Recent Decisions
San Antonio Bar Association
50th Annual
Criminal Law Institute
April 5, 2013
Scope
Pages
The Paper
• All published decisions from the Court of
Criminal Appeals between March __, 2012
and April 4, 2013.
• And some others.
The powerpoint
www.markstevenslaw.com
Motions, Etc
Recent Power Point Presentations
The talk
• My criteria
Scope
Pages
Jury Selection
Unkart v. State, 2012 WL 760798
(Tex. App.–Eastland 2012, pet. granted)
(not designated for publication)
137
• “praise God, I haven't been charged with a crime. But if I
were, then I think I would probably want to get up and tell
my side. It's just my nature. I would want to probably say
my point of view on the thing or my version of the facts, but
that's just me.”
• Okay if the venirepersons did not share his opinion, as long
as they could follow this instruction: If the defendant
decides not to testify, you cannot refer or allude to that fact
during your deliberations.
• The court of appeals reversed anyway, finding that the
judge’s remarks vitiated the presumption of innocence and
constituted harmful, fundamental error.
No objection
Unkart v. State, 2012 WL 760798 (Tex.
App.–Eastland 2012, pet. granted)
(not designated for publication)
137
PDR Granted
1. The Court of Appeals misconstrued Blue v. State
when it found fundamental error in the trial court's
voir dire comments about a defendant's decision
whether to testify.
2. Appellant's untimely motion for mistrial and his
failure to request an instruction to disregard forfeited
any complaint about the trial court's comment.
Standards of Proof in Texas
Beyond A
Reasonable
Doubt
Clear
And
Convincing
Preponderance
Probable
Cause
No Evidence
Fuller v. State, 363 S.W. 3d (Tex. Crim. App. 2012)
Easley v. State, 2012 WL 4040798
(Tex. App.-Waco 2012, pet. granted)
(not designated for publication)
138
Does the trial court commit
constitutional or non-constitutional
error when it prevents counsel from
asking prospective jurors to compare
and contrast the different standards of
proof in Texas?
DWI
Fienen v. State, 390 S.W.3d 328
(Tex. Crim. App. 2012)
38
• Remember Erdman v. State, 861 S.W.2d 890
(Tex.Crim.App.1993)?
• So much for almost 20 years of precedent. Erdman is
overruled “because of its flawed reasoning and the flawed
caselaw that has resulted from it. . . .”.
• When determining whether DWI suspects acted
voluntarily, courts are to look at the totality of the
circumstances. Law-enforcement officers may not
misrepresent the law, but neither are they required to
simply repeat the statutory warnings.
• Texas driver’s have no legal right to refuse, but also
“a person retains an absolute right (subject to certain
exceptions not relevant here) to refuse a test.”
Krause v. State, 368 S.W.3d 863
(Tex. App.–Houston [14 Dist.]
2012, pet. granted)
35
• TEX. TRANSP. CODE § 724.017 specifically
excludes “emergency services medical
personnel.”
State’s PDR Granted
Are EMTs statutorily unqualified to take
mandatory, involuntary, warrantless blood
draws?
Sanchez v. State, 365 S.W.3d
681 (Tex. Crim. App. 2012)
35
• A statutory county court judge
in Montgomery County had no
jurisdiction to issue a search
warrant for the blood of one
arrested in Harris County.
Experts
Blasdell v. State, 384 S.W.3d 824
(Tex. Crim. App. 2012)
40
• Reversible error to exclude testimony from
forensic psychologist on “weapons focus
effect” because he would not commit that this
had in fact impacted the eyewitness.
• “No expert could testify with significantly
greater certainty that an eyewitness’s
perception was in fact impaired by the
threatening presence of a gun, but it is no
less valuable to educate a jury of the realistic
potential, if that has been empirically shown
to exist.
Olsen v. State, 2012 WL 1438475
(Tex. Crim. App. 2012)
(not designated for publication)
41
• The trial court erred when it
excluded the defense’s expert
testimony about the harmful
effects that an inappropriate
relationship with an older female
had had on the defendant.
Ex parte Henderson, 384 S.W.3d
833 (Tex. Crim. App. 2012)
28
• Bayardo at trial: short-fall claim is false
and impossible.
• Bayardo at writ: no way to know.
• Subsequent writ applicant proved by
clear and convincing evidence that, in
light of new biomechanical evidence,
no reasonable juror would have
convicted her of capital murder.
Ex Parte Jimenez, 364 S.W. 3d 866
(Tex. Crim. App. 2012)
•
•
•
•
9
“this case depended primarily on expert testimony.”
Defense “expert” Dr. Ira Kanfer melted down on crossexamination.
During lunch he was overheard saying that the
prosecutors could go “fuck themselves.”
He admitted saying this on re-cross: “That’s an exactly
correct quote.”
Did the defense’s expert undermine his own unpersuasive
testimony by telling the prosecutors what they could do to
themselves?
No.
Ake error was forfeited where trial counsel’s request for
additional experts was not presented to the trial court in
writing and adequately supported by the facts.
Ex parte Flores, 387 S.W.3d 626
(Tex. Crim. App. 2012)
9
• Counsel's duty is to investigate and, if
an expert is necessary to present the
defense, to obtain a "competent"
expert; not the "best," or the "most
highly qualified," and certainly not the
most "pompous, bombastic, or
incomprehensible expert in the nation."
Ex Parte Rogers, 369 S.W.3d 858
12
(Tex. Crim. App. 2012)
• trial counsel failed to present available
evidence that electronic monitoring
records and DNA showed that the
defendant could not have committed an
extraneous offense offered at the
punishment phase.
• “We cannot imagine a tactical reason
for not presenting evidence of the
electronic monitoring report or the DNA
exclusion.”
Somers v. State, 368 S.W.3d 528
(Tex. Crim. App. 2012)
42
• EMIT tests are reliable enough
to be admitted with or without
confirmation.
Leonard v. State, 385 S.W.3d 570
(Tex. Crim. App. 2012)
104
• “For more than sixty years, we have not once wavered from
the proposition that the results of polygraph examinations
are inadmissible over proper objection because the tests are
unreliable.”
• “Rule 703 is not a conduit for admitting opinions based on
“scientific, technical, or other specialized knowledge” that
would not meet Rule 702's reliability requirement. If the
methodology or data underlying an expert's opinion would
not survive the scrutiny of a Rule 702 reliability analysis,
Rule 703 does not render the opinion admissible.”
• The court was not asked to decide whether probationers
could be required to take polygraphs. “What we decide is
that any such requirement does not justify admitting legally
unreliable evidence.
More questions about the use of
polygraphs during motions to revoke
probation.
Dansby v. State, 2012 WL 1150530 (Tex.
App.-Dallas 2012, pet. granted)(not
designated for publication)
• “Do you have any other victims.”
• Refusal
Discharge
PDR Granted
5th Amendment violation?
Experts
• What’s going on with experts?
• Trial judges are going to allow more
expert testimony and scientific evidence.
• That rule will work both ways.
• Deal with it.
• Make sure you know how to get the
experts you need.
• Polygraph evidence is not coming in.
Sex
Texas Style
114
Fleming v. State, 341 S.W.3d 415
(Tex. Crim. App. 2011)
Does the Texas Constitution require proof of a
culpable mental state to “statutory rape?”
• The state constitutional question was properly
briefed in the court of appeals.
• Remanded to the court of appeals to decide
whether the state constitution “provides
greater, lesser, or the same protections as it
federal analog.”
Fleming is back
114
Fleming v. State, 376 S.W.3d 854 (Tex. App.-Fort
Worth 2012, pet. granted)
• Does Texas’s statutory rape statute violate
Federal Due Process or State Due Course of Law
for failing to require the state to prove a culpable
mental state relating to the complainant’s age.
• Does Texas’s statutory rape statute violate
Federal Due Process or State Due Course of Law
for failing to recognize an affirmative defense
based on the defendant’s reasonable belief that
the complainant was 17 or older?
Defendant’s Motion To Set
Aside The Indictment
114
Fleming’s PDR filed by
Richard Gladden
Denton, Texas
Wise v. State, 364 S.W.3d 900
(Tex. Crim. App. 2012)
116
• “We hold that, viewing the totality of the
evidence and inferences in a light most
favorable to the verdict, the jury could
have reasonably inferred that appellant
knowingly had care, custody, control, or
management of the ten pornographic
images of unknown children found on the
free space of his computer.”
Crabtree v. State, 389 S.W.3d 820
(Tex. Crim. App. 2012)
114
• Article 62.003 clearly requires that the Texas
Department of Public Safety make a
determination that a sex offense from another
state is substantially similar to a Texas offense
before registration is required in Texas, and
because no such determination was made here,
the evidence was legally insufficient to support
the conviction.
• “The wisdom of a particular statute is outside
this Court’s purview.”
State v. Rosseau, 2011 WL 6207037
(Tex. App.–San Antonio 2011, pet. granted)
118
• Sexual assault is ordinarily a second degree
felony, but it is a first degree felony “if the victim
was a person whom the actor was prohibited
from marrying or purporting to marry or with
whom the actor was prohibited from living under
the appearance of being married under Section
25.01.” Tex. Penal Code § 22.011(f).
• Does Texas really hate the polygamists so bad
that it made being married a basis for turning
second degree sexual assault into a first degree
crime?
Search and Seizure
Rare custody
32
State v. Ortiz, 382 S.W.3d 367
(Tex. Crim. App. 2012)
• This routine traffic stop escalated into a
custodial detention because the
objective circumstances would have
caused a reasonable person to perceive
that the detention was restraint on his
movement comparable to a formal
arrest.
Mahaffey v. State, 364 S.W.3d 908
(Tex. Crim. App. 2012)
81
• The law does not require a
driver to signal a “lane” change
when the lane he is driving in
ends, and he merges into the
remaining lane.
Miller v. State, 2012 WL 5869416
(Tex. Crim. App. 2012)
82
• The emergency doctrine did not
authorize the police to remain
inside appellant’s apartment, and
although their initial entry was
consensual, appellant revoked her
consent before the police saw
contraband in “plain view.”
Lothrop v. State, 372 S.W.3d 187
(Tex. Crim. App. 2012)
85
• Driving on the improved
shoulder to pass another car
that was slowing did not violate
the Transportation Code, and
did not give the officer
reasonable suspicion to stop the
driver.
State v. Duarte, 389 S.W.3d 349
(Tex. Crim. App. 2012)
89
• Here, a tip by a confidential informant of unknown
reliability, standing virtually alone, did not provide a
sufficient basis for a magistrate's probable cause
determination.”
• Although substantial deference must be given to
magistrates who issue warrants, and although
probable cause is a “flexible, nondemanding standard
. . . [a] magistrate should not be a rubber stamp,” and
to ensure against this, “courts must continue to
conscientiously review the sufficiency of affidavits on
which warrants are issued
.”
Tucker v. State, 369 S.W.3d 179
91
(Tex. Crim. App. 2012)
• Memo to trial judges: Even though
appellate courts must review your
rulings on historical facts deferentiallyeven when those facts are on video –
you still must view the video before
overruling a defendant’s motion to
suppress where there is a conflict as to
whether consent was voluntarily given.
Clay v. State, 2013 WL 85375
(Tex. Crim. App. 2013)
96
• Although our legislature has not expressly
authorized search warrants to be sworn out
over the telephone, and not in the physical
presence of the magistrate, neither has it
prohibited such practice, and until the
legislature addresses the question, the courts
will decide legality on a case-by-case basis;
the circumstances of the telephonic warrant
application in this case sufficed “to satisfy the
solemnizing function of the oath requirement
under Article 18.01(b).”
Aguirre v. State, 2013 WL 163450
97
(Tex. Crim. App. 2013)
(Cochran, J., concurring in the refusal of petition for
review)
• Judge Cochran strongly recommends that the one who
loses a motion to suppress should always request findings
of fact.
• ‘For want of a nail the shoe was lost.’ For want of a factual
finding, the appeal was lost.”
• Even though the testimony was conflicting, counsel failed
to request findings, and that this “failure sealed appellant’s
fate on appeal.”
• Absent specific findings, the appellate court’s hands are
tied: “Factual findings can only help the losing party on
appeal.”
Aguirre v. State, 2013 WL 163450
97
(Tex. Crim. App. 2013)
(Cochran, J., concurring in the refusal of petition for
review)
• Such a factual finding might pass the “red
face test” if phrased very carefully.
Unfortunately for appellant, with no explicit
factual findings it is almost impossible for
him to overcome the extremely deferential
standard of review that we use for the trial
judge's implicit factual findings.
Insufficient Evidence
A few cases
122-33
• Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App.
2012)(evidence insufficient to support conviction for
endangering a child)
• Louis v. State, 2012 WL 2007632 (Tex. Crim. App.
2012)(although there was proof that the defendant
disciplined his son “to an excessive, horrific, and cruel
degree,” the evidence insufficient to prove that he
intentionally or knowingly caused his death)
• Gross v. State, 380 S.W.3d 181 (Tex. Crim. App.
2012)(juries can draw reasonable inferences from the
evidence, but convictions may not be based on
speculation; mere presence and flight are insufficient,
standing alone, to prove guilt as a party.
A few more cases
122-33
• Daugherty v. State, 387 S.W.3d 654 (Tex. Crim. App.
2013)(contractors beware, and get your money up front:
Theft of services by deception requires proof that deception
before the services are rendered)
• Britain v. State, 2012 WL 6028965 (Tex. App.-San Antonio
2012) & Brasse v. State, 2012 WL 6028960 (Tex. App.-San
Antonio 2012)(Although the prosecutors were unable to
recognize the difference between a “tragic incident” and
criminal recklessness, the court of appeals was)
• Winfrey v. State, 2013 WL 690861 (Tex. Crim. App.
2013)(human scent discrimination, while maybe raising a
“strong suspicion,” is insufficient to prove guilt beyond a
reasonable doubt)
Preserving Error
Jacobson v. State, 2013 WL 440069
(Tex. Crim. App. 2013)
• DeGarmo is given “the burial it
so richly deserves.”
Like this . . .
Everitt v. State, 2013 WL 440066
(Tex. Crim. App. 2013)
• The court of appeals erred when it parsed the
defendant’s trial objections, and utilized “the kind of
hyper-technical analysis” repeatedly rejected by the
court of criminal appeals.
Cook v. State, 2013 WL 331342 (Tex. Crim. App. 2013)
• Defendant’s motion for mistrial really meant “stop,”
and was enough to inform everyone what he wanted,
and was “as good an objection as any under these
circumstances.”
Bryant v. State, 2012 WL 5232147 (Tex. Crim. App. 2012)
• “need not spout ‘magic words' or recite a specific statute to
preserve an issue’ as long as the basis of his complaint is
evident to the trial court.”
Not like this . . .
Brewer v. State, 367 S.W.3d 251
(Tex. Crim. App. 2012)
Clark v. State, 365 S.W.3d 333
(Tex. Crim. App. 2012)
• There is nothing in the record here suggesting that the
trial court or the prosecutor understood Clark to be
making due process or fair-trial objections.
• The trial court is entitled to “know when it is being asked
to make a constitutional ruling, because constitutional
error is subject to much stricter harm analysis on appeal.”
What about “no objection”?
Thomas v. State, 2012 WL 3762479
(Tex. App.-Amarillo 2012, pet. granted)
• Motion to suppress denied.
• State offers lab report at punishment phase
of plea proceedings.
• “I don't have any objection to that, Your
Honor. Mr. Martindale has been kind enough
to let me see them before this afternoon and
we have no objections.”
Effective Assistance of
Counsel
Is the statute of limitations for
aggravated assault two years or
three, and could you be ineffective
for not knowing?
State v. Bennett, 2012 WL 11181 (Tex.
App.-Dallas 2012, pet. granted)(not
designated for publication)
Ex parte De Los Reyes, 2013 WL 1136517
(Tex. Crim. App. 2013)
• Padilla v. Kentucky: “counsel must
inform her client whether his plea
carries a risk of deportation.”
• Chaidez v. United States: Padilla does
not apply retroactively.
• Although the court of criminal appeals
could have held that Padilla applied
retroactively under state habeas law, it
chose to follow lockstep with the
United States Supreme Court.
Martinez v. State, 2012 WL 1868492
(Tex. Crim. App. 2012)(not
designated for publication)
• Can trial counsel properly
advise his client that he could
be deported for pleading no
contest to an aggravated felony
when deportation is automatic
upon conviction?
Who owns the file?
In re McCann and Turner, 2013 WL
________, No. 76, 998 & 76, 999 (Tex.
Crim. App. March 20, 2013)(not
designated for publication)
Habeas
Ex parte Chavez, 371 S.W.3d 200
(Tex. Crim. App. 2012)
• The court was authorized to consider
applicant’s subsequent writ because the legal
claim – the unknowing use of false testimony
– was unavailable to him when he filed his
first writ; and, although applicant was able to
show that two witnesses falsely testified
against him at his trial, he could not show that
this testimony was material, that is that it
affected the judgment of the jury.
Ex Parte Gaither, 387 S.W.3d 643
(Tex. Crim. App. 2012)
• Gaither falsely swore in his writ that his plea had
been involuntary because his trial lawyer promised
his sentences would be served concurrently.
• The court of criminal appeals:
– Denied relief
– Cited Gaither for abuse of the writ
– And referred his case to the appropriate
prosecuting agency for perjury prosecution
Ex Parte Parrott, 2013 WL 85370
(Tex. Crim. App. 2013)
• Although the defendant’s sentence was illegally
enhanced with a state jail felony, he could not
show harm, since it was undisputed that he had
other felony convictions that the state could
have relied on for enhancement, other than the
state jail felony that it actually used;
• “Granting relief to a defendant who is only
fictionally harmed is contrary to the type of
relief for which the great writ, an extraordinary
remedy, was intended.”
Stanley v. Bell County District Clerk,
2012 WL 6162692
(Tex. Crim. App. 2012)
• Tex. Rule Appellate Proc. 73.2, items 5 & 17
• Stanley used the correct form and “appears
to have substantially complied with the
instructions”
• The court granted mandamus relief,
ordering the clerk to file Stanley’s writs.
Ex parte Milner, 2013 WL 512759
(Tex. Crim. App. 2013)
• The court had jurisdiction to consider
this claim in a subsequent writ because
of actual innocence, specifically, no
rational juror could have found
defendant guilty of both offenses without
violating the federal prohibition against
double jeopardy.
Some Other Interesting
Issues
Castillo v. State, 369 S.W.3d 196
(Tex. Crim. App. 2012)
• To benefit from the “mailbox rule,” use
the post office, not a private courier.
Blackshear v. State, 385 S.W.3d 589
(Tex. Crim. App. 2012)
• The court wants to make it
perfectly clear that a defendant
fails to preserve error if his motion
for continuance is not written and
sworn to, and the appellate courts
must find waiver even though the
state does not complain.
State v. Meru, 2012 WL 5292924 (Tex.
App.-Corpus Christi 2012, pet.
granted)(not designated for
publication)
• Is criminal trespass a lesser
included offense of burglary?
Ex parte Maxwell, 2013 WL 458168
(Tex. Crim. App. 2013
(not designated for publication)
• Is the law that prohibits
mandatory life without parole
against juveniles retroactive?
• If so, what remedy applies?
Ex Parte Reinke, 370 S.W.3d 387
(Tex. Crim. App. 2012)
• When determining how long an
incompetent defendant can be
committed, “the maximum term
provided by law for the offense
for which the defendant was to
be tried” is not to be increased
by sentencing enhancements.
Salinas v. State, 369 S.W.3d 176
(Tex. Crim. App. 2012)
• Pre-arrest, pre-Miranda silence can be used
as substantive evidence of guilt even if the
defendant does not testify.
Cert. granted
Salinas v. Texas,
No. 12-246
• Whether or under what circumstances the
Fifth Amendment’s Self-Incrimination Clause
protects a defendant’s refusal to answer law
enforcement questioning before he has been
arrested or read his Miranda rights.
Guilty pleas are involuntary when:
• The four year sentence agreed to in plea
bargain was more than was authorized
for a state jail felony. Ex parte White,
2012 WL1142353 (Tex. Crim. App.
2012)(not designated for publication)
• Defendant was incorrectly informed that
he would not have to register as a sex
offender. Ex parte Price, 2012 WL
4834109 (Tex. Crim. App. 2012)(not
designated for publication)
In re State ex rel. Tharp, 2012 WL
5499867 (Tex. Crim. App. 2012)
• When a defendant pleads guilty in a
felony case, the “default option” is
for the jury to decide punishment in
a “unitary” proceeding; the “default
option” is avoided only if the jury is
validly waived, and this requires
the state’s consent.
Rubio v. State, 2012 WL 4833809 (Tex.
Crim. App. 2012)
(not designated for publication)
• The insanity defense focuses on whether the
accused understood the nature of his action and
whether he knew he should not do it. In the
context of the insanity defense, the word “wrong”
means illegal. If the accused knows that his
conduct is “illegal” by societal standards, then he
understands that his conduct is wrong, even if,
due to a mental disease or defect, he thinks his
conduct is morally justified.
Ex parte Doan, 369 S.W.3d 205
(Tex. Crim. App. 2012)
• For purposes of issue preclusion, the Travis County and
Brazos County Attorneys are the same parties;
therefore, the theft prosecution in Travis County was
barred by res judicata after the state tried but failed to
prove it by a preponderance of the evidence in a motion
to revoke in Brazos County.
•
Also, good bye and good riddance to the ridiculous
notion that probation revocation hearings are
administrative proceedings; “they are judicial
proceedings, to be governed by the rules established to
govern judicial proceedings.”
Ex parte Chaddock, 369 S.W.3d 880
(Tex. Crim. App. 2012)
• Defendant was separately tried twice for committing the
same crime against the same person – organized crime
and aggravated assault.
• Multiple punishments for the same crime are permissible
long as the offenses are tried together.
• The question squarely presented in this case – and not
previously answered – is whether multiple trials are
authorized for the same offense.
• Successive prosecutions subject a defendant to
“embarrassment, expense and ordeal” and compel him “to
live in a continuing state of anxiety and insecurity," and
create "a risk of conviction through sheer governmental
perseverance."
Scales v. State, 380 S.W.3d 780 (Tex.
Crim. App. 2012)
• A juror is not disabled under
article 33.011 and may not be
removed just because she has
made up her mind and refuses to
change it.
Yzaguirre v. State, 367 S.W.3d 927
(Tex. App.–Texarkana 2012)
(pet. granted)
• “Under the Penal Code, is an
instruction on the law of parties
necessary?”
• Say what?
• Bruce Anton
McQuarrie v. State, 380 S.W.3d
145 (Tex. Crim. App. 2012)
• Rule 606(b) did not prevent the
defense from obtaining affidavits
and calling jurors to testify at a
motion for new trial hearing
concerning internet research
conducted by a juror on the effect
of date rape drugs in this sexual
assault case.
In re State ex rel. Weeks,
2013 WL 163460
(Tex. Crim. App. 2013)
• Mandamus relief granted in mid-trial
preventing trial judge from giving
certain instructions to the jury on the
law of parties in a capital murder trial.
• Judge Price, joined by Judge Womack,
dissented: “Where will it end?
Lilly v. State, 365 S.W.3d 321 (Tex.
Crim. App. 2012)
• Trial in a prison chapel is not the “public”
trial envisioned by the Sixth Amendment.
Practice Tip
Can you commit aggravated robbery
by threatening the complainant with a
deadly weapon when the complainant
never sees the weapon?
Boston v. State, 373 S.W.3d 832 (Tex.
App.–Austin 2012, pet. granted)
The court of criminal appeals granted Boston’s
petition for discretionary review to decide this
issue: “The Court of Appeals erred when it held
that the victim was threatened or placed in fear of
imminent bodily injury or death when the evidence
showed that no threat was perceived by the victim.”
Does everyone who commits
criminally negligent homicide
necessarily use or exhibit a deadly
weapon, and, if so, is this a problem?
Chambless v. State, 368 S.W.3d
785 (Tex. App.–Austin 2012, pet.
granted)
Gilley v. State, 383 S.W.3d 301
(Tex. App.–Fort Worth 2012, pet.
granted)
20
• Does the trial court violate a
defendant’s Sixth Amendment
right to counsel by excluding
counsel from a Rule 601
hearing to determine the
competency of a child witness?