Case of the Week Archive

Morris v. State - CCA

The "grooming" of children for sexual molestation is a legitimate subject of expert testimony. The legitimacy of grooming as a subject of expert testimony is established sufficiently to be judicially noticed. Grooming is a subject matter that falls in the study of the behavior of offenders who sexually victimize children, a legitimate field of expertise. Although social awareness of child sexual abuse has increased, expert testimony on grooming is still useful to the jury because not all jurors are aware of the concept or have the depth of understanding to resolve the issues before them.


Morris v. State
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Randolph v. State - CCA

After the defendant testified to an alibi defense during the guilt/innocence phase, the prosecutor stated in closing argument during the punishment phase that the defendant "has not taken responsibility for this crime." This statement was not an improper comment on the defendant's failure to testify at punishment. By testifying that he was not the person who committed the aggravated robbery, the defendant expressly denied responsibility for the crime. A prosecutor can comment on a defendant's failure to take responsibility during closing argument at either the guilt or punishment phase when the prosecutor's remarks are supported by evidence in the record. 

Randolph v. State
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Desormeaux v. State

After an acquittal for capital murder, a defendant's prosecution for injury to a child by failing to obtain medical care is not barred by the doctrine of collateral estoppel. The jury in the first trial decided whether the defendant intentionally or knowingly committed an act that caused the child's death. The defendant's failure to seek medical treatment for the child was not necessarily decided. 

Desormeaux v. State
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Crider v. State - CCA

After the defendant was arrested for DWI, a search warrant for blood was issued without probable cause because the affidavit did not contain the time the defendant was stopped or arrested. The affidavit in this case stated the defendant showed signs of intoxication on June 6, but the search warrant was issued June 7, leaving the possibility of a 25 hour gap between the time the officer first stopped the defendant and the time he obtained a search warrant for blood. Distinguishing this case from State v. Jordan, there were no facts within the four corners of the affidavit to establish probable cause that evidence of intoxication would be found in appellant's blood at the time the search warrant was issued.

Crider v. State
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Harris v. State - CCA

The defendant's right against double jeopardy was violated when he was convicted of three counts of indecency with a child by exposure that resulted from a single act of exposure. The clear language of PC §21.11(a)(2)(A) (indecency with a child by exposure) indicates that the exposure, not the number of children present, constitutes the unit of prosecution. The child victim's name is not a necessary element of proof, and the defendant committed only one offense when he exposed himself to three children. 

Harris v. State
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Rodriguez-Flores v. State – 3rd COA

The trial court wrongly admitted the defendant's incriminating statements to a pretrial services officer employed to advise on pretrial bond. Although the witness was not a typical agent of the state conducting a custodial interrogation, the witness's testimony about the defendant's unwarned statements changed her role from one of reporting to the court to a state agent collecting incriminating evidence for prosecution. Nevertheless, the error was harmless.

Rodriguez-Flores v. State
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Moulton v. State - 6th COA

A jury charge that allowed the jury to convict for intentionally or knowingly causing death by asphyxiation by manner and means unknown to the grand jury was erroneous because the evidence at trial was insufficient to establish that the manner and means was unknown. Following Sanchez v. State, No. PD-0961, 2010 Tex. Crim. App. LEXIS 1242 (Tex. Crim. App. Oct. 6, 2010) (reh'g pending), the instruction should not have been included in the charge. After all of the evidence was in, there was a known choice of several options for manner and means. Thus, these options should have been submitted to the jury because the manner and means was not entirely unknown.

Moulton v. State
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Sweed v. State - CCA

In an aggravated robbery case, the trial court failed to submit a lesser-included jury instruction for theft. The evidence presented was sufficient to raise a fact question concerning whether the defendant's use of the knife occurred in the course of or in immediate flight from the theft. The requested charge should have been submitted to the jury to determine whether theft was a valid and rational alternative to robbery. The case is remanded to the court of appeals for harm analysis.

Sweed v. State
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Gutierrez v. State – 6th COA

Upon revocation of community supervision, the violated term—that the defendant leave the U.S.—was void and the revocation could not stand. Immigration matters are within the exclusive jurisdiction of the federal government therefore a condition of state community supervision requiring a defendant to leave the country violates the Supremacy Clause of the U.S. Constitution.

Gutierrez v. State
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Rushing v. State - CCA

A prior sex-offense conviction under the Uniform Code of Military Justice qualifies as a "conviction under the laws of another state" for enhancement purposes under PC §12.42(c)(2)(b)(v). Gov't Code §311.005(7) defines "state" to include any area subject to the legislative authority of the United States. A UCMJ conviction is deemed to have taken place on United States soil and the defendant's subsequent conviction was properly enhanced under PC §12.42(c)(2)(b)(v).

Rushing v. State
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Pena v. State - CCA

Brady applies when the State unintentionally fails to disclose the audio portion of a videotape containing a request the defendant made to police to test the controlled substance. The duty to disclose existed because the audio recording was known to the police but unknown to the defendant, it supported his defense, and the State failed to disclose the audio portion of the videotape.

Pena v. State
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Coronado v. State - CCA

The use of written interrogatories in lieu of live testimony and cross-examination, as set out in CCP art. 38.071, §2, does not satisfy the Sixth Amendment rights of confrontation and cross-examination.  A list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is not a constitutional substitute for live cross-examination and confrontation.
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Tollefson v. State - 4th COA

Expert opinion testimony based on testing performed by a non-testifying witness was admissible. Not only was the expert present when the non-testifying witness test-fired the weapon, but she was also the one who analyzed the findings and prepared the report on those findings. The non-testifying witness merely fired the weapon at the expert's request.

Tollefson v. State
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Chavis v. State - 8th COA

An officer did not violate state wiretapping law (PC §16.02 and CCP art. 18.20) by browsing a suspect's computer files shared on a "peer to peer" network.  By applying an interpretation of similar federal law, the court found the shared files were not "in flight" at the time they were viewed.

Chavis v. State
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United States v. Hernandez-- Fifth Circuit

A driver had standing to challenge the use of the GPS device placed on his vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him. Also, the DEA agents' use of the surreptitious GPS device to track Hernandez was not a search within the meaning of the Fourth Amendment. Suppression of the evidence was not required. The court left for another day whether a GPS device that continuously and precisely monitors location would constitute a search.

United States v. Hernandez.   Read Opinion.

State v. Jordan

A blood search warrant was valid when the affidavit contains the date but not the time of the observations that led the officer to conclude the defendant had committed a DWI. All the observations contained in the affidavit were the elements of the offense, so it was a reasonable inference that the observations occurred on the same date that the offense was alleged to have occurred. The magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify the time of the stop. The defendant also argued that the blood draw would simply be cumulative evidence because police had already determined he had consumed alcohol. This argument was also rejected.

State v. Jordan No. PD-1156-10

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Bullcoming v. New Mexico, [5-4]

The Confrontation Clause does not permit prosecutors to introduce a forensic laboratory report—a BAC report—containing a testimonial certification through in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The accused has the right to confront the analyst actually making the certification, unless the analyst is unavailable and, pretrial, the accused had the right to cross-examine the analyst. Here, the defense was surprised by the analyst's unexplained unavailability at trial and had not had the opportunity to cross-examine him on the testimonial evidence pretrial.

Bullcoming v. New Mexico, [5-4]  No. 09-10876

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J.D.B. v. North Carolina (5-4)

The age of a child subject to police questioning is relevant to the custody analysis of Miranda. "So long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test."

J.D.B. v. North Carolina (5-4) No. 09-11121

Commentary on this case and other cases are always available on our weekly case summaries.  Check them out here.

Archie v. State

The State's rhetorical questions during final argument were improper comments on the defendant's failure to testify. However, the trial court did not abuse its discretion in denying the defendant's motion for mistrial.

Archie v. State No. PD-0189-10

Commentary on this case and other cases are always available on our weekly case summaries.  Check them out here.

Rodriguez v. State

Evidence required suppression under Code of Criminal Procedure art. 38.23 because individuals cooperating with the police trespassed by entering a gamb