10/28/09 : Cite No. AP-76,167 : Ineffective assistance
the defendant receive ineffective assistance of counsel on appeal when his appellate
counsel did not contest the legality of applicant’s sentence even though the
State failed to prove his prior convictions were sequential?
Concurrence and Dissent:
The record indicates that trial counsel did not challenge
the sequence of the enhancements because he knew that the second offense had in
fact been committed after the first enhancement offense and that a reversal on
appeal could result in a higher punishment for his client. Read Opinion.
This seems like such a waste of time because, at a new punishment hearing, the State apparently can and will prove that the defendant’s prior convictions are sequential. Presumably, the defendant will receive precisely the same punishment that he received at the previous trial.
In Brief …
In Ex parte Wright, No. AP-76,245, the court (in a
non-published, per curiam opinion) found
defense lawyer Neal Davis incompetent during the punishment
phase of Susan Wright’s murder trial. Read opinion.
The defendant’s attorney allegedly rendered ineffective assistance
of counsel because he failed to present witnesses at the punishment
stage that might have mitigated the defendant’s punishment or supported
a sudden passion defense. This reversal on punishment only has nothing
to do with any demonstration that occurred during the guilt/innocence
stage of the trial. The defendant’s guilt has been affirmed on direct
appeal and on habeas corpus. The defendant stabbed the victim at least
193 times, and then she moved his nude body out to the backyard, where
she prepared to bury him, and where the victim was found five days
after he had been killed. The entire bed on which the victim had been
killed had also been moved to the backyard, and a wall in the bedroom
had been freshly painted. That does not sound anything like sudden
passion to me.
In Ex parte Reposa, No. AP-75,965, the court (in a
non-published opinion by Judge Womack) denied habeas corpus relief for Adam
Reposa, an Austin defense attorney found in contempt of court, in part for
making a masturbation motion in the general direction of the prosecutor and
judge. Read opinion
The court should have published this opinion to give precedence to the idea that such behavior in court is not acceptable.
In Hall v. State, No. PD-0791-09, the court denied a
petition for discretionary review by Laura Hall, an
woman convicted of tampering with evidence and hindering apprehension in the
2005 murder and mutilation of
new punishment hearing, but the court’s denial of PDR allows the underlying
convictions to stand.
Courts of Appeals
Marshal v State – 1st COA
10/22/09: Cite No. 01-08-00734-CR
: Reasonable doubt
Did the judge err in explaining reasonable doubt to the
venire panel by saying “[y]ou will know when you’re convinced that someone has
violated the law and the State has proven each and every element beyond a
reasonable doubt. You will know it. . . .”?
No. While it may have been improper or imprudent, it was not
fundamental error. Further, the
defendant did not preserve the error. Read Opinion.
The concurrence emphasizes that
any attempt by the trial court to “clarify” the notion of “beyond a
reasonable doubt” for the venire is ill-advised. Read Concurrence.
The defendant’s claim–that he was not required to object–was based upon a plurality opinion from the Court of Criminal Appeals that has no precedential value. Funny. But defendants and courts keep citing to it.
Stine v State – 6th COA
Was it proper for the judge to make an initial determination
of the defendant’s competency based both on his own observations and a
psychiatrist’s report, rather than empanel a jury to make the determination?
Yes. The statute requires the court to determine by informal
inquiry whether there is some evidence from any source that would support a
finding that the defendant may be incompetent to stand trial.
from the defendant and the evaluating psychiatrist were enough evidence for the
judge to make a determination of competency. Read Opinion.
This is another decision to which you can look if you have a competency claim under the relatively new Chapter 46B of the Code of Criminal Procedure.
Jones v State – 6th COA
10/23/09 : Cite No. 06-08-00181-CR : Drug-free zones
When the defendant was convicted of possession of a controlled substance,
with intent to deliver, while within a drug-free zone, was the punishment
proper if the jury charge was erroneous but the sentence still fell within the
range of what a proper jury charge would have been?
No. The flawed charge was an egregious harm because the defendant was denied
the opportunity to receive a sentence less harsh than the minimum the jury was
instructed to impose. Read Opinion.
The moral to this story is that what may be a drug-free zone for one offense may not be a drug-free zone for another offense. Frankly, that is confusing, and the Texas Legislature should amend the statute to make the definition of a drug-free zone consistent for all drug offenses.
Woodard v. State – 14th COA
10/22/09 : Cite No, 14-08-00288-CR
: Convicting on non-indicted charges
In a trial for murder, was it proper for the jury to convict
on the unindicted offense of conspiracy to commit aggravated robbery?
No. The defendant was harmed by the deprivation of his due
process rights when he was convicted of an offense for which he was never given
notice. Read Opinion.
The court of appeals noted that the record was silent as to who had requested the inclusion of the un-indicted offenses in the trial court’s charge to the jury. If the defense has requested a charge on a lesser offense that is not a lesser-included offense, make sure that the record reflects that it is the defense who has requested that charge.