East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Hurst v. State (Unpublished Memo): A woman let one of her teenaged daughter's friends sit on the front "ranch hand" bumper of a pickup truck as they eased along a country road.  The woman got distracted by another kid.  When she looked back to the front of the truck, the girl wasn't there any more.  So the woman jerked the truck to the ditch on the side of the road and stopped .  Then, instead of getting out of the truck and walking around, she pulled forward out of the ditch, over the teenage girl, killing her.

The woman pled guilty to manslaughter and endangering a child.  There was a trial on sentencing.  She got seven years probation on the manslaughter and two years in prison on the child endangerment (the max for that charge).

Double Jeopardy: The woman contends that she was tried twice for the same crime - that the manslaughter and child endangerment charges were based on the same conduct.  the Tyler court denies this argument.  Both charges required something more than the other.  Death is required for manslaughter but not for child endangerment.  The victim's age is central to child endangerment but irrelevant to manslaughter.

Hearsay: The child who had (predictably) distracted the woman was her own six year old son.  The woman complains about the admission of his statement that: "We didn't mean to kill Krissi."  But the State didn't offer that statement to prove the literal truth of what the boy said.  Acceptance of responsibility is a legitimate factor in assessing a sentence, and the State was within its rights to present evidence that the woman would put this weight on her own boy rather than carry it herself.

The bereaved mother's testimony: When the mother of the victim came to the hospital, her anguish was compounded because "they" tried to put her in the same waiting room she had been in five years earlier when her husband died.  There was no evidence that "they" included the defendant, so the Tyler court holds that this testimony would not have impermissibly riled the jury up against the defendant.  Conviction affirmed.

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Blanton v, State (Unpublished Memo): Burglary of a habitation conviction affirmed because Blanton only presented the Reporter's Record from the first day of a three day trial.  That doomed all of his complaints on appeal.  The Tyler court can't conduct legal or factual sufficiency reviews of the evidence without all of the evidence.  Likewise, Blanton complains of the trial court's handling of a question from the jury, but the court reporter's record from that day is missing.  Finally, Blanton's complaint about the jury charge is doomed to failure as well because, even if there is error, the Tyler court would need to review the whole record to see if that error caused harm.

Although not necessary to the decision, the Tyler court does give some guidance on future burglary of a habitation cases.  Blanton wanted an instruction on consent to enter the habitation, apparently on the belief that consent is an affirmative defense.  The Tyler court notes that:

[S]trictly speaking, it is not a defense to a burglary charge that entry into a habitation was consensual. Rather, the State must prove that entry was without the consent of the owner.

Also of note: The Tyler court observes that Blanton's failure to bring forward the whole record is a strategic choice of the sort that the State made in Must Have Been a Boring Video.

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Weir v. State (Unpublished Memo): This is the companion case to Kelly v. State.  Kelly dealt with the wife who put out a "contract" for her husband's murder.  Weir is the teenaged triggerman who was tried as an adult.  Still, since he was 15 at the time of the crime, Weir asserts that his confession should have been suppressed and his conviction overturned because the State didn't comply with the pre-interrogation procedures of Tex. Fam. Code § 51.095(a)(1) or the § 52.02(b)(1) duty to notify his parent.  Weir also contends that there was insufficient proof that his acts were done "for remuneration."  Weir's arguments are rejected.  The conviction is affirmed, as is the sentence of life without possibility of parole.

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In the Interest of TB and JW (Published): This short opinion was most likely published as a word to the wise: If you are appealing the termination of parental rights by the Texas Department of Family and Protective Services (DFPS), you’ve got to file a Tex. Fam. Code § 263.405(b) statement of points on which you intend to appeal. The pro se appellant here did not file that statement, so his appeal was dismissed, and the termination of his parental rights affirmed.

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Sawyer v. State (Unpublished Memo): Sawyer, a student at SFA, was convicted of felony stalking of a fellow SFA student.  Sawyer claimed he had no idea his actions would scare his target.  That opened the door to the testimony of two others he had stalked.  The two other victims rebutted Sawyer's claims.

Incidentally, Sawyer asked the Tyler court to dismiss the charges against him because of an alleged error in the indictment.  The indictment says Sawyer began stalking the victim "on or about" October 21, 2005.  Turns out, the stalking didn't start until October 31, 2005.  Sawyer would have a beef if the State had manipulated the date in the indictment to get around limitations.  But that wasn't the case here.  Sawyer's appeal is dismissed.

On the evidentiary point, compare this to today's Toliver decision.  In Toliver, a defendant charged with crack dealing rendered evidence of non-charged crack deals inadmissible by strategically narrowing his defenses.

 

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Ex parte Hardwick (Unpublished memo): After a 19-year-old Hardwick pled guilty to a DWI, his grandmother fired his attorney and got him a new one.  The new attorney tried to set aside the guilty plea on grounds that the first attorney scared Hardwick into the deal.  The Tyler court lets the plea stand.

The first attorney told Hardwick that the deal on the table was half of what he'd get if he lost at trial, which he almost certainly would.  The deal was for 180 days, suspended to one year of community supervision, and a $1,000 fine.  The term of community supervision was half of the maximum, as was the fine.  And Hardwick did zero jail time, in spite of a statutory mandate that he do at least 72 hours.

But would Hardwick have gotten the maximum at trial?  There was no testimony about the "typical" post-conviction sentence.  So, in the words of the Tyler court, the accuracy of the first attorney's "half of what you'd get at trial" statement was "a question for reasonable disagreement."  On that score, the Tyler court defers to the trial court.  The trial court denied habeas in the first place.  The trial court would know the likely post-conviction punishment range, and could have set the deal aside if the first attorney's assessment was out-of-line.  The trial court let the deal stand.  So does the Tyler court.

Besides, matters of "reasonable disagreement" are a far cry from the cases where the attorney's advice has rendered a plea deal involuntary.  For example, telling a client to agree to a life sentence to avoid the death penalty -- at a time when the death penalty was not available.  Ex parte Burns, 601 S.W.2d 370 (Tex. Crim. App. 1980),

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Kelly v. State (Unpublished Memo): In a murder-for-hire case, a partial confession was admissible because it was made in a non-custodial interrogation.  Also, law enforcement's public statements that the crime was ruthless and premeditated, while certainly the sort that might inflame a potential juror's passions, were not so pervasive as to require a transfer of venue.

Kelly's husband was killed as he lay sleeping.  Word was, Kelly had hired some teenagers to do it.  The sheriff's office asked her to come have a talk.  She came.  She signed a statement that she had overheard some teenagers talking about killing her husband.  But she denied paying them.  She was then read her Miranda warnings and arrested.  The sheriff told the press that Kelly offered to pay to have her husband killed, that the crime was premeditated and ruthlessly carried out, and that Kelly had been trying to have her husband killed for some time.

The Partial Confession: Kelly says the statement is inadmissible -- she signed it while in custody but before Miranda warnings were given.  The statement is damning, it amounts to a partial confession.  It puts her in contact with the trigger-youths.  And, regardless of what Kelly says took place during that contact, the actions that followed told the real story to the jury.

Under Dowthitt, the objective test for whether a person is in custody includes the following factors: (1) whether the suspect is physically deprived of her freedom of action in any significant way, (2) whether a law enforcement officer tells the suspect that she cannot leave, (3) whether law enforcement officers create a situation that would lead a reasonable person to believe that her freedom of movement has been significantly restricted, and (4) whether there is probable cause to arrest, that is “manifested” to the suspect, and law enforcement officers do not tell the suspect that she is free to leave.

The statement was given in the Nacogdoches County Sheriff's office.  Early in the interrogation, Kelly asked to leave, saying she needed to tend to her husband's funeral arrangements.  The deputy responded that the questions would only take a minute.  So law enforcement didn't physically restrain her, nor did they flat-out tell her she couldn't leave.  The issue is whether "this will only take a minute" would make a reasonable person believe that their freedom of movement was restricted. The Tyler court says: "No."  A reasonable person would still believe they were free to go.

On the fourth prong, the Tyler court held that there was nothing that "manifested" probable cause prior to the Miranda warnings.  It's hard to tell what that holding really means -- the opinion doesn't say whether the written statement (or the verbal assertion on which it was based) was made before or after the Miranda warnings.

Venue: Basically, the Tyler court says Sheriff Kerss would have been better off without saying what he did.  However, he didn't repeat it.  His statements were only mentioned a couple of times in what was a deluge of media coverage.  So, Sheriff Kerss didn't create the sort of  pervasive, prejudicial, and inflammatory coverage that would have deprived Kelly of an impartial jury.

New Trial: Kelly also sought a new trial on the basis of juror misconduct.  She offered affidavits concerning an alleged lunch-break conversation about the case between juror a juror and some of the juror's friends.  But, in live testimony, one of the affiants couldn't recall particulars, and the juror in question (and the friends) all denied talking about the case.  The motion for new trial was denied by the trial court, and that decision was affirmed by the Tyler court.

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