As the Judges Saw It

Questions
1

Paula Weightman was standing outside her house smoking a cigarette when she heard bloodcurdling screams from her neighbor, Patricia Ford. Ms. Weightman heard her neighbor scream, “Get out, get out!” followed by Ms. Ford’s boyfriend, Vincent Davis, yelling, “I will show you!” Hitting noises followed this exchange, and Ms. Weightman called 911. The police arrived to the sounds of Patricia screaming for help. One of the officers opened the front door and told Patricia to run out of the house. She tried to run as she came out, even though she could barely stand. Ms. Weightman called Patricia over and helped her onto Ms. Weightman’s porch. Patricia was trembling and holding her neck. She told Ms. Weightman, “He tried to kill me.”

After the police had handcuffed Davis, one of the officers spoke with Patricia. It was during this conversation that Patricia related that she and Davis had gotten into an argument, he had accused her of sleeping with other men after she had insisted that he look for a job. Patricia told the officer she had tried to avoid Davis during the argument by moving to different rooms and even trying to leave the house. Unfortunately, as she tried to leave, Davis grabbed her by her shirt, threw her on the couch, and started beating her about the head and face with his fists and even put his thumbs in her eyes. He also put his knee on her throat while she was still laying on the couch. Patricia told the officer that she tried to throw coffee on Davis, but he grabbed the coffee and then threw her to the ground. While she was on the ground, Davis put his knee in her back and wrapped a rope around her neck, pulling her torso off the floor. Patricia pleaded that she couldn’t breathe, and Davis released her. Patricia started screaming, and Davis choked her again, this time with his hands. Finally, Davis released her and she tried to run out the door, but he prevented her from leaving.

Davis was charged with aggravated assault with a deadly weapon. Davis testified at trial, admitting that he had started the shouting match and acknowledging that he had inflicted the injuries shown in a photograph of Patricia. However, he denied choking her, putting a rope around her neck, and putting his thumbs in her eyes. Patricia did not testify at trial. The State introduced Patricia’s hearsay statements to establish the elements of the case. The jury was instructed both on aggravated assault and simple assault, but Davis was convicted of the greater offense. The trial court sentenced him to 12 years in prison.  On appeal, the State conceded that Ms. Ford’s conversation with the police was testimonial and therefore erroneously admitted under Crawford v. Washington. Was the admission of Patricia Ford’s hearsay account of the incident during Davis’s aggravated assault with a deadly weapon trial harmless error?

    yes ______     no ________

2

Jerry Glenn Reynolds was charged with driving while intoxicated after he blew twice the legal limit. Prior to trial he filed numerous pre-trial motions to challenge the admissibility of the breath test results. At a pre-trial hearing on those motions, the arresting officer, Trooper Parker, testified that he, a DPS trooper, was a certified Intoxilyzer 5000 operator. The technical supervisor also testified and was able to explain the science and technology upon which the Intoxilyer 5000 is based. She explained that the instrument that had tested Reynolds’ breath was properly maintained and in good working order on the date that Trooper Parker tested Reynolds’ breath. Trooper Parker testified that he had little or no understanding of the scientific principles behind the Intoxilyzer 5000.

The trial court overruled the pre-trial motions and held the breath test results admissible, and Reynolds pled guilty subject to his appeal of the trial court’s pre-trial ruling. Must the Intoxilyzer operator, Trooper Parker in this case, be familiar with and able to explain the scientific principles underlying the breath testing instrument for the breath test results to be admissible?

    yes ______     no ________

3

Evon Kelly and her son were involved in a car accident while she was driving. They were taken to the hospital emergency room for medical treatment. An emergency room technician/phlebotomist drew Kelly’s blood for medical purposes, and hospital testing revealed that Kelly’s blood-alcohol concentration (BAC) was above the legal limit. Soon after this, law enforcement officers came to the emergency room and asked Kelly for consent to draw her blood. She refused.

Several days later, the State obtained the medical records through a grand jury subpoena. Kelly was subsequently charged with DWI. Kelly filed a pre-trial motion to suppress, arguing among other things that she had merely acquiesced to the drawing of her blood by hospital personnel and therefore the results were obtained without her effective and informed consent. At the pre-trial motion to suppress, Kelly abandoned her claims regarding the 4th Amendment and argued exclusively that the phlebotomist had assaulted her by taking her blood without effective consent. Kelly argued that this assault was a violation of the law and any evidence police obtained through that violation should be excluded under the Texas exclusionary rule. The trial court excluded the blood-alcohol results without making any written findings of fact or conclusions of law explaining its legal basis for the ruling.

The 13th Court of Appeals reversed the trial court holding, among other things, that the blood was not taken pursuant to the phelbotomist’s assault on Kelly and therefore the evidence should not have been suppressed. Did Kelly “consent” to the taking of her blood?

    yes ______     no ________

4

Mary Harrison was stopped on suspicion of driving while intoxicated. She had been observed going from lane to lane and flopping around like a fish inside her own car. After she was stopped, she continued fidgeting, bending at the waist, and lifting up her legs. Harrison was placed under arrest and taken to the county jail where she was asked to provide a breath or a blood specimen. She consented and her breath tested negative for alcohol. She then consented to have her blood taken. The police then took her to Arlington Memorial Hospital to obtain a blood specimen. Unfortunately, the nurse was unable to get a blood specimen after trying five or six times due to Harrison’s collapsing veins. These repeated attempts to obtain a blood specimen caused Harrison pain and resulted in bruising. The police asked if she’d be willing to provide a urine specimen. Harrison agreed to provide a urine specimen to avoid being stuck with a needle again and to avoid having her license suspended. None of the officers informed her that she did not have to consent or that her license would not be suspended if she refused to provide a specimen. The urine sample tested positive for controlled substances, the identity of which is not revealed in the court opinion. Harrison was charged with misdemeanor DWI.

Harrison filed a motion to suppress the urine test results. The trial court denied the motion, and Harrison appealed the ruling. The Fort Worth Court of Appeals held that the State failed to prove by clear and convincing evidence that Harrison had voluntarily consented to providing a urine specimen. Was Harrison’s consent to provide a urine specimen involuntary?

    yes ______     no ________

5

Steven Girdy was charged in a single indictment of aggravated kidnapping and aggravated assault. The events giving rise to the charges occurred during an unbroken sequence of events. Girdy grabbed a knife and threatened his girlfriend, Deandra Smith. He forced her into her car at knifepoint and drove her to a nearby field where he verbally abused her, threatened to kill her by holding the knife to her, and urinated on her. He ceased his conduct towards her only when he saw a police car approaching, at which time he forced Smith back into her car and drove away.

The aggravated kidnapping paragraph in the indictment alleged that Girdy “did intentionally abduct Deandra Smith, with the intent to prevent the liberation of Deandra Smith by using and threatening to use deadly force on the said Deandra Smith, and with intent to inflict bodily injury on her.” The aggravated assault paragraph in the indictment alleged that Girdy “did then and there intentionally and knowingly threaten Deandra Smith with imminent bodily injury and did then and there use a deadly weapon, to wit: a knife, that in the manner of its use and intended use was capable of causing death and serious bodily injury.” Girdy was convicted of both offenses. The jury sentenced him to 50 years in prison for the kidnapping and 10 years for the assault.

On appeal, Girdy argued that his convictions for both aggravated kidnapping and aggravated assault violated the double jeopardy clause of the 5th Amendment because aggravated assault was a lesser-included offense of aggravated kidnapping. Is this correct?

    yes ______     no ________

6

Curtis Pope murdered Darrell North by stabbing him at least 50 times in the head, face, back, chest, shoulders, and torso. DNA tests tied blood found on the floor and furniture of the crime scene to Pope. After he was charged, the State filed a motion to discover Pope’s expert witnesses. Pope filed a motion for independent DNA testing and asked the court to  allow Dr. Robert Benjamin to review and examine all reports and testing already performed by William Watson. The trial court granted the motion and less than a month later, Pope designated Dr. Robert Benjamin as his defense expert. Six months later, the trial court granted a joint motion for additional testing on hair samples from Pope, the victim, and another suspect as well as fingernail scrapings from the victim. These tests excluded the additional suspect but not Pope. Immediately before the State called its first DNA expert, the defense filed a motion in limine to exclude any mention of Dr. Benjamin based upon the work-product doctrine of the attorney-client privilege. The trial court granted the motion. After vigorous cross-examination of the State’s DNA expert, William Watson, the State argued that the defense had opened the door to the existence and role of Dr. Benjamin. The State was allowed to elicit from Watson that Dr. Benjamin was eminently qualified and that Dr. Benjamin had not requested any additional testing after reviewing all of Watson’s records and notes. The State also elicited from a second expert, Jamie King, that Dr. Benjamin had not requested any additional testing after he had examined her bench notes.

At closing argument, the State argued that the defense had the same subpoena powers as the State to compel people to appear and testify. The State went on to argue over objection that the defense would have called Dr. Benjamin if there were any problems with the DNA testing. Was the testimony that Dr. Benjamin did not request any additional testing properly admitted?

    yes ______     no ________

7

Roque Aranda was convicted of burglary and sentenced to 15 years in prison. He attempted to file his writ of habeas corpus with the Gaines County District Clerk, who refused to file it and returned the application and envelope unopened. Apparently, pursuant to a court order, Aranda had been found to be a “vexatious litigant” and as a result was prohibited from filing “new litigation” in state court under the Texas Civil Practices and Remedies Code. Aranda filed a writ of mandamus to require the district clerk to file his writ of habeas corpus. Should mandamus relief be granted?

    yes ______     no ________

8

Joshua Delaney pled guilty to aggravated robbery during a “timely pass for plea” setting. In this type of setting, a defendant is given the choice to accept a judge’s punishment or to ask for a jury to determine punishment. Delaney was admonished that there was no plea agreement in his case. He waived his right to a jury, pled guilty, and signed a stipulation of evidence stating that the allegations in the indictment were true. The court asked Delaney if he would accept a sentence of 10 years’ deferred adjudication. He indicated that he would, choosing to accept the court’s punishment rather than allowing the jury to assess punishment. Delaney was then informed of the full range of punishment and his right to appeal. He stated that he understood his rights and executed a waiver of appeal stating in the waiver that he did not desire to appeal. After 10 months on deferred adjudication probation, the State filed a motion to adjudicate guilt, alleging that Delaney had violated the terms of his probation. Delaney was adjudicated and sentenced to life in prison. Was Delaney’s waiver of appeal valid?

    yes ______     no ________

9

Officer Thomas Griffin of the Houston Police Department received a call from Lisa Stark claiming that she had been the victim of identity theft. Citibank had called Ms. Stark to tell her that someone had opened a Visa account in her name at Gordon’s Jewelry and had tried to open another account at Zales. Ms. Stark had also received a notice from the U.S. Postal Service confirming Ms. Stark’s change of address. On Ms. Stark’s behalf, Officer Griffin, who had 11 years of experience in the forgery division, contacted a U.S. Postal Inspector who informed Officer Griffin that two additional changes of address for Ms. Stark had been sent to the USPS. Officer Griffin drafted and presented an Affidavit in Support of a Search Warrant to District Judge William Harmon. Officer Griffin swore to the facts in the affidavit and requested that Judge Harmon authorize a search warrant to search the residence at the address where Ms. Stark’s mail was being delivered. Judge Harmon signed and issued a search warrant. Officer Griffin executed the search warrant and recovered two shotguns from the residence of the would-be identity thief, Freddie James Smith, who was promptly arrested for felon in possession of a firearm.

Unfortunately, Officer Griffin never signed his affidavit. Was the search warrant valid?

    yes ______     no ________

10

Clinton White stole a car and led the police on a high-speed chase that ended with White crashing into another car, killing the other driver. White was indicted for felony murder. The indictment alleged in one paragraph that White had caused the victim’s death in the course of committing the state-jail felony offense of unauthorized use of a motor vehicle. In another paragraph, the indictment charged that White had caused the victim’s death during the commission of the state-jail felony of evading arrest or detention in a vehicle. The jury charge authorized the jury to convict White if it unanimously found that he had caused the victim’s death during the commission of either one of these two felonies. The jury charge did not require the jury to unanimously agree on which felony it believed White was committing when he caused the victim’s death.

On appeal, White argued that this instruction denied him of his right to a unanimous verdict. Does the right to a unanimous verdict require that jury be unanimous as to the predicate felony in a felony murder case?

    yes ______     no ________

Answers

1

No. Despite the complete reliance upon Patricia’s hearsay statements to prove the essential elements of aggravated assault with a deadly weapon, the Court of Criminal Appeals held that the error in the admission of the testimony was harmless beyond a reasonable doubt.

First, the court acknowledged that while some constitutional rights are so basic that they could never be subject to harmless error analysis, this case did not deal with the violation of a “basic” constitutional right. In other words, Davis was entitled to a fair trial, not a perfect one.

Then, the court examined whether the erroneously admitted testimony had a significant impact on the minds of an average jury. While the court acknowledged the evidence was “important” to the State’s case, it went on to detail other evidence that the jury could have relied upon. The court noted, for example, that the bruises on Patricia’s neck were consistent with strangulation by rope and Patricia had initially screamed to her neighbor that Davis had “tried to kill [her].” The court also rejected the argument that Davis might never have testified had the statements been excluded because it had not been argued or raised and such an argument would require speculation on Davis’ strategy. More importantly, according to the court, had Davis not testified, there would have been no evidence to discount the theory that Davis had attempted to strangle his girlfriend with a rope.

Finally, the court rejected Davis’ argument that the State had not called Patricia because it sought to deprive the defense of the opportunity to cross-examine her about her past criminal record and mental health problems. To this argument the court simply explained that “one could vigorously and extensively cross-examine Ms. Ford, but the bruises would still be on her neck, and there is no alternative explanation for them, even a hypothetical one.” Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. October 11, 2006).

2

No. The Court of Criminal Appeals unanimously held, in an opinion authored by Judge Price, that it is not part of the predicate for a breath test admission that the person operating the instrument understand the scientific technological principles behind it, provided he or she is properly certified under the statute to operate it. The court explained that the legislature has determined that the scientific theory underlying the breath testing instrument is valid and that the technique applying it is valid provided that the one administering it is certified and uses the methods approved by the rules of

Moreover, the court rejected Reynolds’ argument that under Hill v. State the State is required to show that the person administering a breath test has an understanding of the scientific theory underlying the instrument. The court put it very bluntly, “We hold that the law is, always has been, and will remain the same, viz: it is not a part of the predicate for the admissibility of breath test results, including Intoxilyzer 5000 results, that the operator of the apparatus himself understand the scientific and technological principles behind the apparatus, so long as he is properly certified under the statute to operate it.” The fact that an opponent of a breath test can demonstrate that the operator has not retained all the knowledge required of him for certification only goes to the weight that should be given the operator’s testimony, not its admissibility. Reynolds v. State, 204 S.W.3d 386 (Tex. Crim. App. October 18, 2006).

3

Yes. Even reviewing the record in a light most favorable to the trial court’s ruling, the Court of Criminal Appeals held that the record did not support the trial court’s implicit finding that Kelly had not consented to the hospital’s drawing of her blood. The Court of Criminal Appeals acknowledged that Kelly testified that she did not consent by expressly giving the phlebotomist permission to draw her blood. However, the court went on to note that no one testified that Kelly had expressly refused to give the phlebotomist permission to draw her blood. The only thing this showed was that Kelly had “merely acquiesced” to having her blood drawn. The court then pulled out copies of Webster’s New Collegiate Dictionary and Roget’s Thesaurus to explain that “acquiesce” is essentially synonymous with “consent.” For good measure, the court also distinguished consent to a phlebotomist in a hospital from the consent to search, explaining that the former is not held to the same scrutiny as the latter. Kelly v. State, _____ S.W.3d _____, 2006 WL 3019246 (Tex. Crim. App. October 25, 2006).

4

No. According to the Court of Criminal Appeals, the State met its burden to show that Harrison had voluntarily consented to providing a urine specimen. According to the court, the court of appeals failed to take into account that Harrison had not withdrawn her consent but had provided a consent to a less-invasive alternative. Thus, this was not a situation where Harrison had consented because of physical or psychological pressure from law enforcement. Moreover, the statutory consequences related to the refusal to provide a blood specimen do not apply to the refusal to provide a urine specimen. The court rejected the dissenting opinion argument that consent was involuntary because Harrison had not been read statutory warnings prior to giving a urine specimen and she had not been told she had the right to refuse. According to the majority, there is no requirement that a defendant be given statutory warnings before she is asked to provide a urine specimen. Moreover, officers are not required to inform a defendant that she may refuse to provide a specimen if they have already read statutory warnings before requesting a sample of breath or blood. Thus, Harrison’s consent was not involuntary. Harrison v. State¸ _____ S.W.3d _____, 2006 WL 3077511 (Tex. Crim. App. November 1, 2006).

5

Yes. The Court of Criminal Appeals affirmed the Amarillo Court of Appeals decision vacating the aggravated assault charge because it was a lesser-included offense of aggravated kidnapping. The State argued that each offense contained elements that the other did not. According to the State, the greater offense of aggravated kidnapping required proof of an additional element that aggravated assault did not, namely that Girdy “abducted” his girlfriend. Conversely, the State argued that aggravated assault required the threat of imminent bodily injury by a threat with a deadly weapon, but aggravated kidnapping only requires the threat of deadly force.

The court rejected this claim, refusing to “quibble” over any arguable difference between the terms deadly force and deadly weapon. Deadly force necessarily requires the use of a deadly weapon, and display of a deadly weapon may and frequently does produce a threat of deadly force. And if a perpetrator uses deadly force to abduct someone, the threat of bodily injury will generally involve “imminent” injury. The court characterized the State’s claims as an argument regarding adequate notice, which is different from a claim involving double jeopardy. The entire trial record and the pleadings show that Girdy’s aggravated assault established proof of the same or less than all the facts required to establish aggravated kidnapping. It was, therefore, a lesser-included offense for double jeopardy purposes, and the court of appeals properly vacated the offense carrying the lesser punishment. Girdy v. State, _____ S.W.3d _____, 2006 WL 3077515 (Tex. Crim. App. November 1, 2006).

6

Yes. The fact that a particular person did or did not request additional tests of the State’s experts was not a matter of attorney work-product, it was a fact within the personal knowledge of the State’s expert witnesses. The Court of Criminal Appeals first noted the difference between the attorney-client privilege and the attorney work-product doctrine. The former belongs to and protects the client, while the latter belongs to and protects the attorney.

Regarding experts, the court noted that a consulting expert’s identity, mental impressions, and opinions that have not been reviewed by a testifying expert are generally not discoverable. In contrast, there is no work-product protection for testifying experts, which is why attorneys must designate an expert as a testifying expert if there is any chance the attorney intends to call that expert to the witness stand. The court interpreted article 39.14 of the Code of Criminal Procedure as calling for the designation of testifying experts because the statute refers to experts that the State or the defense “may use” at trial. In this case, Pope designated Dr. Benjamin as a potentially testifying expert and never sought to de-designate him. Consequently, the trial court properly allowed questioning regarding his existence and whether he requested additional testing from the State’s experts.

Finally, the court noted that a jury is always permitted to draw inferences from known, un-privileged facts, and the attorney work-product doctrine does nothing to prevent a jury from making reasonable deductions from known facts. Pope v. State, _____ S.W.3d _____, 2006 WL 3302823 (Tex. Crim. App. November 15, 2006).

7

Yes. The Court of Criminal Appeals granted mandamus relief because a writ of habeas corpus is not a civil proceeding. The court noted that generally writs of habeas corpus are criminal for jurisdictional purposes and the rules of civil procedure generally do not apply. Thus, the Civil Practices and Remedies Code did not bar the filing of Aranda’s writ of habeas corpus, regardless of how “vexatious” a litigant he was. Moreover, the district clerk had a ministerial duty to file the application, and there was no way for Aranda to appeal the denial of such filing. Consequently, mandamus relief was appropriate. The court did note, however, that frivolous habeas applications can result in the loss of good time credit for the inmates who file such a frivolous claim. Aranda v. District Clerk, _____ S.W.3d _____, 2006 WL 3302671 (Tex. Crim. App. November 15, 2006).

8

No. When a waiver of appeal is not bargained for and punishment is uncertain at the time of the waiver, there is no knowing and intelligent waiver of appeal. The Court of Criminal Appeals granted relief in response to Delaney’s writ of habeas corpus claim, explaining that Delaney could not have knowingly waived his right to appeal because he did not know with any certainty at the time he pled whether he would ever be punished and what that punishment would be. The Court of Criminal Appeals noted the concerns that arise from pre-sentencing waivers of appeal, notably, that a defendant cannot anticipate unknown errors that might occur during trial; therefore, a pre-trial waiver could not be made knowingly and intelligently. Moreover, a defendant could not know the consequences of his waiver if he enters it prior to the imposition of sentence because he would not know with certainty what his sentence would ultimately be.

While the court acknowledged that a waiver of appeal that is bargained for and results in the imposition of a recommended punishment does not raise these concerns, the court granted relief for Delaney because his case did. Thus, the court held that one way for a pre-sentencing waiver of appeal to be valid is for the actual punishment to be determined in a plea bargain. Simply letting a defendant know what the full range of punishment is doesn’t result in a knowing or intelligent waiver of appeal. Ex parte Delaney, _____ S.W.3d _____, 2006 WL 3391355 (Tex. Crim. App. November 22, 2006).

9

Yes. Regardless of whether the search was justifiable under the good-faith exception, the Court of Criminal Appeals held that the warrant itself was valid because there was sufficient evidence that Officer Griffin had sworn to the affidavit.

The court explained that a valid search warrant requires only a sworn affidavit, not a signed one. Though the memorialization of the officer’s act of swearing is important, it is the act of swearing, not the signature itself that is essential to the warrant’s validity. The court justified its decision based upon the fact that neither the United States Constitution, nor article 18.01 of the Code of Criminal Procedure requires a signature, only an oath. The purpose of the oath is to call upon an affiant’s sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility, while the purpose of the signature is to memorialize the recitation of the facts contained in the affidavit.

The court went on to list the three pieces of evidence that proved that Officer Griffin satisfied the oath requirement under article 18.01. First, and perhaps most ironically, Officer Griffin submitted a signed affidavit in the pre-trial suppression hearing, swearing that he swore under oath before Judge Harmon that the facts contained in the affidavit attached to the search warrant were true and correct. Second, Judge Harmon also submitted an affidavit wherein he stated that it is his standard practice to have search warrant applicants swear to the truthfulness of their affidavits. Finally, the unsigned affidavit attached to the warrant contained the recitation that Officer Griffin’s affidavit was sworn to under oath. Smith v. State, _____ S.W.3d _____, 2006 WL 3391008 (Tex. Crim. App. November 22, 2006)(8:1)(Keller, J. dissenting without opinion).

10

No. The Court of Criminal Appeals agreed with the Dallas Court of Appeals that in felony murder cases with multiple predicate felonies, a jury is not required to unanimously agree on which predicate felony the defendant committed.

The term “felony” is the element of felony murder that the jury must unanimously agree on. Thus, all the jury must agree to is that the defendant had caused a person’s death during the commission of a felony, not a specific one. Additionally, the court noted that the statute’s use of the transitive verb “commits” further suggests that all that is required to prove the offense of felony murder is proof that the defendant was committing a felony, not one specific felony out of a combination of felonies. Ultimately, the predicate felonies constitute the “manner and means” by which a defendant commits  felony murder, and dispensing with the jury unanimity requirement does not offend due process because the underlying felonies are basically morally and conceptually equivalent. White v. State, _____ S.W.3d _____, 2006 WL 3499217 (Tex. Crim. App. December 6, 2006).