June 24, 2011

Supreme Court of the United States

Bullcoming v. New Mexico, [5-4]

06/23/11 : Cite No. 09-10876


Does the Confrontation Clause permit prosecutors to introduce a forensic laboratory report—a BAC report—containing a testimonial certification through in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification?

Holding [Ginsburg]:

No, the accused has the right to confront the analyst actually making the certification, unless the analyst is unavailable and, pretrial, the accused had the right to cross-examine the analyst. Here, the defense was surprised by the analyst’s unexplained unavailability at trial and had not had the opportunity to cross-examine him on the testimonial evidence pretrial. Read Opinion.

Concurrence [Sotomayor, Kagan, & Thomas]:

The opinion has a limited reach because (1) the State never claimed that the report was made for purposes of medical treatment, (2) the testifying analyst was not a supervisor with a personal connection to the test, (3) an expert witness was not asked his opinion about reports outside the evidence, and (4) the report did not contain only machine-generated results.

Dissent [Kennedy, Roberts, Breyer, & Alito]:

Requiring the actual analyst to testify is a “hollow formality,” fosters the disruption of criminal procedures, “is symptomatic of a rule not amenable to sensible application,” is not compelled by Crawford, links “the [Confrontation] Clause with hearsay rules in their earliest, most rigid, and least refined formulations,” and creates an undue burden on the prosecution.


The State made this a difficult case to win by springing the non-testing chemist on the defense on the day of trial, merely presenting the non-testing chemist as a mouthpiece for the results of the testing chemist and offering no explanation for the absence of the testing chemist. However, the concurring opinion by Sotomayor is the key to understanding the limit of this decision. In particular, SCOTUS did not decide whether a non-testing expert could offer an independent opinion through a review of the notes and materials of the testing expert. Let’s hope a better record is presented when that issue makes it to SCOTUS.

Court of Criminal Appeals

Sorrells v. State

06/23/11 : Cite No. PD-1802-09


Was the evidence sufficient to support a conviction of aggravated robbery?


Yes. There was testimony that the necklace was missing immediately after the assault and testimony that the necklace was on the ground during the course of the assault; a rational juror could draw a reasonable inference that the assault and the theft occurred simultaneously, and thus the assault was committed during the commission of theft. Read Opinion.


The court of appeals, by ignoring certain evidence, reduced a first-degree felony aggravated robbery to a Class C misdemeanor. Sure seems like the CCA has been writing a lot of opinions correcting how the courts of appeals review sufficiency of the evidence. Note: a co-defendant’s attorney elicited unobjected-to hearsay from an investigating officer that provided part of the evidence used to establish sufficiency. From the defendant’s point of view, that has to hurt.

State v. Blackshere

06/22/11 : Cite No. PD-0039-09


If the trial court explicitly avoids using the phrases “directed verdict” or “acquittal” when it dismisses the jury, can it determine that the State’s evidence is insufficient to convict the defendant and allow the State to retry the defendant?


No. The court’s finding “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Therefore, the trial court’s actions were functionally an acquittal for purposes of double jeopardy. Read Opinion.


The motion to suppress was heard and granted after a jury had been selected and sworn. How is it then, that a district judge, a defense attorney, a prosecutor and three judges on a court of appeals did not know that jeopardy had attached and no further prosecution could take place upon the trial judge dismissing the jury and concluding the prosecution, regardless whether the trial judge was correct in his ruling on the motion to suppress? Let it be known, should there be any further doubt: the State’s right to appeal pretrial motions only exists in any meaningful manner before a trial takes place.

Armstrong v. State

06/22/11 : Cite No. PD-1479-10


If the defendant challenges the clerk’s bill of costs, claiming insufficient evidence to show he has the resources to pay the fees, is it a criminal matter?


Yes. The claim arises over the enforcement of statutes governed by the Texas Code of Criminal Procedure, thereby making it a criminal law matter. Read Opinion.


Over the last few years, there have been numerous challenges on direct appeal of costs assessed against defendants. Those challenges have arisen because the prison wardens, pursuant to statutory authorization, have been taking money out of inmate commissary accounts to pay those bills. Before the discovery of that source of money, no one cared.

Texas Courts of Appeals

Delatorre v. State -1st COA

06/16/11 : Cite No. 01-10-00120-CR


Can a written waiver of a trial by jury signed in connection with a guilty plea be validly applied to the assessment of punishment following the adjudication of guilt?


Yes, so long as it is made knowingly, intelligently, and voluntarily—as it was here. Read Opinion.


This defendant wanted a jury empaneled to decide his punishment after he violated his deferred adjudication and was found guilty by the judge. That process was never contemplated by the creators of article 42.12, CCP, and is obviously contradicted by the earlier waiver of a trial by jury. As set out in TDCAA’s The Perfect Plea, the issue can be even more clearly avoided by including an express waiver of the right to a jury trial for both guilt and punishment as part of any plea agreement.

Miles v. State – 2nd COA

06/16/11 : Cite Nos. 02-09-00368-CR and 02-09-00369-CR


Does the standard of review for the sufficiency of the evidence to support regular convictions also apply to revocation proceedings?


No. Instead, an appellate court determines whether the trial court abused its discretion in finding, by a preponderance of the evidence, that the defendant violated a term or condition of his community supervision. Read Opinion.


With the death of Clewis, this probationer learns that review of his violation of the conditions of community supervision will continue to be through an abuse of discretion standard. And pretty good police work, based on information from a citizen who memorized a license plate, in finding the defendant in his car at home shortly after his commission of a new crime.

Smith v. State – 2nd COA

06/16/11 : Cite No. 02-09-00394-CR


Assuming that confinement under Penal Code §9.03 is a defense distinct from self-defense, does momentarily grabbing and holding another person during a struggle constitute confinement?


No, not under any relevant definition of the term. Therefore, the defendant was not entitled to a jury instruction on the “defense.” Read Opinion.


The legislature might want to take a stab at defining confinement for the purpose of clarifying what facts might raise this rarely used defense.

Texas Attorney General

Request for Opinion from President of Bandera County River Authority and Groundwater District

06/17/11 : Request No. RQ-0977-GA


Whether certain kinds of electronic communication, such as various emails or Google Groups, among members of the board of directors of a river authority constitute a violation of the Open Meetings Act, chapter 551, Government Code  Read Request.

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