September 25, 2009

Texas Court of Criminal Appeals

Hall v. State

09/16/09 : Cite No. NO. PD-1304-08 : Scientific evidence at suppression hearings.


Does Rule 702, which governs the admissibility of expert testimony at trial, apply to suppression hearings?



No. However, there was no evidence that the LIDAR technology supplied probable cause for the stop. Read Opinion.



The opinion clarifies that there was absolutely no showing of reliability. No matter what standard is applied the State failed to meet it. Read Concurrence.



According to Wikipedia, LIDAR (Light Detection and Ranging) is an optical remote sensing technology that measures properties of scattered light to find range and/or other information of a distant target. And, if the officer in this case had done nothing more than reference Wikipedia to explain to the judge why this new-fangled form of speed detection was reliable, the State might have won the case on appeal. Keep this case in mind any time you are presenting a novel scientific technique to establish probable cause. You don’t need a big, full-blown Kelly hearing, but you do need to lay down something in the record to convince the judge that the basis for believing a crime had been committed was reliable. The concurring opinion makes a good point that, otherwise, the officer has done nothing more than say, "Trust me."


Skinner v. State

09/23/09 : Cite No. AP-75,812 : DNA Testing requirements



Is there a requirement for DNA testing of items in evidence when the defense attorney had a reasonable reason for not requesting the testing?



No. There is no requirement for testing when defense counsel has already declined to request testing as a matter of reasonable trial strategy.Read Opinion.



This is a very important case for those litigating post-conviction DNA tests. The defense never seeks testing of everything before trial because some of the testing will kill the defense ability to make an argument that reasonable doubt exists. And, now that most of the cases tried before DNA testing was available have been litigated, the most common type of case will involve circumstances where the defendant could have requested the testing at trial but didn’t. So, before trial begins, state on the record that the defense has not requested additional testing and has made the strategic decision to go with the testing already done. For guilty pleas, you might want to include an express waiver of the right to any additional testing. (Note: there was a bill last session that would have eliminated this standard, allowing the defense to request post-conviction DNA testing even if deliberately bypassed at trial. Fortunately, it failed in the chubfest. Otherwise, 150,000 inmates would be requesting DNA testing.

State v. Moreno

09/23/09 Cite No. PD-0821-08 : Directed Verdict



Can the court’s directed verdict be considered a mistrial rather than an acquittal?



No. The defendant requested a directed verdict and the court granted that motion. No motion for a mistrial was presented nor was one ruled on. Read Opinion.



The dissent would hold that the trial court made two errors. The first "egregious error" was its refusal to allow the State’s key witness to testify. The trial court’s second "egregious error" was its consideration of Moreno’s motion for directed verdict before the State rested its case-in-chief. Read Dissent.



There is no nice way to say this. The trial judge (214th District Court Judge Jose Longoria) behaved in a strikingly unprofessional manner by impatiently entering a premature (and utterly illegal) order of acquittal before the State rested its case. (Dissenting CCA Judge Holcomb called this an "egregious error".) Nonetheless, the CCA could not overturn that improper order because Texas law does not permit an appeal by the State of an acquittal. The CCA also found itself unable to consider the utter illegality of the acquittal order because that issue was not raised below by the State. (Note: During a re-election campaign, Longoria’s opponent argued that Longoria was impatient and rude, ranking dead last in the assessment of sitting judges by local lawyers. Longoria, promising to reduce delays in court cases, originally won the bench in 2000 after beating Nueces County First Assistant Mark Skurka in a Democratic runoff.)


Texas Court Of Appeals

Chism v. State – 6th COA

09/16/09 Cite No. 06-09-00045-CR : Transients and pat-down searches



Is a suspect’s possible status as a transient enough to support a belief that he is an armed and dangerous narcotics abuser?



No. The officer needs further specific facts to justify a concern for safety and a pat-down search. Read Opinion.



"Every single time I make contact with a suspect[,] I check for weapons for officer safety." That’s not the standard for a Terry frisk, now, is it? The absence of specific, articulable facts arising from the interaction with Chism in this case is what leads to the suppresion.