October 26, 2012

Court of Criminal Appeals

Cox v. State

PD-1886-11      10/24/12


Did trial counsel’s incorrect statement during voir dire that defendant’s sentences would run concurrently amount to ineffective assistance of counsel?


No. The second Strickland prong was not satisfied because the record does not support a reasonable probability that the outcome would have been different but for counsel’s deficiency. Whether the defendant’s sentences would run concurrently or consecutively was an issue for the judge, and the record does not support a finding that the jury reverted to the misstatement in their deliberations. Read opinion


This is the holding that you would expect the court to make. But keep in mind, now that the court has recently allowed for a new exception to the non-admissibility of juror evidence on a motion for new trial, you should expect renewed attempts by defense lawyers to get juror evidence admitted to support the second prong of Strickland. It should still not be admissible on these facts, but you never know until you try.

Bryant v. State

PD-0049-12      10/24/12

Issue 1:

Did the defendant preserve for appeal whether the trial court properly applied the “former restitution” statute CCP art. 42.037(h) in revoking the defendant’s deferred adjudication for nonpayment of restitution?

Holding 1:

Yes. Although the defendant did not cite art. 42.037(h) in his objections, no “magic words” were required so long as the basis of the complaint was evident. Here, it was because the only arguments the defendant made were based upon his inability to pay restitution, and this is one of the factors the court was required to consider under art. 42.037(h).

Issue 2:

Did the trial court properly apply CCP art. 42.037?

Holding 2:

Yes. The statute gives the trial court discretion to revoke after consideration of five factors, but it does not require the court to consider them in a certain manner or render findings. The record shows the court heard extensive evidence of the defendant’s ability to pay restitution, and “after due consideration” found it was in the best interest of the defendant to place him on community supervision, reduce monthly restitution payments, and waive certain fees. Read opinion


True, a defendant does not need to “spout” “magic words” to preserve error for the purposes of appeal. But a defendant also does not preserve error on a specific claim by making a more general or broader claim. A defendant’s claim that he is unable to pay restitution payments does not represent a claim that the trial judge failed to properly consider one of the bases for revocation of a defendant’s probation set forth in the restitution statute. Thankfully, however, the court does ultimately give a trial judge some freedom and discretion to revoke a defendant’s probation and issue new conditions, rather than just be blindly forced to deny the motion to revoke or motion to adjudicate. Keep in mind that a court should not revoke a defendant’s probation and order prison or jail time based SOLELY on a defendant’s inability to pay. Here, the trial judge revoked the defendant’s “deferred adjudication” probation and placed the defendant on regular probation.

Texas Courts of Appeals

State v. Chavera

No. 04-11-00579-CR      10/17/12


Did the trial court wrongly grant a motion for new trial on grounds that the evidence was legally insufficient to support conviction for tampering with a governmental record because the State elected not to pay for retrieval of the defendant’s original application for food stamps?


Yes, but “‘it [is] a real sad day for criminal justice’ when this type of sloppy prosecution is pursued.” Read opinion


The defendant was charged with making a false entry in a governmental record, but the State did not produce the governmental record for trial, instead relying upon the existence of testimony alone to circumstantially support the existence of the governmental record and the existence of the false entry. The court of appeals suggests that this approach could have been defeated by the defendant by the making of a “best evidence” objection, but because no such objection was made, the court of appeals was forced to reverse the trial court’s ruling, finding that the evidence was legally insufficient. In anticipation of that, in a new trial, the State might be willing to produce the governmental record as an exhibit, but there appears to be some doubt as to whether that governmental record still exists. One witness testified that the record had been shredded, while another testified that the record was simply not retrieved because of a desire not to pay a fee to recover it from a storage facility.

Young v. State

No. 06-12-00045-CR      10/19/12


Did an officer have reasonable suspicion to stop a car for following another car too closely?


Yes. The officer testified that, if the car in front had stopped, the car following would have been unable to do so without colliding. The facts exceeded those in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) (conclusory testimony that car following another too closely insufficient for reasonable suspicion). Read opinion


No. There is no “substantive difference in testimony that [Ford] was ‘following too close’ behind another vehicle and that [Young] was following too close and could not stop to avoid a collision.”


In light of the fact that all that an officer needs to conduct a traffic stop is reasonable suspicion, and that we are supposed to give deference to our trial judges, Ford never made much sense to me. I hope this decision will hold up a good instructive counterpoint to those prosecutors who wish to distinguish their facts from Ford. Because there is a dissenting opinion, the Court of Criminal Appeals may be willing to grant a petition for discretionary review.

Woods v. State

No. 14-10-00841-CR      10/18/12


Did the trial court violate a defendant’s right to a public trial as a result of a deputy, due to space restrictions, closing the courtroom to spectators during jury selection?


Yes, even though the trial court was unaware of any excluded spectators and the issue was not brought to its attention until after jury selection had been completed. The deputy had barred members of the defense team and the defendant’s family, as well as other spectators. The trial court had no reason, let alone a substantial reason or an overriding interest, to justify excluding spectators. Such structural error requires reversal for a new trial. Read opinion


The Court of Criminal Appeals has issued several decisions recently that reveal how much importance judges place upon the right to a public trial. Here, however, the court might be willing to review these facts under either the merits or a harm analysis because there was not a wholesale exclusion of spectators and because the trial judge was never made aware of the deputy’s actions until the following day after jury selection. This decision should nevertheless stress the prime importance that courts place upon the right to a public trial. When you have a full courtroom, such as during jury selection, keep in mind that spectators should still be permitted to be present.

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