Court of Criminal Appeals
Coronado v. State
No. PD-0644-10 : 09/14/11
Do all the videotape procedures set out in CCP art. 38.071, §2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation and cross-examination under Crawford?
No. A list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is not a constitutional substitute for live cross-examination and confrontation.
Judge Hervey writes that the option of presenting child victim testimony via closed-circuit television balances the defendant’s right to confrontation and a societal need to protect child victims.
Presiding Judge Keller writes that the majority ignored the significance of expert testimony that the child would suffer trauma and be unable to testify at trial or in a closed-circuit setting. Also, the interrogatory procedure produced the same scope of questioning as would be permitted at trial when defense counsel delegated follow-up questions to the forensic examiner.
Judge Cochran correctly points out that the SCOTUS view of the right to cross-examination and confrontation of a witness under the Sixth Amendment is not nearly as flexible after the Crawford decision. There has always been serious doubt as to whether recorded child interviews could serve as an acceptable substitute. This opinion confirms those doubts. Judge Hervey, in her concurring opinion, does remind everyone, though, that closed-circuit TV may well satisfy even the post-Crawford SCOTUS. Sadly, these principles will likely mean that some 3-year old children will remain subject to the abuse of pedophiles and beyond the protection of criminal courts.
Alonzo v. State
No. PD-1494-10 : 09/14/11
1) Can a defendant be convicted of a lesser-included offense when a fact-finder has acquitted the defendant of the greater offense based on a justification defense?
2) Can a defendant raise the justification of self-defense when charged with manslaughter?
1) No. Under PC chapters 9.02 and 2.03, a fact-finder may not convict the defendant of a lesser-included offense if the State does not disprove the defendant’s actions were justified beyond a reasonable doubt.
2) Yes. Justification is a defense to offenses committed recklessly. PC ch. 9 does not limit justification defenses to offenses with an intentional or knowing culpable mental state.
It is an odd thing to consider that a defendant may avoid criminal responsibility for a reckless act by claiming self defense. But, the justifications in the Penal Code are not constructed to respond to a necessarily intentional or knowing act. Good luck explaining all this to a jury.
Mayes v. State
No. PD-1633-10 : 09/14/11
Was a jury sentence of two years’ confinement with a recommendation of community supervision an illegal or improper verdict?
No. The jury properly returned a verdict within the sentencing range, and nothing in CCP art. 42.12 states that the jury must assess a sentence that equals the minimum period of community supervision.
Yes, the probation laws in the CCP can be confusing, but any district judge should know that the range of confinement for a particular offense is not the same as the range of years for probating a particular sentence of confinement. In this case, apparently, the judge, prosecutor and defense attorney were all unaware of those differences. Strange, though, that the case is remanded for consideration of a procedural default claim. Guess that will eventually morph into an ineffective assistance of counsel claim. All parties would do well to reach an agreement to let the sentence be reformed to two years in prison, probated for five years. That is obviously what the jury intended to do.
Cosio v. State
No. PD-1435-10 : 09/14/11
Did the trial judge’s instructions to the jury permit a non-unanimous verdict?
Yes. When several instances of sexual criminal conduct could have satisfied the charged offense, the judge must instruct the jury to be unanimous about which instance of criminal conduct satisfied each charge.
This case does not establish any new law. It simply provides one more example of the complexity of a child abuse case when there is a demand for election of particular incidents of abuse after a child has testified to repeated instances of identical sexual abuse. Fortunately, in a new case, prosecutors would have available the offense of continuous sexual abuse of a child, which does not allow an election or require the jury to unanimously agree on the same incidents of sexual abuse. Be sure to use that new statute when appropriate.
Ex parte Garcia
No. PD-1658-10 : 09/14/11
May a habeas court grant relief when the only evidence in the record is sworn testimony from the applicant herself?
Yes. Relief may be granted on the basis of testimony that supports the pleadings if believed by the habeas court. An applicant’s live, sworn testimony can be a basis for upholding a trial court’s decision to grant relief in a CCP art. 11.072 habeas proceeding.
The legal conclusion that a defendant’s testimony may be sufficient to support a post-conviction writ is not a very shocking revelation. The real issue is whether a defendant may wait 25 years to “realize” she didn’t understand her guilty plea and whether any judge could rationally find such testimony credible, especially when the State no longer has any records or witnesses to contradict the claim. The principle of laches (“You waited too long, Jack.”) should decide this case.
Texas Court of Appeals
Warren v. State – 1st COA
No. 01-10-00047-CR 09/08/11
Was the defendant intoxicated at the time he was driving?
Did the defendant give statements in response to interrogation?
Yes. Despite the interval between the collision and the arrival of the police, the hood and cab of the truck were warm, indicating that the accident occurred a relatively short time previously, the cab of the truck was warmer than the outside air, an open container of alcohol was in the cab of the truck, some of the drink had spilled onto the passenger’s seat, and the spill occurred at the time of the accident, meaning that the defendant had the alcoholic drink with him as he was driving.
No, and even if the questioning constituted interrogation, the defendant was not in custody when he gave the statements—including responses to questions inquiring about the medications he was taking and the number of drinks he had imbibed.
The court of appeals wastes a lot of time parsing whether the various questions amounted to interrogation. Who cares if he was never in custody? Courts have long ago decided that the process of investigating a DWI does not amount to custody, especially if the officer never communicates to the defendant that an arrest is taking place until the very end of the investigation.
Ex parte Elhaj – 2nd COA
No. 02-11-00054-CR 09/08/11 (not published)
Did the trial court misinform a misdemeanor defendant about the immigration consequences of his guilty plea?
No, neither federal nor state law requires such an admonishment be given to a misdemeanant and, in any case, he received a written admonishment, which he acknowledged he had both read and understood.
Yet another alien defendant realizes, shockingly, on the eve of deportation, that his guilty plea was involuntary. The trial court did an excellent job of rebutting the exaggerated and possibly false claims of the defendant. And because he acted as his own lawyer, the defendant can’t even claim ineffective assistance of counsel under Padilla.
Hernandez v. State – 6th COA
No. 06-10-00227-CR 09/07/11
Did the defendant open the door to admission of a prior conviction at guilt/innocence?
No, the witness’s testimony that the defendant was a “good guy” was insufficient to imply that the defendant had never engaged in criminal conduct.
While the prior felony conviction was not admissible because of any opened door, it was admissible in the form of a “did you know” question to test the accuracy of her opinion regarding the defendant’s good character. A good defense attorney should never be asking, “What kind of a person would you say he is?” Frankly, that is a door just asking to be kicked in.
In the Matter of O.A.A. – 14th COA
No. 14-10-00512-CV 09/13/11
Did the trial court improperly restrict the defendant’s cross-examination so as to exclude testimony about the victim’s sexual orientation?
No. While evidence of a person’s sexual orientation may be relevant to show bias when coupled with some logical connection to the person’s motive to testify in a certain manner, injecting such evidence here would risk derailing the trial’s focus and putting the victim on trial.
The defense attorney clearly intended to ask about the victim’s sexual orientation for no purpose other than to smear her character before the jury. Thank goodness the prosecutor was alert and the judge was sensitive to the mandate of the Rape Shield Law. As the prosecutor said, “Even if she doesn’t like guys, it doesn’t mean that a guy has a right to grab her breasts.”
Office of the Attorney General
Opinion for 97th District Attorney
Opinion No. GA-0884 : 09/07/11
1) May the county judge appoint counsel in criminal cases for non-indigent defendants?
2) May the county judge require payment of attorneys’ fees from a defendant under an order of community supervision in an amount greater than the contractual amount for attorneys’ fees provided in the county’s contract with a group of criminal defense attorneys?
1) Yes. A court may appoint counsel to a non-indigent person when the interests of justice so require.
2) Yes. A court may require the payment of attorneys’ fees according to the county’s schedule of fees established under CCP art. 26.05, regardless of the amount agreed to in a separate contract between the county and individual attorneys.