Mark Ivey committed misdemeanor DWI and elected to go to the jury for punishment. He did not fill out the paperwork for probation, thereby making it impossible for the jury to recommend probation. The jury sentenced him to 35 days in jail. After conferring with the jury informally, the judge placed Ivey on probation. Ivey appealed on the ground that the trial judge lacked the authority to suspend any sentence the jury assessed. (That’s right, the defendant was upset that he got probation on a DWI.) Can the judge put someone on probation even though the jury did not recommend or consider it?
A jury convicted Forrest Stokes of felony theft, and Stokes timely filed a motion for new trial alleging ineffective assistance of counsel. No hearing was held on the motion, and it was overruled by operation of law. The only evidence that the motion had been “presented” to the trial court (a pre-requisite for complaining about the denial of a hearing) was an unsigned notation on the trial court’s docket sheet “Motion New Trial presented to court not ruling per judge.” The court of appeals held that Stokes had failed to meet the threshold showing of presentment so he could not complain about the denial of a hearing on his motion for new trial. The court reasoned that the docket notation was unsigned and gave no indication that it was signed by the judge. Therefore, the trial court did not abuse its discretion in declining to hold a hearing on the motion. Has Stokes “presented” his motion for new trial to the trial court (as opposed to just the court clerk)?
David Billodeau was charged with aggravated sexual assault. He had been injured in a bicycle accident and stayed in the home of J.B., (no relation to John Bradley) the then-8-year-old complainant, to recuperate. At one point, Billodeau gave J.B. two remote-controlled cars. (Trust me, this random detail will become important later.) When J.B.’s mother told him he could not accept the gift, J.B. flew into a rage (he had been diagnosed with ADD and bi-polar disorder the year before) and threw the cars at Billodeau. After Billodeau moved out of the house, J.B. made outcry to a neighbor that Billodeau had taken J.B. to a motel and sexually assaulted him. (Though factually it looked like it happened several months later, J.B. testified that he thought he made outcry to his neighbor the very next day.) Doctors found no sign of trauma, but that isn’t uncommon. CPS removed J.B. and his sister from the home (which J.B. had wanted to avoid—he and his sister had previously been molested by someone else, making it look as though his parents were failing to protect him), and he returned from CPS custody 11 months later even more prone to fits of rage.
At trial, Billodeau sought to question the child about threats he had made to his neighbors, the Klines, after the sexual assault occurred. J.B. had threatened to call CPS and falsely report that the Klines had molested him. The child also threatened Mrs. Kline’s son in the same manner when he got angry with him. J.B. denied making these threats outside the presence of the jury, and the trial court refused the defense request to question J.B. about the threats because they happened after the sexual assault, thus preventing the defendant from calling the Klines to impeach J.B.’s denials about the threats. Does it matter that Billodeau made the false allegations after the offense?
Gregory Pollard was charged with retaliation against Christopher Kirk who had given a statement to police implicating Pollard in an aggravated sexual assault case. After Kirk gave his statement to police, he recanted because Pollard had threatened to hurt him or have a biker named “Wolf” hurt him. (Aside: Do bikers have their own naming ritual like in Animal House?) Kirk testified that he believed Pollard would carry out his threat because he knew about Pollard’s “violent past,” which included a 1986 murder conviction. However, this did not contribute to his fear of Pollard. Kirk also testified Pollard’s past did not contribute to his recanting of his statement to police or caused Kirk to be more likely to believe that Pollard would carry out his threat. The State introduced Pollard’s 1986 murder conviction and argued that Kirk’s statements that he knew about Pollard’s statements to Kirk about the past murder were relevant to show Kirk’s state of mind. The court of appeals held that the conviction itself should not have been admitted. Are Pollard’s statements to Kirk about the past murder also inadmissible?
Donny Davis and his buddy Justin Schimpf broke into an Amarillo apartment and stole a Playstation 2, opting to go retro despite the advent of a number of superior next-generation gaming consoles. They later pawned it. Several people, including the owner of the burglarized apartment, saw Davis lurking around the complex with Schimpf. However, Davis admitted to police that he had been in the area but that he’d met up with Schimpf who asked him to accompany him to pawn a Playstation 2. Of course, Schimpf testified against Davis, but trial counsel did not request an accomplice witness instruction, nor did the trial court instruct on accomplice witness testimony on its own. Davis was convicted and (because of his two prior felonies) sentenced to 67 years in prison.
At the hearing on the motion for new trial, the trial court held that the failure to request the instruction was not part of strategy, but given the state of the evidence and the totality of the representation, trial counsel had not rendered deficient performance. Additionally, the trial court held that no reasonable probability existed that the outcome would have been different had the instruction been included because of the totality of the evidence. Was there ineffective assistance?
Antonio Schmidt struck his girlfriend, Kimberly Lee, after he found out that she’d given a statement to police about “some stuff” that happened in Dallas. Schmidt struck the victim during a prolonged attack that included yelling, cursing, grabbing, pushing, kicking, dragging, and punching. (Schmidt argued that he struck her not in retaliation but just because he’s a jerk.) A jury found Schmidt guilty of retaliation for threatening to harm the victim “by an unlawful act, to wit: striking.” On the first trip to the Court of Criminal Appeals, the court held that someone can threaten harm by actually causing it. In other words, Schmidt threatened to strike Lee by actually striking her. On remand, Schmidt complained that the trial court erroneously failed to instruct on the lesser-included offenses of misdemeanor assault by causing bodily injury and misdemeanor assault by threat. Are misdemeanor assault by threat and misdemeanor assault by bodily injury lesser-included offenses of retaliation?
A woman in a “medium-crime” subdivision flagged down a patrolling officer at 10:30 p.m. to report a white male dressed all in black who was walking around and looking into houses. The officer did not know if this meant he was merely looking at them or if he was walking up to them and looking into the windows. Both the woman and the officer knew there had been several burglaries in the neighborhood. The officer drove off in the direction the woman had seen the man walking. A few blocks away, the officer saw Baldwin, a man matching the description. He made eye contact and Baldwin began walking quickly away from the officer. The officer stopped his patrol car, got out, approached Baldwin, and asked for identification and asked where he lived. Baldwin did not respond to the question about where he lived and instead asked why the officer wanted to see his ID. According to the officer, Baldwin looked nervous. Because this behavior was consistent with other uncooperative persons that the officer had encountered, the officer feared for his safety, and he handcuffed Baldwin. The officer asked where Baldwin’s identification was, and Baldwin indicated it was in his right pants pocket. The officer considered this permission to reach into Baldwin’s pocket, so he did, and he retrieved the wallet. The officer took Baldwin’s ID out of the wallet; doing so revealed a baggie with cocaine in it behind the wallet. According to the Court of Criminal Appeals, which illegal action of the officer rendered the seized evidence inadmissible?
Handcuffing the defendant ___
Searching his pocket ___
The trial court found David Weir guilty of burglary of a habitation after he violated the terms of his deferred adjudication. The trial court orally sentenced him to 10 years in prison but added restitution, court costs, and attorney’s fees in the written judgment. The court of appeals modified the judgment to exclude some of the financial obligations because some of them were actually part of the sentence and should have been orally pronounced to be part of the judgment. Which monetary requirements don’t have to be orally pronounced to be part of the judgment?
Attorney’s fees _____
Court costs _____
Mark De La Paz was prosecuted for his involvement in the Dallas County “fake drug scandal.” De La Paz was ultimately charged with tampering with physical evidence for knowingly making a false statement in an offense report and aggravated perjury for making those same false statements under oath. The prosecution specifically focused on De La Paz’s involvement in the wrongful arrest of Jose Vega. Roberto Gonzalez and De La Paz’s confidential informant, Daniel Alonso, manufactured 22 one-kilo packages of pool chalk and planted them in a Cadillac parked in a garage where Vega worked.
Gonzalez and Alonso met with De La Paz and another officer to arrange a “buy-bust” deal with Vega. Both in his offense report and under oath at his previous trial, De La Paz testified that he and his partner drove by the garage and observed Alonso contact Vega. No one else witnessed the contact. When the case came under scrutiny, De La Paz asked his partner to lie that they had actually seen the contact. De La Paz argued at trial that he had not lied because he’d actually seen the contact and presented a demonstration to show that his angle was different from the angle of the surveillance camera. However, the State, on rebuttal, introduced evidence of two other “buy-bust” deals that De La Paz had participated in as extraneous offense evidence to rebut the defensive theory that everyone else was lying and De La Paz was telling the truth. This other evidence demonstrated that De La Paz had previously said he’d seen an exchange or contact between the informant and the subject under investigation. The State argued that De La Paz had lied in each of these instances. Are the other two suspicious drug deals admissible to show De La Paz lied?
An officer was investigating a theft near Darrell Keehn’s house. When he arrived, a man and a woman ran to the back of the house and a few minutes later, a minivan left. Keehn and his girlfriend lived at the house. Ever vigilant, the officer kept coming around the house to look for the minivan. One day when he saw it parked in the driveway, he decided to ask the residents about the theft. On his way to the front door, he saw a propane tank through the windows of the van. The “cutting of the tank” had a bluish-green discoloration that indicated to the officer that the tank contained the dreaded anhydrous ammonia. He knocked on the door, but not one answered at first. More officers arrived, including one from the drug task force. This time, Keehn answered the door. He let police in and they asked about the theft. An officer with the drug task force went out to look in the windows of the van after talking with Keehn. He also saw the tank and the discoloration. In his opinion the tank contained anhydrous ammonia, so he went in the van, got it out, and tested it for ammonia. Sure enough, ammonia. What theory justifies the officer’s entry into the van?
Plain view _____
Automobile exception _____
Yes. The Court of Criminal Appeals held that a trial court has the authority to place an eligible defendant on probation even when the jury doesn’t recommend it. Ivey v. State, 277 S.W.3d 43 (Tex. Crim. App. February 11, 2009)(Price, J.)(6:3:2). Judge Price, writing for the majority, noted that the statute gives the trial court broad discretion to suspend the imposition of sentence when it is the best interest of justice, the public, and the defendant to do so. The trial court must suspend a sentence when a jury recommends it, and a jury may recommend suspension of sentence even in circumstances where the judge may not. There are also several limitations on when a jury can suspend a sentence, such as when a defendant has previously been convicted of a felony. However, nothing expressly prohibits the trial judge from doing so when the jury doesn’t even consider probation, must less recommend it. While previous cases have suggested that a trial court lacks the authority to do so, those cases didn’t consider probation probation, but rather the first Suspended Sentence Law. According to the court, trial courts had always had the authority to suspend a sentence. In 1965 the legislature codified that authority in the Code of Criminal Procedure. Sure, the legislature later took those sections out of the code, but it intended no change to the law. It had been in use for 28 years and there was no longer any danger that Article 42.12 would be misinterpreted by courts.
Presiding Judge Keller dissented along with Judges Cochran and Holcomb to opine that a judge who overrides the jury’s punishment verdict in contradiction of the defendant’s wishes has overridden his election of the one who assesses punishment. Judge Holcomb also dissented by himself to note that the probation terms were much harsher than the defendant’s jail sentence. Thus, Judge Holcomb expressed concern that the majority holding could give rise to a situation where a jury could sentence a defendant to a minimum punishment but the judge could assess a harsh probation. Judge Holcomb also expressed concern that there appeared to be a cause-and-effect relationship with the sentence and the trial court’s ex parte communication with the jury. This seemed to Judge Holcomb as a potential violation of due process to place the defendant on community supervision after an ex parte communication between the trial court and the jury.
Yes. A unanimous CCA held that the docket notation in Stokes was sufficient to show presentment. Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. February 11, 2009) (Womack, J.)(9:0). While the court had given some indication in Carranza v. State that a notation in the case file (in Carranza it was a judge’s note on the motion itself) must be a “judge’s notation” to establish presentment, in this opinion, the court made clear that an unsigned docket notation qualifies as such a notation. The CCA also rejected the State’s contention that disturbing the court of appeals opinion meant interfering with the court of appeals’ factual determination that the docket notation was not reliable. According to the CCA, the court of appeals was not making a factual determination regarding the reliability of the docket notation but rather a procedural requirement subject to modification by the rule-making power of the court.
No. The Court of Criminal Appeals The CCA unanimously held that Billodeau should have been allowed to question J.B. about his threats against the Klines even though they took place after the sexual assault in question. Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. February 11, 2009)(Johnson, J.)(9:0). Judge Johnson, writing for the majority, distinguished this case from Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000) by noting that in Lopez, the false accusations were against a mother for physical abuse, but here J.B.’s threats against the Klines concerned the same subject matter as the instant case: molestation. The court explained that the court of appeals erroneously focused upon the fact that the false allegations occurred after the charged offense under a theory that J.B.’s credibility was important only at the time of the report to police. The court rejected any suggestion that Billodeau was required to show the false threats occurred before the charged offense and noted that the evidence showed that when J.B. was angry about perceived injustices, he threatened the Klines. Similarly, this might have helped the jury determine whether J.B. had falsely accused Billodeau as vengeance for the remote-controlled car incident. Significantly, the court reached its conclusion by interpreting Rule 613 of the Texas Rules of Evidence, which allows impeachment with specific acts to show bias or interest. The court could have held that the evidence was inadmissible under the Rules of Evidence but nonetheless admissible by virtue of Billodeau’s constitutional right to present a meaningful defense. However, even though the error in this case was non-constitutional, the court held that it had affected a substantial right.
Yes. According to the Court of Criminal Appeals, Kirk’s testimony about what Pollard had told him about the 1986 murder was inadmissible because it didn’t tell the jury anything about Kirk’s state of mind. Pollard v. State, 277 S.W.3d 25 (Tex. Crim. App. February 11, 2009)(Hervey, J.)(8:1:0). The CCA explained that a defendant’s saying, “I’ve killed before, and I’ll do it again” could very well be relevant in a retaliation case when the statement comes after a threat to kill a potential witness. However, in this case, there wasn’t any evidence that Pollard had ever said anything to that effect. While Kirk knew Pollard had killed someone, the evidence was presented as a fact that Pollard had actually killed someone, not merely to show the effect of that knowledge on Kirk, making that evidence somewhat free-wheeling and unconnected to anything of real consequence in this case. The evidence, standing alone, that Pollard had killed someone wasn’t relevant, and even if Kirk’s knowledge of Pollard’s past murder had any marginal relevance, it would not have changed the outcome of the court of appeals’ determination that Pollard was harmed by the erroneous admission of the fact of his 1986 murder conviction. Eight judges joined the majority. Judge Price concurred without an opinion.
Yes, but there is no prejudice. The Court of Criminal Appeals held that although trial counsel’s conduct fell below prevailing professional norms, Davis had failed to show prejudice. Davis v. State, ___ S.W.3d ___; 2009 WL 455495 (Tex. Crim. App. February 25, 2009)(Holcomb, J.)(8:1:0). Judge Holcomb, writing for an eight-judge majority, made clear that trial counsel’s representation was objectively deficient, thereby disagreeing with the trial court’s holding to the contrary. Then the court turned to the larger question of how to evaluate prejudice from the lack of a jury instruction on accomplice witness testimony. According to the court, the State presented a significant amount of non-accomplice testimony to implicate Davis, and there was no rational basis on which the jury could have doubted or disregarded that evidence. The court of appeals had erred by focusing solely on whether the evidence was legally sufficient. The proper analysis should focus on 1) whether there is a “substantial” amount of non-accomplice evidence, and 2) whether the record reveals any rational basis on which the jury could have doubted or disregarded that evidence. Judge Keasler concurred in the result without an opinion.
Yes. In a unanimous opinion, the Court of Criminal Appeals held that Schmidt should’ve gotten instructions on the lesser-included offenses of assault by causing bodily injury and assault by threat. Schmidt v. State, ___ S.W.3d ___; 2009 WL 605355 (Tex. Crim. App. March 11, 2009)(Hervey, J.)(9:0). The court rejected the State’s argument that the indictment required the State to prove only a threat and not a strike. The State had pretty much taken the position from trial through Schmidt I that you could threaten harm by either threatening to strike or by actually striking, so the State was judicially estopped from arguing that the indictment meant only threaten to strike. Thus, the court of appeals got it right that assault by threat and assault by bodily injury were lesser-included offenses based upon the indictment. The CCA also rejected the argument that the “striking” portion of the indictment was surplusage because the State had to prove only that Schmidt had threatened the person, not the content of the threat or whether the threat was carried out. This, according to the CCA, would amount to a strict-statutory approach rather than the cognate-pleadings approach.
Searching the pocket. I know that’s maybe a little unfair, but I wanted you to see the case “as the judges saw it.” It does seem clear that placing the defendant in handcuffs generated a lot of the problems in this case. There seems to be some disagreement as to whether this was an improper arrest without probable cause or merely a detention that could arguably have been based on reasonable suspicion. However, the specific holding appears to be that regardless of whether seizing the defendant was bad, everyone agrees that the officer impermissibly went into Baldwin’s pocket without authorization. Baldwin v. State, ___ S.W.3d ___; 2009 WL 605368 (Tex. Crim. App. March 11, 2009)(9:2:1:0). A unanimous Court of Criminal Appeals, led by Presiding Judge Keller, held that regardless of whether Baldwin was arrested or detained, there was no valid basis for reaching into his pocket. Had Baldwin been under arrest, the search of the pocket would’ve been justified as a “search incident to arrest,” but there would have had to have been probable cause to arrest. There was not. And even under a proper investigatory detention justified by reasonable suspicion, the officer can do a pat-down for weapons and go into a pocket if he feels something like a weapon, but in this case, he didn’t. If he wanted to go in for contraband, he needed probable cause. He didn’t have it. Just because he can ask for identification doesn’t mean he can go into the pocket to confirm it. And as for consent, the officer’s belief that the defendant consented to entry into the pocket was objectively unreasonable.
Judge Cochran concurred to basically agree that Baldwin was arrested without probable cause when he was handcuffed. While Judge Cochran acknowledged that handcuffing a defendant does not automatically escalate a detention into an arrest, the handcuffing must be reasonably necessary to allow the officer to pursue his investigation without fear of violence. “The fact that a pedestrian is nervous when approached by a police officer at night, without more, is insufficient reason to handcuff him,” Judge Cochran wrote. Judges Keasler and Hervey concurred as well but wrote to specifically reject Judge Cochran’s view that this was an unlawful arrest rather than an unlawful detention.
Attorney’s fees and court costs. The Court of Criminal Appeals affirmed the court of appeals’ determination that attorney’s fees are not part of the sentence, so they do not have to be orally pronounced. Weir v. State, ___ S.W.3d ___; 2009 WL 605362 (Tex. Crim. App. March 11, 2009)(Hervey, J.)(9:0). However, the CCA reversed the court of appeals on the issue of court costs. According to the court, court costs are just to recoup the expenses of judicial resources expended in the case and were not intended to be punitive. Unlike fines, which are called fines, court costs are called court costs, and they are not listed in the “Punishments” chapter of the Penal Code. Court costs are also different from restitution, which is punitive in nature (having been authorized in the Code of Criminal Procedure). Finally, requiring a defendant to pay court costs does not alter the range of punishment, and orally pronouncing court costs isn’t the same as orally pronouncing multiple sentences that will run consecutively. So the CCA restored the requirement that the defendant pay court costs to the written judgment because such costs are not punitive. Court clerks rejoice.
Admissible. The Court of Criminal Appeals held that De La Paz had not only opened the door to the admission of the evidence, but also that it was admissible under a “doctrine of chances” theory. De La Paz v. State, ___ S.W.3d ____; 2009 WL 774846 (Tex. Crim. App. March 25, 2009)(8:0). As in Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. September 10, 2008) the defense had opened the door to the admission of the extraneous offense testimony in the opening statement by attacking De La Paz’s partner, one of the State’s star witnesses. While Herrera himself testified that he was cooperating with police in hope of getting a lighter sentence, the appellant also directly accused Herrera and Vega of being liars during his own cross-examination. Because reasonable people could disagree as to whether the defendant or the State opened the door, the trial court did not err in admitting the evidence. Moreover, Wigmore’s “doctrine of chances” also provided a theory of admissibility. Highly unusual events are unlikely to repeat themselves. That De La Paz reported on three separate occasions that he saw what no one else saw decreases the likelihood that De La Paz saw any such drug deal. Finally, the admission of the evidence did not run afoul of Rule 403. While officers setting up innocent people carried with it the potential to influence the jury in an emotional way, the accuracy of De La Paz’s statements was a hotly contested issue. The extraneous acts had high probative value, and the circumstantial nature of proving the intent to defraud made the State’s need for the evidence great.
Automobile exception. (“But Dave, he saw it in plain view!”) Well, the CCA held that the court of appeals correctly upheld the trial court’s denial of the motion to suppress but erred in basing that upholding on the plain view doctrine. Keehn v. State, ___ S.W.3d ___; 2009 WL 774854 (Tex. Crim. App. March 25, 2009)(Keasler, J.)(8:1:0). According to the court, the officer did not have a right to access the tank inside the van; therefore, the plain view doctrine did not authorize entry. However, under the automobile exception, the narcotics officer could enter the van because it was readily mobile and subject to regulation and the officer had probable cause to believe the tank contained anhydrous ammonia. The court rejected Keehn’s narrow reading of the U.S. Supreme Court case California v. Carney, which upheld a search of a mobile home. There, the Supreme Court found significant the fact that the mobile home hadn’t been parked at a place “regularly used for residential purposes.” Keehn tried to argue that his van was parked at a place regularly used for residential purposes so the automobile exception did not apply. The court rejected this argument and distinguished Carney by essentially noting that we care about where a mobile home is parked because that might indicate that the vehicle is used as a residence rather than a vehicle. In this case, the minivan raised no such concern even though it was parked at a place “regularly used for residential purposes.” So the automobile exception justified the search because the officer had probable cause to believe that the van contained contraband. ✤