July/August 2004 VOICE FOR THE DEFENSE 1

the conviction or duration of the sentence. Court rejects the
state’s argument that its holding would open the floodgates to
all manner of method-of-execution challenges and last-minute
stay requests. Because the Court does not here resolve the question
of how to treat method-of-execution claims generally, the
instant holding is extremely limited. Moreover, merely stating
a cognizable §1983 claim does not warrant a stay as a matter
of right. A court may consider a stay application’s last-minute
nature in deciding whether to grant such equitable relief. And
the ability to bring a §1983 claim does not free inmates from
the substantive or procedural limitations of the Prison Litigation
Reform Act of 1995.
Officers may conduct search of entire vehicle even if
defendant is already outside car: THORNTON V. UNITED
STATES, __U.S.__, 124 S.Ct. 2127, 158 L.Ed. 2d 905 (2004),
Cert to 4th Circuit (325 F.3d 189), Affirmed, 5/24/04; Opinion:
Rehnquist.
Officer observed Thornton suspiciously driving, but before
he could pull him over, Thornton drove into a parking lot and
got out of his vehicle. Officer asked him for his license and
told him that his license tags did not match the vehicle he was
driving. After consenting to a pat-down, Thornton admitted
to possessing dope, and was arrested. A search of the vehicle
revealed a handgun under the driver’s seat. Thornton sought to
suppress the firearm as the fruit of an unconstitutional search.
District court denied the motion and on appeal, Thornton
argued the rule in New York v. Belton (which states that when
an officer has made a lawful custodial arrest of an occupant of
a vehicle, the Fourth Amendment allows the officer to search
the passenger compartment of the vehicle as a search incident
to arrest) was limited to situations where the officer initiated
contact with an arrestee while he was still an occupant of the
vehicle. The 4th Circuit affirmed the conviction.
HELD: A police officer may search the suspect’s vehicle
even if the police officer made the custodial arrest after the
suspect left his vehicle. Belton governs even when an officer
initiates contact with a suspect while the suspect is out of his
vehicle. The Court explained that Belton’s rationales of preserving
evidence and officer safety are the same whether or not the
officer initiates contact while the suspect is inside or outside
the vehicle. Further, although the firearm in this case may not
have been readily available to Thornton since he was out of his
car at the time of the initial contact with the officer, nevertheless,
Belton applies because of the necessity to establish a clear
rule for police officers during a custodial arrest. Thus, once an
officer determines that probable cause exists for an arrest, it is
reasonable to allow officers to ensure their safety and to preserve
evidence by searching the entire passenger compartment of the
vehicle. 4th Court’s judgment is therefore affirmed.
FIFTH CIRCUIT
Ineffective Assistance – Failure to properly advise of base
level offense: UNITED STATES V. GRAMMAS, __ F.3d __, (5 th
Cir. No. 03-50310 2004)
Counsel held ineffective in altering vehicle identification
number case for failing to realize (and, therefore, failing to advise
the defendant) that his prior convictions were crimes of violence
that raised the base offense level for sentencing. Counsel’s
conduct was deficient because failure to properly advise the
defendant of the maximum sentence that he could receive falls
below an objective standard of reasonableness. The defendant
was prejudiced because there is a reasonable probability that
if he had known of the greater sentencing exposure, he would
have pled guilty and availed himself of a guidelines reduction
for acceptance of responsibility.
COURT OF CRIMINAL APPEALS
PDR OPINIONS
State’s PDR from Montgomery County, Dismissed as Moot,
5/5/04 – State cannot appeal from pretrial order because
such appeal is interlocutory: MARK HAMILTON MORGAN
v. State, __S.W.3d __ (Tex.Crim.App. No. 1083-03, delivered
5/5/04); Offense: DWI; Sentence: (none – state’s appeal); COA:
110///512 – Beaumont 2003; Opinion: Keasler, joined by everyone
but Keller and Cochran, who concurred in result.
Appellant was charged by information with DWI, with one
prior DWI alleged for enhancement. The state wanted the judge
to make “a pre-trial determination of whether, if the defendant
is found guilty, the jury will be instructed to consider a Class A
range of punishment if the prior conviction is found true” as
he had done in previous cases. The State explained that it was
seeking a pretrial ruling rather than disrupt the proceedings
with an appeal after a finding of guilt. The judge refused, stating:
“it’s impossible for the Court to instruct on a Class A range
because same has not been pled because I feel like it has to be
an element of the offense to come under 49.09 Class A offense.
The separate paragraph is pleading for enhanced B under 12.43
of enhancement for punishment, and that’s not what the State
wants.” In a written order, the judge granted the state’s motion
in that he agreed to provide a pretrial ruling. He ruled that he
would not instruct the jury on the Class A range of punishment
if the defendant were found guilty and the enhancement paragraph
were found true. The State appealed this pretrial ruling.
COA held it had jurisdiction over the appeal, but remanded the
case to the trial court after finding no error in what the trial
court had done. State’s PDR was granted to determine whether
the prior conviction of a DWI offense punishable as a Class A
misdemeanor is an element of the offense that should be read
and proved by the State at guilt-innocence. CCA also granted
review on its own motion to determine whether Art. 44.01, or
any other law, authorizes the State’s appeal in this case.
38 VOICE FOR THE DEFENSE July/August 2004