Transcript Capital Murder 2006

Recent Decisions
San Antonio Bar Association
49th Annual
Criminal Law Institute
March 23, 2012
Scope
Pages
The Paper
• All published decisions from the Court of
Criminal Appeals between March 2, 2011
and February 29, 2012.
• And some others.
The powerpoint
www.markstevenslaw.com
Motions, Etc
Recent Power Point Presentations
The talk
Cases that help you win your case next Monday
morning.
The 10 Most Important
Cases In The Last Year
Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011)
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26-28
The Facts
The Law
Brady: applies to Pena’s own statements because even though
he knew he said it, he didn’t know the state had recorded him.
Preservation:“magic words” not required. “Straightforward
communication in plain English will always suffice.”
“the state:” the police created and preserved the tape, even if
the prosecutor did not know.
“Favorable”:
– “exculpatory” because it supported Pena’s defense that he did not know
the substance was marijuana.
– “impeachment” because trooper could not recall whether Pena insisted
on testing and state argued “trickery.”
• “Material”: defense would have focused on intent rather than
destruction of evidence.
• “Admissible”: Rule of optional completeness.
Discovery “Heroes”
Federal judge delivered
“lacerating 14 minute speech
and ordered investigation to see
if 6 career prosecutors “should
face criminal charges.”
Apparently they will not.
Ex prosecutor, now
Texas judge, questioned
in nine hour deposition
about alleged
misconduct in 1986
murder case
Ex Parte Miles, 2012 WL 468520
(Tex. Crim. App. 2012)
63-65
• Public information request of Dallas PD turned up two police
reports reflecting that another man (“Six”) had confessed to
the shooting, and that someone named “Deuce” had done it,
and that the complainants in the shooting had previously
threatened Garland with a shotgun.
• This1.evidence
was Brady because it was exculpatory (three
Brady.
new suspects: Six, Deuce, and Garland) and impeaching
“Establishing
a Herrera-type
claim
(the2.
complainants
were not peaceable
and law abiding
with
their shotgun).
is a Herculean task.”
• An “eyewitness” recanted his trial testimony, claiming that the
o had
Multiple
ofMiles
newly
prosecutor
told himpieces
to identify
as discovered
the shooter.
evidence
unquestionably
establish
• State’s expert
at trial later
admitted that her testimony
had
been wrong Miles’s
and that in
fact gsr levels found on applicant
innocence.
were “below threshold,” and should have been reported as
negative.
• Applicant passed a polygraph and a new suspect failed.
Jackpot!
Ex parte Ghahremani, 332 S.W.3d 470
(Tex. Crim. App. 2011)
39-40
• Complainant’s father testified at punishment to the ways her
life had changed after being sexually assaulted by applicant.
• DA argued applicant was solely responsible for damage.
• Writ lawyer obtained DA’s file by public information request
and “work product” file revealed police report filed by father
before trial complaining of relationship with another adult and
involvement with drugs and gangs.
• Using false evidence to punish is a due process violation.
• In Texas, this is true even without proof that the state
“knowingly” used false evidence.
• Using false evidence is “legally discrete” from Brady.
• Relief will be granted without the need of showing harm, if the
state has hidden the evidence of its wrongdoing so effectively
that the issue could not have been raised on direct appeal.
In Re District Attorney’s Office of the 25th
Judicial District,
2011 WL 1235027 (Tex. Crim. App 2012)
28
• Article 39.14(a) authorizes the trial court to
order the state to produce copies of
electronically recorded interviews with
witnesses.
• “The court's order for the State to make the
copy, which is a task both easy and
inexpensive, was reasonable. It also was
authorized by the statute.”
Motion For Copies Of
Electronically Recorded
Interviews
Defendant’s Objections
To Admissibility Of
Videotape
Confrontation/hearsay
Extraneous offenses
Impermissible comments
on credibility
Handcuffs
Coronado v. State, 351 S.W.3d 315
(Tex. Crim. App. 2011)
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24-25
there must be a balance between a defendant’s right of
confrontation and society’s need “to protect fragile and
traumatized child victims.”
38.071 § 2 does not constitutionally strike that balance.
“We are unable to find any post-Crawford precedent from any
jurisdiction that states, or even suggests, that a list of written
interrogatories, posed by a forensic examiner to a child in an ex
parte interview, is a constitutional substitute for live crossexamination and confrontation.”
Maryland v. Craig has been “nibbled . . . into Swiss Cheese.”
Powerful language from the court of criminal appeals that the
Constitution sometimes means what it says.
“On federal constitutional matters, we are obliged to follow the
dictates of the United States Supreme Court regardless of our
own notions.”
Bowen v. Carnes, 343 S.W.3d 805
(Tex. Crim. App. 2011)
6-7
• Prosecutor was concerned about lawyer being able to
cross-examine his former client, a jail house informant.
• Defense got written waivers from clients and informant.
• Court disqualified lawyer based on concern for “public
perception.”
• Public perception, while not immaterial, will not overcome
the Sixth Amendment’s presumption that a defendant has
the right to counsel of choice, unless there is also an actual
conflict of interest, or a serious potential conflict of interest.
• “the likelihood is exceedingly remote” that defense would
have to use confidential information to defend his new
clients.
Ex Parte Moussazadeh, 2012 WL 468518
(Tex. Crim. App. 2012)
10-11
• Lawyer overestimated defendant’s parole
eligibility by about 15 years.
• Ex parte Evans, which had held that bad
advice about parole eligibility would not be
grounds for relief unless the judge or
prosecutor were involved in the
misinformation, is overruled.
• where eligibility for parole is “succinct and
clear,” clients need correct advice, and
lawyers are required to give it.
Tienda v. State, 2012 WL 385381
(Tex. Crim. App. 2012)
11-13
• Authenticating social network content can be done
circumstantially and requires prima facie proof of authorship
initially before the gatekeeper; it then becomes a matter of
weight for the jury.
• “If you ain’t blasting, you ain’t lasting.” Some 25 instances of
circumstantial authentication from pictures, music and content
of website.
• “That an email on its face purports to come from a certain
person's email address, that the respondent in an internet
chat room dialogue purports to identify himself, or that a text
message emanates from a cell phone number assigned to the
purported author—none of these circumstances, without
more, has typically been regarded as sufficient to support a
finding of authenticity.”
Leonard v. State, 2012 WL 715981
(Tex. Crim. App. 2012)
58-59
• Leonard failed his first five polygraphs on deferred and was
discharged, then revoked.
• “This case presents an interesting paradox.”
• Polygraphs may be used in probation revocation
proceedings, but not before juries.
• Not yet, at least.
• 4 dissenters decry “trial by polygraph.”
Ex parte Dangelo, 339 S.W.3d 143
81-82
(Tex. App.–Fort Worth 2010, pet. granted)
• Probationers may be asked about probation violations, but
not independent criminal activity: An illustration of the “Fifth
Amendment dichotomy” faced by probationers who must take
polygraph examinations.
Hereford v. State, 341 S.W.3d 404
(Tex. Crim. App. 2011)
71
• After being arrested for traffic warrants and handcuffed,
Hereford was observed to be chewing something, so the
police tased his leg as a method of “pain compliance.”
• When that did not work, they turned him over to Deputy Arp,
who used his taser on Hereford’s groin area, which caused
Hereford to spit up 7.1 grams of cocaine.
• This was an “excessive use of force that violated the Fourth
Amendment prohibition against unreasonable seizures.”
– An exceptionally sensitive area of the body;
– Long after the initial arrest;
– Where Hereford was making no effort to destroy evidence;
– Where there was no concern about a drug overdose; and
– Where Hereford was restrained in handcuffs.
7 PDRs & Writs
To Watch
Standards of Proof in Texas
Beyond A
Reasonable
Doubt
Clear
And
Convincing
Preponderance
Probable
Cause
No Evidence
Fuller v. State, 2011 WL 285849
(Tex. App.-Dallas 2011, pet. granted)
102-103
Is the defense entitled to discuss
“preponderance of the evidence,” and
“clear and convincing evidence,” when
questioning the venire on its
understanding of the term “proof
beyond a reasonable doubt?”
McQuarrie v. State, 2011 WL 1442335 (Tex.
App.-Corpus Christi 2011, pet. granted)
53-54
• Tex. R. Evid. 606(b): jurors may not testify as to
anything influencing assent or dissent from verdict.
• “juror may testify . . . whether any outside influence
was improperly brought to bear upon any juror.”
• an outside influence must emanate from outside
the jury”
Does the absurdly restrictive limitation that Rule
606(b) is said to place on what constitutes an
“outside influence” for purposes of jury misconduct
violate state and federal constitutional rights to
confront and cross-examine?
Wise v. State, 340 S.W.3d 818
(Tex. App.–Fort Worth 2011, pet. granted)
89-90
Proving that a computer owner
knowingly and intentionally possessed
child pornography found in the
unallocated portions of his computer.
Burke v. State, 2011 WL 3925667 (Tex.
App.–Beaumont 2011, pet. granted)
(not designated for publication)
104
Clarification (perhaps) on challenging
so-called “vacillating” venirepersons.
Somers v. State, 333 S.W.3d 747
(Tex.App.–Waco 2010, pet. granted)
31
Are EMIT tests reliable enough to be
admitted without confirmation?
Ex parte De Los Reyes, 350 S.W.3d 723
(Tex. App.–El Paso 2011, pet granted)
46-47
Does Padilla v. Kentucky, 140 S. Ct.
1473 (2010) apply retroactively to the
collateral review of a state court
conviction that was final when Padilla
was decided?
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Ex Parte Jimenez, 2011 WL 5237145
7
(Tex. Crim. App. 2011)
(not designated for publication)
Defense “expert” Dr. Ira Kanfer melted down on
cross-examination.
During lunch he was overheard saying that the
prosecutors could go “fuck themselves.”
He admitted saying this on re-cross: “That’s an
exactly correct quote.”
Did the defense’s expert undermine his own
unpersuasive testimony by telling the prosecutors
what they could do to themselves?
Texas Style
Texas Style
Fleming v. State, 341
S.W.3d 415
(Tex. Crim. App. 2011)
“16 will get you 20”
• Does the Texas
Constitution require
proof of a culpable
mental state to
“statutory rape?”
88-89
Texas Style
104-105
Devoe v. State, 354 S.W.3d 457
(Tex. Crim. App. 2011)
• The federal constitution is not violated if a
party uses peremptory strikes to remove
Catholics from the jury.
But what about Article I, § 3a of the Texas
Constitution?
• “Equality under the law shall not be denied
or abridged because of sex, race, color,
creed, or national origin.”
Texas Style
21-22
Pecina v. State, 2012 WL 204293
(Tex. Crim. App. 2012)
•Montejo “clarified” the distinction between “trial” counsel and
“interrogation” counsel under the Federal Constitution.
• Do you want a lawyer? Yes I do.
•“Yes I want a lawyer” is “fatally ambiguous.”
But what about state law?
•TCCP art. 15.17: “The magistrate shall inform in clear
language the person arrested . . . of his right to have an
attorney present during any interview with peace officers or
attorneys representing the state. . . .”
•A reasonable person, who was explicitly warned of his right to
have interrogation counsel, but then not provided with same,
might well conclude that the judge did not mean what she
promised.
Texas Style
72-73
Limon v. State, 340 S.W.3d 753
(Tex. Crim. App. 2011)
•Voluntariness of consent must be proven by
clear and convincing evidence under the Texas
Constitution.
What about apparent authority to search?
•Preponderance of the evidence is good
enough where defendant does not invoke the
State Constitution.
Texas Style
20
Leza v. State, 351 S.W.3d 344
(Tex. Crim. App. 2011)
•Intoxication, though irrelevant under
the federal constitution, is relevant to
whether defendant voluntary waived his
rights under the Texas confession
statute.
Assistance of Counsel
Worried about being found ineffective?
5-11
Relax!
•Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011)
(counsel is presumed effective “if any reasonably sound
strategic motivation can be imagined.” Emphasize “any”)
•Hatcher v. State, 2011 WL 6225406 (Tex. Crim. App. 2011)(not
designated for publication)(continuance requested because
“trial at this point would be a rubber stamp.” Continuance
denied; counsel not ineffective)
•Ex Parte Niswanger, 335 S.W.3d 611 (Tex. Crim. App.
2011)(trial counsel not ineffective for not challenging an
indictment that did not allege an offense)
Gobert v. State, 2011 WL 5881601 (Tex.
Crim. App. 2011)
(not designated for publication)
9
• Capital lawyers have heavy
responsibilities to conduct independent
investigation, and may not rely “blindly”
upon either the prosecutor’s file or their on
client’s version.
• But these responsibilities are not
unlimited.
Some Other Interesting
Issues
Walters v. State, 2011 WL 6057834
(Tex. Crim. App. 2011)
59-60
• A mere assertion that a witness fears selfincrimination, even based on advice of
counsel, is not sufficient.
• Now the trial court must conduct an inquiry
into the reasonableness of that assertion.
Sometimes you will like this rule, and
sometimes you won’t.
Cornet v. State, 2012 WL 204286
(Tex. Crim. App. 2012)
92-93
• The medical-care defense of § 22.011(d) of the Penal
Code is available to lay persons who are trying to
ascertain a medical fact.
• This is a “confession and avoidance” defense.
• “sufficient that the defendant point to defensive evidence,
originating in his own statements, such that a trier of fact
could reasonably infer that each element of the offense
has been satisfied.”
Judge Cochran, dissenting
• “If this description meets any common-sense description
of accepted or acceptable medical care, the children of
Texas are in big trouble.”
Johnson v. State, 2012 WL 204282
(Tex. Crim. App. 2012)
18-19
This statement from the trial judge
– “In all candor, I would kind of
like to know what he's been
doing for the last eighteen years”
– did not improperly influence
the defendant to testify.
Ex Parte Frederick, 2011 WL 4484737
(Tex. Crim. App. 2011)
(not designated for publication).
26
Be carefully about letting your
clients plead guilty to a drug
offense before the lab has
tested the evidence..
Tillman v. State, 354 S.W.3d 425
(Tex. Crim. App. 2011)
36-37
• The trial court erred when it excluded Dr. Malpass’s testimony
on the unreliability of eyewitness testimony, because the
defense proved by clear and convincing evidence that it was
reliable and relevant.
• The question is whether the evidence will assist the factfinder
and is sufficiently tied to the facts of the case. Malpass’s
testimony satisfied both those requirements.
• Recognizing studies showing the high number of DNA
exonerations that have involved eyewitness identifications.
Blasdell v. State, 2010 WL 3910586
Tex.App.-Beaumont 2010, pet. granted)
The trial court abused its discretion when it excluded the
testimony of the appellant's eyewitness identification
expert as to the "Weapon Focus Effect."
Ex parte Garza, 2011 WL 1663324
(Tex. Crim. App. 2011)
49-50
There was no manifest
necessity to grant a mistrial
where the defense indicated its
willingness to proceed with a
five-person jury.
A one-way rule?
Public Trials
Steadman v. State, 2012 WL 716010
(Tex. Crim. App. 2012)
•Defendant got a new trial because trial court
improperly barred his family from attending
voir dire, and prejudice is irrelevant.
Lilly v. State, 337 S.W.3d 373
(Tex. App.–Eastland 2011, pet. granted)
•Can a defendant have a public trial in a
prison chapel?
65
Alonzo v. State, 353 S.W.3d 778
(Tex. Crim. App. 2011)
Self-defense applies to
manslaughter.
77
Morales v. State, 2011 WL 5375133
(Tex. Crim. App. 2011)
78-79
• The court construes the 2007
amendments to the self defense statute
regarding the duty to retreat and the
presumption of reasonableness.
• If you have a self-defense case, read
this opinion.
Tex. Code Crim. Proc. art. 21.15
“Whenever recklessness or criminal negligence
enters into or is a part or element of any offense,
or it is charged that the accused acted recklessly
or with criminal negligence in the commission of
an offense, the complaint, information, or
indictment in order to be sufficient in any such
case must allege, with reasonable certainty, the
act or acts relied upon to constitute recklessness
or criminal negligence, and in no event shall it be
sufficient to allege merely that the accused, in
committing the offense, acted recklessly or with
criminal negligence.”
State v. Rodriguez, 339 S.W.3d 680
(Tex. Crim. App. 2011)
65-66
• “recklessly discharge a firearm inside the corporate
city limits of a municipality having a population of
One Hundred Thousand (100,000) or more,
namely: the City of San Antonio, by pulling the
trigger on a firearm which contained ammunition
and was operable.”
• Pulling the trigger of a loaded firearm within city
limits is not reckless per se.
Anytime the charging instrument
alleges recklessly or negligently
• Indecent exposure
• Unlawfully carrying a weapon
• Assault bodily injury
Kirsch v. State, 2012 WL 204280
(Tex. Crim. App. 2012)
33-34
• The trial court erred by defining “operate” in
its charge to the jury in a DWI case.
• Statutorily undefined terms should generally
not be defined in the court’s charge, unless
they have acquired a technical meaning.
• Just because an appellate court has
defined a term does not mean that the court
should define that term for the jury.
Barron v. State, 353 S.W.3d 879
(Tex. Crim. App. 2011)
35
That hydrocodone pills were
allegedly found in defendant’s car
when she was arrested for DWI
does not entitle the state to a
synergistic instruction absent some
evidence that defendant ingested
the pills.
Martinez v. State, 348 S.W.3d 919
(Tex. Crim. App. 2011)
74-75
What, no reasonable suspicion?
• a male put two bicycles in the back of a blue
Ford truck and drove off westbound on Main.
• ¾ mile away stopped a green truck that looked
blue.
• arrest for DWI, not bike theft.
An anonymous tip about “suspicious,” and
“unusual” behavior failed to show that the behavior
was related to crime, and was therefore insufficient
to justify a temporary detention.
Crider v. State, 352 S.W.3d 704
(Tex. Crim. App. 2011)
31-32
The affidavit that supported the
search warrant for blood was
insufficient because it did not
state the time the defendant
was stopped or arrested.
Davis v. State, 349 S.W.3d 517
(Tex. Crim. App. 2011)
102
No, you don’t know what an improper
commitment question is.
This is not an improper “open-ended”
commitment question:
• “Let's talk about factors in assessing
the sentence in a case of aggravated
robbery with a deadly weapon, what
factors do y'all think are important?”
Gonzales v. State, 353 S.W.3d 826
(Tex. Crim. App. 2011)
103
Judge Cochran, concurring:
“There are always more fish in the sea and
more jurors in the jury panel. In close cases
trial judges should always err on the side of
granting a challenge for cause rather than
denying one.”
Morris v. State, 2011 WL 6057840
(Tex. Crim. App. 2011)
36-37
Electronic legal research gone
crazy demonstrates that “grooming”
is a legitimate subject of expert
testimony.
How not to win friends and influence
people
4-5
State v. Sanavongxay, 2012 WL 204260
(Tex. Crim. App. 2012)
•The state is allowed to appeal an “order,” and
an “order” must be in writing.
•Footnote 8: “We note that the tone and
language that the state uses in both its
grounds for review and its appellate brief do
not always reflect well upon the author or
advance the state's legitimate concerns.”
Thank you for your
patience.