United States Supreme Court
Flores-Figueroa v. United States
05/04/09 : Cite No. 08-108 : Identity Theft
Issue
Does the federal identity theft law (18 U.S.C. §1028) require the defendant to actually know that the ID he is using belongs to another person?
Holding
Yes. An illegal immigrant who used false identification was not criminally liable because the government was unable to show that, based on a plain interpretation of the statute, he "knowingly transferred, possessed, or used, without lawful authority, a means of identification of another person."
Read opinion.
Commentary
OK, so long as the defendant randomly makes up a random identity of another, taking care not to intend to target a particular person, no crime is committed? That may well be the grammatical result of this statute (and the majority opinion does have the ring of something our own CCA’s Cathy Cochran might pen), but it is a result that does not give comfort to those people who have their Social Security or credit messed up by the unknowing defendant. Perhaps Congress should amend the wording to place more emphasis on the result rather than the mental state.
Texas Court of Criminal Appeals
Smith v. State
05/06/09 : Cite No. AP-75,479 : Lesser-Included Offense
Issue
In the defendant’s trial for capital murder, was he entitled to a charge on the lesser-included offense of murder?
Holding
No, based on the facts of this case. Almost immediately after shooting his girlfriend, the defendant left her apartment and deliberately sought out her 11-year-old daughter, who was crouched in a defensive position behind a car with no weapon in her hand. With the same gun he used to shoot her mother, he shot the child twice at point-blank range and then stated aloud that he was going after her older sister. The defendant killed the child in a continuous and uninterrupted chain of conduct occurring almost immediately after he shot and killed her mother.
Read opinion.
Concurrence
Judge Keasler joined the majority with one exception. He would hold that the defendant’s penitentiary packets containing disciplinary reports and hearing records were business records that did not constitute testimonial hearsay under Crawford v. Washington, while the majority held that the Crawford error was harmless
Read concurrence.
Commentary
This case was tried after the CCA in Russeau had said that admission of descriptive statements in prison disciplinary records could violate the Confrontation Clause. Take care to edit out those parts of the records before admission. Fortunately, the mistake in this case was made harmless by the horrible facts of the original crime: a brutal assassination of a girlfriend and her child.
Ex parte Watson
05/06/09 : Cite No. PD-0294-08 : Double Jeopardy
Issue
Was the defendant’s prosecution for intoxication assault barred by double jeopardy when failure to yield right-of-way was included as one of the elements and the defendant had already been punished for the offense of failure to yield right-of-way?
Holding
No. The elements of intoxication assault required the State to prove that the defendant had driven a car while intoxicated and by reason of that intoxication caused bodily injury by accident or mistake. The State needed to show only that he caused bodily injury. The manner in which he did so was not an element of the offense.
Read opinion.
Concurrence
Presiding Judge Keller agreed with the majority, but noted that there was no need to decide whether the allegation "failing to yield the right of way while turning left" was an element of intoxication assault. Even if it were, the offense does not include the Transportation Code offense alleged by the defendant because the Transportation Code offense contains at least one extra element that is not included in any of the allegations in the indictment.
Read concurrence.
Concurrence
Judge Cochran noted that reliance on Hall did not resurrect the "same conduct" test for double jeopardy analysis. Blockburger is still the appropriate test.
Read concurrence.
Dissent
Judge Womack would hold that the defendant was entitled to habeas corpus relief from the second prosecution because the State’s pleading of the second offense made the first offense a lesser-included offense of the second and violated the Double Jeopardy Clause.
Read dissent.
Commentary
Why did the CCA ever even grant PDR in this case? The court of appeals got it right. And so a felony case from 2003, already delayed two years until indictment, then sat in pretrial orbit for a few more years so the defendant could argue that the crime of failing to yield the right of way before making a left turn is the same crime as driving drunk and seriously injuring someone. Even better, why in the world did an officer give the defendant a Class C citation in a case that included a felony charge? And how in the world could the author of Hall (applying the cognate-pleadings test for analyzing lesser-included offenses) jump to the conclusion that the same test should be appropriate for double jeopardy analysis? So many questions. So few answers. Some poor prosecutor now has to go back and try a very old drunk driving accident.
Texas Courts of Appeals
Hall v. State – 3rd COA
05/01/09 : Cite Nos. 03-07-00626-CR thru -00627-CR : Brady
Issue
In the defendant’s convictions for tampering with physical evidence and hindering apprehension in connection with a murder, did the State impermissibly withhold evidence of a punishment-phase witness’s inability to identify the defendant in a photo lineup and the preparation prosecutors had done with the witness before trial by showing him a single photo of the defendant?
Holding
Yes. The State suppressed evidence in violation of both a discovery order and Brady. While these actions did not ultimately cause reversible error in the defendant’s convictions, they do require a new trial on punishment. (See TDCAA Case Summaries, February 27, 2009.)
Read opinion.
Commentary
No disagreement with the result for failing to disclose Brady material. However, Ms. Hall should be careful before asking for a new trial on punishment. She got 5 years in prison for helping cut up a dead body and hide the murderer in Mexico. She has served most of that sentence and is out on bond. A new trial is not likely to improve her position and might well result in a return to prison with a new sentence of up to 10 years. According to news reports, however, Ms. Hall hopes through PDR to get a new trial on guilt/innocence, an acquittal on retrial and acceptance into law school. I guess that’s just how she rolls. Stay tuned.
Krupa v. State – 10th COA
04/29/09 : Cite No. 10-08-00166-CR : Extended Juvenile Probation
Issue
Did the district court have authority under Family Code §54.051 to extend the defendant’s juvenile probationary term after he was transferred to the district court, placed on community supervision, and after the expiration of the original probationary period (but within the extended period) revoke the probation and sentence him to seven years in prison?
Holding
Yes. Under the Family Code, a juvenile is subject to the rules of CCP art. 42.12, which applies for the remainder of the probationary period set by the juvenile court. A district court to which the case is transferred may impose conditions provided in art. 42.12 as long they are consistent with those ordered by the juvenile court. The defendant violated numerous conditions of his community supervision, and the district court handled these violations by modifying his community supervision. The defendant agreed to the modifications, including the extension of his probationary period, in lieu of revocation.
Read opinion.
Commentary
This juvenile got the benefit of an extended probation (rather than a quick trip to prison) and didn’t complain until his new violations eventually took him to prison. Fortunately, the Waco court of appeals found it absurd to believe that the district court should have no authority to oversee and modify a probationer’s conditions merely because he started as a juvenile.
Texas Attorney General Opinions
Opinion for the Brazos County Attorney
05/06/09 : Opinion No. GA-0713 : Authority of a Justice Court
Issue
On a plea of guilty or nolo contendere or on a finding of guilt on the charge of failure to attend school under Education Code §25.094, may a justice court defer further proceedings, place the individual on probation, and enter an order requiring the individual to wear an electronic monitoring device under Code of Criminal Procedure art. 45.051(b)(10)?
Opinion
Yes. A justice court may use an electronic monitoring device as a condition of deferment of final disposition or probation for an individual found to have committed an offense §25.094 if the justice court determines that the use of the device in a given proceeding is reasonable.
Read opinion.
Commentary
Oh, so, that’s why so many kids wear those cool anklets at school?
TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected]. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.