Texas Appellate Update rd 23 Annual Rusty Duncan

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. 3 d 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. 3 d 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. 3 d 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. 3 d 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. 3 d 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. 3 d 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. . ” • 4 th 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. 3 d 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. 3 d 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 State’s PDR trigger on a firearm which contained ammunition 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. 3 d 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. 2 d 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. 2 d 964 (3 rd 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. 2 d 1394, 1401 -1402 (5 th 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. 3 d 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 Affi rmed “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. 3 d 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. 3 d 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. 1. 2. 3. 4. 5. 6. 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