November 16, 2012

Court of Criminal Appeals

In re State ex rel. Tharp

No. AP-76,916      11/14/12


Is a writ of mandamus an appropriate remedy where the trial court refuses to submit the issue of punishment to the jury after a plea of guilty to the jury? 


Yes. Upon a plea of guilty to the jury, the trial becomes unitary, and the trial judge has a ministerial duty to instruct the jury to return a verdict of guilty and assess the punishment. Read opinion

Dissent (Price, J.):

Unless a defendant elects to go to the jury on punishment prior to the commencement of voir dire, he waives his right to jury-assessed punishment for the purposes of CCP art. 26.14, and the judge may assess punishment. Read dissent


Once again, the Court upholds the State’s right to a jury trial. This time, the judge seemingly sought to force the issue because of unhappiness over the State’s pursuit of a deadly weapon finding. The CCA also confirms that the defendant’s decision to plead guilty before a jury makes for a unitary trial on the issue of punishment. The decision was a timely answer to a recent User Forum post: State’s Right to Jury Trial in a Guilty Plea

Gipson v. State

No. PD-1470-11      11/14/12


By pleading “true” to allegations of failure to pay fees in a motion to revoke community supervision, does a defendant waive or forfeit claims that he was unable to pay the fees?


The court does not reach the issue because the court of appeals failed to address the State’s procedural argument that the defendant had failed to preserve his claims for appeal. Before remanding the case for further proceedings, the court clarified that the constitution requires the court to determine the defendant’s ability to pay fines and fees prior to revoking community supervision; it does not place an evidentiary burden on the state. Read opinion


While the case was vacated and remanded on technical grounds (the court of appeals failed to address an issue raised by the State), the opinion implies that inability to pay is not a burden of proof borne by the State. Doesn’t that suggest the issue, unlike sufficiency of the evidence, is capable of procedural default? Guess we shall see.

Texas Courts of Appeals

Wehrenberg v. State

Nos. 02-11-00560-CR, 02-11-00561-CR      11/08/12

Issue 1:  

Does the fact that a person is “going to” or “fixing to” manufacture methamphetamine provide exigent circumstances justifying a warrantless entry into a residence?

Holding 1: 

No. Despite the CI’s knowledge of “shake-and-bake” and the officers’ “knock-and-talk” providing probable cause for a warrantless search, the officers lacked exigent circumstances. The destruction or removal of evidence was not imminent because the State presented no evidence that any manufacture was active. No “now-or-never” situation existed.

Issue 2:

Does the federal independent source doctrine of Segura v. United States, 468 U.S. 796 (1984) allow admission of the challenged evidence over the Texas exclusionary rule?

Holding 2: 

No. The Court of Criminal Appeals has not squarely addressed application of the doctrine in Texas, and the court of appeals declines to hold, in reliance on State v. Powell, 306 S.W.3d 761 (Tex. Crim. App. 2010), that it is impliedly applicable.
Read opinion


This case is likely to be heard by the CCA on PDR on the issue of whether the evidence is admissible, despite an initial illegal entry, because the subsequent warrant was based on information obtained before the illegal entry. This so-called “independent source” doctrine is NOT (contrary to the representations of the COA) the same as the “inevitable discovery” doctrine, which was rejected by the CCA because of the unique wording of the Texas statutory exclusionary rule. Prediction: the CCA will find that the independent source doctrine is consistent with the Texas statutory exclusionary rule.

Eggert v. State

No. 04-11-00053-CR      11/07/12


Did the trial court improperly admit the audio portions of a tape that recorded an officer’s on-the-scene statements about 1) the defendant’s condition and 2) the items found in the defendant’s vehicle? 


Yes. The audio statements about the defendant’s condition constituted a “speaking offense report” and were inadmissible hearsay. Also, the audio statements about what the officer found did not qualify as a present sense impression. The officer’s comments about the type, brand, and number of alcoholic beverages were made for the purpose of putting together evidence against the defendant so were testimonial statements that cannot be considered “non-narrative, off-hand comments.” Nevertheless, because live witnesses related the same information to the jury, any error was harmless. Read opinion


An officer’s verbal recorded narration of an investigation is hearsay that is not generally admissible. However, under different circumstances, other exceptions might apply. For example, if the officer is impeached as to the accuracy of his own testimony, the recording might become admissible as a prior consistent statement. If the officer can’t recall what happened, it might become admissible as a recorded recollection. And, given the growing requirement that all officers record traffic stops, one must wonder whether the recording will some day qualify as a business record. (And thank goodness for the harmless error rule.)

Baldwin v. State

No. 07-12-00048-CR      11/08/12 (not desig. for pub.)


Where the State timely files a motion to revoke and—despite the absence of a capias due to the defendant’s request and the trial court’s acquiescence—the defendant voluntarily shows up can the trial court revoke community supervision?


No. A motion to revoke and capias must both be timely filed. Read opinion


Legally, the defendant is correct. But, given the defendant’s request for a voluntary appearance, the doctrine of estoppel should apply. Look for a PDR to be granted on that issue. Fair is fair.

Benefield v. State

No. 14-11-00452-CR      11/08/12


Did a prosecutor commit misconduct by reading jurors’ notes while they were absent from the courtroom?


Yes, the conduct was “shameful,” “severe,” and “totally inappropriate.” But CCP art. 36.22—restricting communication with jurors—was not violated and the defendant received a fair trial, so a mistrial was not required. Read opinion


Note-taking by jurors in a criminal case is unusual in Texas. And perhaps that is why the prosecutor in this case failed to appreciate immediately the wrongfulness of looking at those notes during trial. Nonetheless, the CA correctly articulates the activity as serious misconduct. Fortunately, the misconduct was identified and isolated during trial, having no impact on the ultimate fairness of the trial. Perhaps judges should adopt a practice of taking up juror notes during breaks in trials.

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