TEXAS CRIMINAL APPELLATE UPDATE
September 2002 - August 2003
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COURT OF CRIMINAL APPEALS, 9-11-02
Johnson v. State, 84 S.W.3d 658 (Tex.Cr.App. 2002)
(Opinion by Hervey, J. Dissenting opinion by Johnson, J. joined by Holcomb, J. Dissenting opinion by
Cochran, J. joined by Price, J.)
Appellant appealed a suppression ruling and gave a general notice of appeal. The Court of Appeals
held he substantially complied with Tex. R. App. P. Rule 25.2. Reversed.
1.
Guilty Plea -- Tex. R. App. P. Rule 25.2 - Substantial Compliance
Guilty Plea -- General Notice of Appeal - Not Substantial Compliance
Appellant’s motion to suppress was denied. He entered a guilty plea pursuant to plea bargain that
was followed by the court. He filed a "general" notice of appeal "excepting to the ruling of the court
pursuant to Tex. R. App. P. Rule 40(b)(1). The State argued Appellant’s "general" notice of appeal did
not invoke the jurisdiction of the Court of Appeals to consider the merits of his nonjurisdictional claims.
The Court of Appeals held that Appellant substantially complied with Tex. R. App. P. Rule 25.2(b)(3)
because a handwritten notation on the trial court's judgment recited "11-16-98 `MTN. TO SUPPRESS'"
close to a space marked "Notice of Appeal" and a docket entry stated that appellants "gave written
notice of appeal as to motion to suppress only."
In Lyon v. State and Davis v. State, the Court of Criminal Appeals held that a defendant's
"general" notice of appeal from a plea-bargained conviction did not invoke the jurisdiction of the
Court of Appeals to review nonjurisdictional claims under Former Rule 40(b)(1) (now Tex. R. App. P.
Rule 25.2(b)(3)(B) & (C)). See Lyon v. State, 872 S.W.2d 732, 736 (Tex.Cr.App.), cert. denied, 114
S.Ct. 2684 (1994); Davis v. State, 870 S.W.2d 43, 47 (Tex.Cr.App. 1994). In White v. State, the
Court of Criminal Appeals unanimously held, consistent with Lyon and Davis, that a defendant's
"general" notice of appeal from a plea-bargained conviction did not invoke the jurisdiction of the
Court of Appeals to review jurisdictional claims under Tex. R. App. P. Rule 25.2(b)(3)(A). See White
v. State, 61 S.W.3d 424, 429 (Tex.Cr.App. 2001).
In Riley v. State, the Court of Criminal Appeals decided that a plea-bargaining defendant's
"general" notice of appeal, "coupled with the [trial] court's order" reciting the Rule 40(b)(1) "extranotice" requirements for such a notice of appeal, "substantially complied with Rule 40(b)(1)" and,
therefore, invoked the jurisdiction of the Court of Appeals to review nonjurisdictional claims. See
Riley v. State, 825 S.W.2d 699, 700-01 (Tex.Cr.App. 1992).
But Riley misapplied the "substantial compliance" rule by looking elsewhere in the record beyond
the notices of appeal themselves to decide that the Court of Appeals had jurisdiction. The notices of
appeal themselves have to "substantially comply" with Tex. R. App. P. Rule 25.2(b)(3) to invoke the
jurisdiction of the Court of Appeals. See White v. State, 61 S.W.3d 424, 428 (appellate jurisdiction
invoked by giving proper notice of appeal); Lyon, 872 S.W.2d at 734-36 (same); Davis, 870 S.W.2d
at 46-47 (same). "Substantial compliance" means one has performed the "essential requirements" of a
statute, Missouri Pac. R.R. Co. v. Dallas County Appraisal Dist., 732 S.W.2d 717, 721 (Tex.App.Dallas 1987, no writ), and “no compliance” is not “substantial compliance.” Cain v. State, 947 S.W.2d
262, 263-64 (Tx.Cr.App. 1997) (Tex. Code Crim. Proc. Art. 26.13 admonishments); see also
Morales v. State, 872 S.W.2d 753, 754-55 (Tx.Cr.App. 1994) and at 756 (Meyers, J., concurring).
The Court of Criminal Appeals held: that a defendant's "general" notice of appeal from a pleabargained conviction does not invoke the jurisdiction of the Court of Appeals.
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(Dissenting opinion by Johnson, J. joined by Holcomb, J.) Argued the record showed an intent to
appeal a pretrial motion and the trial court’s knowledge of that intent. The record contained no
indication that, with that knowledge, the trial court denied permission to appeal, hence shows
substantial compliance with Tex. R. App. P. Rule 25.2(b)(1).
(Dissenting opinion by Cochran, J. joined by Price, J.) Stated the issue was whether the extra notice
provision of Tex. R. App. P. Rule 25.2(b)(3) is itself jurisdictional and therefore requires strict
compliance, or whether it is a procedural housekeeping rule that is a prerequisite to invoke the
jurisdiction of the Court of Appeals. Argued it was the latter and would have re-affirmed Riley.
Zamorano v. State, ___ S.W.3d ___, 1442-00 (Tex.Cr.App. 9-11-02)
(Opinion by Cochran, J. Dissenting opinion by Keller, P.J., joined by Womack and Keasler, JJ.
Dissenting opinion by Womack, J., joined by Keller, P.J. Hervey, J., not participating)
DWI. The Court of Appeals affirmed at 21 S.W.3d 664 (Tex.App.-San Antonio. Reversed.
1.
Speedy Trial -- Barker Analysis
Appellant’s DWI case was repeatedly reset and lingered on the docket for almost four years.
Appellant’s two speedy trial motions were denied. The Court of Appeals affirmed and PDR was
granted to determine if the Court of Appeals correctly applied the constitutional speedy trial factors set
out in Barker v. Wingo, 407 U.S. 514 (1972): (1) length of delay; (2) reasons for the delay; (3) assertion
of the right; and (4) prejudice.
The Court of Criminal Appeals used the Barker analysis as follows:
(1) Length of the Delay: The length of the delay between an initial charge and trial (or the
defendant’s demand for a speedy trial) acts as a “triggering mechanism.” Barker v. Wingo, 407 U.S.
at 530. Unless the delay is presumptively prejudicial, courts need not inquire into examine the other
three factors. Id. Given the “imprecision of the right to speedy trial, the length of delay that will
provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” Id.
at 530-31. However, the Supreme Court has explained that “the delay that can be tolerated for an
ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id. at 531.
If the accused shows that the interval between accusation and trial has crossed the threshold
dividing “ordinary” from “presumptively prejudicial” delay, a court must then consider the extent to
which that delay stretches beyond the bare minimum needed to trigger judicial examination of the
claim. Doggett v. U.S., 505 U.S. at 652.
Here, the nearly four-year delay clearly triggers analysis of the other Barker factors. See Harris v.
State, 827 S.W.2d at 956 (recognizing that courts generally hold that any delay of eight months or
longer is presumptively unreasonable and triggers speedy trial analysis). The record is silent
regarding the reason for the delay, and this factor weighed against the State.
(2) Reasons for the Delay: “[R]elated to length of delay is the reason the government assigns
to justify the delay.” Barker v. Wingo, 407 U.S. at 531. The Court of Criminal Appeals assigns
different weights to different reasons. For example,
[a] deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government ... [while a] more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant. Id.
Although a finding of “bad-faith delay” renders relief almost automatic, a finding of mere negligence
will not become “automatically tolerable simply because the accused cannot demonstrate exactly
how it has prejudiced him.” Doggett v. U.S., 505 U.S. at 656-57..
Here, the docket sheet shows that twenty-two resets occurred between November 13, 1995 (the
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date of appellant’s first appearance) and August 6, 1999 (the date of the denial of the motion to
reconsider the motion for speedy trial, and plea of no contest). One reset is therefore clearly
attributable to appellant’s conduct. the State gave no reason for the continued delay–the additional
year between the date appellant’s original motion for speedy trial was denied and the date that the
trial court rejected his motion to reconsider. Cf. Harris, 827 S.W.2d at 956 (no denial of a speedy
trial where the state’s delay was due to the case’s complexity; “it is apparent from the record that the
prosecution's case was in fact quite complicated and doubtlessly required a great deal of
preparation. Indeed, our examination of the record shows that the State presented 51 witnesses and
161 exhibits during appellant’s five-month trial”). This was not a complex case; it was a simple DWI,
and yet the State had no explanation for why it could not try the case for four years. The Court of
Criminal Appeals found that this factor weighs against the State--while not heavily, not lightly either.
(3) Assertion of the Right: The nature of the speedy trial right “makes it impossible to pinpoint
a precise time in the process when the right must be asserted or waived, but that fact does not
argue for placing the burden of protecting the right solely on defendants.” Barker, 407 U.S. at 527.
Of course, the defendant has no duty to bring himself to trial; that is the State’s duty. Id.This does
not mean that the defendant has no responsibility to assert his right to a speedy trial. Id. Whether
and how a defendant asserts his speedy trial right is closely related to the other three factors
because the strength of his efforts will be shaped by them. Id. at 531. Therefore, the defendant’s
assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right. Id. at 531-32. Conversely, a failure to assert the right makes
it difficult for a defendant to prove that he was denied a speedy trial. Id. at 532.
Here, Appellant filed his first speedy trial motion about two and one-half years from the date of his
arrest. The court of appeals discounted appellant’s second try for a speedy trial because “there
[was] no indication that he requested an immediate setting of the motion to reconsider,” and held
that appellant’s “delay and lack of persistence in asserting his right to a speedy trial weigh[ed]
against him.” Zamorano v. State, 21 S.W.3d 664, 667 (Tex. App. – San Antonio 2000). The Court of
Criminal Appeals disagreed that the assertion-of-the-right factor weighs against appellant. It is true
that appellant’s initial motion was tardy. But appellant’s second attempt to seek a speedy trial, which
came less than two months after the trial court denied his initial motion, evidenced his persistence.
See, e.g., Hardesty v. State, 738 S.W.2d 9, 11(Tex. App. – Dallas 1987, pet. ref’d)(finding assertionof-right factor weighs in favor of appellant where record reflects that appellant filed three dismissal
motions, eight, eleven and fourteen months, respectively, after his arrest); cf. Johnson v. State, 975
S.W.2d 644, 651 (Tex. App.– El Paso 1998, pet. ref’d) (“The failure to invoke the right earlier does
not amount to waiver, but because Appellant did not persistently assert her right to a speedy trial,
we did not weigh this factor heavily in her favor”). This is not a case where appellant never asked for
a hearing. Cf. Cook v. State, 741 S.W.2d 928, 940 (Tex. Crim. App. 1987)(assertion-of-right factor
weighs against appellant where “there is no evidence beyond the two motions for speedy trial filed
with the district clerk that appellant asserted his right to a speedy trial by requesting hearings to
present evidence on the matter”), vacated and remanded on other grounds, 488 U.S. 807 (1988).
Nor is this a case in which evidence shows a defendant’s affirmative desire for any delay. Cf.
County v. State, 668 S.W.2d 708, 711-12 (Tex. Crim. App. 1984)(“The record shows that appellant
and his counsel agreed to a large part if not all of the delay in that they wished to see appellant's coindictee tried first”). The Court of Criminal Appeals found that Appellant’s repeated assertion weighs
in his favor.
(4) Prejudice Caused by the Delay: Prejudice, of course, should be assessed in the light of
the interests of defendants which the speedy trial right was designed to protect.” Barker v. Wingo,
407 U.S. at 532. The Supreme Court has identified three such interests: 1) to prevent oppressive
pretrial incarceration; 2) to minimize anxiety and concern of the accused; and 3) to limit the
possibility that the defense will be impaired. Id.; Although the last type of prejudice is the most
serious, Id.; a defendant’s claim of a speedy trial violation need not necessarily demonstrate
prejudice to his ability to present defensive matters. Moore v. Arizona, 414 U.S. 25, 26-27 (1973).
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Here, Appellant testified he was a cement finisher; that he does not get paid unless he works; that
all the court setting caused him to miss work at about $120 per day. In Barker, the Court added that,
“even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his
liberty and by living under a cloud of anxiety, suspicion, and often hostility.” Barker v. Wingo, 407
U.S. at 532. The State did not challenge Appellant’s testimony, and this is some evidence of the type
of “anxiety” that the Supreme Court considers under the prejudice prong of Barker.
(5) Balancing: The Court of Criminal Appeals found that all four factors weighed in favor of relief.
First, the length of the initial delay– two years and ten months– was presumptively prejudicial, and
the additional year of delay after the denial of appellant’s original speedy trial motion was clearly
prejudicial. Second, the delay was the result of the State’s negligence. Third, appellant twice
asserted his right to a speedy trial. Finally, appellant produced evidence of prejudice which the State
failed–indeed did not attempt– to rebut.
(Dissenting opinion by Keller, P.J., joined by Womack and Keasler, J.J.) Argued Appellant was not
“persistent” in asserting the right, and failed to show significant prejudice.
(Dissenting opinion by Womack, J., joined by Keller, P.J. Hervey, J.) Argued the harm to the public of
having someone who drinks and drives on bail for four years might be more grave than any harm that
Appellant alleged.
Rushing v. State, 85 S.W.3d 283 (Tex.Cr.App. 2002)
(Opinion by Keller, P.J. Meyers, Johnson and Keasler, JJ. concurred in the result)
Capital murder – life. The Court of Appeals affirmed. Affirmed as reformed.
1.
Separation of Powers -- Appeals
Appellant, a juvenile, was convicted for a capital murder. He argued the convicting court lacked
jurisdiction because the record did not show that the juvenile court had waived jurisdiction and certified
him to be tried as an adult. Tex. Code Crim. Proc. Art. 4.18 bars this type of claim unless it is timely
raised in the convicting court. Appellant failed to do so and argued Tex. Code Crim. Proc. Art. 4.18 was
an unconstitutional violation of the Separation of Powers provision of the Texas Constitution. After the
record was supplemented, it was determined the juvenile court waived jurisdiction; that the record in
the criminal case simply failed to reflect this fact because the transfer order had not been filed. The
Court of Appeals invalidated Tex. Code Crim. Proc. Art. 4.18 under the Texas Separation of Powers
provision, holding appellate courts have inherent power to review jurisdictional errors regardless of
whether error has been preserved. They reviewed the merits of the jurisdictional claim and held that
the record, as supplemented, showed that the juvenile court had waived jurisdiction. PDR was granted
to determine if the Court of Appeals holding Tex. Code Crim. Proc. Art. 4.18 unconstitutional.
Tex. Const., Art. II, §1, Separation of Powers provides:
The powers of the Government of the State of Texas shall be divided into three
distinct departments, each of which shall be confided to a separate body of
magistracy, to wit: Those which are Legislative to one; those which are Executive to
another, and those which are Judicial to another; and no person, or collection of
persons, being of one of these departments, shall exercise any power properly
attached to either of the others, except in the instances herein expressly permitted.
This provision may be violated in either of two ways: (1) "when one branch of government assumes,
or is delegated, to whatever degree, a power that is more properly attached to another branch," and
(2) "when one branch unduly interferes with another branch so that the other branch cannot
effectively exercise its constitutionally assigned powers." State v. Williams, 938 S.W.2d 456, 458
(Tex. Crim. App. 1997); Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990).
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Tex. Code Crim. Proc. Art. 4.18 places limitations upon the courts’ ability to review certain claims,
and the issue is whether the Legislature, by creating these limitations, assumed a power more properly
attached to the judicial branch or has unduly interfered with the judicial branch’s exercise of its
constitutionally assigned powers.
Marin v. State, 851 S.W.2d 275 (Tex.Cr.App. 1993), the watershed case of error-preservation,
repeated the well-settled rule that the right to appeal is not constitutional, but is derived from statute.
The Court of Criminal Appeals held: the ability to confer or withhold jurisdiction is with the
Legislature, and Tex. Code Crim. Proc. Art. 4.18 is not unconstitutional.
Weaver v. State, ___ S.W.3d ___, 2151-01 (Tex.Cr.App. 9-11-02)
(Opinion by Holcomb, J. Dissenting opinion by Johnson, J.)
Felony DWI. The Court of Appeals reversed at, 56 S.W.3d 896, 899 (Tex.App.– Texarkana 2001).
Reversed.
1.
DWI -- Felony - Prior Convictions
Appellant was indicted for felony DWI. The offense occurred June 24, 2000. The indictment
alleged the priors occurred on August 10, 1990, and January 17, 1984. Appellant argued (1) Tex.
Penal Code § 49.09(e) required the State to allege and prove that one of the priors occurred within ten
years of the instant offense, and (2) both priors occurred more than ten years before the instant
offense, hence were inadmissible for enhancement purposes. The State responded by introducing
evidence, outside the jury’s presence, of an intervening DWI conviction on February 17, 1997.
Appellant’s motion was denied. The Court of Appeals reversed, holding unless one of the two
convictions alleged in the indictment occurred within ten years of the instant offense, “the State has not
met its burden of proof because it has failed to prove an essential element of felony driving while
intoxicated.”
The elements of an offense must be charged in the indictment, submitted to the jury, and
proven by the State beyond a reasonable doubt. Jones v. U.S., 526 U.S. 227, 232 (1999); In re
Winship, 397 U.S. 358 (1970). Under Tex. Pen. Code § 1.07(a)(22) an element of an offense is
defined as: the forbidden conduct, the required culpability, any required result, and the negation of
any exception to the offense.
Tex. Pen. Code § 49.04 provides, in relevant part:
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a
public place.
(b) Except as provided by Subsection (c) and § 49.09, an offense under this section is a Class
B misdemeanor, with a minimum term of confinement of 72 hours.
Tex. Pen. Code § 49.09 (b) at the time the offense was committed, provided that: If it is shown
on the trial of an offense under § 49.04, § 49.05, § 49.06, or § 49.065 that the person has previously
been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated,
an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while
intoxicated, or the offense of operating or assembling an amusement ride while intoxicated, the
offense is a felony of the third degree.
Tex. Pen. Code § 49.04 and § 49.09(b) together define the offense of felony driving while
intoxicated. In Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999), the Court of Criminal
Appeals explained:
The [two] prior intoxication-related offenses [referred to in § 49.09 (b)], whether they
are felonies or misdemeanors, serve the purpose of establishing whether the instant
offense qualifies as felony driving while intoxicated. The prior intoxication-related
offenses are elements of the offense of [felony] driving while intoxicated. They define
the offense as a felony and are admitted into evidence as part of the State's proof of
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its case-in-chief during the guilt/innocence stage of the trial.
Tex. Pen. Code § 49.09(e), however, provided that:
A conviction may not be used for purposes of enhancement under this section if:
(1) the conviction was a final conviction under Subsection (d) and was for an offense
committed more than 10 years before the offense for which the person is being tried
was committed; and
(2) the person has not been convicted of an offense under § 49.04, § 49.05, § 49.06,
or § 49.065, § 49.07, or § 49.08 or any offense relating to operating a motor vehicle
while intoxicated committed within 10 years before the date on which the offense for
which the person is being tried was committed.
Tex. Pen. Code § 49.09(e) is more akin to a rule of admissibility, as opposed to an element of the
offense; (5) if the State does not to allege the two most recent convictions and the convictions alleged
are ten years older than the instant offense, the State must comply with Tex. Pen. Code § 49.09(e).
The Court of Criminal Appeals held: the State need not allege the intervening conviction or submit
it to the jury because Tex. Pen. Code § 49.09(e) is not an element of the offense. The State must,
however, submit proof of the intervening conviction to the trial court during its case-in-chief.
(Dissenting opinion by Johnson, J.) Stated Gibson v. State, 995 S.W.2d 693 (Tex. Cr.App.1999) held
that the prior intoxication-related offenses were “elements” of felony DWI; that Robles v. State, ___
S.W.3d ___ NO. 1305-00 (Tex.Cr.App. 5-8-02) held that proof of the [jurisdictional prior] convictions is
necessary because the prior convictions are elements of felony DWI. Argued the Court of Appeals was
correct.
Turner v. State, ___ S.W.3d ___, NO. 73,559 (Tex.Cr.App. 9-11-02)
Capital murder – death. Affirmed.
(Opinion by Hervey, J. Womack and Johnson, JJ., concurred in the result)
1.
Jury Voir Dire -- Capital - Parole
Appellant claimed his lawyer was ineffective for not objecting to the prosecution's voir dire
comments to several veniremembers and eventual jurors that the jury could not consider a lifesentenced appellant's parole eligibility because of possible future legislative changes to the parole
laws.
The Court of Criminal Appeals held the prosecution's comments also did not inform the
veniremembers that the jury could not consider a life-sentenced appellant's parole eligibility because
of possible future legislative changes to the parole laws or that the trial court would so instruct the
jury.
The Court of Criminal Appeals stated: “Viewed in the context of the entire voir dire, the
prosecution's comments informed the veniremembers, consistent with current law set out in Tex.
Code Crim. Proc. Art. 37.071, § 2(e)(2)(B), that a life sentence meant at least 40 years and that the
jury should not speculate on when a life-sentenced appellant might be released on parole when he
became eligible after serving 40 years.”
The Court of Criminal Appeals held that counsel was not ineffective for failing to object to the
prosecutor's voir dire comments since, viewed in the context of the entire voir dire, they were not
objectionable. See Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).
Reyes v. State, 84 S.W.3d 633 (Tex.Cr.App. 9-11-02)
(Opinion by Meyers, J. Price and Keasler, J.J., concurred)
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Capital murder – death. Affirmed.
1.
Kidnapping -- Sufficient Evidence
Appellant was indicted for murdering his former girlfriend while in the course of committing or
attempting to commit kidnapping. He argued the evidence was legally insufficient to support his capital
murder conviction because the State failed to prove he committed the underlying offense of
kidnapping; that any restraint of the complainant was part and parcel of, and inseparable from the
murder; that the restraint of the complainant “merged,” hence it could not be said that the murder was
“in the course of committing or attempting to commit” kidnapping.
Hines v. State, 75 S.W.3d 444 (Tex.Cr.App. 2002) ruled the Court of Appeals erred in concluding
that to “interfere substantially” requires more than temporary confinement or slight movement that is
part and parcel of the commission of another substantive offense; that nothing in the kidnapping
statute requires the State to prove that a defendant moved a victim a certain distance or held him for a
specific length of time before he can be found guilty of kidnapping; that there is no per se bar to a
kidnapping prosecution for conduct that occurs during the commission of another offense; that the factfinder should look at all of the circumstances surrounding an offense to determine whether it meets the
statutory definition of a kidnapping.
The Court of Criminal Appeals held the evidence indicated the complainant was initially assaulted
in a parking lot and did not die there; that she was alive while in her car, hence a rational jury could
have found beyond a reasonable doubt that Appellant murdered in the course of committing a
kidnapping.
Hayes v. State, ___ S.W.3d ___, NO. 73,830 (Tex.Cr.App. 9-11-02)
(Opinion by Womack, J.)
Capital murder – death. Affirmed.
Photographs -- Autopsy - Pathologist’s Alteration
Appellant objected to autopsy photographs because they depicted the work of the medical
examiner and not his actions.
A court may consider many factors in determining whether the probative value of photographs
is substantially outweighed by the danger of unfair prejudice. These factors include: (a) the number
of exhibits offered, (b) their gruesomeness, (c) their detail, their size, (d) whether they are in color or
in black and white, (e) whether they are close-up and (f) whether the body depicted is clothed or
naked. Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Cr. App. 2000).
Autopsy photographs are generally admissible unless they depict mutilation of the victim
caused by the autopsy itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Cr. App. 1998). Changes
rendered by the autopsy process are of minor significance if the disturbing nature of the photograph
is primarily due to the injuries caused by the appellant. Salazar v. State, 939 S.W.2d 155, 173 (Tex.
Cr. App. 1997) (holding autopsy photographs depicting swabs in and a red stain around the victim's
mouth admissible).
The Court of Criminal Appeals held: the complainant was shot several times in the head and the
pathologist’s alteration made the head less gruesome, rather than more gruesome, hence there was
no abuse of discretion.
1.
Patrick v. State, 86 S.W.3d 592 (Tex.Cr.App. 2002)
(Opinion by Keller, P.J. Meyers concurred with an opinion to follow. Concurring opinion by Hervey, J.
Dissenting opinion by Cochran, J., joined by Holcomb and Johnson, JJ.)
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DNA Testing -- At Defendant’s Expense
Applicant was convicted for capital murder and sentenced to death. His conviction was affirmed
and his Tex. Code Crim. Proc. Art. 11.07 writ was denied. His request for DNA testing was denied
because he failed to prove that there was a reasonable probability that he would not have been
prosecuted or convicted if exculpatory results would have been obtained through DNA testing of the
spermatozoa samples. Nevertheless, the trial court ordered testing at Applicant’s expense because he
said he was willing to pay for the testing. There was overwhelming evidence that Applicant committed
the murder but he wanted the testing because he couldn’t remember the murder. His lawyer said, “We
all know what the results are likely to be,” and that the test, was unlikely to help Applicant. The State
appealed the trial court’s order and also filed an application for writ of mandamus.
The trial court has special or limited jurisdiction to ensure that a higher court’s mandate is carried
out and to perform other functions specified by statute, such as finding facts in a habeas corpus
setting, or as in this case, determining entitlement to DNA testing.
Here, the trial court did not cite a statutory provision, or any other source of authority, that would
authorize the order for DNA testing.
The Court of Criminal Appeals stated that it was unaware of any source of authority for this
action. The Court of Criminal Appeals has previously observed that the order was based neither
upon Tex. Code Crim. Proc. Chapter 64 nor upon a pending application for writ of habeas corpus.
The Court of Criminal Appeals held: the trial court was therefore clearly and indisputably without
jurisdiction to issue the order in question.
1.
(Concurring opinion by Hervey, J.) Concurred in the opinion and wrote to explain why.
(Dissenting opinion by Cochran, J., joined by Holcomb and Johnson, JJ.) Stated mandamus against a
trial judge is available only when that judge has (1) violated a clear ministerial duty, or (2) committed a
judicial act which is so clearly wrong as to be beyond dispute. Argued the judge did neither of the two.
Dinkins v. State, 84 S.W.3d 639 (Tex.Cr.App. 2002)
(Opinion by Meyers, J. Womack and Keasler, J.J., concurred)
DNA testing was denied. Affirmed.
1.
DNA Testing -- Denied
Appellant’s capital murder was affirmed and he filed a motion for DNA testing pursuant to Tex. C.
Crim. P. Chapter 64. He argued (1) identity was an issue; (2) a pair of jeans used as evidence
contained biological material was not submitted for DNA; (3) the types of DNA testing available during
his trial are outdated and newer techniques were more accurate and probative. Dr. Benjamin, an
associate professor of biological sciences at the University of North Texas stated in a report that a
number of items exist for which DNA testing “should still be possible and for which successful typing
would provide probative information with regard to [appellant’s] case.” These items are a bloody dish
rag, unidentified “assorted swabs,” bloody eyeglasses, three carpet samples, and Appellant’s pants.
His request was denied. Appeals of findings under Tex. Code Crim. Proc. Ann. Chapter 64 in capital
cases is directly to the Court of Criminal Appeals.
Tex. Code Crim. Proc. Ann. art. 64.01 provides that a convicted person may submit a motion to
the convicting court requesting DNA testing of evidence containing biological material that was in
the State's possession during trial. The motion must be accompanied by an affidavit sworn to by the
convicted person, containing statements of fact in support of the motion. For evidence that was not
previously subjected to DNA testing, the convicted person must demonstrate in his or her motion
that: (1) DNA testing was not available; (2) DNA testing was available but not technologically
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8
capable of providing probative results; or (3) through no fault of the convicted person, the evidence
was not tested but requires testing in order to satisfy the interests of justice. When requesting
testing for evidence that was previously subjected to DNA testing, the convicted person must
demonstrate that the evidence containing biological material can be "subjected to testing with newer
techniques that provide a reasonable likelihood of results that are more accurate and probative than
the results of the previous test." Tex. Code Crim. Proc. Ann. art. 64.01(b)(2).
The Court of Criminal Appeals held: (1) Appellant failed to meet the requirements of Tex. Code
Crim. Proc. Ann. art. 64.01; (2) it is not entirely clear as to what evidence Appellant wanted tested
because his motion requested a pair of jeans to be tested and Dr. Benjamin’s report listed other items;
(3) the jeans he wanted tested were available at trial and he failed to provide statements of fact
supporting his claims, and Dr. Benjamin’s report likewise failed to support Appellant’s claims.
COURTS OF APPEAL, 9-11-02
Lewis v. State, ___ S.W.3d ___, 2-01-120-CR (Tex.App.-Fort Worth 9-9-02)
Stalking. Affirmed.
1.
Jeopardy -- Same Proof
Stalking -- Evidence of Incidents Occurring Prior to Date Alleged - Admissible
Appellant and the complainant had a romantic relationship and she dumped him. For the next
four years, Appellant called, followed, and harassed her. He was convicted for telephone
harassment after he placed several phone calls to a number that formerly belonged to the
complainant. The old number was assigned to Robert Reed. He left messages threatening the
complainant and Reed, and called Reed anonymously numerous times. Appellant argued his
conviction for stalking violated double jeopardy because he was convicted of telephone harassment
for the same conduct on which his stalking conviction was partially based. He argued telephone
harassment was a lesser included offense of stalking.
The double jeopardy clause of the United States Constitution provides that no person shall be
subjected to twice having life or limb in jeopardy for the same offense. U.S. Const. amend. V.
Generally, this clause protects against:
(1) a second prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; (3) multiple punishments for the
same offense. United States v. Dixon, 509 U.S. 688, 695-96, 113 S. Ct. 2849, 285556 (1993); Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990) (op. on
reh'g).
When the same act or transaction violates two statutory provisions, the offenses are the same
for double jeopardy purposes if one offense contains all the elements of the other; they are different
if each offense has a unique element. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.
180, 182 (1932). The elements contained in the charging instruments, rather than the penal
provisions, are controlling in a double jeopardy analysis. State v. Perez, 947 S.W.2d 268, 270-71
(Tex. Crim. App. 1997); Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994). An offense is
a lesser included offense if it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged. Tex. Code Crim. Proc. Ann. Art. 37.09(1) (Vernon
1981). It does not matter if the charged offense can be established on a theory that does not contain
the lesser offense; the issue is whether proof of the charged offense, in this case, actually included
proof of the lesser included offense as defined in Tex. Code Crim. Proc. Art. 37.09. Schweinle v.
State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996); Broussard v. State, 642 S.W.2d 171, 173 (Tex.
Crim. App. 1982).
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In a prosecution for stalking, it is not error to admit evidence of incidents occurring prior to the
date alleged in the charging instrument and prior to the effective date of the statute. See Clements v.
State, 19 S.W.3d 442, 448 (Tex. App.-Houston [1st Dist.] 2000, no pet.).
The Court of Appeals held: the elements in the information charging telephone harassment
were not the same as the elements in the indictment charging stalking, hence the staking case was
not jeopardy barred, and telephone harassment was not a lesser included offense of stalking.
There was a dissenting opinion as to the lesser included offense holding.
Severs v. State, ___ S.W.3d ___, 06-01-00193-CR (Tex.App.-Texarkana 9-16-02)
Capital murder. Affirmed.
1.
Curative Admissibility -- Confession
Appellant was arrested for failing to report to his juvenile parole officer. Police questioned him
about the robbery-murder in two videotaped interviews. Appellant was Mirandized, did not request
counsel, and said he wanted to answer the officer’s questions. He denied knowing anything about the
murder. Appellant was later questioned by the FBI. After being advised of his Miranda rights, and
signing a written waiver of those rights, he admitted participating in the robbery-murder. Appellant filed
a motion to suppress alleging he was under arrest for murder when he made his FBI confession. The
motion was overruled. The State did not offer Appellant’s confession, or the videotaped interviews, into
evidence. Rather, it was Appellant who offered all of the videotapes into evidence, including the one
containing his confession.
When a defendant offers the same evidence to which such defendant objected earlier, that
defendant is not in a position to complain on appeal. Maynard v. State, 685 S.W.2d 60, 65 (Tex.
Crim. App. 1985). This principle is better known as the doctrine of curative admissibility. Id. There
exists, however, a corollary to this rule: that the harmful effect of improperly admitted evidence is not
cured by the fact the defendant sought to meet, destroy, or explain it by the introduction of rebutting
evidence. Such testimony does not act as a waiver of the right to challenge the admissibility of the
evidence originally admitted. Id.; Evers v. State, 576 S.W.2d 46, 48 (Tex. Crim. App. [Panel Op.]
1978); Alvarez v. State, 511 S.W.2d 493, 498-99 (Tex. Crim. App. 1973); Nicholas v. State, 502
S.W.2d 169, 174-75 (Tex. Crim. App. 1973).
The Court of Appeals held: Appellant offered no evidence that he was "implicitly forced" to
introduce the videotapes.
2.
Jury Charge -- Independent Impulse
Appellant’s request for a jury instruction on "independent impulse" was denied. The trial court
included the following language regarding parties in the charge:
All persons are parties to an offense who are guilty of acting together in the
commission of an offense. A person is criminally responsible as a party to any
offense if the offense is committed by his own conduct, by the conduct of another for
which he is criminally responsible, or both.
A person is criminally responsible for an offense committed by the conduct of
another if, acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids or attempts to aid the other person to commit the
offense. Mere presence alone will not constitute one a party to an offense.
In Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001), the court, relying on its
holding in Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), in which the court stated that
defendants were not entitled to a defensive instruction on "alibi" because alibi was not an
enumerated defense in the Texas Penal Code, and the issue was adequately accounted for within
the general charge to the jury, held that a defendant is not entitled to an "independent impulse"
instruction in a case involving conspiracy liability. Solomon, 49 S.W.3d at 368. The court held the
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appellant was not entitled to an instruction on the defensive issue of "independent impulse" because
it is not an enumerated defense in the Texas Penal Code and the issue was adequately addressed
within the general charge to the jury. Id.
The Court of Appeals held: (1) defendants are not entitled to instructions on defensive theories
not enumerated in the Texas Penal Code; (2) the issue was adequately addressed within the general
charge to the jury.
Zavala v. State, ___ S.W.3d ___, 13-99-671-CR (Tex.App.-Corpus Christi 9-12-02)
DWI. Affirmed.
1.
DWI -- Operating a Motor Vehicle - Corpus Delicti
An off-duty officer saw several wreckers going to a nearby location and went to see what
happened. It was a one-car accident. When the police arrived, the off-duty officer, Appellant and the
wrecker drivers were the only ones there. Appellant claimed another car forced him off the road. He
was subsequently arrested for DWI.
While proof of the corpus delicti of an offense may not be made by an extrajudicial confession
alone, proof of the corpus delicti need not be made independent of the extrajudicial confession. Self
v. State, 513 S.W.2d 832, 835 (Tex. Crim. App. 1974). As long as there is some evidence
corroborating the confession, the confession may be used to aid in the establishment of the corpus
delicti. Id. In Self seemed to question the continued viability of the corroboration requirement, noting
"A traditional distrust for the reliability of extrajudicial confessions has caused most jurisdictions to
require their corroboration. This earlier distrust may now be dissipating because of the greater
reliability that may be attributed to confessions as a result of the application of recent decisions such
as Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Jackson v.
Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)." Self v. State, 513 S.W.2d 832, 83637 (Tex. Crim. App. 1974).
The corpus delicti of driving while intoxicated is that someone drove or operated a motor
vehicle in a public place while intoxicated. Threet v. State, 157 Tex. Crim. 497, 250 S.W.2d 200, 200
(Tex. Crim. App. 1952). In Folk v. State, 797 S.W.2d 141, 144 (Tex. App.- Austin 1990, pet. ref'd), a
case very similar to the one before us, the defendant argued that the corpus delicti was not proven
because there was no evidence other than his extrajudicial statement tending to prove that he was
driving the car. The court there found that evidence that the vehicle was registered to a person with
whom the defendant lived was sufficient to corroborate his admission that he was driving the vehicle
that night. Id.
Here, the off-duty officer testified that appellant was purchasing the vehicle and had taken
possession of it is sufficient to corroborate his statement.
The Court of Appeals found that Appellant’s statements could be used to establishing the
corpus delicti of DWI and The Court of Appeals held the evidence was sufficient to prove he was
operating the car.
There was a dissenting opinion arguing the evidence was legally insufficient to prove Appellant
was intoxicated while operating a car because the arresting officer didn’t know what time the accident
took place, didn’t know if the keys were in the complainant’s car, no one told her they saw Appellant
drive the vehicle, and she saw no alcoholic beverage containers at or around the scene.
Price v. State, ___ S.W.3d ___, 14-01-01028-CR (Tex.App.-Houston [14th Dist.] 9-12-02)
Possession of cocaine. Reversed.
1.
Search -- No-Knock Rule
Officers executed a search warrant at Appellant’s home. He filed a motion to suppress because
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the officers did not knock, announce, and wait. The motion was heard on affidavits. The officer’s
affidavit read, “It has been the experience of your affiant that individuals who are in the possession of
controlled substances are normally in possession of firearms and such should be considered armed
and dangerous.”
In Wilson v. Arkansas, 514 U.S. 927, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995), the police
entered the defendant's home by opening a screen door without first announcing their presence. Id.
at 929. Once inside, the officers seized marijuana, methamphetamines, valium, narcotics
paraphernalia, a gun, and ammunition. Id. Disagreeing with the Arkansas Supreme Court, the
Supreme Court held that the common law "knock and announce" rule forms a part of the
reasonableness inquiry under the Fourth Amendment. Id at 930. Although Wilson involved a search,
not an arrest, LaFave indicates there is "little if any doubt" that the execution of arrest warrants also
requires notice. 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 6.2(a) (3d ed. 1996). Wilson incorporated the knock-and-announce rule into the
Fourth Amendment but left unidentified the circumstances under which the failure to knock and
announce would be excused. 514 U.S. at 936. This fact intensive question was left to the lower
courts. Id.
Even before the Supreme Court's jurisprudential shift in Wilson, lower courts invoked both the
Ker factors and similar rationales in analyzing whether a failure to knock and announce would be
permissible.See, e.g., United States v. Lalor, 996 F.2d 1578, 1584 (4th Cir. 1993); People v.
Rosales, 68 Cal. 2d 299, 437 P.2d 489, 493, 66 Cal. Rptr. 1 (Cal. 1968) (providing exceptions for
danger to the officer, destruction of evidence, or frustration of arrest); People v. Gastelo, 67 Cal. 2d
586, 432 P.2d 706, 707-08, 63 Cal. Rptr. 10 (Cal. 1967); see also Reynolds v. State, 46 Ala. App.
77, 238 So. 2d 557, 559-60 (Ala. Crim. App. 1970). Other approaches provided for a blanket
exception based on the assumption, usually viable in narcotics cases, that evidence could always
be easily and rapidly discarded
In Richards v. Wisconsin, 520 U.S. 385, 394, 137 L. Ed. 2d 615, 117 S. Ct. 1416 (1997) adopted
the first approach and rejected the latter, stating, “to justify a no-knock entry, the police must have a
reasonable suspicion that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the
crime by, for example, allowing the destruction of evidence;
Here, the State did not dispute Appellant’s claim that officers failed to knock and announce prior to
entering the home, rather they argued the officer’s affidavit demonstrated knocking and announcing
would have been dangerous and futile, one of the exceptions set out in Richards.
In Stokes v. State, 978 S.W.2d 674 (Tex.App.-Eastland 1998, pet. ref’d), a no-knock entry was
upheld where the officer testified he had reliable information that guns were in the residence.
Other courts have affirmed no-knock entries upon a showing that the defendant had a violent
past. See United States v. Reilly, 224 F.3d 986, 991 (9th Cir. 2000)(defendant sought in another
jurisdiction for numerous violent offenses); United States v. Jewell, 60 F.3d 20 (1st Cir.
1995)(defendant kept a pit bull dog in the apartment, and had an extensive history of arrest and
conviction for violent crimes); but see United States v. Bates, 84 F.3d 790 (6th Cir. 1996) (finding no knock entry illegal where, despite information that a gun was in the apartment, there was neither an
indication that the defendants were violent and likely to use a weapon if confronted by law enforcement
officers nor evidence they had a criminal history of violence or a reputation indicating they were likely
to be violent).
Affirmance has sometimes been based on combinations of a defendant’s criminal past, violent
threats, and officers’ suspicion that the defendant knew he was wanted, United States v. Hawkins, 139
F.3d 29, 32 (1st Cir. 1998).
Exigent circumstances have also been found where the warrant stemmed from an investigation of
a violent crime, State v. Nordstrom, 25 P.3d 717 (Ariz. 2001)(multiple murders).
The Houston Court of Appeals held: the showing required to invoke Richards’ danger exception is
not high, but even with this low burden, the record here reveals no evidence demonstrating the officers
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in this case had reason to believe Appellant was armed or dangerous, and the officer’s affidavit was
not sufficient to justify a no-knock entry.
Peyrani v. State, ___ S.W.3d ___, 14-02-00208-CR (Tex.App.-Houston [14th Dist.] 9-12-02)
The State appealed a suppression ruling. Affirmed.
1.
Search -- Unlawful Entry into Backyard
Police received a tip that large quantities of marijuana were being stored at and transported from a
house. They began surveillance and saw a white Suburban back into the front driveway and into the
backyard. They saw eight to ten people walking back and forth from the front yard to the backyard. The
house and front yard was surrounded by a six-foot chain link fence. There was a wooden fence around
the backyard, so the public could not see into the backyard. Several hours later, police saw a car back
into the driveway. Two men left the car and walked to the backyard carrying a heavy-looking bag. They
returned with two brick-like packages. One of the packages was wrapped in cellophane and contained
what appeared to be marijuana. After the men left, police stopped them and found 11.45 pounds of
marijuana. After this arrest, police decided not to get a search warrant. Instead, they decided to ask for
consent to search the house. Two officers dressed in raid jackets walked through the open front gate
at the driveway and down the front walkway. They testified the front door was open, and a burglar bar
door was closed over the entrance. They could not see anyone in the house. They saw a man walking
along the side of the house from the backyard. They stepped off the front walkway, onto the grass, and
approached him. They asked if he owned the home and got a negative answer. They instructed him to
stay there, and did not ask who owned the house or where he might be found. They could hear voices
and, and from earlier surveillance, knew people were in the backyard. They walked into the backyard,
without ever knocking on the front door or otherwise announcing their presence. When they rounded
the back corner of the house, they saw Peyrani and several other men loading bundles of marijuana
into the white Suburban. The officers claimed they walked into the backyard only to obtain consent to
search and did not expect to find marijuana, despite their observations throughout the day. The trial
court granted Peyrani’s motion to suppress, stating Peyrani had an expectation of privacy in his
backyard and that police had time to get a search warrant. The trial court was troubled that the officers
failed to knock at the front door, failed to ask the man at the side of the house who and where the
homeowner was, and failed to ask that man for permission to go to the backyard.
The Fourth Amendment to the United States Constitution and Texas Constitution, Art. I, § 9,
protect against unreasonable searches and seizures. This protection includes a home and the
curtilage of the home. Oliver v. United States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 104 S. Ct. 1735
(1984); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. 1979). "Curtilage" is the land
immediately surrounding and associated with the home. Gonzales, 588 S.W.2d at 360.
The Houston Court of Appeals held that Peyrani's right to privacy in his backyard was protected
by the Fourth Amendment and Texas Constitution.
In Atkins v. State, 882 S.W.2d 910 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d), one police
officer simultaneously approached the back door of a duplex apartment as a second officer
approached the front door. As the officer turned the corner to the back, he saw Atkins drop baggies of
heroin and run inside the house. The trial court refused to suppress the heroin and, showing deference
to the trial court’s ruling, the appellate court affirmed, noting there was no evidence indicating anything
other than the reasonable inference that the officer was attempting to make a joint initial attempt to
contact the inhabitant of the house.
The Houston Court of Appeals gave deference to the trial court’s ruling because the question
involved a mixed question of law and fact. The trial court questioned why the officers did not first
knock at the front door or ask the man they encountered who owned the home and where the owner
could be found. The trial court may have disbelieved that the officers proceeded to the backyard
solely to contact the homeowner. See Ross, 32 S.W.3d at 856 (the trial court may "not know exactly
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13
what the facts are, but does know (on the basis of demeanor, appearance, and credibility) that they
are not as the witness describes").
Other courts have not found a Fourth Amendment violation when police to enter the defendant's
backyard in search of a homeowner, but only after first approaching and knocking at the front door.
See, e.g., Gonzalez, 588 S.W.2d 355-57 (police first knocked at front door; rural property with
overgrown backyard; house was dark and there were no signs that anyone was home); Long v.
State, 532 S.W.2d 591, 594-95 (Tex. Crim. App. 1975) (police first knocked on front door; rural
property with an airstrip behind it); Watts v. State, 56 S.W.3d 694, (Tex. App.--Houston [14th Dist.]
2001, pet. granted) (officers first knocked on front door; home in wooded area; yard was poorly
defined and lacked privacy fence; unobstructed visibility of backyard).
The Houston Court of Appeals held that Peyrani's right to privacy in his backyard was protected
by the Fourth Amendment and Texas Constitution.
COURT OF CRIMINAL APPEALS, 9-18-02
Amir v. State, ___ S.W.3d ___, NO. 287-02 (Tex.Cr.App. 9-18-02)
Opinion by Meyers, J, joined by Price and Cochran, J.J., dissenting to refusal of Appellant’s PDR)
1.
Search -- Warrant - Search for Something Outside the Scope of the Warrant
A search warrant was issued to search for counterfeit merchandise at U.S. Apparel. The
officers executing this warrant searched the entire premises; including an area Appellant claimed
was his private residence, with the assistance of a drug-sniffing dog. The dog alerted on a night
stand where cocaine was found. Appellant was charged with possession of cocaine. The Court of
Appeals reversed the conviction, holding the search of Appellant’s private residence exceeded the
scope of the warrant. The Court of Criminal Appeals reversed at 45 S.W.3d 88 (Tex.Cr.App. 2001)
and remanded the cause to the Court of Appeals holding the search of the residence did not exceed
the scope of the warrant. On remand, the Court of Appeals affirmed, at No. 01-99-640-CR (Tex.
App.–Houston [1st Dist.] January 17, 2002)(not designated for publication), the Court of Appeals
held the presence of the drug-sniffing dog did not exceed the scope of the warrant. Appellant filed a
PDR asking whether or not the drug-sniffing dog’s assistance caused the searches to exceed the
scope of an otherwise legitimate warrant. He argued the dog’s presence and entry into his residence
exceeded the scope of the warrant because no evidence of probable cause to search for drugs had
been presented to the magistrate who issued the warrant. The Court of Appeals reasoned officers
would probably have searched the places in which the narcotics were found regardless of the dog’s
presence; therefore the dog’s presence did not affect the validity of the search.
The dissent argued: (1) this did not answer the fundamental question – why was a drug-sniffing
dog used in a search for a company’s counterfeit clothing and business records?; (2) the warrant
stated the affiant “[had] reason to believe and [did] believe that instruments used in the commission
of the offense of Trademark Counterfeiting [were] located within U.S. Apparel,” and officers brought
a dog with no training in searching for anything other than narcotics; (3) any search performed or
assisted by the dog was, by definition, a search for drugs, as the dog had no other training, and was
a search for something outside the scope of the warrant.
Marable v. State, 85 S.W.3d 287 (Tex.Cr.App. 2002)
(Opinion by Keller, P.J. Concurring opinion by Cochran, J. Dissenting opinion by Womack, J., joined
by Meyers and Johnson J.J.)
Possession of cocaine. The Court of Appeals affirmed at . Affirmed.
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1.
Indictment -- Failure to Plead Law of Parties
The indictment alleged Appellant delivered cocaine to D.A. Torsiello. The evidence indicated
Appellant actually transferred cocaine to Whorley, who was buying the cocaine at Torsiello’s
request, and Whorley transferred the cocaine to Torsiello. PDR was granted to determine whether
Appellant had sufficient notice of the theory of culpability by which the State would seek conviction
for delivery of cocaine. The Court of Appeals said the heart of Appellant’s complaint was that he did
not receive adequate notice to prepare his defense because the State did not allege it would prove
actual delivery by the law of parties.
The Court of Criminal Appeals held it is well settled that the law of parties need not be pled in
the indictment. Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997); Jackson v. State, 898
S.W.2d 896, 898 (Tex. Crim. App. 1995); Fisher v. State, 887 S.W.2d 49, 57 (Tex. Crim. App.
1994); Swope v. State, 805 S.W.2d 442 (Tex. Crim. App. 1991); Montoya v. State, 810 S.W.2d 160,
165 (Tex. Crim. App. 1989), cert. denied, 502 U.S. 961 (1991). Crank v. State, 761 S.W.2d 328, 352
(Tex. Crim. App. 1988), cert. denied, 493 U.S. 874 (1989); Pitts v. State, 569 S.W.2d 898, 900 (Tex.
Crim. App. 1978). The Court of Criminal Appeals also held the law of parties need not be pled in the
indictment in a drug delivery case Tate v. State, 811 S.W.2d 607, 607, 607 n. 3 (Tex. Crim. App.
1991)(sale of methamphetamine between the defendant, an undercover police officer, and the
officer's informant; noting that the Court of Appeals correctly held, "it is well settled that if the
evidence supports a charge on the law of parties, the court may charge on the law of parties even
though there is no such allegation in the indictment").
(Concurring opinion by Cochran, J.) Joined the majority opinion and agreed that Appellant had
adequate notice.
(Dissenting opinion by Womack, J., joined by Meyers and Johnson J.J.) Argued the indictment
alleged actual transfer by Appellant’s own conduct. The charge permitted conviction for actual
transfer to Torsiello by the conduct of Whorley for which Appellant was criminally responsible. Tex.
Code Crim. Proc. Art. 21.03 states: “Everything should be stated in an indictment which is necessary
to be proved.” The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy
the right to be informed of the nature and cause of the accusation.” Tex. Const. Article I, Sec. 10
states “In all criminal prosecutions the accused shall have the right to demand the nature and cause
of the accusation against him”. This lack of notice is the very evil against which the constitutions and
Tex. Code Crim. Proc. Art. 21.03 are directed and it was error to charge the jury over objection that it
could convict Appellant if he was criminally responsible for the conduct of another.
Welch v. State, ___ S.W.3d ___, NO. 875-01 (Tex.Cr.App. 9-18-02)
(Opinion by Keasler, J. Concurring opinion by Womack, J.)
Possession of methamphetamine.
1.
Search -- Consent - Third Party
Appellant was stopped for speeding. She had an outstanding warrant, and while this
information was being verified, the officer repeatedly asked for permission to search the truck. She
repeatedly dodged the question. She did not explicitly say “no,” but did not grant consent to search.
Instead, she requested that, if she was going to be arrested, the truck be given to her passenger.
Once the warrant was confirmed, Welch repeated this request, even though the officer warned her
that if she gave the truck to the passenger, the passenger would be “responsible for everything in it.”
The officer told the passenger that Welch was being arrested. He gave her the car keys, and asked
for consent to search. She gave consent. The officer found two burnt marijuana cigarettes in the cab
of the truck. He found a vial of methamphetamine in Welch’s purse. He found a methamphetamine
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15
recipe and various ingredients and supplies used to make methamphetamine in the bed of the truck,
inside a green military-style bag. Welch’s motion to suppress was denied.
In United States v. Matlock, 415 U.S. 164, 170 (1974), the Supreme Court stated that "the
consent of one who possesses common authority over premises or effects is valid as against the
absent, non-consenting person with whom that authority is shared." The Court explained that "[t]he
authority which justifies the third-party consent . . . rests . . . on mutual use of the property by
persons generally having joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit the inspection in his own right and
that the others have assumed the risk that one of their number might permit the common area to be
searched." Id. at 171 n. 7.
Becknell v. State, 720 S.W.2d 526 (Tex.Cr.App. 1986) and Collins v. State, 548 S.W.2d 368
(Tex.Cr.App. 1976), cert. denied, 430 U.S. 959 (1977) held a person must have equal control and
equal use of the property to give a valid third party consent.
Illinois v. Rodriguez, 497 U.S. 177 (1990) held the state has the burden of establishing common
authority.
Here, the passenger had joint access and control over the truck for most purposes, hence it
was reasonable to conclude that the passenger had the right to permit a search and that Welch
assumed the risk she might do so.
In United States v. Impink, 728 F.2d 1228 (9th Cir. 1984), a landlord gave consent to search
premises when the tenant was present and objected. The Ninth Circuit stated that "[p]olice should
rarely seek consent from third parties who possess such limited rights of access." Id. at 1233. The
Impink court also stated that "when the police intentionally bypass a suspect who is present and
known by them to possess a superior privacy interest, the validity of third party consent is less
certain." Id. at 1234. While a landlord has access to his tenant's property for some purposes, he
certainly does not have mutual access and control for most purposes. Nor can it be reasonably
concluded that a tenant assumes the risk that his landlord will consent to a government search of
his home simply by signing a lease. United States v. Kelley, 953 F.2d 562, 569 (9th Cir. 1992)
(explaining that Impink is a "limited purpose" case in which the purported consent was rejected
"because a person with limited purpose access lacks the 'joint access and control for most
purposes' necessary under . . . Matlock.").
The Court of Criminal Appeals concluded: under Matlock, third-party consent is valid if the third
party has mutual access and control over the property searched and if it can be said that the
defendant assumed the risk that the third party would consent to a search. The Court of Criminal
Appeals held: this rule applies even when the defendant is present at the scene and does not
consent to a search. Applying Matlock, The Court of Criminal Appeals concluded: that the
passenger had authority to consent to the search of Welch's truck.
(Concurring opinion by Womack, J.) Joined the Court’s opinion, and stated the trial court’s decision
was justified by laws other than consent. Argued the car, as contraband, could have been seized
without warrant incident to a lawful search incident to arrest.
Rodriquez v. State, ___ S.W.3d ___, NO. 1164-01 (Tex.Cr.App. 9-18-02)
(Opinion by Meyers, J.)
Sexual offender registration. The Court of Appeals affirmed. Affirmed.
1.
Sexual Registration -- Not Ex Post Facto
Appellant was convicted of aggravated sexual assault for an offense that occurred in 1987. He
was released on mandatory in 1992. He was a Mexican national and was deported upon release. In
1997, he illegally re-entered the U.S. The Legislature made a series of amendments to the sex
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offender registration and notification statute. Among those changes that became effective
September 1, 1997, was the requirement that Appellant register with local law enforcement.
Appellant failed to do so and was convicted for failure to register as a sex offender. He argued
requiring him to register as a sex offender for life constituted an ex post facto violation; that this
inflicts greater, or different, punishment upon him than that attached when the offense was
committed.
Texas’s sex-offender registration statute was originally enacted in 1991; (2) prior to the
amendments, the class of sex offenders with reportable convictions did not include any defendants
who had been convicted prior to 1991; (3) the Legislature expanded the class to include all those
who had a “reportable conviction or adjudication” since September 1, 1970, and who continued to
be under some form of state supervision;
An ex post facto law: 1) punishes as a crime an act previously committed which was innocent
when done; 2) changes the punishment and inflicts a greater punishment than the law attached to a
criminal offense when committed; or 3) deprives a person charged with a crime of any defense
available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 42-44 (1990); Ex
parte Davis, 947 S.W.2d 216, 219-20 (Tex. Crim. App. 1996); Johnson v. State, 930 S.W.2d 589,
591 (Tex. Crim. App. 1996).
Under the “intent-effects test” of Doe v. Otte, 259 F.3d 979, 985 (9th Cir. 2001), cert. granted,
___U.S. at ___, 122 S.Ct. 1062 (2002), a reviewing court must initially determine if the legislature
intended the statute to be a criminal punishment, because whether a particular punishment is
criminal or civil is, at least initially, is a matter of statutory construction. A court must first ask
whether the legislature, in establishing the penalizing mechanism, indicated either expressly or
impliedly a preference for one label or the other." Hudson v. United States, 522 U.S. 93, 99 (1997)
(citations and internal quotation marks omitted). Id. at 98. A reviewing court must afford a high level
of deference to the legislature's stated aims in passing the statute. Id. at 101 (cautioning that courts
must consider effects of statute "in relation to the statute on its face" and that "only the clearest proof
will suffice to override legislative intent and transform what has been denominated a civil remedy
into a criminal penalty").
If the legislature manifests an expressly punitive intent, the inquiry is at an end and the statute
is a violation of the ex post facto clause. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963). If
the legislature intends to establish a civil remedy, a reviewing court then examines "whether the
statutory scheme [is] so punitive either in purpose or effect as to transform what was clearly
intended as a civil remedy into a criminal penalty." Hudson, 522 U.S. at 99 (citations and internal
quotation marks omitted). The legislature's manifest intent will be rejected only where the party
challenging the statute provides "the clearest proof" that the statute is actually criminally punitive in
operation. Hendricks, 521 U.S. 346, 361 (1997).
To evaluate whether the effects of a statute are criminally punitive, courts generally look to the
factors set forth by the Supreme Court in Kennedy, 372 U.S. at 169 (the "Kennedy factors").Courts
consider: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has
traditionally been regarded as a punishment; (3) whether it comes into play only on a finding of
scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and
deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative
purpose to which it may rationally be connected is assignable to it; and (7) whether it appears
excessive in relation to the alternative purpose assigned. 372 U.S. at 168-69.
The Court of Criminal Appeals held: the intent of the 1997 amendments was civil and remedial
in nature, and after weighing all the Kennedy factors, the effect of the amendments was not so
punitive as to transform the statute into a criminal sanction.
COURTS OF APPEAL, 9-18-02
Scott v. State, ___ S.W.3d ___, 2-01-285-CR (Tex.App.-Fort Worth 9-19-02)
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Aggravated assault with a deadly weapon. Affirmed.
1.
Guilty Plea -- Admonishments
Appellant entered an open plea of guilty to aggravated assault and thereafter filed a general
notice of appeal. Court-appointed appellate counsel filed a motion to withdraw and an Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967) brief. Appellant proceeded pro se and filed a brief
challenging the effectiveness of trial counsel and appellate counsel’s authority to withdraw. After the
case was submitted, the Court of Appeals granted counsel’s request to file a post-submission brief
raising an issue presented in the post-submission brief as well as the issues raised by Appellant’s
pro se brief. Counsel’s supplemental brief argued the plea was not on the record, hence the record
is inadequate under the U.S. Constitution to show that Appellant voluntarily entered his plea.
Counsel relied on Justice Cohen’s concurring opinion in High v. State, 998 S.W.2d 642, (Tex. App.Houston [1st Dist.] 1999, pet. ref’d) where Justice Cohen, relying on Boykin v. Alabama, 395 U.S.
238, 89 S. Ct. 1709 (1969) stated, “I believe Boykin means that the defendant not only must be
admonished, but the admonishment – including the range of punishment – must be on the record.”
High, 998 S.W.2d at 646 (Cohen, J., concurring) (relying on Boykin v. Alabama). The trial court in
High failed to admonish High regarding the punishment range. There was no record of the
admonishment because there was no admonishment.
The Fort Worth Court of Appeals held: they had jurisdiction to consider this issue because it
involved the voluntariness of the plea and involved potential error occurring before entry of the plea.
See Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); Flowers v. State, 935 S.W.2d
131, 133 (Tex. Crim. App. 1996); Broddus v. State, 693 S.W.2d 459, 460-61 (Tex. Crim. App. 1985).
The Fort Worth Court of Appeals held: (1) evidence of appellant’s plea, however, was in the
clerk’s record. Appellant signed written plea admonishments and a judicial confession and pleaded
guilty to the offense in writing, all of which are in the clerk’s record and are before this court. See
Cutrer v. State, 995 S.W.2d 703, 706 (Tex. App.-Texarkana 1999, pet. ref’d) (holding prima facie
evidence of voluntary and knowing plea is presented where defendant was properly admonished in
writing); (2) Appellant also signed a waiver of rights form, waiving, among other rights, his right to
have a reporter’s record made of the plea proceedings. See Lee v. State, 39 S.W.3d 373, 375 n.1
(Tex. App.-Houston [1st Dist.] 2001, no pet.) (“There is no requirement that the judge orally inquire
about voluntariness of a plea after a defendant has signed written admonishments, statements, or
waivers, and it is established that the defendant has understood them.”); (3) There is no
constitutional requirement that appellant’s plea be noted in a court reporter’s record. Id.; see also
Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989) (permitting trial court to admonish
defendant orally or in writing); Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.-Houston [1st Dist]
1999, pet. ref’d) (holding defendant who waived court reporter and received written admonishments
could not show plea was involuntary); Wright v. State, 962 S.W.2d 661, 663 (Tex. App.-Fort Worth
1998, no pet.) (stating court may admonish the defendant either orally or in writing); (4) Appellant’s
pro se argument that trial counsel was ineffective for advising him to plead guilty was rejected
because he failed to demonstrate counsel’s ineffectiveness.
Patterson v. State, ___ S.W.3d ___, 03-01-00595-CR (Tex.App.-Austin 9-12-02)
Aggravated sexual assault of a child by penetration, aggravated sexual assault of a child by contact,
indecency with a child by contact, attempted indecency with a child by contact, and indecency with a
child by exposure. Reversed and affirmed in part.
1.
Jeopardy -- Same Conduct
Appellant spent the night with the parents of 11-year old and 10-year old daughters. Both girls
slept in the same bedroom. He got in bed with the 10-year old and she pushed him out. He got in
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bed with the 11-year old and tried to make her touch his penis. She refused. Then he attempted to
have anal intercourse with the 11-year old and was able to make partial penetration. The 10-year old
saw the sheets moving on the complainant's bed and heard the complainant tell Appellant she
needed to go to the bathroom. She and the complainant both went to the bathroom where the
complainant told her what happened. Appellant was charged in a three-count indictment containing
a total of five paragraphs. Count one, paragraph one alleged Appellant penetrated the complainant's
anus with his penis. Count one, paragraph two alleged Appellant caused the complainant's anus to
contact his penis. Count two, paragraph one alleged Appellant touched the complainant's anus with
the intent to arouse or gratify his sexual desire. Count two, paragraph two alleged Appellant caused
the complainant to touch his genitals with the intent to arouse or gratify his sexual desire. Count
three alleged Appellant exposed his genitals in the complainant's presence with the intent to arouse
or gratify his sexual desire. Each paragraph was submitted to the jury as alleged in the indictment
except count two, paragraph two, which was submitted as a lesser included offense of attempted
indecency with a child. The jury returned five guilty verdicts. Appellant argued his convictions for
aggravated sexual assault with a child, indecency with a child by contact, and indecency with a child
by exposure violated double jeopardy.
The Double Jeopardy Clause protects against a second prosecution for the same offense
following a conviction, a second prosecution for the same offense following an acquittal, and
multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Cervantes v.
State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991). A double jeopardy claim may be raised for the
first time on appeal when the double jeopardy violation is clearly apparent on the face of the record.
Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); Duvall v. State, 59 S.W.3d 773, 77677 (Tex. App.--Austin 2001, pet. ref'd).
When the same criminal conduct violates two different penal statutes, the two offenses are the
same for double jeopardy purposes if one of the offenses contains all the elements of the other.
Blockburger v. United States, 284 U.S. 299, 304 (1932). In Texas, an offense is included within
another if, among other things, it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged. Tex. Code Crim. Proc. Ann. art.
37.09(1) (West 1981). Because our state law "describes includedness in much the same way
Blockburger describes sameness," greater inclusive and lesser included offenses are the same for
double jeopardy purposes. Parrish v. State, 869 S.W.2d 352, 354-55 (Tex. Crim. App. 1994).
The double jeopardy guarantee against multiple punishments does no more than prevent
greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ex
parte Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992). Absent a clear indication of contrary
legislative intent, it is presumed that the legislature did not intend to authorize multiple punishments
for two offenses that are the same under the Blockburger test. Whalen v. United States, 445 U.S.
684, 691-92 (1980).
The Austin Court of Appeals held: (1) Appellant penetrated the complainant's anus two times –
this supports the convictions for aggravated sexual assault by penetration and by contacting the
complainant's anus with his penis; (2) the two aggravated sexual assault convictions are not based
on the same conduct because the two acts were separate and distinct, and do not constitute
multiple punishments for the same offense.
The Austin Court of Appeals also held: (1) the convictions for indecency with a child by contact
and indecency with a child by exposure are based on the same conduct underlying the two
aggravated sexual assault convictions and this violates the double jeopardy guarantee against
multiple punishments; (2) Appellant exposed his penis twice, as he attempted to get the complainant
touch his penis and then penetrated her anus with his penis – the offense of indecency with a child
by exposure was incident to and included within the aggravated sexual assaults, and in the absence
of a clear indication of legislative intent to inflict multiple punishments, the conviction for indecency
with a child by exposure based on the same conduct for which he was convicted of aggravated
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sexual assault constitutes impermissible multiple punishment for the same offense; (3) when a
defendant is convicted of two offenses in violation of the double jeopardy guarantee, the proper
remedy is to set aside the conviction for the offense carrying the less serious punishment, therefore
the convictions for indecency with a child by contact and indecency with a child by exposure were
reversed.
2.
Alternative Perpetrator -- Nexus
Police found a comforter that came from the girl’s room in the laundry room. Semen was found
on the comforter and DNA testing it did not come from Appellant. It was not known if the comforter
was on the complainant's bed at the time of the assaults. The age of the stain was unknown. There
was no evidence that Appellant had ejaculated, and no effort was made to identify the source. This
evidence was excluded. Appellant claimed he was wrongly accused; that the complainant fabricated
her story or blamed him for the actions of another. He argued the semen was evidence that, if a
sexual assault took place, he was not the assailant. He asserts the court's ruling denied him the
opportunity to present a meaningful defense. The trial court ruled the relevance of the evidence was
outweighed by the danger of unfair prejudice and confusion "since it cannot be determined when the
semen was placed there, by whom it was placed, when – even on whose blanket it was placed,
whether it was even on the alleged victim's bed.”
"Alternative perpetrator" evidence presents special problems when weighing probative value
against Rule 403 counter factors.” Wiley v. State, 74 S.W.3d 399 (Tex.Cr.App. 2002). A defendant
has the right to establish innocence by showing that another committed the crime, but he must show
that his proffered evidence is sufficient, on its own or in combination with other evidence, to
establish a nexus between the crime charged and the alleged "alternative perpetrator. Id.
The Austin Court of Appeals held: (1) in the absence of evidence tending to show that the
semen stain on the comforter was left by the complainant's assailant, there was no nexus between
the proffered evidence and the assaults; (2) absent such a nexus, the semen stain and the test
results did not exculpate Appellant or support a conclusion that the assaults were committed by
someone else, and it was not an abuse its discretion to exclude the evidence.
Bradford v. State, ___ S.W.3d ___, 06-02-00062-CR (Tex.App.-Texarkana 9-19-02)
MRP. Affirmed.
1.
MRP -- Substance Abuse Evaluation and PSI
Appellant’s probation for aggravated assault was revoked. He argued it was error to sentence
him without first ordering a substance abuse evaluation, and a PSI.
Tex. Code Crim. P. Art. 42.12, §§ 9(h) provides that when the judge determines
[T]hat alcohol or drug abuse may have contributed to the commission of the offense,
. . . the judge shall direct a supervision officer approved by the community
supervision and corrections department or the judge or a person, program, or other
agency approved by the Texas Commission on Alcohol and Drug Abuse, to conduct
an evaluation to determine the appropriateness of, and a course of conduct
necessary for, alcohol or drug rehabilitation for a defendant and to report that
evaluation to the judge.
Tex. Code Crim. P. Art. 42.12, §§ 9 requires the trial court to order the preparation of a PSI
report when the defendant timely requests one. Whitelaw v. State, 29 S.W.3d 129 (Tex. Crim. App.
2000).
The Texarkana Court of Appeals held: (1) a substance abuse evaluation, a "SASSI" test, was
ordered as a condition of community supervision, thus the trial court complied with the statute when
Appellant was placed on community supervision; (2) the statute does not require a second
evaluation before revoking community supervision; (3) Tex. Code Crim. P. Art. 42.12, §§ 9 requires
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a PSI when one is timely requested, and Appellant made no such request.
Tabor v. State, ___ S.W.3d ___, 12-01-00167-CR (Tex.App.-Tyler 9-18-02)
Burglary of a habitation. Affirmed.
1.
Burglary -- Recent Possession
Traveler’s checks, a personal check, a Wal-Mart gift card, and car keys were taken from the
complainant’s house. The complainant cashed the traveler’s checks using his personal
identification. The complainant’s car came up missing and was found in Dallas County. Appellant
was arrested in Dallas on an unrelated charge and had the complainant’s car keys in his
possession. He argued the evidence supporting his conviction for burglary was legally and factually
insufficient because there was no evidence he entered the complainant’s habitation.
The unexplained personal possession of recently stolen property may constitute sufficient
evidence to support a conviction. See Chavez v. State, 843 S.W.2d 586, 587 (Tex. Crim. App.
1992); Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). Mere possession of stolen
property does not give rise to a presumption of guilt, but rather it will support an inference of guilt of
the offense in which the property was stolen. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App.
1983). To warrant an inference of guilt based solely on the possession of stolen property, it must be
established that the possession was personal, recent, and unexplained. Grant v. State, 566 S.W.2d
954, 956 (Tex. Crim. App. [Panel Op.] 1978). Also, the possession must involve a distinct and
conscious assertion of right to the property by the defendant. Id. If the defendant offers an
explanation for his possession of the stolen property, the record must demonstrate the account is
false or unreasonable. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). Whether a
defendant's explanation for possession of recently stolen property is true or reasonable is a question
of fact to be resolved by the trier of fact. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.-Texarkana
2001, no pet.).
The Tyler Court of Appeals held: Herrera cashed the traveler’s checks the morning after the
burglary, her car was stolen two days later, and Herrera was arrested with the car keys in his
possession, and the evidence was legally and factually sufficient.
Morris v. State, ___ S.W.3d ___, 13-01-00541-CR (Tex.App.-Corpus Christi 9-19-02)
DWI. Affirmed.
1.
DWI -- Information - Manner and Means of Intoxication
The information alleged intoxication by alcohol, a controlled substance, a drug, a dangerous
drug, or a combination of two or more of those substances. Appellant argued it was error to deny her
motion to quash because the State did not specify the substance which caused intoxication; that the
information gave insufficient notice because it alleged every means possible of committing the
offense.
When a term is defined in the penal statutes, it is permissible for it not to be further alleged in
the indictment since the defendant is presumed to be on notice of statutory definitions. Thomas v.
State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981). However, if a definition provides for more than
one manner or means to commit an act or omission, then upon timely request, the State must allege
the particular manner or means it seeks to establish. Ferguson v. State, 622 S.W.2d 846, 851 (Tex.
Crim. App. 1981); State v. Moreno, 822 S.W.2d 754, 756 (Tex. App.-Corpus Christi 1992, no pet.). A
defendant may not be left to guess or assume that the State is going to prove one or all the types of
statutorily defined conduct. Ferguson, 622 S.W.2d at 851. However, the State may specifically
allege, in the conjunctive or disjunctive, any or all of the statutorily defined types of conduct
regarding an offense. Id. Such a charging instrument still puts a defendant on clear notice of what
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the State will attempt to prove at trial. State v. Carter, 810 S.W.2d 197, 199 (Tex. Crim. App. 1991)
(citing State v. Winskey, 790 S.W.2d 641 (Tex. Crim. App. 1990)).
A charging instrument alleging DWI must allege which definition of "intoxicated" the State will
rely on at trial and which types of intoxicants the defendant supposedly used. Id. at 200.; see State
v. Flores, 878 S.W.2d 651, 653 (Tex. App.-Corpus Christi 1994), aff’d, 896 S.W.2d 198 (Tex. Crim.
App. 1995) (indictment was insufficient to provide notice because it did not allege specific definition
of intoxication as required by Carter).
The “type of intoxicant” must be specified in the information, not the specific substance. Carter,
810 S.W.2d at 200; see State v. Cordell, 34 S.W.3d 719, 721 (Tex. App.-Fort Worth 2000, pet.
ref’d). "Type of intoxicant" refers to those substances listed in § 49.01(2)(A) of the penal code; i.e.,
alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of these
substances. Tex. Pen. Code Ann. § 49.01(2)(A) (Vernon Supp. 2002); see Cordell, 34 S.W.3d at
721. Therefore, to give adequate notice, an information charging a person with DWI need not
specify which specific drug or controlled substance caused the intoxication, as long as the type of
intoxicant listed in § 49.01(2)(A) is alleged. Cordell, 34 S.W.3d at 722.
The Corpus Christi Court of Appeals held: the State alleged each type of intoxicant, and every
possible means of committing the offense, and thereby provided adequate notice.
2.
DWI -- HGN - Expert Testimony
Appellant filed a motion in limine about admissibility of HGN testimony. The trial court restricted
any HGN testimony about the quantitative assessment of Appellant’s intoxication, and refused to
review the officer’s qualifications as an HGN expert before trial.
In Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994), the court of criminal
appeals, in addressing the admissibility of HGN testimony, took judicial notice of the reliability of the
theory underlying the HGN test and its technique. However, the court held that the admissibility of
testimony on HGN test results depends on whether the HGN technique, as prescribed by the United
States Department of Transportation and the State of Texas, is applied properly on the occasion in
question. Id. Emerson requires that a witness testifying concerning a defendant’s performance on an
HGN test, must be qualified as an expert on the HGN test. Id.
Here, the record establishes that the Trooper was trained and certified by the State of Texas to
administer the HGN test.
The Corpus Christi Court of Appeals rejected Appellant’s argument that the HGN test was
improperly administered because the officer could not administer the HGN test. The Corpus Christi
Court of Appeals concluded the Trooper was qualified as an expert on the HGN test. See Emerson
v. State, 880 S.W.2d at 769. The Corpus Christi Court of Appeals held: Appellant was unable to
focus on the pen; she simply stared at him, and the record contained no evidence about her eye
movement.
Peters v. State, ___ S.W.3d ___, 14-00-01480-CR (Tex.App.-Houston [14th Dist.] 9-12-02)
Possession of cocaine. Affirmed.
1.
Relevancy -- Balancing Test
Appellant was arrested in a motel room with cocaine in plain view. Following his arrest, the
officers searched the room and found marijuana and a sawed-off shotgun. The State introduced the
marijuana and shotgun into evidence, over objections that their probative value was substantially
outweighed by the danger of unfair prejudice, confusion of the issues, and misleading of the jury,
and their admission was improper extraneous offense evidence. The issue of consent was
submitted to the jury.
Tex. R. Evid. Rule 403 in its entirety is stated as follows:
Although relevant, evidence may be excluded if its probative value is substantially
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outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless presentation of cumulative
evidence.
Tex. R. Evid. Rule 403 favors the admission of relevant evidence, but discusses some of the
reasons relevant evidence would be excluded. Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim.
App. 1997).
Tex. R. Evid. Rule 403 requires exclusion of relevant evidence if the probative value of the
evidence is outweighed by unfair prejudice. Id. In other words, exclusion of relevant evidence is
required under Rule 4033 when there is a clear disparity between the degree of prejudice of the
offered evidence and its probative value. Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App.
1996).
In weighing the probative value of offered evidence under Tex. R. Evid. Rule 403, a trial court
considers (1) the evidence’s inherent probative value, (2) its potential to impress the jury in some
irrational but indelible way, (3) the amount of time the proponent needs to develop the evidence, and
(4) the proponent’s need for the evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App.
2002); Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (opinion on reh’g).
The Houston Court of Appeals found: that the admission of the shotgun and the marijuana had
an “undue tendency to suggest a decision on an improper basis.” See id; Cohn v. State, 849 S.W.2d
817, 820 (Tex. Crim. App. 1993) (stating that unfair prejudice refers to a tendency to suggest a
decision on an improper basis, commonly, an emotional one); (2) admission of the shotgun and the
marijuana had an “undue tendency to suggest a decision on an improper basis” because the
existence of the shotgun and the marijuana had little, if any, inherent value as it relates to the issue
of consent to enter the motel room, but it had great potential to impress the jury in an indelible way,
See Montgomery, 810 S.W.2d at 389-90; (2) there is no reason that the prosecution would need the
evidence, other than to demonstrate, improperly, that Appellant and his wife were probably lying
about the issue of consent because it is irrelevant to the issue of consent, except that it would make
it less likely that Appellant or his wife consented to the entry.
The Houston Court of Appeals held: (1) the probative value of the shotgun and marijuana was
plainly outweighed by the danger of unfair prejudice. See Jones, 944 S.W.2d at 653; (2) the shotgun
and the marijuana were utterly irrelevant to the issue of consent, except that it would make it less
likely that appellant or his wife consented to the entry.
2.
Extraneous Offense -- Not Same Transaction Contextual Evidence
The State argued the extraneous offenses were admissible as “same transaction contextual
evidence.”
Tex. R. Evid. Rule 404(b) prohibits admitting evidence of other crimes, wrongs or acts in an
attempt to prove that these crimes and/or acts exemplify the person’s character and to show that the
person acted in conformity with their character.
When character evidence is not relevant to an issue to be properly proved at trial, it may be
admissible as same transaction contextual evidence when the other crimes or bad acts are so
intertwined that testimony cannot be given regarding one crime or act without the showing of the
other(s). Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) (explaining that same
transaction contextual evidence is evidence when several crimes are intermixed or blended with one
another, or connected so they form an indivisible criminal transaction); Mayes v. State, 816 S.W.2d
at 86-87; Taylor v. State, 420 S.W.2d 601, 605-06 (Tex. Crim. App. 1967).
Same transaction contextual evidence is admissible only when the offense would make little or
no sense without also bringing in the same transaction evidence. Wyatt v. State, 23 S.W.3d 18, 25
(Tex. Crim. App. 2000); Pondexter v. State, 942 S.W.2d 577, 583-85 (Tex. Crim. App. 1996).
The Houston Court of Appeals held: (1) the evidence of the shotgun and the marijuana was not
so intertwined with the issue of consent that the jury could not understand the testimony without it.
See Garrett v. State, 875 S.W.2d 444, 447 (Tex. App.-Austin 1994, pet. ref’d); (2) the testimony
By: Jim Skelton & Greg Velasquez 03/08/16,8:33 PM
23
concerning the consent of the officers could have been easily understood, and certainly more clear,
without the introduction of the extraneous evidence, See Wyatt, 23 S.W.3d at 25; (3) it would have
been a simple matter to describe the circumstances surrounding the entry without mentioning the
shotgun under the bed and the marijuana cigarette burning in the ashtray, See Mayes, 816 S.W.2d
at 86 n.4; (4) in short, because the evidence did not directly relate to a fact of consequence in the
case and was intended to prove that appellant acted in conformity with a (bad) character, the
evidence fell within Tex. R. Evid. Rule 404(b)’s prohibition.
Concurring opinion argued that admission of the contested evidence was not error.
Dissenting opinion arguing the erroneous admission of such evidence was harmful error, especially
after the prosecutor mentioned the evidence four times during closing argument.
United States v. Trejo-Galvan, 304 F.3d 406 (5th Cir. 2002)
1. Sentencing -- Federal Guidelines - Immigration Violations - Crimes Against the Person Drunk Driving
Sentencing -- Federal Guidelines - Crimes Against the Person - Defined
Trejo-Galvan pleaded guilty to one count of illegal reentry into the United States in violation of 8
U.S.C. § 1326. The district court sentenced Trejo to twelve months and one day in prison. Based on
its determination that Trejo’s three prior misdemeanor convictions for driving under the influence
were “crimes against the person,” the district court also imposed a three-year term of supervised
release under the enhanced penalty provision in 8 U.S.C. § 1326(b)(1). The issue was whether
Trejo’s convictions for driving under the influence are “crimes against the person,” thereby triggering
the enhanced penalty provision.
This is a case of first impression.
At common law, the term “crimes against the person” refers to the “category of criminal
offenses in which the perpetrator uses or threatens to use force” -- for example, “murder, rape,
aggravated assault, and robbery.” Black’s Law Dictionary 379 (7th ed. 1999). Blackstone’s
Commentaries similarly limits the list of “offenses against the persons of individuals” to murder,
mayhem, forcible abduction and marriage, rape, sodomy, assault, battery, wounding, false
imprisonment, and kidnapping. See 4 William Blackstone, Commentaries on the Laws of England
205-19 (1st American ed. 1772) (reprint 1992); see also 1 Bouvier’s Law Dictionary 729-30 (8th ed.
1984) (same). At common law, “crimes against the person” necessarily involve the intentional use or
threat of physical force against a person.
In United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001), the Fifth Circuit Court
construed the term “crime of violence as defined in 16(b) [to] require[] recklessness as regards the
substantial likelihood that the offender will intentionally employ force against the person or property
of another in order to effectuate the commission of the offense.” Id. We concluded that, under this
view of the statute, a felony conviction under Texas law for driving while intoxicated is not a “crime of
violence” within the meaning of § 16(b) because “intentional force against the person or property of
another is seldom, if ever, employed to commit the offense of felony DWI.” Id. at 928.
The Fifth Circuit Court held that a “crime against the person” is an offense that, by its nature,
involves a substantial risk that the offender will intentionally employ physical force against another
person.
The Fifth Circuit Court concluded that driving under the influence is not a crime against the
person because it does not involve a substantial risk that the offender will intentionally use force
against another person. See Chapa-Garza, 243 F.3d at 927-28; cf. Solem v. Helm, 463 U.S. 277,
280 (1983) (noting that, for purposes of Eighth Amendment proportionality review, a “third-offense
driving while intoxicated” is not “a crime against a person”).
By: Jim Skelton & Greg Velasquez 03/08/16,8:33 PM
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United States v. Chase, 301 F.3d 1019 (9th Cir. 2002)
1. Psychotherapist-Patient Privilege -- Dangerous Patient Exception - Patient’s Statements
Made During Therapy Sessions
During a counseling session, Chase showed Dr. Dieter his appointment book containing a list
of names, addresses and social security numbers of people Chase had encountered in his business
and legal dealings, including two FBI agents who had been assigned to investigate complaints that
he lodged. Chase confided to Dr. Dieter that he had thoughts about injuring or killing those people
and that he had threatened several of them on occasion during the previous five years. At the next
counseling session, Chase mentioned that his life insurance policy would pay off if anything should
happen to him, a statement that caused Dr. Dieter to fear that he was losing his support system. The
next day Dr. Dieter contacted the FBI. She disclosed to FBI agents the threatening statements
Chase had made during the therapy sessions and described whom he had threatened. Defendant
was charged for threatening to murder federal law enforcement officers who were preparing to
execute a search warrant on his home. Before trial, Chase challenged the admissibility of Dr.
Dieter’s testimony about statements he had made during their counseling sessions. The court
concluded that the psychotherapist-patient privilege did not apply because Dr. Dieter had properly
determined (1) that Chase’s threats were serious when uttered, (2) that harm was imminent, and (3)
that disclosure to authorities was the only means of averting the threatened harm.
Jaffee v. Redmond, 518 U.S. 1 (1996), confirmed that a psychotherapist-patient privilege exists
under federal common law. Jaffee held “that confidential communications between a licensed
psychotherapist and her patients in the course of diagnosis or treatment are protected from
compelled disclosure under Rule 501 of the Federal Rules of Evidence.” 518 U.S. at 15. While
Jaffee left the delineation of the scope of that privilege to future cases, it noted:
Although it would be premature to speculate about most future developments in the
federal psychotherapist privilege, we do not doubt that there are situations in which
the privilege must give way, for example, if a serious threat of harm to the patient or
to others can be averted only by means of a disclosure by the therapist.
Id. at 18 n.19.
In United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998), the Tenth Circuit recognized a
“dangerous patient” exception to the privilege -- one that permits a therapist to disclose a threat if
“the threat was serious when it was uttered and . . . its disclosure was the only means of averting
harm . . . when the disclosure was made.” In contrast, the Sixth Circuit has refused to recognize a
dangerous patient exception to the federal evidentiary privilege. See United States v. Hayes, 227
F.3d 578, 584-87 (6th Cir. 2000). The Sixth Circuit articulated a distinction between the professional
duties a therapist may have to warn the target of a patient’s threats and the evidentiary privilege that
prevents the therapist from testifying about such threats in a later prosecution. In so doing, Hayes
read the Jaffee footnote as “no more than an aside by Justice Stevens to the effect that the federal
psychotherapist/patient privilege will not operate to impede a psychotherapist’s compliance with the
professional duty to protect identifiable third parties from serious threats of harm,” and not as
marking out an exception to the evidentiary privilege. Id. at 585.
In State v. Miller, 709 P.2d 225 (Or. 1985), Oregon Supreme Court stated: Just as the ethics of
the profession recognize a “dangerous patient” exception to the psychotherapist’s obligation of
confidentiality that permits disclosure of otherwise-confidential information when (1) a threat of harm
is serious and imminent and (2) the harm can be averted only by means of disclosure by the
therapist, we hold that the same exception extends to the psychotherapist’s permitted testimony
under the same circumstances.” Id. at 236.
The Ninth Circuit Court held that Dr. Dieter’s testimony about information regarding the charged
threat that she learned during Chase’s therapy sessions was not protected by the psychotherapistpatient privilege.
By: Jim Skelton & Greg Velasquez 03/08/16,8:33 PM
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People v. Bailey, 101 Cal. App. 4th 238 (Ca. Ct. App. [6th Dir.] 2002, pet. denied)
1.
Gang Registration Law -- Constitutional Under State Constitution
Defendant pleaded no contest to assault with a deadly weapon or by means of force likely to
produce great bodily injury and misdemeanor battery. Defendant also admitted that the assault was
committed for the benefit of or in association with a criminal street gang. Defendant challenged a
gang registration requirement imposed on him as a condition of probation under Cal. Penal Code §
186.30, part of the Gang Violence and Juvenile Crime Prevention Act of 1998. Defendant argued
that the gang registration was an ex post facto law.
Cal. Penal Code § 186.32 provides for registration at the police or sheriff's department by the
offender, along with a written statement "giving any information that may be required by the law
enforcement agency." Under the statute, registration entails an appearance at the police or sheriff's
department, a written statement containing information required by the law enforcement agency,
and submission of fingerprints and a photograph. In addition, any change in residence address must
be reported within 10 days to the appropriate agency.
Legislative acts that are improper under these constitutional principles may consist of (1)
punishing an act that was innocent when done, (2) making more burdensome the punishment for a
crime after its commission, (3) depriving the accused of a defense available when the alleged crime
was committed, or (4) altering the legal rules of evidence to require less or different proof than was
required at the time of the offense. Collins v. Youngblood, 497 U.S. 37, 42 (1990); Calder v. Bull, 3
U.S. 386, 390 (1798). Simply stated, "Legislatures may not retroactively alter the definition of crimes
or increase the punishment for criminal acts." Collins v. Youngblood, supra, 497 U.S. 37, 43; People
v. Castellanos (1999) 21 Cal.4th 785, 791.
A change in the law that merely operates to the disadvantage of the defendant or constitutes a
burden is not necessarily ex post facto. Collins v. Youngblood, supra, 497 U.S. at p. 50; California
Dept. of Corrections v. Morales, 514 U.S. 499, 506-507, fn. 3 (1995); People v. Ansell, 25 Cal.4th
868, 891, 24 P.3d 1174, 1189-1190, 108 Cal. Rptr. 2d 145-892 (2001). It must be "a more
burdensome punishment." People v. McVickers, 4 Cal.4th 81, 84, 840 P.2d 955, 957, 13 Cal. Rptr.
2d 850 (1992). In People v. Fioretti, 54 Cal.App.4th 1209, 1213, 63 Cal. Rptr. 2d 367 (1997), the
court noted: " [t]he proper inquiry post-Collins is not whether the law results in a disadvantage to the
person affected by it but rather whether it increases the penalty by which a crime is punished."
The Castellanos Court highlighted two factors in the determination of whether a law constitutes
punishment: "[W]hether the Legislature intended the provision to constitute punishment and, if not,
whether the provision is so punitive in nature or effect that it must be found to constitute punishment
despite the Legislature's contrary intent." 21 Cal.4th at p. 795.
The Court stated that: “We do not believe the gang registration requirement constitutes
punishment either by legislative intent or in effect. Registration helps authorities monitor the location
of those associating with gangs and thereby promote the goal of protecting the public from gangrelated violent crime.”
The Court concluded that registration is intended to serve legitimate purposes other than
punishment, and that the effect of the requirement is not "so punitive in fact that it must be regarded
as punishment, despite the Legislature's contrary intent." People v. Castellanos, supra, 21 Cal.4th at
p. 796.) Even if . . . this requirement imposes a "substantial burden" on the gang registrant, "this
burden is no more onerous than necessary to achieve the purpose of the statute." Id. No ex post
facto prohibitions invalidate Cal. Penal Code §§ 186.30, et. seq.
People v. Mar, 52 P.3d 95 (Ca. 2002)
1.
Stun Belt -- During Trial - Manifest Necessity Required
Defendant was on trial for assaulting a police officer. During the officers’ testimony, the trial
judge noticed defendant’s body language reflected strong emotions. The judge forced the defendant
By: Jim Skelton & Greg Velasquez 03/08/16,8:33 PM
26
to wear a stun belt while he testified. The defendant objected. The judge reasoned that it would be
in the defendant’s own interest because it would help him to avoid outbursts during his testimony
and otherwise control his emotions in front of the jury.
In People v. Duran, 16 Cal.3d 282 (1976) the California Supreme Court established the limited
circumstances under which a defendant may be subjected at trial to physical restraints such as
shackles or manacles. The California Supreme Court held that defendant can not be subjected to
physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a
showing of a manifest need for such restraints. Numerous cases indicate what circumstances will
demonstrate such a need. (See People v. Kimball, 5 Cal.2d 608, 611 (1936) [defendant expressed
intent to escape, threatened to kill witnesses, secreted lead pipe in courtroom]; People v. Burwell,
44 Cal.2d 16, 33 (1955) [defendant had written letters stating that he intended to procure a weapon
and escape from the courtroom with the aid of friends]; . . . ; People v. Hillery, 65 Cal.2d 795, 806
(1967) [defendant had resisted being brought to court, refused to dress for court, and had to be
taken bodily from prison to court]; People v. Burnett, 251 Cal.App.2d 651, 655 (1967) [evidence of
escape attempt]; People v. Stabler, 202 Cal.App.2d862, 863-863 (1962) [defendant attempted to
escape from county jail while awaiting trial on other escape charges]; People v. Loomis, 27
Cal.App.2d 236, 239 (1938) [defendant repeatedly shouted obscenities in the courtroom, kicked at
the counsel table, fought with the officers, and threw himself on the floor].) The California Supreme
Court further concluded that in any case where physical restraints are used those restraints should
be as unobtrusive as possible, although as effective as necessary under the circumstances.”
(Duran, supra, 16 Cal.3d 282, 290-291, fns. omitted.)
In Duran, the California Supreme Court specified how “manifest need” should be determined.
The California Supreme Court stated: “The showing of nonconforming behavior in support of the
court’s determination to impose physical restraints must appear as a matter of record, and, except
where the defendant engages in threatening or violent conduct in the presence of the jurors, must
otherwise be made out of the jury’s presence. The imposition of physical restraints in the absence of
a record showing of violence or a threat of violence or other nonconforming conduct will be deemed
to constitute an abuse of discretion. In those instances when visible restraints must be imposed the
court shall instruct the jury sua sponte that such restraints should have no bearing on the
determination of the defendant’s guilt. However, when the restraints are concealed from the jury’s
view, this instruction should not be given unless requested by defendant since it might invite initial
attention to the restraints and thus create prejudice which would otherwise be avoided.” (Duran,
supra, 16 Cal.3d at pp. 291-292, fn. omitted.)
Here, the record demonstrated that these procedural prerequisites were not satisfied in the
present case. As described above, no security restraints were imposed upon defendant at the outset
of trial, and there is nothing in the record to suggest that defendant’s conduct during the initial day of
testimony, when the two principal prosecution witnesses testified against him, provided any reason
to believe that he posed a threat of violence in the courtroom. Neither the bailiff nor jail officials
presented any explanation or evidence on the record to support their apparently unilateral decision
to require that defendant wear the stun belt on the second day of testimony, when defendant was
scheduled to testify on his own behalf. The trial court never made, nor purported to make, a finding
or determination that there was a “manifest need” to impose the stun belt upon defendant because
he posed a serious security threat in the courtroom. Indeed, there is nothing in the trial court’s
extended comments that indicates it was aware that the procedural and substantive requirements
established in Duran governed its consideration and determination of defendant’s objection to the
use of the stun belt.
The California Supreme Court held that (1) the trial court abused its discretion in rejecting
defendant’s objection to the use of a stun belt and (2) trial court’s error in compelling defendant to
wear a stun belt during his testimony was prejudicial.
State v. Keilen, 649 N.W.2d 224 (N.D. 2002)
By: Jim Skelton & Greg Velasquez 03/08/16,8:33 PM
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1. Search -- Community Caretaking Exception - No Signs of a Problem or Disturbance Officer Can’t Rely on Exception
Officers were dispatched to an apartment building to investigate the report of a domestic
dispute. A neighbor reported hearing yelling, fighting, and a loud crash. When the first officer
arrived, he spoke with the neighbor. The neighbor told the officer she was afraid someone was hurt.
The officers went to the door of the apartment. After, listening for any noise from within the
apartment for twenty seconds, the officer knocked on the door. The officers heard someone
approached the door and then walk away without answering. After no response, the officers entered
the apartment and saw marijuana and paraphernalia. When the officers arrived there were no signs
of a disturbance and officers testified that the merely wanted “to check to see if everyone was all
right.” The trial court denied the motion to suppress because it was "of the opinion that the officers'
conduct was justifiable under the community caretaker exception" to the warrant clause of the
Fourth Amendment.
The source of the community caretaking doctrine is the Supreme Court's decision in Cady v.
Dombrowski, 413 U.S. 433 (1973). In Cady, an off-duty Chicago police officer was convicted of
murder after Wisconsin police officers, while searching his rented car for his service revolver
following a one-car accident, found blood and other evidence of wrongdoing. Id. at 435-39. The
Wisconsin officers were looking for the service revolver because they believed off-duty Chicago
police officers were required to carry their revolvers. Id. at 437. The Wisconsin officers testified the
search to find the revolver "was 'standard procedure in our department.'" Id. The search uncovered
various items covered with blood, which led to the procurement of a search warrant to search the
rental vehicle and one other vehicle. Id. at 437-38. In determining the Wisconsin police officers did
not need a warrant to conduct the search, which initially discovered blood, the Supreme Court held:
The Court's previous recognition of the distinction between motor vehicles and
dwelling places leads us to conclude that the type of caretaking "search" conducted
here of a vehicle that was neither in the custody nor on the premises of its owner,
and that had been placed where it was by virtue of lawful police action, was not
unreasonable solely because a warrant had not been obtained.
Id. at 447-48. The Supreme Court recognized "[l]ocal police officers . . . frequently investigate
vehicle accidents in which there is no claim of criminal liability and engage in what . . . may be
described as community caretaking functions, totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute." Id. at 441.
In State v. DeCoteau, 592 N.W.2d 579 (1999), four police officers responded to an anonymous
domestic disturbance report at the trailer of DeCoteau and his girlfriend. Id. Upon arrival, the police
officers found a group of children standing in the street, one of which told the officers he had heard
the sound of glass breaking from within the residence. Id. Not only were the officers unsure if there
had been a domestic disturbance, when they arrived at the residence there was no disturbance and
DeCoteau and his girlfriend were unloading a car outside the trailer. Id. The girlfriend "told [the
officers] there was nothing wrong and she wanted them to leave." Id. "One officer told the girlfriend
that because the sound of breaking glass had been reported, he would like to see whether the
children were all right." Id. The girlfriend entered the trailer with the officers following her. Id. " The
girlfriend never affirmatively consented to the officers entering the house; they merely followed her
in." Id. Once inside the trailer, marijuana residue was found inside a marijuana pipe. Id. This
discovery led to the acquisition of a search warrant. Id. In determining "[t]here was no 'community
caretaking' role to fill" in entering the trailer, this Court reasoned:
In this case, the police were called to investigate an anonymous tip regarding a
domestic disturbance. When the officers arrived, there was no disturbance. The
girlfriend was unloading her car and asked the officers why they were there. She
clearly did not want the officers there, and did not need or request their assistance.
Id.
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The North Dakota Supreme Court stated: the officer did not testify he believed anyone inside
was injured. Rather, the officer testified he merely wanted "to check to see if everyone was all right."
This is not sufficient under the circumstances. In order to enter a home the police need a warrant or
probable cause plus exigent circumstances. Payton v. New York, 445 U.S. 573, 590; 100 S. Ct.
1371; 63 L. Ed. 2d 639; Kirk v. Louisiana, 536 U. S. ____, 122 S. Ct. 2458, 153 L. Ed. 2d 599
(2002). Because there was no disturbance when the officers arrived, and it was not discernible to
the officers that anyone required assistance, the community caretaking function does not apply.
State v. Crawford, 52 P.3d 353 (Kan. Ct. App. 2002)
1. Traffic Stop -- Anonymous Tip - Corroboration - Readily Observable Details - Insufficient
Reasonable Suspicion For Traffic Stop
Anonymous Tip -- Traffic Stop - Insufficient Reasonable Suspicion For Traffic Stop
Sheriff's Deputy heard a dispatch request for a Spring Hill police officer to respond to a report of
a "reckless" driver in a black Dodge pickup with Oklahoma license plates. The Deputy responded to
the dispatch because he was in the area and a Spring Hill police officer was not available. The
Deputy was parked approximately 1 mile north of the county line. Approximately 8 minutes later, a
black Dodge Dakota pickup with Oklahoma license plates passed through the intersection traveling
northbound. Without attempting to follow the pickup, the Deputy activated his emergency equipment
and stopped the vehicle. The Deputy did not observe any reckless driving by the defendant prior to
the stop. Crawford was arrested for driving under the influence.
The traffic stop of a vehicle by a law enforcement officer is a seizure under the Fourth
Amendment to the United States Constitution. State v. Hopper, 260 Kan. 66, 69, 917 P.2d 872
(1996). The law recognizes two different types of traffic stops. An "investigatory stop" is permitted
under K.S.A. 22-2402, which is a codification of Terry, 392 U.S. 1. The law also permits a "public
safety stop," recognized in Kansas in State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992).
Whether a traffic stop can be supported solely by an anonymous tip is a fact-sensitive question,
which must be determined on a case-by-case basis. Resolution of the issue depends upon whether
the stop is categorized as an investigatory stop or as a public safety stop.
In State v. Slater, 267 Kan. 694, 700, 986 P.2d 1938 (1999), the Kansas Supreme Court
identified three factors to be used in evaluating whether an anonymous tip provides a sufficient
basis for an investigatory stop of a motor vehicle by police: (1) the type of tip or informant involved,
(2) the detail given about the observed criminal activity, and (3) whether the police officer's personal
observations corroborate the information supplied in the tip. Regarding the first factor, the court has
stated that the most favored of the tips are those, which are in fact not really anonymous at all.
Second on the scale of reliability are those tips in which, although the informant does not identify
himself or herself, the informant gives enough information that his or her identity may be
ascertained. Least reliable is an anonymous tip that is truly anonymous. 267 Kan. at 700-02.
The second factor identified in Slater is whether the informant gives enough detail about the
observed activity to support a stop. A tip is more reliable if it is apparent that the informant observed
the details personally instead of simply relying on information from a third party. 267 Kan. at 702.
The final factor in Slater is whether the police officer's personal observations confirm the report
of the informant's anonymous tip. An officer may corroborate the tip by observing illegal activity or by
finding the person and vehicle and the location as substantially described by the informant. 267 Kan.
at 703.
Kansas Court of Appeals concluded that the Deputy lacked sufficient basis for an investigatory
stop of Crawford's vehicle. First, the type of tip or informant involved was truly anonymous, which is
the least reliable source of information. Second, the Deputy was provided scant information about
the observed criminal activity. He was only told that a black Dodge Dakota pickup with Oklahoma
license plates was driving recklessly on 169 Highway. The Deputy did not know how many people
were in the truck, what the driver looked like, or what sort of behavior led to the characterization of
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the driving as reckless. The Deputy did not even know if the informant observed the details
personally or if the informant was relying on information from a third party. Finally, the Deputy’s
personal corroboration was minimal. He did find the vehicle at the location as substantially
described by the informant. However, such corroboration will exist in almost every case. The Deputy
observed no illegal activity or any other type of behavior by Crawford to corroborate the anonymous
tip of reckless driving.
The Kansas Court of Appeals held the anonymous tip that a vehicle was driving recklessly,
without anything more, provided an insufficient basis to stop the defendant's vehicle for an
investigatory stop.
2. Traffic Stop -- Community Caretaking Exception - Must be Based Upon Specific and
Articulable Facts
Traffic Stop -- Anonymous Tip - Corroboration - Community Caretaking Exception - Must
be Based Upon Specific and Articulable Facts
A civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons
alone may justify a stop, if safety reasons are based upon specific and articulable facts." (Emphasis
added.) Vistuba, 251 Kan. 821, Syl. P 1. Vistuba involves a safety stop of a vehicle based upon an
officer's personal observations of erratic driving.
In State v. Tucker, 19 Kan. App. 2d 920, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994), the
Kansas Court of Appeals took Vistuba a step further and held that an anonymous tip may justify a
safety stop of a vehicle. In Tucker, the police received an anonymous tip that a white male was
driving a red 1960's model Ford pickup southbound on K-61 Highway from Inman and that the driver
appeared to be drunk and running vehicles off the road. Two officers located the pickup, and the
description of the vehicle and the driver matched the anonymous tip. The officers did not see any
erratic driving. However, the morning traffic on K-61 Highway was heavy. One of the officers testified
that he pulled the vehicle over in the interest of public safety since the report indicated a potentially
drunk person was running cars off the road. Tucker argued on appeal that the safety stop of his
vehicle was not supported by "specific and articulable facts." 19 Kan. App. 2d at 922. The court
upheld the stop and stated that "an anonymous tip may provide sufficient indications of reliability to
support police action." 19 Kan. App. 2d at 928. The court noted that whether an anonymous tip has
provided sufficient facts to justify a safety stop of a motor vehicle by police must be determined from
the totality of circumstances shown by the evidence. 19 Kan. App. 2d at 928. The court concluded
under the facts of the case that the danger to the public was clear, urgent, and immediate, which
justified the vehicle stop. 19 Kan. App. 2d at 931.
In State v. Ludes, 27 Kan. App. 2d 1030, 11 P.3d 72, rev. denied 270 Kan. ___ (2000), a police
officer was informed by dispatch that there was a person driving a motorcycle on a specified road
who appeared to be injecting something into his arm with a needle. The officer drove to the specified
location and saw a motorcycle. The officer followed the motorcycle but did not observe any driving
infractions, nor did the driver exhibit any unusual behavior. Regardless, the officer stopped the
motorcycle, later explaining: "'I have a wife that's a diabetic, and she has had problems with the
past, is insulin dependent. And people can get into a lot of trouble if they don't follow their insulin
routine.'" 27 Kan. App. 2d at 1031. Ludes was eventually arrested and convicted of DUI. On appeal,
the court held that under the circumstances of the case, neither an investigatory stop nor a public
safety stop was justified. 27 Kan. App. 2d at 1033-36. The court concluded:
"In the present case, the danger to the public was neither clear, urgent, nor
immediate.
"Because the caller's tip was so lacking in details and [the officer] did not observe
any behavior which would indicate immediate danger to Ludes or the public, it
cannot be held the stop was justified under the guise of a safety stop."
27 Kan. App. 2d at 1036.
Here, the information contained in the anonymous tip was the report of a "reckless driver" on
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the highway. The Deputy testified that 169 Highway had a history of bad accidents. However, there
was no information that the vehicle driver was intoxicated. There were no details to describe how or
why the driving was considered "reckless." When the Deputy spotted the reported vehicle, traffic on
the highway was light.
The Kansas Court of Appeals concluded: This is far less than the information possessed by the
officers in Tucker, where the danger to the public was clear, urgent, and immediate. The Kansas
Court of Appeals ruled that there was insufficient evidence to support such a finding. The Kansas
Court of Appeals held the anonymous tip that a vehicle was driving recklessly, without anything
more, provided an insufficient basis to stop the defendant's vehicle for a public safety stop.
COURT OF CRIMINAL APPEALS, 9-25-02
Beard v. State, ___ S.W.3d ___, NO. 0282-00 (Tex.Cr.App. 9-25-02)
(Opinion by Womack, J.)
DWI. The Court of Appeals . Affirmed.
1.
DWI -- Intoxilyzer - Gatekeeper Hearing
Appellant was convicted for DWI. He argued the trial court failed to perform its “gatekeeper
function” regarding expert testimony about the Intoxilyzer test.
In Kelly v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992), at issue was the admissibility in a
murder trial of certain expert testimony regarding DNA evidence. See id. at 568. The Court of
Criminal Appeals observed that Tex. R. Evid. Rule 702 governs the admission of all expert
testimony, and decided that a scientific theory's acceptance in the scientific community was relevant
to, but not dispositive of, the issue of its admissibility under Tex. R. Evid. Rule 702. See id. at 57273. The Court of Criminal Appeals articulated a new test: a trial judge must determine whether
scientific evidence is sufficiently relevant and reliable to help the jury in reaching an accurate result.
See id. at 572. The Court of Criminal Appeals held that evidence from a scientific theory must satisfy
three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory
must be valid; and (3) the technique must have been properly applied on the occasion in question.
Id., at 573. The court further held that the proponent of the evidence must establish its reliability by
clear and convincing evidence in a preliminary hearing held outside the presence of the jury
("gatekeeper hearing"). In Hartman v. State, 946 S.W.2d 60 (Tex. Cr. App. 1997), the Court of
Criminal Appeals held that the Kelly test applied to all scientific evidence, whether the science was
novel or otherwise.
Tex. Trans. Code § 724.064 makes admissible, in the trial of certain intoxication and alcoholic
beverage offenses, evidence of alcohol concentration as shown by analysis of breath specimens
taken at the request or order of a peace officer. Tex. Trans. Code § 724.016 authorizes the
Department of Public Safety to "adopt rules approving satisfactory analytical methods." Tex. Trans.
Code § 724.016 requires that breath specimens be taken and analyzed by individuals who are
certified by the department.
Under Tex. R. Evid. Rule 702 the trial court's task in assessing admissibility [of scientific expert
testimony] "is to determine whether scientific evidence is sufficiently reliable and relevant to help the
jury in reaching accurate results." To be considered reliable, evidence based on a scientific theory
must meet three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying
the theory must be valid; and (3) the technique must have been properly applied on the occasion in
question. See Henderson v. State, 14 S.W.3d 409, 411 (Tex. App. -- Austin 2000) ("The legislature
has thereby recognized the validity of the theory and technique behind the Intoxilyzer"); Scherl v.
State, 7 S.W.3d 650, 652-53 (Tex. App. -- Texarkana 1999) ("Absent constitutional concerns, the
Legislature can establish the reliability of scientific theories or techniques through statutory
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enactment, and the courts are bound to follow such enactments"); Coward v. State, 993 S.W.2d
307, 310 (Tex. App. -- San Antonio 1999) ("The legislature, by mandating the Intoxilyzer test results
to be statutorily admissible, has determined the underlying scientific theory and the technique in
applying the theory to be valid, reliable [sic]"). Tex. R. Evid. Rule 702 applies to evidence of breathtest results and requires the proponent of scientific evidence to establish its reliability by clear and
convincing evidence in a preliminary hearing outside the presence of the jury – a “gatekeeper
hearing.”
In Slagle v. State, 570 S.W.2d 916 (Tex. Cr. App. 1978), the Court of Criminal Appeals held
that the State need not establish as part of its predicate that the Breathalyzer examination is a
scientifically reliable test before the results are introduced. In a footnote, the Court of Criminal
Appeals said that the proponent's predicate includes a showing that: "(1) properly compounded
chemicals were used in the test, (2) there has been periodic supervision over the machine and the
machine was operated by an individual who understands its scientific theory, and (3) the results of
the Breathalyzer test are testified to by one qualified to translate and interpret those results in order
to eliminate hearsay testimony." Id. at 920 n.2 (citing Cody v. State, 548 S.W.2d 401 (Tex. Cr. App.
1977); Palafox v. State, 509 S.W.2d 846 (Tex. Cr. App. 1974), Reyna v. State, 508 S.W.2d 632
(Tex. Cr. App. 1974), French v. State, 484 S.W.2d 716 (Tex. Cr. App. 1972), Hill v. State, 158 Tex.
Crim. 313, 256 S.W.2d 93 (1953)). In Harrell v. State, 725 S.W.2d 208 (Tex. Cr. App. 1986), the
Court of Criminal Appeals modified the predicate to take into account the fact that the Intoxilyzer
does not use chemicals. Because the Intoxilyzer "checks" itself through the use of a reference
sample, the court said that a showing of proper use of a reference sample satisfies the first prong of
the predicate, as modified due to the nature of the instrument.
The Court of Criminal Appeals held that: when evidence of alcohol concentration as shown by
the results of analysis of breath specimens taken at the request or order of a peace officer is offered
in the trial of a DWI offense, (1) the underlying scientific theory has been determined by the
legislature to be valid; (2) the technique applying the theory has been determined by the legislature
to be valid when the specimen was taken and analyzed by individuals who were certified by, and
were using the methods approved by the rules of, the Department of Public Safety; and (3) the trial
court must determine whether the technique was properly applied, in accordance with the
department's rules, on the occasion in question. The Court of Criminal Appeals stated that since
“the statutes do not address the reliability of the techniques for interpreting and extrapolating
Intoxilyzer results. Therefore, expert testimony that grounds itself in such techniques is still subject
to the requirement that the proponent establish, in a gatekeeper hearing, the reliability of the
underlying scientific theory and the technique of its application, as well as the proper application of
the technique on the particular occasion. See Hartman, supra note 10.”
The Court of Criminal Appeals ruled that: (1) a trial court did not err by admitting the results of
an Intoxilyzer test without conducting a “gatekeeper” hearing on the validity of the underlying
scientific theory, and application of that theory; (2)
Hampton v. State, 86 S.W.3d 603 (Tex.Cr.App. 2002)
(Opinion by Cochran, J.)
Murder. The Court of Appeals reversed. Remanded to the Court of Appeals.
1.
Brady Violation -- Standard for Appellate Review
Appellant, a juvenile, was taken into custody. Police told his mother he had absconded from
juvenile probation. Without re-establishing contact with Appellant’s mother, officers questioned
Appellant about a murder. He gave a videotaped statement admitting the murder. During the trial,
after all of the State's witnesses testified, appellant's attorney told the judge that he had just
discovered that the prosecutor had a supplemental police report which he had not previously seen.
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He said that this report, prepared by Sgt. Roberts of the Odessa Police Department, contained
potentially exculpatory information, namely the first names of two girls who had lived in the
apartment complex when the shooting occurred (but who had since moved). Appellant's attorney
said that the girls told police officers shortly after the murder that they had seen two black males
running away from the shooting scene, one of who was Jarvis Preston, appellant's friend who drove
him away from the murder scene. Appellant requested a continuance for his investigator to try to
track down the two missing girls. The trial judge denied this request and then appellant asked for a
mistrial which was also denied.
The El Paso Court of Appeals noted a supplementary offense report contained the first names
of two witnesses who saw two black males running from the shooting scene, and concluded that,
had the defense timely known this, Appellant “might well have chosen a different strategy which
could have exonerated him.” The El Paso Court of Appeals did not elaborate on how the defensive
strategy might have differed or what would be the probable impact of discovering the names of
these two possible witnesses at an earlier time. The El Paso Court of Appeals concluded there was
a Brady violation; that the three Brady harm elements were satisfied; and there was harm under
Tex.R.App.P. Rule 44.02(a).
In both Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667, 676,
(1985), the Supreme Court explicitly rejected the use of a harmless error rule when the prosecutor
fails to disclose certain evidence favorable to the accused because, under that rule, every
nondisclosure would be treated as error, "thus imposing on the prosecutor a constitutional duty to
deliver his entire file to defense counsel." Bagley, 473 U.S. at 680 (citing United States v. Agurs, 427
U.S. 97, 111-12 (1976). Although reversible error under Brady will always constitute reversible error
under Tex.R.App.P. Rule 44.02(a), the converse is not true.
The three-pronged test for reversible error for a Brady violation is entirely different from the
constitutional harmless error standard set out in Tex.R.App.P. Rule 44.02(a). To find reversible error
under Brady and Bagley, a defendant must show that:
1) the State failed to disclose evidence, regardless of the prosecution's good or bad
faith;
2) the withheld evidence is favorable to him;
3) the evidence is material, that is, there is a reasonable probability that had the
evidence been disclosed, the outcome of the trial would have been different. See Ex
parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); Ex parte Kimes, 872
S.W.2d 700, 702-03 (Tex. Crim. App. 1993).
Under Brady, the defendant bears the burden of showing that, in light of all the evidence, it is
reasonably probable that the outcome of the trial would have been different had the prosecutor
made a timely disclosure. See United States v. Bagley, 473 U.S. 667, 682; United States v. Agurs,
427 U.S. 97, 112-13 (1976); Amos v. State, 819 S.W.2d 156, 159-60 (Tex. Crim. App. 1991); Turpin
v. State, 606 S.W.2d 907, 916 (Tex. Crim. App. 1980). "The mere possibility that an item of
undisclosed information might have helped the defense, or might have affected the outcome of the
trial, does not establish 'materiality' in the constitutional sense." Agurs, 427 U.S. at 109; see also
Stone v. State, 583 S.W.2d 410, 415 (Tex. Crim. App. 1979).
A determination concerning the materiality prong of Brady involves balancing the strength of the
exculpatory evidence against the evidence supporting conviction. See United States v. Bagley, 473
U.S. 667, 683; Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997) (failure to disclose
victim's statement that his mind "wandered" at time of offense under Brady not "material" when
statement was made several days after crime, victim had identified defendant by his voice based on
prior relationship, and other witnesses identified defendant as murderer); Thomas v. State, 841
S.W.2d 399, 404 (Tex. Crim. App. 1992) (noting that "a verdict which is only weakly supported by
the record is more likely to be affected by [Brady] error than a verdict which is strongly supported").
Sometimes, what appears to be a relatively inconsequential piece of potentially exculpatory
evidence may take on added significance in light of other evidence at trial. In that case, a reviewing
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court should explain why a particular Brady item is especially material in light of the entire body of
evidence. See, e.g., Ex parte Richardson, 70 S.W.3d 865, 871-73 (Tex. Crim. App. 2002) (when
withheld Brady material seriously undermined credibility of State's star witness, defendant
demonstrated materiality and probability that jury would not have convicted him had six police
officers testified to her reputation for untruthfulness.).
The Court of Criminal Appeals held:(1) it could not be determined from the Court of Appeal’s
opinion whether the Court of Appeals applied the standard for Brady error or an inappropriate
harmless error pursuant to Tex.R.App.P. Rule 44.02(a) – constitutional error; (2) the case was
remanded to the Court of Appeals to determine whether Appellant demonstrated that the State’s
failure to timely produce a supplementary offense report was material and thereby created a
probability sufficient to undermine confidence in the outcome of the proceeding.
Hailey v. State, ___ S.W.3d ___, NO. 1437-01 (Tex.Cr.App. 9-25-02)
(Opinion by Hervey, J.)
DWI. The Court of Appeals reversed at S.W.3d slip op. at 4-6 (Tex.App.–Waco, No. 10-00-172-CR,
delivered June 20, 2001, pet. granted) (not yet reported). Reversed.
1.
Appeal -- Reversal on Theory not Alleged
Appellant was stopped for DWI. He blew .337 on a portable breathalyzer. Police thought he
might be suffering from alcohol poisoning, so they took him to a hospital. Appellant refused a police
request for a blood specimen. Later, a hospital worker drew a blood specimen which showed a
blood-alcohol concentration of .454. Appellant argued his blood-alcohol test should be suppressed;
that the blood drawn by the hospital was an unreasonable search and seizure; that the blood was
drawn at the request of the police. The motion to suppress was denied. On appeal, Appellant
argued the seizure was unlawful under Tex. Transp. Code §724.012(b) because no one died as a
result of the accident – one of the conditions for seizing blood without consent. The Court of Appeals
held the police did not seize Appellant's blood in violation of the Fourth Amendment or the
Transportation Code because the hospital worker was not acting at the request of law enforcement,
but went on to hold the results of blood-alcohol test to be inadmissible because a hospital worker's
blood draw, without Appellant's consent, was an unlawful assault.
A Court of Appeals can affirm a trial court's decision on a legal theory not presented to the trial
court without violating "ordinary notions of procedural default." See State v. Mercado, 972 S.W.2d
75, 77-78 (Tex.Cr.App. 1998) ("ordinary notions of procedural default" do not require a prevailing
party to list or verbalize "in the trial court every possible basis for upholding" its decision). The Court
of Criminal Appeals has held, however, that it violates "ordinary notions of procedural default" for a
Court of Appeals to reverse a trial court's decision on a legal theory not presented to the trial court
by the complaining party. See id.
A Court of Appeals can not reversed a trial court's decision on a theory the trial court did not
have an opportunity to rule upon and upon which the non-appealing party did not have an
opportunity to develop a complete factual record. See id.; Posey v. State, 966 S.W.2d 57, 62
(Tex.Cr.App. 1998).
The Court of Criminal Appeals held: the Court of Appeals reversed the trial court's decision on
a theory not presented to the trial court and upon which the trial court had no opportunity to rule.
Bishop v. State, 85 S.W.3d 819 (Tex.Cr.App. 2002)
(Opinion by Johnson, J.)
Possession of cocaine. The Court of Appeals affirmed in a non-published opinion. Reversed.
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1.
Suppression Hearing -- By Affidavits and Motion
Appellant filed a motion to suppress alleging the traffic stop and search were done without a
warrant. The suppression motion was heard by on affidavits only. The trial court denied the motion.
On appeal, Appellant asserted the arresting officer lacked reasonable suspicion for the initial traffic
stop, and she did not consent to the search. In affirming, the Court of Appeals stated Appellant’s
affidavit contained no statement that the search was performed without a warrant; that the unsworn
suppression motion was not evidence; that Appellant “failed to shoulder her burden of rebutting the
presumption of proper police conduct.” Appellant argued the plain and unambiguous language of
Tex. Code. Crim. P. Art. 28.01, § 1(6) gives the trial court authority to determine the merits of a
suppression motion on the motion itself, thus the Court of Appeals should have accepted her
motion’s assertion of a warrantless search and seizure and addressed the merits of her suppression
argument. The State argued the suppression motion was not evidence, and the allegations were not
self-proving.
Tex. Code. Crim. P. Art. 28.01, § 1(6) sets out the different methods of conducting a hearing in
the alternative, there is nothing to indicate that a trial court may not use more than one, such as live
testimony from some witnesses, and the affidavits of others.
A defendant seeking to suppress evidence on the basis of a Fourth Amendment violation must
allege the basis for a Fourth Amendment claim, such as that the search or seizure occurred without
a warrant. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). The state must then establish
either that the search or seizure was performed under the authority of a warrant or that the
warrantless search or seizure was reasonable. Id. at 10; State v. Mercado, 972 S.W.2d 75, 78 (Tex.
Crim. App. 1998). In Rodriguez v. State, 844 S.W.2d 744, 745 (Tex. Crim. App. 1992), the Court of
Criminal Appeals unanimously held that, where no witnesses were called and no evidence was
presented at a hearing on a motion to suppress, the trial court was permitted, pursuant to Tex.
Code. Crim. P. Art. 28.01, § 1(6), to determine the merits of the motions "on the motions
themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the
court." The Court of Criminal Appeals unanimously concluded that the court of appeals should have
considered Rodriguez's motions and the attached affidavit in determining the merits of the motions.
Id.
The Court of Criminal Appeals held: pursuant to Rodriguez, the Court of Appeals should have
considered Appellant’s motion to suppress and the affidavits, therefore the case was remanded to
the Court of Appeals for further action consistent with this opinion.
Perez v. State, 56 S.W.3d 796 (Tex.App.-Eastland 2001)
The State appealed a suppression ruling. Affirmed.
1.
Reasonable Suspicion -- Wrong Description
Police responded to a reported purse-snatcher described as a while male wearing a shortsleeved light colored T-shirt, light colored pants, and a navy-blue toboggan cap. Officers saw
Appellant walking through an apartment complex and when he saw the officer, he ran into an
apartment. Appellant was wearing a blue and white short-sleeved shirt and a blue baseball cap. He
did not match the description of the purse-snatcher. The officer knocked on the apartment door and
when Appellant opened it, the officer smelled marijuana. Appellant stepped outside and denied any
knowledge of the purse-snatching. They took Appellant inside the apartment and arrested him for
possession of marijuana. They made a “protective sweep of the apartment and found marijuana in a
linen closet. Thereafter, Appellant gave consent to search the apartment and more contraband was
found.
In Cortinas v. State, 571 S.W.2d 932 (Tex.Cr.App.1978), the officer received a radio report of
an armed robbery and stopped a suspect. The suspect was described as a black male armed with a
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knife, carrying a quart bottle of beer, and wearing a grey shirt and blue jeans. The Court held that
held stopping a person who does not match the description of the suspect was not supported by
reasonable suspicion even though the person was in close proximity to the crime scene.
The Court of Appeals ruled: (1) the police did not have specific articulable facts to initiate an
investigation or to detain Appellant because he did not fit the description of the purse-snatcher.
Perez v. State, ___ S.W.3d ___, NO. 2127-01 (Tex.Cr.App. 9-25-02)
(Opinion by Keasler, J.)
1.
Encounter -- Officer Knocked on the Door - Reasonable Suspicion not Required
Encounter -- Officer Slowed Down Patrol Car - Reasonable Suspicion not Required
Police responded to a reported purse-snatcher described as a while male wearing a shortsleeved light colored T-shirt, light colored pants, and a navy-blue toboggan cap. Officers saw
Appellant walking through an apartment complex and slowed down to get a better look at Perez in
order to determine if he was the purse-snatcher. But when Appellant saw the officers looking at him,
he took off running and he ran into an apartment. Appellant was wearing a blue and white shortsleeved shirt and a blue baseball cap. He did not match the description of the purse-snatcher. The
officer knocked on the apartment door and when Appellant opened it, the officer smelled marijuana.
Appellant stepped outside and denied any knowledge of the purse-snatching. They took Appellant
inside the apartment and arrested him for possession of marijuana. They made a “protective sweep
of the apartment and found marijuana in a linen closet. Thereafter, Appellant gave consent to search
the apartment and more contraband was found.
Police officers "do not violate the Fourth Amendment by merely approaching an individual on
the street or in another public place, by asking him if he is willing to answer some questions, by
putting questions to him if the person is willing to listen, or by offering in evidence in a criminal
prosecution his voluntary answers to such questions." Florida v. Bostick, 501 U.S. 429, 434 (1991).
Further, "[n]othing in our Constitutions prevent [sic] a police officer from . . . knocking politely on any
closed door." Cornealius v. State, 900 S.W.2d 731, 733 (Tex. Crim. App. 1995).
The Court of Criminal Appeals reversed the Court of Appeals, holding: (1) Perez’s argument
that the facts indicated a detention, not an encounter, was rejected because (a) the officer merely
slowed down his patrol car to get a closer look at Perez, (b) when Perez ran to his apartment, the
officer followed him and knocked on the door; (c) these were encounters and reasonable suspicion
was not required for either encounter, and the Court of Appeals erred in holding otherwise.
Ortiz v. State, ___ S.W.3d ___, No.73,692 (Tex.Cr.App. 9-25-02)
(Opinion by Keasler, J. Concurring opinion by Keller, P.J. Concurring opinion by Womack, J.)
Capital murder – death. Affirmed.
1.
Retaliation -- Prospective Witness
Prospective Witness -- Defined
Retaliation -- Sufficiency of Evidence
The complainant died in jail of a heroin overdose. He had no track marks, and the medical
examiner concluded the complainant was not a heroin addict. A syringe was found in the section of
the jail where the complainant was confined. Witnesses testified Appellant forcibly injected the
complainant because he was a snitch. The complainant was in the “Texas Syndicate tank” and
Appellant was the “tank boss.” Appellant argued the evidence was legally insufficient because the
State failed to prove the complainant was a prospective witness; that the State did not prove the
complainant was likely to be a witness for the State.
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Tex. Pen. Code § 36.06(a) does not require that a person's testimony be "likely" in order for that
person to be a prospective witness. On the contrary, we have held that a "prospective witness" is
any "person who may testify in an official proceeding." Morrow v. State, 862 S.W.2d 612, 614 (Tex.
Crim. App. 1993). Formal proceedings need not be initiated." Id. Any person who is involved in an
offense with a defendant, who sees the defendant committing an offense, or who hears the
defendant discuss committing an offense is a "prospective witness" in the prosecution of that
defendant because he "may" testify.
The Court of Criminal Appeals held: the evidence was sufficient for a rational jury to conclude
that the complainant was a “prospective witness;” that Appellant harmed him “in retaliation for or on
account of” this fact because Appellant and the complainant had been involved in a robbery and the
complainant had information relevant to Appellant’s case and might testify against him.
(Concurring opinion by Keller, P.J.) Morrow v. State, 862 S.W.2d 612 (Tex.Cr.App. 1993) held the
retaliation statute did not require initiation of official proceedings for one to be a prospective witness.
The majority’s opinion does not disturb this holding, but does conflict with some of the distinctions
drawn by Morrow between prospective witnesses and informants. The majority effectively
disavowed any suggestion in Morrow that a certain level of cooperation or visibility is required for a
person with relevant information to become a prospective witness.
(Concurring opinion by Womack, J.) Stated there was historical support for the Court’s construction
of the term “prospective witness” in the retaliation statute.
2.
Ex Post Facto -- Improper Application of a Statute
Appellant claimed the trial court's retroactive application of the retaliation statute to his case
violated the ex post facto clause of the United States Constitution. He explained that at the time that
he allegedly committed this offense, Tex. Pen. Code § 36.06 criminalized harming or threatening to
harm another for his "service" as a public servant, witness, prospective witness, or informant. But by
the time of Appellant's trial, the statute had been changed to criminalize harming or threatening to
harm another for his "service or status" as one of those named persons. At Appellant's trial, the
judge charged the jury with the amended definition of retaliation rather than the definition in effect at
the time of the offense.
Both the federal and state constitutions prohibit the promulgation of any "ex post facto law." See
United States Constitution, Article I, §10; Texas Constitution, Art. I, §16. This prohibition "bars
application of a law 'that changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed.'" Johnson v. United States, 529 U.S. 694, 699 (2000),
quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798). In both provisions, the language is
directed at the Legislature, not the courts. In Leppert v. State, 908 S.W.2d 217, 220 (Tex. Crim. App.
1995), the Court of Criminal Appeals did not appear to appreciate the distinction, but that failure was
understandable in light of the Supreme Court's case in Bouie v. City of Columbia, 378 U.S. 347,
353-354 (1964), which stated that due process prohibited the judiciary from achieving, through
construction of a statute, the exact same consequence that would be prohibited by the ex post facto
clause if the Legislature had so acted. Recently, in Rogers v. Tennessee, 532 U.S. 451, ___,121 S.
Ct. 1693, 1698-1700 (2001), the Supreme Court held this statement to be dicta and clarified that the
ex post facto clause does not apply to the judiciary, and due process does not incorporate all of the
ex post facto clause's strictures. In holding that the protections are not coextensive, the Court
pointed to "important institutional and contextual differences between legislating, on the one hand,
and common law decisionmaking, on the other." Id. at 1699. Indeed, the Supreme Court has
indicated that an ex post facto problem does not arise from a trial court's erroneous retroactive
application of a statute, but only if the statute itself has retroactive effect. Johnson v. United States,
529 U.S. 694, 701-702 (2000)(because new statute did not apply retroactively, no ex post facto
question arises; only question is whether the old statute authorized the trial court's action).
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The Court of Criminal Appeals held the trial court’s charge to the jury was erroneous because it
relied on the wrong version of the statute, but Appellant did not object to the charge on this basis,
and there was no egregious harm.
3.
Jury Charge -- Defensive Theory
Appellant’s claimed the complainant committed suicide. He requested a jury instruction on
suicide as a defense to the crime.
A defensive instruction is not required when the issue in question is not a statutorilyenumerated defense and merely serves to negate elements of the State's case. Solomon v. State,
49 S.W.3d 356, 369 (Tex. Crim. App. 2001); Giesberg v. State, 984 S.W.2d 245, 248-251 (Tex.
Crim. App. 1998), cert. denied, 525 U.S. 1147 (1999). For this reason, we have held that trial courts
are not required to give jury instructions on "independent impulse" Solomon, 49 S.W.3d at 369 or
"alibi." Giesberg, 984 S.W.2d at 248-251.
The Court of Criminal Appeals held: There is no suicide defense in the Penal Code (or in any
other statute) to the crime of capital murder, and the defense's suicide theory simply negates
elements of the State's case (i.e. whether Ortiz killed Garcia as the State has alleged). The trial
court did not err in denying the instruction.
COURTS OF APPEAL, 9-25-02
Pennywell v. State, 84 S.W.3d 841 (Tex.App.-Houston 2002)
Burgarly. Affirmed.
1.
Search -- Standing - May be Raised at any Time - Including for the First Time on Appeal
Appellant claimed the seizure and search of the bag he was carrying were illegal because
Officer Leos lacked either probable cause to arrest appellant or reasonable suspicion sufficient to
justify detaining appellant to investigate. Appellant also claimed the non-consensual search was an
unlawful warrantless search, prior to appellant's arrest, so that the fruits of the search should have
been suppressed. The State raised a threshold issue, for the first time on motion for reconsideration,
challenging appellant's standing to raise a suppression issue regarding stolen property in appellant's
possession.
Failure to prove standing may be raised at any time, including for the first time on appeal. State
v. Klima, 934 S.W.2d 109, 110-11 (Tex. Crim. App. 1996). The rationale underlying this principle is
that the State is not raising a new issue, but merely challenging whether a defendant has met his
obligation of alleging and proving standing, which is an element of a Fourth Amendment claim. Id. at
111.
The Houston Court of Appeals stated: “We see no reason why the State may not raise the
issue for the first time on motion for reconsideration, or motion for rehearing, as opposed to raising
the issue in its original brief on appeal.”
The Houston Court of Appeals stated: that the State may raise the issue in its motion for
reconsideration.
2.
Search -- Standing - Stolen Property - No Expectation of Privacy
The State claimed that a defendant has no reasonable expectation of privacy in stolen property
in his possession, as a matter of law.
To have standing, or a reasonable expectation of privacy, a defendant must show two things:
(1) that he had an actual, subjective expectation of privacy, exhibited by measures taken to protect
the privacy of the property in question, and (2) that that subjective expectation of privacy is one that
society is prepared to recognize as reasonable. See Jackson v. State, 745 S.W.2d 4, 7-8 (Tex.
Crim. App. 1988).
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A defendant lacks standing to complain of the search of a stolen property because any
expectation of privacy claimed was not one that society was prepared to recognize as reasonable.
See, e.g., Hughes v. State, 897 S.W.2d 285, 305 (Tex. Crim. App. 1994)(stolen car).
Here, appellant was carrying the stolen property as he walked in the common area of an
apartment complex.
The Houston Court of Appeals agreed with the State that a thief's mere possession of stolen
property does not give rise to any expectation of privacy that society is prepared to accept as
reasonable.
The Houston Court of Appeals held that appellant did not have a reasonable expectation of
privacy in the stolen bag and its contents so as to have standing to complain of the unlawfulness of
any search or seizure of the property in question.
Amie v. State, ___ S.W.3d ___, 01-01-01114-CR (Tex.App.-Houston [1st Dist.] 9-27-02)
Assault on a public servant. Affirmed.
1.
Change of Venue -- Insufficient Evidence
Appellant was indicted for aggravated assault on a correctional officer, and was convicted for
the lesser-included offense of assault on a public servant. He argued it was error to deny his motion
to change venue. He claimed an inmate accused of assaulting a TDCJ correctional officer could not
get a fair trial in Walker County due to feelings of kinship between Walker County residents and
TDCJ.
Tex. Code Crim. Proc. Ann. Art. 31.03(a)(1) (Vernon Supp. 2002) provides that:
[a] change of venue may be granted in any felony or misdemeanor case
punishable by confinement on the written motion of the defendant, supported by his
own affidavit and the affidavit of at least two credible persons, residents of the county
where the prosecution is instituted, for either of the following causes, the truth and
sufficiency of which the court shall determine:
1. That there exists in the county where the prosecution is commenced so great
a prejudice against him that he cannot obtain a fair and impartial trial; and . . .
A defendant seeking a change of venue bears a heavy burden to prove the existence of
prejudice in the community and that the likelihood of obtaining a fair and impartial jury is doubtful.
Powell v. State, 898 S.W.2d 821, 826 (Tex. Crim. App. 1994 ). To satisfy this burden, the defendant
must demonstrate an actual, identifiable prejudice on the part of the members of his jury, and that
prejudice has so permeated the community that prospective jurors' prejudicial opinions cannot be
set aside. Moore v. State, 935 S.W.2d 124, 129 (Tex. Crim. App. 1996).
A change of venue is required only where pretrial publicity is "so pervasive and prejudicial as to
create a reasonable probability that an impartial jury cannot be impaneled even with the most
careful voir dire." Narvaiz v. State, 840 S.W.2d 415, 428 (Tex. Crim. App. 1992). Due process does
not, however, require that jurors come completely ignorant of the facts of the case. Id.; see also Bell
v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996).
In Penry v. State, 903 S.W.2d 715, 728 (Tex. Crim. App. 1995), the Texas Court of Criminal
Appeals, the court held that knowledge of some details of the case by venire members was
acceptable because of assurances from those members that they could try the case strictly on the
evidence. Id. at 728. The Penry court, while examining the extent of pretrial publicity, also reviewed
testimony suggesting that Walker County jurors were prejudiced against defendants because of
their affiliation with the TDCJ. Id. at 727. In the court's analysis, the focus was on evaluating the
presence of prejudice in the community; the sources of the alleged prejudice in that decision were
not distinguished. Id. Other courts have also recognized that the extent of pretrial publicity is not the
only factor that should be used to examine the existence of prejudice. Any factors present that are
likely to affect the candor and veracity of prospective jurors are also considered. Henley v. State,
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576 S.W.2d 66, 72 (Tex. Crim. App. 1972).
The Houston Court of Appeals held: Appellant did not meet his heavy burden of showing an
actual and identifiable prejudice.
Hawkins v. State, ___ S.W.3d ___, 01-01-01205-CR (Tex.App.-Houston [1st Dist.] 9-27-02)
Possession of a firearm by a felon. Affirmed.
1.
Possession of a Firearm -- Affirmative Links
Appellant committed several traffic offenses and when the police tried to stop him, a high speed
chase ensued. When he was stopped, officers saw, in plain view, a loaded .410 gauge shotgun in
the back seat of the car. Appellant argues the evidence was insufficient because there was no
attempt to fingerprint the gun, "bag" his hands to determine if he handled a gun, no admission that
the weapon belonged to him, or that he knew it was there. Appellant argued that the State presented
no evidence to prove he exercised care, custody, control, or management over the gun.
Under Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon Supp. 2002), to establish unlawful
possession of a firearm by a felon, the State must show that the accused was previously convicted
of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of
his release from confinement from supervision under community supervision, parole, or mandatory
supervision, whichever date is later. Martinez v. State, 986 S.W.2d 779, 780 (Tex. App.--Dallas
1999, no pet.). Possession is a voluntary act if the possessor knowingly obtains or receives the thing
possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his
control. Tex. Pen. Code Ann. § 6.01(b) (Vernon Supp. 2002). The State may accomplish its task by
proving an "affirmative link," which demonstrates that the defendant was conscious of his
connection with the thing and [knew] what it was. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.
App. 1995); Gill v. State, 57 S.W.3d 540, 545 (Tex. App. -- Waco 2001, no pet.). The evidence used
to satisfy these elements can be either direct or circumstantial. Brown, 911 S.W.2d at 747. Some of
the factors that may establish affirmative links to the contraband include whether: (1) the contraband
was in a car driven by the accused; (2) the contraband was in a placed owned by the accused; (3)
the contraband was conveniently accessible to the accused; (4) the contraband was in plain view;
and (5) the contraband was found in an enclosed space. Corpus v. State, 30 S.W.3d 35, 38 (Tex.
App.--Houston [14th District] 2000, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.-Houston [1st District] 1994, pet. ref'd). The number of factors present is not as important as the
logical force the factors have in establishing the elements of the offense. Gilbert, 874 S.W.2d at 298.
The Houston Court of Appeals found that: (1) the gun, found in plain view, was in the backseat
of a car driven by appellant and was within easy reach of appellant; (2) appellant tried to escape by
evading the police during a high-speed chase; (3) appellant was the driver and sole occupant of the
vehicle at the time it was stopped. The Houston Court of Appeals held the evidence was sufficient to
support the conviction.
Curtis v. State, ___ S.W.3d ___, 2-01-076-CR (Tex.App.-Fort Worth 9-26-02)
Capital murder. Reversed.
1.
Extraneous Offense -- To Prove Identity
Appellant argued it was error to admit evidence of a prior 18-year old conviction for sexually
assaulting an 82-year old female. The jury was instructed it could consider the extraneous evidence
in determining consent, identity and intent.
Evidence of another crime is admissible to prove identity only if there is some distinguishing
characteristic common to both the extraneous offense and the offense for which the accused is on
trial. Ford v. State, 484 S.W.2d 727, 730-31 (Tex. Crim. App. 1972). As the Ford court stated,
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“[T]here will always be similarities in the commission of the same type of crime.” Id.; see also Reyes
v. State, 69 S.W.3d 725, 738 (Tex. App.-Corpus Christi 2002, pet. filed).
Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979), is a good example of an
extraneous offense that held it was admissible because of its close similarity to the charged offense.
There, the court of criminal appeals held the crimes were sufficiently similar because both offenses
occurred at night, in the same location, and within a month of each other, and in both instances the
perpetrator carried a small gun, tied the victims in a similar manner, robbed the victims before raping
them, and stole all other change except pennies from the victims. Id.
In Clarke v. State, 785 S.W.2d 860, 867 (Tex. App.-Fort Worth 1990), aff’d, 811 S.W.2d 99
(Tex. Crim. App. 1991) cert. denied, 502 U.S. 946 (1991), the court held that the extraneous sexual
assault offense was sufficiently similar to the charged offense because the victims in each offense
were attacked in their homes at night, the perpetrator used duct tape to blindfold both victims and
bind their hands and feet, the perpetrator covered his face during both attacks, used a knife in both
attacks, asked each victim if she had a gun in the house, forced each victim to have intercourse with
him numerous times, and washed one victim’s vagina and forced the other victim to wash herself
before he left.
In Owens v. State, 827 S.W.2d 911 (Tex.Cr.App. 1992), the court of criminal appeals warned
against admitting an extraneous offense on grounds of similarity, when the only real “similarity”
between the extraneous offense and the instant one is that they are the same or similar types of
offenses. The court noted that admitting an extraneous offense in such a situation merely serves to
prove “the very thing that the law on evidence of extraneous offense forbids: proof of the repeated
commission of a class of offenses to demonstrate that the defendant is a criminal (or sexual deviant)
generally.” Id. at 916.
Courts take into consideration the time interval between crimes in determining whether to admit
an extraneous offense. Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2000) (holding
offenses committed within hours of each other, directed at lone women, and involving victim’s red
Ford Taurus admissible on issue of identity). Thus, remoteness is another factor to be considered.
Clarke, 785 S.W.2d at 866; Reyes, 69 S.W.3d at 740. As a general rule, the greater the time period
between the charged and extraneous offenses, the greater the likelihood of error in admitting the
evidence of the extraneous offense. Reyes, 69 S.W.3d at 740. The court of criminal appeals has
reversed cases where the extraneous offense is too remote in proximity to the instant offense. See,
e.g., Messenger v. State, 638 S.W.2d 883, 885 (Tex. Crim. App. [Panel Op.] 1982) (reversing
conviction where nineteen days elapsed between extraneous and instant offenses), overruled on
other grounds by Almanza v. State, 686 S.W.2d 157, 157 (Tex. Crim. App. 1984); Bachhofer v.
State, 633 S.W.2d 869, 872 (Tex. Crim. App. 1982) (reversing where fifty-two months elapsed
between extraneous and instant offenses); Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App.
1981) (reversing where one year elapsed between extraneous and instant offenses); James v.
State, 554 S.W.2d 680, 683 (Tex. Crim. App. 1977) (reversing where thirty-three months elapsed
between extraneous and instant offenses); Ford, 484 S.W.2d at 731 (reversing where two months
elapsed between extraneous and instant offenses); Robledo v. State, 480 S.W.2d 401, 402 (Tex.
Crim. App. 1972) (reversing where fifty-one months elapsed between extraneous and instant
offenses). These cases appear to hold similarly because, in addition to time being a significant
factor, there was no intervening misconduct by the defendants in each case that might narrow the
gap. See Lang v. State, 698 S.W.2d 735, 737 (Tex. App.-l Paso 1985, no pet.). In Lang, the El Paso
Court of Appeals did not reverse the defendant’s conviction despite a thirty-nine-month time lapse
because his “particular modus operandi was alive and operative through the intervening period,” as
evidenced by his conduct. Id.
The Fort Worth Court of Appeals held: (1) DNA evidence established the presence of
Appellant’s semen in the complainant’s vagina, but the State was unable to prove when Appellant
engaged in sexual intercourse with the complainant – an essential element for a capital murder
conviction; (2) since identity was at issue, the extraneous offense evidence was relevant to the issue
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of identity, however such evidence is admissible only if there is some distinguishing characteristic
common to both the extraneous offense and the primary offense; (3) the following facts were similar:
(a) there were no signs of forced entry in either case; (b) Appellant was promised money by both
victims and was waiting for them to pay him; (c) in both cases, the women were attacked in the living
room and taken into the bedroom where the rapes occurred; and (d) Appellant was acquainted with
both victims; (4) the following facts were different: (a) the extraneous assault occurred in 1983 and
the current assault and murder in 1995; (b) one victim was found with no clothes on, and the other
was found with a nightshirt on, nude only from the waist down, with a pillow over her genital area; (c)
one victim was 83 and the other was 39; (d) one victim’s suffered vaginal and anal tearing and the
other did not; (e) one crime scene indicated signs of a struggle and the other did not;(f) the first
victim was not killed even though she could positively identify Appellant and the latter was killed; (g)
one case involved anal intercourse, the other did not; and (h) one victim had strangulation marks,
the other did not; (5) the time lapse between the charged and extraneous offenses was well over 10years, and the trial court’s ruling was outside the zone of reasonable disagreement as to whether
the offenses were similar enough to warrant admission of the extraneous offense to show identity; to
hold that these two alleged sexual assaults were so nearly identical in method as to constitute a
system would run the risk of qualifying almost any two crimes of the same class as a system, hence
it was error to admit the evidence to prove identity.
2.
Extraneous Offense -- To Prove Intent
The State may not introduce extraneous offenses as circumstantial evidence of an element in
its case-in-chief if that element can be readily inferred from other uncontested evidence. Clark v.
State, 726 S.W.2d 120, 122 (Tex. Crim. App. 1986).
“Where the State’s direct evidence . . . clearly shows the intent element of the crime and that
evidence is uncontradicted by the defendant or not undermined by crossexamination of the State’s
witnesses, the offer of other crimes is unjustified due to the lack of relevancy.” Rankin v. State, 974
S.W.2d 707, 719 (Tex. Crim. App. 1996) (op. on reh’g); DeLeon v. State, 77 S.W.3d 300, 312 (Tex.
App.-Austin 2001, pet. ref’d). The State may not introduce extraneous offenses as circumstantial
evidence of an element in its case-in-chief if that element can be readily inferred from other
uncontested evidence. Clark v. State, 726 S.W.2d 120, 122 (Tex. Crim. App. 1986).
Here, (1) the cause of death was manual strangulation and since the killer had to apply
pressure for 2-5 minutes, this indicated the death was intentional or done knowingly; (2) the DNA
evidence of Appellant’s sperm showed he intentionally or knowingly had intercourse; (3) intent was
not hotly contested as Appellant’s sole defense was that he was not the murderer, and did not
attempt to refute evidence showing that King’s killer intentionally or knowingly killed or sexually
assaulted her.
The Fort Worth Court of Appeals held that the trial court abused its discretion in admitting the
extraneous offense evidence to show intent.
3.
Lesser Included Offense -- Capital Murder
Appellant argued it was error to deny his request for submission of the lesser included offenses
of sexual assault, aggravated sexual assault, and murder.
To determine whether a jury must be charged on a lesser included offense, the court applied a
two-step analysis. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). The first step is to
decide whether the offense is a “lesser included offense” as defined in Tex. Code Crim. Proc. Art.
37.09. Moore, 969 S.W.2d at 8. The second step requires an evaluation of the evidence to
determine whether there is some evidence that would permit a rational jury to find that the defendant
is guilty only of the lesser offense, and not of the greater. Lofton v. State, 45 S.W.3d 649, 652 (Tex.
Crim. App. 2001); Moore, 969 S.W.2d at 8.
A lesser included offense is defined both in terms of the offense charged and the facts of the
case: “An offense is a lesser included offense if . . . it is established by proof of the same or less
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than all the facts required to establish the commission of the offense charged.” Tex. Code Crim.
Proc. Art. 37.09(1) (Vernon 1981).
Sexual assault is a lesser included offense of aggravated sexual assault, which is a lesser
included offense of murder and capital murder. Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex.
Crim. App. 2000); McGahey v. State, 744 S.W.2d 695, 696 (Tex. App.-Fort Worth 1988, pet. ref'd).
Furthermore, murder is a lesser included offense of capital murder. Zamora v. State, 998 S.W.2d
290, 293 (Tex. App.-Fort Worth 1999, pet. ref’d); see also Moore, 969 S.W.2d at 12.
There must be some evidence from which a rational jury could acquit the defendant on the
greater offense while convicting him of the lesser included offense. Moore, 969 S.W.2d at 8. The
court may not consider whether the evidence is credible, controverted, or in conflict with other
evidence. Id. If there is evidence from any source that negates or refutes the element establishing
the greater offense, or if the evidence is so weak that it is subject to more than one reasonable
inference regarding the aggravating element, the jury should be charged on the lesser included
offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996); Saunders v. State, 840
S.W.2d 390, 391-92 (Tex. Crim. App. 1992).
The Fort Worth Court of Appeals held: (1) the only evidence linking Appellant to the murderrape was DNA evidence, and this only proved that he had sex with the complainant whether
consensual or nonconsensual, but does not demonstrate that he murdered King, especially in view
of testimony that the semen could have been there several days before the murder, therefore he
was entitled to an instruction on the lesser included offense of murder; (2) because DNA evidence
could not pinpoint how old the semen was, there was some evidence that Appellant could have
sexually assaulted King, without killing her, days or hours before her murder, therefore there was
some evidence that Appellant could have committed aggravated sexual assault against King without
killing her, hence was entitled to a charge of sexual assault and aggravated sexual assault as lesser
included offenses of capital murder.
Bergman v. State, ___ S.W.3d ___, 04-01-00753-CR (Tex.App.-San Antonio 9-25-02)
Unlawfully carrying a weapon. Affirmed.
1.
Unlawfully Carrying A Weapon -- Traveling Defense
Appellant was the manger of a bar. The night bartender was attacked and her attackers
threatened to return. Appellant was called and he went to the bar to help with cleaning and
restocking. He took his handgun and additional ammunition with him. He stayed at the bar until the
next morning. When he went home, his car stalled and he went to sleep with the car in gear. Police
were called and, when asked, told the officer he had a gun. In addition, the officer found four knives,
an assault rifle magazine, and four additional magazine clips for the handgun. Appellant argued the
evidence was insufficient to convict because he was traveling to and from work.
A person commits the offense of unlawfully carrying a weapon if he intentionally, knowingly, or
recklessly carries on or about his person a handgun. Tex. Pen. Code Ann. § 46.02 (Vernon Supp.
2002). Both statutory and common law defenses to the offense of unlawfully carrying a weapon
exist. See Birch v. State, 948 S.W.2d 880, 882-84 (Tex. App.--San Antonio 1997, no pet.); Moosani
v. State, 866 S.W.2d 736, 738 (Tex. App.--Houston [14th Dist.] 1993), aff'd, 914 S.W.2d 569 (Tex.
Crim. App. 1995) (adopting court of appeals' reasoning); Tex. Pen. Code Ann. § 46.15 (Vernon
Supp. 2002). One defense permits a person to carry a handgun from his place of business to his
home or from his home to his place of business provided that: (1) the weapon is not habitually
carried between those places; (2) the purpose for carrying the weapon is legitimate; (3) the route
taken is a practical one; and (4) the journey proceeds without undue delay or unnecessary or
unreasonable deviation. Moosani, 866 S.W.2d at 738; see also Birch, 948 S.W.2d at 884 (listing
conditions for defense). Once a defendant raises a defensive issue, the State has the burden to
disprove the defense beyond a reasonable doubt. Moosani, 866 S.W.2d at 738; Tex. Pen. Code
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Ann. § 2.03(d) (Vernon 1994).
Here, Appellant testified he did not routinely or habitually carry the handgun to work; that he did
not habitually carry a gun, but he did not proceed without undue delay in view of the time that
elapsed from when Appellant left the bar until the officer arrived at his car.
The San Antonio Court of Appeals held: the evidence was legally and factually sufficient to
support the conviction.
Dale v. State, ___ S.W.3d ___, 04-01-00475-CR (Tex.App.-San Antonio 9-4-02)
Murder, Affirmed.
1.
Impeachment -- Prior Conviction
The victim received injuries that were the result of being kicked repeatedly in the head by
defendant and defendant's cousin. The victim died from pulmonary embolus from multiple blunt
force injuries. Defendant testified in his own defense and the State presented evidence of
defendant's prior convictions for assault and cocaine possession.
A defendant who testifies at trial places his credibility at issue and may be impeached and
contradicted like any other testifying witness. Alexander v. State, 740 S.W.2d 749, 763 (Tex. Crim.
App. 1987). Generally, a defendant who testifies may be impeached by evidence of a prior
conviction if the crime was a felony or involved moral turpitude and the court determines that the
probative value of admitting the evidence outweighs its prejudicial effect. Tex. R. Evid. Rule 609(a);
Theus v. State, 845 S.W.2d 874, 879 (Tex. Crim. App. 1992).
When determining whether the probative value of a defendant's previous conviction outweighs
its prejudicial effect, the court examines: (1) the impeachment value of the prior crime; (2) the
temporal proximity of the past crime relative to the charged offense and the witness's subsequent
history; (3) the similarity between the past crime and the offense being prosecuted; (4) the
importance of the defendant's testimony; and (5) the importance of the credibility issue. Id. at 880.
When reviewing a trial court's decision to admit evidence of a defendant's previous conviction, the
court accord the trial court wide discretion and reverse only when the court's decision lies outside
the zone of reasonable disagreement. Id. at 881. The proponent of the evidence has the burden to
demonstrate the admissibility of the evidence. Id. at 880.
The Rules of Evidence provide a separate analysis standard if the conviction is more than ten
years old. See Tex. R. Evid. Rule 609(b). Such a conviction is not admissible "unless the court
determines, in the interests of justice, that the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial effect." Id. The State must
demonstrate that the probative value "substantially outweighs," not merely "outweighs," the
prejudicial effect. Jackson v. State, 11 S.W.3d 336, 339 (Tex. App.--Houston [1st Dist.] 1999, pet.
ref'd). Where remoteness is an issue, the court looks exclusively to the strictures of Tex. R. Evid.
Rule 609(b), not to the Theus factors. Id.
Crimes that involve deception have a higher impeachment value than crimes involving violence,
the latter having a higher potential for prejudice. Theus v. State, 845 S.W.2d at 881.
The second factor will favor admission if the past crime is recent and if the witness has
demonstrated a "propensity for running afoul of the law." Id. at 881.
When a defendant's prior offense and the charged offense are similar, a danger arises that the
jury will convict the defendant based on a perception of a pattern of past conduct rather than based
upon the facts of the charged offense. Theus, 845 S.W.2d at 881. The law disfavors admitting
evidence of the prior offense. Id.
When the case involves the testimony of only the defendant and the State's witnesses, the
importance of the defendant's credibility and testimony escalates. Theus, 845 S.W.2d at 881. As the
importance of the defendant's credibility escalates, so will the need to allow the State an opportunity
to impeach the defendant's credibility. Id.
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Here, (1) the State presented evidence of defendant's prior conviction for assault and cocaine
possession; (2) the State did not present evidence of the dates of defendant's prior convictions, and
the defendant did not object at trial to this omission; (3) There is no similarity between the offense of
cocaine possession and murder; (4) only the defendant and the State's witnesses testified about
what happened at the house; therefore, defendant's testimony was important.
The San Antonio Court of Appeals held: (1) Neither assault nor possession of cocaine involve
untruthfulness or deception, and are not ones that would ordinarily bear heavily against a witness's
veracity. Thus, the first factor weighs against admissibility; (2) the frequency of defendant's
convictions demonstrate a propensity for running afoul of the law; thus, the second factor weighs in
favor of admissibility; (3) there is no similarity between the offense of cocaine possession and
murder; thus, the third factor weighs in favor of admissibility; (4) fourth factor weighs against
admissibility so as to allow defendant to testify without being impeached by his prior convictions.
See Jackson, 11 S.W.3d at 340; (5) however, because defendant's testimony was critical, the
State's need to impeach him was also great; therefore, the last factor favors admissibility. See
Jackson v. State, 50 S.W.3d 579, 593 (Tex. App.--Fort Worth 2001, pet. ref'd). Because these two
factors counterbalance one another, each mitigates the other's effect.
The San Antonio Court of Appeals concluded: “Only the first factor, which examines the
impeachment value of prior crimes, weighs against admission.”. . . “We do not believe the lack of
impeachment value of the prior convictions outweighs the other four Theus factors favoring
admission. As such, the trial court did not abuse its discretion in admitting the evidence of
defendant's prior convictions.
Salazar v. State, ___ S.W.3d ___, 06-02-0029-CR (Tex.App.- Texarkana 9-4-02)
Aggravated sexual assault and three cases of with indecency with a child. Affirmed.
1. Interpreter for a deaf person -- Failure to Object that Court’s Arrangements Were
Unsatisfactory
Defendant "touched" his daughters and placed his finger inside the vagina of one of them. He
pled guilty to all of the charges. During the punishment hearing, Defendant testified briefly to what
he had done. The victims then testified about what he had done to them. Defendant then notified the
trial court that he was having difficulty hearing the witnesses testify. He said the problem stemmed
from the fact that he was hearing-impaired. Counsel failed to request an interpreter or to object to
the lack of an interpreter.
Tex. Code Crim. Proc. Ann. Art. 38.31(a) (Vernon Supp. 2002) requires a trial judge to provide
an interpreter for a deaf person. The statute implements the constitutional right of confrontation,
which includes the right to have trial proceedings presented in a way that the accused can
understand. Baltierra v. State, 586 S.W.2d 553, 558 (Tex. Crim. App. 1979) (when trial court learns
accused does not speak and understand English, interpreter must be furnished to translate trial
proceedings to accused; otherwise, accused's constitutional right of confrontation is denied); see
also Tex. Const. Art. 1, § 10; Tex. Code Crim. Proc. Ann. Art. 38.30 (Vernon Supp. 2002). The
Texas Constitution requires that a defendant sufficiently understand the proceedings against him to
be able to assist in his own defense. Ensuring that the defendant has that minimum understanding
is primarily the task of the trial judge. Lincoln v. State, 999 S.W.2d 806, 809 (Tex. App.-Austin 1999,
no pet.); see also Tex. Const. Art. 1, § 10. If a hearing-impaired defendant is unable to understand
sign language, the court has an obligation to fashion a remedy suitable to overcome the defendant's
disability. Lincoln v. State, 999 S.W.2d 806, 809; Adams v. State, 749 S.W.2d 635, 639 (Tex. App.Houston [1st Dist.] 1988, pet. ref'd). A defendant's failure to object or request relief does not waive
his confrontation right if it is otherwise apparent he cannot hear or understand the proceedings.
Adams, 749 S.W.2d at 637-39.
In Lincoln v. State, 999 S.W.2d 806 (Tex. App.-Austin 1999, no pet.), the defendant made it
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known during the testimony that he was having difficulty hearing, and the court allowed him to move
or directed the speaker to repeat himself so the defendant could hear. In Lincoln, the defendant did
not indicate at the time that these arrangements were unsatisfactory. The Austin court
acknowledged that the contention was not waived by Lincoln's failure to complain that he could not
hear, but recognized that the trial court could not attempt to correct anything of which it was not
aware. The court then concluded that the action or inaction of the trial judge did not violate the
constitutional rights of the defendant.
The Texarkana Court of Appeals held: “Salazar did not tell the court he could not hear the
victims' testimony until after they had finished testifying. Until then the trial judge had every reason
to believe Salazar was able to understand the proceedings and testimony, and no reason to the
contrary. Therefore, the court could not be expected to take action to ensure that the testimony's
content was effectively communicated to Salazar. Considering what the trial court was told and
observed during the trial, we are not persuaded the court failed to take constitutionally adequate
steps to ensure Salazar heard and understood the proceedings.”
Caster v. State, ___ S.W.3d ___, 06-02-0014-CR (Tex.App. - Texarkana 9-4-02)
Burglary of Habitation. Affirmed.
1.
Substance Abuse Evaluation -- Failure to Request - Error Waived
Defendant plead guilty to burglary of a habitation and was sentenced defendant to 15 years'
confinement. Defendant argued that the trial court erred by sentencing him without first ordering a
substance abuse evaluation. Defendant's contention was based on Tex. Code Crim. Proc. Ann. Art.
42.12, § 9(h) (Vernon Supp. 2002).
Tex. Code Crim. Proc. Ann. Art. 42.12, § 9(h) (Vernon Supp. 2002), which provides that, on
determination that alcohol or drug abuse may have contributed to the commission of the offense, the
trial court shall direct the preparation of an evaluation to determine the appropriateness of
rehabilitation for the defendant. Art. 42.12, § 9(h)(2) provides specifically that the ”evaluation shall
be made: . . . after conviction and before sentencing, if the judge assesses punishment in the case."
The statute requires the court to order the evaluation after it determines that alcohol or drug
abuse may have contributed to the commission of the offense. It does not specify whether this
determination is to be made sua sponte by the court, or whether such a finding must be requested
by the defendant in order to bring the statute into play.
A timely objection or request is a prerequisite to presenting a matter for appellate review. Tex.
R. App. P. Rule 33.1(a). In the absence of such an objection or request, the court may not address
the issue on appeal.
Here, the defendant did not bring it to the trial court's attention.
The Texarkana Court of Appeals held: it could not address the issue on appeal.
Porter v. State, ___ S.W.3d ___, 14-01-00177-CR (Tex.App. - Houston [14th Dist.] 9-5-02, on
reh’g)
MAG. Affirmed.
1.
Search -- Entry - Fenced Property
There was a fence and closed gate around Appellant’s house. Officers entered with a drug dog
and without a warrant. The dog altered outside Appellant’s front door. This information was used to
get a search warrant. Appellant argued the entry was illegal. Appellant contended that entry through
the front gate of a yard should be analyzed as if it were through the front door of a home, such that
an entry through a gate without notice causes officers to be on the premises illegally - curtilage
concept under Fourth Amendment law.
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Absent express orders from a person in possession of property not to trespass, a police officer
is not prevented from approaching the front door of a residence. See Cornealius v. State, 900
S.W.2d 731 (Tex. Crim. App. 1995).
One Texas court has held that unlatching an ordinary latch on a closed, but unlocked, gate to
approach the front door of a house is not an illegal entry by police. See Nored v. State, 875 S.W.2d
392, 396-97 (Tex. App.-Dallas 1994, pet. ref'd).
Here, there was no evidence of a sign prohibiting entry onto the property or that the gate was
locked, but only that it was a motorized gate, operated by remote control, which the officers instead
pushed open.
The Houston Court of Appeals held: Although a remote control mechanism on a gate can
support an inference that it is intended to prevent the gate from being opened otherwise and to
thereby exclude the public, it can also reasonably support an inference that it is merely intended to
hold the gate shut, like an ordinary gate latch, while also allowing it to be opened by remote control
when convenient. Based on the latter inference, it would not have been an abuse of discretion for
the trial court to conclude that the officers pushing the gate open to approach the front door was not
an illegal entry.
2.
Search -- Dog Sniff
Appellant argued the dog sniff outside his front door was an illegal search.
For Fourth Amendment purposes, a "search" does not occur, even when the explicitly protected
area of a house is concerned, unless a reasonable expectation of privacy exists in the object of the
challenged search. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 2042-43, 150 L. Ed. 2d 94
(2001). An individual has no reasonable expectation of privacy in possessing illegal drugs. See
United States v. Jacobsen, 466 U.S. 109, 123, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984). Therefore, a
government investigative technique, such as a dog sniff or chemical test, that discloses only the
presence or absence of narcotics, and does not expose noncontraband items, activity, or
information that would otherwise remain hidden from public view, does not intrude on a legitimate
expectation of privacy and is thus not a "search" for Fourth Amendment purposes. See City of
Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 453, 148 L. Ed. 2d 333 (2000); Jacobsen, 466
U.S. at 122-24; United States v. Place, 462 U.S. 696, 706-07, 77 L. Ed. 2d 110, 103 S. Ct. 2637
(l983). See also United States v. Tarazon-Silva, 960 F. Supp. 1152, 1162-63 (W.D. Tex. 1997)
(holding that dog sniff of dryer vent of house was not a search), aff'd, 166 F.3d 341(5th Cir. 1998);
People v. Dunn, 77 N.Y.2d 19, 564 N.E.2d 1054, 1056-57, 563 N.Y.S.2d 388 (N.Y. 1990) (holding
that canine sniff outside an apartment was not a search), cert. denied, 501 U.S. 1219 (1991). But
see United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir. 1985) (holding that dog sniff at door
of apartment constituted search), cert. denied, 474 U.S. 819 (1985), and cert. denied, 479 U.S. 818
(1986); State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805, 819-20 (Neb. 1999) (holding that dog sniff in
hallway outside apartment was a search). A dog sniff is also not a search for purposes of Article I,
Section 9 of the Texas Constitution. Josey v. State, 981 S.W.2d 831, 845 (Tex. App.-Houston [14th
Dist.] 1998, pet. ref'd). By contrast, the use of a thermal imaging device to record the heat being
emitted from within a home is a "search" because it can reveal information about legal activity inside
the home as to which individuals have a legitimate expectation of privacy. See Kyllo, 121 S. Ct. at
2043-46.
The Houston Court of Appeals held: Because the dog sniff in this case was such an
investigative method, it was not a search and thus not an illegal one.
Harvey v. State, ___ S.W.3d ___, 14-01-00385-CR (Tex.App.-Houston [14th Dist.] 9-26-02)
Making a false report of child abuse. Affirmed.
1.
Jury Voir Dire -- Commitment Question
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Jury Voir Dire -- Challenge for Cause
Appellant was fired from her job as a paralegal at a law firm. About a month later, she called
CPS and anonymously reported that one of the attorneys at the firm physically abused his two-yearold daughter. CPS found no significant signs of abuse and closed the case. Thereafter, Appellant
was convicted for making a false report of child abuse. She argued the trial court erred in refusing to
strike a juror for cause after the juror stated a long delay in reporting child abuse would “color my
judgment,” but added she would not find anyone “automatically guilty” because of a delay.
A juror who has formed an opinion as to guilt, but has not stated unequivocally that it will
influence his or her verdict, is not disqualified if the trial court is satisfied from the whole record that
the juror can render an impartial verdict. See Tex. Code Crim. Proc. Art. 35.16(a)(10). The trial
court’s conclusion here falls within the area of its discretion. See Cannady v. State, 11 S.W.3d 205,
209 (Tex. Crim. App. 2000) (finding no abuse of discretion in denying motion to strike juror who
initially stated he “can’t help but think” defendant guilty, but subsequently said he would follow the
law).
Tex. Code. Crim. P. Art. 35.16(a)(10) intended to address conclusions jurors may draw from
facts presented to them during voir dire. The article appears to address bias obtained before
entering the courtroom, “from hearsay” or “from reading newspaper accounts, communications,
statements or reports or mere rumor.”
Here, no one on the jury panel indicated familiarity with Appellant or the incident and the “bias”
addressed by Appellant related solely to the facts that would be introduced at trial.
In Standefer v. State, 59 S.W.3d 177 (Tex.Cr.App. 2001), the Court of Criminal Appeals made
clear this is not a basis for disqualifying jurors. In that case, the court prohibited commitment
questions that ask prospective jurors not to decide a case based on a particular fact when the law
says they can. Id. at 179, 181 (prohibiting question whether jurors would presume guilt from
defendant’s refusal to submit to breath test).
Here, the propriety of defense counsel’s commitment question is not involved, as there was no
objection; indeed, counsel for both sides asked jurors whether they would consider a long delay. But
the reason Standefer declares such commitment questions improper is because they cannot form
the basis of a challenge for cause. Id. at 182 (holding commitment questions improper unless one
answer must result in valid challenge for cause).
The Court of Appeals held: When a defendant is charged with making a false report of child
abuse, the law does not require jurors to ignore a long delay in making the report. Nor does it
require them to give it decisive weight. It is simply one piece of evidence they may give whatever
weight they choose. Jurors who find it important — and jurors who find it unimportant — are not
biased; they are merely doing their job. See id. at 183 (stating challenge for cause cannot be based
on sufficiency of an item of evidence); Coleman v. State, 881 S.W.2d 344, 352 (Tex. Crim. App.
1994) (holding juror could not be struck for cause based on failure to give weight to any particular
piece of evidence).
2.
Counsel -- Ineffective - Failure to Communicate Plea Offer
Appellant argued her trial counsel failed to inform her of a potential plea offer, and thus
rendered ineffective assistance.
Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an
omission that falls below an objective standard of professional reasonableness. Ex parte Lemke, 13
S.W.3d 791, 795 (Tex. Crim. App. 2000). But when conversations between defense counsel and the
State do not rise to the level of an “offer,” courts have declined to find counsel’s failure to inform the
defendant deficient. See Hernandez v. State, 28 S.W.3d 660, 666 (Tex. App.-Corpus Christi 2000
pet. ref’d) (finding failure to convey conversation reasonable when suggestion of twenty years was
not a “firm offer”). Whether conversations between counsel constituted an offer and acceptance are
questions of fact for the trial court. See Rodriquez v. State, 509 S.W.2d 319, 321 (Tex. Crim. App.
1974).
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Here, the evidence indicated the prosecutor communicated a willingness to negotiate, but
negotiations broke down over the key issue of jail time. The parties never reached a tentative
agreement counsel could take back to his client, as evidenced by the lack of any specific terms.
The Court of Appeals held: the trial court did not abuse its discretion in finding counsel was not
required to inform his client.
Concurring opinion noted that: (1) after the jury returned a guilty verdict, trial counsel failed to
tell Appellant that, if she agreed to have the trial court assess punishment, the State would consider
agreeing to a probated sentence, as long as there was some jail time as a condition of probation; (2)
this was the kind of information counsel should convey to his client; (3) trial counsel failed to
communicate this to Appellant, his performance fell below an objective standard of reasonableness;
(4) Argued this failure satisfied the first prong of Strickland, but failed to satisfy the second prong of
Strickland because she did not demonstrate prejudice.
3. Attorney Client Privilege -- Communication Between the Two - Did not Disclose any
Confidences - No Violation
At punishment, the State called a civil attorney who had represented Appellant in a civil matter.
She claimed a doctor gave her a communicable disease. He testified Appellant did not provide
sufficient proof to substantiate her claim. Appellant argued this violated the attorney client privilege.
The attorney-client privilege protects confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client. Tex. R. Evid. Rule 503(b)(1). The
burden of establishing the privilege is on the party asserting it. Strong v. State, 773 S.W.2d 543, 552
(Tex. Crim. App. 1989). The privilege protects what the client has disclosed in confidence, not the
fact that an attorney has requested such disclosure. See Manning v. State, 766 S.W.2d 551, 557
(Tex. App.-Dallas 1989), affirmed and opinion adopted, 773 S.W.2d 568, 569 (Tex. Crim. App.
1989) (citing United States v. Kendrick, 331 F.2d 110, 113–14 (4th Cir. 1964)).
The Court of Appeals held: the attorney’s testimony revealed only that he requested proof to
substantiate Appellant’s claim; that she provided some, but none of the details of that proof were
disclosed; (2) this testimony concerned a communication between the two, it did not disclose any
confidences.
State v. Benneati, 52 P.3d 804 (Ariz. Ct. App. [2nd Div.] 2002)
1. Sentence -- Apprendi - Applies When Sentence Imposed is less than Unehanced
Maximum
A jury found appellant guilty of two counts of unlawful sale of a narcotic drug. After finding he
had three prior convictions and had committed these offenses while on release on bail for a
separate felony offense, the trial court sentenced appellant to 17.75-year prison terms, including a
two-year mandatory enhancement pursuant to Ariz.Rev.Stat. § 13-604(R). Appellant on appeal
argued the trial court violated his right to a jury trial under Apprendi v.New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in finding, instead of permitting the jury to do so, that he was
on release at the time he committed these offenses.
Ariz.Rev.Stat. § 13-604(R) provided in part:
A person who is convicted of committing any felony offense, which felony offense is
committed while the person is released on bail or on the defendant’s own
recognizance on a separate felony offense . . . shall be sentenced to a term of
imprisonment two years longer than would otherwise be imposed for the felony
offense committed while released on bond or on the defendant’s own recognizance.
Pursuant to a 1996 amendment to the statute, § 13-604(P) permits a trial court to determine a
defendant’s release status.
In Apprendi v.New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the
Supreme Court addressed New Jersey’s “hate crime” law, which increased the maximum
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sentencing range for certain offenses if the sentencing court found, by a preponderance of the
evidence, that the offense had been racially motivated. The defendant there admitted he had fired
several bullets into the home of an African American family in his neighborhood. He later pleaded
guilty to offenses that carried penalties of three to ten years in prison. After an evidentiary hearing,
the trial court concluded that the crime had been racially motivated and sentenced Apprendi to
concurrent prison terms, the longest of which was twelve years. In reversing the judgment, the
Supreme Court found that Apprendi’s sentence enhancement had been based only on his
motivation in firing the bullets, a fact “perhaps as close as one might hope to come to a core criminal
offense ‘element.’” Id. at 493, 120 S. Ct. at 2364, 147 L. Ed. 2d at 457. The Court held: “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490,
120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455. The Court further stated: “‘[I]t is unconstitutional for a
legislature to remove from the jury the assessment of facts that increase the prescribed range of
penalties to which a criminal defendant is exposed.’” Id. at 490, 120 S. Ct. at 2363, 147 L. Ed. 2d at
455, quoting Jones v. United States, 526 U.S. 227, 252, 119 S. Ct. 1215, 1228, 143 L. Ed. 2d 311,
332 (1999) (Stevens, J., concurring).
In Ring v. Arizona, 536 U. S. ____, ___, 122 S. Ct. 2428, 2439 (2002), in which it reiterated
that, “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the
finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a
reasonable doubt.” In fact, the Court emphasized that “the Sixth Amendment does not permit a
defendant to be ‘expose[d] . . . to a penalty exceeding the maximum he would receive if punished
according to the facts reflected in the jury verdict alone.’” Id. at ___, 122 S. Ct. at 2432, quoting
Apprendi, 530 U.S. at 483, 120 S. Ct. at 2359, 147 L. Ed. 2d at 450.
The Court’s decisions in Apprendi and Ring rested not on the ultimate imposition of a sentence
greater than otherwise permissible, but, rather, on the effect a factual finding has on a defendant’s
exposure to such a sentence. For example, in finding unconstitutional Arizona’s capital sentencing
scheme, the Court in Ring noted that, under that scheme, “[i]n effect, ‘the required finding [of an
aggravating circumstance] expose[d Ring] to a greater punishment than that authorized by the jury’s
guilty verdict.’” 536 U.S. at ___, 122 S. Ct. at 2440, quoting Apprendi, 530 U.S. at 494, 120 S.Ct. at
2365, 147 L. Ed. 2d at 457. Moreover, the Court made no distinction between a sentencing judge’s
determination of aggravating factors related to the commission of the offense and those factors
wholly unrelated to it.
In State v. Gross, 31 P.3d 815 (App. 2001), the Court of Appeals Division One held that,
pursuant to Apprendi, a defendant’s release status must be determined by a jury for purposes of
enhancement under Ariz.Rev.Stat. § 13-604(R). The Court of Appeals Division One found in Gross,
because “Apprendi focuses on a defendant’s right to have a jury decide facts that affect the potential
punishment[,] . . . any determination exposing a defendant to a penalty exceeding the maximum
[must] be submitted to a jury.” Id. at 815; see also Ring, 536 U.S. at ___, 122 S. Ct. at 2445
(Kennedy, J., concurring) (when “the finding of an aggravating circumstance exposes ‘the defendant
to a greater punishment than that authorized by the jury’s guilty verdict,’ . . . it cannot be reserved for
the judge”), quoting Apprendi, 530 U.S. at 494, 120 S. Ct. at 2365, 147 L. Ed. 2d at 457.
The federal courts of appeal have held that the Apprendi rule is not violated when a judge finds
a fact the increases the maximum sentence a defendant faces, but the enhanced sentence that is
actually imposed is still less than the maximum sentence that would apply in the absence of the
finding. See, e.g., United States v. Ellis, 241 F.3d 1096 (9th Cir. 2001) (Apprendi not implicated
because defendant’s sentence less than maximum statutory sentence otherwise permissible);
United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (same); see also United States v. Austin,
255 F.3d 593 (8th Cir. 2001); United States v. King, 254 F.3d 1098 (D.C. Cir. 2001); United States v.
Osteen, 254 F.3d 521 (4th Cir. 2001); United States v. Garcia, 240 F.3d 180 (2d Cir. 2001); United
States v. Heckard, 238 F.3d 1222 (10th Cir. 2001); United States v. Williams, 238 F.3d 871 (7th Cir.
2001); United States v. Baltas, 236 F.3d 27 (1st Cir. 2001); United States v. Williams, 235 F.3d 858
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(3d Cir. 2000); United States v. Corrado, 227 F.3d 528 (6th Cir. 2000); United States v. Mershack,
225 F.3d 556 (5th Cir. 2000). But nearly every jurisdiction in cases decided without the benefit of the
Court’s decision in Ring.
The Arizona Court of Appeals Division Two choose to follow Apprendi’s logic, and Ring’s clear
message, that a fact exposing a defendant to increased sentencing, not the actual sentence
imposed, is the litmus test. See Ring. The Arizona Court of Appeals Division Two agreed with Gross
when it emphasized that:
“the relevant inquiry is one not of form, but of effect—does the required finding
expose the defendant to a greater punishment than that authorized by the jury’s
guilty verdict?” [Apprendi, 530 U.S. at 494, 120 S. Ct. at 2365, 147 L. Ed. 2d at 457.]
If it does, then it is the “functional equivalent of an element of a greater offense than
the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual
definition of an ‘element’ of the offense.” Id. at 494 n.19, 120 S. Ct. [at 2365 n.19,
147 L. Ed. 2d at 457 n.19].
31 P.3d 815.
The Arizona Court of Appeals Division Two stated: “Because the trial court failed to allow the
jury to determine Benenati’s release status, his jury trial right was violated if release status
determination under § 13-604(R) falls within Apprendi’s reach. See Ariz. Const. art. II, § 23; A.R.S. §
21-102(A); see also State v. Smith, 4 P.3d 388 (Ariz. Ct. App. 1999) (defendant entitled to twelveperson jury when exposed to sentence in excess of thirty years notwithstanding that actual
sentences imposed totaled 7.5 years).”
The Arizona Court of Appeals 2nd Division held that Apprendi required that any fact, other than
the fact of a prior conviction, exposing a defendant to a punishment greater than that otherwise
permissible must be determined by a jury.
Murphy v. State, 54 P.3d 556 (Okla. Ct. Crim. App. 2002)
Capital Murder -- Mentally Retarded - Defined - Fleshes out Atkins’ Ban on Death Penalty
Defendant asserted that, due to his mild mental retardation, his execution would violate the
prohibition against cruel and unusual punishment and offend contemporary standards of decency.
In Atkins v. Virginia, 536 U. S. ____, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), the Supreme
Court held that death is not a suitable punishment for a mentally retarded criminal... Construing and
applying the Eighth Amendment in the light of our 'evolving standards of decency,' the Supreme
Court therefore concluded that such punishment is excessive and that the Constitution 'places a
substantive restriction on the State's power to take the life' of a mentally retarded offender." Atkins,
536 U.S. at ___, 122 S. Ct. at 2252.
Atkins notes, however, that there is serious disagreement (and thus no "national consensus")
among the States in determining which offenders are in fact retarded: "Not all people who claim to
be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders
about who there is a national consensus." Atkins, 536 U.S. at ___, 122 S. Ct. at 2250. It is therefore
important to understand that Atkins does not attempt to define who is or who is not mentally retarded
for purposes of eligibility for a death sentence, but "leaves to the States the task of developing
appropriate ways to enforce the constitutional restriction upon its execution of sentences." Id.
The Oklahoma Court of Criminal Appeals adopt the following definition for mental retardation
that will apply to individuals alleging they are not eligible to be sentenced to the death penalty, for
use in capital trials: (n18)
A person is "mentally retarded": (1) If he or she functions at a significantly subaverage intellectual level that substantially limits his or her ability to understand and
process information, to communicate, to learn from experience or mistakes, to
engage in logical reasoning, to control impulses, and to understand the reactions of
others; (2) The mental retardation manifested itself before the age of eighteen (18)
1.
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(n19); and (3) The mental retardation is accompanied by significant limitations in
adaptive functioning in at least two of the following skill areas: communication; selfcare; social/interpersonal skills; home living; self-direction; academics; health and
safety; use of community resources; and work.
It is the defendant's burden to prove he or she is mentally retarded by a
preponderance of the evidence (n.20) at trial. Intelligence quotients are one of the
many factors that may be considered, but are not alone determinative. However, no
person shall be eligible to be considered mentally retarded unless he or she has an
intelligence quotient of seventy or below, as reflected by at least one scientifically
recognized, scientifically approved, and contemporary (n.21) intelligent quotient test.
This standard shall be used at all future and pending capital trials, until such time as it may be
replaced by a suitable legislative enactment.
n18. Our use of the terms mentally retarded and mental retardation is limited to cases where a
person claims he or she is mentally retarded to the extent to be ineligible for the death penalty.
n19. "Manifestation before the age of eighteen" is a fact question intended to establish that the first
signs of mental retardation appeared and were recognized before the defendant turned eighteen.
Lay opinion and poor school records may be considered. Thus, a defendant need not, necessarily,
introduce an intelligent quotient test administered before the age of eighteen or a medical opinion
given before the age of eighteen in order to prove his or her mental retardation manifested before
the age of eighteen, although such proof would surely be the more credible of that fact.
n20. We adopt a preponderance of the evidence standard here in spite of the "clear and convincing"
standard adopted by our Legislature in House Bill 2635, which was patterned after North Carolina's
statute. In so doing, we recognize other states that have adopted statutory procedures relating to the
proof of mental retardation are split on the burden of proof, i.e., approximately five states utilize a
clear and convincing standard while approximately eleven states use preponderance of the
evidence. To date, the United States Supreme Court has not mandated a particular standard, but
has left the task to the individual states to develop appropriate ways to address the issue. While I
would have followed our Legislature's stated intent, the Court, as a whole, has opted for a
preponderance of the evidence standard.
n21. By contemporary, we mean the intelligent quotient test registering seventy or below was
administered some time after the capital crime was committed or is one that may be understood by
contemporary standards.
Willis v. Artuz, 301 F.3d 65 (2nd Cir. 2002)
1.
Search -- Prison Cell - Need not be Related to Institutional Security
Plaintiff inmate filed a 42 U.S.C.S. § 1983 claim that defendant prison officials violated his
Fourth Amendment rights by conducting a warrantless search of his prison cell.
In Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984), a convict brought
a § 1983 action challenging a "shakedown" search of his prison cell; the convict alleged that the
search was conducted solely to harass him and not for any reason related to institutional security.
Id. at 520. The Fourth Circuit Court had held that an inmate retains a "'limited privacy right' in his cell
entitling him to protection against searches conducted solely to harass or to humiliate," and that
shakedowns are permissible "only if 'done pursuant to an established program of conducting
random searches of single cells or groups of cells reasonably designed to deter or discover the
possession of contraband' or upon reasonable belief that the particular prisoner possessed
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contraband." Id. at 521-22 (quoting Palmer v. Hudson, 697 F.2d 1220, 1224-25 (4th Cir. 1983)). The
Supreme Court held:
Notwithstanding our caution in approaching claims that the Fourth Amendment
is inapplicable in a given context, we hold that society is not prepared to
recognize as legitimate any subjective expectation of privacy that a prisoner
might have in his prison cell and that, accordingly, the Fourth Amendment
proscription against unreasonable searches does not apply within the confines
of the prison cell. The recognition of privacy rights for prisoners in their
individual cells simply cannot be reconciled with the concept of incarceration
and the needs and objectives of penal institutions.
468 U.S. at 525-26. The Supreme Court specifically considered Hudson's argument that, "because
searches and seizures to harass are unreasonable, a prisoner has a reasonable expectation of
privacy not to have his cell . . . invaded for such a purpose," 468 U.S. at 529, and ruled:
This argument, which assumes the answer to the predicate question whether a
prisoner has a legitimate expectation of privacy in his prison cell at all, is merely
a challenge to the reasonableness of the particular search of respondent's cell.
Because we conclude that prisoners have no legitimate expectation of privacy
and that the Fourth Amendment's prohibition on unreasonable searches does
not apply in prison cells, we need not address this issue.
468 U.S. at 529-30; see also 468 U.S. at 538 (O'Connor, J., concurring) ("The fact of arrest and
incarceration abates all legitimate Fourth Amendment privacy . . . interests . . ., and therefore all
searches and seizures of the contents of an inmate's cell are reasonable."). The Supreme Court
made clear that security is not the sole relevant institutional interest of the prison system:
The curtailment of certain rights is necessary, as a practical matter, to
accommodate a myriad of institutional needs and objectives of prison facilities,
chief among which is internal security. Of course, these restrictions or
retractions also serve, incidentally, as reminders that, under our system of
justice, deterrence and retribution are factors in addition to correction.
Id. at 524. For that reason, the Court held that the Fourth Amendment protection of a convict against
warrantless searches of his cell "simply cannot be reconciled with the concept of incarceration and
the needs and objectives of penal institutions," notwithstanding the allegation in Hudson that the
search at issue served no institutional security-related purpose but was conducted solely for
harassment. Id. at 526.
In United States v. Cohen, 796 F.2d 20 (2d Cir. 1986), the appellant was not a convicted
prisoner, but was rather a pre-trial detainee. He had challenged the admissibility of evidence seized
during a warrantless search of his cell. The search was conducted at the behest of an assistant U.S.
Attorney in charge of prosecuting him. The Second Circuit Court framed the issue as follows: "We
are left then with deciding whether . . . a pre-trial detainee retains no Fourth Amendment rights,
regardless of the circumstances underlying the search." 796 F.2d at 23. The Second Circuit Court
held that a pre-trial detainee does retain Fourth Amendment protection against searches "at the
instigation of non-prison officials for non-institutional security related reasons." 796 F.2d at 24. "The
Supreme Court in Hudson did not contemplate a cell search intended solely to bolster the
prosecution's case against a pre-trial detainee awaiting his day in court . . . ." 796 F.2d at 23.
The Second Circuit Court stated: Unlike the pre-trial detainee in Cohen, a convicted prisoner's
loss of privacy rights can be justified on grounds other than institutional security. Cf. Benjamin v.
Fraser, 264 F.3d 175, 187 n.10 (2d Cir. 2001) (certain penological interests--such as punishment
and rehabilitation--do not apply to pre-trial detention). One of the incidents of confinement for a
convict is the loss of privacy, which serves the legitimate purpose of retribution as well as the
institutional security needs of the prison system.
The Second Circuit Court held that "society is not prepared to recognize as legitimate any
subjective expectation of privacy that a [convict] might have in his prison cell." Hudson, 468 U.S. at
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526.
State v. Frank, 650 N.W.2d 213 (Minn. Ct. app. 2002)
1. Search -- Automobile - Consent by Driver - Does not Justify Search of Passenger’s
Suitcase
Defendant was a passenger in an automobile that was stopped for having only one working
headlight. The officer questioned the driver and became suspicious. Out of defendant’s hearing, the
officer asked the driver for permission to search the vehicle for bodies, weapons, guns, or drugs.
The driver gave consent and the officer searched the truck and found two (2) suitcases. The officer
opened one suitcase without asking who was the owner or requesting permission from the
passengers. The officer found what appeared to be controlled substances and a handgun in the
suitcase.
Warrantless searches are per se unreasonable unless the search comes within the purview of
one of the exceptions to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 372, 113
S. Ct. 2130, 2135 (1993); State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986), review denied
(Minn. Aug. 13, 1986).
Two exceptions to the warrant requirement are the consent exception and the automobile
exception. See State v. Pederson-Maxwell, 619 N.W.2d 777, 780 (Minn. App. 2000) (stating that
searches of motor vehicles when there is probable cause to believe the vehicle contains contraband
do not violate the warrant requirement); Hatton, 389 N.W.2d at 232 (stating that searches conducted
with consent and without a warrant do not violate the warrant requirement).
In Florida v. Jimeno, 500 U.S. 248, 111 S. Ct. 1801 (1991), police officer searched defendant’s
vehicle, which had two passengers, with the defendant’s consent, after telling the defendant that the
officer believed that defendant was transporting narcotics. 500 U.S. at 249-50, 111 S. Ct. at 1803.
The officer searched a folded brown paper bag, located on the floor of the passenger side of the
vehicle, and found cocaine inside the bag. Id. at 250, 111 S. Ct. at 1803. Defendant argued that his
consent to search the vehicle did not extend to the paper bag. Id. The Supreme Court held that the
search of the brown paper bag was proper because it was objectively reasonable for the officer to
believe that the defendant’s consent extended to all containers that could contain drugs stating that
“if [the driver’s] consent would reasonably be understood to extend to a particular container, the
Fourth Amendment provides no grounds for requiring a more explicit authorization.” Id. at 251-52,
111 S. Ct. at 1804. But the Supreme Court also specifically indicated that although it may be
reasonable to search a paper bag on the floor of a vehicle, it may not be reasonable to search a
locked briefcase found in the trunk of a car. Id. at 251-52, 111 S. Ct. at 1804. Each case depends on
what is an objectively reasonable belief for the officer to hold in a particular situation. Id. at 251, 111
S. Ct. at 1803-04.
If a third-party consents to the warrantless search of another individual’s personal items, the
government must demonstrate, in order to save the search, that the consenting party “possessed
common authority over or other sufficient relationship to the premises or effects sought to be
inspected.” See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974). Common
authority includes the:
mutual use of the property by persons generally having joint access or control for
most purposes, so that it is reasonable to recognize that any of the co-inhabitants
has the right to permit the inspection in his own right and that the others have
assumed the risk that one of their number might permit the common area to be
searched.
Id. at 172 n.7, 94 S. Ct. at 993 n.7. Although Matlock involved the search of a home, its principles
are equally applicable to the search of a vehicle. See State v. Matejka, 621 N.W.2d 891, 897 (Wis.
2001) (“Although Matlock concerned third-party consent to search a home, we conclude its
principles are fully applicable to the evaluation of third-party consent automobile searches.”)
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Some jurisdictions have determined that a driver may consent to the search of a passenger’s
personal items by consenting to a search of the vehicle in question. See United States v. Navarro,
169 F.3d 228, 230, 232 (5th Cir. 1999) (holding that a driver properly consented to the search of a
passenger’s duffel bag located in the back seat of the car when he consented to a search of the
vehicle); United States v. Anderson, 859 F.2d 1171, 1173-74, 1176-77 (3rd Cir. 1988) (holding that a
driver properly consented to the search of a passenger’s bags located in the trunk when the driver
consented to the search of the vehicle); Matejka, 621 N.W.2d at 893, 899 n.7 (concluding that the
search of a passenger’s jacket located in the interior of a vehicle was constitutional because the
driver consented to the search of the vehicle).
Other jurisdictions have determined that a driver does not have authority to consent to the
search of a passenger’s personal items by consenting to a search of the vehicle in question. See
Brown v. State, 789 So. 2d 1021, 1021, 1023 (Fla. Dist. Ct. App. 2001) (holding that a “driver’s
consent to search the car was not a valid third-party consent to search items such as purses and
fanny packs possessed by a passenger” especially when it is clear that the owner of the item is
“present and available to consent.”); State v. Friedel, 714 N.E.2d 1231, 1234-35, 1243 (Ind. Ct. App.
1999) (holding that the male driver who consented to a search of his vehicle did not have actual or
apparent authority to consent to the search of a passenger’s purse located in the vehicle); State v.
Zachodni, 466 N.W.2d 624, 628 (S.D. 1991) (holding that a driver’s consent to search a vehicle did
not extend to a search of his wife’s purse).
In State v. Friedel, 714 N.E.2d 1231 (Ind. Ct. App. 1999), the Indiana Court of Appeals
reasoned that the driver did not have actual authority to consent to a search of his passenger’s
purse because there was no evidence that the driver jointly owned, used, possessed or controlled
the purse. Id. at 1240. The court further concluded that the driver lacked apparent authority to
consent to the search. Id. at 1243. Apparent authority exists if the government demonstrates “that
the officers who conducted [the search] reasonably believed that the person from whom they
obtained consent had the actual authority to grant consent.” Id. at 240 (quotation omitted); Krise v.
State, 746 N.E.2d 957, 969 (Ind. 2001) (holding “that the inspection of closed containers that
normally hold highly personal items requires the consent of the owner or a third party who has
authority--actual or apparent--to give consent to the search of the container itself.”).
Minnesota Court Appeals concluded that a driver’s consent to search a motor vehicle does not
extend to property owned by passengers who are present and available to consent to the search of
their property are more consistent with constitutional limits on warrantless searches than the cases
that conclude otherwise. Brown v. State, 789 So. 2d 1021, 1023 (Fla. Dist. Ct. App. 2001).
Edwards v. Commonwealth, 568 S.E.2d 454 (Va. Ct. App. 2002)
1.
Search -- Consent - Includes Bags Carried by Person
Officer had a tip that two individuals were selling narcotics from a motel room, one of whom was
known as "E." When the Officer finished searching of the room, Edwards knocked on the door and
entered carrying a clear plastic bag of women's white tube socks. Edwards identified himself as "E."
The officer then asked Edwards for consent to search his person. While holding the bag of socks,
Edwards responded, "[s]ure, no problem." Edwards put the bag of socks on the bed and cooperated
with the search. The Officer searched him but did not find any narcotics. The Officer picked up the bag
and asked the defendant what he was doing with a bag of women's white tube socks. The Officer
immediately noticed a lumpy object inside the tube socks. He looked inside the bag and found two
plastic sandwich bags inside the socks. One bag contained fifty zip-lock baggies of crack cocaine, and
the other contained twenty-five zip-lock baggies of crack cocaine.
A consensual search is reasonable if the search is within the scope of the consent given."
Grinton v. Commonwealth, 14 Va. App. 846, 850, 419 S.E.2d 860, 862 (1992). "'A suspect may of
course delimit as he chooses the scope of the search to which he consents. But if his consent would
reasonably be understood to extend to a particular container, the Fourth Amendment provides no
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grounds for requiring a more explicit authorization.'" Lawrence v. Commonwealth, 17 Va. App. 140,
145, 435 S.E.2d 591, 594 (1993) (quoting Florida v. Jimeno, 500 U.S. 248, 252 (1991).
In United States v. Graham, the Seventh Circuit Court of Appeals concluded that the
defendant's shoulder purse could be considered part of "his person." See 638 F.2d 1111, 1114 (7th
Cir. 1981) (holding that search of defendant's purse, which he carried, was authorized by a warrant
to search "his person"). In holding that such objects are within the scope of the search of a person,
the Court noted:
The human anatomy does not naturally contain external pockets, pouches, or other
places in which personal objects can be conveniently carried. To remedy this
anatomical deficiency clothing contains pockets. In addition, many individuals carry
purses or shoulder bags to hold objects they wish to have with them. Containers
such as these, while appended to the body, are so closely associated with the
person that they are identified with and included within the concept of one's person.
To hold differently would be to narrow the scope of a search of one's person to a
point at which it would have little meaning. Id.
Several other jurisdictions have similarly concluded that the search of a person includes
containers held by the person. See United States v. Robertson, 833 F.2d 777, 784 (9th Cir. 1987)
(holding that search of backpack constituted a search of defendant's person and was not authorized
by search warrant for premises); Minnesota v. Wynne, 552 N.W.2d 218, 220 (Minn. 1996)
(concluding that search of defendant's purse constituted a search of her person); Wisconsin v.
Andrews, 549 N.W.2d 210, 216, 218 (Wis. 1996) (noting that items worn by, or appended to the
body of, a person are included within the concept of the person and, therefore, are not
encompassed by a search warrant that does not specifically authorize a search of the person);
Hayes v. Georgia, 234 S.E.2d 360, 361-62 (Ga. Ct. App. 1977) (holding that search of appellant's
suitcase, found on the floor next to the couch on which he was sleeping, was an unconstitutional
search of his person and was not authorized by a search of the residence); cf. United States v.
Branch, 545 F.2d 177, 182 (D.C. Cir. 1976) (holding that search of shoulder bag was not authorized
by search warrant for apartment).
Virginia Court of Appeals held that the scope of consent to search one's person encompasses
such items.
Hughes v. Commonwealth, ___ S.W.3d ___ (Ky. 2000-SC-0156-MR 2002)
1. Search -- Emergency Doctrine - Inevitable Discovery - Family Report Wife Missing Husband told Officers Wife was Fine
Defendant’s mother-in-law reported to the police that her daughter had left the couple’s children
for a visit but had not picked them up as scheduled two day earlier. An officer went to the apartment
where Defendant lived with his wife, and the defendant told the officer that his wife was asleep and
did not want to be disturbed. An hour or so later, the officer returned to the apartment, but this time
no one answered. The officer detected an odor and the officer had the building manager unlock the
apartment, and the officer discovered the wife’s body.
Numerous state and federal cases have recognized that the Fourth Amendment does not bar
police officers from making warrantless entries and searches when they reasonably believe that a
person within is in need of immediate aid. Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408,
2413, 57 L. Ed. 2d 290 (1978). See Mills v. Commonwealth, 996 S.W.2d 473, 480 (Ky. 1999), cert.
denied, 528 U.S. 1164 (2000); Todd v. Commonwealth, 716 S.W.2d 242, 247-48 (1986); Gillum v.
Commonwealth, 925 S.W.2d 189, 190 (Ky. 1995).
In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L. Ed. 2d 377 (1984), the United States
Supreme Court adopted the "inevitable discovery rule" to permit admission of evidence unlawfully
obtained upon proof by a preponderance of the evidence that the same evidence would have been
inevitably discovered by lawful means. Id. at 444, 104 S.Ct. 2509. Noting that the rationale behind
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excluding the "fruit of the poisonous tree," Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct.
407, 417, 9 L. Ed. 2d 441 (1963), was that the prosecution should not be put in a better position than
it would have been if the illegality had not transpired, the Court concluded in Nix that, conversely,
the prosecution should not be put in a worse position than if no police error or misconduct had
occurred. Nix, 467 U.S. at 443, 104 S.Ct. at 2508-09. In Nix, the victim's body was initially
discovered as a result of an unlawfully obtained statement from the defendant; however, the body
was found within an area already being searched by two hundred volunteers who inevitably would
have discovered it "in short order." Id. at 435-37, 104 S.Ct. at 2504-06. The doctrine has been
applied to the fruits of illegal searches as well as to the fruits of illegally obtained confessions. E.g.,
United States v. Scott, 270 F.3d 30, 42 (1st Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1583,
152 L. Ed. 2d 501 (2002); United States v. Kimes, 246 F.3d 800, 803-04 (6th Cir. 2001), cert.
denied, ___ U.S. ___, 122 S.Ct. 823, 151 L. Ed. 2d 705 (2002); United States v. Ford, 184 F.3d 566,
577 (6th Cir. 1999), cert. denied, 528 U.S. 1161 (2000).
Here, the victim had been reported missing for two days and she and defendant had
experienced marital problems. Defendant had refused an earlier request to see the victim, and when
the officer returned to the apartment no one answered his knock on the door, and an unusual odor
was emanating from inside the apartment.
The Court held that the officer had entered the apartment because he reasonably believed that
the wife might be in need of immediate assistance. That this was an exigent circumstance
authorizing a warrantless search.
The Court rejected the suggestion that if the officer had not discovered the victim's body when
he did, Appellant might have been able to remove and conceal it. Suffice it to say that there is no
"'constitutional right' to destroy evidence." Segura v. United States, 468 U.S. 796, 816, 104 S.Ct.
3380, 3391, 82 L. Ed. 2d 599 (1984) (applying the conceptually similar "independent source rule").
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