficient to support stalking convictions?


Yes, as a matter of statutory interpretation, even where the stalker encountered the victims on multiple occasions over a short period of time and in a limited area instead of encountering them on multiple days in diverse areas. Read Opinion.


This is a very interesting argument, and one I believe that the Court of Criminal Appeals is going to want to review. But I like it. The Legislature may not have intended the construction of "more than one occasion" made by the court of appeals, but the Legislature almost certainly passed this statute for people just like this defendant. You may want to hold your breath on this one, but if it holds up, the stalking statute can be an even more effective tool for law enforcement.

Chaney v. State – 7th COA

05/27/10 : Cite No. 07-08-0476-CR


Did the abstract portion of the jury charge on murder incorrectly list the full statutory definitions of intentional and knowing?


Yes. Murder is a result-oriented offense, which requires that the accused intend the result, i.e., death, or that he was aware that his conduct was reasonably certain to cause that result. Therefore, inclusion of the full statutory definition in the abstract instructions was improper. Despite the application instruction properly restricting the culpable mental state, the error was harmful. Read Opinion.


Yet another case that proves that jury charges are not for jurors. They are for appellate courts. Jurors get hung up for all kinds of reasons, but probably not very often because of the definition of the culpable mental state that they have been provided. But I suppose that this case is a good reminder that you need to make sure that the definitions of your culpable mental states in your jury charge are appropriate for the particular offense that is being prosecuted.

Lancaster v. State – 10th COA

05/26/10 : Cite No. 10-08-00025/27/28/29/30-CR

Issue 1:

During jury selection for charges of possession of child pornography, was the following question proper: "If, in a hypothetical case-we’re not talking about this case-but there’s evidence of sexual molestation of young children, could you be fair and impartial in deciding guilt or innocence of a defendant?"

Issue 2:

Were Lancaster’s sentences improperly cumulated?

Holding 1:

Yes, not under Standefer, and it was improperly prohibited, but the error was harmless in light of Lancaster’s prior admission of guilt in another case and the overwhelming evidence against him in these cases. Read Opinion.

Holding 2:

One sentence was improperly stacked because elements of the offense occurred before the effective date of the change in the law (in 2005) permitting stacking. Read Opinion.


So if a defense lawyer prefaces his question with the word "hypothetical" or "I am not talking about this case," he automatically frees himself from a trial court finding that he just might be trying to "commit" the jurors with regard to the particular case on trial ("wink, wink")? The bottom line is that it is always a little dangerous in objecting to a defense lawyer’s question during voir dire, especially in highly emotionally charged cases (such as this one), and also because any error will probably be considered constitutional in nature. Thankfully, this particular defendant’s crimes were so horrendous that he could not have possibly been harmed by the defense lawyer’s inability to ask this one particular question.


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