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

In the best interest and protection of B.L. (Published Memo): Another case where a defendant declared incompetent to stand trial refuses the medication that could render him competent.  Here, the doctor for the State filed an application to force B.L. to take his meds.  But the Tyler court has already held that a bare application isn't evidence.  So B.L. wins this appeal.

This is the same result, and the same reasoning, of the earlier Tyler case of In re E.G.  As noted in that post, the Rusk State Hospital is in the jurisdiction of the Tyler court.  As you might imagine, there are constitutional issues raised by forcing someone to take medications.  If I had to place bets on what sort of Tyler case might eventually end up in the Supreme Court of the United States, this is where I'd go "all in."

• Email This
• Print
• Comments
• Trackbacks

DeGrate v. Executive Imprints (Published) No evidence summary judgment affirmed in negligence and design defect case over exploding candle.  The precedential value of this case is probably limited because the Tyler court questions the briefing presented by the DeGrates.

Mrs. DeGrate got a new scented candle marketed by Executive Imprints.  After letting it burn for an hour or so, she went to blow it out.  The flame just got bigger.  She dropped the candle.  The hot wax splattered everywhere, including on her.  She and her husband bring many claims including negligence and strict liability.

Executive Imprints filed a no evidence motion for summary judgment.  The DeGrates responded with the report and affidavit of a Ph.D chemist.  The chemist believes that the candle had the wrong sort of wax, the wax pooled up too much, and the design of the candle allowed the wax to be heated to the flash point.

The Tyler court finds fault with the expert.  He doesn't back up his opinions.  So they're not evidence.

The Tyler court also finds fault with the briefing of the DeGrates.  In a footnote, the Tyler court says that the entirety of the DeGrate's briefing on the product liability claim was:

Under the doctrine of strict product liability, Appellants showed through the tendered summary judgment evidence that the candle was of a defective design since it was without a reasonable alternative design, as a fundamental element, marketed, manufactured and was unsafe for its purposes at the time it left control of Appellee and was sold posing an unreasonable risk factor for consumers.

So, if anyone cites this case against you, point out the footnote.

• Email This
• Print
• Comments
• Trackbacks

Morales v. Dougherty and Mabe, dba Top Gun Trucking (Published Memo): Here's one for the personal injury practitioners.  Truck wreck case upholding the submission of a sudden emergency instruction and the admission of testimony about the plaintiff's insurance coverage.

Here's the crash scenario, with letters representing vehicles.

A    B    C    Hill    D

The plaintiff, A, was waiting to make a left turn on a rural highway.  B, and then C came up behind her.  D then topped the hill.  D couldn't stop in time, so he went off road on the right around C.  But D then lost control and veered back onto the road, into A.  C, another trucker, testified that, in his opinion, D did all that could be done and that A was dawdling.

That fact pattern supports a sudden emergency instruction for D.  Even without D having plead for such an instruction.  Sudden emergency is not an affirmative defense, so D could simply request the instruction during the charge conference.

The Tyler court holds that the plaintiff opened the door to testimony about her insurance coverage.  She asked for thousands of dollars for medical procedures.  She said that she had not gotten the procedures because she couldn't pay for them.  But she had insurance.  The trial court and the Tyler court say that the plaintiff's plea of poverty opened the door to her insurance coverage.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

Christopher v. State (Unpublished Memo): What county has venue when an officer feels something as he pats a suspect down, but doesn't conduct a strip search until he takes the suspect to a jail in a nearby county?  Answer: the county with the jail.

Christopher was pulled over 937 yards on the Smith side of the Smith/Cherokee county line.  He was pulled over because his car didn't have a front license plate.  To make matters worse, Christopher didn't have a driver's license, and his passenger had an open alcoholic beverage.  The DPS Trooper patted them down for weapons.  The Trooper didn't feel weapons, but did feel something he figured was contraband.  The Trooper then took the two to the Cherokee County Jail. A strip search of Christopher revealed several "Halloween bags" of cocaine in a place that it taint polite to mention.

Christopher appeals his Cherokee County convictions on grounds that Smith County had jurisdiction.  The statute on county-line crimes provides that: "An offense committed on the boundaries of two or more counties, or within four hundred yards thereof, may be prosecuted and punished in any one of such counties. . . ." Tex. Code Crime. PRC. Ann. art. 13.04 (Vernon 2005).  The Trooper had mistakenly believed that he was within that zone, and that's why he took Christopher to Cherokee County.  But that doesn't mean Christopher wins the venue issue.

The key question is whether it's fair to say that Christopher possessed cocaine in Cherokee County, or the Trooper manufactured venue by taking him there.  First off, the Trooper had no obligation to conduct a strip search in the field.  Second off, Christopher's back seat ride with the Trooper qualifies, in the words of the Tyler court as:

"voluntary under section 6.01(a) of the penal code in that it was not accidental. See Alford v. State, 866 S.W.2d 619, 623 (Tex. Crime. App. 1993); Brown v. State, 89 S.W.3d 630, 632-33 (Tex. Crime. App. 2002).

Finally, it's worth mentioning that Christopher resided in Cherokee County.  The venue challenge is denied conviction affirmed. 

By the way, Christopher's challenge to the chain-of-custody of the cocaine goes nowhere.  If you want to accuse the cops of misplacing something, try something a little less conspicuous than Halloween bags.

• Email This
• Print
• Comments
• Trackbacks

Hohn v. Hohn (Published): Divorce dispute over what counts as the present value of the husband's interest in a partnership, and what counts as the husband's future earnings.  As Robin Williams once quipped: "Ah, yes, divorce ... from the Latin, meaning to rip out a man's genitals through his wallet."

Lest anyone accuse me of coarsening the public discourse with that observation, my defense is that I read it in the Economist.

As the Economist notes, some are expecting a rush to the divorce courts as the spouses of high earners try to get their divorce based on the earnings history of their spouses, before the reality of the sinking markets shows up in the form of paltry Christmas bonuses, etc.  For the Gotham big-shot attorneys representing the titans of Wall Street, this case out of little old Tyler might prove helpful.

The husband in this case is a partner at one of the firms that represented the State of Texas in the tobacco litigation.  The attorney and the firm as a whole are very successful.  They've got another big case in the works.  And that's what the fight is over.  The wife and her expert consider the huge fees that the firm might earn as good as in the bank, making the husband's current stake in the firm (which is community property) all-the-more valuable.  The Tyler court disagrees. 

Before getting to the ultimate conclusion, the Tyler court notes that the firm's partnership agreement provisions about what the husband would get if he were to withdraw from the firm do not control the court's valuation of his present interest in the firm.  Also, the trial court did not, in general, abuse its discretion in allowing the wife's expert to testify.  The expert had testified to the value of interests in professional firms before (including a prior divorce involving the same firm).  His choice of the income method of valuation over an asset-based method was a choice favored by other experts.

But the wife's expert included potential fees the firm might earn on the cases "in the works" in calculating the husband's current stake.  In the words of the Tyler court: "Revenue from these cases is no more than an expectancy interest and any money to be received constitutes future earnings to which [the wife] is not entitled."  The case is remanded for a re-division of the marital estate.

• Email This
• Print
• Comments
• Trackbacks

Hall v. State (Unpublished Memo): DWI conviction challenged on grounds that the officer who administered the horizontal gaze nystagmus test to Hall wasn't an expert in its use.  Under Court of Criminal Appeals authority, the reliability of the HGN test is presumed, leaving the training of the officer who administered the test as the only question.  Emerson v. State, 880 S.W.2d 759, 768-69 (Tex. Crim. App. 1994).  The Tyler court holds that this officer's "less than scholarly awareness of the recent literature on the subject and his unfamiliarity with any of apparently forty-seven types of nystagmus [i.e, non-DWI causes] goes to the weight of his testimony, not to its admissibility."

It didn't help Hall that he denied alcohol use, then admitted it, had alcohol on his breath, was unable to hold his head still, and was generally unsteady on his feet.

Although Mr. Hall fought the law and the law won, expect defense counsel to continue to mount challenges to the HGN.  Why?  Because here's what the prosecutors have to say about the test:

Nothing is worse for police and prosecutors than impaired drivers who have already been through the system three or four times.These hardcore offenders have learned not to make incriminating statements or take blood alcohol tests. They even practice the standardized field sobriety tests (SFSTs) in bars before they drive home.  Their heightened tolerance to alcohol and repetition of the tests often gives them an ability to display only a small number of impairment clues, but there is one SFST that cannot be practiced or physically controlled—the Horizontal Gaze Nystagmus (HGN) Test.

That is good news for police and prosecutors.  The HGN test is the most accurate of all the tests, the best test for apprehending drivers between .08% and .12%, and the most researched of all the SFSTs. Experience has shown that multiple offenders may be quick to refuse the walk & turn or the one-leg stand tests, but for whatever reasons, many will submit to the HGN test.

The quote is from this 2003 publication of the American Prosecutor's Research Institute.

• Email This
• Print
• Comments (1)
• Trackbacks

Samet v. State (Unpublished Memo): A third grader testifies to a sexual assault that occurred when he was just about four years old.  The defense strategy: attack the kid.  Strategy backfires.  Opens the door to a photo of the grown male defendant wearing a white dress with pink hearts.  Also opens the door to a letter the defendant had written to his own son (a teenager at the time) asking the son to come to the father's house at an appointed hour, where the father would be wearing a dress and ready for sexual acts.  All of this is admissible because the victim remembers the defendant wearing a pink and white dress during the commission of the crime.

Under Tex. R. Evid. 403, there was also no error in admitting testimony that the defendant had, while changing a diaper when the defendant was one year old, fondled the victim's testicles.  That's too remote from what happened when the boy was almost four.  It's not very probative.  On the other hand, this evidence simply wasn't harmful to the defendant, in the light -- make that darkness -- of everything else.  So the trial court didn't abuse its discretion in admitting this testimony.

• Email This
• Print
• Comments
• Trackbacks

Barnes v. State (Unpublished Memo): Victim of domestic violence was wishy-washy, but his testimony, together with that of law enforcement, supports a conviction for aggravated assault with a deadly weapon. By wishy-washy, I mean that the victim's initial complaints that his girlfriend stabbed him dissolved under the power of "love" into an affidavit that he held her hands and forced her to stab him, but resolidified on the stand to a declaration that she had, in fact stabbed him.  The deputy's testimony strengthened the State's case with: 1. a contemporaneous account of the victim's first version, and 2. Barnes' statement at the scene that she wanted to kill the victim because he was having an affair.

There was another reason she gave for wanting to kill the victim, but the deputy didn't testify to that one.  Barnes wanted to get into evidence an assertion that the victim had molested her daughter.  All of the testimony on that point was admittedly hearsay.  But Barnes jumped straight into the relevancy/Tex. R. Evid. 403 issues.  The Tyler court doesn't jump with her.  Regardless of the arguments for relevance, the evidence is still hearsay, and still inadmissible.

Barnes got three years, probated to ten.

• Email This
• Print
• Comments
• Trackbacks

The "special rule of privilege in criminal cases" found in Tex. R. Evid. 503(b)(2) has a new lease on life.  As discussed in a previous post, it was slated to be erased from the book on September 1 of this year.  But public comment saved the provision.  According to a June 23 article from Texas Lawyer,

[T]he state's highest criminal court unanimously decided June 16 to defer the proposed deletion of Texas Rule of Evidence 503(b)(2) at least six months to allow ample opportunity for all interested parties to draft a proposed substitute for that rule or to draft a rule or statute to govern the attorney work-product doctrine.

As someone who offered comments on the proposed change, I am very grateful and encouraged that the Court of Criminal Appeals would respond this way to public comment.  Check out Grits for Breakfast for a summary of this issue.  Kudos to those listed on Grits, especially to Robert Guest, who first sounded the alarm in the blogosphere, and to Judge Cochran, whose blogging on the subject via Grits was a landmark event.

• Email This
• Print
• Comments
• Trackbacks

Defense counsel for the third defendant in a child sex ring case in Tyler has filed a motion to transfer venue.  The first two defendants had been convicted in highly-publicized trials.  So nothing unusual yet in the motion to transfer venue.  In the motion, defense counsel alleges that news coverage has been biased against his client because the assistant DA set to try the case has been in relationships with local print and television reporters. Ah, there's the unusual.

Tex. R. Evid. 614, aka "the Rule" comes into play because all of the reporters in town know about the relationships and are potential witnesses.  Defense counsel invokes "the Rule" and asks that all of these reporters be excluded from the hearing on the motion to transfer venue. Which would mean that no one could cover the story.  Which is why the trial judge (the former Smith County DA) lifts the Rule as to the reporters, regardless of any knowledge they have of the assistant DA's personal relationships.

Print stories here and here.  TV coverage here.

As you might imagine, the Smith County legal community is debating the wisdom of defense counsel's approach.  I'll save my comments, if any, until I know more than what I read in the newspaper.

• Email This
• Print
• Comments
• Trackbacks

Time for another kudos to Scott Henson at his Grits for Breakfast blog.  Texas Court of Criminal Appeals Judge Cathy Cochran sought out Grits to weigh in on the deletion of the "special rule of privilege in criminal cases" currently found in Rule 503(b)(2) of the Texas Rules of Evidence.  It gives a criminal defendant the right to prevent his lawyer or his lawyer's assistant "from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship." Before going further, it should be said that Judge Cochran made it a point to note that she was posting "not as a judge on the Court of Criminal Appeals, but as an attorney who has studied and written about our rules of evidence for 25 years."  Duly noted, your honor.

Pursuant to the CCA's March 4, 2008 order, the deletion will take effect September 1, 2008, unless public comments made on or before June 30th persuade the CCA to take a different approach. 

The pending change has stirred up a bit of controversy.  

According to Judge Cochran's post, UT's Professor Stephen Goode has called the special rule of privilege "a 'deceptive little sentence' which is confusing, misleading, and does not have any known independent meaning."  In Judge Cochran's own words, "the deletion was intended to eliminate a vestigial tail that had no wag to it."  Very generally speaking, they take the position that the special rule is no longer meaningful because there haven't been any recent appellate cases relying on it. 

Richard Anderson, the Federal Public Defender for the Northern District of Texas wrote this letter asking that the provision be retained.  He turns the lack of appellate cases argument on its head. In his view, there aren't any cases because the current rule is so clear -- when "[f]aced with a black letter admonition that clearly covers a privilege that encompasses both privileged communications and work product, the reasonable prosecutor pursues other avenues of investigation other than attempting to penetrate the privilege." The Texas Criminal Defense Lawyer's Association also favors keeping the provision.

Judge Cochran's rebuttal is that any concerns about an erosion of the work product privilege can be addressed by a new work product rule that would apply to both the defense and the prosecution.

My view: I'm for streamlined writing and efficient machines, but once words are put into operation as law or rule, fine tuning those operations on the fly is no longer a matter of clean blueprint draftsmanship.  Instead, it's more akin to working under the hood of a NASCAR vehicle as it circles the track.  With that in mind: 1. If it ain't broke, don't fix it.  2. What's the rush?  After all, another side of the "no recent cases" argument is that there are no troubled waters to be stilled.  Which leads to ... 3. Unintended consequences/Newton's Third Law/Strategic Uncertainty.  If you set about to destroy something that you say really isn't there but others say is, you are destroying the equilibrium surrounding the uncertainty and creating the need for a new equilibrium to account for a new and now demonstrably certain vacuum.  Judge Cochran's rebuttal acknowledges that a new equilibrium will need to be created around the vacuum.  But at the moment, nobody can say what that equilibrium will be.  So, 4. let's not jump out of the frying pan into the fire.  Unless and until there is agreement that the post-vacuum equilibrium will be better than what we've got now, maybe the best thing to do would be to postpone the deletion of the "rule of special privilege."  Doing anything else has the feel of taking away the defense bar's chips before everyone sits down at the table.

• Email This
• Print
• Comments
• Trackbacks

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.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Cullum v. State (Unpublished Memo): DWI conviction appealed on grounds that the officer had no reason to make a stop in the first place.  In a lack of situational awareness, Cullum peeled out of a Longview intersection at 11:30 p.m., squealing his tires for three seconds.  The officer (whose testimony was unrefuted) was back in traffic at the intersection.  He didn't have a clear look at the car, but he could hear it just fine.  The officer believed that the Ford Mustang was fast out of the gate on purpose.  Apparently, there's a law against that.  "Improper start from a parked position." Tex. Trans. Code Section 545.402.  The officer tracked Cullum down.  Once the officer had Cullum pulled over, he discovered that Cullum was DWI.  The Tyler court affirmed.  They probably would have affirmed even if Cullum had been driving a tan 1999 Camry.  OK, no they wouldn't have.  I used to drive one, Ed-style.  You can't squeal the tires.

• Email This
• Print
• Comments
• Trackbacks

Wesson v. State (Unpublished Opinion): Bribery conviction affirmed. Wesson, the City of Palestine’s dual capacity tax assessor-collector/city water utility supervisor got $1,000 from a citizen in exchange for issuing him a $7,183.71 refund for “billing errors” on his water bill. Whether or not there was a billing error, the citizen shouldn’t have gotten the refund money because he owed $14,465.86 in back taxes to the assessor-collector’s office.

Jury argument: Wesson produced an old water bill on the eve of trial (it had to do with whether she had used part of the $1,000 to pay her own water bill). The prosecutor responded by asking the jury to consider why Wesson hadn’t produced the water bill sooner, and why she hadn’t produced any other documents. Wesson said the prosecutor’s argument was an end-around her Fifth Amendment privilege against self-incrimination.

It wasn’t. Granted, prosecutors can’t make a plea for the jury to consider a defendant’s failure to testify. But when documents are added to the mix, things aren’t as cut-and-dried. The court looks at the argument as a whole to see if the prosecutor “manifestly intended” such a plea, or (prosecutor’s intent aside) the jury would “necessarily and naturally” hear such a plea in the prosecutor’s words.

Under that standard, it appears that a tie goes to the prosecution – a “mixed” statement that could refer to the failure to testify or to the failure to produce documents does not “necessarily” refer to the failure to testify. That’s a bit of editorializing on my part, though. There was no mixed statement here. The Tyler court found that there was nothing in what the prosecution said that went to the failure to testify. The prosecutor’s statements were squarely directed to the documents. Hence there was no violation of the privilege against self incrimination.

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks

Purvis v. State (Unpublished Memo): Purvis was convicted of possessing 21 rocks of crack cocaine with intent to distribute. Purvis says he didn’t have the cocaine on him at the time of his arrest, and he wasn’t seen trying to sell the rocks, so the evidence doesn’t support either possession or intent to distribute. Purvis also says that the bench where the drugs were found was private, and shouldn’t have been searched without a warrant. Finally, Purvis complains that the State lost a videotape that showed part of the scene. The Tyler court rejects those arguments and affirms the conviction. Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

PPC Transport v. Metcalf (Published): It's 2:00 a.m..  A semi trying to find a Pilgrim's Pride plant in Shelby County misses the turnoff by a little, backs up, and waits to make a left turn.  The driver didn't know it, but when he backed up, he put part of his trailer into the other lane.  Sure enough, a pickup is coming.  The driver of the pickup sees the tractor, but not the trailer.  Pickup hits the trailer.  Pickup driver and his friends were injured, and sue.

The pickup driver and his friends had been drinking for a while before the wreck.  The driver himself had 8-10 beers.  He was speeding at the time of the wreck.

The transportation company says that the pickup driver could have swerved around the trailer had he been sober and driving within the speed limit.

The trial court excluded the drinking and speeding on Tex. R. Evid. 403 grounds.  The jury put all the responsibility on the transportation company.

The Tyler court reversed and remanded.  Their 403 "probative value versus unfair prejudice" analysis accorded the drinking high probative value and low unfair prejudice.  It would be interesting to know how the court would treat a DWI conviction (apparently, there wasn't one in this case).  In any event, the opinion has some good quotes if you need a case on the known dangers of drinking and driving.

There was also an interesting twist on the offer of proof ...

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Mayfield v. State (Unublished Memo): DWI case explains the distinction between two varieties of warrantless searches: exigent circumstances and community caretaker.

A concerned citizen observed Mayfield driving erratically through Tyler– swerving, running red lights, etc. The concerned citizen followed Mayfield to Mayfield’s home. The whole time the citizen was on the phone with Tyler PD, giving the plate number of Mayfield’s vehicle, a description of Mayfield’s vehicle, and a play-by-play of Mayfield’s actions. As Tyler PD was on its way, Mayfield came back out of his house and moved his vehicle from his driveway (where he’d first parked) into the garage. The garage door was open when the officer arrived. The officer could see Mayfield slumped over the wheel with one leg hanging out the open driver’s door. Without getting a warrant, the officer entered Mayfield’s garage and roused him. It was obvious that Mayfield was drunk, and the officer arrested him. Mayfield contends the arrest resulted from a warrantless search.

Warrantless searches are presumed invalid, but there are exceptions.

One category of exceptions is "exigent circumstances." There must be probable cause, plus a good reason why there wasn’t time to actually get a warrant.

Another category of exceptions is "community caretaker." Probable cause isn’t needed for community caretaker searches. The community caretaker doctrine allows the use of evidence discovered when officers are performing non-criminal duties, such as rendering emergency aid to people in distress. If the officer’s motivation was primarily criminal investigation, the community caretaker exception doesn’t apply.

In this case, the community caretaker exception doesn’t apply because of the officer’s criminal investigation motive.

Even so, the search is valid because of the exigent circumstances exception. The probable cause was supplied by the concerned citizen’s detailed, first-hand account of events. That, and the fact that a guy slumped over the wheel could be passed-out drunk. What’s more, the sight of a guy slumped over the wheel in his garage counts on the "reason why there wasn't time to get a warrant" side of the ledger, too. Confronted with that situation, an officer has good reason not to stand around waiting for a warrant. Though the guy’s probably drunk, the officer can’t rule out heart attack or stroke until he goes into the garage. And if the guy behind the wheel is just drunk, there’s a chance he’d come to and take off back onto the public streets if the officer waited around for a warrant.  So the search was valid, and the conviction was affirmed.

If, after reading this, you're in the mood for some Asleep at the Wheel music, click here.

• Email This
• Print
• Comments
• Trackbacks

Middleton v. State (Unpublished Memo): On the evening of Easter Sunday, 2006, Middleton fired a great number of rounds with his AK-47. He didn’t kill the people he was shooting at. Instead, the rounds carried some distance, and one of his bullets killed an innocent bystander, Dorcas Peroutka,

The sheriff didn't need a warrant to get the murder weapon -- he had consent..  Middleton was 18 years old and living with his father.  Middleton thought his bedroom was his, and his alone.  So he stashed the AK-47 there.  But his father testified that he could go into that room as he pleased, without asking the son's permission.  Consequently, the father had the authority to let the sheriff search Middleton's bedroom.

Middleton also asserted that his father consented to the search out of fear of the sheriff.  In other words, it was coercion, not consent.  But the father testified that he had known the sheriff for years, was on a first name basis with the sheriff, and felt comfortable around the sheriff.  No coercion there.

No charge error: Middleton had the option to request that the jury consider a lesser included offense. As a matter of strategy, he put the jury to a choice of murder or acquittal. The jury chose murder. The omission of some statutorily mandated instructions can be reviewed under the “egregious error” standard even when there was no request for the instruction at trial. The defendant here asked for review under that standard. But lesser included offenses are not statutorily mandated. This is not an “egregious error” case. This is plain old waiver.

• Email This
• Print
• Comments
• Trackbacks

Green v. State (Unpublished Memo): In aggravated sexual assault of a child case, the defendant put on evidence that he was a virtuous family man and would never do and had never done anything of the sort. That opened the door for his step-grandchildren to testify that he did something of the sort to them. The defendant was an official of the Athens LDS stake. He was convicted of repeatedly molesting a child in his congregation when the child was 7 to 10 years old.

• Email This
• Print
• Comments
• Trackbacks

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.

 

• Email This
• Print
• Comments
• Trackbacks

Toliver v. State (Unpublished Memo): First degree felony crack-dealing conviction resulting in life sentence is affirmed because inadmissible prior crack deals either weren’t objected to, or objections only went to one type of evidence (such as video) when the deal shown on the video was the subject of live testimony. 

Toliver was a crack dealer in Tyler. Wallace was a crack addict turned informant for Tyler PD Officer Tekell. Wallace purchased crack from Toliver three times. Once in a hotel, then twice in Toliver’s home.

The video of the last transaction didn’t show drugs changing hands, but the activities shown on the video certainly didn’t rule out a drug transaction. In fact, both Wallace and Officer Tekell testified that Wallace went in to Toliver’s house with nothing but $175 in his pocket (and, of course, a wire), and came back out without the money, but with more than 4 grams of crack.

Toliver was tried for the final transaction, presumably because it was the only one that exceeded 4 grams – a first degree felony. Evidence of all three transactions came in, as well as evidence from transactions not involving Wallace.

Toliver objected based on Tex. R. Evid. 404(b) and 403.  Toliver didn’t contest motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In short, Toliver was where the State said he was, and he was the sort of fellow who might well trade in drugs.

Toliver’s only defense was that he didn’t sell these drugs at this particular time to Wallace.  Because Toliver narrowed his defenses, he also narrowed (in fact, removed) the State’s basis for putting on evidence of the prior transactions. They’re extraneous and inadmissible.

Even so, Toliver’s appeal went nowhere. For the most part, Toliver’s objections were waived because they were made after the evidence was already admitted. When he did make timely objections, the error he objected to was harmless because the objection went to just one form of evidence about a transaction (e.g., a videotape) when the same transaction was admitted in another form (e.g., live testimony).

The evidence on the “record as a whole” was legally and factually sufficient to convict Toliver. That being said, the Tyler court’s discussion of the record does not go into the extraneous offenses. Instead, the discussion is limited to the transaction in the indictment. The jury was entitled to believe Wallace and Officer Tekell about what happened that day, and (without stating as much) the Tyler court leaves the clear impression that their testimony alone was enough to support the conviction.

• Email This
• Print
• Comments
• Trackbacks

Ingram v. State (Unpublished Memo): Motion to suppress denied at trial, denial affirmed on appeal. A multi-step traffic stop eventually leads to discovery of cocaine in appellant’s shoe.

Troopers stop vehicle on I-20 in Smith County for speeding. Occupants “’extremely, visibly’ nervous.” They give slightly different accounts of whereabouts before stop.

One of them blurts out: “There ain’t any of that hanky-panky stuff going on around here.” Criminal record check reveals passenger had long rap sheet. Passenger fidgeting in vehicle, drops out of sight. Troopers frisk occupants for weapons. Passenger has large roll of bills in his pants. Troopers ask for, and get, permission to search vehicle. Notice spare tire is missing, consistent with that area being used in the past for smuggling. Also hear rattle in rear door of sedan – possibility of hidden compartment.

About 26 minutes have gone by. Troopers ask for, and receive, permission to call canine unit (will take 10-15 minutes more). Occupants standing next to patrol car at this point. They can’t keep still. Passenger’s left shoe isn’t on all the way. Troopers inquire about it. Passenger takes of right shoe. Troopers insists on seeing left shoe. Passenger throws left shoe to the driver and lunges at one of the Troopers.

Occupants versus Troopers in hand-to-hand combat. Outcome: Troopers, first round TKO.

Troopers pick up shoe and discover two bags of cocaine. Passenger appeals conviction on grounds that there wasn’t probable cause to search his shoe, and on grounds that the Troopers had unreasonably and unconstitutionally dragged out the stop. Trial court affirmed on both issues.

• Email This
• Print
• Comments
• Trackbacks

Connor v. State (Unpublished Memo): If there’s one thing worse than drunk dialing, it’s drunk dialing from jail as the conversation is being recorded. It’s just not a good time to threaten your cheating wife.

Nothing remarkable about the case except the facts. Conner objects to the recording as inadmissible and the officer’s testimony as opinion and hearsay. 

The officer's testimony was hearsay.  He didn't hear the conversation live.  A jailer did.  The jailer called the officer to come listen to the recording.  The jailer didn't testify.  The officer did -- based on what he'd heard on the tape.  Connor objected to some of the officer's hearsay, but also let some of it come in without objection.

The officer also offered an inadmissible opinion.  The officer testified that Connor's wife must have been "annoyed" by the call.

"Annoyed" didn't begin to cover it for the wife.  She testified that Connor told her that she "needed to be out of town prior to him being released from jail . . . and he told me that we would talk but it would be with his fist.”  She (sensibly) took that as a threat of serious bodily injury.  That covers anything the officer said and then some.

Unanswered question:  Are routinely recorded jailhouse calls admissible? The Tyler court didn't rule on the admissibility of the tape.  Instead, the Tyler court assumed, "without deciding" that playing the tape for the jury was error.  Error that was made harmless by, among other things, the wife's testimony.

• Email This
• Print
• Comments
• Trackbacks

Arroyo v. State (Published): Two key points in this murder case, and an instance of a defendant curing the State's erroneous questions with his own overly broad efforts to respond.

Citizenship status of witness to a murder is irrelevant: The State’s key witness was a single mother illegal alien. Counsel for Arroyo wanted to cross-examine the witness on her citizenship status.  The State objected and the trial court sustained the objection.  Arroyo’s counsel made a bill, asking the witness if she felt pressured by the State or had been offered benefits by the State. She denied both. Absent testimony to overcome her denials, there is no presumption of pressure or benefits.  In the words of the Tyler court: "We do not understand the city police or the district attorney to play a role in the enforcement of immigration laws, and there is nothing in the record to suggest that the witness was vulnerable to the police because of her immigration status." Consequently, the citizenship status of the witness is irrelevant.

No intrinsic harm from communications behind counsel’s back: Though Arroyo was represented by counsel, the State conveyed a plea offer to him through his sister. In extraordinary circumstances, dismissal of the indictment is a remedy available for the State’s violation of the Sixth Amendment right to counsel. But neither Arroyo nor his sister responded to the State, so there was no proof that the State got information from this approach. Of course, Arroyo might reasonably wonder why the State is going around his counsel, and the Court might wonder what Arroyo wondered. But there was no testimony from Arroyo that the State’s backchannel offer soured his relationship with counsel. The trial court found no harm had come from the “probable” Sixth Amendment violation. The Tyler court affirmed.

Attempts to repair the harm actually worsened it: The State called Arroyo's father as a witness. The father tried to fudge things to protect his son. The State tried to undermine the father's credibility with the usual line of “you’d do anything to protect your kid” questions. But the State brought something else to the table this time: Arroyo's sister was wanted for murder, and the father had refused to volunteer her whereabouts. Under a Tex. R. Evid. 403 analysis, the prejudicial effect of bringing up the sister’s acts far outweighed the less-than-startling testimony that the father wouldn’t give her up. It was error for the trial court to permit questioning on this subject.

But the State had phrased its questions in terms of the sister being “wanted” for murder. In fact, she had been convicted. Arroyo's counsel cleared that point up during his examination of Arroyo's father. The Tyler court viewed this as a strategic choice by Arroyo's counsel to differentiate the guilty sister from the (turns out not) innocent Arroyo. This choice went beyond addressing the State’s erroneous questions, and thus constituted a decision by Arroyo to inject his sister's conviction into his trial, making the State’s questions about her being "wanted" harmless error.

• Email This
• Print
• Comments
• Trackbacks

Gibbs v. State (Unpublished Memo): Silence and "no objection" are different things. 

Gibbs filed a motion to suppress some drug-related evidence prior to trial.  Having obtained a ruling on the motion to suppress, error was preserved -- there was no need to object to the evidence again at trial.

At trial, the State offered a slate of exhibits, including the evidence addressed by the motion to suppress.

Counsel for Gibbs said: "No objection."

And with that, counsel waived the issue.  All of the work on the motion to suppress was for nothing.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks (1)