Texas Court of Criminal Appeals
10/15/08 : Cite No. AP-75,838 : Sex Offender Conditions
Issue
Is a parole releasee who has never been convicted of a reportable offense required to comply with sex offender conditions of early release?
Holding
Yes. The parole board was authorized by Government Code Ch. 508 generally to impose sex offender conditions and specifically a child safety zone condition. The parolee had one prior misdemeanor conviction for indecent exposure and one for assault when he pled guilty and was sentenced for burglary of a building as a habitual offender. When released on parole, he was given notice that he would be considered for sex offender conditions and did not timely respond. His due process rights were not violated when those conditions were subsequently designated.
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Concurrence
Judge Cochran, joined by Judge Womack, wrote to concur in the denial of relief because the applicant was given at least a minimal due-process opportunity to contest the imposition of Special Condition X (Sex Offender Condition) as a condition of his release. Judge Cochran stated that while one might reasonably question the wisdom of the parole board’s decision, it did not violate the Due Process Clause of the federal constitution.
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Dissent
Judge Price filed a dissent in which Judges Meyers, Johnson and Holcomb joined. He disagreed with the broad interpretation of §508.221 with relation to the child safety zone condition. He contended that it was important to harmonize all of the conditions-of-parole/mandatory supervision provisions contained in Chapter 508 and the Code of Criminal Procedure.
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Commentary
This decision is especially important because it notes that a parole panel has the broad, general, discretionary authority to impose conditions of parole or mandatory supervision to the same extent that a trial judge can impose conditions on a defendant’s probation under Article 42.12 of the Code of Criminal Procedure. It should not have been surprising to this defendant that the parole panel wanted to impose the sex offender conditions upon him because, in addition to the fact that he had previously exposed himself to several children, when he committed the underlying burglary offense, he had approached the victim, and had attempted to spread her legs apart.
Hernandez v. State
10/15/08 : Cite No. PD-1879-06 : Crawford
Issue
Did the admission of a co-defendant’s testimonial statement to another out-of-court statement of that same co-defendant violate the Confrontation Clause?
Holding
No. Two other inmates testified that the co-defendant told them she, and not the defendant, was responsible for the victim’s death. This placed the co-defendant’s credibility at issue and the State was then permitted by Rule of Evidence 806 to impeach her through an officer’s testimony. Under Crawford v. Washington the statement was admissible because it was nonhearsay and did not implicate the defendant’s confrontation rights.
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Commentary
This is a relatively straight-forward application of the well-settled rule that a defendant’s confrontation rights do not apply to prevent the admission of a statement offered for impeachment purposes. But remember that a limiting instruction should be given on the admissibility of that impeaching statement.
Littrell v. State
10/15/08 : Cite No. PD-1555-07 : Double Jeopardy
Issue
Was the Fifth Amendment’s double jeopardy prohibition violated when, in a single jury trial, the defendant was tried and convicted and punishment assessed for both felony murder and aggravated robbery?
Holding
Yes. Aggravated robbery is a lesser-included offense of felony murder and thus, the same offense for the purposes of double jeopardy. The defendant was charged with felony murder under Penal Code §19.02(b)(3) and not murder under §19.02(b)(1). If he had been charged with murder, then the aggravated robbery would not have been a lesser-included offense.
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Dissent
Presiding Judge Keller dissented, writing that the appellant’s felony murder charge alleged both the commission and attempted commission of aggravated robbery. Even if commission and attempt are alternate methods of committing felony murder, then the defendant procedurally defaulted his double jeopardy claim because he failed to object to submission of both theories of felony murder to the jury.
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Commentary
The court noted that the prosecution for both offenses might have been permissible if the legislature had provided with regard to the felony murder statute that a defendant could be prosecuted for both felony murder and the underlying offense. Perhaps that is something we should consider advocating during the next legislative session. That is precisely what the legislature has already provided with regard to the offense of engaging in organized criminal activity.
Texas Courts of Appeals
Mendiola v. State – 2nd COA
10/9/08 : Cite No. 2-07-387-CR : In-Court Identification
Issue
Did the trial court reversibly err by failing to suppress the in-court identification of the defendant because it was tainted by an improperly suggestive identification procedure?
Holding
No. The burden is on the challenging party to prove by clear and convincing evidence that the identification was improperly suggestive. The defendant’s line-up photograph was larger and darker so that it was suggestively distinguished from the others. However, because the victim had sufficient opportunity to observe the defendant on two separate days and was unequivocal in his identification at trial, the defendant did not satisfy the full test set out in Barley v. State, and the suggestive procedure did not give rise to a very substantial likelihood of irreparable misidentification.
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State v. Dunbar – 9th COA
10/15/08 : Cite No. 09-08-104-CR : Shock Probation
Issue
Did the trial court have authority to place a defendant previously adjudicated guilty of a 3g offense on shock probation?
Holding
No. The trial court’s power to grant shock community supervision was not invoked because as a matter of law the defendant was not eligible for judge-ordered community supervision after conviction and imposition of sentence for a sexual offense under Penal Code §21.11(a)(1).
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