Weekly Case Summaries: December 12, 2008

Court of Criminal Appeals

Segundo v. State

12/10/08 : Cite No. AP-75,604 : Crawford

Issue

Was the defendant's constitutional right to confrontation violated when the State introduced certificates from the Board of Pardons and Paroles?

Holding

No. The statements were non-testimonial under Crawford. The defendant objected to statements that he "subsequently failed to fulfill the terms and conditions of said release, and is therefore not worthy of the trust and confidence placed therein," that he "has violated the conditions of administrative release," and that he was an "administrative release violator." The statements were standard boilerplate language contained within in a form entitled "Board of Pardons and Paroles Proclamation of Revocation and Warrant of Arrest." The revocation certificates in which they were contained were admissible as an exception to the hearsay rule both as public records and as business records.
Read opinion.

Commentary

This is a great case that allows for the admissibility of most public records and business records, even over a Crawford objection, just as long as the records do not give extensive or narrative details of the defendant's wrongdoing. Thus, this holding is distinguished from the court's previous holding in Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005), that has given us more trouble. The United States Supreme Court should be addressing this issue definitively in Melendez-Diaz v. Massachusetts. Stay tuned.

State v. Sheppard

12/10/08 : Cite No. PD-793-07 & 794-07 : Fourth Amendment

Issue

Is a person arrested for purposes of the Fourth Amendment if he is temporarily handcuffed and detained but then released?

Holding

No. A person who has been handcuffed has been seized and detained under the Fourth Amendment, but he has not necessarily been arrested.
Read opinion.

Dissent

Justice Meyers wrote separately to dissent, expressing displeasure that the State, in his opinion, asserted irrelevant grounds for review to persuade the court to grant review on an issue that really had little or no value in determining the case's legal outcome.
Read dissent.

Commentary

This is a wonderful decision, even more so because it is a State's appeal where it can be much more difficult for the State to prevail on appeal. The court of appeals had held that the trial court must have disbelieved the testifying police officer, since the trial court had granted the defendant's motion to suppress. This is actually a real possibility in many State's appeals. But the trial court in this case also made extensive findings of fact, which suggested that the judge had accepted the officer's version of the facts. The Court of Criminal Appeals in this opinion held that the court of appeals could not assume that the trial court disbelieved the police officer because such an assumption was inconsistent with the trial court's findings. Also, if you have a defense attorney cite to Article 15.22 of the Code of Criminal Procedure to suggest that the defendant was necessarily under arrest, the court has made it clear that Article 15.22 is of no help in determining whether a defendant was under arrest or merely subjected to a temporary investigative detention. Just a great opinion.

Ruffin v. State

12/10/08 : Cite No. PD-1482-07 - PD-1489-07 : Testimony of Mental Disease

Issue

Did the trial court incorrectly exclude testimony by the defendant's psychologist about the existence and severity of the defendant's mental disease and delusions by ruling that such expert testimony is admissible only when the defendant is accused of homicide or pleads insanity?

Holding

Yes. Both lay and expert testimony of a mental disease or defect that directly rebuts the particular mens rea required for the charged offense is relevant and admissible unless excluded under a specific evidentiary rule. Although the trial judge permitted numerous lay witnesses, including the defendant himself, to testify to observations concerning the defendant's mental breakdown and delusions, that evidence was never put into a mental-disease context or its psychological significance explained. Expert evidence that would explain the defendant's mental disease and when and how paranoid delusions may distort a person's auditory and visual perceptions is generally admissible as it relates to whether the defendant intended to shoot at police officers.
Read opinion.

Commentary

After this decision, I would think long and hard before objecting to expert testimony presented to support the argument that the defendant had a lesser culpable mental state than the State was required to prove. The court has repeatedly made it clear that it wants such testimony to be considered by a jury.

Courts of Appeals

Kirsch v. State - 1st COA

12/04/08 : Cite No. 01-07-00446-CR : DWI

Issue

Was it proper for the trial court to instruct the jury that it could find the defendant guilty under the per se impairment definition of intoxication, despite the absence of retrograde extrapolation evidence?

Holding

Yes. The defendant's blood test showed that he had a BAC of 0.10 at the hospital 80 minutes after he was involved in the car wreck. The results are evidence from which a jury could find the defendant guilty under the per se impairment definition.
Read opinion.

Commentary

If you prosecute DWI or any other intoxication-related cases, you need to keep this decision close. In addition to the jury charge issue, the court of appeals dealt with the admissibility of testimony concerning the vehicle's "black box" and with the admissibility of the defendant's blood evidence over an objection that was based upon HIPAA. This should be very helpful in the future.

Adkins v. State - 2nd COA

12/04/08: Cite No. 02-08-078-CR : Law of Parties

Issue

Was the evidence factually sufficient to support the jury's implied finding that the defendant knew a deadly weapon would be used when the defendant was charged with aggravated assault with a deadly weapon, even though she was not present during the assault?

Holding

Yes. Under the law of parties, the jury found that the defendant acted with intent to promote or assist the aggravated assault of her daughter's boyfriend. The defendant was angry with the victim, had told her daughter that the two would never be together again, bragged to a friend and neighbor that she was going "stop" the victim, and asked a member of the Aryan Brotherhood to beat up the victim for her.
Read opinion.

Commentary

I cannot think of many cases that better present a defendant's criminal responsibility for the use of a deadly weapon, even though it is clear that she was only guilty as a party. This is a well-reasoned and presented decision.

Swearingen v. State - 3rd COA

12/04/08 : Cite No. 03-07-00556-CR : Sudden Passion Instruction

Issue

Did the trial court commit error during the punishment phase of a murder case when it submitted a charge that permitted the jury to impose the first-degree felony punishment range merely based on a failure to find sudden passion unanimously, as opposed to directing the jury that it must be unanimous in failing to find sudden passion?

Holding

Yes, however the harm was not so great as to require reversal. While there was evidence of former provocation, that evidence was weak and did not establish that the defendant was incapable of rational thought and collected action when he strangled his wife and subsequently left her in a half-full bathtub and otherwise attempted to conceal evidence that he had killed her.
Read opinion.

Commentary

This is a good case to review the unanimity requirements in "sudden passion" situations at the punishment stage of a murder trial. But this defendant clearly did not act in sudden passion, or any other kind of passion for that matter. He threw the victim on the floor and started choking her, grabbing tighter around her neck, until she turned blue and blood started coming from her nose. It was then-according to him-that he "freaked out." That is not passion. That is what you call guilt. He got 65 years.

London v. State - 5th COA

12/05/08 : Cite. No. 05-07-00983-CR : Sudden Passion Instruction

Issue

During the punishment phase of a murder trial, did the trial court err when it instructed the jury that if it failed to reach unanimity in favor of a finding of sudden passion that the jury should answer that issue in the negative?

Holding

Yes. There is nothing in the record to reflect that each juror voted "no" on the sudden passion special issue. The judge's request for a "show of hands" does not suffice as an individual poll of jurors. Because the collective response could have been the result of the jury not being unanimous in reaching an affirmative answer the court of appeals found egregious harm to the defendant and remanded the case for a new punishment hearing.
Read opinion.

Commentary

As much as the previous decision was a helpful discussion of the relevant law, this opinion feels constrained to follow a previous decision of the Dallas Court of Appeals, which was unpublished and, therefore, of no precedential value. It would appear that the Court of Criminal Appeals needs to review this decision. The reasoning behind the decision just does not make any sense. If twelve individual people all raise their hands simultaneously, they are only expressing what the majority of the people believe, not what the twelve individual people believe? Really?

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