Texas Court of Criminal Appeals
Ex Parte Thompson
No. PD-1371-13 9/17/14
Is §21.15(b)(1) of the improper photography statute, making it illegal to photograph persons in places other than a private dressing room or bathroom under certain circumstances, facially unconstitutional on 1st Amendment grounds?
Yes. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power. Read the opinion.
Just because a tool can be used to create a communication protected by the First Amendment should not inevitably mean that using the tool is communication. Taken to a reasonable conclusion, the reasoning in this case means anyone can take a camera to any government building and photograph security measures, the faces of plain clothes law enforcement officers, and the faces of jurors.
Turner v. State
No. PD-1354-13 9/17/14
Was the capital murder defendant, a juvenile at the time of his offense and sentenced to life without parole, entitled to an individual sentencing hearing with a punishment range between five and 99 years in light of Miller v. Alabama, 132 S.Ct. 2455 (2012)?
No. The defendant was entitled only to have his sentence reformed from life without parole to life with the possibility of parole. Read the opinion.
Overton v. State
No. WR-75,804-02 9/17/14
Was a defendant’s attorney ineffective when he decided not to present the deposition of a defense expert that rebutted most of the State’s evidence in a capital murder case because he felt it would be too difficult to edit the video around improper comments made by the prosecutor during the deposition?
Yes. A decision not to present helpful testimony because of difficulty in editing the video is not a strategic decision, and the deposition was clearly helpful to the defendant. Read the opinion.
Concurrence (Cochran, J.):
Defense counsel’s ineffective assistance was exacerbated by Brady violations committed by the State, but those issues were not decided by the court because the defendant’s ineffective assistance claims were sufficient to entitle her to habeas relief. Read the concurrence.
Dissent (Keller, P.J.):
There was a reasonable trial strategy in failing to show the deposition, because it could have opened the door to evidence that would have been profoundly damaging to the defense. Read the dissent.
Just because a defendant has several lawyers does not mean she is receiving effective representation. And a prosecutor cannot always fix the problem. The majority and concurrence read like a tabloid article.
Ex Parte Mable
No. WR-81,358-01 9/17/14
When tests confirmed the substances possessed by the defendant were not illegal substances, was he entitled to actual-innocence habeas relief after he pleaded guilty to possession?
He was entitled to relief, but not on an actual innocence theory. His plea was unknowing and involuntary because all parties involved believed he was in possession of illegal substances when that was not the case. Read the opinion.
Add this to your toolbox for fixing broken cases.
Bekendam v. State
No. PD-0452-13 9/17/14
When the State’s expert deviated from DPS protocol in determining that there was trace amount of cocaine in the defendant’s bloodstream when she crashed her car, was the resulting testimony admissible under Daubert/Kelly?
Yes. The expert’s methods, although not in compliance with DPS standards, was still a methodology accepted in the scientific community. Read the opinion.
DPS protocol does not allow labs to report amounts below a certain threshold, but that does not mean there was no cocaine in the defendant’s blood. Still, going there might subject an expert to damaging cross-examination.
Bedolla v. State
No. PD-0737-13 9/17/14
Was the defendant’s request of a jury instruction of “self-defense on the assault with a deadly weapon” charge specific enough to preserve error when the trial court denied the instruction, or did the defendant need to specify that he was actually seeking a self-defense with deadly force instruction to preserve error?
The request of an instruction of “self-defense on the assault with a deadly weapon” was specific enough to preserve error. To avoid forfeiture of a complaint on appeal, all a party has to do is let the trial judge know what he wants and why he thinks he is entitled to it and to do so clearly enough for the judge to understand the request at a time when the trial court is in a proper position to do something about it. Given the nature of the case, the only defense the defendant reasonably could have been asking for was a self-defense/deadly force instruction. Read the opinion.
This fellow claimed he ran over a prostitute in self-defense after a dispute of some kind resulted in her pulling a knife. Her version was somewhat different. Remember, though, that a defense should be submitted if it is supported by any evidence, be it weak, impeached, contradicted, or completely unbelievable. The State’s appellate lawyer put up a good fight on appeal arguing preservation, but the die was cast during the charging conference.
State v. Ramirez-Memije
No. PD–0378–13 9/17/14
Is a defendant entitled to an instruction on voluntary possession when he claimed he did not know the forbidden nature of the thing he possessed?
No. Knowledge of the character of the thing that is possessed is part of the mens rea and a defendant is not entitled to a separate instruction. Read the opinion.
Dissent (Price, J):
The majority’s opinion omits facts that are essential to the court of appeals’ ruling and creates too narrow a rule regarding instructions of the character of property possessed. Read the dissent.
So you’re at the airport, and a stranger asks, “Could you help me with my bag?” Just walk away. The defendant was convicted of identity theft for possessing a “card skimmer” that contained stolen card numbers. He requested a voluntariness instruction based on his claim that he did not know the numbers were in the machine. A divided Court says no. But don’t be fooled by this case. The State still must prove he had intent to defraud to obtain a conviction under the applicable statute. The opinion limits §6.01(b) to situations where items are planted on a defendant or their possession is fortuitous and fleeting—i.e., “Here, catch!”
Chiarini v. State
No. PD-1323-13 9/17/14
When the owner of a condominium unit carried a handgun in the common area of the condo complex, did he violate the “unlawful carrying weapons” statute, which generally prohibits carrying a handgun but does not prohibit carrying a handgun on “the person’s own premises?”
No. Property can be said to “belong” to one if that person has an ownership interest in it.
Property, especially real property, can easily have multiple owners, so it would be odd to interpret the adjective “own” with respect to property as referring to exclusive ownership. Read the opinion.
We will be hearing more about this case, especially with the Legislature convening in four months and with increased focus on the Second Amendment over the last several years. Applying this case could be difficult for officers because it is possible that not all condominiums are organized in the same legal fashion. And apartments, condominiums, and townhomes often appear much alike. So, when police see someone walking around with a Glock in a “Battlestar Galactica” rig, are they entitled to ask him to produce his condominium deed?
Wilson v. State
No. PD-0755-13 9/17/14
1) Does the phrase “repeated telephone communications” in the harassment statute require the communications to occur within a certain time frame in relation to one another?
2) Does a facially legitimate reason for the communication per se negate an element of the statute?
1) No. The communications’ periodic frequency and the temporal relationship of each communication are characteristics that may further describe the communications’ nature, but those characteristics are not necessary to the definition of “repeated.”
2) No. Benign content does not always prove benign intent or the objective harmlessness of its delivery.
Concurrence (Keller, P.J.):
The message the telephone harassment statute provides to the public is, “If you have any disagreements with your neighbor and you have called her on the telephone once, do not ever call her on the telephone again or you will be exposed to criminal liability.” Read the concurrence.
Concurrence (Cochran, J.):
The legislature intended “repeated” to mean sufficiently recurring or frequent enough to constitute a single episode. Read the concurrence.
Wow. Six voicemails from a crazy neighbor over a period of 10 months is sufficient to prove telephone harassment. These cases just got much harder to refuse. Arguably, calling your neighbor a prostitute on the phone seems more like protected speech than pedophiles photographing underage children without their consent.
Odelugo v. State
No. PD-1198-13 9/17/14
When the defendant alleged ineffective assistance due to a conflict of interest because the defendant claimed he had given trial counsel money to pay restitution that was instead stolen by trial counsel, and trial counsel invoked the 5th Amendment at his hearing, were the defendant’s uncontroverted allegations sufficient to allow the appellate court to overturn the trial court’s denial of the motion for new trial?
No. The trial court would have been correct to rule either way on the motion, but the appellate court could not disturb that ruling based on an inference of guilt derived from trial counsel’s invocation of the 5th Amendment. Read the opinion.
Concurrence (Keller, P.J.):
Because trial counsel pleaded the 5th Amendment and the record is silent as to what really happened in this case, the State could unlock the truth by granting trial counsel immunity in the criminal case that would negate any 5th Amendment harbor, or the State could launch a criminal investigation and any evidence showing trial counsel really did steal the money in question would be exculpatory to the defendant and mandatorily disclosed. Read the concurrence.
Dissent (Meyers, J.):
The checks, the missing money, the defendant’s testimony, and trial counsel’s invocation of his 5th Amendment right all made it unreasonable for the court to find that the defendant had not shown conflict of interest by a preponderance of the evidence and deny his motion for new trial. Read the dissent.
The takeaway here is that a trial court does not have to believe lurid facts, even when they are unchallenged by the State during a motion for new trial. Fee disputes are nasty things, especially when broached in open court.