Fifth Circuit
Dorsey v. Stephens
No. 11-20682 7/15/13
Issue:
Was the applicant entitled to habeas relief because the admission of a videotape, with audio redacted, depicting his young son attempting to operate the murder weapon violated his 6th Amendment right to confront witnesses?
Holding:
No. Even if the videotape depicted “testimonial” actions by the child, the applicant failed to show he was prejudiced or a likelihood the outcome would have been different had the tape been excluded. He also failed to show ineffective assistance of counsel because his attorney objected to the tape on confrontation clause grounds at trial.
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Commentary:
This opinion is an interesting read. The defendant claimed that a toddler shot his estranged wife. The video showed that the child was unable to unholster the revolver or fire it in double-action mode. Because he received an out-of-time PDR, the defendant was able to challenge the admission of the video under Crawford even though that decision was not retroactive. Note that this opinion does not stand for the proposition that the video was properly admitted, but rather that the defendant was not entitled to habeas relief in federal court under AEDPA.
Texas Courts of Appeals
Ex parte Roberts
No. 04-12-00642-CR 7/17/13
Issue:
Was the trial court’s order modifying probation and requiring the defendant to pay $70,000 in restitution to a charitable corporation allowed under CCP art. 42.12, §11(b)?
Holding:
No. The trial court may not levy monetary payments as a condition of probation except for “fines, court costs, restitution to the victim, and other conditions related personally to the rehabilitation of the defendant or otherwise expressly authorized by law.” The charity was not the victim of the crime for which the defendant was convicted, nor was the payment related to the defendant’s rehabilitation.
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Commentary:
You may remember this case—the co-defendants were lawyers who were married. One of the defendants would engage in affairs with men, and her husband would then threaten to sue the men unless they paid money to a charity controlled by the defendants, which they converted to personal use. But the charity was not the victim in the indictments, and therefore the trial court could not order restitution to the charity.
State v. Coker
Nos. 05-12-00616-CR & 05-12-00617-CR 7/17/13
Issue:
Was an anonymous tip that the defendant was manufacturing methamphetamine in his home, coupled with evidence found during a search of the defendant’s trash, sufficient to establish probable cause for a warrant to search the home?
Holding:
Yes. Although the defendant argued that no case in Texas has upheld a warrant based on an anonymous tip and a single trash search, the court found that the totality of the circumstances in this case supported issuing the warrant. The anonymous tip, the discovery of meth and a wide variety of items used to manufacture meth in the defendant’s trash, as well as a letter addressed to the defendant found in the trash were sufficient to establish probable cause to search the home.
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Commentary:
There are trash searches and then there are trash searches. This trash search, conducted after a relatively weak confidential tip, showed fresh evidence conclusively showing a recently concluded cook. Thus, there was probable cause for the search warrant. I’m interested to see if the CCA looks at this case.
Veras v. State
No. 14-12-00587-CR 7/23/13
Issue:
Did the defendant preserve for appellate review the State’s multiple references during voir dire to an enhanced punishment range based on prior convictions?
Holding:
No. The defense made a motion for mistrial only at the end of the State’s voir dire. The motion was re-urged at the end of voir dire, but only after defense counsel had also explored the issue with the panel; thus, it was untimely. An off-the-record bench conference and the judge’s curative instructions given immediately after the first mention of prior convictions were insufficient to show that defense counsel made a timely objection.
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Ex parte Morales
No. 14-13-00106-CR 7/23/13
Issue:
Is PC §25.11 (Continuous Violence against the Family) facially unconstitutional because it violates the Texas constitutional requirement of jury unanimity?
Holding:
No. The defendant cannot show that the statute would operate unconstitutionally in his own case, much less in every case, as a facial challenge requires.
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