Case Summary Correction
In the Oct. 30, 2009 edition of TDCAA’s Weekly Case Summaries e-mail, in the summary for Ex parte Wright,
we incorrectly identified the lawyer whose punishment-phase
performance was found ineffective by the Court of Criminal Appeals. The
primary defense lawyer in that case was Neal Davis, who works in the
firm of DeGuerin & Dickson. Mr. DeGuerin, however, was not found
ineffective by the Court. We apologize for the error.
Texas Court of Criminal Appeals
Saavedra v State – ON STATE’S PETITION FOR DISCRETIONARY REVIEW
11/04/09 : Cite No. PD-0198-08 : Hearsay and Interpreters
Is a police officer permitted to testify about an admission from a defendant made through an interpreter even if the interpreter is not called to the stand?
Yes. If it can be demonstrated that the party authorized the interpreter to speak for him on the particular occasion, or otherwise adopted the interpreter as his agent for purposes of translating the particular statement, then the out-of-court interpretation may properly be admitted under Rule 801(e)(2)(C) or (D) of the Texas Rules of Evidence. Read Opinion.
The CCA adopted the Rules of Criminal Evidence (later combined with the Rules of Civil Evidence) in 1986. That probably explains the somewhat incredulous tone of the CCA’s opinion, chastising the Dallas Court of Appeals for relying on recitation of very old common law in the appeal of a civil case to decide a criminal case in 2009. But then the CCA does an odd thing: it announces how it would decide the case yet remands the case for the court of appeals to re-decide the case. That odd act gives the opinion the tone of a parent repeating a lesson to a teenager for the umpteenth time. Should be fun to see how the court of appeals responds.
Texas Courts of Appeals
Bailey v State – 4th COA
10/28/09 : Cite No. 04-08-00633-CR : Mens Rea – Obstructing a highway
When must a defendant form the mens rea of "intentionally, knowingly, or recklessly" in order to be guilty of the crime of obstructing a highway?
A person must engage in the conduct with the requisite mental state. It would not be an offense if the defendant formed the "intent" to obstruct the highway at a later time because the mens rea must exist at the time the act is performed. Read Opinion.
Given that this offense is frequently used as a way of charge- bargaining a DWI case, the analysis of the mental state requirement might lead some to believe that a drunk driver must recklessly decide to block a highway in order to be guilty. That is certainly harder to prove that a DWI with no mental state. Incidentally, anyone think Mr. Bailey fled the scene because he was drunk?
Guerrero v State – 7th COA
10/29/09 : Cite NO. 07-08-0223-CR : Deadly Weapon Finding
Was it permissible for the trial court to accept an open plea to the offense of aggravated assault with a deadly weapon but not include a separate affirmative finding on the use of a deadly weapon?
Yes. The indictment to which the defendant pled guilty only alleged the use of a deadly weapon and never mentioned any serious bodily injury, leaving only the implied finding of a deadly weapon in the judgment. However, that does not mean that the court made an affirmative deadly weapon finding, which is always up to the discretion of the court. Read Opinion.
The court of appeals gets this one dead right. Through an open plea, the judge was free to place the defendant on deferred adjudication and defer entry of a DW finding. Following adjudication, again without any agreement on punishment, the judge was free to exercise discretion in entering or not entering a DW finding. If the State wanted an affirmative DW finding, the prosecutor should have requested it or made it part of a plea bargain.
Davenport v State – 11th COA
10/29/09 : Cite No. 11-07-00297-CR : Probable cause for a stop
Is there sufficient probable cause for a traffic stop when the officer makes the stop based on the personal observations of a police dispatcher?
Yes. The officer believed the dispatcher to be a credible witness and the information provided about the purchase of a large amount of pseudoephedrine fit with the officer’s training on the manufacture of methamphetamines. Read Opinion.
The majority opinion on the search and seizure issues is utterly unremarkable and should not have been published. What is baffling is the dissenting opinion (after main opinion)one judge just can’t see how a jury could infer that the defendant intended to manufacture methamphetamine, simply by putting a bunch of pseudoephedrine in Coca-Cola. Umm, apparently that’s one of the steps for making it, as an expert testified. Isn’t that an odd enough act to infer that Davenport knew what she was doing? Is the judge just worried about people getting caught mixing strange things in their drinks?