As the Judges Saw It
March-April 2009

Court of Criminal Appeals update

Tanya S. Dohoney

Assistant Criminal District Attorney in Tarrant County


After Anderson County’s dispatch received a call about an assault, a deputy was sent to a nearby convenience store to meet with Arthur Schneider, the victim. Arthur told the deputy that he, Michael Harvey Sheppard, and a gal named Elizabeth Miley had been relaxing in the comfort of Sheppard’s trailer home enjoying some speed until Sheppard threatened Arthur with a knife. After learning of these details, the deputy followed Arthur to Sheppard’s trailer home where the officer was welcomed at the door not only by Sheppard, but also by a strong chemical odor. The deputy frisked Sheppard and found a large folding knife in his pants pocket. The deputy handcuffed Sheppard and informed him that he was just being detained while the officer secured the scene and made sure that no one else was inside. The deputy described his use of handcuffs as a safety precaution while he accounted for the presence of Miley.

While briefly sweeping the trailer’s interior, the deputy saw a purse with some needles, an open orange box with a powdery substance, and a plastic baggie in plain view on a small dining table. Miley had apparently skedaddled, so the deputy returned to the trailer entrance, stepped outside, and uncuffed Sheppard. Next, Sheppard consented to a search and the drug task force was called to search what appeared to be a meth lab.

At a suppression hearing focused on these events, the trial judge ruled that the deputy did not have specific articulable reasons to justify the pat-down search or to handcuff Sheppard; the trial judge further found that, by handcuffing Sheppard, an illegal warrantless arrest occurred. Assuming the propriety of the pat-down and protective sweep, is a person “arrested” under the Fourth Amendment if he is temporarily handcuffed and detained, but then released?


Returning to Michael Harvey Sheppard’s meth-infused facts, recall that the trial judge suppressed the evidence based upon several factors which, according to the court, resulted in an illegal arrest. The State appealed the adverse pretrial ruling after the judge entered written findings of fact. While no express finding specifically stated that the deputy’s testimony was credible, the court’s fact-findings dovetailed with the officer’s factual assertions and nothing in the record suggested that the judge doubted the witness’s credibility. Although the court of appeals recognized that the facts supporting the pat-down were objectively reasonable, the Tyler court decided that the trial judge must not have believed the deputy. Hence, they found the arrest illegal. Did the intermediate appellate court utilize the proper standard of review?


This “cold case” prosecution involved the 1986 rape and murder of 11-year-old Vanessa Villa. Law enforcement officials never suspected Juan Ramon Segundo until 2005 when, during a routine CODIS computer run, his DNA profile matched that from sperm found in Vanessa’s vagina.

To prove Segundo’s prior rape/murder conviction during his capital trial, the State relied on Segundo’s certificate of parole revocation as proof and admitted over a Crawford objection. The Board-of-Pardons-and-Parole-generated document contained boilerplate, pre-printed language with a sterile fact recitation explaining that Segundo violated his parole and was subject to re-arrest and re-incarceration. Was Segundo’s Crawford objection correct?


Kaufman County indicted Beverly Kirkpatrick for various crimes including tampering with a governmental record. Depending upon the facts alleged, tampering is either a felony or a misdemeanor crime. The wording of Kirkpatrick’s tampering indictment alleged a misdemeanor because it lacked an additional element necessary to bump the charges up to felony status. However, it appeared that the prosecution had intended to file felony charges because the heading on the indictment form stated “3rd Degree Felony” and referenced Texas Penal Code §27.10(a).

Kirkpatrick raised a subject-matter jurisdiction complaint for the first time on appeal. She alleged that the trial court never possessed jurisdiction because the indictment had alleged only a misdemeanor; the Dallas Court of Appeals agreed. Does district court jurisdiction lie when an indictment filed in that court alleges only a misdemeanor?


Multiple perpetrators carried out a midnight home invasion of a Dallas apartment occupied by seven people. Shots flew and, of the three dead adults, Virginia Ramirez had been in the early stages of pregnancy. The State obtained two separate capital indictments against Sheldon Roberts for the killing spree, waived the death penalty in each, and obtained two convictions. One of the capital cases alleged multiple murder as the aggravating component of the charge; the named victims were Ramirez and the embryo that she had carried. Hence, this indictment alleged that Roberts intentionally and knowingly caused the death of both Ramirez and her unborn child.

Trial evidence indicated Ramirez’ pregnancy was not apparent in general, nor to Roberts when he busted in shooting and shot her through the door. Does proof that Roberts killed a pregnant woman and her embryo in the same transaction establish the specific intent to kill each victim in a multiple, capital murder scenario when there was no knowledge of the pregnancy? Stated differently, does the doctrine of transferred intent transform a shooter’s intent to kill an embryo’s mother into support for an intentional killing of the embryo as well?


Two men accosted and robbed three men who were hanging out at a Houston apartment complex. The perpetrators asked for money, then shot the victims when they complied. One of the victims died soon thereafter.

Later, Raul Martinez was arrested for this capital crime and taken into custody. Houston officers failed to Mirandize him immediately upon his arrest. The officers questioned Martinez about the robbery/murder at the police station without any prophylactic warnings. Martinez was taken for several hours to a police polygrapher but was still not warned. The officers told Martinez that he failed the polygraph, then finally took him before a magistrate who read Martinez his constitutional and statutory warnings. Upon returning to the central holding station after the magistration, the officers conducted another interrogation about the robbery/murder and repeated the Miranda warnings. Martinez gave a videotaped statement regarding the capital crime. During the statement, Martinez mentioned that he had become aware of some facts during his polygraph examination.

Did the officers’ failure to Mirandize Martinez before the initial interrogation and the polygraph examination lead to constitutional error in the admission of the videotaped statement at trial?


A Montgomery County DPS trooper saw Justin Amador traveling on I-45 at an unspecified, yet excessive, rate of speed during the wee hours of the morning. After she stopped him, she observed Amador’s slow response to her requests and his fumbling to find his license. The trooper described Amador’s speech as mumbling under his breath and, when he stepped out of his vehicle, she smelled alcohol on him. She conducted three standard field sobriety tests (SFSTs) and, on the basis of his performance, she arrested him for DWI.

Fast-forward to Amador’s motion-to-suppress hearing: Am-ador complained that probable cause did not support Trooper Fountain’s arrest of him. Fountain, the only witness (and called by Amador), testified to the above facts, some of which were also admitted via showing the road-side video. Curiously, at the hearing, the State did not question Fountain regarding any of the details she observed when administering the SFSTs, including how Amador performed, the scores of the tests, or even whether Amador failed them. The video did not include Amador performing the SFSTs, but it did show Amador denying having anything to drink when responding to the officer’s assertion that he smelled of alcohol. At the close of the hearing, Amador’s counsel pointed out that the burden to prove a valid arrest fell on the State; he contended that the State failed to adduce the details of the SFSTs including the outcome of those tests controlled. The State argued that Trooper Fountain relied upon the conduct she observed during the traffic stop combined with the (unstated) results of the SFSTs and, therefore, arrested Amador for DWI. The trial judge denied the suppression motion but did not enter fact findings.

On appeal, the Beaumont appellate court found that the suppression evidence failed to demonstrate that Trooper Fountain had reasonable facts to support her arrest decision, primarily due to the skimpy SFST evidence. The State argued that the trial court was authorized to infer that Amador failed the SFSTs. Who is correct?


Audrey Linton, a young deaf woman who attended a local junior college, committed DWI. When Linton rear-ended another car on a misty November morning in Montgomery County, she reeked of alcohol, failed field sobriety testing and, at the station, registered more than two times the legal limit.

During every turn of her ensuing prosecution, Linton raised issues relating to her deafness. Showing great foresight, the trial judge ordered that the entire criminal proceeding be videotaped, providing the appellate courts with much more than the proverbial cold record.

In general, the testimony revealed that Linton’s deafness occurred prior to her learning to speak, rendering her prelingually deaf. Expert testimony also categorized her as semi-lingual and linguistically incompetent since she was neither proficient in English, nor straight ASL (American Sign Language). Further evidence showed that the defendant read at a fourth-grade level and, accordingly, the defense pointed out that Miranda warnings are written for eighth-grade comprehension and the DIC-24 corresponds to a 12th grader’s capability. Nevertheless, Linton had obtained a driver’s license and was enrolled in junior college after graduating from high school. Still, her limited vocabulary undermined her ability to converse via finger-spelling, a common form of deaf communication. Testimony suggested that “deaf-relay” interpretation services are considered the best type of interpretative assistance; although requested, the trial judge did not employ this type of service.

Defense counsel raised specific legal issues germane to her disability throughout. In a motion to suppress, Linton argued that she had not understood her right to refuse the breath test. After denial of her suppression arguments, the trial judge appointed two interpreters; throughout the entire proceedings, the judge repeatedly stopped the proceedings to inquire about her ability to understand the events, to provide additional time for attorney consultation, and to provide additional resources. In fact, after a mid-trial motion for mistrial, the trial court brought yet another interpreter on board to sit at counsel table with the defendant. The jury ultimately found her guilty. After the judge denied a motion for new trial where the defense expert explained that Linton could not comprehend 20 to 25 percent of the courtroom discussions, the case proceeded to appeal.

In light of the deficiencies in Linton’s communication and understanding, the question on appeal became whether the interpretive services that were actually employed were constitutionally adequate such that the defendant could understand and participate in the proceedings, sufficient to convey due process. Did the trial court take adequate steps to ensure that this deaf defendant sufficiently understood the proceedings against her thereby affording her due process?


While under arrest for a parole violation and an unrelated assault, Austin homicide detectives (Scanlon and Burgh) sought to question Milton Gobert. At the beginning of their interview, they advised Gobert of his constitutional and statutory rights. When asked if he understood the warnings conveyed, the following exchange took place:
Gobert:    “I don’t want to give up any right, though, if I don’t got no lawyer.”
Scanlon:     “You don’t want to talk?”
Burgh:    “You don’t want to talk?”
Gobert :     “I mean, I’ll talk to y’all. I mean, I know, you know, what she had said about it, you know. I’ll speak with y’all, but (inaudible), man. I mean, I’ll speak with y’all, you know.”
Scanlon:     “Okay, signing this—signing this is not giving up your right. Signing this is acknowledging that this was read to you. … Okay? Your choice to talk to us is different. This—all this is, is acknowledging that you were warned.”

After additional conversation, the interrogation continued for several hours and Gobert confessed to committing murder.

The trial judge ruled Gobert’s initial statement constituted an unequivocal invocation of his Fifth Amendment right to counsel and suppressed the confession. In fact, the trial judge said he couldn’t imagine a more unequivocal statement. The Austin Court of Appeals denied relief after the State appealed the suppression ruling. In later pleadings, the State argued that review of the DVD of the interrogation versus review of a written transcript was more accurate and indicated that the specific statements were actually somewhat unintelligible. The interim court reversed its own ruling, this time characterizing Gobert’s statements as equivocal. Did Gobert invoke his Fifth Amendment rights?


Daniel Layton’s DWI charges arose after a Houston officer discovered Layton’s vehicle at 4 in the morning, straddling a crosswalk, and protruding into an intersection.

The officer’s in-car camera recorded the scene-of-the arrest events and conversations, and the jury saw the tape. On that recording, Layton told the officer that, although he’d had four to six drinks, he was merely buzzed. In response to questions, Layton admitted having taken Xanax and Valium within the past day, purportedly for high blood pressure. The arresting officer opined that these prescriptions typically treated other conditions, and he questioned Layton about having read the prescription inserts. The officer ultimately suggested to Layton that he had exercised poor judgment by drinking “on top” of these medications.

Harris County charged Layton with driving while intoxicated and the pre-Barbernell information solely alleged alcohol as the only intoxicant. See State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008) (holding that the State need not allege the form of intoxicant). Pretrial, Layton argued relevancy thwarted admission of the drug-related conversation captured on video. Other than the statements contained on the in-car video, no other evidence related to how the Xanax and Valium, apparently taken at least 12 hours pre-arrest, had any effect on the appellant’s intoxication. Should the trial judge have allowed the jury to hear the evidence of the appellant’s Xanax and Valium use under these circumstances?



No, these facts constituted only a temporary detention—precisely what Terry permits. Sheppard v. State, 271 S.W.3d 281 (Tex.Crim. App. December 10, 2008) (Cochran) (7:1:1). While handcuffing a person results in that person being “seized” under the Fourth Amendment, it does not automatically convert a detention into a Fourth Amendment “arrest.” While the practice of handcuffing a detainee should be the exception, not the rule, special circumstances may necessitate an officer’s using handcuffs during a detention to thwart the suspect’s attempt to frustrate the inquiry. No bright-line rule applies to this analysis, but factors to consider include the amount of force displayed, duration of the detention, efficiency of the investigative process, the location of investigation, and officer’s expressed intent.

Here, temporarily handcuffing Sheppard, a man who had just threatened one person with a knife while using methamphetamine, was reasonable while the officer made a brief sweep of the trailer to locate  Miley who could have been either a victim or a potential danger to the officer. The officer did not handcuff Sheppard any longer than was necessary to conduct the brief sweep, and he informed Sheppard that he was not under arrest. Given the totality of these circumstances, a reasonable person would believe the seizure was sufficiently nonintrusive to be an investigative detention.

Judge Cochran described the definition of “arrest” found in article 15.22 of the Code of Criminal Procedure as legislatively obsolete because the statute pre-dates Terry v. Ohio and does not distinguish between custodial arrests and temporary detentions. Compare Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) with Tex. Code Crim. Proc.  art. 15.22 (arrest occurs when person actually placed under restraint).


No. Sheppard v. State, 271 S.W.3d 281 (Tex. Crim. App. December 10, 2008) (Cochran) (7:1:1). The Tyler Court of Appeals mistakenly speculated about unexpressed trial court fact-findings and credibility assessments. When a trial judge enters explicit findings of fact, those historical findings must be granted deference. Appellate courts should not conjure up new and different factual or credibility findings.

Judge Cochran expounds that fact-findings explore the who, what, when, where, how, or why of a scenario; they also include credibility determinations. In this case, one of the judge’s fact-findings specified that the deputy did not have specific articulable facts to support a reasonable suspicion justifying the trailer doorstep pat-down which led to further intrusion. Judge Cochran opined that this purported fact-finding mixes the apples of explicit factual findings with the oranges of conclusions of law and is not a true fact-finding warranting deference. In this case, the trial court’s written findings and conclusions revealed that the judge believed the deputy’s testimony but did not agree that the conduct was reasonable under the Fourth Amendment.

Appellate courts review the legal determination of detention, reasonable suspicion, and probable cause under the Fourth Amendment de novo while granting great deference to a trial court’s factual findings. Applying this standard and utilizing the facts nailed down in the judge’s express findings, the court overturned the trial judge’s ruling and upheld the officer’s actions. A reasonable and prudent officer investigating a recent residential assault involving a knife where the alleged attacker and victim were using methamphetamine would conduct a brief frisk to see if the person found at the home still possessed a weapon. The lower court’s reversal, based upon its erroneous determination that the trial judge must not have believed the officer, was reversed.


No. Documents reciting such boilerplate statements that routinely and unambiguously catalogue a factual matter are non-testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). They include no subjective incident report created by law enforcement, nor do they graphically document detailed testimonial observations, both of which would be inadmissable. Such objective public records and business records documenting prior convictions or other similar official findings are non-testimony and beyond Crawford’s prohibition. Segundo v. State, AP-75,604, ___ S.W.3d ___, 2009 WL __________ (Tex.Crim.App. 2008) (op. on reh’g) (Cochran) (9:0).


Yes. Texas Constitution article V, §12(b) states that the presentment of an indictment or information to a court invests the court with jurisdiction. Additionally, under the watershed Studer case, a defendant waives or forfeits the right to object to a defect in the form or substance of an indictment by failing to raise the claim before the date the trial on the merits commences. See Studer v. State, 799 S.W.2d 263 (Tex.Crim. App. 1990); Tex. Code Crim. Pro. art. 1.14(b). Even though the indictment properly charged a misdemeanor and failed to allege the element necessary to charge a felony, the indictment’s return in felony court put Kirkpatrick on notice that a felony was intended. Hence, the court of appeals erred by finding subject-matter jurisdiction lacking. Kirkpatrick v. State, PD-0873-07,0874-07, ___ S.W.3d ___, 2008 WL 5234248 (Tex. Crim. App. December 17, 2008) (Johnson) (9:0).


No and no. Murder is a result-of-conduct crime, and capital murder arising out of the murder of multiple victims requires a specific intent to kill each victim. Trans-ferred intent applies when a person other than the intended victim is harmed. Transferred intent does not apply where both the intended victim and another person die. Culpability-wise, the intent to kill attaches only to one death (transferred or not). Thus, transferred intent may be used to support a second capital death (multiple victims in the same transaction) only if there is proof of intent to kill the same number of persons who actually died. Roberts v. State, PD-1054-07, ___ S.W.3d ___, 2008 WL 5234254 (Tex.Crim. App. December 17, 2008) (Johnson) (4:2:3), overruling Norris v. State, 902 S.W.2d 428 (Tex. Crim.App 1995). In this case, Roberts lacked knowledge of the embryo’s existence and, as such, he could not form a separate specific intent to kill the embryo.


Yes. When officers use a two-step interrogation strategy, postwarning statements related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Based upon these question-first-and-warn-later facts, the court opined that the absence of Miranda warnings at the beginning of the interrogation process was no mistake but, instead, a conscious choice. Hence, the officers’ failure to apply any curative measures to ameliorate the initial harm caused by the Miranda violation rendered the videotaped statement inadmissible. The court remanded the case for a harm analysis. Martinez v. State, PD-1917-06, ___ S.W.3d ___, 2008 WL 5234268 (Tex. Crim. App. 2008) (Johnson) (4:1:4). This case attempts to apply the divided opinion in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (2004).


The State. Given the trooper’s suppression testimony, the trial judge could reasonably infer that Amador failed the field sobriety tests on the morning in question. Amador v. State, PD-0144-08, ___ S.W.3d ___, 2009 WL 80204 (Tex. Crim.  App. January 14, 2009) (Holcomb) (8:1). Applying the totality of the circumstances test, Trooper Foun-tain possessed sufficient probable cause to arrest Amador even without the FST evidence. As the finder of fact, a trial judge may make reasonable inferences from evidence presented. In addition to the direct evidence presented, the trial court could infer myriad additional facts including that Amador: 1) consumed alcohol on the night of his arrest which led to impaired mental faculties and driving at an unsafe rate of speed; 2) experienced impaired physical faculties as illustrated by his slow speech and conduct; 3) lied about drinking when responding to Officer Fountain; and 4) performed in less-than-ideal fashion on the SFSTs. Applying the proper standard, that is, consideration of the totality of the evidence and its attendant inferences, and keeping in mind that the United States Supreme Court has never specified what degree of probability is required for probable cause to arrest, the Court of Criminal Appeals concluded that the trial judge did not abuse its discretion when overruling Amador’s motion to suppress.

The court distinguished the specific facts and inferences shown in this record with the conclusory statements that led to the prosecution’s defeat in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) (where the only evidence supporting the detention’s reasonableness was the officer’s conclusory statement that the driver committed the traffic violation of following too closely).


Yes. Linton v. State, PD-0413-08 ___ S.W.3d ___, 2009 WL 80205 (Tex. Crim. App. January 14, 2009) (Cochran) (8:1:0). Trial courts are granted wide discretion in determining the adequacy of interpretive services because it is the judge who is present to observe the defendant’s level of comprehension during the proceedings. Due process does not require a judge to employ the “best” means of interpretive services but that constitutionally adequate interpretation occur in ensure understanding and participation. In Linton’s case, evidence at the various phases revealed that, from the beginning, the defendant communicated effectively and comprehended the proceedings. For instance, at the crash site, she adequately exchanged information with the woman she rear-ended. She also communicated in writing with her arresting officer at the station. During trial, Linton communicated with her interpreters; in fact, they ultimately chose to use a combination of languages that she had successfully used to communicate with them. She understood the proceedings well enough to aid her counsel. She also responded coherently and cogently to courtroom inquiries, sometimes even before the translation occurred.

The Court of Criminal Appeals determined that, based upon the record before it, the defendant understood the proceedings well enough to assist in her own defense. In fact, no communication difficulties between her and her attorney were apparent in the record, in spite of her repeated claims. Indeed, review of a colloquy between Linton and the prosecutor during the suppression hearing contradicted the linguistically-incompetent designation since it showed her cogently contending that she did not understand her Miranda rights or the breath test procedures. Whatever the difficulties, the court reasoned that the appellate question was not whether perfect communication or translation occurred but whether due process was achieved. The very best form of interpretive service is not constitutionally required unless the defendant shows that, without it, she cannot assist in her own defense. Also, the court considered that this was a simple DWI trial without complex legal questions. All in all, nothing in the record showed that the trial court abused its discretion because Linton received constitutionally adequate interpretive services throughout the proceedings.


Yes. Gobert v. State, PD-0202-08, ___ S.W.3d ___, 2009 WL 187828 (Tex. Crim. App. January 28, 2009) (Price) (8:1:0). While not every mention of a lawyer suffices to invoke the Fifth Amendment right to presence of counsel during questioning and an ambiguous/equivocal reference does not even require clarification by officers, a clear invocation requires a cessation of questioning. Based upon the totality of the circumstances, Judge Price writes that, although Gobert did not make a straightforward request for counsel, he adequately communicated his desire to deal with his police interrogators only through, or at least in the presence of, a lawyer. By saying that he did not want to “give up any right” in the absence of an attorney, Gobert made his desire abundantly clear. The court construes Gobert’s words as an indirect expression of a possible willingness to waive, among other things, his right to silence, but only on the unqualified condition that he first be afforded his right to counsel. Price concludes that the conditional nature of a statement does not render it equivocal or ambiguous. This holding is consistent with the Supreme Court’s treatment of a defendant’s refusal to give a written statement without counsel being present. See Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828 (1987). And, unlike the Sixth Amendment right to counsel which is offense-specific, the Fifth Amendment right applies to any offense about which the police might wish to question a suspect. Once a defendant invokes his right to have counsel present during any police-initiated interrogation, police must cease interrogation until counsel has been provided or the suspect himself reinitiates a dialogue.


No. Layton v. State, No. PD-0408-07, ___ S.W.3d ___, 2009 WL 250080 (Tex. Crim. App. February 4, 2009) (Meyers) (8:1). The appellant’s use of these medications should not have been admitted without the State establishing its relevance to his intoxication by alcohol, the theory alleged. Considering the length of time between medication ingestion and the arrest (at least 12 hours) and because nothing showed the reliability of the officer’s knowledge regarding the uses of Xanax, Valium, or the synergistic effects of medication-alcohol combinations, the trial court abused its discretion by admitting the drug-use evidence and the officer’s drug-related statements. (There was apparently no synergistic-effect charge submitted).

This eight-vote opinion’s loose language could make mischief. Note that a differently-charged DWI (under Barbernell) should render a different result; here, the evidence needed to relate solely to intoxication by alcohol. Also, recognize what the court does not hold: Although the appellate court quotes the defense attorney’s trial-level arguments and they mention extrapolation evidence, the decision does not require extrapolation. Unfortunate-ly, simply because the word was breathed in the opinion, some will suggest this. Both the majority and Womack’s rather brief dissent seem to focus on the propriety of the officer’s opinions regarding the prescription drugs, with the majority requiring more—in the form of expert testimony—than the officer’s bare assertions about the synergistic impact of taking the meds when drinking. ✤