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As the Judges Saw It
January-February 2008

As the Judges Saw It

David C. Newell

Assistant District Attorney in Harris County

Questions

1

Mark Anthony Zapata was charged with sexually assaulting each of his three daughters. He pled guilty to one count of aggravated sexual assault of a child and was sentenced to 15 years in prison. He admitted to the probation officer conducting the PSI report that he had committed the various offenses against his daughters. On the day of sentencing, he moved to withdraw his plea. The trial court denied the motion. Zapata filed a writ of habeas corpus alleging that his plea was involuntary because at the time of his plea he did not know that the complainants had recanted their accusations and would not have testified against him at trial. He learned that they had recanted after his plea but before sentencing, though the recantations were not originally listed in his motion to withdraw his plea. Zapata claimed he could not produce their testimony for the court to support his motion to withdraw his plea because the children’s mother had driven up from Corpus Christi and taken them away with her. Zapata also explained that he had fabricated his admissions in the PSI because he thought it would help him get a more lenient sentence.

At the hearing on the writ, two of the three daughters testified that Zapata had never touched them inappropriately or had sex with them. They explained that they were angry at Zapata for his decision to divorce their mother, and they claimed they were misled during interviews with sexual assault investigators. The third daughter had recanted earlier but had planned to testify for the State. However, Zapata prevented her from testifying because she had been in the courtroom throughout the proceedings. The trial court found the witnesses credible.

Should Zapata be allowed to withdraw his plea because it was involuntary?

    yes ______    no _______

2

Rhonda Renee Jones and Marcus Benner were sitting in a car making crystal meth (which is not a new euphemism for sex). They were about three-quarters of the way through when two deputies responding to a suspicious vehicle call pulled up behind them. Jones drove off to avoid arrest while Benner threw some of the meth-making materials out the window. In a panic, Benner poured the liquid methamphetamine into a bottle of bleach because he thought that might make the meth “go away.” If the methamphetamine had “powdered out,” it would have yielded seven to 10 grams.

At trial, the State’s expert testified that the bleach bottle contained a total of 2,375.8 grams of liquid (some methamphetamine and some bleach). The defense expert testified that he found two substances, both in trace quantities, consistent with the oxidation of methamphetamine. He also explained that bleach and methamphetamine do not mix well.

Was the State required to prove that Jones and Benner “mixed” the bleach with the methamphetamine or that pouring the drugs into a bottle of bleach resulted in a “mixture?”

    mixed ______     mixture______

3

On the morning of the first day of trial on a misdemeanor DWI, defense attorney Christopher N. Hoover presented the trial court with an oral motion for continuance and a written motion to recuse. Hoover based his request for continuance on the perceived need for an expert to assist in the preparation of a defense. The written motion for recusal alleged that the trial court had “appeared to personally attack” Hoover in a prior case and that Hoover was in the process of filing a complaint against the judge with the Judicial Conduct Commission. The trial court denied both motions. Hoover announced “not ready” for trial and said he would not participate because he could not effectively represent his client, Darryl Cannon. Hoover did not participate in jury selection; he did not have his client enter a plea; he did not make an opening statement. He did, however, make a motion for instructed verdict, which was, of course, denied. The jury found Cannon, the defendant, guilty in 15 minutes.

Did Hoover’s conduct constructively deprive his client of his 6th Amendment right to effective assistance of counsel?

    yes ______    no _______

4

Lawrence Preston Miles crashed his purple Corvette into a limousine. Miles and the limousine driver exchanged driver’s license information, but the limousine driver demanded that Miles wait for the police when Miles revealed that he did not have proof of insurance. As they waited, several tow trucks arrived, and one of the drivers, Joseph Moore, got out of his truck and approached to offer help. Moore noticed that Miles had slurred speech and seemed under the influence of something. Then Miles got back in his car and drove away before the police could arrive.

Out of concern for public safety, Moore led a vanguard of six tow trucks in pursuit. At one intersection, the wrecker drivers attempted to box Miles in to stop him. Miles, however, escaped the blockade by driving onto a curb and cutting through a parking lot at what Moore described as a “very high rate of speed.” The wreckers continued to follow Miles, who drove down a one-way street with Moore in pursuit. Miles then drove down the wrong side of a divided road and turned into the parking lot of a commercial establishment, where he came to a stop. After positioning his wrecker in a manner that effectively blocked in the appellant, Moore approached the appellant’s Corvette and attempted to remove his keys from the ignition. As Moore reached for Miles’ keys, the appellant placed a gun to Moore’s head. Houston Police Department officers arrived moments later and took the appellant into custody under suspicion of drunk driving. Miles was ultimately charged with UCW and DWI.

Because Moore violated various traffic laws while trying to effect a citizen’s arrest on Miles, Miles filed a motion to suppress under article 38.23, claiming that Moore’s traffic law violations rendered the seizure of any evidence illegal.

Should the trial court have suppressed the evidence?

    yes ______    no _______

5

Two Hood County sheriff’s deputies, Sonny Frisbie and Robert Young, stopped a vehicle for having an inoperative license plate light. After getting the driver’s identification, Deputy Frisbie asked the only passenger in the car for identification. The passenger indicated that he had a driver’s license, but it wasn’t with him. He initially said his name was John Michael St. George and his date of birth was December 16, 1975. The warrant checks on the driver were clear, but the dispatcher reported that there was no record of a driver’s license matching the passenger’s name and DOB. Deputy Frisbie issued a warning citation to the driver for the license plate light.

While he was doing that, Deputy Young again questioned the passenger about his identity. After further inquiries, the deputies learned that the passenger’s name was really Jeffery Michael St. George. When they ran this name, the deputies found that he had outstanding warrants for speeding and not having insurance. The passenger was arrested 10 minutes after the citation was issued to the driver. In the search incident to arrest, the officers found marijuana in a pack of cigarettes in St. George’s pocket. St. George filed a motion to suppress the evidence, claiming that the detention, questioning, and investigation was pursued without a warrant and without probable cause or reasonable suspicion.

Should the trial court have suppressed the evidence?

    yes ______    no _______

6

Officer Clinton Stewart pulled over Roxanne Lavender for a traffic violation. After a consent search, Officer Stewart discovered that Lavender possessed several “buds” of marijuana in a baggie. Having no formal narcotics training, Officer Stewart took Lavender to the station to see if she could assist the police as a potential informant. Stewart interviewed Lavender with the assistance of Detective Terry Weed. Lavender agreed to assist the officers, and Weed agreed to discuss the situation with the county attorney. Lavender asked whether some of the marijuana could be returned to her, and Weed said no, it would either be used as evidence against her or destroyed. As Officer Stewart was transporting Lavender back to her car, she asked him to give her back part of the marijuana. Apparently having just seen Training Day, Stewart returned one “bud” of the marijuana to Lavender.

Lavender did not work out as a confidential informant, and the State decided to prosecute her. Upon learning this, Stewart realized that the discrepancy between what was originally confiscated and what remained could come to light, and he told Weed what had happened.

Did Officer Stewart tamper with physical evidence?
    yes ______    no _______

7

Nancy Neesley veered into oncoming traffic and collided with a car driven by Cynthia Perez. Neesley was taken to Hermann Hospital to be treated for her injuries while rescue workers struggled to remove Perez from the wreckage. She died before they could free her.

A deputy at the scene noted that Neesley smelled of alcohol and informed two other deputies that Neesley’s blood needed to be analyzed at the hospital. The two deputies went to the hospital and, after determining that Neesley was probably intoxicated, got a nurse to perform a mandatory blood draw. Unfortunately, Neesley had an intravenous line of saline solution attached to her left wrist, which contaminated the blood sample. The nurse then performed a second blood draw at the request of law enforcement.

Neesley was charged with intoxication manslaughter and promptly filed a motion to suppress the evidence obtained through the second blood draw. The trial court granted the motion, and the State appealed.

Did the trial court properly suppress evidence of the second blood draw?

    yes ______    no _______

8

DPS Trooper Charles Cannon stopped Jermaine Murphy for speeding. Cannon detected the odor of marijuana coming from Murphy’s car, so he asked to search. Murphy consented. Cannon found a cigar containing marijuana in the vehicle console, a small bag of marijuana inside a black luggage bag, and approximately a kilogram of cocaine in a rear compartment of the vehicle. Cannon arrested Murphy for possession of drug paraphernalia and possession of a controlled substance. He did not issue a speeding ticket.

Then, he submitted the drug paraphernalia case to the JP who set the case for trial. Cannon did not show up for the trial. Faced with a complete lack of evidence, the JP entered a written order acquitting Murphy on the drug paraphernalia case stating, among other things, that the State had failed to establish probable cause to stop Murphy for speeding and that Murphy had consented to the search. Prior to Murphy’s trial on the cocaine case, Murphy filed a motion to suppress and dismiss the indictment alleging that the JP’s order of acquittal and finding of no probable cause collaterally estopped the State from introducing evidence seized during the traffic stop.

Can the State introduce the evidence?

    yes ______    no _______

9

Joshua Joel Moore pled guilty to manufacturing more than four but fewer than 200 grams of methamphetamine. The plea bargain required Moore to plea guilty, and in return the State would agree to a six-week postponement of the sentencing so that Moore could prepare himself for incarceration. Moore promised to appear for his sentencing and to refrain from committing any criminal offense during the six-week reprieve. If Moore abided by these terms, the State agreed to recommend a punishment of 25 years in prison. If, however, Moore failed to abide by these terms, the State would not recommend a punishment and the case would become an open plea to the trial court based upon the full punishment range. After discussing the terms of the plea agreement with Moore in open court, Moore agreed to the bargain and the judge accepted Moore’s plea as well as the terms of the plea agreement. Then, Moore assaulted someone.

At the sentencing hearing, the State put on proof that Moore had assaulted someone during his six-week reprieve. The State informed the trial court that, pursuant to the plea agreement, the State would not make any recommendation as to punishment. Despite Moore’s request that the trial court assess the original 25-year sentence from the plea agreement, the trial court sentenced him to 40 years’ incarceration. The court of appeals determined that the State was allowed to withdraw its participation in the plea bargain, but Moore should have been allowed to withdraw his guilty plea.

So which is it? (Three choices? Good God, man!)

    25 years _____    
    withdraw the plea _____    
    40 years _____

10

Gerald Herrera and some members of his family were involved in a fight outside the Mia Mar Bar in Lockhart after some men insulted Herrera’s sister. During the fight some people were stabbed or cut. An officer stopped Herrera’s car and found a lock-blade knife in the backseat on the floorboard. (Herrera was sitting in the backseat while his parents drove him.) Ultimately, Herrera was arrested on an outstanding warrant and taken to Caldwell County jail. The next morning Investigator Powell went to the jail to talk with Herrera about the fight. Herrera told Powell that he had a knife in his pocket, and he tried to get it out to defend himself, but someone was kicking and hitting him, so he just curled up in a ball. Powell didn’t Mirandize Herrera before he spoke to him, nor did he record the conversation. When questioned about the details of his conversation with Herrera, Powell denied that Herrera was a suspect when they spoke. Powell said he did not have a clear picture of what happened, and while he knew the Herreras were involved, Powell did not know the extent of their involvement. Herrera moved to suppress the statements.

Were Herrera’s statements the product of “custodial interrogation”?

    yes ______    no _______

Answers

1

Um … yes? In a per curiam opinion, the Court of Criminal Appeals held that Zapata was unable to present the recantation testimony of his daughters “through no fault of his own,” so his plea was not knowingly or voluntarily entered. It would be nice to provide some legal analysis to explain the court’s decision, but the court didn’t provide any for this published opinion. The trial court held that Zapata had satisfied his burden under Ex parte Tully, 109 S.W.3d 388 (Tex. Crim. App. 2002), and the Court of Criminal Appeals held that “the trial court’s findings are supported by the habeas record.” So, presumably, this case is an “actual innocence” case if you read the court’s adoption of the trial court’s findings as an adoption of its rationale. Of course, that would mean this opinion expands Tully (which had previously held that a mere guilty plea was not a bar to a claim of “actual innocence”) to hold that a defendant’s admittedly false confession to a probation officer does not undermine a showing of “actual innocence.”

The dissent pointed out, however, that this case is an involuntary plea case and not an actual innocence case. Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, authored a detailed dissent that first explained that the record did not support a holding that the plea was involuntary. Then, Judge Hervey detailed how Zapata had failed to meet the “Herculean task” of establishing a bare claim of actual innocence: “The record supports findings that [the] applicant pleaded guilty as part of a strategy to get probation and that, when this failed, he attempted to withdraw his plea while pursuing a new or dual strategy of pressuring the girls to recant.” Zapata, 235 S.W.3d at 794. Consequently, the dissent would not have granted relief “based on, as even applicant has put it, ‘the circus that was put together in this case’.” Id.

So, even though the court could not apparently justify a holding based on “actual innocence” and didn’t perform an involuntary plea analysis, the court still held that Zapata’s plea was involuntary based upon the trial court’s belief in the recantation of the victims. Judge Meyers dissented without an opinion. Ex parte Zapata, 235 S.W.3d 794 (Tex. Crim. App. 2007).

2

Mixed. The Court of Criminal Appeals held that the literal meaning of the legislature’s adulterant and dilutant definition includes any substance that is mixed or added regardless of when, how, or why the substance is added. Thus, the State had to prove only that Benner added the meth to the bleach, not that the two substances had chemically combined. The court had previously held in 1992 that the definition of “controlled substance” required proof that the controlled substance actually dissolved in or otherwise combined in some way with the adulterant or dilutant. Though the legislature changed the Health and Safety Code to define “adulterant” or “dilutant,” the definition of controlled substance had been untouched, which was key to the defendant’s claim that the corrosive effect of the bleach had destroyed the methamphetamine rather than actually mixing with it. The court rejected this argument, however, noting that the evidence showed the methamphetamine was “added to or mixed with” the bleach. Moreover, the court explained that the jury was free to accept the testimony of the State’s expert that bleach was an adulterant or dilutant over that of the defense expert who said it was not. Jones v. State, 235 S.W.3d 783, 786 (Tex. Crim. App. October 10, 2007).

3

Yes. Hoover’s intentional refusal to participate resulted in a failure to subject the State’s case to meaningful adversarial testing. Consequently, Hoover constructively denied Cannon his 6th Amendment right to effective assistance of counsel in the courtroom. The majority set out the standard for the two types of ineffective assistance claims. The first, under Strickland v. Washington, required a showing that Hoover’s conduct prejudiced Cannon. The second, under United States v. Cronic, does not require a showing of prejudice when the defendant demonstrates that his counsel entirely failed to subject the State’s case to meaningful adversarial testing. This case was decided under the Cronic standard.

Additionally, the majority chose not to speculate about Hoover’s motives for his actions. Taking him at his word that he was unprepared, the majority distinguishing this case from the legion of ineffective assistance cases that are rejected because the record is silent regarding trial counsel’s strategy. According to the majority, Hoover was physically present, but he essentially boycotted the proceedings and caused the trial to lose its character as a confrontation between adversaries. Moreover, the majority rejected the idea that the holding would encourage other counsel to engage in Hoover-esque tactics. They noted that this type of situation can be avoided by ascertaining whether the defendant understands the implications and probable consequences of his counsel’s conduct and whether the defendant is knowingly, intelligently, and voluntarily waiving his right to the effective assistance of counsel. Also, this type of behavior opens an attorney up to potential disciplinary proceedings and civil malpractice liability, which the majority feels is a sufficient deterrent to such conduct.

So remember Christopher Hoover because seeing his name in the bar journal is probably about the only satisfaction to be gained from this decision. Cannon v. State, ____ S.W.3d ____; 2007 WL 3010417 (Tex. Crim. App. October 17, 2007).

4

No. Moore, the wrecker driver, had probable cause to arrest Miles for DWI, and the traffic violations did not implicate article 38.23 because a police officer in the same situation would be allowed to violate those laws to effect an arrest. The court laid the groundwork for its opinion by examining the history of the Texas exclusionary rule that would ultimately become article 38.23 of the Texas Code of Criminal Procedure. (And, just for the sake of completeness, article 38.23 of the Texas Code of Criminal Procedure prohibits the use of evidence seized by the police or private citizens if the evidence was obtained through the violation of any provision of the Constitution or laws of the State of Texas or the Constitution or laws of the United States.) The court posited that the “core” rationale for this provision is the deterrence of police illegality. This, according to the court, leads to the inescapable conclusion that an ordinary person cannot search or seize evidence if the police cannot do so. So, the court reasoned, the converse must also be true:  If the police can do it, so can the private citizen. Just like that, a new rule is born. And, as Bill Parcells says in one of the most annoying beer commercials ever to contribute to humanity’s collective annoyance, “That’s not a bad thing. That’s a good thing.”

This new rule focuses the inquiry on privacy interests instead of whether a particular “law” is implicated by 38.23. To prove that this new rule “works,” the court detailed several 38.23 cases to show how it is consistent with previous holdings interpreting article 38.23 and the purpose behind it.

Then, armed with its new rule, the court considered whether Moore had the authority to arrest Miles for DWI. He did. Several witnesses at the scene of the initial accident said Miles looked intoxicated, and his dangerous driving after a three-car accident only made Moore’s concern that much more well-founded. Finally, the court held that Moore did not violate any of Miles’s privacy rights by relying upon the recent Supreme Court case Scott v. Harris, which held that the 4th Amendment was not implicated by a police officer engaging in a high-speed chase. Because a police officer would not have been required to stop, neither was Moore.

Judge Price authored a concurring opinion that strongly disagreed with the new rule announced by the majority because it does not refer to the plain statutory language in article 38.23. But, he and Judge Johnson agreed with the opinion because they would also hold that violation of laws do not impact the personal or property rights of the accused. Presiding Judge Keller concurred without an opinion. (She probably felt that none of the evidence was “obtained” in violation of the law because it did not exist at the time of the illegality but chose not to say it because she’s already done so in other opinions such as Chavez v. State.) Miles v. State, ____ S.W.3d ____; 2007 WL 3010420 (Tex. Crim. App. October 17, 2007).

5

Apparently, yes. The deputies lacked specific, articulable facts to continue the detention of the passenger once they had issued a warning citation to the driver. Citing Terry v. Ohio, the court noted that an officer’s actions must be justified at its inception and must be reasonably related in scope to the circumstances that justified the interference in the first place. Under the second part of this test, the court concluded that the officer’s continued questioning of St. George was not reasonably related in scope to the circumstances that justified the initial interference. Thus, the officers could not continue to detain the passenger without independent reasonable suspicion.

According to the court, St. George’s nervousness and the fact that the dispatcher could not find any records on the given name and date of birth (despite St. George’s claims that he had a driver’s license) did not amount to reasonable suspicion. Moreover, the police could not rely upon St. George’s admission that he had lied because they obtained that information while the police were detaining him illegally. As the court put it, “Giving a false name when the officers did not know it was false could not give them reasonable suspicion to investigate further.”

Perhaps a saving grace can be found in the underlying opinion, though. There, the Fort Worth Court of Appeals noted that none of the witnesses explained the significance of the dispatcher finding “no record” of a driver’s license under the given name and date of birth. This could suggest a different outcome if an officer in a future case were to explain that the lack of a driver’s license record on a person who had admitted to having a driver’s license was an indication that the passenger was giving a false name. However, that is a pretty big “if,” and the Court of Criminal Appeals did not suggest the record was undeveloped. The court also determined that continued detention was not consensual as the police questioned St. George for several minutes after they had issued the traffic warning. And, to add insult to injury, the majority never addressed the State’s argument that St. George’s outstanding warrants attenuated the taint of any illegal detention, even though the State clearly raised it. St. George v. State, ____ S.W.3d ____, 2007 WL 3171746 (Tex. Crim. App. October 31, 2007).

6

No. The evidence was legally insufficient to show Stewart had altered, destroyed, or concealed the evidence with the intent to impair its availability as evidence in an investigation or official proceeding. Presiding Judge Keller, apparently a fan of Training Day as well, authored a majority opinion holding that the court of appeals erroneously focused on whether Stewart knew his conduct would impair the availability of the marijuana, not on whether it was his conscious desire to do so. According to the majority, the remaining marijuana was enough to convict Lavender, and the evidence showed Stewart gave the “bud” to Lavender only to cultivate her as an informant, not to make the evidence unavailable as evidence in an official proceeding. Thus, it appears from the majority’s reasoning, a defendant must intend to effect a change on an investigation or proceeding when he makes evidence unavailable. Because the record did not support the inference that Stewart so intended, the court reversed the case and ordered an acquittal.

Judge Womack, writing for the dissent, felt that whatever Stewart’s ultimate motivation, the evidence showed Stewart clearly gave Lavender the “bud” with the intent to make it unavailable. The dissent also criticized the majority for grafting a requirement that the evidence tampering actually change the punishment of the offense or otherwise have an effect on the proceeding. Apparently Judge Womack preferred Internal Affairs. Stewart v. State, ____ S.W.3d ____; 2007 WL 3171640 (Tex. Crim. App. October 31, 2007).

7

No. While the state is statutorially permitted to draw only one blood specimen pursuant to the Transportation Code, that sample must be a “usable” sample, and the first one in this case was not usable. §724.012(b) of the Transportation Code requires a peace officer to take a blood sample from a suspect involved in a collision where a person was killed or suffered serious bodily injury. The problem the trial court and the court of appeals had was with an apparent conflict between §(a) of 724.012, which allows for taking “one or more specimens,” and §(b), which allows for taking “a specimen.” According to the court, this discrepency allowed for three possible interpretations: 1) only one specimen is permitted, 2) the number of specimens is unlimited, save for due process concerns, and 3) only one “usable” specimen is permitted. Reading §§724.012 and 724.013 (the breath/blood refusal statute) together compelled the court to include that in cases where a mandatory blood draw is required, only one specimen can be drawn.

But the court then had to determine the definition of “specimen” because the term wasn’t defined. Because the statute was ambiguous, the court looked to extratextual factors to determine whether “specimen” means a “usable” sample. The legislature enacted the law to decrease the number of deaths cause by drunk drivers. The court reasoned that the legislature must have meant the “specimen” had to be usable because an unusable sample provides no useful information in determining whether an accident was caused by a drunk driver. Thus, the trial court erroneously suppressed the evidence because the deputy was allowed to take as many blood specimens as he needed to get a usable sample.

Presiding Judge Keller and Judge Hervey agreed with the majority but wrote separately to opine that the term “a specimen” clearly did not refer to the number of specimens because that phrase “one or more” in subsection (a) is meaningless. Judge Johnson dissented because the majority read a “usable” requirement into the statute without explaining what “usable” meant. Ultimately, eight judges believed the evidence was admissible, so this opinion is on pretty solid ground. State v. Neesley, ____ S.W.3d ____; 2007 WL 3276430 (Tex. Crim. App. November 7, 2007).

8

Yes. The JP’s order of acquittal did not prevent the State from admitting the seized evidence because the doctrine of collateral estoppel does not extend to issues of evidentiary admissibility. Speaking for a unanimous court, Judge Johnson explained that collateral estoppel can bar the re-litigation of an ultimate fact issue but only if that ultimate fact issue is an essential element of the offense at issue in the subsequent prosecution. So the State is required to prove reasonable suspicion to stop and probable cause to search in both cases. However, these issues are merely evidentiary ones, not essential elements to the offenses of possession of drug paraphernalia or possession of a controlled substance. As the court ultimately put it, “allowing a litigated fact that is merely evidentiary to act as if it were an essential element of the second offense would overstep the doctrine’s limits.”

Judge Meyers also offered a concurring opinion that agreed with the majority’s rationale and added that probable cause is a legal determination and collateral estoppel deals with previous litigation of issues of fact. But everyone agrees: The evidence comes in, and this case should finally put the issue to rest. Murphy v. State, ____ S.W.3d ____; 2007 WL 3276328 (Tex. Crim. App. November 7, 2007).

9

Forty years. Moore had agreed to an enforceable plea agreement which the trial court correctly followed. In a unanimous opinion, the court held that plea agreements are generally contractual arrangements between the State and the defendant. Here, both sides obtained advantages from the agreement, and the trial court bound itself to the terms of that agreement. According to the court, once a plea agreement is finalized and the trial court binds itself to the terms, both the defendant and the prosecutor are entitled to the benefit of the agreement.

When one side fails to abide by its part of the agreement, two potential remedies exist. First, the defense can withdraw its plea. Second, the non-breaching party may demand specific performance of the remainder of the plea-agreement. Here, the State and Moore had negotiated what the remedy would be if Moore failed to live up to his part of the bargain, namely the State’s withdrawal of its 25-year recommendation. Thus, the State was not required to recommend the 25-year sentence.

The court also rejected the court of appeals’ position that Moore should have been allowed to withdraw his plea. Unlike a situation where a defendant merely agrees to plead guilty in exchange for an agreed recommendation, here Moore and the State had specifically pre-negotiated the consequence for Moore’s failure to comply with his covenants that he would not commit any more crimes during the six-week reprieve and that he would show up for sentencing. It was not contemplated in the negotiations that Moore would ever be relieved of his ultimate, agreed-upon obligation to enter a guilty plea. Because Moore knowingly and voluntarily entered into a plea agreement that included remedies for his failure to comply with the terms of that agreement, Moore was not entitled to withdraw his guilty plea. State v. Moore, ____ S.W.3d ____; 2007 WL 4146342 (Tex. Crim. App. November 21, 2007).

10

No. Herrera failed to carry his burden to present evidence that he was “in custody” for Miranda purposes despite the fact that he was incarcerated. The court first noted that the State is not required to show compliance with Miranda until the defendant clearly establishes that the defendant’s statement is the product of custodial interrogation. The court acknowledged that the United States Supreme Court seemed to hold under Mathis v. United States that Miranda applies whenever a defendant is “in custody,” even if he is in custody on a case unrelated to the subject matter of the questioning. However, the court explained that several federal courts had acknowledged that a defendant’s incarceration was not always dispositive of whether he were in custody. Thus, the court held that Miranda warnings may be required before questioning an incarcerated