November 13, 2009

Courts of Criminal Appeals

State v Johnston
– 2nd COA

: Cite No. 2-08-246-CR : DWI Blood Draws

Issue 1:

a blood draw taken by a peace officer pursuant to a DWI search warrant violate
the Fourth Amendment?

Holding 1:

Yes. Although the appellate court agreed with the State that
the Transportation Code does not control blood draws obtained pursuant to a
search warrant, the circumstances in this case–particularly the lack of a
medical interview, the choice not to record the blood draw on videotape, and
the use of restraints with no use of force guidelines for this situation–led
the court to conclude that the search was not executed in a reasonable manner
and therefore violated the Fourth Amendment.
Read Opinion.

Issue 2:

Does the good faith exception apply to a blood draw taken in
good faith reliance on a warrant but performed in an unreasonable manner?

Holding 2:

State did not correctly preserve this argument, but the court suggested that it
is doubtful that this exception applies to evidence obtained through an
unreasonable procedure. Read


This case is ripe for PDR. Relying on some very loose SCOTUS dicta in Schmerber
by Justice Brennan from over 40 years ago, the court of appeals invents some
very questionable standards for measuring whether the draw of blood using a
search warrant was reasonable. This case was obviously influenced by the trial
judge’s dislike of the use of a peace officer (cross-trained in phlebotomy) to
draw blood. For offices that use non-officers to collect blood, this case
should not present a problem. Meanwhile, be diligent in making sure that your
phlebotomist is properly trained. And next time: (1) argue good faith before
the trial court and (2) compare the harmlessness argument used in no knock

Grey v State – 3rd COA

11/04/09 :
Cite No. No. 03-08-00355-CR : Melendez-Diaz


the defendant’s Sixth Amendment right to confrontation violated when the State
introduced a “pen pack” documenting the defendant’s 1989 retaliation


The document was prepared for internal use in classification and
assignment.  Melendez-Diaz requires a statement made for
prosecutorial use.
Read Opinion.


The prosecutor probably didn’t even need a pen packet at punishment, given
that appellant’s statement just before the crime was, "God forgive me for
this, I’m going to kill you bitch." Nonetheless, the contents of the pen
packet that summarized his criminal history were not generated as part of any
criminal investigation. They were business records designed to help the prison
system classify appellant. Be careful, though, because such records could still
contain information subject to a hearsay upon hearsay objection. They just
don’t violate the 6th Amendment Confrontation Clause. 

Simpkins v State – 6th COA

: Cite No.06-09-00062-CR : Sex offender registration


When a road runs through both the city limits and the unincorporated portion
of the county, must the State show which part of the road the defendant lives
on to prove failure to register as a sex offender?


Yes. The defendant’s duty to register with a particular law enforcement
agency depended upon where he lived. Without that evidence the case is legally
insufficient to support a conviction. Read


A pretty weak reason to acquit, particularly given that a reasonable
inference could be drawn that the county sheriff was the proper place to

Sony v State – 4th COA

: Cite No. 04-08-00806-CR : Street Racing


the court err when it allowed the State to use pictures of after-market
additions to the defendant’s vehicle to prove the charge of racing?


The pictures helped the jury decide if the defendant was racing based on the
presence of high performance additions common to racing vehicles.Read


The concurring opinion urges the legislature to amend the statute and
redefine the term racing. Read


Nice use of pictures. If you want to prove the appellant was racing, you
show the jury pictures of his racing car. Also, good discussion of the unusual
racing statute.

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