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As the Judges Saw It
July-August 2008

As the Judges Saw It

Tanya S. Dohoney

Assistant Criminal District Attorney in Tarrant County

Questions

1a

Barney Fuller found happiness with a warm gun. He was so fond of shooting on his rural Houston County property that his pastime repeatedly peeved his neighbors, including the Copeland family. After Barney shot the Copeland’s electric transformer to smithereens, the ensuing dispute led the Copelands to seek terroristic threat charges against Barney. When the court notified Fuller about the case, the hothead first sought solace with firewater, then with firepower. Sporting several weapons including his AR-15 rifle, Fuller fed about 60 rounds into the side of the Copeland home, changing his magazine three times. After entering the house, Barney hunted down the Copeland adults and killed them. The 9-1-1 operator heard “Party’s over, bitch,” then a popping sound, right after Mrs. Copeland called. Next, Barney sought to kill the two Copeland kids, but they survived. Barney ultimately surrendered to a SWAT team later that day.

After killing his neighbors but before turning himself in, Barney called his papa a few times for advice. They discussed the need to contact a member of the family, Houston criminal defense attorney Steven “Rocket” Rosen. Unbeknownst to Barney, papa went ahead and called to enlist Rocket Rosen’s aid. About the same time as Barney’s arrest, Rocket Rosen faxed the sheriff notifying him that Rocket represented Barney; the fax admonished the authorities not to interview Barney without Rocket present.

In the meantime, a Texas Ranger interviewed Barney at the sheriff’s office, videotaping the statement and obtaining the appropriate waivers. However, neither the Ranger nor Barney heard a peep about Rocket Rosen’s faxed instructions until after completion of the taped statement. Similarly, Rocket Rosen had no conversation with Barney until after the caged bird had sung his confessional cantata.

Did Rocket Rosen’s faxed instructions undermine the validity of Barney’s waivers and taped confession?

1b

Returning to Fuller’s capital case, on the morning of his trial, he decided to plead guilty to the jury, sometimes known as a “slow plea.” After admonishments, the trial court accepted his plea and found him guilty of capital murder. The judge instructed the jury that it no longer needed to resolve the issue of guilt, only that of punishment. After hearing substantial evidence over nine days and following the submission of punishment instructions, the jury returned a death sentence, but no verdict form ever formalized Fuller’s guilt. Was this error?

2

Anissa, Larry Hayes’ on-again-off-again girlfriend for more than a decade, again moved to her mother’s home to get away from Hayes. Anissa opened the door one day to have Hayes greet her with a fist to the face. She luckily got back inside and locked the door, but she peered out to see her off-again boyfriend heaving a brick through her car window.

He was charged with felony assault of a family member, and the indictment contained a prior domestic violence enhancement conviction and two prior felonies. Looking at a habitual punishment range while sitting in jail, Hayes wrote Anissa telling her how sorry he was and promising to change his abusive ways “for real this time.” Anissa testified against Larry. At the close of the evidence, the Harris County trial judge submitted a charge under an inapplicable section of the Family Code that permitted Anissa to be considered a member of Larry’s household based upon her previously living with Larry. (Family Code §71.005, the correct provision, defines “household” as a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.) Neither side requested the lesser-included offense of straight assault. After conviction, the trial judge assessed the minimum of 25 years’ confinement for Hayes’ conduct.

On direct appeal, Hayes obtained a legal sufficiency reversal/acquittal because the evidence did not prove that Anissa was a member of his household at the time of the offense. On PDR, the State requested that the court revisit its prior decision in Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999). Collier narrowly held that an appellate court may reform a sentence to reflect a lesser offense only when insufficient evidence supports the greater offense and the jury received an instruction on the lesser charge. The State’s PDR sought to expand this doctrine to include similar reformation of cases where the lesser-included instruction is supported by the evidence but was not requested. Does the court bite on this request?

3

Officers observed Darryl Moseley driving a blue Neon that had been reported missing. Shortly thereafter, Moseley parked the car and fled on foot. After the officers tracked him down, returned to the car, and arrested him on an unrelated warrant, they popped the car’s trunk and discovered a woman’s body. Officers took Moseley to the homicide division of the San Antonio police department for interrogation. A pinhole camera captured everything that could be seen or heard in the interrogation room on DVD. Signage in the room admonished occupants of the presence of recording devices.

While in the room, officers questioned Moseley in intervals; sometimes they left him alone in the room, and he was also allowed to make phone calls while there. Moseley eventually confessed that he had killed the woman found in the trunk. Also, during his telephone conversations, he admitted the offense, attempted to elicit alibi assistance, and acknowledged the possibility that he was being recorded. The DVD contained Moseley’s side of these conversations but not the comments of those to whom he spoke. After leaving the station, Moseley also bragged to reporters about the killing.

In a pretrial suppression motion, Moseley unsuccessfully sought to thwart the State’s admission of the DVD into evidence. Claiming that the recording of his telephone conversations was illegal, Moseley argued that the DVD constituted an interception of a wire communication in violation of Penal Code §16.02 and was rendered inadmissible under Code of Criminal Procedure art. 18.20, §2(a)(1). Did the DVD contain an illegally intercepted wire communication?

4

While patrolling in Conroe at 4:00 a.m., Officer Okland drove down a narrow, somewhat secluded, dead-end street. Pacific Avenue was bordered by two houses on one side and railroad tracks on the other and hemmed in by high-grass and trees at the street’s end. When turning into the street, Okland saw a green Ford pickup parked at the end of the road; its dome light exposed the presence of two seated passengers. As the officer pulled up, he activated his patrol car’s spotlight for his own safety and to let the truck’s occupants know it was a police officer behind them. He also switched his in-car camera on, but Okland did not turn on his overhead emergency lights. When pulling behind the vehicle, the officer—at a minimum—limited its ease of departure.

Wanting to see what the people were doing in the parked truck in the middle of the night, Officer Okland shouldered his long flashlight and advanced on the truck. He saw some movement among the occupants. The officer directed his light over the driver’s side and inquired, “What are you doing here?” Driver Candelario Garcia-Cantu hopped out, met the officer in the roadway, and explained that he lived two blocks away and was waiting for a friend to come out of one of the homes (which happened shortly thereafter). Additional facts apparently led the officer to ultimately arrest Garcia-Cantu for two misdemeanors.

After hearing these facts and questioning whether the area was actually one known for high crime, the trial court granted the defense motion to suppress without entering any written findings of fact. Was the trial judge’s ruling correct? Did this stop necessitate a reasonable suspicion or merely a consensual encounter not invoking Fourth Amendment protections?

5

During the wee hours of the morning, a Houston-area Denny’s was hopping with those seeking late-night grub. Kimberly Allen and her girlfriends created a disturbance by being loud, raucous, and profane. When a waitress asked them to leave and tried to expedite their departure by clearing the table, some food spilled on Kimberly, and she kindly responded by throwing a beverage at the server. These goings-on caused another patron to tap 9-1-1 hurriedly into his phone. Next, as Allen’s bunch sought to pay their tabs, they again found discontent, this time with the cashier who mentioned something about the ladies having over-imbibed alcohol. Still exhibiting delicate sensibilities, Allen hurled abusive language at the fellow. Moments later, when a woman named Jackie left the smoking section to stand in line to pay, she did not learn from the cashier’s plight and also shared her insight, letting those present know that she was not impressed by Allen’s antics. True to her own sense of style, Allen bellowed that she “sure the f— ain’t trying to impress you … [and that Kimberly] ought to walk over there and slap the f— out of [Jackie].” It only gets better. Jackie spread her arms out and announced, “Then slap me!” Unable to resist, Allen whacked Jackie across the face, tearing a metal ring out of Jackie’s pierced eyebrow.

Charged with assault, Kimberly testified that she struck Jackie, but she relied on self-defense and consent to excuse her conduct. The jury received instructions on both theories, but the charge failed to correctly inform the jury that it must acquit should it have a reasonable doubt with respect to the issue of consent. Because Kimberly’s attorney did not object to this omission, did the erroneous charge rise to a level of egregious harm requiring reversal?

6

Two eyewitnesses observed Alberto Cantu’s truck racing a red Camaro lickety-split down a Harlingen roadway. Officers later found Cantu still behind the wheel after he had lost control of his truck and embedded it in a chain-link fence. Cantu posted bond the next morning on this charge, his second DWI, but he did not face formal charges for 16 months because the Harlingen police apparently lost the file. Two months after the charges were filed, Cantu didn’t seek a speedy trial but instead an outright dismissal on speedy trial grounds.

Hearing his speedy trial motion, the trial court quickly found the first two Barker v. Wingo prongs favored Cantu—that is, the length of the delay and the reason for the delay. See Barker v. Wingo, 407 U.S.514 (1972). However, the final two factors—assertion of the right and prejudice to the accused—did not, so the judge denied the dismissal request.

Regarding Cantu’s assertion of his speedy trial rights, the judge discounted the defense attorney’s account of calling the DA’s office. Also, when informed of an impending DWI-law change during the period of the delay, Cantu intentionally chose not to prod the State into filing charges before the law went into effect. As for the prejudice prong, Cantu testified about having to contact his bondsman each week and suffering anxiety and even ulcers, but the trial court noted that the ulcers could have actually been alcohol-induced. The trial judge also discounted Cantu’s claims that finding the missing Camaro driver had become harder over time because Cantu deliberately chose not to look for him initially and police had already identified two independent eyewitnesses. After the trial court denied Cantu’s dismissal, he pled guilty and appealed. Will the trial court’s ruling on speedy trial hold up in spite of the lengthy delay induced by the lost file?

7

Attorney James Vasilas signed and filed an expunction petition containing false information on a client’s behalf. Collin County charged Vasilas with making, presenting, and using a government record with knowledge of its falsity pursuant to Penal Code §37.10. Vasilas sought to quash the indictment and claimed that §37.10 was in pari materia with Rule 13 of the Rules of Civil Procedure. (Rule 13 authorizes contempt as a sanction for attorneys filing false pleadings.) Vasilas argued that Rule 13 trumped the penal statute because it was devised to punish his specific misconduct. He also claimed that civil suit pleadings are not “governmental records” defined under §37.01(2) (A). Judge Sandoval of Collin County quashed the indictment without filing any findings or conclusions.

The Dallas Court of Appeals initially poured out the State appeal by holding that the expunction petition was not a governmental record under Penal Code §37. On discretionary review of the what-constitutes-a-government-record issue, the Court of Criminal Appeals sent the case back to the intermediate court after readily concluding that the legislature’s definition of a governmental record unambiguously included a court record such as a civil petition for expunction.

Still in appellate orbit, the Dallas court on remand applied the in pari materia doctrine and this time held that the trial judge erred by quashing the indictment because the two provisions do not run afoul of this legal principle. On his second helping of discretionary review, Vasilas contested the lower court’s application of this legal doctrine. Will the prosecution of this attorney ever go forward in the trial court?

8

Osvaldo Lopez decided to testify during his trial on two cocaine delivery charges. The State sought to impeach Lopez with a prior felony conviction and two extraneous drug-possession offenses that had been considered in the prior felony plea pursuant to Penal Code §12.45. The State justified this impeachment with the extraneous 12.45 offenses because the circumstances surrounding them—the defendant’s admission of guilt during the punishment phase of another case—essentially made them prior convictions for impeachment purposes under rule 609 of the Rules of Evidence. Correct?

9

Charged with child-sex offenses in El Paso, David Morales asked for a jury trial. The jury venire included a local assistant district attorney. During voir dire, the prosecutor maintained that she could be fair and impartial and that she had no involvement in Morales’ case. Defense counsel did not strike this prosecutor, and she served as the presiding juror, convicting Morales and sentencing him to penitentiary time.

In their motion for new trial, both defense counsel filed roll-over affidavits and also testified that they had been ineffective in leaving the prosecutor on the panel. They admitted not having read her questionnaire, which specified significant family law enforcement ties and prior instances of victimization. Defense counsel said they assumed that she would be automatically struck because of her employment status. They also denied that the decision to retain the prosecutor on the panel had been a strategic one.

The State rebutted this testimony with that of the elected trial judge. In a mid-deliberation conversation, the lead defense attorney told the judge that they had made a conscious decision to leave the prosecutor on the panel to remove another juror whom they felt it was more important to strike. Also, the judge recalled the attorney explaining that he believed that this prosecutor was as fair as anyone they had ever dealt with, so the defense was comfortable with her presence on the jury. Re-called to the stand after this revelation, lead counsel contended that he might have been less candid with the judge because he wasn’t actually testifying.

On appeal, Morales claimed that the trial court should have granted his challenge for-cause (unpreserved by the failure to use a peremptory strike) because the assistant district attorney was impliedly biased as a matter of law. What outcome is appropriate?

10

Incarcerated when his indecency-with-a-child indictment issued, David Maldonado requested a court-appointed attorney, and the trial judge complied. Within days, a Nueces County detective called the jail and arranged for Maldonado to be brought to a common jail area. The officer, completely unaware of the indictment and of the appointment of counsel, arrived shortly thereafter to visit Maldonado. When the two met, the detective introduced himself and his partner to Maldonado, who instantly handed over a folded letter and exclaimed that he had been waiting to talk to somebody. He had voluntarily written the letter before meeting with the detective. The officer asked what the letter was, and Maldonado replied that it explained “what happened that night.” The officer asked if Maldonado wanted to talk to him about what happened, and Maldonado said yes. The group departed for the police station where, after additional warnings and waivers, Maldonado gave a videotaped statement. The day after giving this confession, Maldonado met with his attorney for the first time.

During a pretrial suppression hearing, Maldonado contended that the officer violated his Sixth Amendment right to counsel; the trial judge agreed. The State appeal that ensued focused on when a represented suspect may communicate with police in his counsel’s absence and whether Maldonado’s custodial behavior constituted an initiation of communication with the police. Under these facts, who initiated communication? And will the State’s appeal successfully return the case to the trial court for further prosecution?

Answers

1a

No. Fuller v. State, AP-74980, 2008 WL 1883441, ___ S.W.3d ___ (Tex. Crim. App. April 30, 2008) (Price) (8:1:0). Without Fuller’s knowledge, Rocket Rosen could not swoop in to intervene on Fuller’s behalf. Officials are under no duty to cease an interview based solely upon an attorney’s request; only the accused may invoke the right to counsel. Furthermore, Fuller’s lack of knowledge of the Rocket’s faxed instructions did not undermine the voluntary nature of his videotaped statement. Events that happen outside a defendant’s knowledge have no bearing on his capacity to comprehend and knowingly waive his rights. See Moran v. Burbine, 475 U.S. 412 (1986).

Judge Meyers concurred, believing that Fuller waived consideration of his challenge to the trial court’s pretrial confession ruling by pleading guilty before the jury.

1b

No. Fuller v. State, AP-74980, 2008 WL 1883441, ___ S.W.3d ___ (Tex. Crim. App. April 30, 2008) (Price) (9:0). Article 1.13’s jury-waiver language does not apply to a death case based on the statute’s express exemption regarding capital cases. Tex. Code Crim. Proc. art. 1.13. Nevertheless, jury waiver may still occur in the guilt phase. A defendant’s guilty plea before a jury acts as the functional equivalent of a jury verdict on guilt, whether in a capital or noncapital scenario. Hence, there is no requirement that the jury return a formal verdict of guilt—the guilty plea in front of the jury is itself a conviction and conclusive.

2

No, although the various opinions are rather biting. Hayes v. State, PD-1923-06, 2008 WL 1883463, ___ S.W.3d ___ (April 30, 2008) (Hervey) (5:1:3). Hayes gets his windfall acquittal. Writing for the majority, Judge Hervey belittles the State’s attempt to revisit Collier saying that the only changed circumstances involve the composition of the court. Judge Johnson’s flowery concurrence describes the sort of rationale behind the original Collier decision. She opines that wise prosecutors allege only what the evidence supports, and they make a conscious gamble when they choose not to request lesser offenses in spite of weak evidence. Take a look at this quote:

“The prosecutor who gambles that the jury will convict on weak evidence and so does not hedge the bet with a lesser-included-offense instruction has chosen a path that may indeed cause a defendant who is guilty of some crime—one of the lesser-included offenses—to go free. If the prosecutor chooses to cling to the wreckage of that particular Titanic instead of choosing the lifeboat of a lesser-included offense, then he or she must also accept the consequences that follow”

In her dissent, Judge Cochran describes how the court assumes prosecutors partake of Machiavellian overreaching strategies and are constantly playing a legalistic game of “chicken.” While not using the word, she clearly believes this theory is nothing short of hogwash. Judge Cochran points out that citizens suffer—as here—when the State was not prescient enough to anticipate a successful appellate legal-sufficiency challenge. The total-acquittal windfall defendants obtain in these instances do not comport with common sense or justice. Other states have adopted the “direct remand rule” which is logically grounded on the fact that guilt of a true lesser-included offense was implicitly found in the jury’s verdict on the greater offense. Judge Cochran thinks that the court should do so as well and end this type of disservice to its citizens.

Presiding Judge Keller also dissents, reciting well-known caselaw holding that a jury’s verdict on a greater offense necessarily constitutes a finding on every essential element of a lesser-included offense. Judge Womack dissented without opinion.

3

No. The court unanimously held that this is simply not a phone-tapping case. Moseley v. State, No. PD-479-07, ___ S.W.3d ___, 2008 WL 1883450 (Tex. Crim. App. April 30, 2008) (Johnson) (9:0). The DVD camera captured and recorded Moseley’s statements that were spoken into the telephone receiver and heard in the area surrounding him without electronic assistance. Hence, no wire communication interception occurred. Overhearing and recording one end of a phone conversation without actual interception of the communication passing through the wires does not fall within the terms “intercept” or “wire communication.” The trial court properly admitted the DVD, so the murder conviction was affirmed. Can you hear Moseley now?

4

On these specific facts, a stop occurred. The court upheld the trial judge’s decision to suppress (and overturned the Beaumont court’s reversal). Garcia-Cantu v. State, Nos. PD-0936/0937-07, ___ S.W.3d ___, 2008 WL 1958956 (Tex. Crim. App. May 7, 2008) (Cochran) (6:3). This decision’s outcome hinges on the application of the appropriate standards of review. The totality of the suppression evidence, when considered in the light most favorable to the ruling, revealed that Officer Okland boxed in Garcia-Cantu’s truck with his patrol car and spotlighted the truck as soon as the officer pulled up; additionally, the officer approached the truck in an authoritative manner while inquiring what was going on. Based on this scenario, Judge Cochran ruled that the trial judge did not err in concluding that a reasonable person would not have felt free to terminate this police-initiated contact.

At the intermediate appellate level, the Beaumont court had reversed the trial judge by focusing on the officer’s spotlighting Garcia-Cantu’s truck and holding that this detail alone did not transform a citizen encounter involving an already stopped vehicle into a detention. However, the lower court’s conclusion ignored application of the totality-of-the-circumstances test. The devil is in the diverse details of any police-citizen contact because there are myriad ways that these scenarios occur. Looking just at the spotlighting aspect ignored the applicable totality-of-the-circumstances standard.

Another standard significantly undermined the State’s success in this case. Because the trial court ruled without entering findings of fact, the standard of review opened the door to consideration of implied findings supporting the court’s ruling on appeal. It is unclear whether this suppression hearing took place post-Cullen, but findings might have saved the day, and the outcome of the decision highlights the need for obtaining solid findings of fact to succeed in a state appeal. See Cullen v. State, 195 S.W.3d 696 (Tex. Crim. App. 2006) (requiring trial courts to enter findings when requested after June 28, 2006). Judge Cochran pointed out that the State did not quarrel with the law or its application but simply had a different view of the facts and inferences drawn from the record. Yet, without findings nailing down the facts, the court was required to consider contested facts in light of the suppression ruling. These findings and inferences included, for instance, that the appellant’s vehicle was legally parked, that the patrol car actually blocked the truck, that Officer Okland’s manner walking toward the truck was authoritative, and that the officer used a commanding voice and demeanor that brooked no disagreement. Specific findings could have significantly changed this outcome.

Despite the State-appeal loss, the opinion includes some useful language and research. For instance, consider Judge Cochran’s discussion of officer demeanor. When delving into the distinction between an officer’s conduct that implies an air of “He Who Must Be Obeyed” versus mere social interaction, she opines that an officer may be as aggressive as the pushy Fuller-brush man, an insistent street panhandler, or even the grimacing street-corner car-window squeegee guy so long as the demeanor does not involve official coercion. The mere approach and questioning of someone does not constitute a seizure unless it includes a show of authority when the officer’s conduct and the attendant circumstances are considered objectively. So an officer’s insistent yet friendly or neutral inquiry does not convert an encounter into a detention in a totality-of-the-circumstances analysis, but an official command would do so.

Also note the videotape’s impact: Officer Okland’s report described the truck as illegally parked on the wrong side of the road. Instead, the in-car video showed the car on the right side of the street. The backup officer could not make up his mind; he said it was legally parked on the right side but illegal because it was too far from the curb. The court assumes the truck was legally parked based on the video. Also, the court opines that the videotape supported the trial judge’s implied finding that the officer had used a demanding tone of voice. Judge Cochran’s assessment of the video repeatedly bolstered her implied findings that support of the trial court’s suppression ruling.

Judge Keller dissented and disagreed with, among other things, the majority’s reliance on the video to back up implied findings. Judge Keasler also dissented in writing. He suggested that Garcia-Cantu was “boxed-in” by his choice of a narrow thoroughfare, not the officer’s action. But see Bostick v. Florida, 501 U.S. 429 (1991) (finding a bus’s cramped confines was simply a factor, not dispositive, in evaluating whether contact constituted an encounter versus a detention).

5

No reversal required, even though the issue of consent was hotly contested. Although nothing in the remainder of the jury charge ameliorated the deficient consent instruction, the court noted that the prosecutor’s argument correctly pointed out that the jury should find that Allen did not reasonably believe that Jackie consented. Viewing the record as a whole, Judge Price found it implausible that Jackie’s bravado meant that she literally wanted to be slapped. Instead, Jackie’s statement was more of a backhanded warning of potentially dire consequences to the threatener. Allen’s own testimony revealed that she did not truly believe that Jackie harbored masochistic desires and wanted to be walloped. Even a properly instructed jury would not have found that Jackie consented to the assault or that Allen reasonably believed the same. Therefore, in spite of the charge error involving the most contested trial issue, the court found that Allen did not suffer actual egregious harm warranting reversal. The First Court’s reversal on that basis was overturned. Allen v. State, PD-468-07, 2008 WL 1958939, ___ S.W.3d ___ (Tex. Crim. App. May 7, 2008) (Price) (9:0).

6

Yes—no speedy trial violation found. The Court of Criminal Appeals reversed the Corpus court’s reversal of the trial judge’s ruling because the evidence supported the trial judge’s finding that Cantu did not really want a speedy trial, only a dismissal of his second DWI. Cantu’s complete failure to assert his speedy trial right strongly undermined his claim that a depravation of this right occurred. Cantu never asked for a speedy trial,  only an outright dismissal. And his silence during the entire pre-indictment period reflected a lack of personal prejudice. Unlike other speedy trial cases that exposed substantial prejudice resulting from the delay, Cantu reported experiencing only minor inconveniences. The court affirmed the trial judge’s conclusion that Cantu was not denied his Sixth Amendment right to speedy trial. Cantu v. State, PD-1176-07, 2008 WL 1958983, ___ S.W.3d ___ (Tex. Crim. App. May 7, 2008) (Cochran) (9:0).

7

Yes. The Court of Criminal Appeals affirmed the Dallas Court’s second opinion but for a different reason. In pari materia does not even apply when comparing a statutory provision to a court-made rule such as Rule 13. Being a doctrine of statutory interpretation, in pari materia seeks to discern legislative intent and harmonize different legal provisions passed by the same governmental body. The justification for applying this doctrine fails when juxtaposing provisions from two diverse legal sources. Indeed, the maxim about comparing apples and oranges applies to Vasilas’ erroneous attempt to invoke in pari materia to undermine his prosecution. Thus, the court of appeals correctly determined that the trial court erred in granting the motion to quash, albeit for a different reason. State v. Vasilas, PD-1473-06, 2008 WL 1958986, ___ S.W.3d ___ (Tex. Crim. App. May 7, 2008) (Holcomb) (8:0).

8

Nope, no impeachment allowed with 12.45’d cases because they are not prior “convictions.” Lopez v. State, PL-1124/1125-07, 2008 WL 2081616, ___ S.W.3d ___ (Tex. Crim. App. May 14, 2008) (Keller) (9:0). Considering the confluence of the two provisions (that is, §12.45 and Rule 609) and the plain language of each, Presiding Judge Keller holds that, in a general sense, for there to be a conviction, there must ordinarily be a judgment of guilt for the crime in question. The court found the State’s claim even less meritorious than prior cases that sought to utilize a deferred adjudication for impeachment purposes under Rule 609. Deferred cases are not considered convictions even though their proceedings clearly involve a trial court’s acceptance of a guilty plea.

Also, Judge Keller noted that the State had a choice which, unfortunately, assumes that the same county is making each decision. According to this perceived choice, if the State wants to use an extraneous crime as a prior conviction in the future, the State need not consent to a §12.45 procedure and, instead, should seek a conviction on that case.

9

The El Paso Court of Appeals reversal was reversed. Code of Criminal Procedure article 35.16 permits challenges for-cause if a potential juror has a bias or prejudice in favor of or against the defendant. Because no showing of actual bias occurred, the only argument supporting bias stemmed from the prosecutor’s employment. While article 35.16 covers some forms of implied bias (i.e., relationship within the third degree of consanguinity or affinity to any prosecutor in the case), this provision does not include an assistant district attorney who has not been personally involved in the case. From a purely statutory view, the trial judge did not abuse his discretion by denying the article 35.16 challenge for-cause. However, the court contemplated that the Sixth Amendment promise of an impartial jury might warrant such a challenge in spite of article 35.16. The El Paso court relied completely on the doctrine of implied bias, finding that the prosecutor’s employment status automatically rendered the jury impartial. Consideration of Justice O’Connor’s comments in her concurrence in Smith v. Phillips, 455 U.S. 209 (1982) weighed heavily in the implied-bias analysis. In that case, Justice O’Connor found implied bias resulted from a prospective juror’s subsequent application to the district attorney’s office for employment as an investigator, especially because defense counsel did not learn of this fact until the trial ended.

In spite of delving into an enlightening discussion of the implied bias doctrine, toward the end of the opinion, Judge Price put the brakes on deciding whether the Sixth Amendment embraces this doctrine. Instead, the court wrote that, even assuming that the implied bias doctrine required exclusion from jury service of a prospective juror who is a prosecution employee, defense counsel was also entitled to make a legitimate tactical decision not to exercise a peremptory challenge. Trial counsel may make difficult choices between exercising a scarce peremptory strike to preserve a challenge issue versus striking another veniremember to obtain a perceived advantage at trial. Such tactical decisions do not violate the Sixth Amendment right to effective assistance of counsel. Therefore, the Court of Criminal Appeals overturned the lower court’s reversal of this case, and the cause was remanded to consider other related, yet unaddressed, issues. Morales v. State, PD-0462-07, 2008 WL 2081617, ___ S.W.3d ___ (Tex. Crim. App. May 14, 2008) (Price) (8:1:0).

10

Maldonado initiated communications with the officer and, thus, the Court of Criminal Appeals affirmed the Thirteenth Court’s reversal of the trial court’s suppression ruling, reinstating prosecution. State v. Maldonado, PD-1552-07, 2008 WL 2261776, ___ S.W.3d ___ (Tex. Crim. App. June 4, 2008) (Keller) (5:3:1). Because the issues before the Court involved mixed fact/law questions not dependent upon demeanor, de novo review applied. Relying heavily on several Supreme Court cases and their progeny, Presiding Judge Keller centered her consideration on Patterson v. Illinois, 487 U.S. 285 (1988) which found that law enforcement officers could validly initiate communication and seek waiver of counsel after a defendant’s Sixth Amendment right to counsel had attached when the defendant had not invoked his right to counsel and was not yet represented, either. Yet Patterson has also led to the decision that the Sixth Amendment does not permit police-initiated interrogation of an indicted accused who has retained or been appointed defense counsel—absent notice to the defense attorney. Steering between the proverbial Charybdis and Scylla (monsters on either side of a waterway Ulysses encountered on his odyssey), an existing Sixth Amendment attorney-client relationship does not prevent a defendant’s unilaterally waiving his right to counsel so long as he initiated the communication because nothing in the Sixth Amendment prevents a represented suspect from choosing, on his own, to speak to authorities without his attorney’s presence.

With this backdrop, Judge Keller’s analysis also considered the “deliberately elicited” test arising out of Massiah v. United States, 377 U. S. 201 (1964), to conclude that a Sixth Amendment violation arises where police took some action, beyond mere listening, designed to deliberately elicit incriminating remarks. Applying these concepts to the instant facts, the court questioned whether the detective engaged in conduct designed to elicit incriminating information by simply introducing himself. Although it is true that the detective appeared on the verge of violating the Sixth Amendment, he did not have the opportunity to do so because Maldonado handed him the letter and essentially beat him to the punch. Because Maldonado was entitled to unilaterally waive his Sixth Amendment right to counsel, his subsequent confession was not tainted.

Judge Holcomb’s dissent imbues the detective with imputed knowledge of Maldonado’s invocation of his right to counsel and characterized the detective’s affirmative steps of having Maldonado brought out into an open jail area as contrary to Maldonado’s Sixth Amendment rights because it set up an encounter outside his attorney’s presence. ✤