May 14, 2010

Texas Courts of Appeals

Ex parte Franklin – 9th COA

05/05/10 : Cite Nos. 09-09-00320/00321-CR


Should the trial court have held an evidentiary hearing on defendant’s Art. 11.072 claim that he was actually innocent of aggravated sexual assault?


Yes; both parties filed conflicting affidavits from the complainant, and the credibility of newly discovered evidence of actual innocence should be tested at a hearing when, as here, the trial judge did not preside at the original proceedings placing defendant on deferred adjudication. Read Opinion.


The complainant’s second recantation disavowing her first recantation is enough to deny a hearing.


This case shows the delicate balance in protecting a child from being manipulated into a recantation. The affidavits clearly show that the child recanted only because of a promise of financial support and that the abuse DID HAPPEN. The majority incorrectly converts Cochran’s concurring opinion into a majority view as to when a live hearing with witnesses is required. Perhaps the CCA will correct this improper extension of the law. Meanwhile, isn’t anyone going to prosecute the defendant for tampering with a witness? If a live hearing takes place, how about putting the defendant on the witness stand and subjecting him to cross-examination?

State v. Williams – 14th COA

05/06/10 : Cite No. 14-09-00353/00354/00355-CR


Did the trial court properly grant a motion to suppress where the male officer-seeking to avoid a pat-down because the suspect was female-instructed the well-endowed passenger to shake out her bra so he could determine if she had a knife?


Yes, the male officer-or a female officer who was later present at the scene-could have conducted a less intrusive pat-down search for officer safety; anything more was excessive, and thus the fruits of that overbroad search are inadmissible. Read Opinion.


The record is not developed enough to permit the appellate court to hold otherwise. Read Concurrence.


How is having the defendant briefly shake out the bottom of a bra more intrusive that having a female officer conduct a pat down of large bosoms? Wonder if this would have come out differently if the whole thing had been videotaped?

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