Please note there will be no Case Summary for next week.
Texas Court of Criminal Appeals
Leal v State
11/18/09 : Cite No. AP-76,049 : Post-Conviction DNA testing
Is the defendant entitled to post-conviction DNA testing to provide potential exculpatory evidence of sexual assault when the defendant was found guilty of capital murder as charged in the indictment, which included both kidnapping and aggravated-sexual-assault paragraphs?
No. The defendant must show that there is greater than a 50 percent chance that he would not have been convicted of capital murder based upon such testing. This conviction would still stand based on the kidnapping even if the sexual assault were disproved. Read Opinion.
The defendant kidnapped and brutally raped a young, female victim. The defendant immediately confessed to his brother. The defendant then lied to police (she leaped from his car and ran away). After being told that police had talked to his brother, the defendant then picked what he thought was a more credible lie (she attacked him, he pushed her to the ground, he went home and prayed about it). So, now he seeks DNA testing to lay the blame on others who likely had sex with the victim before he killed her. Fortunately, the CCA did not allow the defendant to continue manipulating the system and finds that DNA testing could not exonerate him from the kidnapping theory of capital murder. It seems absurd, under these facts, that the defendant can simply renounce his confession to get into court on a DNA motion.
In re Simon
11/18/09 : Cite No. AP-76,183 : Self incrimination during mental health exams
Did the defendant have a Fifth and Fourteenth Amendment right to mandamus relief from the trial court’s order subjecting him to examination by the State’s mental health expert?
No. The trial court exercised a judicial (and not a ministerial) function, which is not subject to the extraordinary remedy of prohibition. Read Opinion.
Although the CCA didn’t officially decide the issue, this case seems to make it clear (as we had all expected) that a Lagrone motion, requiring the defendant to submit to an interview by a State’s expert, applies to noncapital cases.
Morris v State
11/18/09 : Cite No. PD-0240-07 : Competency
Did the defendant’s claim of amnesia regarding a crash that led to intoxication manslaughter charges provide enough reason for the defendant to be declared incompetent?
No. The court found that there was enough evidence to show that the defendant was able to both consult with his attorney and understand the proceedings against him. Read Opinion.
The dissent states that without the defendant having any memory of the event, there is an unfair risk of convicting an innocent man. Read Dissent.
Concurrence and Dissent
A concurring and dissenting opinion agrees with the majority in disposing of the defendant’s amnesia claim, but disagreed with its rejection of the defendant’s improper stacking argument. Read Opinion.
The notion that the defendant can avoid trial by faking amnesia (or even having actual amnesia) seems ridiculous. Although this case doesn’t close the door to such a claim, it squeezes it pretty close to shut. The more interesting side issue was the rejection of the trial court’s overly cute attempt to stack only part of a defendant’s sentence of confinement. The CCA’s remedy of deleting that stacking order seems unfair. Why not simply remand for the trial court to decide how to impose a proper stacking order?
Anderson v. State
11/18/09 : Cite No. PD-1441-08 : Preservation of error
Did an unsworn oral motion for a continuance preserve the defendant’s claims for appellate review?
No. There is no due process exception to preservation requirements governing continuance motions in CCP Articles 29.03 and 29.08. These rights are subject to forfeiture. Read Opinion.
The defendant was in the best position to know whether the semen on his own child’s swimsuit belonged to him. So, don’t feel too sorry for the defendant waiving his right to a continuance (by failing to make a proper sworn, written request) that would have allowed him time for a separate DNA test. On the other hand, this kind of issue can be avoided by pressing the lab to conduct timely testing well before a trial date. The Legislature could do it’s part as well by sufficiently funding labs to deal with current backlogs.
Grey v. State
11/18/09 : Cite No. PD-0137-09 : Lesser-included offense
When the State wants to add a lesser-included offense to the jury instructions, is it bound by Arevalo v. State that "some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense?"
No. The Court overrules Arevalo v. State and concludes that the State is not bound by the second prong of the Royster-Rousseau test. Society’s interests are benefited by allowing the prosecutor to include other offenses to secure the appropriate criminal conviction. Read Opinion.
Concurrence from Judge Hervey:
While a trial court has no discretion to deny a request for an instruction on a lesser-included offense, nothing precludes a trial court from submitting an instruction even when this test is not met. Read Opinion.
Concurrence from Judge Cochran:
The concurring opinion offers guidance on when a trial court must grant a request and when a trial court may include instructions.Read Opinion.
Presiding Judge Keller may have written the most important case of the year, overruling bad law from 1997. We can all hear the sighs of relief from prosecutors and judges following this decision. By the way, the lead dissenting opinion in Arevalo was written by former Presiding Judge Mike McCormick, joined by then Associate Judge Keller. That has to feel sweet.
State v. Dunbar
11/18/09 Cite No. PD-1713-08 : Shock community supervision
Did the trial court properly grant the defendant’s motion for shock community supervision?
No. The defendant was convicted of indecency with a child and is not eligible for community supervision. A person who is ineligible for regular community supervision is also ineligible for shock community supervision. Read Opinion.
Good to see that the State can prevent a trial court from ignoring the law and granting shock probation to an ineligible defendant. But note that the State won on a jurisdictional argument. That won’t work if the State sits silent in a case over which the trial court still has jurisdiction.
Ramos v. State
11/18/09 : Cite No. PD-0812-08 : Felony forgery
Is the forgery of a Social Security card covered by Penal Code §32.21(e)(3)?
Yes. The term "instrument" as used in the Penal Code is broad enough to cover the Social Security card. As a result, the court was not required to instruct the jury on "negotiable instruments." Read Opinion.
The dissent would hold that because a Social Security card is covered by subsection (e)(2), it does not constitute an "other instrument" under subsection (e)(3). Read Dissent.
Frankly, it is baffling as to why the CCA granted PDR on this one. The court of appeals got it right, there were no constitutional issues or conflicts in the law, and the CCA didn’t change anything. So, what was the point? Interesting footnote that the defendant had been deported by the time of his appeal.
Texas Courts of Appeals
Alexander v. State – 2nd COA
11/12/09 : Cite No. 2-08-282-CR : Written judgments
Did the trial court properly include a written condition for $10,311.25 in restitution when the oral pronouncement made no mention of restitution?
No. To be part of the written judgment, the restitution must be part of the oral pronouncement. Read Opinion.
In more and more cases, courts of appeals are deleting restitution orders in the absence of an oral pronouncement of the restitution at sentencing. Prosecutors should start asking for such a pronouncement or seek PDR on this issue. The victim shouldn’t lose out on restitution for such a verbal oversight.
Minhovich v. State- 9th COA
11/12/09 : Cite Nos. 09-08-00207-00209-CR, : Constructive transfer
When the indictment alleges only a "constructive transfer" of controlled substances to a single named individual, must the State prove the defendant was aware of the ultimate transferee?
Yes. The defendant must have direct or indirect control of the substance and must know of the existence of the transferee. It is not enough that there is an intermediary, but that the defendant is aware there would in fact be a third-party transferee. Read Opinion.
This rule of constructive transfer should not apply when the actual transferee is the agent of the constructive transferee.
The lesson here is to allege all three theories for delivery (actual, constructive and offer to sell) in the indictment and include a law of parties charge if applicable. That provides, on appeal, every option to argue for sufficiency of the evidence.