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."

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Morris v. State (Unpublished Memo): Intoxication manslaughter conviction affirmed.  Morris and his passenger left the El Greco club in Kilgore at 12:30 a.m.  They headed towards Tyler on Highway 31.  For those not familiar with East Texas, that's a notorious liquor run road (Tyler dry, Kilgore wet).  Not the best place to be after dark, as this case shows.  Morris swerved into oncoming traffic.  His passenger was killed in the wreck.

Morris complais that the evidene wasn't legally or factually sufficient to convict him (see opinion for discussions of these standards of review).  But the investigating officer testified to skid marks on the scene that showed Morris was in the wrong lane.  The officer also smelled alcohol on Morris.  What's more, Morris complained of "heart pain" and was taken to the hospital.  His blood was drawn, tested, and came back at twice the legal limit.

Conviction affirmed.

Morris also tried to say that his sentence was unconstitutionally cruel and unusual.  Since he didn't make that complaint to the trial court, the Tyler court won't hear it on appeal.

 

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Morris v. State (Unpublished Memo): Morris got deferred adjudication community supervision on a theft charge.  Roughly a year and a half into it, Morris blew off reporting to his supervision officer, paying restitution installments, and doing monthly community service hours.  The State asked the trial court to proceed to final adjudication and sentence Morris to prison.  The trial court did.  Three years.

Morris appeals.  This is new, as appeals from deferred adjudication have only been allowed since 2007.  The State filed its motion to proceed to final adjudication just eleven days after the change in the law took effect. 

But the appeal is on the same terms as a revocation of probation.  Morris must show that the trial court's judgment is void.  Quoting the Court of Criminal Appeals, the Tyler court notes that:

[A] judgment is void only in very rare situations-usually due to a lack of jurisdiction . . . . A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived . . . . While we hesitate to call this an exclusive list, it is very nearly so.

The next bad news for Morris is that a guilty plea counts as "some evidence" to support the trial court's judgment.  Having pled "guilty" to the underlying theft charge, and "true" to the State's grounds for revoking the deferred adjudication, Morris is out of luck on appeal.

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Webb v. State (Unpublished Memo): Webb complains that the trial court didn't even consider her application for probation of a felony marijuana possession charge.  If Webb's charge is true, the trial judge deprived her of her right to due process under the Constitutions of the United States and the State of Texas.

For starters, Webb waived this complaint by not presenting it to the trial court.  But the Tyler court doesn't leave it at that.  The Tyler court looks at the merits of Webb's charge, and finds it without merit.  Unfortunately for Webb, the trial judge had read her application for probation. 

There was something in the application that galled the judge.  Webb had been convicted at a bench trial.  But her application said she was a good candidate for probation because "I never did anything. I've never been on nothing."  Having read that, the trial judge declared:

Yeah[,] you did something, it's not like you did nothing, you violated the law of this state. ... She comes and violates the law and thinks this judge is going to reward it? It ain't going to be. No. Probation is not appropriate for this defendant under these circumstances.

When Webb started crying, the judge went on:

Late for tears. I could shed some tears too, tears for those who were going to get that marijuana transferred into this county. Yeah, I get tears.

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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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Bailey v. State (Unpublished Memo): Evocative, provocative, loaded with death.  A reproach, but not a relic.  Yet sometimes, a source of justice.  Bailey is an African-American.  There were no African-Americans on his jury.  The Tyler court affirms his conviction of aggravated assault with a deadly weapon.

Bailey appeals on Batson grounds.  In 1986 the Supreme Court of the United States shifted the burden in jury selection.  Before Batson, defendants who felt that the prosecutor struck a prospective juror over race had to come up with proof that the prosecutor had an improper motive.  A daunting task as long as the prosecutor kept tight lips on the matter.  But the Batson decision changed that.  All a defendant need do is allege that a prospective juror was excluded based on race, and the burden then falls on the prosecutor to come forward with a race-neutral basis for the exclusion.  The move-counter-move doesn't end there.  The defendant can offer proof that the prosecutor's supposed legitimate basis is nothing but a pretext.

The Tyler court finds that the prosecutor's reasons were not a pretext.  The prosecutor used four of his ten strikes on four African Americans.  When Bailey lodged a Batson challenge, the prosecutor said that he struck the four because they were young, favored rehabilitation over punishment, or knew the defense attorney.  Bailey then pointed out that whites meeting those criteria had not been struck.  The prosecutor testified those prospective juror's ties to law enforcement outweighed their youth and rehabilitation leanings.  The trial court believed the prosecutor, and the Tyler court believed the trial court.

Bailey isn't exactly Tom Robinson.  Bailey admitted that he was the shooter, but said that he was't shooting at anyone -- he was just shooting in the air.  To prove a point to a man in the front yard, and in front of a house full of children.  "But," says the Tyler court, "shooting in a person's direction is not required to commit an aggravated assault."  Normally, that would end things. 

The prosecutor, however, unnecessarily alleged that Bailey shot at the man in the front yard.  Even so, the Tyler court doesn't get into the question of whether the prosecution must prove allegations that go beyond the statutory elements of the crime.  Let's assume they did have to prove it.  There was plenty of evidence that Bailey was lying -- that he was shooting at someone.  Thus there is evidence to support the conviction.

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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.

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Harris v. State (Unpublished Memo): It's tampering with evidence if there's an investigation underway, or you know you committed a crime.  Harris was riding his bike on the wrong side of the street at night without "proper illumination."  He was in what Tyler PD officers describe as a "high drug" area.  The cops stopped Harris to question him.  He mumbled his name, because he was busy eating something.  The officers asked Harris to spit whatever it was out of his mouth.  But all that was left in the spit and in his mouth were a few green leafy flakes.  The officers had their suspicions, and Harris admitted that he had swallowed a marijuana "roach."

By eating the evidence, Harris turned a possession charge into a tampering with evidence charge.  That's a bad deal.  Especially in light of his prior felony DWI.  He got sixteen years.

Harris contends that he can't be guilty of tampering with evidence because there was no ongoing investigation at the time he was chewing.  In essence, Harris contends you can't be convicted of tampering when the investigation was really into whether there was tampering.

But that misses the Tyler court's point.  Texas Penal Code Section 37.09 make the destruction of evidence illegal if there is an ongoing investigation or if you know you've committed a crime and you try to cover your tracks before an investigation even gets started.  The conviction is affirmed on that prong of the statute.

Harris also argues that sixteen years is disproportionately long for eating a roach.  The Tyler court rejects that argument because: 1. Harris waived it because he didn't make it to the trial court; 2. His sentence is within statutory guidelines so, at least on the face of it, the sentence is constitutional; and 3. The Supreme Court of the United States, in Rummel, affirmed the constitutionality of a habitual offender law that turned a $120.75 crime into a life sentence.

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Jones v. State (Unpublished Memo): Jones was beating the female passenger in his vehicle as he drove along US 69 outside of Tyler.  Another motorist heard her screams and called it in.  A Bullard PD officer responded, as did a Tyler PD officer who was off the clock and on the way home on US 69.  A high speed chase ensued.  Jones turned off of the highway, but kept up a breakneck pace along winding county roads.  Eventually the officers cornered Jones -- he abandoned his vehicle at the end of a dirt road, and was tracked down on foot.

Based on two prior felonies, and his use of the car as a deadly weapon, Jones got a 75 year sentence on an evading arrest charge.

Jones argues that the sentence is too stiff because the vehicle wasn't a deadly weapon.

Are you kidding?  Granted, as the Tyler court notes, a car isn't always a deadly weapon.  It depends on how the car is used.  For example, I suppose OJ's famous slow-motion White Bronco wouldn't qualify as a deadly weapon.  But a weaving 100 mph chase with other motorists swerving to save their lives?  That's certainly evidence to support the jury's deadly weapon finding.

Unfortunately, the Tyler court doesn't identify the vehicle involved by make or model, so I've attached a picture of a 1974 LTD, the car I drove in high school.  The car in the picture is available from Old 66 Classics in Kingman Arizona.  The one I drove was a little different from the picture.  It was a sedan, not a coupe.  And it was Brougham.

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Floyd v. State (Unpublished Memo): There was no factual basis to support a Tex. Code Crim. Proc. Ann. art. 38.23(a) jury instruction, thus a failure to request the instruction cannot amount to ineffective assistance of counsel.

Floyd believes that there was no basis for the traffic stop that resulted in a search that turned up cocaine.  The traffic stop was over an unlit license plate.  Those things are supposed to be lit so that the plate can be read from fifty feet away.  The officer and her dash cam say Floyd's plate wasn't properly lit.  Floyd's attorney cross-examined them on this point, but didn't produce any conflicting testimony.  And there's the rub.

Under Art. 38.23(a), a defendant is entitled to an instruction to the jury that they can disregard evidence if there was a fact question over whether it was obtained improperly (e.g., unlit plate = proper stop, or lit plate = traffic stop without probable cause) and the jury resolves that fact question against the State.

But here, there was no "unlit or lit" fact question.  There was only the officer's testimony.  Cross-examination questions, however pointedly worded and emphatically stated, do not raise a fact issue.

With no fact issue, no basis for the jury instruction.  No basis for the jury instruction, no error by the attorney in "failing" to request it.

Side note: the Tyler court could have taken the easy way out and relied on the Strickland presumptions.  Instead, they grabbed the issue head-on and said that the trial counsel's work was actually effective.

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Lewis v. State (Unpublished Memo): The State wanted to sentence Lewis as a habitual offender.  The State's initial notice of intent to use prior convictions was insufficient.  On remand, Lewis contended that the insufficient notice placed one of his prior convictions off-limits for sentence enhancement purposes.  The Tyler court, in keeping with prior cases, rejects that argument.  The consequence of the insufficient notice is a re-sentencing.  At that re-sentencing, the State has the option to issue a new notice and (if the new notice is proper) use all prior convictions for enhancement purposes.

In another point, Lewis challenges the State's proof that he is the same Lewis from earlier cases.  As in the earlier case of Hack v. State, a matching fingerprint from any document in the old case file will do.

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Flores v. State (Unpublished Memo): Conviction of DWI with child affirmed.  The question was whether Flores was the driver.  He and his family say no.  The Trooper says yes.  The jury believed the Trooper.

Flores was in a GMC Yukon with his wife and a young niece.  They had just left a party attended by many of their family members, including the parents of the child.  The father of the child was the first to be pulled over.  The Trooper was administering the standard battery of field sobriety tests when Flores saw the fix his brother was in.  Flores pulled over too.  Or was it Flores?

Here's a tip: I'm all for familial loyalty, but if you've been drinking, it's probably not a good idea to interrupt an officer giving a field sobriety test.  When Flores injected himself into the situation, and did not follow the Trooper's directives, the Trooper soon switched his focus to Flores.  Flores failed all of the field sobriety tests.

There was no dispute that Flores got out of the driver's side of his SUV. He says that he was in the back seat, not the front.  He contents that the Trooper was too busy with his brother at that time and didn't pay specific attention to whether he got out of the front seat or the back.  Flores, his wife, his brother's wife, and other family members who saw them loading up at the party all said that the wife was at the wheel.

The wife's testimony was perhaps too strong on this point.  The Trooper's dash cam shows the front passenger door of the Flores vehicle opening, and a foot coming out for an instant before the door was shut again -- all at a point when Mr. Flores was already out of the vehicle.  The problem with the wife saying she was behind the wheel at that time is that she was too petite to have reached across a GMC Yukon to have opened the passenger door and stuck her foot out -- at least not from the driver's side. 

The Tyler court holds that, even though the Trooper did not have a specific recollection of seeing Mr. Flores with his hands on the wheel, his testimony and the dash cam video were enough to support the conviction.

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Dewberry v. State (Unpublished Memo): In a case of aggravated assault via shooting, the issue was whether Dewberry was the triggerman.  A sprawling multiparty altercation started at a gas station, adjourned, and reconvened at the Notorious Grill (a quorum was present).  Then, in an astonishing breach of Robert's Rules of Order, someone got shot.

Browning was the victim.  He and a man named Pullins had initially called the meeting to order at the gas station.  At trial, both Browning and Pullins identified Dewberry as the shooter.  Dewberry says that evidence is insufficient to convict him.  Dewberry points out that, at the scene, the victim wasn't sure who shot him, and indeed, thought it was Pullins.  What's more, Dewberry's associate, Pullins only named Dewberry as the shooter after he, Pullins, became the focus of the investigation.

Justice Bass, as he is wont to do, addressed these points with the eloquence of the obvious:

[Browning's] initial confusion is understandable. Browning lay wounded in a dimly lit parking lot with his attention focused on the end of the gun barrel pointed at him. He had never seen [Dewberry] before and he naturally suspected Pullins, the man with whom he had quarreled twenty minutes earlier. The initial reluctance of [Dewberry's] companions to name him as the shooter needs no explanation.

The eyewitness testimony, though it had changed between the scene and the trial, was sufficient to support a conviction.  The only relief Dewberry gets is that his $10,000 fine was vacated by agreement because it went beyond what was authorized by the relevant section of the Penal Code.

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Crocker v. State (Published): Since 2005, DWIs from as far back as records can be found can be used to enhance the sentence of a new DWI.  That's a change.  It used to be that DWI convictions more than ten years old couldn't be used.  Like it or not, the change is constitutional.  Someone needs to give a heads up to folks currently having a mid-life crisis who are figuring that all of that "college stuff" in the 1970's, 80's or 90's is water under the bridge.

Crocker had 1992 and 1993 convictions and new, 2006 offense.  He argued that the ten years had run on his old counts as of 2003, and (under the ex post facto doctrine) the 2005 change in the law should not revive them.  The infinite look-back should only apply to offenses committed in 2005 and beyond, after the infinte look-back took effect.

Crocker's argument is rejected.  True, the constitutions of both the United States and the State of Texas prohibit ex post facto laws (i.e., punishing someone for acts that only became criminal because of a law passed after the fact). But Crocker is in trouble because of his 2006 actions; the State is not coming back and trying to give him stiffer sentences for the 1992 and 1993 offenses.

Crocker also argues that the old law, the ten year limit, was a promise that he was entitled to rely on.  He makes an analogy to a deferred adjudication case, Scott.  In Scott, the defendant plead guilty to a sex crime, was sentenced to deferred adjudication, and successfully completed his sentence.  At that time, the law provided that successful completion of deferred adjudication would prevent the offense from ever being used to enhance a sentence for a future crime.  Sure enough, the Texas Legislature decided to change the law to allow deferred adjudications to enhance future sentences.  And, (also sure enough) Scott committed another crime.  But the Court of Criminal Appeals held that Scott was entitled to rely on the law at the time he completed his deferred adjudication.  So his prior offense could not be used to enhance the sentence for his current one.

Unfortunately for Crocker, the analogy doesn't hold.  The limitation on the future use of Scott's deferred adjudication was a clear and definite part of the deal for that offense.  The ten year DWI look-back window was not a clear and definite limitation on his 1992 and 1993 sentences.  Instead, it was a conditional pledge by the Legislature that could be changed.  In the words of the Tyler court :

"the former ten year time limitation on the use of DWI convictions 'was not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time.'" (quoting a Houston case, and citing cases from Austin and San Antonio that reached the same conclusion on this issue.)

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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.

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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.

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Crabtree v. State (Unpublished Memo): Crabtree was surprised when the trial court sentenced her to two years of prison for criminally negligent homicide.  The Tyler court says she shouldn't have been.  Sentence affirmed.

Crabtree's counsel told her, correctly, that the State would recommend probation if she pled guilty and agreed to be sentenced by the trial court.  Crabtree's counsel also told her that the trial court "most always" went with the State's recommendation.  Apparently, Crabtree heard that as a guarantee.  It wasn't.

When the trial court gave a sentence that was more than the State asked, Crabtree filed a motion for new trial.  She alleged that her trial counsel was ineffective because he failed to let her know what might happen at sentencing.

The Tyler court sings Crabtree a song:

We beg your pardon,
Trial counsel never promised you a rose garden.
Along with the sunshine,
There's gotta be a little rain sometimes.

Well, OK, the Tyler court was a little more circumspect, holding that, no matter how Crabtree heard what was said, "by the plain meaning of the language used, Appellant's attorney made no guarantees."

Crabtree also alleged that her trial counsel's preparation was shoddy.  The Tyler court denied that ground of appeal as well, citing the Strickland case discussed in an earlier post.

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Killgo v. State (Unpublished Memo): Killgo failed to defeat all of the probation revocation findings made by the trial court. so the Tyler court affirms.  Killgo's ten year probation for aggravated sexual assault of a child was revoked and turned into a fifty year prison term. 

Killgo says that six of the eight terms-of-probation violations the trial court found dealt with a failure to pay money (a fine associated with his sentence, and other undisclosed financial obligations that were made conditions of his community supervision).  He says that the trial court's conclusion that he was "able" to pay is not supported by the evidence.  He says the evidence shows he was broke.  The Tyler court says: "What about the other two violations?"  Or, more precisely:

In cases where the trial court revokes probation based upon findings that a defendant violated more than one condition of probation, such a revocation does not constitute an abuse of discretion where any single finding of a violation is held to be valid.

Killgo hadn't submitted to a required polygraph examination (the subject(s) of that examination are not stated).  In addition Killgo hadn't showed up for community service duty.  So the Tyler court affirms the revocation of probation.

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Delaney v. State (Unpublished Memo): Life sentence for robbery reversed for resentencing.  Delaney had originally received deferred adjudication for an aggravated robbery charge.  He violated the terms of deferred adjudication and was brought before the court for final adjudication.  At that hearing, the State put on evidence, over Delaney's objection, that Delaney had committed murder.  That was the only evidence the State put on.  The trial court sentenced Delaney to life in prison.  He tried to appeal, but couldn't because he had signed documents waiving his right to appeal.  Via a habeas corpus petition in the Court of Criminal Appeals, he was able to get those waivers set aside.  Delaney is then able to bring this direct appeal in the Tyler court.

Extraneous offenses may be considered during sentencing, but only if they are proved beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).  The Tyler court's review of the record showed that the trial court based the life sentence on the murder allegation, not on the aggravated robbery or the unspecified violations of deferred adjudication.  But the trial court's order didn't recite that the murder had been proven beyond a reasonable doubt.  Sentence set aside.

Delaney also appealed on grounds that the murder shouldn't have come up at sentencing at all because the State had failed to give the required notice.  Since they reversed the sentence for the reasons set out above, the Tyler court didn't address this issue.

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Kelley v. State (Unpublished Memo): Kelley contends that his 25 year sentence for aggravated robbery was based on improper evidence that his attorney didn't object to.  The State had an officer testify, second-hand, that Kelley denied and denied and denied firing his gun -- until they started to test his hands for gunpowder residue.  Since Kelley's trial attorney didn't object, Kelley's appeal is limited to "fundamental error."  The Tyler court rules that this isn't a case of fundamental error.

Kelley then urges that his conviction resulted from ineffective assistance of counsel.  Based on the Strickland decision, that ground is a no-go as well. 

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Carter v. State (Unpublished Memo): Conviction for intoxication manslaughter stands even though the defendant's intoxication may not have been the only cause of the victim's death.  Motorcycle operator and rider were both drunk.  Wreck killed the rider.  Rider had apparently been so drunk that she had trouble staying on the back of the bike -- in fact, she may have triggered the wreck by starting to slide off the seat. 

So was the wreck caused by the operator's intoxication, or by the rider's?  That's a trick question.  It's not an either-or proposition.  A "both" answer supports the conviction. "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient."  Tex. Penal Code Ann. § 6.04(a) (Vernon 2003).

This is where time is crucial.  The operator tries to keep the focus entirely on the wreck itself.  But, much like it did in another case this year, the Tyler court focuses on the wreck, the earlier events on the road, and the even earlier decision to ride.  As to the wreck, the operator's own accident reconstruction expert admitted that his intoxication may have been "a factor."  (Incidentally, the operator's blood alcohol level, by ER blood sample, was .146)  In short, a sober rider might have been able to keep the bike on the road in spite of what the rider was doing.  A sober operator might also have maintained a more reasonable speed throughout the night's journey.  More to the point, a sober operator wouldn't have made this ride in the first place.  The operator had been drinking at a "biker bar" with his girlfriend/rider. He knew that she was literally stumbling drunk.  He admitted as much, and even said that he didn't start the ride until she had had a few minutes at the bar to sober up.

The operator's claim of charge error gets nowhere because his requested instruction wasn't a correct statement of the law.  His proposed instruction tried to box the jury into an either-or question.  The trial court was right to reject it.

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A blogger just pointed out a factual error in a Supreme Court decision, Kennedy v. Louisiana..  The Supreme Court recently said that it would be cruel and unusual for Louisiana to execute child rapists.  The reason?  "Evolving standards of decency" determine what is cruel and unusual, so the Supreme Court looks to "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions."  This tallying of jurisdictions for and against a  punishment is known as the "consensus" analysis.  Granted, the consensus analysis isn't the only factor (if it were, the Supreme Court would be a Romanoff Czar worthy ostentatiously glorified Faberge Egg of an adding machine).  The Supreme Court also lists its "own independent judgment" as a factor.

But, let's be honest, Kennedy was much more of a consensus case than an "independent judgment" case.  For example, here are some excerpts from the opinion:

In 1925, 18 States, the District of Columbia, and the Federal Government had statutes that authorized the death penalty for the rape of a child or an adult.

Between 1930 and 1964, 455 people were executed for those crimes.

To our knowledge the last individual executed for the rape of a child was Ronald Wolfe in 1964.

Then came Furman in 1972, and a period of wholesale re-analysis of the death penalty.  As to the post-Furman  era ...

44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse.

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty.As mentioned above, only six of those jurisdictions authorize  the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

See what I mean?  Kennedy is a "consensus" case.  The problem? 

The Supreme Court got the tally wrong -- there's an Act of Congress authorizing the death penalty for child rape.  It's in a 2006 revision to the Code of Military Justice.  The Justices didn't catch it.  Their briefing clerks didn't catch it.  None of the attorneys filing briefs with the Supreme Court caught it.  (Maybe this is a sign we've got too many laws).

Dwight Sullivan, former top-level JAG sort who has a blog on military justice caught it, as he was reading the decision.  The the NY Times coverage is here.  As Sullivan said, the military justice system remains "the Rodney Dangerfield of legal systems."  Which is odd, given all of the Gitmo/non-combatant detainee cases working their way through the judicial system.

Will the Supreme Court revisit Kennedy because of this?  Highly unlikely.  So we're left with a Supreme Court case that's the equivalent of Super Bowl XIII.  For those of you who aren't Cowboys fans, it boils down to this: There were glaring late-game officiating errors that hurt the 'Boy's chances of winning.  In fact, the Steelers won.  They probably would have won anyway.  Probably. 

Questionable outcomes are great for sports radio.  Horrible for the judicial system.

Update: Don Cruse over at the Supreme Court of Texas Blog has an excellent post on this topic.  Don has a link to the Solicitor General's statement accepting some responsibility for this oversight.  What's more, Don did the legwork to discover that the Senate voted 98-0 in favor of the 2006 bill.  So, yes, Don thinks this is a big-deal.

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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.

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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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Wooten v. State (Unpublished Memo): Another of a raft of sufficiency of the evidence cases.  This one is a little different because it's an appeal from a revocation of community supervision.

Wooten was sent to a Substance Abuse Felony Punishment facility as part of his probation.  He was required to abide by all the rules and terms of the program.  He didn't.  So it didn't matter that he completed the program with a "minimal completion" discharge.  His failure to abide by the rules included threatening other participants.  That was enough to get Wooten kicked out of community supervision and into prison.

This one wasn't really a close call, but is is worth noting that the standard of review in this context is "abuse of discretion" and not the typical legal or factual sufficiency standards.

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Stricker v. State (Unpublished Memo): Robbery met "aggravated"  threshold because the victim was 65 or older. Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(3)(A).  As a result, Stricker's appeal on grounds that he didn't use a deadly weapon is pointless.  Stricker's life sentence (he had priors) is affirmed.

I go to church with the victim.  She's a nice doctor's wife.  She doesn't look anything near 65.  She does look like trouble, though.  Why would I say such a thing?  It's what's on the inside that counts.

Mary G. was minding her own business, buying gas at the Brookshire's in the Azalea District here in Tyler.  Stricker comes up on her in broad daylight, threatens her with a knife, and tells her to hand over the keys to the new SUV.  She complies.  But only for a second. In the time it took Stricker to go around to the driver's side, Mary G. went from scared to mad.  Mel Gibson, Lethal Weapon, I'm-crazier-than-you-are mad.  She opened up the passenger's side door, stuck the pump in, and soaked him.  Stricker hauled out of there (that crazy lady might have a lighter!).  He didn't get far.  The vehicle had GPS.

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Brown v. State (Unpublished Memo): Thirteen year old steps into an argument between his mother and her boyfriend.  The boyfriend hits the young man in the head with a boot (it appears that the boot was wielded by hand).  The (now-ex) boyfriend is convicted of injury to a child.  He appeals on grounds that there's insufficient evidence to support the conviction.

On the one hand, there's: the testimony of the kid, the testimony of his mother, the testimony of an officer who saw the freshly-swollen knot on the kid's head, and the fact that the boyfriend had boots on him.

On the other hand, the boyfriend says he didn't do it.

Outcome: The Tyler court gives the boyfriend's appeal a "Boot to the Head!" (my reference, not the court's, to a late-80's comedy bit by the Frantics.)  The album art depicts the application of the boot to the the boyfriend, not the kid. 

Hate to see kids having to grow up in a heartbeat.  Kudos to the kid for being the biggest man in the room.

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Thompson v. State (Unpublished Memo): As the United States Supreme Court was holding that the death penalty for child rape is cruel and unusual punishment, the Tyler court was deciding its own, much lower profile, cruel-and-unusual case.

Thompson pled guilty to aggravated robbery.  A trial on punishment resulted in a forty year sentence.   The statutory punishment range for aggravated robbery is 5 to 99 years, or life.  Although Thompson did not object on cruel-and-unusual grounds at trial, the Tyler court nonetheless considers the issue.  Since the punishment is within the statutory range, and in light of Rummel v. Estelle, the Tyler court upholds the sentence.

In 1980, in Rummel, the United States Supreme Court considered the habitual offender aka "three time loser" law.  The Supreme Court upheld a life sentence for the three successive crimes of fraudulent use of a credit card to obtain $80.00 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses.

But an interesting twist to the Kennedy v. Louisiana case is that it doesn't mention Rummel.  It's not because the Supreme Court's memory doesn't go back that far.  The opinion in Kennedy contains this bit:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U. S. 349, 367 (1910).

So what does it mean, if anything, that the Supreme Court reached all the way back to 1910, but didn't mention anything about a 1980 case?  Should Kennedy be put into a special category because it was a death penalty case?  Or does it signal that Rummel would be decided differently today?  And what of the broad "5 to life" statutory range?

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The Supreme Court of the United States of America ruled today in Rothgery v. Gillespie County (07-440).  At issue was whether the right to appointed counsel attaches at arraignment or indictment.  Texas operated on an indictment model.  Rothgery believes that, if he had had counsel, counsel could have intervened with the DA before the case was presented to the grand jury, and he never would have been indicted. 

SCOTUS held that (from the syllabus): "A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel."

Update: County commissioners don't need to be scrambling to figure out how they're going to pay for an expanded indigent defense program, at least not yet.  Justice Souter, writing for the majority, says that:

Our holding is narrow. We do not decide whether the 6 month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this.

And then there's the concurring opinion of Justice Alito, which is joined by the Chief Justice and Justice Scalia:

Texas counties need only appoint counsel as far in advance of trial, and as far in advance of any pretrial “critical stage,” as necessary to guarantee effective assistance at trial. ... The Court expresses no opinion on whether Gillespie County satisfied that obligation in this case. Petitioner has asked us to decide only the limited question whether his magistration marked the beginning of his “criminalprosecutio[n]” within the meaning of the Sixth Amendment.  Because I agree with the Court’s resolution of that limited question, I join its opinion in full.

So it's back downstairs to the Fifth Circuit to figure out what it means in the real world when the Supremes says that the right to counsel "attaches" at the first appearance before a judicial officer.

(Thanks to Grits for Breakfast, and the SCOTUSBlog for their early posts on this decision.)

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In the matter of RR (Published Memo): Juvenile conviction for negligent homicide affirmed.  A fourteen year old was driving two of his friends in his dad's Suburban at high speed along a dirt road in stormy conditions.  He lost control and hit a tree.  One of the driver's friends was killed.  They had gotten bored at the driver's dad's house, and were on their way to the driver's mom's house to get a Sony Playstation.

RR challenges the State's petition for failure to state an offense, failure to meet the Family Code's standards of specificity, and failure to meet the "particularity" threshold needed to satisfy due process in juvenile cases.  All of these are denied.

RR also contended that this was just a plain and simple accident, not criminally negligent homicide.  Basically, RR argues the reasonableness of his speed.  There were some pieces of evidence that could be construed to get the speed down into a more reasonable range.  The friend that survived testified that he saw the Suburban's speedometer, and it read 65 m.p.h.,  He admitted, however, that the vehicle was skidding at that point, and the freely spinning wheels may have caused a higher reading than the vehicle's actual speed.  Likewise, the Trooper who investigated the wreck admitted that he didn't do a precise speed workup from the length of the skid marks, etc.

The Tyler court doesn't get into the speed debate.  The Tyler court begins by observing that RR didn't have a license, and shouldn't have been driving at any speed.  And, as to speed, the evidence may not have established it to the exact mph, but it did establish that RR was driving too fast for a wet dirt road.  That's enough to support the trial court's judgment.  RR was placed on probation until he turns 18.

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Ingram v. State (Published): Ingram was convicted of burglary of a habitation.  Based on a prior burglary conviction, his punishment range was enhanced, and he was sentenced to thirty-six years plus a $4,000 fine.  Ingram contents that his conviction should be overturned because he didn't think the building was a habitation -- he thought it had been abandoned.  He requested a jury instruction on this "mistake of fact" but that request was denied by the trial court.

The trial court was right to deny the requested instruction.  The only "intent" part of a burglary of a habitation charge is entry with intent to steal.  Ingram had intent to steal.  The crime does not require intent to enter a habitation.  So whether Ingram thought this building was inhabited or not is irrelevant.  You break in with intent to steal, you take your chances on the legal status of the building.

In this case, though, it's easy to see how Ingram thought his thoughts did matter.  The State requested a jury charge that asked the jury to find that Ingram "intentionally or knowingly enter[ed] a habitation."  Even so, the Tyler court held that: "Because this erroneous requirement was not an element of the offense or necessary to support a conviction, the mere fact that it was included in the jury instructions did not expand the rights of Appellant such that he was entitled to a mistake of fact instruction."

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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.

Continue Reading...

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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.

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Osborn v. State (Unpublished Memo): A jury had the option to give Osborn a life sentence.  Since Osborn had one to four grams of cocaine within 1,000 feet of a middle school, the jury felt that a life sentence was the right call.  But the jury shouldn't have had that option.  By statute, the punishment range is seven to twenty years.  Osborn has an "absolute and nonwaivable" right to a sentence within the range set by the Texas Legislature.  Any sentence outside of that range is void.  The conviction stands, but the case is remanded for re-sentencing.

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Johnson v. State (Unpublished Memo): Robbery conviction affirmed.  Prospective juror's brother worked at the store that was robbed (a Brookshire Bros. grocery store in Lufkin), but the brother was not involved in the Johnson incident.  The record was silent on whether the prospective juror was personally acquainted with his brother's co-workers.  The prospective juror at first indicated that he'd definitely favor his brother if his brother testified (he didn't) and might favor his brother's co-workers.  Then th