COURT OF CRIMINAL APPEALS UPDATE SIGNIFICANT DECISIONS FROM SEPTEMBER 2012 TO JUNE 2013

Transcription

1 COURT OF CRIMINAL APPEALS UPDATE SIGNIFICANT DECISIONS FROM SEPTEMBER 2012 TO JUNE 2013 DAVID C. NEWELL Assistant District Attorney Harris County District Attorney s Office 1201 Franklin, Suite 600 Houston, Texas State Bar of Texas 39 TH ANNUAL ADVANCED CRIMINAL LAW COURSE July 22-25, 2013 Dallas CHAPTER 17

2 TABLE OF CONTENTS I. INTRODUCTION... 1 II. MOTIONS TO SUPPRESS... 1 A. Standing Temporary guest did not have a reasonable expectation of privacy in hotel room rented by another Defendant had a reasonable expectation of privacy in the backyard of his aunt s property where she had given him permission to keep his dogs there B. Reasonable suspicion Officer had reasonable suspicion to prolong detention based upon driver s initial denial of prior arrests despite her later statement that she misunderstood the question Officer had reasonable suspicion to detain suspect based upon speaking to unidentified owner of a damaged vehicle who pointed out suspect who then started driving away Deputy lacked reasonable suspicion to stop motorist for failing to obey a traffic control device where there was no evidence to support the reasonable inference that the motorist had driven past the road sign Police officer who did not see a motorist cross the solid center stripe did not have reasonable suspicion to stop the motorist even though the DVD recording of the events showed that the motorist had committed a traffic violation C. Consent Erdman overruled; Voluntariness of decision to provide breath sample evaluated under the totality of the circumstances Officers continued presence in apartment after consent was revoked was not justified by emergency doctrine Georgia v. Randolph does not apply to vehicle searches; consent to search from driver was not invalidated by refusal of consent from passenger who was the driver s common-law wife D. Warrants Possibility of lenient treatment for good information from a first-time confidential informant did not corroborate the information or render it sufficiently reliable as the sole basis for a search warrant Search warrant sufficiently distinguished the place to be searched from other places even though the description got the color of the roof wrong and the defendant raised a dispute about the address listing Telephonic swearing to search warrant affidavit sufficient where officer and magistrate recognized each other s voices even though oath was not sworn in corporeal presence of magistrate E. Confessions Custody Traffic stop escalated into custody after suspect was told he was suspected of narcotics trafficking, patted down, and handcuffed Loss-prevention officers are not required to read Article warnings to shoplifters in order for subsequent statements to be admissible at trial absent an agency relationship with law enforcement Texas Family Code (a)(1)(A) does not prohibit police officers from being present when a juvenile receives his magistrate warnings prior to giving a statement F. Statutory violations Dog-sitter did not criminally trespass into defendant s master bedroom because she had apparent consent to go into his bedroom and use his computer while he was away Phlebotomist employed at a hospital as an EMT was qualified to obtain a blood sample under Texas Transportation Code G. Warrantless entry onto property Warrantless entry into home based upon the smell of marijuana not justified by exigent circumstances even after the officer has made his presence known to the occupants Plain view doctrine did not justify seizure of malnourished dogs where officers were not lawfully on the property to observe them i

3 III. TRIAL PROCEDURE A. Evidence that defendant on bail was staying in uninhabited home where copper wire had been stolen did not provide a substantial showing of guilt for burglary to support the denial of bail based upon a new offense B. Failure to properly admonish the defendant as to the applicable range of punishment did raise a due process violation that rendered the defendant s plea involuntary where he did not see surprised by the enhanced punishment range C. A trial court has no authority to assess punishment after a defendant pleads guilty to a jury even where the defendant fails to file an Article election to have the jury assess punishment D. Bigamy enhancement for the offense of sexual assault is not facially unconstitutional IV. EVIDENCE A. Expert Testimony Psychotherapist cannot testify that a defendant failed to successfully complete sex-offender treatement when basis of opinion is failed polygraph results because polygraph results are inadmissible and unreliable Expert testimony regarding weapon focus effect was sufficiently tied to the facts of the case to be relevant and admissible B. A child-complainant s videotaped statement does not meet the requirements for being admitted as an outcry statement under Article of the Texas Code of Criminal Procedure C. Defendant must submit to psychiatric examination by State expert to raise Fifth Amendment complain about trial court s refusal to limit examination to the same areas covered by the defense expert V. OFFENSES A. Capital murder - Dog-scent lineup evidence by itself is still insufficient evidence to sustain a conviction for capital murder and conspiracy to commit capital murder B. Murder Evidence that defendant was present at scene of shooting and helped shooter escape and dispose of murder weapon was insufficient to establish party liability for murder Circumstantial evidence of a defendant s motive and opportunity was legally sufficient to establish that defendant murdered his wife C. Failure to Register as a Sex Offender State must present evidence that DPS had made the determination that an out-of-state conviction was for an offense that was substantially similar to a Texas offense requiring the defendant to report D. Theft by of services Issuance of worthless check to contractor after contractor finished renovation project was not theft of services by deception where State pleaded that the deception was passing a worthless check E. Fraudulent possession of identifying information Failure to identify and fraudulent identifying information are not in pari materia F. Falsely holding oneself out as a lawyer only requires a defendant intend to obtain an economic benefit; it does not require he know he is not currently licensed elsewhere VI. JURIES, JURY INSTRUCTIONS, AND JURY DELIBERATIONS A. Voir Dire Asking juror if they could take into consideration a history of a turbulent childhood to determine if it reduces a person s moral culpability was an improper commitment question Trial court did not abuse its discretion by granting State s challenges for cause to vacillating or equivocating potential jurors where jurors stated they could not answer special issues in a way that the death penalty would be imposed B. Jury Instructions State can seek mandamus relief where trial court prevents submission of a jury charge supported by the evidence or improperly increases the State s burden of proof Law of parties Evidence supported jury instruction on manner and means unknown to the grand jury where medical examiners did not testify to closed universe of possible causes of death ii

4 4. Inclusion of per se definition of intoxication in the abstract portion of a DWI jury charge rather than the application paragraph did not impermissibly expand the allegations contained in the charging instrument Article Defendant was not egregiously harmed by lack of accomplice-witness instruction where evidence was legally sufficient to connect the defendant to offense even though non-accomplice witness was legally insufficient by itself Defensive issues Lesser-included offenses - Evidence in a murder case that the defendant shot a man twice for verbally taunting him was insufficient to justify a jury instruction on the lesser-included offense of manslaughter even though committing an act clearly dangerous to human life by shooting someone is the functional equivalent of recklessly causing a death by shooting someone Defendant was not egregiously harmed by the trial court s failure to read the charge aloud. The State charged Matthew Casanova with state-jail-felony possession of cocaine C. Jury deliberations Internet research conducted by a juror about effects of date rape drugs constitutes an outside influence about which a juror is competent to testify Juror who refused to deliberate could not be removed as disabled without sufficient evidence in the record that the juror was unable to perform her duties as a juror VII. SENTENCING A. Enhancement with out-of-state offenses Utah offense of exploitation of a child can be used to enhance aggravated sexual assault to an automatic life sentence because it was substantially similar to Texas child pornography offense North Carolina offense of Taking Indecent Liberties with Children was not substantially similar to the Texas offense of Indecency with a Child B. Probation A defendant on probation has a Fifth Amendment right against self-incrimination, and his probation cannot be revoked on the basis that the defendant invoked his Fifth Amendment right not to discuss past extraneous offenses A trial court cannot order a defendant to self-deport as a condition of probation Trial court properly adjudicated a defendant to regular probation rather than prison for his inability to pay restitution. Robert Bryant received ten years deferred adjudication community supervision for misapplication of trust funds Does a defendant who pleads true to the failure to pay fees in a probation revocation hearing forfeit the claim that he was unable to make those payments? Article eliminated the common-law due-diligence defense and replaced it with a limited affirmative defense Evidence was insufficient to adjudicate guilt for violation of a qualified no contact provision where wife had an arrangement with the defendant to babysit while the wife was at work C. Stacking No need to remand to correct cumulation order where trial court s oral pronouncement provided sufficient indication of the trial court s intent VIII. APPEALS A. Preservation of error DeGarmo is REALLY dead - A defendant does not forfeit his right to complain on appeal about errors during the guilt stage of his trail by admitting his guilt at punishment General defensive argument regarding the inability to pay restitution on probation was sufficient to put trial court on notice that the defendant was objecting to a violation of a former restitution statute Where the first trial ended in a hung jury on punishment, an oral motion for continuance did not preserve error regarding denial of transcript from the guilt phase of the first trial to assist in preparation for the second trial as to punishment only Asking for a mistrial preserves error regarding impermissibly forcing the jury to deliberate a second time on punishment after filling out the wrong verdict form iii

5 5. Defendant preserved error regarding the admission of DRE expert testimony when he moved to suppress his statement that he used hydrocodeine earlier in the day A defendant does not forfeit error through a failure to object to a restitution order in the written judgment when he never had the opportunity to object B. Factual sufficiency review still applies to evaluation of affirmative defenses, and remedy is a new trial C. State can appeal trial court ruling quashing enhancement paragraphs D. Rule 50 is dead A court of appeals loses authority to issue an opinion after a petition for discretionary review is filed IX. INEFFECTIVE ASSISTANCE OF COUNSEL A. Deficient performance Failure to call additional or different experts did not amount to ineffective assistance where expert opinions were similar to opinions offered by experts who testified Defense counsel was ineffective for failing to secure testimony of material witness and requesting a second continuance to secure presence of witness Trial counsel s decision not to request a mistake of fact instruction did not fall below prevailing professional norms where applicability of mistake of fact defense was unsettled Appellate counsel s decision not to challenge the sufficiency of the evidence on appeal did not fall below prevailing professional norms B. Prejudice To establish prejudice where defendant is not made aware of a plea bargain offer or he rejects a plea bargain offer because of bad legal advice, he must show a reasonable probability that he would not have accepted the earlier offer but for counsel s deficient performance Murder defendant who proceeded to a jury trial on the erroneous advice of counsel that he was eligible for probation failed to show a prejudice because being placed on deferred adjudication for murder is virtually impossible Trial counsel s misstatement of the law regarding concurrent sentencing law did not amount to prejudice under Strickland X. HABEAS CORPUS A. Actual innocence and due process Change in expert s opinion based upon new scientific developments justified new trial, but did not support a claim of actual innocence Defendant entitled to habeas corpus relief where results of drug evidence analysis conducted by lab technician were unreliable and evidence had been destroyed B. Padilla v. Kentucky announced a new rule and therefore not retroactive. In 1993 Joel De Los Reyes was admitted to the United States as a permanent legal resident C. Death Penalty - Use of unreliable expert testimony on future dangerousness is not cognizable on a writ of habeas corpus D. Defendant must show harm from an illegal sentence to obtain habeas corpus relief E. Double jeopardy Double jeopardy claim could be raised on subsequent writ because no rational juror could have found the defendant guilty of violating the applicable penal code statute twice without the double jeopardy violation Claim based upon multiple punishments from the same offense can be raised on a post-conviction writ of habeas corpus where no objection was raised a trial if double jeopardy violation is undisputed F. Equitable doctrine of laches incorporates consideration of prejudice to the State ability to defend longstanding convictions; The longer an applicant delays filing an application, the less evidence the State must show to demonstrate prejudice Defendant loses the ability to complain that trial court lacked jurisdiction to adjudicate him by raising it in a subsequent writ Applicant s false statements in his application for writ of habeas corpus constituted an abuse of the writ and warranted review by the prosecutor in the county where applicant signed or filed the inmate declaration iv

6 G. Mandamus District Clerk cannot refuse to file an application for an writ of habeas corpus where the applicant substantially complies with the instructions on the form Court of appeals has jurisdiction to hear an application on a writ of mandamus seeking to order the trial court to rule on his motion for a free record where no Article writ is pending before the Court of Criminal Appeals v