Fifth Circuit
United States v. Rodriguez
No. 11-41020 12/07/12
Issue:
Was the 4th Amendment violated by an officer conducting a post-arrest search of a defendant’s cell phone seized from his person, whereby the officer discovered photographs of narcotics?
Holding:
No, following United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007). Moreover, Arizona v. Gant, 556 U.S. 332 (2009) does not disturb the court’s earlier analysis.
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Commentary:
There is not as much analysis in this case as there is in Finley, but this is another good case to which you can refer. And let’s hope it is part of a growing body of caselaw that will allow officers to conduct similar searches of defendants’ cell phones.
Court of Criminal Appeals
Ex parte Gaither
No. AP-76,896 12/12/12
Issue:
Did the habeas applicant abuse the writ process by alleging counsel was inefficient and coerced him into accepting a plea bargain for a sentence to run consecutively with a 2006 sentence for burglary?
Holding:
Yes. The applicant intentionally provided false information in his writ application. Relief was denied, and as a result of the abuse, the applicant waived all other contentions he may have had in regard to the conviction that could have been brought in the application. The prosecutor’s office in the county where the applicant signed his inmate declaration may take such action as it deems appropriate.
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Commentary:
The court took great pains to point out the number of applications for writs of habeas corpus that it receives and the fact that wholly unmeritorious applications hamper the effectiveness of those that have merit. The court is clearly inviting the local district attorney to file a perjury and/or tampering prosecution based upon the false sworn inmate declaration, and the court noted that any sentence received for such a prosecution would be further stacked upon the defendant’s already stacked sentences. It would appear that the court is serious.
Stanley v. Bell County District Clerk
No. AP-76,929 12/12/12 (per curiam)
Issue:
Is mandamus relief appropriate when a district clerk refuses to accept an application for a writ of habeas corpus although the applicant has substantially complied with all instructions?
Holding:
Yes. Although a district clerk has the authority to return an application when an applicant is not using the correct form, the applicant in this case did use the correct form and substantially complied with all instructions. Habeas relief was conditionally granted.
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Dissent (Keller, P.J.):
The instructions on the application clearly prohibit the extra pages attached by the applicant. The district clerk has not violated a ministerial duty.
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Commentary:
This decision would be of little new prejudicial importance, except for the dissenting opinion joined by three other judges. Judge Keller’s dissent notes that the district clerk had the authority to reject the application because it was non-compliant with the rules. The bottom line, however, is that the district clerk should lean towards filing and forward a defendant’s application for a writ of habeas corpus.
Garcia v. State
No. PD-1846-11 12/12/12
Issue:
Has the common-law due diligence requirement with regard to prosecution of motions to revoke community supervision been superseded by CCP art. 42.12, §24?
Holding:
Yes. CCP art. 42.12, §24 completely supersedes the common-law defense. The statute makes due diligence an affirmative defense, shifting the burden of proof to the defendant, and applies only to revocations based on failure to report or failure to remain within a specified place.
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Concurrence (Johnson, J.):
“I do not disagree that the legislature has limited the availability of the State’s failure to exercise due diligence as a defense or that it has chosen to convert the common-law defense into an affirmative one. My concern is that those choices by the legislature are being used by the State to disrupt, by negligence or design, the orderly workings of the justice system.”
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Concurrence (Womack, J.):
“There is nothing disorderly in a defendant, who was convicted of two offenses, serving two sentences.”
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Commentary:
One would not think that this decision was necessary, but it was. The State filed a motion for rehearing in the court of appeals after that court had relied upon common law to find that the State had not met its burden on the motion to revoke. The defendant took unusual step of agreeing with the State that common law did not apply. Yet the court of appeals still denied the State’s motion for rehearing. This new decision helps to clarify that it is Article 42.12 that controls, not common law.
Texas Courts of Appeals
In re David P. Weeks
No. 10-12-00443-CR 12/12/12
Issue:
Is the State—seeking 1) an instruction on the law of the parties and 2) elimination of language creating an additional burden in a conspiracy instruction—entitled to mandamus relief during trial?
Holding:
No. Although the State has no other adequate remedy at law, the action for which relief is sought is 1) a discretionary, not a ministerial, act, and 2) not controlled by well-settled law. Nevertheless, the court dropped a footnote that it had a “strong opinion” that—for purposes of the conspiracy instruction—the trial court was improperly instructing the jury that the State must prove the defendant should have anticipated the specific manner and means he caused the victim’s death.
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Commentary:
This is really tough. Mandamus is not supposed to be available for discretionary judicial determinations. And the court of appeals seems to agree with the merits of the State’s position but feels powerless to help. That is the difficult thing about seeking mandamus relief: You can be right but still not be entitled to the extraordinary relief. The State’s remedy now would be to seek mandamus relief in the Court of Criminal Appeals. The State will have the added advantage of presenting the case to judges who are more well-versed in criminal law, but mandamus relief is still exceedingly difficult to obtain. On the merits, this judge seems to be clearly wrong in how he is viewing the law of parties in a capital murder case. Maybe the State needs to be given the right to appeal jury charge error.
State v. Flores
No. 04-11-00330-CR 12/05/12
Issue:
Did the trial court wrongly find an officer’s information at the time of a defendant’s arrest—that the defendant, who had a common name, had two prior DWI convictions—unreliable under Tex. Transp. Code §724.012(b)(3)(B)?
Holding:
Yes. “‘Reliable information’ is information that is trustworthy or worthy of belief. That does not mean that the information must be infallible.” The later discovery that the information obtained from NCIC/TCIC by a dispatcher and conveyed to an officer was wrong does not make it unreliable at the time the officer used it in the field.
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Commentary:
This is a wonderful decision, thorough and very well-reasoned. It rests upon authority from the Court of Criminal Appeals that places the burden upon the defendant to show a statutory violation, in this case, the unreliability of the information received from the officer. The defendant failed to satisfy that burden. Therefore, even though this was a State’s appeal, the trial court erred in granting the defendant’s motion to suppress on the basis of the unreliability of the information that the arresting officer had received. Great job by the State and great job by the court of appeals. If you prosecute DWI cases, you really need to read this decision.
Sanders v. State
No. 06-1200076-CR 12/06/12
Issue:
Did an exchange of presiding juror between the guilt/innocence and punishment stages require a mistrial?
Holding:
No. The trial court individually inquired of each juror whether the change had influenced the proceedings and each juror denied it had and also affirmed that they agreed on the verdict. Although the original foreperson should have signed the verdict form, a mistrial was not required.
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Commentary:
This is a very unusual fact situation, so it will probably not re-occur. The bottom line is that a defendant is not entitled to the drastic remedy of a mistrial, as long as it is made clear that change in forepersons did not affect the jury’s verdicts.
Ex parte Pritzkau
No. 09-12-00047-CR 12/05/12
Issue:
After a defendant killed two persons and obtained dismissal of a “Run Stop Sign” ticket upon completion of deferred adjudication and payment of a fine, did an indictment alleging two counts of criminally negligent homicide based on the same wreck violate double jeopardy?
Holding:
No. Under the “cognate-pleadings” analysis, the elements and facts of the two counts were not the functional equivalent of a traffic offense so the traffic offense was not the lesser-included offense of criminally negligent homicide. The State had not alleged all the elements of the underlying traffic offense in the two counts and Texas does not use the “cognate evidence” test.
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Commentary:
Years ago, under the now-overruled decision of Grady v. Corbin and other similar decisions from the Court of Criminal Appeals, this fact situation could have presented a double jeopardy problem. Not any longer. Still, it is probably a good idea that all prosecuting authorities within a jurisdiction get on the same page as to how a defendant is treated, so that a jeopardy problem like this does not even threaten. We always want to make sure that the defendant gets prosecuted for the greater offense, such as criminally negligent homicide, and not only the lesser offense, such as running a stop sign.
Texas Attorney General
Request from Kerr County Attorney
RQ-1102-GA 12/7/12
Issue:
Does a governmental entity’s issuance of a criminal trespass notice pursuant to PC §30.05 forbidding a person’s entry upon property open to the public and owned by the governmental entity violate the person’s constitutional rights? What criteria or conditions would the governmental entity need to satisfy so as to pass constitutional muster?
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Commentary:
I hope the Attorney General will provide some well-advised guidance in answering this question. We are familiar with cases in which law enforcement has provided criminal trespass warnings to prohibit suspects from returning to public places. And the caselaw bears this out. But it is not always well-defined, and much of it is not published. So it will be interesting to see how, and how far, the Attorney General responds.