U.S. Court of Appeals – 5th Cir.
Raby v. Livingston
03/15/10 : Cite No. 08-20772
Does Texas’ method of lethal injection violate the right to be free from cruel and unusual punishment under the 8th Amendment?
No, Texas’ protocol is essentially the same as Kentucky’s and falls within the "safe harbor" of Baze. Read Opinion.
This case brings to a very predictable conclusion all the exaggerated arguments against the use of lethal injection as the chosen form of execution in Texas. Each year seems to bring a different creative claim that fails to alter the choice of an overwhelming majority of Texans to support the death penalty as a part of the punishment range for capital murder.
Texas Court of Criminal Appeals
Gutierrez v. State
03/24/10 : Cite No. AP-76,186
Is a trial court’s order denying appointment of counsel in a post-conviction DNA proceeding immediately appealable under TRAP 25.2(a)(2)?
No, an order denying appointed counsel under CCP Article 64.01(c) is not immediately appealable, so the CCA has no jurisdiction to consider this claim at this time. Read Opinion.
The CCA provides a sound, reasoned basis for denying immediate appeal of a denial of appointment of counsel. The same reasoning would apply to a defendant facing jury trial, so it makes sense to apply it to the application for DNA testing. This decision will help avoid an extraordinary waste of time and resources in piecemeal litigation on this issue.
Mayer v. State
03/24/10 : Cite No. PD-0069-09
Is a defendant required to object to a trial court’s order to reimburse court-appointed attorneys fees before raising that issue on appeal?
No. The defendant’s complaint on appeal is a challenge to the sufficiency of the evidence of his ability to pay, and there is no requirement for a trial objection to preserve an appellate claim of insufficient evidence. Hence, the court of appeals did not err in addressing the defendant’s complaint or in modifying the judgment to remove the reimbursement order. Read Opinion.
Judge Keasler would remand the case to the appellate court to address the preservation of error issue, which it failed to do. Read Dissent.
What is the likelihood that a defendant, declared indigent at trial and on appeal and facing a 30-year sentence (not even parole-eligible for 15 years), could reimburse the county for $2,500 in court-appointed legal fees? Judge Keasler and the dissenting judges might be right about the need to have the court of appeals develop the issue of procedural default, but the bad facts of this case likely dampened any interest in such a remand.
Carter v. State
03/24/10 : Cite No. PD-0606-09
Did the trial court err by not suppressing post-Miranda statements when there had been "inadvertent" questioning prior to the warnings?
No. When pre-Miranda questioning is not part of a deliberate attempt to undermine Miranda, subsequent post-Miranda statements may be admissible if they were knowingly and voluntarily made. Read Opinion.
How many times have you watched the opening seconds of a recorded interrogation, only to wince when the officer initially neglects to deliver Miranda warnings? The best practice, of course, is to teach officers to deliver immediate warnings before asking questions, but at least the CCA has provided a good discussion of how a brief, inadvertent delay will not endanger the admissibility of the entire confession.
Texas Courts of Appeals
State v. River Forest Dev. Co.
03/18/10 : Cite No. 01-09-00252-CR
State v. Siller
03/18/10 : Cite No. 01-09-00494-CR
Is the unlawful outdoor burning statute unconstitutionally vague?
No, the Texas Clean Air Act’s outdoor burning regulation, including its exception permitting disposal fires when "no practical alternative to burning exists," is not unconstitutionally vague. Read Opinion for State v. River Forest Dev. Co. and Read Opinion for State . Siller.
The real estate developer involved in this case likely well understood that he should get express permission from TCEQ before burning timber. However, it does seem odd to base prosecution upon the notion that there wasn’t any "practical alternative" to burning. A better approach in writing this law would have been to require express written permission to burn. But, then the TCEQ would likely be deluged with requests for burning leaves in backyards.
Reyes v. State
03/17/10 : Cite No. 04-09-00210-CR
Was a 9-1-1 recording of a child calling about an assault on his mother admitted in violation of the rule against hearsay or the defendant’s right of confrontation?
No, the portion of the recording describing the mother’s condition was admissible under the present sense impression exception to the hearsay rule (and defendant did not properly preserve his objection to the child’s recorded statement about who put her in that condition), and none of the statements in the recording were testimonial because they were responses to questions from a dispatcher who was primarily seeking to determine if there was an emergency in progress. Read Opinion.
Judge Hilbig, former DA in Bexar County, writes a concise, timely opinion on the subject of why a 9-1-1 phone call is not testimonial, thereby avoiding a Crawford Sixth Amendment objection. His opinions always seem to reflect a real understanding of the practicalities of trying a criminal case. This is a great case to read and show to your judge when prosecuting your next family violence assault case.
Texas Attorney General Requests for Opinions
Request from Cameron County Attoreny
May a county attorney use forfeiture funds to pay a private law firm for representation in litigation he has filed against the county?
Request from Texas State Senator
May the Dallas County Commissioners Court may retain independent legal counsel to represent them in civil matters or when the District Attorney has refused to act?
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