September 17, 2010

Court of Criminal Appeals

Spence v. State

09/15/10 : Cite No. PD-1458-09


What does the Transportation Code Sec. 502.404(a) require when it states the license plate must be displayed on the "front" of a vehicle?


Under the plain language of that statute, a license plate must be displayed at the foremost part or beginning of a vehicle, most commonly the front bumper. Read Opinion.


Judge Meyers states that the statute is poorly written and front means forward facing, not the front bumper. Read Dissent.


Only lawyers and drug dealers would need so many words to decide whether "front" means placing a license plate on the bumper rather than on the dashboard. As usual, Judge Cochran falls back on her strong school teacher approach to grammar and common sense. She also makes an excellent point that it would be a big mess if everyone put the license plate on the dashboard, where it would be quite difficult to find and read, especially with tinted windows.

Texas Courts of Appeals

Adair v. State – 1st COA

09/10/10 : Cite No. 01-08-00183-CR


Was the trial court’s denial of the defendant’s Batson challenge clearly erroneous in light of the State’s disproportionate use of strikes against a minority group and a comparative analysis of similarly situated non-minorities?


No. Even though the State used a statistically disproportionate number of strikes against a minority group-7 out of 10-a comparative analysis of the relevant jury cards revealed no racial discrimination in striking the venire members. Read Opinion.


The prosecutor provided detailed explanations for the strikes. At trial, the defense offered no contrary evidence and didn’t even try to cross-examine the prosecutor. Of course, this defendant also took offense at being called a "dope dealer" during argument. That’s pretty rich given record of a large amount of ecstasy and cash, a prior conviction for drug dealing and a drug ledger.

Woolverton v. State – 6th COA

09/14/10 : Cite No. 06-09-00221-CR

Issue 1:

Did the trial court improperly deny a motion to suppress where a co-tenant gave written consent to search but it was disputed whether the other co-tenant/defendant refused consent?

Holding 1:

No. The credibility of the co-tenant/defendant was for the trial court to determine and the facts are distinguishable from Georgia v. Randolph, 547 U.S. 103 (2006), where it was uncontested that the co-tenant/defendant refused consent. Read Opinion.

Issue 2:

Did the trial court improperly admit an unauthenticated drug ledger over a hearsay objection?

Holding 2:

No. The ledger was not admitted to prove the truth of the matters asserted therein, but as a "tool of the trade" and, thus, circumstantial evidence of drug trafficking.Read Opinion.


The State won on the verbal consent because of the conflict in the evidence, but that was a risky approach. A written or recorded consent or a search warrant will reduce the risk of lost evidence. Good argument on the drug ledger; the words don’t matter, just the construction, which looks like a … drug ledger.

Rivera v. State – 3rd COA (Unpublished)

09/15/10 : Cite No. 03-09-00101-CR


Did the trial court err in excluding evidence of, and denying cross-examination of witnesses on, the victim’s past sexual conduct?


No, the evidence and examination did not fall within any of the permitted reasons under Rule of Evidence 412. Read Opinion.


An extraordinary example of why Texas (and the rest of the country) has a rape shield law. Otherwise, this particularly nasty rapist, who was connected to the crime by DNA, could question the victim about her sexual activity with a boyfriend for no better reason than to dirty up her reputation. Even though this is not a published opinion, read it carefully in case you run into the same arguments. Well written and explained.

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