Texas Court of Criminal Appeals
State v. Story
No. PD-0590-13 10/15/14
Can the State argue the legality of a plain-view seizure of evidence and subsequent arrests based on an “open fields” justification for the first time on appeal?
No. The State was required to raise that theory in the suppression hearing or abandon it. Read the opinion.
Dissent (Keller, P.J.):
The court has previously held that the State can raise an issue for the first time on appeal if it was an issue that the defense had the burden to prove at trial. The defendant’s suppression claim was a Fourth Amendment claim; therefore, the defendant had the burden to establish a privacy interest, and such an interest was essential to an “open-fields” analysis. Read the dissent.
This case reaffirms two well-settled truths about motions to suppress. 1) Bad facts make bad law. In this case, the defendant was arrested based upon an anonymous tip that was contradicted by the circumstances found at the scene. This bad legal starting point jeopardized what the officers did afterwards. 2) The State should raise every possible legal argument in support of the trial court’s denial of a defendant’s motion to suppress (always, but especially if there is a real danger that the trial judge will grant the motion to suppress). Do not let defense counsel misconstrue what this decision says. At trial, the State did not raise the “open fields” doctrine; therefore, the State (as the appealing party) could not raise that argument for the first time on appeal in support of the reversal of the trial court’s order. That is all that this decision stands for. This is not a case in which the State attempted to—but was not permitted to—raise the defendant’s standing for the first time on appeal.
Burt v. State
No. PD-1563-13 10/15/14
When the record is clear that the trial judge orally made restitution a part of the sentence, but either the amount or the person to whom it is owed is unclear, incorrect, or insufficient, should the restitution order be deleted, or should the case be remanded to the trial court for a hearing on restitution?
In such a case, appellate courts should vacate the faulty order and remand for a new restitution hearing. Read the opinion.
It is obviously best for a trial judge to order orally the specific restitution to be paid when he pronounces the rest of the defendant’s sentence. If the trial judge does not mention restitution at all during the oral pronouncement but then later adds restitution to the written judgment, the court of appeals will have no choice but to delete the restitution order. This case involves the situation in which the trial judge does mention restitution during his oral pronouncement but either mentions a wrong amount or mentions that the amount is to be determined. If the record does not support what is ultimately ordered in the written judgment, the case can be remanded by the court of appeals to the trial court for a restitution hearing. This decision outlines well all of the appropriate remedies if a defendant successfully challenges restitution on appeal.
Grado v. State
No. PD-1057-13 10/15/14
Can a defendant inadvertently waive the right to have the judge consider the correct punishment range?
No. That is a non-forfeitable that right must be expressly waived, not abandoned by inaction. Read the opinion.
Dissent (Keller, P.J.):
The right to have a judge consider the full punishment range is not the same as the right to be sentenced within the correct punishment range. It does not rise to the level of a right that cannot be forfeited. Read the dissent.
This decision will tell you more about error preservation that you may ever want to know. The bottom line is that, because the trial judge articulated that he was mistaken about the minimum possible sentence for the offense, the defendant could raise that mistake for the first time on appeal because the trial judge was not—in effect—considering the full statutory punishment range. If the trial judge had remained silent about his mistake, there is really no way for us to have known that, and this case would have been nothing more than one in which the defendant was sentenced within the applicable punishment range.
Samaripas v. State
No. PD-0135-13 10/15/14
Was the defendant eligible to be punished as a habitual offender via an enhancement based in part on a state jail felony that had been punished as a second-degree felony?
Yes. The enhancement statute, as it read at the time of the punishment, did not prohibit the use of state jail felonies for habitual enhancement unless they were punished as state jail felonies. Read the opinion.
Dissent (Keller, P.J.):
The majority says the language of the applicable statute is plain, but the language is ambiguous and should be resolved in favor of the defendant based on insight gleaned from extra-textual sources. Read the dissent.
This decision will help you only if the primary charged offense was committed before September 1, 2011. After that date, state jail felonies that are punishable under §12.35(a) of the Penal Code cannot be used to enhance a “regular” felony to make a defendant a “true habitual” under §12.42(d).
Comeaux v. State
No. PD-1440-13 10/15/14
May a defendant who used peremptory strikes outside of the “strike zone” (jurors on the panel who are mathematically able to be seated on the jury) complain about a judge’s refusal to strike for cause a juror within the strike zone who could have been removed had the strike not been wasted?
No. Because the defendant could have struck the juror had he not thrown away a strike on a juror who could not have been seated, the defendant was not harmed by the judge’s denial of a challenge for cause regarding the juror. Read the opinion.
Concurrence (Johnson, J.):
The case clarifies the steps necessary to challenge the seating of a juror. Read the concurrence.
This decision will really be of assistance to the State only on appeal. It definitely clarifies the law with regard to whether a defendant has been harmed by a trial judge’s allegedly erroneous denial of a challenge for cause. But the odds of a defense lawyer doing what this defendant’s attorney did—exercising a peremptory challenge outside the “strike zone”—are pretty low. But if you actually have have a defense attorney who makes this mistake, this decision will be invaluable to you.
Texas Courts of Appeals
In re Watkins
No. 05-14-01167-CV 10/3/14
Was the State entitled to mandamus relief when the court ordered a pretrial determination of the defendant’s intellectual disability, to be conducted by the trial court itself?
Yes. The question of intellectual disability is a question of fact that must be determined by the same jury that determines the defendant’s guilt or innocence. Read the opinion.
You would think that a trial judge would not need to be repeatedly reminded about State ex rel. Watkins v. Creuzot, 352 S.W.3d 493 (Tex. Crim. App. 2011), and State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011). But apparently some trial judges have not gotten the message. This is a very thorough decision in its own right, carefully explaining the law regarding the determination of intellectual disability (formerly called mental retardation) in a death penalty case. Great job by the State getting mandamus relief granted.
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