Weekly Case Summaries: October 31, 2008

Texas Court of Criminal Appeals

In re Johnson

10/29/08 : Cite No. AP-75,898 : Mandamus Proceeding

Issue

Does a district judge have authority to direct TDCJ to withdraw funds from an inmate trust-fund account to repay the county for court costs for two convictions for indecency with a child?

Holding

The Court of Criminal Appeals decided that because the question was not a "criminal law matter," it did not have jurisdiction to weigh in on the mandamus action. The Court noted that Tex. Gov't Code 501.014(e) appears to authorize the withdrawal of inmate funds, but further concluded that the statute deals with civil-law matters that sometimes happen to arise in criminal cases. The Court dismissed the mandamus application.
Read opinion.

Dissent

Presiding Judge Keller wrote in her dissent that enforcement of an order issued pursuant to a criminal statute is a criminal law matter even if it requires the court to examine civil laws in the process. Because court costs assessed in criminal prosecutions have long been considered incidental to the enforcement of criminal law, the Code of Criminal Procedure authorizes the imposition and collection of court costs in criminal prosecutions and provides some methods for enforcement. In this case, although the statutory basis for the enforcement is a section of the Government Code, it is still for an order that was issued pursuant to the Code of Criminal Procedure.
Read dissent.

Commentary

Now that it has been definitively decided that the issue presented in this case is a "civil law matter," we will wait for the Supreme Court to resolve the issue. In the review of the decision of the Amarillo Court of Appeals in Harrell v. State, No. 7-06-469-CR, 2007 WL 2301350 (Tex. App.--Amarillo, Aug. 13 2007), the Supreme Court--that other high court in Texas--should decide (1) whether an order pursuant to Section 501.014(e) for the recovery of court costs after a criminal prosecution is a "civil law matter," and (2) whether due process is violated when a court issues such an order without affording the defendant notice and an opportunity to be heard.

Reed v. State

10/29/08 : Cite No. PD-366-07 : Deadly Conduct

Issue

Was the evidence legally sufficient to convict the defendant of one count of deadly conduct in addition to one count of misdemeanor assault when he discharged a firearm inside a building?

Holding

No. In the charging instrument, committing deadly conduct was expressed as "knowingly discharging a firearm at or in the direction of a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied." Because the evidence showed that the defendant was inside his home when he discharged the firearm, the evidence was insufficient to sustain a deadly-conduct conviction as charged.
Read opinion.

Concurrence

Judge Cochran concurred, noting that the issue boiled down to this question: Can you shoot "at a house" from inside it? Under Penal Code §22.05(a), it does not matter whether the gun was discharged "at" the house, "on" the house, or "in" the house. The main point is that the conduct posed a high risk of physical danger and according to the statute, created an atmosphere of panic, fear, and mayhem.
Read concurrence.

Commentary

Well, I suppose that, if the Legislature intends to criminalize firing of a weapon WITHIN a habitation (as opposed to outside the habitation), the Legislature can amend the deadly conduct statute to criminalize that behavior. In the meantime, our only hope is to prosecute the defendant for aggravated assault, and then hope that we can prove a culpable mental state.

Fischer v. State

10/29/08 : Cite No. PD-1613-07 : Pre-trial Proffer of Evidence

Issue

Did the State's pretrial proffer of evidence satisfy the burden of proof beyond a reasonable doubt for an extraneous offense?

Holding

No. However, the court found that it was not legally significant that the State's pretrial proffer did not satisfy this burden so long as the evidence presented by the end of trial did meet it.
Read opinion.

Concurrence

Judge Womack concurred, writing that evidence of the defendant's access to the murder weapon was a relevant fact and that considering it as evidence of an extraneous offense was unnecessary. He concurred only in the Court's judgment.
Read concurrence.

Concurrence

Judge Cochran suggested overruling Harrell v. State, writing that it is one thing to say that the State must prove the defendant's guilt beyond a reasonable doubt and an entirely different thing to say that the State must establish the relevancy of its evidence beyond a reasonable doubt before the trial judge may admit that evidence for the jury's consideration. Judges are minimal gatekeepers when it comes to conditionally relevant evidence because juries, not judges, decide the importance or probative value of all evidence under FRE 104(b).
Read concurrence.

Concurrence and Dissent

Judge Price agreed that the State had produced enough evidence to support a jury finding that the defendant committed the extraneous offense and that the Court of Appeals erred to consider only the State's oral proffer of evidence at the beginning of the trial.
Read concurrence and dissent.

Commentary

This is a wonderful decision. If, in the future, your trial judge or your defendant is dubious of your ability to prove an extraneous offense based upon a preliminary proffer of evidence, you should present this decision. Rule 104(b) of the Rules of Evidence states that a trial judge SHALL admit extraneous offense evidence subject to the introduction of enough evidence in order to support a finding that the extraneous offense has been proved beyond a reasonable doubt. Just make sure that you then go ahead and prove your extraneous offense beyond a reasonable doubt. But it should now be very clear that a Rule 104(b) proffer is not the same thing as a motion to suppress hearing. But do not miss Judge Womack's argument in this particular case. Be prepared to argue that an alleged extraneous offense is not really an extraneous offense in the first place.

State v. Iduarte

10/29/08 : Cite No. PD-1341-07 : Exclusionary Rule

Issue

Does the exclusionary rule apply to evidence of an aggravated assault on a peace officer alleged to have occurred after an unlawful entry and search?

Holding

No. Evidence of the charged offense did not exist before the officer's challenged actions because the charged offense had not yet happened. When the defendant pointed a gun at the officer, that act was an independent criminal offense and was committed after the complained-of entry into the apartment. The occurrence of the independent offense was not causally connected to the officer's allegedly illegal entry.
Read opinion.

Commentary

It is a shame that all criminal trial judges still cannot adhere to the simple principle set forth in this decision, which had previously been set forth in State v. Mayorga, 901 S.W.2d 943 (Tex. Crim. App. 1995), and again in Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002). Trial judges should also keep in mind what the court reaffirmed in this decision--that a motion to suppress hearing in general, and the exclusionary rule in particular, are not meant to decide the merits of a criminal prosecution. That is for the jury.

Pecina v. State

10/29/08 : Cite No. PD-1159-07 : Sixth Amendment

Issue

Was the defendant's confession valid where the defendant requested the appointment of counsel but also indicated a willingness to talk to police before counsel had been appointed?

Holding

No. Saying "yes" when asked by the magistrate if he wanted a court appointed attorney was enough to invoke the defendant's Sixth Amendment right to counsel. Answering "yes" when asked if he wanted to speak to detectives does not indicate that the defendant initiated the contact as required under the Edwards bright-line rule.
Read opinion.

Dissent

Presiding Judge Keller wrote that the defendant's "yes" answer to the first question did constitute an invocation of his right to counsel, but the scope of that invocation was another matter. A suspect may engage in a limited invocation of his right to counsel that would permit communication with the police with no attorney present.
Read dissent.

Commentary

For better or worse, this case re-emphasizes what the United States Supreme Court recently held in Rothgery v. Gillespie County, 128 S.Ct. 2578 (2008). Regardless of how informal the setting, when a defendant in Texas tells a magistrate that he wants an attorney, he has invoked his Sixth Amendment right to counsel and the police cannot talk to him without first going through his attorney, unless the defendant himself unilaterally re-initiates contact with law enforcement.

Taylor v. State

10/29/08 : Cite No. PD-1370-07 : Hearsay Exception

Issue

Does the hearsay exception of Rule 803(4) (Statements of Purposes of Medical Diagnosis or Treatment) apply to testimony from a licensed professional counselor that summarized what the sexual assault complainant had told her about the offense?

Holding

No. The counselor testified that she was seeing the complainant for two reasons: 1) to help the complainant deal with the psychological aftermath of the sexual assault and 2) to help the complainant cope with her resulting anger. It is not apparent that knowing the defendant's identity was pertinent to the complainant's treatment. There is nothing in the record making it apparent that the complainant understood that truthfulness about the identity of her assailant was important to the success of her treatment. Therefore, these predicate facts cannot be presumed without effectively relieving the proponent of the hearsay evidence (here, the State) of its burden to establish the existence of a valid exception to the hearsay rule.
Read opinion.

Concurrence

Judge Womack wrote that the opinion of the Court is exactly backward when it says that it is natural to presume that patients who are being treated for a physical illness or injury will understand that truthfulness will serve their best interest, but that patients who are being treated for a mental illness or injury will not.
Read concurrence.

Commentary

This decision will now serve as the seminal opinion on the admissibility of statements under Rule 803(4) of the Rules of Evidence. In that respect, it is good in this decision that the court rejected a construction of Rule 803(4) that would require a testifying witness to have sufficient medical qualifications before being allowed to testify to the victim's hearsay statements. If a victim believes that his statements to a mental-health professional will facilitate his diagnosis or treatment, the victim's out-of-court statements should be admissible under Rule 803(4), whether or not the mental-health professional is actually a member of the "medical profession." Be sure and cite to that portion of this decision when that argument is made against the admissibility of hearsay statements that you attempt to admit under Rule 803(4). It is too bad that several contrary court of appeals decisions have been allowed to stand as authority for so long. It would have been better if those holdings had been overruled shortly after being issued. Apart from this aspect of the court's holding, you need to read this decision carefully, especially if you often prosecute child abuse cases. This decision provides a road map for the types of testimony for which courts will now be looking before they will admit hearsay testimony under Rule 803(4). Make sure that your particular expert witness can satisfy all of the requirements set forth in the court's opinion.

Texas Courts of Appeals

Stringer v. State - 2nd COA

10/23/08 : Cite No. 2-05-111-CR : Confrontation Clause and PSI

Issue

Did the defendant forfeit his Confrontation Clause objection to the felony history portion of his PSI when he placed his criminal history at issue and accepted the benefits of the order requiring the PSI?

Holding

Yes. Because the defendant placed his criminal history at issue and accepted the benefits of the order requiring a PSI, he was estopped from asserting a Confrontation Clause objection.
Read opinion.

Dissent

Judge Dauphinot dissented, writing that she cannot agree with what she believes is a new rule created by the majority that would allow the statute to prevail over the Constitution. A defendant in a criminal case who has pled guilty and has applied for community supervision does not give up his constitutional due process rights to confront and cross examine the witnesses against him, to have the evidence against him presented under oath, to challenge the admissibility of the evidence against him, or to have the evidence against him presented in open court.
Read dissent.

Commentary

This is a very well written and researched opinion, and thanks should go to the State for continuing to forcefully argue this appeal, even after it had been remanded from the Court of Criminal Appeals. Even so, this holding does not apply to all cases involving a PSI, but only to those in which a defendant pleads guilty to a felony, files an application for probation, and asserts a Confrontation Clause objection to a statutorily required portion of the PSI. The court specifically did not address cases in which a PSI had been ordered under Article 37.07, Section 3(d) of the Code of Criminal Procedure, cases involving only the nonstatutorily required portions of a PSI, and cases involving a Confrontation Clause objection made to PSI in its entirety. The court also did not decide whether the Confrontation Clause applies to the punishment stage of a criminal trial in Texas. Several courts in other jurisdictions have held that it does not, but I am not certain that such a holding would prevail in Texas.

Rendon v. State - 3rd COA

10/24/08 : Cite No. 03-07-00616-CR : Harassment

Issue

Does a general verbal allusion to sexual activity constitute an obscene comment for the purpose of prosecution for harassment?

Holding

Yes. While a general allegation of, or allusion to, sexual activity does not constitute an obscene comment for the purpose of prosecution for harassment, the specific language and its usage in this case do qualify because the words were spoke with the intent to harass, annoy, alarm, abuse, torment, or embarrass the complainant. The vulgar and yet often-used word, "f***," when used as a noun as in this case, has as its primary definition "an act of sexual intercourse." A rational jury could find beyond a reasonable doubt that the defendant's comment to the complainant that she "would only charge fifty cents for a f***" did contain a patently offensive description of an ultimate sex act, specifically sexual intercourse.
Read opinion.

Commentary

Now, tell me the truth, did you really need an official court of appeals decision to answer that question for you?

Hines v. State - 6th COA

10/23/08 : Cite No. 06-08-00004-CR : Jury Unanimity

Issue

Did the trial court err when it allowed the State to repeatedly tell jurors that they could arrive at a nonunanimous verdict during the State's closing argument?

Holding

Yes. The indictment alleged that the defendant did "with the intent to arouse or gratify" his sexual desire, "intentionally or knowingly engage in sexual contact" with the victim by "touching the anus and genitals and breast" of the victim. The jury charge directed the jury to find the defendant guilty if he did "intentionally or knowingly...engage in sexual contact...by touching the anus or genitals or breast." The charge, as delivered, made it possible for the jury to arrive at a nonunanimous verdict which is prohibited by the Texas Constitution. For further information on the issue of jury unanimity, please see the latest on-line edition of The Texas Prosecutor, available at www.tdcaa.com/newsletter.
Read opinion.

Commentary

Touching the anus is an individual act of sexual contact in committing the offense of indecency with a child. Touching the genitals is another separate, individual act of sexual contact in committing the offense of indecency with a child. Touching the breast is yet another separate, individual act of sexual contact in committing the offense of indecency with a child. All separate acts. All separate offenses. If a defendant commits all three of these acts within a five-minute period on a single victim, he has committed three offenses of indecency with a child. They are not alternative theories for the same offense. And the jury must be unanimous when it finds a defendant guilty of a criminal offense. It must be unanimous with regard to the specific criminal conduct, the specific act that the defendant has committed.

Johnson v. State - 10th COA

10/22/08 : Cite No. 10-07-00342-CR : Legal Sufficiency

Issue

Did the court err when it denied the defendant's motion for an instructed verdict because the evidence was legally insufficient to prove he used or exhibited a deadly weapon during an assault?

Holding

No. To obtain a conviction under this indictment the evidence must have shown that the defendant used or exhibited a deadly weapon (a piece of glass) at the same time he struck the victim with his hand. Two witnesses testified that they saw the piece of glass in the defendant's hand as they saw him drag the victim into another room immediately after he struck the victim in her jaw. A reasonable jury could have inferred that the defendant did have the piece of glass in his hand when he struck the victim.
Read opinion.

Commentary

For a relatively simple proposition, this is a very thorough and well-researched opinion. We should be cautious to make sure that the alleged manner and means matches up with the particular allegation of the use and/or exhibition of a deadly weapon. In the particular facts of this case, the allegations matched up well.

Texas Attorney General Opinions

Opinion Request from Wharton County - RQ-0749-GA

Does a county have the authority to remove fencing located within a county right-of-way that the commissioners court has determined interferes with the safety and transportation of the public?
Read request.

Anyone with input on this issue may contact the Attorney General's Office.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected]. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum. The U.S. Supreme Court and the Fifth Circuit have not released any relevant opinions this week.