Sunday, January 14, 2007

Enhancement and Double Jeopardy

OUT-OF-STATE CONVICTIONS FOR ENHANCEMENT PURPOSES

Habeas Corpus Application from Tarrant County—Relief Denied
For purposes of Texas Penal Code §12.42(c)(2)(B), probated convictions may be used for enhancement.
Ex Parte White, __S.W.3d__(Tex.Crim.App. No. 75,308, 1/10/07); Opinion: Price (Unanimous).

Applicant was convicted of indecency with a child. Applicant had previously been convicted of similar crime in Delaware. Applicant argued Delaware conviction not final for enhancement purposes because conviction was probated.

Held: Probated foreign convictions for crimes similar to indecency with a child may be used to enhance punishment in Texas for an offense listed under §12.42(c)(2)(B) of the Texas Penal Code (indecency with a child). CCA noted general rule regarding enhancements is a probated sentence is not a final conviction for enhancement purposes unless it is revoked. Ex Parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992). However, under Texas Penal Code subsection 12.42(g)(1), a defendant has been finally convicted of an offense similar to indecency with a child if defendant entered a plea in return for a grant of deferred adjudication, regardless of whether the sentence was probated and defendant was subsequently discharged from community supervision.

Habeas Corpus Application from Collin County---Relief Denied
A legal basis is unavailable if it has been exhausted by previous presentation to the CCA, but that legal basis can become newly available as a result of later, binding precedent relevant to the issue in question.
Ex Parte Hood, __S.W.3d__(Tex.Crim.App. No. 75,370; 1/10/07); Opinion: Keller, P.J.; Joined by Meyers, Price, Keasler, and Hervey. Dissent: Cochran; Joined by: Womack, Johnson, and Holcomb.

Applicant was convicted of capital murder and sentenced to death. Applicant appealed, challenging the efficacy of the nullification instruction. CCA denied the appeal. On third application for writ of habeas corpus, Applicant again raised the issue of the nullification instruction. Issue was whether this application was barred by the subsequent application prohibition.

Held: Subsequent application for writ barred for failure to present new factual basis and new legal basis for the claim. The subsequent application prohibition bars repeated application for writ of habeas corpus unless one or more of the following exceptions apply: one, the innocence gateway exception; two, the no rational juror exception; and three, the unavailability exception. The unavailability exception requires a new factual basis or a new legal basis which did not exist at the time of a previous application for writ of habeas releif. Applicant claimed recent United States Supreme Court decision provided new legal claim which was unavailable at the time of previous applications. CCA help Applicant did not supply a previously unavailable legal basis for challenging the original nullification holding because the Supreme Court decision upon which Applicant relied for his third application had been rendered at the time Applicant filed his second application.

IMPORTANT DECISION-- DOUBLE JEOPARDY CLAUSE

Appellant’s PDR from Tarrant County- Reversed in Part
Ex Parte Lewis, __S.W.3d__(Tex.Crim.App. No. 0577,05; 1-10-07). Opinion: Keller, P.J., Joined by: Womack, Keasler, and Hervey. Concurrence: Cochran. Dissent: Price. Joined by: Meyers, Holcomb, and Johnson.
http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=14909

In Bauder v. State, the CCA held the Double Jeopardy provision of the Texas Constitution prevented retrials “when the prosecutor was aware of but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request.” CCA overturned Bauder and stated the proper rule under the Texas Constitution is the rule articulated by the United States Supreme Court in Oregon v. Kennedy.

Held: Double Jeopardy Clause bars retrial when a defendant successfully moves for a mistrial only where prosecutor engages in conduct that is intended to provoke the defendant into moving for a mistrial. CCA ruled that the Bauder decision was flawed in a number of ways. One, the decision has led to a “troubling array” of definitions of reckless and intentional. This has led to difficulty in correctly interpreting and applying the Bauder standard. Second, the courts of this State have been unable to articulate what the “reckless” standard seeks to protect which is not adequately protected by the “intentional” standard. The Kennedy standard is “workable, appropriately narrow, and comports with the purpose of the double jeopardy provision’s application to the mistrial setting.”

Saturday, December 30, 2006

A defendant is entitled to a lesser included offense instruction if (1) proof of the charged offense includes the proof required to establish the lesser included offense and (2) there is some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty of the lesser included offense.

Christian Rafael Trujillo (“Appellant”) was charged with murder. A jury found Appellant guilty of the lesser included offense of manslaughter, and assessed punishment at 17 years in prison. Appellant appealed, claiming the trial court erred in refusing to provide a jury instruction on the lesser included offense of criminally negligent homicide.

An offense is a “lesser included offense” if “it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.” Tex.Code Crim. Proc. Art 37.09(3). A person is criminally negligent when he is aware of but disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. Tex.Penal Code §6.03(d). Although the proof required to establish murder included the proof required to establish criminally negligent homicide, Appellant did not present evidence to show that he failed to perceive the risk created by his conduct. Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App. 2001). The Court held that the trial court did not err in failing to give an instruction on criminally negligent homicide.

Christian Rafael Trujillo v. The State of Texas
Court of Appeals for the First District of Texas
On Appeal from the 176th District Court, Harris County
Cause No. 964659

2. Defendant must object to court reporter’s failure to transcribe bench conferences in order to preserve issue for appeal.

Aundri Lewis (Appellant) was found guilty of aggravated assault. The jury assessed punishment at 45 years in prison. Appellant appealed, claiming he was entitled to a new trial because the court reporter failed to transcribe bench conferences.

The official court reporter must, unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings. Tex.R.App.P. 13.1(a). However, appellant who claims error based on a failure to record court proceedings must establish, at a minimum, that a record was requested. Tex.Gov’t.CodeAnn. §52.046. Rule 13.1(a) conflicts with and must yield to §52.046. Polasek v. State, 16 S.W.3d 82, 88-89 (Tex.App. –Houston [1st Dist.] 2000, pet. ref’d). Thus, to preserve error, defendant must object to court reporter’s failure to record proceedings.

The Court held that Appellant failed to timely object to reporter’s failure to record bench conferences; thus Appellant did not preserve the alleged error for appeal.

Aundri Lewis v. The State of Texas
Court of Appeals for the First District of Texas
On Appeal from the 230th District Court of Harris County.
Cause No. 1024294
3. Fire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury and is, therefore, a “Deadly Weapon” under Texas Penal Code

Seleta Yotarsha Chambers (“Appellant”) pled guilty to recklessly causing serious bodily injury to a child and first degree arson. The jury assessed punishment at 12 years for the first charge and 10 years for the second, probated for 10 years. Appellant appealed, claiming the trial court erroneously included an affirmative deadly weapon finding in each judgment. Appellant’s claim was based on the assertion that fire cannot be considered a “deadly weapon.”

A deadly weapon is a “firearm or anything manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury” or “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex.Penal Code §1.07(17)(A), (B). Although fire is not a physical object in the same sense as a gun or knife, it is not intangible either, but rather manifests itself through the tangible aspects of combustion- namely, light, flame, and heat. Taylor v. State, 735 S.W.2d 930, 948 (Tex.App.-Dallas 1987). The Court concluded that fire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury and is, therefore, a “Deadly Weapon” under Texas Penal Code.

The Court then determined the Appellant’s manner of using fire, utilizing aeresol cans to purposefully set the couch in her apartment on fire, was capable of causing serious bodily injury and death.

Seleta Yotarsha Chambers v. The State of Texas
Court of Appeals for the First District of Texas
On Appeal from the 405th District Court of Galveston County.
Cause No. 03CR3895

Thursday, December 07, 2006

Relevance?

“Objection, your honor, relevance.” This is an oft-used objection heard often in courtrooms and in Hollywood. Today, the Texas Law travels to Houston to investigate the Relevance Objection.

Mr. Leonard Reed was convicted of aggravated assault and aggravated sexual assault and sentenced to 80 years in prison. He appealed, claiming, other things, that the trial court improperly overruled his relevancy objection to State proferred testimony.

Texas Rule of Evidence 401 defines relevant evidence as “evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable that it would be without the evidence.” Rule 402 states that “all relevant evidence is admissible.”

Evidence need not, by itself, prove or disprove a fact all at once. Rather, as stated in Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), evidence is relevant if the “the evidence provides a small nudge toward proving or disproving some fact of consequence.”

In this case the evidence presented did not in itself prove a fact of consequence. However, it did provide facts which relevant to an issue of the trial. Thus, the evidence was admissible and the trial court properly overruled the hearsay objection. Conviction affirmed.

Leonard Reed, Jr. v. The State of Texas
On Appeal from the 179th District Court; Harris County, Texas

Sunday, December 03, 2006

When is a Statement Testimonial?

Crawford established the rule that the 6th amendment bars admission of testimonial statements made by a witness who did not testify at trial, unless the witness was unavailable to testify, and the defendant had a prior opportunity to cross-examine the witness. Crawford left unanswered the question of what constitutes “testimonial.” Earlier this year, the Supreme Court answered this question in Davis v. Washington.

Davis combined two cases, one from Washington and the other from Indiana. In the case from Washington, Davis v. Washington, Mr. Davis was convicted of felony violation of a domestic no-contact order. At trial, the State introduced over defense objection the statements made by Mr. Davis’ girlfriend to a 911 operator. The statements made by Ms. Davis to the operator relayed the events of the altercation with her boyfriend as these events were unfolding. She did not testify at trial and Mr. Davis had no prior opportunity to cross-examine her.

In the Indiana case, Hammon v. Indiana, Mr. Hammon was convicted of domestic battery. The State introduced at trial an affidavit signed by Ms. Hammon and given to police at the time of the incident. The statements Ms. Hammond made were her recollection of the altercation. She did not testify at trial and Mr. Hammon had no prior opportunity to cross-examine her.

The Supreme Court ruled that the Washington court’s admission of the statements made to and by the 911 operator were not testimonial. Conversely, the Court ruled the statements in Hammon were testimonial. In so doing, the Court established the rule by which statements will be deemed testimonial or not. In essence, the determination turns on the tense in which the statements are relayed to police. Generally, if told in the past tense, the statements are testimonial. If the statements to police are told in the present tense, then the statements are non-testimonial.

This is in keeping with a long line of Supreme Court precedent that reflects a trend that, generally, the higher degree of formality associated with the giving of the statement, the more likely it is that the statement is testimonial. The rule of Davis is that statements made to police are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. The admissibility of such statements is properly analyzed under existing hearsay rules. Such statements do not implicate the Confrontation Clause.

On the other hand, statements made under circumstances which objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In the Washington case, the Court ruled that the statements were non-testimonial because they were made to a 911 operator to deal with an ongoing emergency. The Court ruled in the Indiana case that the statements were testimonial because they were made to a police officer after they had occurred. The police officer was in the process of investigating a potential crime.

Davis v. Washington; Hammon v. Indiana
Supreme Court of the United States

Tuesday, November 28, 2006

Confrontation Clause- Texas Style!

On November 25th, The Texas Law investigated the Supreme Court landmark decision, Crawford v. Washington. Today the Texas Law returns to Texas and visits the Court of Appeals, Second District in Fort Worth to see Crawford in action, Texas-style. Later this week, the Texas Law continues with the Confrontation Clause theme and returns to the hallowed halls of the United States Supreme Court to investigate Davis v. Washington. The Texas Law then will investigate a Texas Court’s application of the rule of law set forth therein. But for today, let’s delve back into Crawford and explore how its application intertwines with a well-known hearsay exception.

Luis Carlos Gongora, Jr. was charged with the murder of Christina Sigala. At trial Tomas Mora, a State witness, testified about a conversation he had with the defendant during which Mr. Gongora admitted his involvement in the shooting. The defense objected on hearsay and confrontation grounds. The Court admitted the testimony under the “statement against penal interest” exception o the hearsay rule. Mr. Gongora was convicted and sentenced to life imprisonment. Mr. Gongora appealed, claiming that he was denied his 6th Amendment Right to confront the individual whose statements were offered into evidence through Mr. Mora.

Mr. Gongora claimed that, under Crawford, the statements of a non-testifying witness are inadmissible against him unless he had the opportunity to cross-examine the declarant about the statements. The Court stated that the threshold inquiry in Confrontation cases is whether the statement at issue is “testimonial or non-testimonial in nature.” Although Crawford stopped short of defining testimonial, it “recognized that statements made in the following contexts are indisputably testimonial: ex-parte testimony at a preliminary hearing, testimony before a grand jury, testimony at a former trial, and statements derived from police interrogations.”

The Court ruled that Crawford was inapplicable in this case because the statements were non-testimonial in nature. It ruled that the statements “were simply casual remarks spontaneously made by Maldonado while he hung out with Mora” and thus cannot be regarded as testimonial. Conviction affirmed.

The Rule is clear: the Confrontation Clause is not implicated unless the statements at issue are testimonial in nature.

Saturday, November 25, 2006

The Confrontation Clause

The 6th Amendment to the United States Constitution guarantees that criminal defendants will have the opportunity to confront those who bear witness against them. This guarantee is a product of the natural truth that cross-examination is the greatest method ever devised for extrapolating the truth from witnesses.

There are instances when individuals have provided evidence against a criminal defendant, but then are unable to testify at trial. When such evidence is introduced at trial, it is known as hearsay. Hearsay is generally inadmissible. However, the legal system recognizes several exceptions to this prohibition and permits the introduction of hearsay when certain circumstances exist. The introduction of such hearsay denies the defendant the opportunity to confront the person who made the statements-- an affront to the 6th Amendment. To justify this variance from the Constitution, the Law presumes some forms of hearsay are inherently truthful.

The Texas Law today travels to the Supreme Court of the United States to investigate the landmark decision of Crawford v. Washington. This decision dealt with the admission of hearsay and has profoundly changed the way in which criminal trials are conducted.

Michael Crawford was convicted of attempted murder. At his trial, the prosecution used statements made by his wife to police. Mr. Crawford’s wife did not testify at trial and thus he was unable to cross-examine her about these statements. Mr. Crawford appealed, claiming that the introduction of his wife’s statements violated his 6th Amendment rights. The Washington Supreme Court disagreed, holding that the statement “bore particularized guarantees of trustworthiness.” In making this determination, the Court used what is known as the Roberts Rule. The Roberts Rule says that an unavailable witness’s out-of-court statement is admissible so long as it has sufficient indicia of reliability: it either falls within a firmly rooted hearsay exception or bears sufficient guarantees of trustworthiness.

The U.S. Supreme Court reversed the decision, and in so doing created new rules of law. First, all “testimonial” statements must be subjected to cross-examination in order to be admissible. When a statement is given under circumstances in which it is reasonable to presume that the statement will be used in a prosecution against a defendant, such statements are “testimonial.” It is axiomatic that in-court testimony and most sworn statements are testimonial. This decision added statements taken by police officers in the course of their investigation to the definition of testimonial statements.

This changed the law in two momentous ways: first, the exceptions to the hearsay rule will no longer be used to determine the admissibility of testimonial hearsay statements. Hence, these standards are reserved only for the determination of whether non-testimonial hearsay statements are to be admitted into evidence. Second, the decision mandates that testimonial hearsay statements made by a witness who will not testify at trial are admissible only if the defendant had a prior opportunity to cross-examine the witness about the statement. The court replaced the discretion of judges in determining what the Court called “amorphous descriptions of reliability” with the procedural safeguard of confrontation as the ultimate determinant of truthfulness.

This decision overturned Mr. Crawford’s conviction because Mrs. Crawford’s testimonial statement to police was not subject to cross-examination.

Crawford v. Washington
Supreme Court of the United States

Wednesday, November 22, 2006

The Power of Impeachment

After a prolonged absence, the Texas Law returns today and ventures into the bewildering realm of criminal evidence. One function of examination of witnesses is to enable attorneys to attack the credibility of witnesses. A particularly effective method of doing so is the practice known as “impeachment.” Today, we visit the city of Tyler to investigate one method: impeachment via a prior inconsistent statement of the witness.

Mr. Jason Miller was convicted of aggravated sexual assault and sentenced to fifteen years imprisonment. He appealed his conviction, claiming that the trial court improperly excluded evidence of the victim’s previous claims of sexual abuse.

While on the stand, the victim testified that she had never before been subjected to sexual abuse. The defense then questioned the victim about statements the victim had previously made to another person concerning past sexual abuse. When a lawyer seeks to introduce evidence which is not presented by the witness while currently testifying, such evidence is called extrinsic evidence. Extrinsic evidence is generally inadmissible. However, extrinsic evidence of prior inconsistent statements may be admissible if two requirements are met: One, the witness that supposedly made the prior inconsistent statement must be told the contents of the prior statement, and when, where and to whom the statement was made. Two, the witness must then be allowed to explain or deny such statement. This two-step process is referred to as laying a proper predicate. If the witness admits to having made the prior inconsistent statement, then the extrinsic evidence of such statement is inadmissible. If, on the other hand, the witness denies having made such statement, then the extrinsic evidence of that statement is admissible.

In this case, the defense asked the victim whether or not she had ever claimed in the past that she was the victim of sexual abuse. She responded that she had not. The defense then sought to impeach the victim by introducing evidence that the victim had in the past admitted being sexually assaulted. However, the defense merely asked the victim whether or not she had told someone she was assaulted. The defense failed to lay a proper predicate. Thus, the court correctly declined to admit the evidence.
Jason Lyle Miller v. The State of Texas
In the Twelfth Court of Appeals District
Tyler, Texas
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