RECENT SIGNIFICANT DECISIONS OF THE COURT OF CRIMINAL APPEALS Criminal Justice Section Program

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1 RECENT SIGNIFICANT DECISIONS OF THE COURT OF CRIMINAL APPEALS Criminal Justice Section Program Edward "Chip" Wilkinson Tarrant County District Attorney s Office 401 West Belknap Fort Worth, Texas (817) Friday, June 11, :00 p.m. 4:30 p.m.

2 EDWARD L. WILKINSON LEGAL EXPERIENCE: Employment: TARRANT COUNTY CRIMINAL DISTRICT ATTORNEY present Fort Worth, Texas Assistant Chief, Appellate Division 1996-present Chief of Post-Conviction Writs SHANNON, GRACEY, RATLIFF & MILLER Fort Worth, Texas Associate Attorney Publications: Books: BRADY DUTIES AND THE PRE-TRAIL DISCLOSURE OF EVIDENCE (Texas District and County Attorney s Association 2009); Communication with Judges, Jurors, and Witnesses Outside the Courtroom, in DOING JUSTICE: A PROSECUTOR S GUIDE TO ETHICS AND CIVIL LIABILITY (National Center for Prosecution Ethics 2007); LEGAL ETHICS AND CRIMINAL LAW: PROSECUTION AND DEFENSE (Texas District and County Attorney s Association 2006); TEXAS PROSECUTORIAL ETHICS (Texas District and County Attorney s Association 2001); Law Reviews: If One is Good, Two Must Be Better: A Comparison of the Texas Standards for Appellate Conduct and the Texas Disciplinary Rules of Professional Conduct, St. Mary s Law Journal (2010); Ethical Plea Bargaining Under the Texas Disciplinary Rules of Professional Conduct, St. Mary s Law Journal (2008); Communicating With Judges, Jurors, and Witness Outside the Courtroom, DOING JUSTICE., National College of District Attorneys (2007); Punishment Evidence: Grunsfeld Ten Years Later, St. Mary s Law Journal (2004); Conflicts of Interest in Texas Criminal Cases, Baylor Law Review (2002); That s a Damn Lie! Ethical Obligations of Counsel When a Witness Offers False Testimony in a Criminal Trial, St. Mary s Law Journal (2002); Other publications: Texas Bar Journal; Texas Criminal Appellate Law Manual, The Texas Prosecutor, American Bar Association Litigation Newsletter, State Bar of Texas Criminal Justice Section Newsletter CLE Presentations: State Bar of Texas, National College of District Attorneys, American Bar Association, Albany Law School, St. Mary s University School of Law, University of Texas School of Law, The Center for American and International Law, Texas District and County Attorney s Association, Texas Criminal Defense Lawyers Association, Texas Center for the Judiciary, Tarrant County Bar Association, Denton County Bar Association, Tarrant County Criminal Defense Lawyer s Association, Tarrant County Hispanic Bar Association, Tarrant County District Attorney Office, Dallas County District Attorney s Office, Denton County District Attorney s Office, Grayson County District Attorney s Office, Texas Department of Public Safety Honors and Awards: Board Certified, Criminal Law, Texas Board of Legal Specialization Award for Outstanding Appellate Advocacy in Capital Cases, Association of Government Attorneys in Capital Litigation Member: Course Director, State Bar of Texas Advanced Criminal Law Course 2010 National College of District Attorneys Ad Hoc Committee to Revise the NDAA Prosecution Standards Texas District and County Attorneys Association Discovery Working Group 2006 Editorial Board, Habeas Corpus Committee, Tarrant County Bar Association Appellate Section Chair State Bar Grievance Committee Local Panel (District 07A), College of the State Bar of Texas EDUCATION: The UNIVERSITY OF TEXAS SCHOOL OF LAW Austin, Texas, J.D., The UNIVERSITY OF NORTH CAROLINA at CHAPEL HILL Chapel Hill, North Carolina, M.A., English Literature, 1983 GEORGETOWN UNIVERSITY Washington, D.C., A.B., cum laude, 1981

3 Recent Significant Decisions of the Court of Criminal Appeals Criminal Law Section State Bar of Texas June 11, 2010 Edward L. Wilkinson Tarrant County District Attorney s Office PART I A BRIEF SUMMARY OF THE COURT OF CRIMINAL APPEALS DECISIONS FOR TERM The following are very brief summaries of every published decision by the Court of Criminal Appeals for the term. For capital cases with multiple holdings, I have summarized only the one or two most significant in the case. In re Escareno, 297 S.W.3d (Tex. Crim. App. 2009) If the trial court fails under Article to issue an order designating issues within 35 days from the date on which the State receives a copy of the application, the clerk of the court has the ministerial duty to forward the application to the Court of Criminal Appeals. Ex parte Harbin, 297 S.W.3d 283 (Tex. Crim. App. 2009) The savings clause of the Texas Sex Offender Registration Act applies only to those offenders who failed to register between September 1, 1997, and August 31, Because the Department of Public Safety has not listed California Penal Code as a reportable conviction, violators of the penal provision are not required to register as sex offenders. Ex parte Hunter, 297 S.W.3d 292 (Tex. Crim. App. 2009) Dismissal of the State s pdr is the appropriate disposition in the event the defendant dies during the pendency of the appeal. Hall v. State, 297 S.W.3d 294 (Tex. Crim. App. 2009) The Rules of Evidence do not require a Kelly/Daubert hearing during a suppression hearing. Nevertheless, by failing to adduce evidence that LIDAR technology to measure speed supplies reasonably trustworthy information, the State failed to establish that the arresting officer had probable cause to stop the defendant. Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) The interests of justice do not require post conviction testing when defense counsel has already declined to request testing as a matter of reasonable trial stategy. 1

4 Tapps v. State, 294 S.W.3d 175 (Tex. Crim. App. 2009) A state jail felony can be a predicate felony conviction for purposes of prosecution of the offense of unlawful possession of a firearm by a felon. State v. Moreno, 294 S.W.3d 594 (Tex. Crim. App. 2009) The State lacks statutory authority to appeal directed judgments of acquittal. State v. Rhine, 297 S.W.3d 301 (Tex. Crim. App. 2009) The Texas Legislature did not violate the separation of powers clause in delegating authority to the Texas Commission on Environmental Quality to set standards for outdoor burning. Ex parte Smith, 296 S.W.3d 78 (Tex. Crim. App. 2009) Defense counsel did not render ineffective assistance of counsel in advising defendant, who was on deferred adjudication for a second degree felony, to plead guilty to the offense of unlawful possession of a firearm by a felon given the unsettled state of the law regarding the possession of a firearm statute. Grammer v. State, 294 S.W.3d 182 (Tex. Crim. App. 2009) Trial court did not err in failing to hold a separate punishment hearing after adjudicating defendant guilty where court asked if defendant had anything more to offer in punishment, and defendant declined, and defendant had already introduced extensive punishment evidence as part of his mistake of fact defense during the adjudication hearing. Leal v. State, 303 S.W.3d 292 (Tex. Crim. App 2009) Trial court did not err in denying motion for post conviction DNA testing where defendant, convicted of capital murder, failed to show that further DNA testing would establish by a preponderance of the evidence that he would not have been convicted based on the underlying allegations of sexual assault and kidnapping. In re Simon, 306 S.W.3d 318 (Tex. Crim. App. 2009) Court of Criminal Appeals refuses to grant writ of prohibition against trial court s order that a capital murder defendant submit to psychological examination by State s expert because defendant has failed to show that under the circumstances, and particularly the tight restrictions imposed upon the State, that he has a clear right to be insulated from examination. Morris v. State, No. 301 S.W.3d 281 (Tex. Crim. App. 2009) Review of the sufficiency of the evidence to support a competency jury s verdict should be restricted to the evidence before the competency jury, even when the incompetency claim is based on amnesia (rejecting Jackson v. State, 548 S.W.2d 685 (Tex. Crim. App. 1977)). 2

5 Anderson v. State, 301 S.W.3d 276 (Tex. Crim. App. 2009) There is no due process exception to preservation requirements governing continuance motions under Article and 29.08; therefore, defendant, who made an unsworn oral motion for continuance did not preserve complaint about the denial of the motion. Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009) The State is not bound by the second prong of the Royster Rousseau test, and is entitled to the submission of a lesser included offense upon request, regardless of whether there is evidence that if the defendant is guilty, he is guilty only of the lesser offense. State v. Dunbar, 297 S.W.3d 777 (Tex. Crim. App. 2009) State may object for the first time on appeal that a trial court lacked jurisdiction to place the defendant on shock community supervision. Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) Use of perjured testimony, even when the State was unaware that testimony was false, constitutes a violation of due process and entitles defendant to reversal of his conviction, if he establishes by a preponderance of the evidence that the error contributed to his conviction or punishment. Rouse v. State, No. 300 S.W.3d 754 (Tex. Crim. App. 2009) In deciding whether a defendant s guilty plea was involuntary, a court of appeals may not rely on post trial motions that are not self proving or affidavits or other materials that have not been offered into evidence at a hearing before the trial court. Garner v. State, 300 S.W.3d 763 (Tex. Crim. App. 2009) When a court of appeals finds no issues of arguable merit in an Anders brief, it may explain why the issues have no arguable merit without triggering necessity to remand the case to the trial court for the appointment of new counsel. Crumpton v. State, 301 S.W.3d 663 (Tex. Crim. App. 2009) Deadly weapon finding was proper in criminally negligent homicide case where jury found defendant guilty as included in the indictment. Hobbs v. State, 296 S.W.3d 193 (Tex. Crim. App. 2009) Trial court did not err in granting defendant s motion for appointment of an expert, but overruling defendant s motion to withdraw his jury waiver where defendant only asked for expert just before trial and defendant was attempting to bribe State s witness; to fairly accommodate all the interests at stake, judge started bench trial and memorialized witness s testimony, then granted continuance so defense could subpoena witnesses and review tape recordings of defendant s bribery 3

6 attempts. Court erred, however, in failing to conduct hearing on defendant s allegation in a motion for new trial that he never authorized jury waiver. Williams v. State, 301 S.W.3d 675 (Tex. Crim. App. 2009) Capital murder defendant s attorney did not render ineffective assistance of counsel by opening door to introduction of extraneous offense during guilt innocence where counsel articulated strategy on record. Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) Defendant may waive right to appeal as part of plea even where parties have not agreed to sentence, provide consideration is given by the State for the waiver. Ex parte Lane, 301 S.W.3d 702 (Tex. Crim. App. 2009) Trial counsel rendered ineffective assistance of counsel in failing to request pre trial discovery of the State s expert, anticipate his testimony, object to his testimony, and offer a defense expert in rebuttal. State v. Votta, 299 S.W.3d 130 (Tex. Crim. App. 2009) The court of appeals erred in failing to require the trial court to make findings of fact; without the requisite findings, the court further erred in concluding that the prosecutor and the court received proper notice under the IAD. In addition, since there were no detainers placed upon the defendant for two of the three charges against him, the court of appeals erred in dismissing those charges under the IAD. Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009) Under the facts of this particular case, convictions for both aggravated sexual assault of a child and indecency violated the defendant s double jeopardy rights, as indecency with a child constitutes a lesser included offense of aggravated sexual assault of a child when both offenses are predicated on the same act. Lovill v. State, No. PD , 2009 WL (Tex. Crim. App. December 16, 2009) A motion for new trial claiming selective prosecution is not sufficiently timely to preserve the issue for appeal. McFatridge v. State, No. PD , 2010 WL (Tex. Crim. App. January 27, 2010) The proper place for an appellant to introduce evidence challenging the State s rebuttal evidence in an indigency hearing is the initial indigency hearing, not on appeal or in a petition for discretionary review. Jennings v. State, 302 S.W.3d 306 (Tex. Crim. App. 2010) The verdict form is part of the charge; thus, leaving the not guilty option off the form constitutes error subject to harm analysis under Almanza. 4

7 Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) A defendant may not appeal a pre trial IAD ruling interlocutory. Swearingen v. State, 303 S.W.3d 726 (Tex. Crim. App. 2010) The trial court did not err in denying defendant s request for additional post conviction DNA testing because there was overwhelming evidence of guilt independent of any potentially exculpatory DNA evidence and thus the defendant was unable to show a 51% probability that he could not have been convicted. State v. White, No. PD , 2010 WL (Tex. Crim. App. February 10, 2010) Where the trial court explicitly cited due process and due course of law in its order dismissing the indictment based upon a delay in bringing the defendant to trial, and the parties only briefed that issue, the court of appeals erred in resolving the appeal on the basis of the Sixth Amendment right to speedy trial. Kirsch v. State, No. PD , 2010 WL (Tex. Crim. App. February 10, 2010) The trial court s limiting instruction, upon the introduction of BAC test results without extrapolation testimony, that the jury could consider the evidence for the limited purpose of showing that the individual tested had ingested alcohol only at some point before the test was improper and misleading because the evidence was also probative to show that the defendant was intoxicated at the time of driving, even though it was not sufficient by itself to prove intoxication. Ex parte Hood, 304 S.W.3d 397 (Tex. Crim. App. 2010) Penry claim constitutes new law for purposes of Article , 5. In light of Supreme Court precedent, the defendant is entitled to a new punishment hearing with a correct jury instruction regarding mitigating evidence. Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) In order to show reversible error predicated on the denial of a pre trial motion for continuance, a defendant must demonstrate both that the trial court erred in denying the motion and that the lack of a continuance harmed him. Furthermore, a trial court does not abuse its discretion is requiring a defendant to plead diligence in seeking expert assistance in a sufficiently timely manner as to avoid the necessity to delay a trial setting. In determining whether two offenses are jeopardy barred, the focus or gravamen of the offense seems to be one of the best indicators of the allowable unit of prosecution prescribed by the legislature. If the focus of the offense is the result that is, the offense is a result of conduct crime then different types of results are considered to be separate offense, but different types of conduct are not. On the other hand, if the focus of the offense is the conduct that is, the offense is a nature of conduct crime then different types of conduct are considered to be different offenses. Thus, two counts of aggravated sexual assault of a child one for anal penetration, the other for vaginal are not jeopardy barred, even though both arose from the same assault. 5

8 Joseph v. State, No. PD , 2010 WL (Tex. Crim. App. February 24, 2010) A defendant need not explicitly waive his Miranda rights in order to comply with Article if the totality of the circumstances show that the defendant knowingly, intelligently, and voluntarily waived his rights. Smith v. State, No. PD , 2010 WL (Tex. Crim. App. February 24, 2010) An information for indecent exposure must allege acts which constitute recklessness. Holmes, et. al v. State, Nos. PD , PD , PD , PD , PD , 2010 WL (Tex. Crim. App. April 29, 2010) Denial of pre trial motion to cross examine State expert on breath testing machine constituted denial of right to present a defense; trial court s erroneous ruling was a contributing factor in the defendant s subsequent pleas, and thus the error contributed to the defendant s conviction and punishment. State v. Powell, No. PD , 2010 WL (Tex. Crim. App. March 3, 2010) State properly seized safe that was described in affidavit in support of the search warrant, as the warrant itself authorized officers to seize property described in the affidavit. Furthermore, the massive remedy of exclusion of the drugs found in the safe was not warranted by the minimal intrusion of police seizure and later search of the safe, given that the police could have lawfully searched the safe on the premises under the warrant. Wilson v. State, No. PD , 2010 WL (Tex. Crim. App. March 3, 2010) Fabrication of an police fingerprint report in order to coerce a murder confeession violated Article 38.23, thus necessitating suppression of the defendant s statement. Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) Admission of confidential informer s statements to police regarding defendant s drug dealing background violated Crawford. Safety National Casualty Corp. v. State, 305 S.W.3d 586 (Tex. Crim. App. 2010) A defendant may not be required to pay civil filing fees in bond forfeiture cases. Tolbert v. State, No. PD , 2010 WL (Tex. Crim. App. March 17, 2010) A trial court has no duty to sua sponte instruct the jury on a lesser included offense absent a request by the defendant. Gutierrez v. State, No. AP 76,186, 2010 WL (Tex. Crim. App. March 24, 2010) 6

9 Denial of request for counsel to file motion for post conviction DNA testing is not an appealable order. The better course is for the convicted person to file a motion for DNA testing and, if and when the motion is denied, appeal any alleged error made by the trial judge in refusing to appoint counsel. Mayer v. State, No. PD , 2010 WL (Tex. Crim. App. March 24, 2010) A defendant may raise for the first time on appeal the issue of whether the evidence is insufficient to support the trial court s order to pay attorney s fees. Carter v. State, No. PD , 2010 WL (Tex. Crim. App. March 24, 2010) Police interrogation that followed question first, warn later pattern should be suppressed only after trial court determines that sequence constituted a deliberate attempt to avoid the requirements of Miranda. Juarez v. State, PD , 2010 WL (Tex. Crim. App. March 31, 2010) A defendant is entitled to a necessity instruction even where he both admitted and denied the culpable mental necessary for the offense. Stringer v. State, No. PD , 2010 WL (Tex. Crim. App. April 14, 2010) Crawford does not apply when a PSI is used in a non capital case in which the defendant elected to have the judge determine sentencing. Mays v. State, No. AP 75,924, 2010 WL (Tex. Crim. App. April 28, 2010) Atkins does not apply to the mentally ill, and thus the Eighth Amendment does not exempt the mentally ill from eligibility for the death penalty. Ex parte Smith, No. AP 76,035, 2010 WL (Tex. Crim. App. April 28, 2010) Defendant must show egregious harm where he failed to object to faulty Penry instruction. Where mitigating evidence was at the heart of the defendant s punishment defense, the failure to adequately charge the jury on the use of mitigating evidence constituted egregious harm. Ex parte Calderon, No. AP 76,160, 2010 WL (Tex. Crim. App. April 28, 2010) Defendant did not know of, and could not have discovered, the victim s recantation before entering his no contest plea to the charge of indecency with a child. The evidence was therefore newly discovered and the defendant was entitled to relief on habeas corpus. Ex parte Hearn, No. AP 76,237, 2010 WL (Tex. Crim. App. April 28, 2010) While applicants should be given the opportunity to present clinical assessments to demonstrate why his or her full scale IQ score is within the margin of error, applicants may not use clinical assessments as a replacement for full scale IQ scores in measuring intellectual functioning. Gonzales v. State, No PD , 2010 WL (Tex. Crim. App. April 28, 2010) 7

10 In determining whether a prior conviction is final for purposes of enhancement, the court should look to the entire judgment and assess the finality of the conviction in context of the entire document. Ex parte Ellis, Nos. PD through PD , 2010 WL (Tex. Crim. App. April 28, 2010) The Texas money laundering statute is not unconstitutional under a multitude of different theories. Valtierra v. State, Nos. PD through (Tex. Crim. App. May 5, 2010) Given the totality of the circumstances, it was objectively reasonable for officer to conclude that suspect s general consent to come inside the apartment to find and talk to a reported victim included consent to walk down the open hallway to knock on the bathroom door. Officer s subsequent seizure of contraband in plain view was therefore lawful. Bowley v. State, No. PD , 2010 WL (Tex. Crim. App. May 5, 2010) The trial court did not err in failing to disregard the prosecutor s question concerning the breakdown in plea bargain negotiations because the defendant opened the door to the query when he implied on direct examination and stated during cross that he was pleading not guilty because he was not guilty. Chadwick v. State, Nos. PD & PD , 2010 WL (Tex. Crim. App. May 5, 2010) Under Indiana v. Edwards the Sixth and Fourteenth Amendments do not prohibit a trial court from declining to permit pro se representation by a defendant who is competent enough to stand trial but who still suffers from severe mental illness to the point where he is not competent to conduct trial proceedings by himself. A court of appeals may imply from the record any finding of fact that may support the trial court s ruling. PART II TEN SIGNIFICANT DECISIONS FROM THE COURT OF CRIMINAL APPEALS FOR THE TERM State v. Moreno, 294 S.W.3d 594 (Tex. Crim. App. 2009) The trial court granted the defendant s motion for directed verdict when the State s chief witness appeared late for trial. The judge subsequently signed an order granting the defendant s motion for directed verdict. The State appealed, arguing that because the State had not rested before the judge granted the directed verdict, the order constituted a dismissal of the indictment which was appealable under Article The court of appeals concluded that the court s order constituted an acquittal and was therefore not appealable. The Court of Criminal Appeals interpreted the State s authority to appeal from an order dismissing an indictment in lock step with the federal government s authority to appeal under Title 18, 8

11 3731 of the United States Code: the government may appeal an order when an appeal is not barred by the Constitution. A defendant is acquitted when the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. In contrast, a dismissal does not involve a final determination of guilt or innocence. Here, the judge ruled against the State on the basis that the State had not proved all of the elements of the offense. The order was therefore an acquittal, not a dismissal. Relying on federal precedent, the court concluded that although it was unacceptable and inexcusable for the judge not to allow the State s witness to testify when he was just outside, having acquitted the defendant double jeopardy bars a re trial. Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009) & Tolbert v. State, No. PD , 2010 WL (Tex. Crim. App. March 17, 2010) In Grey, the defendant was indicted for aggravated assault causing bodily injury and using a deadly weapon, the defendant s hand. The jury charge submitted by the State included both a charge on aggravated assault and a lesser included offense of simple assault by causing bodily injury. The defense objected to the submission of the lesser, but the trial court included it in the final charge. The jury found the defendant guilty of the lesser. On appeal, the court of appeals reversed the defendant s conviction on the grounds that the lesser should not have been submitted. After reviewing the history of the Royster/Rousseau rule and its application to requests by the prosecution for the submission of lesser included offenses in the charge, the court decides to abandon Arevalo v. State, 943 S.W.2d 887 (Tex. Crim. App. 1997) and holds that the State is not bound by the second prong of the Royster/Rousseau test. The rule in Arevalo, the court concludes, is based on a flawed premises (the rule is neither constitutionally nor statutorily based), places undue burdens on the prosecutor (under the rule, a prosecutor is caught in a damned if I do, damned if I don t dilemma), and results in an illogical remedy (the reversal and remand for retrial on the very charge improperly submitted in the first place). Consequently, the court holds, we overrule Arevalo. Tolbert represents the reverse side of Grey. In Tolbert the defendant, charged with capital murder arising from a robbery, specifically stated that it had no objection when the trial court denied the State s request for a lesser included offense. During deliberations the jury sent a note asking about any lesser included offense. On appeal, the defendant apparently rethought her all or nothing trial strategy and contended that the trial court should have submitted the lesser sua sponte. The court of appeals agreed and reversed the defendant s conviction. Quoting Dix and Dawson, the Court of Criminal Appeals rejected the argument: Because of the strategic nature of the decision, it is appropriate for the trial court to defer to the implied strategic decisions of the parties by refraining from submitting lesser offense instructions without a party s request. It is clear that the defense may not claim error successfully on appeal due to the omission of a lesser included offense if the defense refrained from requesting one.... We therefore decide that the trial court had no duty to sua sponte instruct the jury on the lesser included offense of murder and that a jury instruction on this lesser included offense was not applicable to the case absent a request by the defense for its inclusion in the charge. 9

12 Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) The defendant was convicted of sexual assault and murder of the victim, based largely upon the testimony of an accomplice who maintained that the defendant acted alone in tying up the victim, raping her, then shooting her in the head. The accomplice specifically denied sexually assaulting the victim himself. Post conviction DNA testing of the sexual assault kit, however, revealed only the accomplice s DNA. The State conceded that the accomplice presented perjured testimony at trial, that the accomplice was the State s primary witness whose testimony was critical to the State s case, and that the accomplices testimony more likely than not contributed to the [defendant s] conviction and punishment. Based upon the State s concessions, the trial court and the Court of Criminal Appeals concluded that the defendant s due process rights were violated by the State s use of perjured testimony, notwithstanding the absence of the State s knowledge of perjured testimony at the time of trial. Jennings v. State, 302 S.W.3d 306 (Tex. Crim. App. 2010) The defendant was indicted for burglary of a habitation with intent to commit aggravated assault. The answer form submitted with the jury charge at the close of the guilt innocence phase provided the jury with only three options: not guilty of the charged offense; guilty of the charged offense; and guilty of the lesser included offense. The form did not contain a line on which the jury could indicate that it had found the defendant not guilty of the lesser offense. The jury returned a verdict of guilty as to the lesser offense. The defendant did not object to the form at trial, but raised the issue for the first time on appeal. Quoting from an 1888 case, the Court of Criminal Appeals reiterated that the jury form is considered part of the charge to the jury. While it is not essential to the sufficiency of the charge that it should instruct the jury in the forms of verdict which may be rendered, when such instructions are given they should embrace every verdict which might be rendered in the case, so as to avoid conveying to the minds of the jury any impression as to the opinion of the court as to which of several verdicts should be rendered. Kirsch v. State, No. PD , 2010 WL (Tex. Crim. App. February 10, 2010) The defendant was charged with DWI. During the State s case in chief, the prosecution offered testimony that Appellant s blood alcohol level at the time a blood test was performed almost an hour and a half after the defendant s car accident was The State did not offer any testimony concerning retro extrapolation. The trial court admitted the blood alcohol testimony with a limiting instruction that stated that the jury could consider the evidence for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the test. The trial court submitted both theories of intoxication to the jury that the defendant had a blood alcohol concentration of.08 and that he had lost the normal use of his mental or physical faculties. The jury found the defendant guilty in a general verdict. On appeal, the defendant argued that the trial court had erred in submitting the per se intoxication definition in the charge because the court s limiting instruction prohibited the jury from considering the blood alcohol results for anything more than evidence that he had consumed alcohol. 10

13 The Court of Criminal Appeals agreed with the intermediate court that the limiting instruction was erroneous, but concluded that the submission of the per se instruction was not. Evidence is sufficient to support a jury charge on the per se theory of intoxication if it includes either (1) expert testimony of retrograde extrapolation, or (2) other evidence of intoxication that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test. While the blood alcohol test results were not conclusive evidence of the defendant s intoxication at the time he was driving, it was probative and, coupled with the other evidence [of intoxication], could suffice to prove per se intoxication at the time she was driving. Thus, an instruction that informed the jury that they could consider the test results as evidence that the defendant had consumed alcohol only at sometime before the test, and not for the purpose of determining whether the defendant was intoxicated, was misleading as well as an improper comment on the weight of the evidence. Despite the erroneous limiting instruction, there was sufficient evidence for the jury to conclude that Appellant was per se intoxicated. Gonzales v. State, No. PD , 2010 WL (Tex. Crim. App. April 28, 2010) On the day of trial the defendant, charged with two counts of aggravated sexual assault of a child, filed a motion for the appointment of an expert and a motion for continuance. The trial court granted the motion for the appointment of an expert, but denied the continuance. Having been found guilty of both counts, the defendant filed a motion for new trial complaining of the denial of the continuance. The trial court denied the motion without a hearing. On appeal, the Court of Criminal Appeals explicitly held that in order to show reversible error predicated on the denial of a pretrial motion for continuance a defendant must demonstrate both that the trial court erred in denying the motion and that the lack of a continuance harmed him. Thus, in a motion for new trial a defendant must allege facts to establish both prongs. If the trial judge can determine from the record that he did not err, there is no need to conduct a hearing on the issue of harm. Furthermore, there is a diligence requirement that constitutes a precondition for a continuance based upon the need for additional trial preparation. Since the defendant failed in his motion for continuance to plead facts that would establish his diligence in seeking expert assistance, the trial court did not abuse its discretion in overruling the motion and in failing to conduct a hearing on the defendant s motion for new trial. Joseph v. State, No. PD , 2010 WL (Tex. Crim. App. February 24, 2010) The defendant, a suspect in a murder case, was taken to the police station where he was Mirandized before being questioned. Asked if he understood his rights, the defendant replied, Yes, sir, and signed the warning card, but never explicitly stated that he had agreed to waive his rights. He then willing participated in a six hour interview, during which he several times refused to answer certain questions. On appeal, the defendant asserted that his statement should have been suppressed because there was in the record no written or articulated waiver of his rights before questioning began. The question, Court of Appeals concludes, is not whether the defendant explicitly waived his rights, but whether he did so knowingly, intelligently, and voluntarily. A waiver need not assume a particular form, and can be inferred from the actions and words of the person interrogated. Here, the 11

14 totality of the circumstances surrounding the interrogation shows [the defendant s] waiver was made with full awareness of both the nature of the rights being abandoned and that consequences of the decision to abandon them. Carter v. State, PD , 2010 WL (Tex. Crim. App. March 24, 2010) The defendant, arrested for drug possession after a traffic stop, made several incriminating statements to the arresting officer as he was being transported to jail. At trial the defendant complained that his subsequent confession should be suppressed because the trooper asked him whether the substance that had been seized was cocaine before Mirandizing him. The trial court overruled his motion to suppress. After reviewing the handful of Supreme Court cases that have addressed the admissibility of post warning confessions made after inadvertent, minimal Miranda violations, the Court of Criminal Appeals adopted the rule suggested by Justice Kennedy in his concurrence in Missouri v. Seibert: a trial court must determine whether the pre warning questioning was part of a deliberate plan to undermine a suspect s Miranda protections. If the court concludes that it was not, it then must only determine if the defendant s post warning statements were voluntarily made. If the court concludes that the questioning was part of a deliberate plan to evade a defendant s Miranda protections, the court must then apply the objective, multifactor test set out in Seibert to assess whether midstream warnings during questions could have been effective to accomplish the goals of Miranda. Courts of appeals reviewing a trial court s conclusions should apply a highly deferential review similar to that of the Guzman standard. Applying both standards, the Court of Criminal concluded that the trooper s pre Miranda questioning was inadvertent and not intended to acquire an advantage in the interrogation process. It then affirmed the trial court s conclusion that the defendant s post warning statements were voluntary. Stringer v. State, No. PD , 2010 WL (Tex. Crim. App. April 14, 2010) Appellant, charged with possession of child pornography, entered an open plea and requested that the trial court assess punishment. The court accepted the plea and ordered a PSI. At the sentencing hearing, the defendant objected to portions of the PSI that contained facts about a pending un adjudicated offense on the grounds that the statements in the report violated Crawford. The trial court overruled the objection, and the court of appeals eventually concluded (after one remand) that the defendant had forfeited his right to assert the Confrontation Clause by relying on positive portions of the PSI in arguing for probation. After reviewing federal precedent on the issue of Crawford at punishment, the Court of Criminal Appeals rejects both the defendant s argument and the court of appeals resolution of the issue. A defendant s request for probation and reliance upon positive information in a PSI does not bar him from objecting to other portions of the report. Nevertheless, the defendant was not entitled to relief: We hold that when a PSI is used in a non capital case in which the defendant has elected to have the judge determine sentencing, Crawford does not apply. For us to conclude in Appellant s favor would require a trial judge to hold a mini trial for sentencing and would thwart the purpose of the PSI as a tool for the court to use in determining punishment. The court was careful to narrow its holding as much as possible: This holding is limited to a sentencing hearing in which the judge assesses punishment. We 12

15 need not address here whether Crawford applies when a jury determines the sentence in a non capital case. 13

MARK PEREZ, APPELLANT THE STATE OF TEXAS, APPELLEE STATE S BRIEF

MARK PEREZ, APPELLANT THE STATE OF TEXAS, APPELLEE STATE S BRIEF Nos. 05-11-01575-CR and 05-11-01576-CR The State Waives Oral Argument 5th Court of Appeals FILED: 06/04/2012 14:00 Lisa Matz, Clerk IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS MARK

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