March 11, 2011

United States Supreme Court

Skinner v. Switzer

03/07/11 : Cite No. 09-9000


Can a post-conviction claim for DNA testing be pursued in a 28 U.S.C. §1983 civil rights action?

Holding (Ginsburg):

Yes, despite the remedy available under Texas Code of Criminal Procedure Ch. 64. But if the inmate successfully uses the §1983 avenue, the inmate will still need to seek habeas relief to attack the trial court’s judgment. Read Opinion.

Dissent (Thomas, Kennedy, & Alito):

Due process challenges to state collateral review procedures brought under §1983 should be denied. The principles of federalism and comity are at stake—especially where, as here, an inmate has not exhausted his state remedies by presenting his claim to the state courts first.


Skinner is very unlikely to get any ultimate postconviction relief because he voluntarily declined DNA before trial. That state law barrier to new DNA testing is unlikely to be found fundamentally unfair. But every defendant after him can still file a federal claim and thereby delay execution. Note: there is a pending bill that would remove this barrier to new DNA testing. That would likewise lead to a flood of frivolous testing.

Court of Criminal Appeals

State v. Taylor

03/09/11 : Cite Nos. PD-0266-09, PD-0267-09, PD-0268-09


Should the jury charge have limited consideration of evidence to acts committed after the defendant’s 17th birthday?


Yes; however, the harm to the defendant was not egregious in this case. Here, the defendant did not object to the jury charge, which had improper language allowing conviction for offenses that had been “committed at any time within the period of limitations.” Because the defendant argued there had been no abuse at any time, it is unlikely the jury believed the only offense occurred before the defendant turned 17.  The jury chose to believe the victim, not the defendant, so there was no egregious harm. Read Opinion.


A tight application of the harmless error rule. But be sure to include a limiting instruction when you have a youthful offender with offenses that straddle his 17th birthday.

State v. Rice

03/09/11 : Cite Nos. PD-528-10, PD-529-10


Should the trial court have instructed the jury on a lesser-included offense of reckless driving when the defendant was charged with aggravated assault with a deadly weapon, to-wit: a motor vehicle, but the indictment did not allege that defendant drove a motor vehicle?


No. The charge in this indictment required the State to prove the defendant “used and exhibited a deadly weapon, to-wit: a motor vehicle.”  Reckless driving contains the element requiring the defendant actually drive the vehicle. Because the defendant could “use” the vehicle without driving it, not every element in the lesser-included offense of reckless driving was present. Read Opinion.


This is a very narrow and literal application of the cognate-pleading rule. The lesson is to allege your offense with general terms that avoid dragging in minor lesser offenses.

State v. Rhinehart

03/09/11 : Cite No. PD-0002-10


Was the State required to raise its argument that the defendant “had no statutory right to appeal the sufficiency of the evidence in the juvenile court’s transfer proceedings prior to being finally convicted in the criminal district court,” or was it proper to raise it for the first time on appeal?


The State was required to raise it at the trial court. As the losing party, the State cannot raise for the first time on appeal a claim that there was no valid basis for the criminal district court to quash the indictment. The State chose to litigate only the due-diligence issue in the criminal district court thus, in effect, conceding that this might be a valid basis for quashing the indictment. Read Opinion.


Presiding Judge Keller agrees with the trial court that the there was no reason to quash the indictment and would affirm the court of appeals judgment. The State is not required to preserve any claim as it is the defendant’s burden to show a valid basis to quash the indictment. Read Dissent.


Judge Price states that the original issue raised, the validity of the juvenile court’s transfer order, is the only issue that should be addressed. Read Dissent.


This case is a mess of reasoning with little helpful law. The State should have cried foul at the trial court level. The Defendant should learn how to title a motion. No harm to anyone, though, as the State can simply re-indict and start over.

Howard v. State

03/09/11 : Cite No. PD-0521-10


Does the offense of aggravated robbery require interaction between the accused and the purported victim?


No. The defendant concealed his face, entered late at night, and was carrying a rifle. The jury could have inferred that the defendant was reasonably certain that his actions would place someone in fear of imminent bodily harm. The fact that the defendant could not see the victim hiding in back does not negate the culpable mental state when he committed the theft. Read Opinion.


A fascinating law school question: if a defendant commits a robbery in the woods and doesn’t see anyone, does a crime occur? Yes, indeed.

Court of Appeals

Martinez v. State – 11th COA

03/03/11 : Cite No. 11-09-00274-CR           


Did a juvenile knowingly, intelligently, and voluntarily waive his right to counsel, and should his statement have been suppressed for a violation of Texas Family Code §52.02?


No, statutory violations occurred. The juvenile had been neither arrested nor charged when he accompanied officers and gave his statement. The warnings administered by the magistrate were not the equivalent of magistration; therefore, Rothgery v. Gillespie County, 554 U.S. 191 (2008) (establishing attachment of right to counsel in Texas) did not apply. The juvenile validly waived his right to counsel. Also, he was immediately taken to a juvenile processing office and the police left a message on his father’s phone. Read Opinion.


Why was the juvenile taken before a magistrate if he wasn’t even under arrest? By doing so, the officers risked importing tons of strict juvenile laws for collecting a statement during custodial interrogation. Still, the opinion does a careful job of evaluating those laws. This case is likely to generate a PDR. It was something of a miracle that a confession was obtained and admitted given the extraordinary measures required by police and in the jury charge for juvenile cases. The facts of the murder are stunning.

Battle v. State – 14th COA

03/08/11 : Cite No. 14-10-00347-CR


Does a life sentence without the possibility of parole for a capital murder conviction based on co-conspirator liability violate the Eighth Amendment following Graham v. Florida, 130 S.Ct. 2011 (2010)?


No. If the issue had been properly preserved, the sentence reflects “a societal decision that, when a person engages in a conspiracy to commit a felony and a murder is committed by one of the co-conspirators, he should, where the State does not seek the death penalty, be subjected to the serious penalty of incarceration for life.” Read Opinion.


Not a surprising result.

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