Court of Criminal Appeals
Woods, Ex Parte
10/07/09 : Cite No. AP-76,034 : Claims of Mental Retardation
Will a previously unconsidered affidavit of another psychologist that
reaches an initial conclusion consistent with a diagnosis of mental retardation
be enough to meet the requirements of Article 11.071, §5(a)(3)?
No. While the review is necessarily fact-specific, the defendant must prove
to the court that there is evidence that could reasonably show, by clear and
convincing evidence, that a rational trier of fact would find that he is
mentally retarded. Read Opinion.
In a concurring opinion, Presiding Judge Keller disagreed with the holding
in Blue and maintains that Atkins claims should not be cognizable in a
subsequent application under Article 11.071, §5(a)(3). Read Opinion.
And make no mistake: This decision is very fact-specific. But if you are
faced with a writ of habeas corpus in which the defendant is claiming that he
is mentally retarded, this decision will show what evidence you might need to
present or refute in challenging the claim.
Appellant’s PBR – Hughen
10/07/09 : Cite Nos. 06-07-00092-CR & 06-07-00093-CR: Waiver of Rights
Was the court correct in denying the defendant’s motion to suppress all
conversations between the defendant and law enforcement?
Yes. The conversations were properly admitted as the defendant had waived
his 5th and 6th Amendment rights knowingly and willfully. Read Opinion.
Because the Court addressed the merits of the defendant’s Sixth Amendment
claim instead of remanding it for consideration by the court of appeals, Judge
Price dissented. Read Dissent.
This is a wonderful decision, simple and straightforward in its analysis.
Its result was essentially assured because of last term’s United States Supreme
Court decision in Montejo, but in this case, the defendant actually requested
an attorney at the hearing before the magistrate, and the Court of Criminal
Appeals still permitted the defendant to waive his rights when approached by
the officer. Read these decisions to understand the distinctions between a
defendant’s Sixth Amendment right to counsel and a defendant’s Fifth Amendment
right to counsel. (The July-August 2009 issue of The Texas Prosecutor contains an article on this very topic.)
Courts of Appeals
State – 2nd COA
10/01/09 : Cite No. NO. 2-07-272-CR : Cross Examination of Law Enforcement
Did the trial court err by limiting the defendant’s cross examination of a
law enforcement officer regarding his representation by counsel during the
investigation of the officer-involved shooting?
No. While cross examination is normally allowed on any issue reasonably
calculated to reveal a witness’s motives, biases, and interests in testifying,
the trial court may limit testimony that may confuse the issues or be only
marginally relevant. Read Opinion.
Read the facts of this case. They show just how dangerous it is to be a
police officer. If given half a chance, this defendant would have killed all of
the cops who arrived at a residence to execute a narcotics warrant for his
arrest. Legally, this should be a helpful decision in a case where a defendant
wishes to impeach an officer in some way; in fact, this defendant was able to
impeach the officer a great deal. He was permitted to show that the officer had
an attorney present during the interview, that there was an investigation of
the officers’ actions by the police department, and that there was a difference
in the officer’s testimony from that of the other officers. There is also a
very thorough discussion of the two limiting instructions given by the trial
court in this case. Overall, an important opinion.
Wood v State – 3rd COA
10/07/09 : Cite No. NO. 03-08-00257-CR: Autopsy and Melendez-Diaz
Was the autopsy report, as prepared, considered testimonial under Crawford
and Melendez-Diaz and therefore subject to the Confrontation Clause?
Yes. Here the report was prepared under the suspicion of homicide, and it
was reasonable to assume the findings would be used prosecutorially. However,
the error was harmless. Read Opinion.
This decision may give a great deal of concern to prosecutors, but it is
hard to fault the court’s analysis, especially after Crawford and Melendez-Diaz
have been decided. Expect the Court of Criminal Appeals to accept review of
this decision, but I am not sure that I could predict that the higher court
will overturn the decision of the court of appeals.
Rey v State – 7th COA
09/30/09 : Cite No. 07-07-0141-CR: Endangering a child
Did the defendant accept the responsibility to protect, shelter, feed, and
provide medical care to the 3-year-old victim as defined in Penal Code
No. When the defendant found both his stepson and daughter alone at their mother’s apartment, he took his daughter but left the 3-year-old boy alone. The evidence showed the defendant acted in complete disregard for the
child. While it might have been criminal under §22.041(c), it was not under the
provision the State chose to prosecute. Read Opinion.
The court suggests that the defendant should have been prosecuted under §22.041(c)
of the Penal Code instead of §22.041(b). The case was on remand from the Court
of Criminal Appeals, and it may go back before that court. But the Legislature
needs to amend the statute to make it clear that an adult cannot get away with
this type of behavior with a child.
– 14th COA
10/01/09 : Cite No. 14-08-00556-CR: Defendant’s Motion for New Trial
Did the trial court properly grant the motion for a new trial on the grounds
of legal insufficiency and in the interests of justice?
Yes in part. In regard to legal insufficiency, the trial court abused its
discretion, but the Court of Appeals affirmed the order granting a new trial in
the interest of justice. Read Opinion.
This is a tough case, but the decision is authored by a very good judge. It
has always seemed a little too convenient to me to say that a trial court can
grant a defendant’s motion for new trial in the “interest of justice,” because
so much injustice can be hidden in such a phrase. It seems that much clearer
guidelines should be imposed if a trial court is going to take the drastic
action of overturning the judgment of a group of jurors.
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