New Texas Cases-March 2009 via Cheatham & Flach

 

After defendant entered negotiated plea of guilty on capital murder charge, he appealed and won, because the detective presented the defendant with a false fingerprint forensics lab report, which in turn was used to secure defendant’s confession, despite the State’s attenuation of taint argument
Wilson v. State, 2008 WL 5264643 (Tex. App.-San Antonio Dec 17, 2008)

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Pregnant probationer’s selective prosecution defense succeeded; sufficient evidence showed that her pregnancy was a motivating factor in the decision to prosecute her for probation violation, particularly the testimony that “…on some cases, CSCD has worked with individuals who tested positive for drugs. But CSCD was not willing to work with [probationer] because she was pregnant. [Officer] testified that ‘what drove this violation report was the positive [urinalysis] and her being pregnant.’â€?
Lovill v. State, 2008 WL 5275531 (Tex. App.-Corpus Christi Dec 22, 2008)
“The trial court’s sole conclusion of law was that Lovill’s selective prosecution claim required proof that she was prosecuted ‘because of’ her pregnancy. It found as a matter of fact that Lovill was not prosecuted ‘because of’ her pregnancy. It appears that the trial court failed to recognize that in a selective prosecution claim, the discriminatory purpose need not be the only purpose for the prosecution. Rather, the discriminatory purpose must merely be a ‘motivating factor’ for the decision to prosecute.â€?

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Conviction for aggravated assault on public servant was reversed where trial court erroneously excluded lay and expert evidence that tended to “explain when and how paranoid delusions may distort a person’s auditory and visual perceptions,â€? which “is admissible as it relates to whether [defendant] intended to shoot at [the police officers]â€?
Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. Dec 10, 2008)

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Deemed harmful error was exclusion of telephone conversation that tended to support theory of self defense, which conversation occurred between defendant and a police officer near in time to the shooting
Walters v. State, 2008 WL 5263264 (Tex. App.-Texarkana Dec 12, 2008)
“The record shows that the State’s questioning of Officer English and Beth Hankins left the jury with the impression, later emphasized during closing arguments, that appellant had not given any explanation of the shooting immediately after the event. Officer English testified that he asked appellant if he wanted to talk about what had happened. That question hovered in the air, but the State cut the witness off and redirected him to other matters. The jury did not hear that, from the very beginning, appellant told officers that he shot his brother in self-defense….John argues that it was harmful to let stand the false impression that he was a cool, calm killer who had refused to admit to the shooting and that he offered no explanation until trial….In any murder prosecution, the defendant’s trial testimony is suspect because time has elapsed, creating both opportunity and time to concoct a self-serving story. Thus, John’s statements to English at or near the time of the incident would likely have a higher level of credibility or persuasive effect on the jury.â€?

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Federal district court granted motion to suppress 500 grams of cocaine, because “neither [officers] observations concerning the [license plate light] gave him a reasonable suspicion that a Transportation Code violation was committed or about to be committed. Indeed, [officer] admitted that ‘you can’t really tell if [a license plate] got lights or notâ€?
U.S. v. Babarovic, 2008 WL 5377967 (S.D.Tex. Dec 22, 2008)

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In the same case, “even if the Court is to assume that the officers’ truly suspected a traffic violation [for driving w/o a license plate light] to justify pulling defendant over, the continued detention of defendant after her driver’s license came back clear should have ended the stop right there,â€? where the officer “did not articulate any connection between the allegedly suspicious behavior and drug possession, beyond the fact that defendant appeared nervousâ€?
U.S. v. Babarovic, 2008 WL 5377967 (S.D.Tex. Dec 22, 2008)

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Deemed erroneous was jury instruction to wit “if you do not find by a preponderance of the evidence that the defendant committed the offense of murder under the immediate influence of sudden passion arising from an adequate cause…â€? because it “conditioned the first-degree felony punishment range on only a failure to find sudden passion unanimously rather than a unanimous negative finding on the issueâ€?
Swearingen v. State, 270 S.W.3d 804 (Tex. App.-Austin Dec 04, 2008)

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Pronouncement of sentence in defendant’s absence deprived appellate court of jurisdiction, warranting remand for a new sentencing hearing
Meachum v. State, 2008 WL 5146960 (Tex. App.-Hous. (14 Dist.) Dec 04, 2008)
“Two conflicting lines of authorities from the intermediate courts have opined on the issue before us. One would require us to invoke our jurisdiction and reverse and remand, while in the other, jurisdiction fails. The first noted line of cases holds that because the appellate timetables commence when the sentence is imposed as articulated under article 42.02, article 42.03 is not a jurisdictional requirement, but merely reversible error….The second line of cases concludes the opposite: because the appellate timetables commence when 42.03 has been fulfilled, compliance with article 42.03 is a jurisdictional requirement….We adopt the jurisdictional argument enunciated by the Court of Criminal Appeals in Thompson v. State…. The State suggests that the proper remedy is dismissal. However, the rules of appellate procedure prohibit our dismissing an appeal if the trial court’s erroneous action or failure to act prevents the proper presentation of the case, and the trial court can correct its action or failure to act….The Court of Criminal Appeals noted in Thompson that “we need not address the question of whether there is only one proper remedy for this situation; it is enough to determine whether the court of appeals chose a proper remedy.â€?…. We decline the State’s invitation to dismiss the appeal in light of these cases and appellate rule 44.4, and instead abate and remand for a new sentencing hearing.â€?

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Jury charge impermissibly allowed jury to convict on less than unanimous consent as to various counts of child sex crimes, yet the error did not warrant reversal because, while the conditioning instructions were flawed, the general charge instruction required a unanimous verdict
Ruiz v. State, 272 S.W.3d 819 (Tex. App.-Austin Dec 18, 2008)
Since the fundamental error alleged was not “structural,â€? the error was subject to a harm analysis, and the court found there was no egregious harm because the general charge instructions required a unanimous verdict, even though the conditioning instructions did not mention that the jurors were required to unanimously agree regarding specific act or acts they believed defendant had committed as to each count.

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Traffic stop for defective headlight was not unreasonably prolonged, nor did the stop constitute a “fishing expedition” in this possession of codeine with intent to distribute case, because the lawful purpose of the traffic stop was still ongoing at the time defendant provided his consent to search (i.e. the officers were waiting on a license check when consent was given).
State v. Williams, 2008 WL 5333155 (Tex. App.-Texarkana Dec 23, 2008)

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Failing to use turn signal within 100 feet of turn justified detention from which DWI conviction spawned, rejecting argument that one need not use a turn signal when in the turn-only lane
Wehring v. State, 2008 WL 5411664 (Tex. App.-Texarkana Dec 31, 2008)
“The plain language of the statute requires the driver to signal for a turn. It does not include exceptions for those situations in which there is only one direction to turn.â€?

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DWI blood sample deemed admissible, despite the fact that sample was taken before defendant’s arrest (while at the hospital). Also rejected was defendant’s argument that, since section 724.012(b) only allows for one sample, her second sample was involuntary
Subirias v. State, 2008 WL 5264645 (Tex. App.-San Antonio Dec 17, 2008)
“Section 724.012 does not apply when a person consents to having his or her blood drawn. See Bennett v. State [Fort Worth, 1987] (whether defendant was under arrest when sample was taken is immaterial because there was no need to compel defendant’s submission to the test because defendant consented to giving a blood sample). Here, the police officer who requested the blood draws while defendant was at the hospital testified defendant consented to both the ‘first legal’ and ‘second legal’ blood draws. Nothing in the record contradicts the officer’s testimony that defendant consented and nothing in the record supports defendant’s contention on appeal that her consent was involuntary. Therefore, we overrule defendant’s first and second issues….â€? Regarding defendant’s Rule 403 argument, the court wrote “Here, the police officer testified defendant admitted to him that she ‘had two beers,’ and he noticed that her eyes were bloodshot and watery. Because defendant was receiving treatment at the hospital, only two field sobriety tests were conducted: (1) the HGN test, which was consistent with intoxication and (2) the Vertical Nystagmus test, which was inconsistent with a high level of intoxication. Because the field tests were inconsistent, the State needed the results of the blood draws to establish intoxication. Thus, the trial court could have reasonably concluded that the State’s need for the evidence weighed in favor of admissibility….â€?

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In the same case, the court also rejected defendant’s argument that because her blood samples were below the legal limit they “would invite the jury to conduct its own extrapolation because there is no other evidence of intoxication that the State would presentâ€?
Subirias v. State, 2008 WL 5264645 (Tex. App.-San Antonio Dec 17, 2008)

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Mistrial was not warranted, despite testifying officer’s reference to inadmissible confession, because the reference was brief, unclear, and not emphasized and defense counsel asked four more questions before approaching bench
Brock v. State, 2008 WL 5334709 (Tex. App.-Amarillo Dec 22, 2008)
Also, officer’s response did not expressly identify defendant as maker of confession; court’s instruction was worded in way that minimized risk of prejudice, court instructed jury to disregard fact that officer said there was confession, and testimony demonstrated that defendant appeared to elicit officer’s reference to confession

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Defendant, who owned a convenience store and routinely supplied third parties with legal products, which were later used by the third parties to create methamphetamine, was sentenced to life for money laundering. Since the overall amount of the proceeds of these individually small transactions amounted to more than $100,000, it was a first degree offense. Granted there was plenty of evidence that he knowingly participated in this scheme, but still, are you serious? Life for selling Sudafed?
Vafaiyan v. State, 2008 WL 5265203 (Tex. App.-Fort Worth Dec 18, 2008)

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Kirkpatrick v. State, 2008 WL 5234248 (Tex. Crim. App. Dec 17, 2008)
“Here, although the indictment properly charged a misdemeanor and lacked an element necessary to charge a felony, the felony offense exists, and the indictment’s return in a felony court put appellant on notice that the charging of the felony offense was intended. Further, the face of each indictment contains a heading: ‘Indictment-Tampering with a Governmental Record 3rd Degree Felony,-TPC § 37.10(a)-Code 73990275.’ The Penal Code section was easily ascertainable, and the notation that the offense was a third-degree felony clearly indicated that state intended to charge a felony offense and that the district court had subject-matter jurisdiction….If she had confusion about whether the State did, or intended to, charge her with a felony, she could have, and should have, objected to the defective indictment before the date of trial. The court of appeals erred when it concluded that these indictments fail to satisfy the constitutional requirement of subject-matter jurisdiction and did not vest the district court with jurisdiction.â€?

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Pure spoliation claim for destruction of relevant evidence (as opposed to constitutional claim requiring compelled disclosure of exculpatory evidence) of field sobriety test videotape was not warranted even though it would have been helpful to the Defendant, because the officer did not act in bad faith in destroying the tape; he simply followed departmental policy, and other evidence existed demonstrating intoxication
Freeman v. State, 2008 WL 5246601 (Tex. App.-Waco Dec 17, 2008)
“Even without field sobriety tests, the record contains other evidence of intoxication….The missing tapes were not critical to whether the State could establish Freeman’s guilt beyond a reasonable doubt….In summary, the tape of the field sobriety tests was subject to discovery. The State had a duty to preserve this evidence, which the State breached. Regarding the consequences which should flow from this breach, the State’s negligence was slight. The importance of the lost evidence is conflicting. The remaining evidence is more than sufficient to establish Freeman’s intoxication. Therefore, we hold that the trial court did not abuse its discretion by refusing to submit a spoliation instruction to the jury.â€?

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Juror that had stomach virus, including symptoms of nausea, vomiting, and diarrhea became “disabledâ€? such that trial court could go forward with 11 member panel in DWI prosecution
Freeman v. State, 2008 WL 5246601 (Tex. App.-Waco Dec 17, 2008)

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Defendant convicted of aggravated kidnapping was not entitled to a lesser included offense instruction on unlawful restraint, because the evidence demonstrated an intent to keep the location of the Defendant and child secret, a key distinguishing element of aggravated kidnapping and unlawful restraint
Mayer v. State, 2008 WL 5233874 (Tex. App.-Amarillo Dec 16, 2008)

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It was not error to read witness’ testimony to the jury when the jury sent a note to the judge describing the jurors’ disagreement concerning what the witness said
Heller v. State, 2008 WL 5233872 (Tex. App.-Amarillo Dec 15, 2008)
Also, defendant failed to preserve error by not objecting to trial court’s reading of said testimony to the jury.

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Use of “stun beltâ€? attached to Defendant during punishment phase of the trial did not amount to reversible error where the complaint was not preserved for review and where the jury was unaware that Defendant wore the apparatus
Taylor v. State, 2008 WL 5098589 (Tex. App.-Eastland Dec 04, 2008)

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Considered as part of evidence supporting DWI conviction was information downloaded from “black boxâ€? of defendant’s vehicle indicating that defendant delayed applying his brake until less than one second before the collision
Kirsch v. State, 2008 WL 5102311 (Tex. App.-Hous. (1 Dist.) Dec 04, 2008)

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Following are a few civil cases that may be of some interest…

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Action for malicious prosecution survived police officer’s motion to dismiss for failure to state a claim, where plaintiff alleged that, at time of his arrest, officer laughingly said to another officer “Can you believe it? She won’t press charges, because he doesn’t have any money….I don’t give a fuck, I’m going to take him away anyway.â€?
Holguin v. Lopez, 2008 WL 4775235 (W.D.Tex. Oct 28, 2008)

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Police supervisors who allegedly led a police search team to the incorrect house were not entitled to qualified immunity because supervisors “did not attempt to read the warrant or inquire about whether the address to which they were leading the search team was actually the address contained in the warrantâ€?
Hunt v. Tomplait, 2008 WL 5129642 (5th Cir.(Tex.) Dec 08, 2008)

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