Texas Court of Criminal Appeals
Ex Parte Maxwell
No. AP-76,964 3/12/14
Does the Supreme Court’s prohibition against mandatory life without parole for juvenile offenders announced in Miller v. Alabama apply retroactively?
Yes. Because Miller completely removes a punishment from the list of punishments that can be imposed on a particular class, it is a new substantive rule and should be applied retroactively under Teague v. Lane. Read the opinion.
Dissent (Womack, J.):
Miller does not bar all sentences of life imprisonment for juveniles; it bars only those made mandatory by a sentencing scheme and is therefore not a substantive rule. Read the dissent.
Dissent (Keasler, J.):
Because Miller regulates the manner of imposing a life-without-parole sentence on juveniles, it is a procedural rule, and procedural rules are not retroactive. Read the dissent.
State high courts are split; federal circuits are split. If someone takes a good case to the Supreme Court this year, we should have a final answer by June 2015. This may be the only time that the Court of Criminal Appeals describes its analysis as “gazing into the crystal ball.” If any Texas inmates who fall into this class have not yet filed their writs raising Miller, expect them to do so now.
Ex Parte Cockrell
No. WR-78, 986-01 3/12/14
Was a defense attorney’s representation rendered ineffective by the attorney’s failure to request an interpreter for his deaf client during trial?
Yes. A reasonably competent attorney would have realized that the defendant’s condition entitled him to the assistance of an interpreter under Art. 38.31 of the Code of Criminal Procedure, and the attorney’s failure to do so deprived his client of his right to understand the nature of the trail proceedings, to assist in his own defense, and to confront the witnesses against him. Read the opinion.
Dissent (Keller, P.J.):
The only remedy provided by Art. 38.31 for a deaf person is an interpreter, and that would not have helped the defendant in this case because the defendant could not understand sign language. Read the dissent.
The details of this trial ought to scare you. The defendant wore visible hearing aids, communicated with counsel, and answered questions posed to him (with some difficulty). A trial judge could have looked at this and thought all was as well as it could be. Instead, the defendant gets a new trial, even though one can wonder just what would have changed if it were easier for him to hear. So now, in addition to ensuring there’s a judge, defendant, defense lawyer, court reporter, and 12 jurors, all of whom are awake at once, do we have to take steps to ensure that defense counsel is actually able to communicate with his client? Do we need to yell “fire” in the back of the courtroom to see if the defendant can hear and comprehend? What else must prosecutors do to make sure defendants receive their fair day in court?
Easley v. State
No. PD-1509-12 3/12/14
If a judge wrongly prevents a defense attorney from asking proper questions of the jury pool in voir dire, has the judge committed a per se constitutional violation by denying the defendant the right to counsel?
No. The error may be non-constitutional and subject to harm analysis, and all previous opinions holding to the contrary are now overruled. Read the opinion.
Once upon a time, there were several forms of error, all of them bad: fundamental error, error incapable of a harm analysis, and error that was harmful unless shown harmless beyond a reasonable doubt. Appellate courts would presume harm. Cases had to be tried and tried again, and the people despaired of justice. But then some judges took pause and said to themselves, “This is silly; these things would make no difference.” New judges arrived, new rules were made, and new decisions slew the precedents of old, one by one. And now, another misbegotten line of authority is put to the sword. Errors in voir dire are not per se constitutional error. And we all lived happily ever after.
Gonzalez v. State
Nos. PD-0954, 0955, 0956-13 3/12/14
Do the Rules of Appellate Procedure allow a defendant to amend his appeal to include cause numbers he originally omitted when they were all part of the same case?
Yes. The Rules were specifically amended in 2002 to allow these kinds of amendments. A person’s right to appeal a civil or criminal judgment should not depend upon tracking through a trail of technicalities. Read the opinion.
Defendants get an appeal of right. If this one hadn’t received his this way, he would have received it another way.
In Re Bonilla
No. WR-76,736-02 3/12/2014
May a district clerk refuse to tell an inmate how much it would cost to obtain trial and appellate transcripts that the inmate needs to prepare an application for a habeas writ?
No. Texas Government Code §552.028 provides governmental bodies broad authority to refuse to comply with requests for information from inmates, but on these particularized circumstances, that refusal amounts to a denial of the constitutional right to have access to the courts. Read the opinion.
It looks like someone got caught being cute here. Or were they just applying the plain language of the statute?
Perez v. State
No. PD-0498-13 3/12/14
Does a defendant have to preserve the right to appeal court costs stemming from an order of deferred adjudication?
Yes. The right to appeal court costs stemming from a conviction does not have to be preserved at trial, but costs arising from an order for deferred adjudication must be timely appealed. Read the opinion.
If you sit on your rights or waive them, you may lose them. Read the concurrence.
This is the third sexy opinion on court costs this term. And in other news, driven in part by court-cost-litigation, the proposed OCA judgment forms have ballooned from two to 13 pages.
Mathis v. State
No. PD-0536-13 3/12/14
When a judge acknowledged on the record that an indigent defendant would have trouble paying for a SCRAM device but admonished the defendant to “work with probation” to resolve those matters, was that dialogue sufficient to satisfy the requirement that a judge “consider” a defendant’s ability to pay before imposing monetary conditions of probation under Art. 42.12, §11(b) of the Code of Criminal Procedure?
No. The court’s statements were only an acknowledgment of the defendant’s indigency and not a consideration of his ability to pay. Read the opinion.
Dissent (Keller, P.J.):
Every indication on the record supports the idea that the court “considered” the defendant’s ability to pay. Read the dissent.
Dissent (Meyers, J.):
Remanding the case to have the trial judge do what the trial judge has already done is a waste of judicial resources. Read the dissent.
One might look at opinions like this and the Perez opinion summarized above and wonder why all the fuss about dollars that are so seldom paid?
Texas Courts of Appeals
Perez v. State
No. 01-12-01001-CR 3/11/14
Does a third-strike mandatory blood draw violate the Fourth Amendment when performed without a warrant?
No. Consent is an exception to the warrant requirement, and Transportation Code §724.012(b) provides for implied consent to a blood draw when a DWI suspect has two previous convictions. (Note: The court declined to consider the constitutionality of implied consent under McNeely on grounds that the argument was not preserved at trial.) Read the opinion.
I wonder if the court here sufficiently dodged the issue on preservation grounds? It sounds like the defendant may have made the right arguments in the trial court. Did he really have to argue the blood draw statute was unconstitutional under McNeely, or did it suffice for him to say his blood was taken unconstitutionally?
Leone v. State
No. 02-12-00102-CR 3/6/14
Did a typographical error in an indictment fail to vest jurisdiction in a court because it recited a jury term that had been expired over a year?
No. For jurisdictional purposes, an indictment only needs to recite the person and the offense committed accurately enough that a trial court and defendant can identify what offense is alleged and that the provision vests jurisdiction in the trial court. Read the opinion.
Dissent (Dauphinot, J.)
A grand jury that acts beyond its term conveys no jurisdiction on the trial court. Read the dissent.
Arguably, the problem here was not even a defect. Indictments are not required to state the term of the grand jury (Tex. Code Crim. Proc. art. 21.02). Thus, an incorrect grand jury term is not an error, as long as it appears that it was returned by a grand jury of the proper county to a district court of the proper county and meets the other forms dictated by Article 21.02. Many indictment forms contain information that is not required by the Code. There are most likely good, policy-based reasons for that information, but it does not mean that errors in that information are indictment “errors” that could affect the outcome of a case.
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