Transcript Capital Murder 2006

Texas Appellate Update
rd
23
Annual
Rusty Duncan
Advanced Criminal Law
Course
June 3-5, 2010
Scope
Pages
The Paper
• All published, non-death penalty decisions from
the Court of Criminal Appeals between
September 2, 2009 and April 28, 2010.
• And some others.
113
The powerpoint
www.markstevenslaw.com
Motions, Etc
Recent Power Point Presentations
The talk
• “Helpful cases.”
18
The Scariest Case This Term
Confession and Avoidance
•
•
•
•
•
58-60
Juarez v. State, 2010 WL 1222680
(Tex. Crim. App. 2010)
Juarez admitted biting officer’s (trigger) finger
but denied doing it intentionally, knowingly, or
recklessly.
“The confession and avoidance doctrine
applies to the necessity defense.”
To be entitled to an necessity instruction, the
defendant must admit both to the criminal act,
and to the culpable mental state.
Culpable mental state “could have been
reasonably inferred from his testimony.”
Confession and Avoidance
58-60
Juarez v. State, 2010 WL 1222680
(Tex. Crim. App. 2010)
Unanswered Questions
1. Must a defendant himself admit to the conduct, or
is it sufficient that his “defensive evidence” admits
to the conduct?
2. What other defenses “embrace” the confession
and avoidance doctrine?
• not mistake of fact, where the defensive issue by
its terms, negates the culpable mental state.
• How about self-defense?
DWI
The Rules of Evidence
Do Not Apply
At Suppression Hearings
Police Reports
62-63
Ford v. State, 305 S.W.3d 530
(Tex. Crim. App. 2009)
Unsworn. Undated. Hearsay. No problem.
1. “Had appellant complained about the reliability,
accuracy, or sufficiency of the information
supporting the trial judge's ultimate ruling on the
motion to suppress, this would be a very
different case.”
2. Nor did appellant complain that the facts stated
in the report were insufficient to establish
probable cause.
2 things to remember, then.
Unreliable Breath Test Evidence
Ex parte Rosales, 2010 WL 1794937
(Tex. Crim. App. 2010)
(not designated for publication)
• Defendant pleaded guilty to DWI;
sentenced to 11 years; did not appeal.
• Habeas relief granted because conviction
based on unreliable evidence:
Intoxilyzer 5000
When the breath test technical
supervisor is a crook
Ex parte Rosales, 2010 WL 1794937
(Tex. Crim. App. 2010)
(not designated for publication)
• Deetrice Wallace, contract breath test technical
supervisor, admitted to falsifying inspection
records.
• Pleaded guilty to tampering with governmental
records.
1,200 or 2,600, or 4,200 cases
Harris, Galveston, Brazoria Counties
Is this useful in voir dire, cross-examination, or
with the media?
Continuances
Anderson v. State, 301 S.W. 3d 276
(Tex. Crim. App. 2009)
26-27
Motion For Continuance must be:
• Written
• Sworn
There is no “due process” exception.
Appellant forfeited his constitutional
right to present a defense by failing
to comply with the statute.
Anderson v. State, 301 S.W. 3d 276
(Tex. Crim. App. 2009)
26-27
Appellant forfeited his constitutional
right to present a defense by failing
to comply with the statute.
Gonzales v. State, 304 S.W. 3d 838 (Tex.
Crim. App. 2010)
27
• Motion to appoint expert filed the
day trial began. Granted.
• Motion for continuance. Denied.
• Conviction affirmed.
• 8 months after counsel was
appointed.
• Motion did not show diligence used
regarding expert.
(Emergency)
Motion For
Continuance
(Skeleton)
Due Process
Ex parte Chabot, 300 S.W. 3d 768
(Tex. Crim. App. 2009)
33-34
“Is due process violated when the
State has unknowingly presented
perjured testimony?”
It is.
• DNA proved the witness committed perjury.
• The witness was critical to the state’s case.
• More likely than not the perjured testimony
contributed to Chabot’s conviction and sentence.
Is Due Process different than Due
34-35
Course of Law?
Pena v. State, 285 S.W.3d 459
(Tex. Crim. App. 2009)
• Improper objection did not preserve error.
• So we don’t know if Due Process of Law is
different than Due Course of Law.
Soffar v. State, 2009 WL 3839012 (Tex.
Crim. App. 2009)
(not designated for publication)
• Point of error was inadequately briefed.
So we still don’t know.
Confessions
Is there a limit on how much
dishonesty the police can use to
obtain a confession?
Wilson v. State, 2010 WL 715253 (Tex.
Crim. App. 2008)
• Wilson was charged
with murder and did
not want to confess.
• So the detective
showed him this.
“the Two Latent Prints lifted
from the Firearm Magazine
belong to those of Ronald
Wilson. . . .”
• 4th Court of Appeals Reversed
• tampering with evidence.
17-18
Wilson v. State, 2010 WL 715253
(Tex. Crim. App. 2008)
17-18
The Court of Criminal Appeals agrees.
“exactly the type of law violation that the
Texas Legislature intended to prohibit
when it enacted article 38.23-conduct by
overzealous police officers who, despite
their laudable motives, break the penal
laws directly related to gathering and using
evidence in their investigations.”
Resendez v. State, 306 S.W. 3d 308
(Tex. Crim. App. 2009)
18-19
38.22, § 3(a)(2): warning must be given on the
electronic recording.
• Objection, “38.22”: not specific enough.
• Objection, police “did not Mirandize him on tape:”
not specific enough.
• “[A] complaint that could, in isolation, be read to
express more than one legal argument will
generally not preserve all potentially relevant
arguments for appeal. Only when there are clear
contextual clues indicating that the party was, in
fact, making a particular argument will that
argument be preserved.”
Hughen v. State, 297 S.W.3d 330
(Tex. Crim. App. 2009)
19-20
• Defendant was arrested and requested
appointment of counsel.
• Three hours later, before counsel arrived, the
police re-read rights and asked defendant if
he wanted to talk.
• “This ain't waiving my right for an attorney, is
it?”
• “No, sir. This is just talking with us about what
happened and what was going on and all that
good stuff.”
WAIVER
Recklessness
Tex. Code Crim. Proc. art. 21.15
“Whenever recklessness or criminal
negligence . . . is charged . . . the
complaint, information, or indictment
. . . must allege, with reasonable
certainty, the act or acts relied upon to
constitute recklessness or criminal
negligence . . . .”
Smith v. State, 2010 WL
625048 (Tex. Crim. App. 2010)
62
Indecent exposure
• Reckless about whether another was present
who would be offended or alarmed.
Tex. Code Crim. Proc. art. 21.15
• “to wit: the defendant exposed his penis and
masturbated.”
• Nothing inherently reckless about exposing
and masturbating.
State v. Rodriguez, 2008 WL 506273
(Tex. App.–San Antonio 2008, pet.
granted)(not designated for publication)
61-62
• “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.
“Don't attack my dog or
you might get shot … if
you're a coyote,”
State v. Rodriguez, 2008 WL 506273
(Tex. App.–San Antonio 2008, pet.
granted)(not designated for publication)
61-62
• “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
PDR ammunition
trigger on a firearmState’s
which contained
and was operable.” Granted
• Pulling the trigger of a loaded firearm within city
limits is not reckless per se.
Anytime the charging instrument
alleges recklessly or negligently
•
•
•
•
Killing a coyote
Indecent exposure
Unlawfully carrying a weapon
Assault bodily injury
www.markstevenslaw.com
Motions, Etc
Motions
Charging Instruments
Some Other Interesting
Issues
Harassment
•
•
•
•
•
43-44
Scott v. State, 298 S.W.3d 264 (Tex. App.– San Antonio
2009, pet. granted)
Tex. Penal Code, Sec. 42.07(a)(4) & (a)(7)
repeated telephone calls, or
abusive and harassing voice mail messages late at night
in a manner reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, and offend the complainant.
terms “annoy,” “alarm,” “abuse,” “torment,” and
“embarrass” contained in subsections 42.07 (a)(4) and (7)
are unconstitutionally vague.
the term “repeated” is unconstitutionally vague because
the statute does not indicate the requisite frequency of the
repeated communications.
State’s PDR Granted
Can the prosecutor be compelled to
grant a defense witness immunity?
45-46
Soffar v. State, 2009 WL 3839012 (Tex. Crim.
App. 2009)(not designated for publication)
Generally, no.
Can the prosecutor be compelled to
grant a defense witness immunity?
45-46
• Norman v. State, 588 S.W.2d 340 (Tex. Crim. App.
1979)(constitutional error not to immunize confidential
informant whose testimony was necessary to assert
entrapment defense)
• Government of the Virgin Islands v. Smith, 615 F. 2d 964 (3rd
Cir. 1980)(constitutional right to immunity for a witness whose
testimony was exculpatory and essential to the defense, and
for whom the government had no strong interest in
prosecuting)
• Autry v. Estelle, 706 F. 2d 1394, 1401-1402 (5th Cir. 1983)(to
remedy prosecutorial abuse where the state “has no
legitimate purpose for refusing immunity and did so to deprive
the defense of essential exculpatory testimony”)
Must 11.07 writ be sworn to by defendant?
Ex parte Rendon, 2010 WL 2006764 (Tex.
Crim. App. 2009)(not designated for
publication)
• No, according to articles 11.12 & 11.13 of the
Code of Criminal Procedure.
• Do these provisions conflict with article 11.14
and Texas Rule of Appellate Procedure
73.1(d)?
Implied Bias
• “Yes, I am a San Antonio Police
Officer.”
• “Yes, I know all the officers who will
testify in this case.”
• Yes, I could be fair and impartial if
chosen as a juror in this case.”
Challenge for Cause
Denied
Smith v. Phillips, 455 U.S. 209
(1982)(O’Connor, J. concurring)
• “actual employee of the
prosecuting agency”;
• “close relative” of participant;
• “witness or somehow involved”
Uranga v. State, 247 S.W.3d 375 (Tex. App.
– Texarkana 2008, pet. granted)
72-73
• Hey, that house looks kinda familiar.
• Repeated assurances from the juror that he could
be fair - “notwithstanding his victim status” - was good
enough for the trial court.
• And for the Texarkana Court of Appeals.
PDR Granted
“Does the implied bias doctrine apply in a case, like
Mr. Uranga's, where it is revealed during punishment
that one of the jurors was the victim of the defendant's
alleged extraneous conduct?”
Effective Assistance Of
Counsel
2009 - 2010
8-11
• Ex parte Lane, 303 S.W. 3d 702 (Tex. Crim. App.
2009)(failure to object to improper testimony and
argument; failure to request notice of state’s
experts; failure to call expert to rebut state’s
“expert”)
• Ex parte Smith, 296 S.W. 3d 78 (Tex. Crim. App.
2009(law unsettled whether deferred adjudication is
final conviction for purposes of felon in possession)
• Ex parte Covey, 2010 WL 1253224 (Tex. Crim. App.
2010)(not designated for publication)(misadvising
client about length of duty to register as sex offender
and about trial court’s discretion to early terminate
duty to register)
Why does this matter?
1. It matters to lawyers who do appeals
and writs.
2. It matters to trial lawyers.
•
•
•
•
•
•
Make the right objections.
Be specific.
Discover their experts.
Get your own experts.
Learn about collateral consequences.
“It’s not easy doing what we do.”
Harry A. Nass, Jr.
1933 – 2010
Charter Member
TCDLA