Texas Courts of Appeals
State v. Hoffman – 4th COA
05/13/09 : Cite Nos. 04-08-00614-CR & 04-08-00615-CR : Warrantless Search
Issue
Did investigating officers have probable cause to conduct a warrantless search of the defendant’s motel room while they held her boyfriend on a drug charge?
Holding
No. One of the officers testified that when they visited the motel, they did not have probable cause to search the room and were there in the hopes of gathering more information so they could get a search warrant. While the officers had arrested the defendant’s boyfriend earlier in the day, they had no specific information that the defendant possessed drugs in the motel room. (See TDCAA Case Summaries – April 17, 2009).
Read opinion.
Dissent
Justice Hilbig wrote that the majority did not properly assess all of the facts known to the police at the time of the search.
Read dissent.
Commentary
This is a companion case with the defendant in State v. Triana. Sometimes you gamble and lose. Working with an informant who received information from a third party with unknown credibility, the officers hoped to get more information through a knock and talk. That fell apart when the suspect saw them coming. At that point, the majority concludes, officers only had a hunch or reasonable suspicion that there drugs in the motel room. Seems a shame the officers run behind the suspect to avoid the destruction of evidence, but that’s how it comes out. Justice Hilbig writes an excellent dissent, relying on common sense and detailed facts, that might justify a successful PDR.
Durden v. State – 6th COA
05/15/09 : Cite No. 06-08-00223-CR : Mistake-of-Fact Instruction
Issue
Did the trial court correctly deny a defensive instruction on mistake-of-fact in the defendant’s trial for theft of copper wire when the defendant testified that he believed the wire was abandoned and that he only moved it a short distance from where he discovered it?
Holding
No. The defendant’s testimony could have served as some evidence to the jury that he believed the wire to have been abandoned. While the mistake-of-fact instruction might have been repetitive to the required proof of intentionally or knowingly committing theft, the trial court was still statutorily required to include that properly requested instruction. The court concluded, however, that the error was harmless.
Read opinion.
Dissent
Justice Moseley would find that the charge error caused the defendant to suffer "some harm" under the standard articulated in Arline v. State, 721 S.W.2d 348 (Tex. Crim. App. 1986).
Commentary
A nice opening explanation in this opinion. The author has a rather arch sense of humor. For example, the opinion states that the arresting officer "disbelieved" the defendant’s story on the discovery of a wheelbarrow filled with copper wire and "thwarted" the defendant’s "altruistic intentions" to turn over the wire to help a friend at a church. A nice way of saying the officer thought the defendant was a liar. A mistake-of-fact defense certainly does seem redundant to arguing that the defendant didn’t intent to steal.
Lemons v. State – 12th COA
05/13/09 : Cite Nos. 12-08-00074-CR and 12-08-00075-CR : Scope of Consent
Issue
Should the trial court have refused to admit an incriminating photo found on the defendant’s cell phone because in finding it, the investigating officers exceeded the scope of the defendant’s consent to search?
Holding
No. When the officer asked to examine the defendant’s cell phone, the defendant nonverbally assented by handing the phone to the officer. Nothing indicates the defendant meant to limit his consent – either in the content of the conversation that he had with the officer or in his handing over the phone. Further, the defendant’s lack of protest during the officer’s continued search of the phone indicated that the search was within the scope of the defendant’s initial nonverbal consent.
Read opinion.
Commentary
This is a very significant case on the issue of the scope of a consent to search. Pass it on to your officers. However, officers should be encouraged to obtain an express consent and not rely upon the willingness of a judge to imply such a broad scope for the search. In addition, the better practice would be to obtain a recorded or written consent to search. In the absence of such consent, the officers could have held the cell phone and obtained a search warrant.
Woodard v. State – 14th COA
05/14/09 : Cite No. 14-08-00288-CR : Jury Charge Error
Issue
Was there an error in the jury charge when the indictment charged the defendant only with murder and the court submitted a charge that authorized the jury to convict the defendant not only of murder, but also conspiracy to commit aggravated robbery and/or conspiracy to commit robbery?
Holding
Yes. Conspiracy to commit aggravated robbery and conspiracy to commit robbery are not alternatives to or lesser-included offenses of murder. To prove the unindicted offenses, the State would have needed to demonstrate the existence of an agreement, an overt act, and theft, elements not required to establish the commission of murder.
Read opinion.
Commentary
Frankly, it is a mystery why anyone thought a murder indictment would support a lesser-included charge for conspiracy. Incidentally, prosecutors need to start making it clear in the record who is requesting lesser-included charges. Otherwise, the court of appeals has no basis for applying an estoppel theory. Too many times, jury charge discussions occur off the record, leaving the appellate record blank. But, at least the defendant now can’t make an argument for double jeopardy when the case is refiled for conspiracy.
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