Texas Court of Criminal Appeals
Bland v. State
No. PD-1441-12 11/6/13
When a defendant agrees, as part of a plea bargain, that the trial court’s ruling on his motion to suppress will be “dispositive” – that if the court denies the motion, the defendant will plead guilty and be sentenced within a specified range – may the defendant complain on appeal about the trial court’s denial of a companion motion to disclose a CI’s identity?
No. A defendant can waive a number of issues through a plea bargain, including agreeing to make a ruling on a motion to suppress “dispositive.” The Court points out that the defendant could have chosen to withdraw from the plea bargain and plead “not guilty.” Read opinion
Dissent (Price, J.):
The dissent contends that the majority and the 14th Court of Appeals have deprived the defendant of his right to appeal a pretrial matter for which he obtained an adverse ruling prior to trial, “essentially predicat[ing] their rulings on the purported significance of a single word: ‘dispositive.’ I do not understand how this word has come to acquire such talismanic significance.” Read opinion
This decision may be of limited utility outside the county of conviction unless your county, too, uses this “dispositive motion to suppress” mechanism. Because the agreement of the parties was that a particular ruling would be dispositive of the case, the defendant could not later violate that agreement by trying to appeal something else. The broader concept from the case—that the CCA will generally support agreed forms of disposition even when they are not be contained within the Code of Criminal Procedure—may be more useful to you in your practice.
Cornet v. State
No. PD-0205-13 11/6/13
Has a defendant been harmed by a trial court’s exclusion of a requested medical care justification instruction if the jury found the defendant guilty of sexual assault via anus-to-mouth contact?
No. By its terms, the medical-care defense does not apply to conduct involving anus-to-mouth contact. “It is inconceivable that the jury would have found [the] appellant guilty of causing the anus of the complainant to contact his mouth, a claim entirely denied by [the] appellant, had it believed his claim that he was providing medical care to the complainant during the same event,” the Court concluded. Read opinion
Although this was a unanimous decision, any time an appellate court conducts an Almanza “some harm” analysis should be treated as a close call. Although the State wins this case—and justifiably so—the Court’s use of one verdict to find error that might affect another verdict as harmless can be turned around, as demonstrated in the next case. The Court’s statement that “Our survey of case law, in fact, has revealed no cases that have found the omission of a defensive instruction under a confession and avoidance theory to be harmless” is overbroad. A few cases come immediately to mind, including Land v. State, 943 S.W.2d 144, 148 (Tex. App. — Houston [1st Dist.] 1997, no pet.) and Reich-Bacot v. State, 957 S.W.2d 892, 894 (Tex. App. — Texarkana 1997), pet. dism’d, improvidently granted, 976 S.W.2d 678 (Tex. Crim. App. 1998).
Villa v. State
No. PD-0792-12 11/6/13
Is a defendant who, at trial, both flatly denies the elements of aggravated sexual assault of a child and recants his pretrial admission entitled to an instruction on the medical-care defense based upon that pre-trial admission?
Yes. The medical-care defense requires a defendant to confess to the conduct but argue that the medical-care defense negates his culpability. The Court concluded that even though the defendant recanted his pretrial admission that he had digitally penetrated the child victim in applying medicine, his admission was sufficient to trigger the confession-and-avoidance requirement for the medical-care defense. The defendant’s trial attorney was ineffective for failing to request a medical-care jury instruction. Read opinion
Dissent (Keller, P.J.):
The dissent would hold that the defendant has not shown prejudice to entitle him to a reversal based on ineffective assistance. “We do not know why the jury acquitted [the] appellant of the indecency offense, but it seems to me unreasonable to believe that the jury would assess a fifty-year sentence if it believed that[the] appellant was acting for the child’s own welfare.” Read opinion
Here, the Court faces another case where a defendant did not get an instruction on the “medical treatment defense.” This case stands out for several reasons. First, we must remember that a jury issue can be raised by evidence from any source, including an out-of-court statement, even if that evidence is weak, impeached, or even disavowed at trial, as in this case. Next, the case stands out because the CCA makes a rare finding of ineffective assistance of counsel in a direct appeal for failure to request the jury instruction. Finally, the CCA uses the jury’s acquittal on an indecency count as evidence that the jury found the defendant had no sexual intent when he penetrated the victim’s vagina with his finger. This supported the CCA’s finding that the defendant was prejudiced by trial counsel’s error. Juries often render contradictory verdicts in multi-count or multi-indictment trials, and the CCA has generally rebuffed appellate claims based on “irreconcilable verdicts.” Could the Court’s willingness to compare and contrast verdicts in Cornet and Villa indicated a willingness on the CCA’s part to entertain “irreconcilable verdict” claims?
Texas Courts of Appeals
Smith v. State
No. 13-11-694-CR (not for pub.) 10/31/13
Did the U.S. Supreme Court’s decision in McNeely v. Missouri render Texas’ mandatory blood draw statute (Transportation Code §724.012(b)) unconstitutional?
No.” McNeely clarified exigency; it did not invalidate Texas’ implied consent statute.” The Court also pointed out that Justice Sotomayor’s opinion “implicitly characterized implied consent statutes, including a specific reference to section 724.012(b) of the Texas Transportation Code … as collateral to the exigency concerns underlying the issue before the Supreme Court.” Read opinion
I hope the prosecutors on this case move to publish the court’s decision so that it has greater precedential value while we sort out the meaning of McNeely in Texas.
Barfield v. State
No. 14-12-309-CR 10/31/13
Does the U.S. Supreme Court decision in U.S. v. Jones, characterizing placement of a GPS tracking device to a vehicle as a Fourth Amendment “search,” apply to warrantless seizure of cell tower data?
No. Obtaining cell tower records from a third-party provider did not violate the defendant’s reasonable expectation of privacy. The Court found GPS placement distinguishable from seizure of cell tower data based on who initially collected the data in question and whether s/he did so with the suspect’s knowledge. Because cell tower data is compiled and stored by a suspect’s service provider each time he knowingly makes a call with his cell phone, the cell tower data is not suppressible under Jones. Read opinion
Although the Legislature amended Article 18.21 recently to require the use of warrants to obtain some information related to a suspect’s cell phone, it does not appear to apply to cell tower data. This case makes clear that obtaining cell tower data without a warrant, standing alone, does not violate the Fourth Amendment. This has been a hot-button issue in certain federal trial courts for several years.