Case of the Week Archive

Fernandez v. State - 4th COA

The trial court insufficiently admonished the defendant of his right to
counsel and of the dangers of representing himself during his trial for evading
arrest. The court repeatedly and incorrectly used the term "pro bono" instead of
"court appointed." The defendant stated to the court that he believed a "free"
attorney would not zealously defend him because that attorney would not be paid
and the court made no effort to clear up that misconception in the defendant's
mind. There was no inquiry into the defendant's indigency when he informed the
court that he could not afford to hire an attorney. Because he was not correctly
admonished on his right to appointed counsel, his waiver of that right was
invalid. Fernandez v. State - 04-07-00461-CR.

Baker v. State - 14th COA

The defendant's sentence was void and illegal where the jury sentenced him to
three years more than the state jail felony punishment range allows and the
written judgment corrected the jury's miscalculation. The charge to the jury on punishment informed them that the offense was
a state jail felony, punishable by between 180 days and two years in a state
jail facility plus a fine of up to $10,000. The jury then assessed five years
and a $10,000 fine but recommended that the defendant be placed on community
supervision and the fine probated, which differed from the written judgment
listing the sentence as two years in a state jail facility plus a $10,000 fine,
with community supervision and probation for five years. Baker v. State - 14-08-00119-CR thru 00120-CR.

Schoor v. State - 7th COA

The trial court was not required to conduct an informal inquiry into the
defendant's competency when a doctor testified that while the defendant's verbal
ability limited him to the mentally retarded range, he was not otherwise
mentally retarded. The trial court made sufficient inquiry by observing the defendant
throughout the punishment hearing and by speaking with him about the punishment
range, sexual offender registration requirements, and his right against
self-incrimination. Schoor v. State - 07-08-0170-CR.

Hall v. State - 3rd COA

In the defendant's convictions for tampering with physical evidence and
hindering apprehension in connection with a murder, the State impermissibly
withheld evidence of a punishment-phase witness's inability to identify the
defendant in a photo line-up and that prosecutors had thereafter prepped the
witness before trial by showing him a single photo of the defendant. The potential impeachment evidence against the taxi driver who testified
to the defendant's comments and demeanor was material. Had this evidence been
disclosed and used effectively, it would have placed the State's case for
punishment in a different light, giving rise to a potentially different outcome.
Hall v. State - 03-07-00626 and 00627 CR


 

Davis v. State

After the defendant's conviction for burglary of a habitation the
trial court should not have granted him a new trial based on his claim of ineffective
assistance of counsel for his attorney's failure to request an instruction on
accomplice-witness testimony. The question of whether there was a reasonable likelihood that, except
for the defense attorney's failure to request the instruction, the result of the
guilt stage would have been different did not turn on whether the non-accomplice
evidence was enough to tie the defendant to the crime or even whether such
evidence alone would support a guilty verdict. The defendant was seen hanging
around the victim's apartment complex with the accomplice near the time of the
crime. He walked around and acted suspiciously near the victim's apartment for
several hours shortly before the crime. Shortly after and not far from the
victim's apartment, he sold a video-game player that matched the description of
that taken during the burglary. Davis v. State - PD-0613-08.

Brown v. State - 2nd COA

The trial court was correct when it denied the defendant's request for a special
jury instruction on involuntary intoxication during his trial for DWI. The defendant's mental state was not an element of the offense. The
Legislature has not included a culpable mental state in its definition of DWI,
and proof of a culpable mental state is expressly not required for conviction of
an offense dealing with intoxication and for alcoholic beverage offenses. Other
Texas courts have held that the offense of DWI does not require a culpable
mental state and have further held that involuntary intoxication is not a
defense to DWI. Brown v. State - 2-08-041-CR.

Thierry v. State - 1st COA

In her trial for fraudulent use or possession of identifying information, the defendant did not preserve any error regarding the prosecutor's comments about the victim's cancer during opening statement and closing argument. The trial court never ruled on the defendant's objection, and the defendant did not press the court for a ruling nor did she object to the lack of a ruling. The court even gave the jury an instruction that addressed the defendant's stated concern, although it was not an instruction to disregard. Thierry v. State - 01-07-00712-CR.

Oursbourn v. State - 1st COA

In the defendant's trial for aggravated robbery the trial court should have
given the jury a Code of Criminal Procedure art.38.22(6) general voluntariness
instruction relating to the defendant's inculpatory videotaped statement. The victims each identified other people as the assailant in both the
photo lineup and the live lineup, and another witness identified someone else
when she viewed a photo lineup. At least six hours passed between the robbery
and when the stolen car was found at the defendant's girlfriend's apartment
complex. Other than one in-court identification, the only direct evidence of the
defendant's guilt was his videotaped confession. Omission of the voluntariness
instruction seriously affected a defensive theory and the basis of the case. Oursbourne v. State - 01-05-00141-CR.

Paulea v. State - 14th COA

In the defendant's trial for possession of a controlled substance, the
trial court improperly denied his motion to suppress evidence seized during an
unlawful arrest. Because the State did not produce the warrants, which were the stated
basis for the defendant's arrest, and because the record did not contain
adequate grounds to conclude that probable cause existed for the arrest, the
defendant's motion to suppress should have been granted. Paulea v. State - 14-07-01044-CR

De La Paz v. State - 11th COA

In the defendant's trial for aggravated sexual assault of a child, the
admission of notes taken by a social worker and a nurse who interviewed the
child did not violate the defendant's confrontation clause rights. The notes were not testimonial statements and their admission did not
contribute to the defendant's conviction. The strength of other physical medical
evidence, the defendant's behavior on the day of the assault, and his
questionable credibility were sufficient so that the notes alone did not move
the jury to convict. De La Paz v. State - 11-06-00146-CR.

Montejo v. Louisiana - U.S. Supreme Court

Law enforcement officers are free to approach a defendant for custodial interrogation who has appeared before a magistrate at the jail, so long as they first read the suspect his Miranda rights and obtain a waiver of counsel as is done under standard Miranda rules. With this decision, overruling Michigan v. Jackson (prohibiting interrogation of a defendant who invoked his right to counsel at arraignment), the Supreme Court allows for a bypass of the issue created in Rothgery (where magistration created protection under the Sixth Amendment with regard to right to counsel). The Court said, "What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation - not what happened at any preliminary hearing." Montejo v. Louisiana

 

Billodeau v. State

The trial court improperly denied the defendant the chance to cross-examine
the complainant about threats the complainant made against others - including
the threat that the complainant would make an accusation of molestation - thus
preventing the defendant from presenting admissible rebuttal testimony to show a
possible motive for accusing the defendant of sexual molestation. There was testimony that the complainant had suffered from mental
illness since the age of 4 and that his mental illness contributed to his acts
of rage. The complainant testified that he had become angry when the defendant
took back a gift he had given him, and that the very next day, the complainant
accused the defendant of molesting him. The record showed that the complainant
had threatened to accuse others of molestation. The jury could have found
testimony from those threatened by the complainant helpful. Billodeau v. State -PD-0969-07.

Stokes v. State

A docket-sheet entry without a signed order was sufficient to show
"presentment" of a motion for new trial filed the same day the defendant claims
to have presented it to the trial court. A docket-sheet entry entitled "Motion New Trial presented to court no
ruling per judge," was enough to show that the motion was presented to the trial
court as required by Rule of Appellate Procedure 21.6. The rule does not expressly
state that a judge's signature is necessary to satisfy the requirement. Stokes v. State - PD-0417-06.

Pollard v. State

In the defendant's trial for retaliation by threat, the victim's
knowledge of the defendant's violent past was not relevant. The victim did not testify that his knowledge that the defendant had
actually killed a person contributed to his fear of the defendant or to his
recantation of his initial statement implicating the defendant in a sexual
assault. By itself, evidence that the defendant had killed a person did not make
any fact of consequence more or less probable in the prosecution of retaliation
by threat. Pollard v. State - PD-0363-08.

Chandler v. State - 6th COA

In the defendant's trial for assault on a public servant, the State
did not commit a Brady violation by failing to preserve a video of the incident
alleged to have occurred. The investigating officer explained that the video system was not
equipped to download or save the recording to another disk but was maintained
for 60 days and then discarded. He testified that the recording did not clearly
show the defendant and that it was not useful in the investigation. Additional
evidence showed that all surveillance videos were routinely discarded in 60
days. There is nothing in the record to show bad faith on the part of the State,
either by extension through the acts of the sheriff's office or the prosecutor.
Chandler v. State - 06-08-00062-CR.

Guevara v. State - 4th COA

In the defendant's murder trial, the trial court properly admitted
out-of-court statements made by the defendant's girlfriend to her friend asking
the friend to lie and say she had borrowed the gun that was the murder weapon,
intending to create an alibi for the girlfriend and the defendant. The girlfriend's statements were admissible under the co-conspirator
exception to the hearsay rule [T.R.Evid. 801(e)(2)(E)] to advance an ongoing conspiracy to
hinder the defendant's apprehension rather than statements that were made after
the underlying conspiracy to commit murder had been carried out. Guevara v. State - 04-07-00027-CR.

Layton v. State

In the defendant's DWI trial, evidence that he had been prescribed Xanax
and Valium and had taken one of the medications earlier in the day was not relevant to
whether he was intoxicated at the time of his arrest. Without expert testimony to provide the foundation required to admit
scientific evidence, the testimony regarding the defendant's use of prescription
medications was not relevant. No evidence of the dosage he took, the time he
took it or the half-life of the medication was presented. There was no testimony
indicating that the officer making the DWI stop had any medical knowledge about
the uses of Xanax and Valium or about the effect of combining the medications
with alcohol. Layton v. State -PD 0408-07.

Stevens v. State - 14th COA

The trial court failed to admonish the defendant about the
possible deportation consequences of a guilty plea. Normally, under Code of Criminal Procedure art. 26.13, if the record shows
that the defendant is a United States citizen, the trial court's failure to
admonish him regarding the immigration consequences of his guilty plea is
harmless error. If the record shows that the defendant was not a citizen at the
time of his guilty plea, then the failure to admonish is harmful. If the record
is silent as to his citizenship or if the record is insufficient to determine
his citizenship, the trial court's error in failing to give him the immigration
admonition is harmful. This record is silent on the matter and it must be
inferred that he did not know the potential repercussions of his plea. Stevens v. State - 14-07-00291-CR.

Taylor v. State - 1st COA

In the defendant's trial for three counts of aggravated sexual assault of a
child, the trial court failed to limit the jury's consideration of
the defendant's actions before he turned 17 and violated Penal Code §8.07(b) (Age Affecting Criminal Responsibility) by
authorizing the jury to convict him based on acts committed before his 17th
birthday. The defendant was deprived of his right to be prosecuted for and
convicted of only those offenses for which he was criminally responsible under
Texas law. Taylor v. State - 01-07-00801-CR.

Rivas v. State

In the defendant's trial for multiple counts of child sexual assault the
trial court incorrectly overruled his objection that testimony of the SANE who
examined the child complainant constituted bolstering of that child's later
testimony. Reference to a rule of evidence might save an objection that may
otherwise be obscure, but an objection is not defective merely because it does
not identify a particular rule. The issues were discussed by both attorneys
during the trial and the judge made rulings several times. No aspect of the
child's declarations had been impeached prior to the State's questions, and her
declarations in the SANE examination were consistent with her prior testimony,
if not more detailed and complete. Rivas v. State - PD-1113-07.

State v. Gobert

The defendant's Fifth Amendment right to counsel was violated when during a
custodial interrogation and immediately after he was read his Miranda
rights, he made a statement that referenced his right to a lawyer and the
interrogation continued. While the defendant's request for counsel was not straightforward, that
does not mean that he did not adequately communicate his desire to deal with the
police detectives only through, or at least in the presence of, a lawyer. Under
the circumstances, his statement that he did not want to "give up any right"
without a lawyer may safely be assumed to be in response to the right to counsel
mentioned by the officers. State v. Gobert - PD-0202-08.

Sanchez v. State

In the defendant's conviction for the Class B offense of possession of less
than 28 grams of a Penalty Group 4 controlled substance (codeine), the
State's evidence that the defendant possessed the codeine mixture was sufficient
when no numerical concentration was assigned by the testifying chemist to the
nonnarcotic ingredient (promethazine) in the mixture. A jury could have reasonably inferred that the promethazine was present
in sufficient quantities to give the compound valuable medicinal qualities apart
from the codeine because the syrup contained both. The chemist testified that
promethazine possessed valuable medicinal qualities apart from the codeine as an
anti-inflammatory and a cough suppressant, and promethazine is often prescribed
by physicians. Sanchez v. State - PD-0094-08.

Wasylina v. State

The evidence was legally sufficient to support the defendant's conviction for
criminally negligent homicide where the evidence showed only that he acted
recklessly. Proving the greater culpable mental state of recklessness necessarily
proves the lesser culpable mental state of criminal negligence. The submission
of a lesser-included offense does not violate the defendant's constitutional
due-process right to notice of the crime of which he is accused. Wasylina v. State - PD-0519-07

Ex parte Hernandez

The defendant was not entitled to credit on his robbery sentence for time spent
on parole for unauthorized use of a motor vehicle. Under Government Code §508.283(c) (sanctions) a defendant released
on parole or mandatory supervision is not entitled to credit for "street time"
on his original sentence if, after his release but before his revocation, he
began serving a sentence on a new conviction for an offense described by Government Code §508.149(a) (inmates eligible for mandatory
supervision). Ex parte Hernandez - AP-75,933.

Hubert v. State - 13th COA

The trial court improperly denied the defendant's motion to suppress when it found that the alleged co-owner of the home had actual authority to consent to
searching the defendant's bedroom. Testimony showed that the defendant co-owned the home with his
grandfather, the defendant's bedroom door was always closed, and the grandfather
did not sleep in that bedroom nor have a reason to go into it. The grandfather's
apparent authority over his grandson's bedroom was ambiguous at best, and a
reasonable person in the officer's place would have inquired further. Therefore,
the State was unable to present a reasonable basis on which the evidence was
obtained. Hubert v. State - 13-08-00093-CR.

Byrd v. State - 4th COA

In a retail theft prosecution, the State's evidence of ownership does not have to include
proof of the name of an owner where it has already proven the existence of an
owner. Presenting evidence that a store is the owner of stolen merchandise is
sufficient. The State is not required to allege and prove an individual, such as
a store manager, as the "owner" because the property owner's name is not a
substantive element of the theft statute. Byrd v. State -04-08-00226-CR.

Birkholz v. State - 4th COA

The trial court incorrectly denied the defendant's motion to reopen after
the defendant claimed surprise over State-introduced photographic evidence which
caused the defense to re-examine the defendant's place as driver or passenger in
an intoxication manslaughter trial. The defendant made the motion to reopen in a timely fashion and had the
evidence in hand at the time the motion was made. The trial court was clearly
informed that the defendant's evidence would show an increased likelihood that
the jury would accept his argument that he was not the driver. Birkholz v. State - 04-06-00251-CR thru 04-06-00253-CR.

Bracken v. State - 2nd COA

The trial court correctly denied the defendant's pre-trial motion to
suppress, which alleged a lack of reasonable suspicion to initiate the traffic stop
that led to the defendant's arrest for DWI. The arresting officer's testimony included his observations, under the
requirements of Transportation Code §545.051 (Driving on Right Side of
Roadway), that the defendant had crossed over the center line by half a vehicle
width, crossed the fog line, and weaved back and forth within his lane over the
distance of several miles. The defendant did not meet any exclusions under
§545.051. Bracken v. State - 2-06-361-CR.

State v. Labonte - 14th COA

In the defendant's conviction for capital murder there was sufficient
evidence to find that favorable post-conviction DNA testing results would have
prevented the defendant's conviction. None of the State's evidence physically placed the defendant at the
scene of the crime. The trial jury heard testimony that a stain in the back of
the defendant's truck might not have been blood and that there was no reason for
blood to have been in the back of the truck. Hairs found inside the truck did
not match the two victims and hair from the scene did not match the defendant. State v. Labonte - 14-08-00340-CR.

Monge v. State - 14th COA

The taint of the defendant's illegal warrantless arrest for murder was attenuated by his own subsequent confession. The defendant's discovery that his accomplice had confessed and had implicated him as the shooter and another witness's corroboration of this account were legitimate intervening events sufficient to break the causal connection between the defendant's illegal arrest and his ultimate confession. Monge v. State - 14-07-00468-CR.

Laster v. State

The evidence was legally sufficient to support the defendant's conviction for attempted aggravated kidnapping when he grabbed a child walking along the sidewalk and then let her go within seconds. The jury could have reasonably inferred from the defendant's actions that he intended to inflict bodily injury on the child when he grabbed her around the waist and pulled her toward him as she walked with her brother. The jury found that he had formed the intent to take her and then abandoned his plan only when he heard a car horn honk and realized that others had seen his action. Laster v. State - PD-1276-07.

 

Linton v. State

The trial court did provide the best interpretive services for a hearing-impaired defendant, including a deaf-relay interpreter, to ensure the defendant's full understanding of the trial proceedings. The record shows that the defendant responded coherently and appropriately to questions (sometimes verbally even before the sign-language translation), was a high school graduate and a current junior college student, could understand enough English to obtain a driver's license and could communicate adequately enough with her accident victim to exchange insurance information. Both the pre-trial and trial judges stopped the proceedings to ask the defendant if she understood the proceedings, provided additional resources and services upon her request, and offered her additional time to confer with her attorney and her interpreters. Linton v. State - PD-0413-08.

Amador v. State

The trial court did correctly deny the defendant's motion to suppress where the DWI video showed no standardized field sobriety tests. Despite the lack of evidence of the defendant's performance on the field sobriety tests, the totality of the circumstances showed that the defendant's warrantless arrest was reasonable and supported by probable cause. The officer saw the defendant operate a motor vehicle on a public roadway in excess of the posted speed limit, the defendant could not find his license in his wallet and then was unusually slow in handing it to the officer, the defendant was slow in verbally responding, and the officer smelled the odor of alcohol on the defendant when he exited his vehicle. Amador v. State - PD-0144-08.

 

Lovill v. State - 13th COA

The trial court improperly found that the pregnant defendant did not
sustain her burden of proof in showing an Equal Protection / selective
prosecution violation involving a modification of her probation that sent her to
a SAFP facility. The court should have required the State to respond to the Equal
Protection claim and should have determined the appropriate level of scrutiny.
The court also should have made specific findings of fact and conclusions of law
to set out its ruling on whether the State met its burden of proof to justify
its allegedly discriminatory treatment of the defendant based upon her status as
a pregnant woman. Lovill v. State - 13-07-00529-CR.

Stephens v. State - 7th COA

It was not an abuse of discretion for the trial court to find a juror disabled and
continued with only 11 members. The trial court was able to see and hear the juror's reactions and
demeanor. It could have reasonably determined that hearing further evidence in
the case would have created an emotional state that would have prevented her
from fully and fairly performing a juror's function. Therefore, the trial court
could proceed with only 11 jurors, as permitted under Code of Criminal Procedure Art. 36.29. Stephens v. State -07-07-0434-CR.

 

Garza v. State

The trial court improperly declared a mistrial sua sponte after the jury was sworn and impaneled, following the hospitalization of one juror
and the discovery that another would be unavailable later in the week. After the State filed a petition for review to the Court of Criminal
Appeals, the court of appeals withdrew its original opinion and judgment and replaced them with this
decision to respond to a new argument in that petition. In response to the
State's argument that Ballew v.
Georgia
requires six jurors to hear a misdemeanor case, the court ruled
that Ballew does not apply because Texas law conforms to the federal
constitutional requirement that misdemeanor juries be composed of six people.
Nothing in Ballew suggests that a defendant may not knowingly waive his
right to a jury of six people if he makes a written waiver in person, in open
court, and with the consent and approval of the court and the prosecuting
attorney, as happened here. This defendant asked the court to proceed to trial
with fewer than six, where Ballew requested that the court not proceed.
Therefore, the trial court erred in granting a mistrial for manifest necessity,
and double jeopardy prevents any further prosecution of this defendant for the
alleged offense of driving while intoxicated. Garza v. State01-07-00740-CR. -

Walters v. State

The trial court committed error by excluding a recording of the defendant's telephone
conversation with a sheriff's deputy immediately following the defendant's
murder of his brother. The defense was built on the long-standing feud between the defendant and
his brother, the brother's past violent and threatening behavior, and the
defendant's subsequent reasonable fear of attack from his brother. That defense
acquired whatever credibility it may have had based on the defendant's behavior
and his state of mind at or near the time of the shooting. His statements to the
deputy during a telephone call immediately following the incident provided the
best evidence of the defendant's vocal inflections, tone of voice, and
reactions. Walters v. State -06-05-00014-CR.

Banks v. State

When the reporter's record has been lost or destroyed through no fault of the defendant, the State cannot salvage its multiple convictions by claiming that the duties of a court reporter under Rule of Appellate Procedure 13.6 are trumped by the duties established in Government Code §52.046(a)(4). Under the Government Code, a court reporter is required upon request to preserve the notes of a trial for three years from the date on which they were taken. This record does not show any request by the defendant until years after the time limit had expired, so the court reporter's duty under that statute to retain the record for three years did not apply. However, Rule 13.6 does apply and the court reporter was under the obligation to file the untranscribed notes with the district clerk to be retained for 15 years in accordance with that rule. Therefore, the fact the records cannot be found in the district clerk's office either because the court reporter failed to file them or the records have been lost while in the custody of the district clerk's office is not the fault of the defendant, who is entitled to relief. Banks v. State - 05-05-01050-CR.

Roberts v. State

The defendant did not have the specific intent required under Penal Code §6.04(b)(2) to commit capital murder when he shot a
pregnant woman and her 2-year-old, killing both, along with the unborn baby the
woman was carrying. If the defendant did not know that the victim was pregnant, he could not
form a separate specific intent to kill the fetus. Neither does the intent to
kill the toddler, even if proven, transfer to the fetus. Roberts v. State - PD-1054-07.

Martinez v. State

The officers' failure to Mirandize the defendant before his
initial interrogation and polygraph examination rendered later Miranda
warnings ineffective and made his second statement inadmissible. The officers should have applied curative measures at the beginning of the
second interview, or at the very least, when they referred to the defendant's
first interrogation. Some curative measure would have allowed the defendant to
recognize that the questioning had taken a different path. Martinez v. State -PD-1917-06.

Kirkpatrick v. State

The district court did have subject-matter jurisdiction of forgery-related
offenses when the offenses were charged as misdemeanors. Although the indictment properly charged a misdemeanor but lacked an
element necessary to charge a felony, the defendant potentially could have been
charged with a felony offense and the indictment's return in a felony court put
the defendant on notice that the State intended to charge a felony offense. Kirkpatrick v. State - PD-0873-07.

Ex parte Johnson

The trial court erred when - in agreement with the Parole Division - it did not credit the defendant for the time he spent released on mandatory supervision, when he reached the midpoint of the supervision period. The defendant began serving his sentence on the day it was pronounced. He did not begin serving his sentence before the pronouncement just because he received pre-sentence jail credits. Even though he was serving a sentence described by Government Code §508.149(a) when he was returned to prison, that alone does not mean that he was ineligible for the time credits. Ex parte Johnson - AP-76,062.

Ex parte Reed

The State did not commit a Brady violation in the defendant's capital
murder trial when the State received additional witness statements following the
defendant's conviction. This evidence was provided after the defendant's trial so the State did not
possess the evidence prior to or during trial, as required by Brady.
The defendant also did not meet the requisite gateway standard of innocence.
Under Code of Criminal Procedure art. 11.071 §5(a)(2), the defendant
did not show that it was more likely than not that no reasonable juror would
have convicted him in light of the new evidence not presented at trial. Ex parte Reed - AP-75,693.

London v. State - 5th COA

During the punishment phase of a murder trial, the trial court did not err when
it instructed the jury that if it failed to reach unanimity in favor of a
finding of sudden passion that the jury should answer that issue in the
negative. There is nothing in the record to reflect that each juror voted "no" on the
sudden passion special issue. The judge's request for a "show of hands" does not
suffice as an individual poll of jurors. Because the collective response could
have been the result of the jury not being unanimous in reaching an affirmative
answer the court of appeals found egregious harm to the defendant and remanded
the case for a new punishment hearing. London v. State -05-07-00983-CR.

Swearingen v. State - 3rd COA

The trial court did commit error during the punishment phase of a murder case
when it submitted a charge that permitted the jury to impose the first-degree
felony punishment range merely based on a failure to find sudden passion
unanimously, as opposed to directing the jury that it must be unanimous in
failing to find sudden passion. However the harm was not so great as to require reversal. While there was
evidence of former provocation, that evidence was weak and did not establish
that the defendant was incapable of rational thought and collected action when
he strangled his wife and subsequently left her in a half-full bathtub and
otherwise attempted to conceal evidence that he had killed her. Swearingen v. State - 03-07-00556-CR.

Adkins v. State - 2nd COA

The evidence was factually sufficient to support the jury's implied finding that
the defendant knew a deadly weapon would be used when the defendant was charged
with aggravated assault with a deadly weapon, even though she was not present
during the assault. Under the law of parties, the jury found that the defendant acted with
intent to promote or assist the aggravated assault of her daughter's boyfriend.
The defendant was angry with the victim, had told her daughter that the two
would never be together again, bragged to a friend and neighbor that she was
going "stop" the victim, and asked a member of the Aryan Brotherhood to beat up
the victim for her. Adkins v. State - 02-08-078-CR.

Kirsch v. State - 1st COA

It was proper for the trial court to instruct the jury that it could find the
defendant guilty under the per se impairment definition of
intoxication, despite the absence of retrograde extrapolation evidence. The defendant's blood test showed that he had a BAC of 0.10 at the hospital
80 minutes after he was involved in the car wreck. The results are evidence from
which a jury could find the defendant guilty under the per se
impairment definition. Kirsch v. State - 01-07-00446-CR.

Ruffin v. State

The trial court incorrectly excluded testimony by the defendant's
psychologist about the existence and severity of the defendant's mental disease
and delusions when it ruled that such expert testimony is admissible only when the
defendant is accused of homicide or pleads insanity. Both lay and expert testimony of a mental disease or defect that directly
rebuts the particular mens rea required for the charged offense is
relevant and admissible unless excluded under a specific evidentiary rule.
Although the trial judge permitted numerous lay witnesses, including the
defendant himself, to testify to observations concerning the defendant's mental
breakdown and delusions, that evidence was never put into a mental-disease
context or its psychological significance explained. Expert evidence that would
explain the defendant's mental disease and when and how paranoid delusions may
distort a person's auditory and visual perceptions is generally admissible as it
relates to whether the defendant intended to shoot at police officers. Ruffin v. State - PD-1482-07.

 

Segundo v. State

The defendant's constitutional right to confrontation was not violated when the
State introduced certificates from the Board of Pardons and Paroles. The statements were non-testimonial under Crawford. The defendant
objected to statements that he "subsequently failed to fulfill the terms and
conditions of said release, and is therefore not worthy of the trust and
confidence placed therein," that he "has violated the conditions of
administrative release," and that he was an "administrative release violator."
The statements were standard boilerplate language contained within in a form
entitled "Board of Pardons and Paroles Proclamation of Revocation and Warrant of
Arrest." The revocation certificates in which they were contained were
admissible as an exception to the hearsay rule both as public records and as
business records. Segundo v. State - AP-75,604.

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