Our bookstore is temporarily closed. Please check back soon.
As the Judges Saw It
September-October 2008

Court of Criminal Appeals update

David C. Newell

Assistant District Attorney in Harris County

Questions

1

Edward Busby abducted, robbed, and ultimately murdered a 78-year-old woman with his female accomplice, Kitty (no, I’m not making that up). The victim suffocated from the multiple layers of duct tape Busby had wrapped around her face.

Busby was arrested in Oklahoma for a traffic violation the next day while driving the victim’s car. In his first story to the police, he and Kitty obtained the vehicle from a man named JD (first a reference to “Gunsmoke,” and now “Scrubs”—this guy likes TV), and when they found a body in the trunk, they just disposed of it. Later, Busby admitted the offense, although he claimed only to be doing what Kitty told him to do. At one point during the interrogation, after Busby had given his second version of events, he admitted that he still hadn’t told the police the whole story.

During closing argument, the State detailed Busby different stories and highlighted his statement that he still hadn’t told the police the whole story. The State wrapped up this summary by arguing to the jury that Busby still had not told the whole story. The State also repeatedly highlighted that Busby had not taken responsibility for his own conduct in his statements. Was this a comment on the defendant’s failure to testify?

    Yes _______ No _______

2

The State charged Tumar Williams in three separate indictments for delivery of a controlled substance; one contained a drug-free-zone provision. The State consolidated all three cases into a single jury trial. A jury convicted Williams in all three cases. The trial court ordered that the punishment on the drug-free-zone case run consecutively after the other two offenses. Can the trial court stack?

    Yes____ No ____

3

Safety National Casualty Corp., a bail bond company, posted a $10,000 bond on behalf a defendant charged with felony theft. When the defendant failed to appear at his next court setting, the bondsman quickly located him and secured his appearance. The trial court forfeited the bond and placed the defendant in custody, although he later obtained a new bond. Safety National sought to recover the forfeited bond money based upon Article 22.13(a)(5) of the Code of Criminal Procedure, which permits a bondsman to seek recovery of the money for a limited time after the failure to appear if the criminal was later arrested and incarcerated.

Rather than award the bond money to the bondsman, the trial court awarded the State $5,000 plus court costs. The trial court also held that the rule allowing bail bond money to be refunded if the bond-jumper is re-arrested within 270 days (in felony cases) was unconstitutional under a separation of powers theory. The court of appeals affirmed, agreeing with the trial court that the provision had to be unconstitutional because it impacted the timing and finality of the trial court’s judgments. Is Article 22.13(a)(5) constitutional?

    Yes _______ No _______

4

Cody Oursbourn led police on a short car chase after they located him driving an Impala that had been reported stolen at gunpoint earlier that night. During the short foot chase that inevitably followed the car chase, Oursbourn fell and hit his head. Two days later he gave a statement to the police, though he was still injured and wearing a neck brace. The detective admitted telling Oursbourn that several witnesses had identified Oursbourn as the carjacker even though this was a lie.

The trial court had Oursbourn evaluated for competency, and the court-appointed expert opined that Oursbourn was incompetent to stand trial. When Oursbourn later became competent, he filed a motion to suppress his videotaped statement claiming that he did not completely understand or knowingly waive his rights. However, the court-appointed expert, Dr. Edward Friedman, also indicated that he believed Oursbourn was competent when he gave his videotaped confession. For her part, Oursbourn’s mother testified that the defendant was bipolar and in his manic state on the day of the robbery and the day after. Oursbourn never requested a voluntariness instruction or objected to the lack of one. Should the trial court have instructed on the voluntariness of the confession sua sponte?

    Yes _______ No _______

5

Perry Williams shot and killed Matthew Carter in the middle of a robbery in the middle of a crime spree. In fact, Williams participated in at least five robberies during this spree, two of which happened after he killed Carter. There was also evidence that Williams committed the capital murder to ingratiate himself into the Crips gang and that Williams was still associated with the Crips while he was incarcerated on the capital murder charges.

In contrast, Matthew Carter, the victim in this case, was, among other things, one of the top 10 students at the Baylor College of Medicine. He was on his way to meet his fiancée (a fellow medical student) to help her with a class project when he was kidnapped and later killed. His murder dramatically affected his entire school and even resulted in rescheduling the medical school exams.

Williams sought to waive the consideration of the mitigation special issue to avoid the introduction of this victim-related evidence. Can Williams waive the mitigation issue in a capital murder case?

    Yes _______ No _______

6

Oscar De La Paz sexually assaulted his girlfriend’s 7-year-old daughter. During his trial, the State introduced the child’s medical records from a hospital in Sweetwater and the Hendrick Medical Center in Abilene. The Hendrick records contained notes from three employees describing how the girl had indicated how De La Paz had caused her physical injuries. The State did not call the child or the notes’ authors. When the State sought to introduce the records, De La Paz objected based upon hearsay and Crawford. The State responded that the notes were admissible under the medical diagnosis exception to hearsay. The State never responded to De La Paz’s Confrontation Clause challenge. Should the trial court have admitted the records?

    Yes _______ No _______

7

A jury convicted Darlie Routier of capital murder for stabbing her 6-year-old son to death. The trial court sentenced her to death based upon the jury’s answers to the special issues. Routier filed a motion for post-conviction DNA testing of certain items that contained multiple blood stains. During trial she had sought testing of those items generally, but not each individual stain. Routier had claimed at trial that a stranger had committed the murder, but the State countered her claim by presenting evidence that the crime scene had been staged to look like there had been an intruder.

In her post-conviction motion for DNA testing, Routier argued that new testing would bolster her claim that there had been an intruder and undermine the State’s claim that the crime scene had been staged. The trial court denied the motion, finding that Routier had failed to establish by a preponderance of the evidence that a jury would not have convicted her if exculpatory test results from the biological materials had been presented. The trial court also found that DNA testing was available at the time, and Routier either tested the samples or could have and chose not to. Should the killer mom get another bite at the DNA apple?

    Yes _______ No _______

8

In late 2005, an intoxicated Beth Landers got into a car wreck that dislocated a motorcycle driver’s head from his spine. Landers filed a pre-trial motion to disqualify the newly elected district attorney who had represented her in a felony intoxication assault that had been reduced to misdemeanor DWI two years earlier. Landers argued that her due process rights were violated because the district attorney used “confidential information” he had obtained from his previous representation of her. She pled guilty and went to the jury for punishment where her extensive criminal history was introduced. Landers testified in her defense that she pled guilty in an effort to take responsibility for her actions. She admitted to having a life-long problem with drugs and alcohol. She received a 99-year sentence.

At the evidentiary hearing on Lander’s motion for new trial, the trial court examined the district attorney’s case file from his previous representation of Landers. There were some notes relating to Landers’ drug use, but the same information could be found in the offense report. The two cases (the 2002 case and the 2005 intoxication manslaughter case) both involved driving and intoxication by alcohol and cocaine. Should the DA be disqualified?

    Yes _______ No _______

9

Deputy Justin Royall responded to a domestic violence call involving Grady Warner. The dispatcher informed Royall that there was a “blue” warrant out for Warner  for his parole violation. Deputy Royall told Warner he needed to talk with him, and Warner walked back to the patrol car with Royall. Deputy Royall backed Warner up against the patrol car and grabbed both of Warner’s arms, telling him he was under arrest. When Royall reached to get his handcuffs he took one hand off of Warner. Warner broke free and ran. Does this action constitute escape?

    Yes _______ No _______

10

The State charged Stephen Barbernell with driving while intoxicated. More specifically, the State alleged that Stephen Barbernell operated a motor vehicle “while intoxicated.” The State did not include any language regarding Barbernell’s loss of his mental or physical faculties or any particular blood or breath alcohol content. Is anything missing from the charging instrument?

    Yes ______ No ______

Answers

1

No. The court held that the prosecutor’s statements were not manifestly intended as a comment on the defendant’s failure to testify, nor were they of such a character that the jury would necessarily and naturally take them as such. Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. May 14, 2008)(7:2). Because the State referred to Busby’s own statements made well before trial, arguing the lack of information from the defendant permissibly referred to those pretrial statements to police and not unanswered questions requiring a response at trial. As the court noted, “It was reasonable and proper for the prosecutor to comment on the shifting nature of [the] appellant’s custodial statements that were admitted into evidence.” (Note: Busby also complained that his statements to the police were inadmissible because he had not yet been appointed counsel. However, Busby’s initial statements, after the Oklahoma traffic arrest, were obtained after he waived his rights and before any capital proceedings had been initiated at all. And the statements admitting to the offense after his arrival in Texas were taken at his own request with proper waivers of counsel.)

2

No. The Court of Criminal Appeals removed the stacking order. Williams v. State, 253 S.W.3d 673 (Tex. Crim. App. May 14, 2008)(8:1). §481.132(d) of the Health and Safety Code requires concurrent sentences for all offenses that arise out of the same “criminal episode” when the State prosecutes them in a single trial. §481.134(h) states that punishment for a drug-free-zone offense may not run concurrently with punishment for a conviction under any other criminal statute. (All of Williams’ convictions were for offenses where the punishment was increased under §481.134(c).) Harmonizing the two sections, the court held that the cases for offenses listed under §481.134 were obviously not included in the §481.134(h) prohibition against concurrent sentences, especially as the definition of “criminal episode” in §481.132 includes multiple offenses under the same chapter. Thus, the court reformed the sentences to all run concurrently.

3

Yes, it is. The Court of Criminal Appeals reversed the court of appeals and upheld the constitutionality of Article 22.13(a)(5). Safety National Casualty Corp. v. State, ___ S.W.3d ___; 2008 WL 2481488 (Tex. Crim. App. May 14, 2008)(9:1:0). The Court of Criminal Appeals held that the legislated time limits (270 days to re-arrest in felony cases and 180 in misdemeanors) do not interfere with the judiciary. The time provisions have nothing to do with when a trial court may enter a final judgment; they set limits upon how long a bondsman can seek recovery of forfeited bond money. Thus, the provision did not violate the separation of powers provision of the Texas Constitution. (Judge Cochran wrote an eloquent paragraph to suggest that the legislature may want to change this statute to the extent that the business interests of bail bondsman conflict with the interests of the justice system.)

4

Yes. The trial court should’ve instructed the jury sua sponte generally on the issue of the voluntariness of Oursbourn’s confession. In a unanimous opinion, the court held that a general voluntariness instruction is “the law applicable to the case” so the defendant doesn’t have to request it so long as he’s raised “the question.” Oursbourn v. State, ____ S.W.3d ____; 2008 WL 2261744 (Tex. Crim. App. June 4, 2008)(9:0). The court first distinguished an article 38.22 waiver of rights analysis from a typical due process or Miranda analysis. Under the latter, the only concern is police overreaching. Under the former, the voluntariness instruction provision in §6 of Article 38.22 can also be seen as the legislature’s attempt to save people from themselves by allowing inquiry into evidence of a defendant’s psychological abnormality. So while evidence that a defendant was mentally retarded, intoxicated, or just young and stupid may not make a confession involuntary (and therefore inadmissible) under Article 38.22, it may be enough to get a voluntariness instruction in the jury charge.

The court then explained which types of instructions should be given and when. There are three types of instructions: 1) a general voluntariness instruction under Article 38.22, §6; 2) a general “warnings” instruction under Article 38.22, §7 for failure to adequately warn a defendant of his rights prior to the confession; and 3) a specific, fact-based instruction for violations of the State exclusionary rule set out in Article 38.23(a). A due process or Miranda violation claim may justify any or all of these types of instructions related to a confession’s voluntariness. A Texas-specific claim merits only a general voluntariness instruction. It’s the defendant’s responsibility to delineate which type of involuntariness he’s claiming, but if he fails to request an instruction, courts of appeals should examine the jury charge for egregious harm.

Finally, the court held that the failure to request a “general” voluntariness instruction does not waive error as it would if it were a defensive issue. Generally, statutes that specifically require jury instructions are “the law applicable to the case,” and therefore, they do not require a request for inclusion in the charge. In contrast, a defense (spelled out in a statute, but without a specific statutory provision requiring an instruction) requires a request for inclusion because it depends upon a defendant’s theory of the case and the evidence presented. Thus, Article 38.22 and 38.23 instructions must be included in the jury charge when the “question” or “evidence” raises either issue even though the defense doesn’t request them. In this case, the general voluntariness question was raised but the issue of police coercion was not, so an Article 38.22 instruction was warranted but an Article 38.23 instruction was not. Consequently, the court remanded the case to the court of appeals to determine whether Oursbourn suffered egregious harm under Almanza. (Note: The court’s decision in Busby v. State (see answer No. 1 in this article) that the defendant was not entitled to an instruction on the voluntariness of a confession, is distinguishable from this case. There, the defendant requested a specific voluntariness instruction under Article 38.23, but there was no affirmative factual dispute, so he wasn’t entitled to the instruction.)

5

Yes, Williams should’ve been allowed to waive the mitigation issue, but the error was non-constitutional and harmless. Williams v. State, ___ S.W.3d ___; 2008 WL 2355932 (Tex. Crim. App. June 11, 2008)(6:1:1:1). According to the court, mitigation is a defensive issue because it has no burden of proof. There are no other instances where an element of the State’s case has no burden of proof. Additionally, it is framed as a stand-alone punishment issue similar to sudden passion or mental retardation. Also, it is framed to aid the defendant with an affirmative answer. Ordinarily, a party that benefits from a “yes” answer to an issue is the party to whom the issue belongs. Moreover, the legislature placed it in a separate subsection of the statute instead of in the subsection where the State’s issues are found. Finally, the Supreme Court mandated the inclusion of the mitigation special issue after Penry v. Lynaugh to fix a constitutional deficiency of the old Texas scheme to benefit defendants. Thus, the trial court erred in preventing Williams from waiving the mitigation special issue.

Judge Price concurred in the result but expressed the view that a defendant cannot waive the mitigation special issue. Judge Johnson authored an opinion that concurred in part and dissented in part. Johnson dissented because she, too, does not believe a defendant can waive the mitigation special issue; she would have fashioned a rule that the inclusion of a mitigation special issue does not make victim character evidence admissible—all evidence would be governed by Rules 403 and 404. Additionally, the waiver of the special issue would result in the inadmissibility of victim impact and victim character evidence. Judge Meyers authored a dissenting opinion where he regards the mitigation issue as belonging to the jury, not one party or the other—thus, it cannot be waived by the defendant.

6

No. You read that correctly. No, but not for the reason you probably think. The court ultimately held that the State, as the proponent of the medical records, had the burden to overcome De La Paz’s Confrontation Clause objection. Because the State didn’t respond, the State failed to establish that the notes were not testimonial, and the trial court improperly admitted them. De La Paz v. State, ___ S.W.3d ___; 2008 WL 2437648 (Tex. Crim. App. June 18, 2008)(6:1:2). And that’s really the extent of the analysis.

However, the court was nice enough to point out that it is unresolved whether statements to a non-governmental employee could be testimonial for purposes of a Confrontation Clause analysis. Moreover, the court never explained how the State could have responded to establish that the statements were not testimonial. Be aware of the risk for this opinion to be read as holding that statements made for purposes of a medical diagnosis are testimonial where the child victim does not testify. The opinion doesn’t hold that these records are testimonial, but rather that the State failed to carry its burden to prove that they weren’t testimonial.

7

No. In evaluating the trial court’s finding that Routier should’ve tested the samples before, the court found it necessary to construe the language “evidence containing biological material.” Routier v. State, ___ S.W.3d ___; 2008 WL 2486417 (Tex. Crim. App. June 18, 2008) (7:2). Under Article 64.01(b), a defendant can request testing of evidence containing biological material if that evidence: a) wasn’t subjected to DNA testing because DNA testing wasn’t available, b) was not previously subjected to DNA testing because DNA testing was available but not technologically capable of providing probative results, c) was not previously subjected to DNA testing, through no fault of the convicted person, for reasons that are of such a nature that the interests of justice require DNA testing, or d) was previously subjected to DNA testing but can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results more accurate and probative than the previous test results.

The court indicated that the statute is designed to require defendants to avail themselves of whatever DNA testing is available at the time of trial. Then, consistent with this view of the legislative intent, the court held that “evidence containing biological material” must refer to individual samples of biological material even if taken from the same physical source. Holding otherwise would allow a defendant to obtain subsequent testing where only one portion of an object was initially tested so long as the technology had improved. Thus, the defendant must consider each possible stain on a given object at the time of trial and request testing of it at that time; otherwise, the defendant may be foreclosed from getting testing of those stains at a later time.

8

No. The court held that a defendant’s due process rights are violated based upon an elected prosecutor’s conflict of interest only when the defendant can show “actual prejudice.” Landers v. State, ____ S.W.3d ____; 2008 WL 2437733 (Tex. Crim. App. June 18, 2008)(5:2:2). “Actual prejudice means either that the prosecuting attorney has previously and personally represented the defendant in a substantially related matter, or the prosecutor has obtained ‘confidential information’ by virtue of the representation and used it to the defendant’s disadvantage.” In this case, “it was certainly no secret that [Landers] had a drug and alcohol problem.” The fact that she may have conveyed that information to the prosecutor during the prior representation did not turn the information into confidential information. Indeed, the court noted that Landers did not point to any piece of information that the prosecutor had learned during the previous representation that was not already in the public domain. While the court cautioned that discretion (being the better part of valor) favored voluntary disqualification, the court still held that Landers had failed to demonstrate that her due-process rights had been violated. (Note: The two-judge dissent argued that Landers’ Fifth Amendment right against self-incrimination was violated because she was forced to testify to prevent this “obvious breach of ethics.”)

9

No. The Court of Criminal Appeals held that a defendant does not commit escape unless he has first been successfully restrained. Warner v. State, ___ S.W.3d ___; 2008 WL 2596961 (Tex. Crim. App. July 2, 2008)(8:1). In reaching this decision, the court again rejected the State’s argument that the term “arrest” should be interpreted to include any meaning “acceptable to common parlance” because, not surprisingly, “arrest” is a technical term. The court also rejected the State’s request that the court apply the definition for arrest found in Article 15.22 of the Code of Criminal Procedure. The problem with that, the court noted, is that “arrest” is defined as being taken into custody in Article 15.22, and custody is defined as being under arrest. So, the court again relied upon its previous holding in Medford v. State to opine that “an ‘arrest’ is complete when a person’s liberty of movement is successfully restricted or restrained, whether this is achieved by an officer’s physical force or the suspect’s submission to the officer’s authority.”

And if that’s not clear enough, the court added that “an arrest is complete when a reasonable person would have understood the situation to constitute a restriction on the freedom of movement of the degree to which the law associates with formal arrest.” (Note: Medford dealt with grabbing one arm, while this case dealt with grabbing both arms.)

10

No. In a unanimous opinion, the Court of Criminal Appeals reversed, holding that the State was not required to allege which definition of intoxication it intended to rely upon at trial. State v. Barbernell, ___ S.W.3d ___; 2008 WL 2596934 (Tex. Crim. App. 2008)(9:0). The court noted that it had required the State to allege the type of intoxicant in Garcia v. State, but that it had undercut that opinion somewhat by holding in Gray v. State that the type of intoxicant was not an element of the offense. Then, the court explained that it had held in State v. Carter that each definition of intoxication created two different DWI offenses, but that holding was incorrect. Based upon its recent holding in Bagheri v. State, the definitions of intoxication aren’t elements of the offense either. Rather, they set out different ways of proving the same offense. Thus, simply alleging that a defendant drove “while intoxicated” provides a defendant with adequate notice of the charges against him. This holding also seems to apply to claims that the State failed to allege a particular type of intoxicant, though that was not the specific issue before the court. Moreover, this holding may seem to undermine support for the synergistic charge, and a case may come down in the future doing away with it. However, simply pleading DWI as “while intoxicated” should obviate the need for any such charge down the road, so the synergistic charge issue may simply become moot. ✤