U.S. Court of Appeals – 5th Cir.
United States v. Seale
03/12/10 : Cite No. 07-60732
Was a 43-year pre-indictment delay sufficient to support a due process violation?
No. First, lengthy delay alone is insufficient to support a due process violation. Second, this delay was due to the failure of suspects or witnesses to cooperate until a co-defendant finally came around. The delay was for investigative purposes, which is permitted, not to gain an improper tactical advantage or otherwise in bad faith. Read Opinion.
The 5th Circuit opinion is an amazing bit of legal gymnastics. This 43-year delayed federal prosecution of a horrendous racial hate crime is severely complicated by an interrogation of the defendant that took place a few years before the Miranda decision. There is a remarkable discussion of the retroactivity of the Miranda decision, procedural default, plain error and the harmless error rule. This case is a law nerd’s encyclopedia of issues. Note also that the case was initially reversed by a panel of the appellate court on the issue of the statute of limitations and then abandoned by a 9-9 vote on en banc rehearing and a refusal by the SCOTUS to hear further appeal. It would be safe to say that the incredible civil rights significance of this case probably influenced the exhaustive appellate discussion and close vote for affirmance. Everyone should read the opinions for their historical, social and legal value.
Texas Court of Criminal Appeals
Tolbert v. State
03/17/10 : Cite No. PD-0265-09
Was the trial court required to sua sponte instruct the jury on the lesser-included offense of murder in the defendant’s capital murder prosecution?
No. The defendant, who was charged with murder during the course of a robbery, chose to present a defense that she simply did not commit the crime, and she did not request an instruction on the lesser-included offense of murder. Additionally, the defendant did not object to the all-or-nothing charge or the trial court’s denial of the State’s request for a lesser-included offense. Read Opinion.
Presiding Judge Keller emphasizes that it is the defendant who decides her theory of the case, not the judge. Read Concurrence.
Judge Keasler states the defendant was estopped from presenting this argument by not objecting to the charge. Read Concurrence.
Judge Johnson states that instruction on the lesser-included offense was not a defensive issue but law applicable to the case and should have been given. Read Dissent.
Judge Holcomb states that this decision is contrary to the reasoning in the recent Grey v. State where the CCA found in favor of the State’s right to have a lesser-included offense added to the charge. Read Dissent.
Judge Keller wastes no breath in challenging Judge Johnson’s personal notion that the judge, not the lawyers, should control the strategy of what lesser-included offenses should be considered by the jury during deliberations. This case is a major decision preserving the independent right of lawyers to develop and apply strategy in trying criminal cases. Frankly, defendants, prosecutors and defense attorneys should all be glad that the CCA did not take the rather paternalistic view that trial judges always know best.
Mansfield v. State
03/17/10 : Cite No. PD-1263-08
To prove his probation eligibility, did the defendant need to take the stand to show he had never been placed on felony probation when his father had already testified the defendant had never been convicted of a felony?
No. His father’s testimony that he had never been convicted also covered being placed on felony probation. Read Opinion.
Judge Johnson adds that the question of whether a defendant has ever been placed on felony probation is redundant and should not even be asked. Read Concurrence.
Frankly, this case could just as well have been resolved by dismissing the petition as improvidently granted. The court of appeals got it right, and the CCA opinion only adds that the defendant already got the testimony he wanted from his father about being eligible for probation. Many a parent has established that eligibility without really having personal knowledge of their child’s criminal history.
Texas Courts of Appeals
Schroeder v. State -9th COA
03/10/10 : Cite No. 09-09-00301-CR
Should an indictment have been dismissed under CCP Art. 32.01 because it was not presented on or before the 180th day after the defendant’s commitment?
No, the grand jury returned its indictment before the defendant obtained a ruling on his motion to dismiss; thus, dismissal was not required. Read Opinion.
This is not a new or novel issue of law. Nonetheless, it is a good reminder that this law, while it once upon a time resulted in dismissal with prejudice (anyone also old enough to remember the Speedy Trial Act?), now only results in release of the defendant on bond pending completion of the prosecution.
Lopez v. State – 10th COA
03/10/10 : Cite No. 10-08-00400-CR
Two days after the court of appeals had reversed, was supplementation of the record with the amended indictment permissible, such that the court could grant a motion for rehearing and affirm?
Yes, this was an "unusual circumstance" permitting supplementation. The defendant had originally requested the amending documents be part of the record but had been advised there were none besides the motion to amend, and the parties had briefed the issue as if there were no amended indictment. Read Opinion.
Chief Justice Gray notes that this rehearing was necessary only because the court originally identified, briefed, and decided the issue without requesting supplemental briefing from the parties.
Another Chief Justice Gray dissent becomes a majority opinion. You may recall that Gray criticized the reversing majority in the original opinion for rushing to decide an issue raised by the court of appeals without waiting for briefing and argument. It really is amazing how frequently Gray’s dissents carry the day.
Kfouri v. State – 14th COA
03/09/10 : Cite No. 14-08-00984-CR
Is the causing-a-death-during-drag-racing provision of the Texas Transportation Code void for vagueness?
No. In the context of the defendant’s indictment, the law did not apply to mere spectators, it applied to his motor vehicle, it applied to the highway on which he was racing, and the enforcement of the statute is not relegated to the subjective interpretation of officers at the scene. Read Opinion.
It really isn’t easy to define racing. But, apparently, the Legislature did a good enough job for due process.
Hernandez v. State – 14th COA
03/16/10 : Cite No. 14-08-00787-CR
Did the trial court improperly submit a jury instruction limiting self-defense when seeking an explanation about differences while unlawfully carrying a weapon, as provided by PC §9.31(b)(5)?
No, there was evidence that the defendant had differences with the victim about the possession of weapons and jewelry, and it could be inferred he was carrying a gun because he admitted shooting the victim. Read Opinion.
If you have a case that raises self-defense and the issue of taking a gun with you when seeking to settle "differences", this is a good opinion to read. The court of appeals acknowledges that the undefined term "differences" can have wide-ranging meanings. Nonetheless, the defensive language gets negated if the possession of the handgun is illegal.
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