Transcript Capital Murder 2006 - Mark Stevens San Antonio Criminal

Recent State Cases
San Antonio Bar Association
47th Annual
Criminal Law Institute
Harry A. Nass, Jr.
1933 - 2010
Scope
The Paper
• All published, non-death penalty
decisions from the Court of Criminal
Appeals between September 2, 2009 and
March 10, 2009.
• And some others.
The powerpoint
[email protected]
The talk
• “Helpful cases.”
“Helpful Cases”
•
•
•
•
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Cases that help you:
Win your cases
Not lose your cases
Continue the ones you can’t win
Render effective assistance
Avoid contempt of court
I will talk fast.
I will jump around.
Pages
1.
DWI
The Rules of Evidence
Do Not Apply
At Suppression Hearings
Police Reports
52-53
Ford v. State, 2009 WL 336566
(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.
Proving the temporal link between driving
and intoxication when there is an accident.
29
Kuciemba v. State, 2009 WL 585978
(Tex. App.– Houston [14 Dist.] 2009, pet.
granted)(not designated for publication)
• Police saw appellant crawl out of overturned car,
intoxicated.
• “Absent evidence in the record establishing the
time of the accident or of the defendant's
conduct in driving in a public place, the evidence
is insufficient to show that the defendant drove
while he was intoxicated.”
PDR Granted
Enhancements
27-28
Gonzales v. State, 2008 WL 4754834 (Tex.
App.– Corpus Christi 2008, pet. granted)
• “the finding of guilty herein shall not be
final, that no judgment be rendered
thereon”
• Not a judgment without an adjudication of
guilt.
• Enhancement is invalid.
PDR Granted
Deadly Weapon
27
Sierra v. State, 2009 WL 838540
(Tex. Crim. App. 2009)
Is a car a deadly weapon when used in
a felony DWI even if it is not driven in
a dangerous and reckless manner?
• Uneccessary “to settle that issue
today.”
2.
Effective Assistance Of
Counsel
Ex parte Lane, 2009 WL 4825122 (Tex.
Crim. App. 2009)
7-8
• failure to object to an officer’s testimony on the dangers and
societal costs caused by methamphetamine;
• failure to request pre-trial notice of the state's experts;
• failure to determine that a DEA agent would testify about
methamphetamine addiction;
• failure to properly object to the agent's testimony about
addiction and the number of people who could get high from
the methamphetamine that applicant possessed;
• failure to call an expert in rebuttal;
• failure to object to testimony regarding the extent of the
methamphetamine problem and argument that applicant was
bringing methamphetamine into Smith County to poison
children and turn them into addicts and that children were, in
fact, shooting up and smoking methamphetamine.
Smith v. Spisak, 130 S.Ct. 676 (2010)
9-10
• “Don’t look for good deeds, because he has
done none.”
• “Don’t look for good thoughts, because he
has none.”
• “Don’t look to him with the hope that he can
be rehabilitated, because he can’t be.”
• “He is sick, he is twisted. He is demented,
and he is never going to be any different.”
Smith v. Spisak, 130 S.Ct. 676 (2010)
9-10
Justice Stevens, concurring
• “argument was so outrageous that it would
have rightly subjected a prosecutor to
charges of misconduct.”
• “In my judgment even the most skillful of
closing arguments-even one befitting
Clarence Darrow-would not have created a
reasonable probability of a different outcome
in this case.”
www.markstevenslaw.com (motions; a very bad final
argument)
3.
Continuances
Anderson v. State, 2009 WL 3837335
(Tex. Crim. App. 2009)
22
Motion For Continuance must be:
• Written
• Sworn
There is no “due process”
exception.
(Emergency)
Motion For
Continuance
(Skeleton)
www.markstevenslaw.com
(Motions, etc.)
Gonzales v. State, 2010 WL 625056 (Tex.
Crim. App. 2010)
22-23
• Motion to appoint expert filed the
day trial began.
• 8 months after counsel was
appointed.
• With no explanation given for delay.
• Motion appointing expert granted.
• Motion for continuance denied.
• Conviction affirmed.
4.
Due Process
Ex parte Chabot, 2009 WL 4640556
(Tex. Crim. App. 2009)
29-30
“Is due process violated when the
State has unknowingly presented
perjured testimony?”
It is.
Is Due Process different than
Due Course of Law?
30-31
Soffar v. State, 2009 WL 3839012 (Tex. Crim.
App. 2009)
(not designated for publication)
• Pena v. State, 285 S.W.3d 459, 464 (Tex.
Crim. App. 2009)(improper objection did not
preserve error)
We don’t know.
• Ex parte Soffar (inadequately briefed)
We still don’t know.
5.
Confessions
Wilson v. State, 2010 WL 715253 (Tex.
Crim. App. 2008)
The Fourth Court
believes there is a limit
on how much dishonesty
the police can use to
obtain confessions.
“the Two Latent Prints lifted
from the Firearm Magazine
belong to those of Ronald
Wilson. . . .”
Reversed; 37.09 tampering;
38.23.
13-14
Wilson v. State, 2010 WL 715253
(Tex. Crim. App. 2008)
13-14
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, 2009 WL 3365656
(Tex. Crim. App. 2009)
14
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)
15-16
• Defendant was arrested and requested
appointment of counsel.
• Three hours later, before counsel arrived, the
police asked defendant to waive his rights and
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
Joseph v. State, 2010 WL 625072 (Tex.
Crim. App. 2010)
16-17
Article 38.22, § 2
1. A prescribed warning, and
2. A waiver of rights.
State must prove waiver by preponderance.
• Need not be written, articulated, or express.
May be inferred from words and acts.
• Willingly participated in 6 hour interview;
• Never requested the interview stop;
• No coercion shown on video.
6.
Confrontation
Langham v. State, 2010 WL 715309 (Tex.
Crim. App. 2010)
17-18
• Detective testified that he had received information
from CI that person meeting defendant’s description
was operating a crack house at certain location.
TESTIMONIAL
• Primary purpose of communication was to “pave the
way for a potential criminal prosecution.”
• “far greater detail” than necessary for mere
background.
Stringer v. State, 276 S.W.3d 95 (Tex.
App.– Fort Worth 2008, pet. granted)
19
Is a defendant who relies on part of
the PSI estopped from complaining
that another part of it – the Adult
Felony Record portion – violates
the Confrontation Clause?
Holmes v. State, 2010 WL 625821 (Tex.
Crim. App. 2010)
19-20
• Trial court took judicial notice of the
underlying science of the Intoxilyzer
5000.
• Trial court denied the defense the right
to cross-examine the state’s Intoxilyzer
expert.
• “the trial court's ruling disallowing
cross-examination of the State's expert
witness violated the defendant's
fundamental rights to a fair trial.”
7.
Sentencing
Can a father establish his son’s
eligibility for probation?
56
Trevino v. State, 577 S.W.2d 242, 243 (Tex.
Crim. App. 1979)(defendant's wife, who had
known him since he was a minor)
Mansfield v. State, 2008 WL 2884638 (Tex.
App – Houston [14 Dist.] 2008, pet.
granted)(not designated for publication)
“Other than the fact of a prior
conviction, any fact that increases
the penalty for a crime beyond the
prescribed statutory maximum must
be submitted to a jury, and proved
beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466
(2000)
Minimum Mandatory Sentences
58-59
United States v. O’Brien, 542 F. 3d 921 (1st
Cir. 2008), cert. granted, September 30,
2009, No. 08-1569
“The question presented is whether the
sentence enhancement to a 30-year
minimum when the firearm is a machinegun
is an element of the offense that must be
charged and proved to a jury beyond a
reasonable doubt, or instead a sentencing
factor that may be found by a judge by the
preponderance of the evidence.”
Life without parole for juveniles
Meadoux v. State
2009 WL 4667406
(Tex. App.-San Antonio 2009, pet.
granted)
Is life without parole cruel and unusual
punishment for a 16 year old who
commits capital murder?
8.
Recklessness
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.”
Smith v. State, 2010 WL
625048 (Tex. Crim. App. 2010)
52
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)
51-52
• “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
• Indecent exposure
• Unlawfully carrying a weapon
• Assault bodily injury
9.
Some Other Interesting Issues
State v. Moreno, 294 S.W.3d 594
(Tex. Crim. App. 2010)
6-7
The state has no authority to
appeal from a verdict of not guilty,
no matter how erroneous.
State v. Moreno, 294 S.W.3d 594
(Tex. Crim. App. 2010)
6-7
WHETHER THE TRIAL COURT
EVEN HAS THE
UNDERLYING AUTHORITY
TO GRANT A DIRECTED
VERDICT?
Say what?
Is the harassment statute
unconstitutional?
36-37
Scott v. State, 298 S.W.3d 264 (Tex. App.– San
Antonio 2009, pet. granted)
Tex. Penal Code, Sec. 42.07(a)(4)
repeated telephone calls, in a manner reasonably
likely to harass, annoy, alarm, abuse, torment,
embarrass, and offend the complainant.
Tex. Penal Code, Sec. 42.07(a)(7)
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.
Unconstitutionally Vague?
Is the harassment statute
unconstitutional?
36-37
Scott v. State, 298 S.W.3d 264 (Tex. App.– San
Antonio 2009, pet. granted)
• Because First Amendment is implicated, facial
challenge is permitted.
• 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?
38-39
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?
38-39
• 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”)
50-51
Presley v. Georgia, 130 S.Ct. 721 (2010)
6th amendment right to public trial extends to jury
selection.
“Trial courts are obligated to take every reasonable
measure to accommodate public attendance at
criminal trials.”
party seeking to close the proceedings must
advance an overriding interest that is likely to be
prejudiced.
the closure must be no broader than necessary to
protect the interest.
the court must consider reasonable alternatives to
closure.
if the court orders closure it must make adequate
findings.
The right to a public trial.
•
•
•
•
•
•
The failure to submit “not
guilty.”
45
Jennings v. State, 2010 WL 298071 (Tex.
Crim. App. 2010)
Verdict Forms
• Not guilty of burglary of a habitation with
intent to commit aggravated assault.
• Guilty of burglary of a habitation with intent
to commit aggravated assault.
• Guilty of burglary of a habitation with intent
to commit assault.
If you want your motion for new
trial heard . . .
49
Gardner v. State, 2009 WL 3365652
(Tex. Crim. App. 2009)
• “Present” the motion within 10 days of filing.
• “some documentary evidence or notation
that the trial judge personally received a
copy of the motion”
• “Request to hold a hearing on the motion.”
Necessity
50
Juarez v. State, 2009 WL 768595 (Tex.
App.– Tyler 2009, pet. granted)
• Defendant testified he bit the officer’s finger
to get the officer off him.
• He denied that he bit the officer
intentionally, knowingly, or recklessly.
• “sufficiently admitted to conduct underlying
the charged offense.”
State’s PDR Granted
Ex parte Smith, 296 S.W.3d 78
(Tex. Crim. App. 2009)
63-64
It is unclear whether a person on
deferred adjudication has been
“convicted,” as that word is used
in the felon in possession of a
firearm statute.
Does the Second Amendment
apply to the States?
64
National Rifle Association, Inc. v.
Chicago, 567 F. 3d 856 (7th Cir. 2009),
cert. granted sub nom. McDonald v.
Chicago, No. 08-1521.
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)
61
• So that’s the dude who did the doughnut in my front
yard.
• 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?”
Contempt
20-22
Ex parte Reposa, 2009 WL 3478455 (Tex.
Crim. App. 2009)(not designated for
publication)
“I could see his right hand . . . a few
inches from his waist and his hand was
in sort of a fist and he moved his hand
very quickly up and down for maybe
five times.”