Weekly Case Summaries: October 30, 2009

Texas Court of Criminal Appeal

Ex Parte Miller

10/28/09 : Cite No. AP-76,167 : Ineffective assistance


Did the defendant receive ineffective assistance of counsel on appeal when his appellate counsel did not contest the legality of applicant’s sentence even though the State failed to prove his prior convictions were sequential?


Yes. Had appellate counsel raised this issue, the appellate court would have vacated the sentence and remanded for a new trial on punishment. 12.42(d) of the Penal Code. Read Opinion.


oncurrence and Dissent:

The record indicates that trial counsel did not challenge the sequence of the enhancements because he knew that the second offense had in fact been committed after the first enhancement offense and that a reversal on appeal could result in a higher punishment for his client. Read Opinion.


This seems like such a waste of time because, at a new punishment hearing, the State apparently can and will prove that the defendant's prior convictions are sequential. Presumably, the defendant will receive precisely the same punishment that he received at the previous trial. 


In Brief …

In Ex parte Wright, No. AP-76,245, the court (in a non-published, per curiam opinion) found Houston defense lawyer Neal Davis  incompetent during the punishment phase of Susan Wright’s murder trial. Read opinion.


The defendant's attorney allegedly rendered ineffective assistance of counsel because he failed to present witnesses at the punishment stage that might have mitigated the defendant's punishment or supported a sudden passion defense. This reversal on punishment only has nothing to do with any demonstration that occurred during the guilt/innocence stage of the trial. The defendant's guilt has been affirmed on direct appeal and on habeas corpus. The defendant stabbed the victim at least 193 times, and then she moved his nude body out to the backyard, where she prepared to bury him, and where the victim was found five days after he had been killed. The entire bed on which the victim had been killed had also been moved to the backyard, and a wall in the bedroom had been freshly painted. That does not sound anything like sudden passion to me.


In Ex parte Reposa, No. AP-75,965, the court (in a non-published opinion by Judge Womack) denied habeas corpus relief for Adam Reposa, an Austin defense attorney found in contempt of court, in part for making a masturbation motion in the general direction of the prosecutor and judge. Read opinion



The court should have published this opinion to give precedence to the idea that such behavior in court is not acceptable.


In Hall v. State, No. PD-0791-09, the court denied a petition for discretionary review by Laura Hall, an Austin woman convicted of tampering with evidence and hindering apprehension in the 2005 murder and mutilation of JenniferCave. Hall will face a new punishment hearing, but the court’s denial of PDR allows the underlying convictions to stand.


Texas Courts of Appeals

Marshal v State – 1st COA

10/22/09: Cite No. 01-08-00734-CR : Reasonable doubt


Did the judge err in explaining reasonable doubt to the venire panel by saying [y]ou will know when you’re convinced that someone has violated the law and the State has proven each and every element beyond a reasonable doubt. You will know it. . . .”?


No. While it may have been improper or imprudent, it was not fundamental error.  Further, the defendant did not preserve the error. Read Opinion.


The concurrence emphasizes that any attempt by the trial court to “clarify” the notion of “beyond a reasonable doubt” for the venire is ill-advised. Read Concurrence.


The defendant's claim--that he was not required to object--was based upon a plurality opinion from the Court of Criminal Appeals that has no precedential value. Funny. But defendants and courts keep citing to it.

Stine v State – 6th COA

10/21/09 : Cite No. 06-09-00044-CR : Competency hearings

Issue :

Was it proper for the judge to make an initial determination of the defendant’s competency based both on his own observations and a psychiatrist’s report, rather than empanel a jury to make the determination?



Yes. The statute requires the court to determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004 Testimony from the defendant and the evaluating psychiatrist were enough evidence for the judge to make a determination of competency. Read Opinion.


This is another decision to which you can look if you have a competency claim under the relatively new Chapter 46B of the Code of Criminal Procedure.

Jones v State - 6th COA

10/23/09 : Cite No. 06-08-00181-CR : Drug-free zones


When the defendant was convicted of possession of a controlled substance, with intent to deliver, while within a drug-free zone, was the punishment proper if the jury charge was erroneous but the sentence still fell within the range of what a proper jury charge would have been?


No. The flawed charge was an egregious harm because the defendant was denied the opportunity to receive a sentence less harsh than the minimum the jury was instructed to impose. Read Opinion.


The moral to this story is that what may be a drug-free zone for one offense may not be a drug-free zone for another offense. Frankly, that is confusing, and the Texas Legislature should amend the statute to make the definition of a drug-free zone consistent for all drug offenses.

Woodard v. State - 14th COA

10/22/09 : Cite No, 14-08-00288-CR : Convicting on non-indicted charges


Issue :

In a trial for murder, was it proper for the jury to convict on the unindicted offense of conspiracy to commit aggravated robbery?


No. The defendant was harmed by the deprivation of his due process rights when he was convicted of an offense for which he was never given notice. Read Opinion.


The court of appeals noted that the record was silent as to who had requested the inclusion of the un-indicted offenses in the trial court's charge to the jury. If the defense has requested a charge on a lesser offense that is not a lesser-included offense, make sure that the record reflects that it is the defense who has requested that charge.


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