Texas Court of Criminal Appeals
Ex parte Imoudu
06/03/09 : Cite No. AP-75,964 : Ineffective Assistance of Counsel
Issue
Did a defense attorney provide ineffective assistance of counsel to a defendant charged with murder by not alerting the defendant to the possibility of pursuing an insanity defense after he exhibited strange behaviors and signs of mental illness?
Holding
Yes. The defendant’s father and a jail social worker told the defense attorney that the defendant was "not himself" and was acting bizarrely during their meetings with him. An exam was conducted to determine if the defendant was competent to stand trial, but the defense never investigated whether he was insane at the time of the offense. Defense counsel did not review jail medical records or speak to any jail personnel who had contact with the defendant after his arrest, nor did counsel request an insanity evaluation or hire a psychiatrist to evaluate the defendant’s mental condition at the time of the offense.
Read opinion.
Dissent
Presiding Judge Keller would defer to the trial court’s finding that counsel was not ineffective. She wrote that the court normally defers to these findings, and that the finding in this case was supported by the record. The fact that the defendant was exhibiting some mental problems was not necessarily any indication that he was legally insane at the time of the offense.
Read dissent.
Commentary
Presiding Judge Keller appears to have gotten this one correctly. There is no indication that, even if the defendant was able to show that his counsel performed deficiently in failing to investigate an insanity defense, the result of the proceeding would have been different. The defendant was required to also show that there was a reasonable probability that, but for his counsel’s alleged error, an insanity defense might have succeeded. The defendant’s expert witness had not even done a personal examination of the defendant, and the defendant’s testimony at the competency hearing revealed that he knew that his conduct was illegal and that he was not suffering from any mental delusion when he stole a vehicle in this case. But given the majority’s ruling in this case, now the defendant will be able to pursue an insanity defense, instead of a plea bargain agreement, in which he received 17 years for killing someone. After stealing the vehicle, the defendant drove the wrong way down a roadway, struck another vehicle, and killed the driver. Good luck Mr. Imoudu. You will need it.
Ocon v. State
06/03/09 : Cite No. PD-0297-08 : Possible Juror Misconduct
Issue
Was the defendant entitled to a mistrial when in the restroom during a recess in the trial, defense counsel and a juror overheard another juror speaking on his cell phone about his jury service?
Holding
No. While on the call, the juror expressed frustration with being required to perform one of his civic duties and said that he did not like the subject matter of the case. No evidence was presented to suggest that the juror received any outside information about the case because of the conversation.
Read opinion.
Concurrence
Presiding Judge Keller wrote that while defense counsel overheard the juror talking on a cell phone to an outsider, with nothing in the record regarding the other side of the conversation or any suggestion that the outsider said anything about the case, the defendant did not establish a violation of CCP art. 36.22.
Read concurrence.
Concurrence
Judge Johnson agrees with the judgment of the Court and does not believe that the piece of conversation overheard by the defense attorney was content "about the case on trial."
Read concurrence.
Commentary
This decision is a good indication that the court will be willing to entertain an argument that the State can rebut the presumption of harm that previous case law has imposed when a juror talks with someone else about the case that is on trial. Keep this decision close if you have that issue come up in one of your cases.
Salazar v. State
06/03/09 : Cite No. PD-0956-08 : Burglary of a Habitation
Issue
In the defendant’s trial for burglary of a habitation did the fact that the structure was a habitation provide notice that entry was forbidden?
Holding
Yes. A habitation carries a greater right of privacy and most habitations are not open to the public. Common sense and courtesy teach that it is essential to seek permission to enter a habitation, rather than to enter it without permission. If a habitation did not inherently give notice that entry is forbidden without permission, there would be no need to include a doorbell, knocker, or even a lock on a home.
Read opinion.
Concurrence
Presiding Judge Keller agrees that a habitation inherently provides notice that entry is forbidden but refers to Penal Code §30.05 (b)(2)(B) for a definition of "notice" to include an "enclosure obviously designed to exclude intruders." Because habitations are enclosures and are obviously designed to exclude intruders, she would resolve the case by reference to the statutory definition of "notice."
Read concurrence.
Commentary
This case means that the offense of criminal trespass is a lesser-included offense of the offense of burglary of a habitation, even though the State does not have to allege that the defendant knew that entry was forbidden in the burglary indictment. But have no fear. The defendant will not be able to prevail under the second part of the test to determine whether a trial judge should give a charge on a lesser included offense. It is clear that the defendant entered the habitation because several pieces of property had been removed from the residence and the defendant was seen running from the residence when the police arrived.
Texas Courts of Appeals
Ahmad v. State – 2nd COA
05/28/09 : Cite No. 2-08-008-CR : Statute of Limitations
Issue
In the defendant’s trial for possession of a hoax bomb, did the first grand jury indictment alleging that the defendant buried a training bomb toll limitations with regard to a second indictment alleging that she made a false report about a bomb and possessed a hoax bomb?
Holding
Yes. Both indictments stem from the defendant’s possession of, and report about some kind of bomb-hoax, training or unspecified. If prior and subsequent indictments charge different offenses but those offenses arise from the same conduct, the prior indictment tolls the statute of limitations.
Read opinion.
Commentary
This is a wonderful, very well researched, and well reasoned opinion. It reaffirms the now well-settled holding that, if a prior indictment and a subsequent indictment charge different offenses, but the offenses arise from the same conduct, the prior indictment will still toll the statute of limitations. Plus, if you have a "hoax bomb" case, this decision is for you because it very carefully explains what the State needs to prove in such cases.
Eduardo Valtierra v. State and Heriberto Valtierra v. State – 4th COA
05/27/09 : Cite Nos. 04-08-00236-CR thru 00239-CR : Exigent Circumstances
Issue
Did the trial court correctly deny two separate motions to suppress brought by two brothers charged with drug offenses arising out of the same search of their shared residence?
Holding
No. In both cases the State did not meet its burden to show that exigent circumstances justified the officers’ proceeding down the hallway in the defendants’ home and conducting a protective sweep of the premises while searching for a runaway minor who was allegedly in the house. There was no evidence that the officers believed they were in danger, only that they were concerned about the runaway who was supposedly inside.
Read Eduardo Valtierra opinion. Read Heriberto Valtierra opinion.
Commentary
These cases appear to have been wrongly decided. The trial judge made a finding that the officers were permitted to go down the hallway by way of either a protective sweep or by way of exigent circumstances to protect the child. There was testimony that one of the defendants gave the officers consent to go down the hallway, but the court of appeals refused to address the possibility that consent could have justified the officers’ actions in going down the hallway. However, the State was not the appealing party, and a trial court’s ruling can be upheld on appeal, even if the trial court gave a wrong or an insufficient reason. Hopefully, we will see these decisions reviewed by the Court of Criminal Appeals on petition for discretionary review.
Houston v. State – 9th COA
05/27/09 : Cite No. 09-08-00254-CR and 00255-CR : Consent to Search
Issue
Did the trial court correctly deny the defendant’s motion to suppress where the defendant claimed the driver’s consent to search was invalid because the defendant had a greater right to privacy in the vehicle than the driver’s right to possession?
Holding
Yes. The vehicle was registered to the defendant’s father, yet the defendant had been driving it for about four years. The defendant admitted that the driver had his permission to operate the vehicle and to exercise control and management over it.
Read opinion.
Commentary
When the driver of the vehicle consented to the search, it was incumbent upon the defendant to object to the search. But the defendant did not object. The officers also were not required to ask the defendant if he would consent. This case is a good application of the Supreme Court’s decision in Georgia v. Randolph to a vehicle.
Texas Attorney General Opinions
Opinion for the Cameron County District and County Attorney
06/01/09 : Opinion No. GA-0716 : Additional Practice of Assistant Prosecutor
Issue
May an assistant county or an assistant district attorney lawfully and ethically practice as a criminal defense attorney in federal court and in the state courts of a neighboring county?
Holding
Code of Criminal Procedure art. 2.08 does not prohibit an assistant county or assistant district attorney from practicing as a criminal defense attorney in federal court or in the state courts of a neighboring county, although, under certain circumstances, Government Code §46.005 does bar such practice by an assistant county attorney. However, Texas Disciplinary Rules of Professional Conduct 1.06 and 1.10 caution against any such representation of a private client, although such inquiries must ultimately be addressed to the Committee on Professional Ethics.
Read opinion.
Opinion for the Kendall County Attorney
06/01/09 : Opinion No. GA-0718 : Amendment of a Death Certificate
Issue
Can a justice of the peace be required to amend a death certificate concerning the cause of death and does a county court-at-law have subject matter and personal jurisdiction to issue a subsequent amendment order to the Texas Department of State Health Services (TDSHS)?
Holding
A justice of the peace’s decisions in carrying out discretionary duties under chapter 49 of the Code of Criminal Procedure are subject to an abuse of discretion standard and, in the proper case, a writ of mandamus may issue to correct a clear abuse of discretion. Whether a county court-at-law has jurisdiction to issue an order to the TDSHS, Vital Statistics Unit, cannot be determined without reference to the pleadings and proceedings in the particular case. It is unlikely that a court order that not directed to a justice of the peace could be enforced against the justice of the peace.
Read opinion.
TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected]. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.