10 DECEMBER 2001 - Voice For The Defense Online

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SIGNIFICANT DECISIONS REPORl i I ted in endence and playd for tl~e jury. On he tape, Appellant could be heard telling Johnson that IE wanted the witness "take11 care oP' and that he had already paid mother inmate to kill hec Among other things, he also sl~owed Jol~nson a map to the witom' home, gave a descriptioo of her house a ~d mailbox, and promised to pay Jolmson $1500 for the killing. Held: Appellant's 6"' Amettdment ripl~to counsel was violated. and the e ~~or 7vas hilrmfi~l. At the tune of the interrogation, Appellant was cl~arged with capital mn~~rder, but not with solicitation to murder. Relying on settled Supreme Court and CCA precedent, CL4 observes that while the evidence would be adnussible during a trial for solicitation (baause Ms 6~hAmendmmt right to counsel had oot yet attacl~ed for that offense), it would not be admissible during t11e guill/i~~ocenee phase of Itis tdal on capital murder. As for the ponishnmt phase, CCA points to its recent decision in WaFlbmok, 29lN103 (CGA 2000), cert. denied, 121 S.Ct. 1407 (201)1), wliicl~ involved a simila fact scalario u~volving the same undercover cop, who posed as a hit man and tape-recorded the conve~%itio~~. CGA held the defendant's 6" Amendment rights had been violated because his light to counsel had attached, aud co~insel was not oolined of the Interrogation. Similarl~ Appellant's right to counsel was violated W~ICII the State soltcited the tape-recorded conversation and used it against Appellant during punishment at I& capital murder trial, charges of rvl~iclt were perld!ng at time of the co~~ve~sation. The error uyas harmful under TRAP 44.2(a) because without the improperly admitted evide~ce, the State would 11ave had only the testimony of Rad, who had reported to the cops Ll~atAppell;u~t tried to hire sonleone to kill thewitnm. The ju~y would not hae known that Appellant made p1a11s u4tl1 Johiison for Jolmson to retrieve a gun and kill the u4tness. The State empl~asized the taped conversation durhg its closing statements, and the other evidence of h~h~re dangerousness uras considerably less tl~an the evidence in Westbrook (u~clodh~g 5 murders), wlllch was not reversed because 5 judges ag~tcd the inadmissible eddence uras harmless. Here, tile CGA camlot say beyond a reasonable doubt that the tape did not inhence the sentencing joy Sentence is vacated, and we is remanded for a newr punisl~ment hcariug. Keller Dissent: Aitl~ougl~ the 11Lljority's decision is consisteot with iFttf6rook, CGA should "take this opportu~lity to reexamine and disavow lVttb~wLs conclusions about the admissibility of tl~is t)pe of evirlence." In Te.ws u Cobb, 121 S.Ct 1335 (2001), Supremes disavoucd doctrine of extending 61' Amendment right to counsel to unclmged offenses closely related to tl~e charged offense. The evide~m should at least be admissible during panisltmeot. PDRS GRANTED IN OCTOBER 2001 1026-01 HIRES, CHARLES 10110101 S Harris Aggravated Kidnapping (040lln05) 1. Wl~etl~er the Court of Appds erred in considerhg extrn tatual facto~s, such as legislative histoy, to determine whai constitutes "subst;uaial interfe~tnce" for purposes of the kidtlapping statute; and whether the snlllciency of the evidence to support Appellant's kidoapping conviction sho111d be measured by the plain language of the elements provided in tile kiduapping slatute. 1164-01 RODRIGUEZ, CWOS 10110101 A Wicluta Failure to Register as Sex Offender (045///685) 1. Da Le 1997 mendments to the sex offender registmtion law violate the "ex past facto" cla~~se of tile U.S. and Texas ConsUtutions by requirhxg persons convicted prior to the aamendment's effective date to register as a sex offender for life 1168.01 ZUJJANI, GERALD CHRISTOPHER 10110101 A Travis i\ssault w/Bodily hljaly (hT) 1. In ~wolving Petitioner's claim that the evidence presented at trial is factually i~isulliciento establisl~ bey011d a reasonable doubt that 11e did not act in self-defense, d~e Coud of Appds applied incorrect standards of review. 2. The Court of Appds erred in holding that the tial court did not abuse its discretion by admitting inlo evide~~ce at trial, under the e~clted utterance exception to the hea~xay rule, Judy Tobey's testimony about Patti Dwinell's sktements to her on Pebrua~y 3, 1999. 1196.01 SCI+RINEhIAN, MICHAEL AUGUST 10110101 S (SPA) Kerr Mtempted Burdaly (047/1/754) 1. in the absence of express assumaces of privac): is an accused's subjective expcchtion of privacy in a police inteniew room one tl~at society is prepared to recognize as objectively reasonable 1364-01 PmNTE, AhTHONY YllW 10/10101 S (SPA) F& Possession of Cocaine (04W370) 1. Wl~ere the Defendat~t, ~III~IIWI~ to a plea bargain, plead [sic] guilty to a fclot~y (over uzhicll the district court 11d jurisdiction) md hvo misdemeanors (over which the district court did not have jurisdiction), may the state waive the illegal poltion of the j~tdgment (deferring adjudicatlon on the misdemeanors) such that the district court rekios judsdiction on the felony 2. \%ere the Defendant plead [sic] guilty to a felony (over wlucll the dish'fct court had jurisdiction) and two misdemeanors (over wl~ich the district coud did not haw jurisdictioo), and uvs placed an deferred adjudication comninnity supcn4sio11, may the defendant raise a claim relating to the odginal plea proceedmg in an ~ppd from the adjudication of his guilt on the felony 3. Does a misjohder of offenses render void all judgments of conviction for all of the nu'sjoit~ed olIenses7 1039140-01 SMITH, DESZICK 10/24/01 S Falls Iojuly to a Cldd; Criminal Trapass; Assault: (40///70l) 1. Did the Court of appeals err by imposing tl~e disposition of returning the paties to their pre-plm StahIS as a remedy for nlisjoinder of felony and mnisden~ea~or offenses in one iodictmentl 1195-01 WEST, K&\WTIi 10/24/01 AHwris Murder: (NP) 1. The Court of Appds erred in holding that Appellant failed to preserve error to tl~e admission of an ext~w~eou$ shooting and in hold- 36 VOICE FOR THE DEIENSI \HWW.TCDLA.COM DECEMBER 1001
I SIGNIRCANT DECISIONS REPORT - - ing that the evidence was admissible, 2. fl~e Court of Appds erred in lrolding that Appeliant wm not entitled to a joy instruction on the law of seK-defense as it applied to the extmeaus sl~ooting. 1263-01 MIDDIBTON, DAVlD WAYNE 10/24/01 A Wise POCS: (NP) 1. Should a trial court provide the ju~ywith a deEtnition of the term "probable cause" in an aa. 38.23 inst~uction 0652-00 Ex Pate TAYLOR, PHILIP DMEI. 10/31/01 SPA Bwzos IntoxicRtion Manslaughter: (NP) 1. where a jury retnms a verdict of not guilty, necessarily based npon a negative finding regarding a speciEally alleged m e r or means of proving an ultiniate issue, is the state precluded frnm reUtigating the same ultimate ime, bwd upon a different manner or menos, in a subsequent proceeding between the same parties 2. Does a jury verdict of not guilty in a intoxication manslaughter prosecution, necessarily bbase upon a negative finding regarding intoxication by alcol~ol, preclude the state from relitigating theisstre of intoxication by alcohol and malimanain asubsequent prosecution for intoxicauon manslaogl~ter bctueen the same parties 124314-01 IDO\VA, VICTOR ABIMBOIA 10/31/01 A Dallas Then & Sccuriag Docunleot by Deception: (NP) 1. Should the Dallas Comt of Appmls have decided the proper mount of restitution when the attmney at the hmw on the motion fur new trial (old the trid court that an issue wcmld be the mount of restitution and the evidence sl~owed that the trial cou~t abused its dis- Wetion hi ordering $14,522.45 in restitution as a condition of probation. 1464-01 RAMImZ, 1.ETlCIA hiARIACA 1W31/01 SPA Smith Theft: (NP) 1. After die 1985 ~onstitulional amahent to Art. Y g 12, does the amendnlent or cl~ange of a complaint that nnderiies an information operate to vitiate the complaint and diva the trial cwrt of jnrisdiclion 2. Does a defect in a complaint that underlies an hlforn~ation consUtnte a defect in the inhmation that is waived if not dsed prior to tdal **Qe following State's PDRs from Harris County were all from convictions for Engaging in Ocgankred Criminal Activity, and were granted on identical issncs: 1220-01 BAIIH, BRENDA SUE 10/31/01: (44N690) 1221-01 DABIN, JOHN 10/31/01: (44M90) 1222-01 SCHNUR, JLW 10131/01: (44///690) 1223-01 scImm, RALPH 10/31101. (44///690) 1224-01 COLEMAN, CHARiK3 10/31/01: (44///690) 1225-01 BABIN, JOHN AJDiV 10/31101: (4W690) 1226-01 COLEMAN, CHARGES EmCIS 10/31/01: (4#//690) 1227-01 SCHNUX, W I I 10/31/01: (44/N610) 1228-01 SCHNtiR, JAMES ARNOLD 10/31/01: (44///690) 1229-01 BAUFI, BRENDASUE lW31/01 (44///690) 1. Do federal double Jeopardy pIjl~ciples bar a second tt.ial for the same offense &er tile petitionerswere acquitted if the state cl~anges its the017 as to who owned tlie property dlegedly stolen 2. IsSnlothermat~ u. Sfate, 415 S.W.2d430 (Tex. CCdm.App. 1967) Still good law mder federal double jeopady priaciples COURT OF APPEALS CO-DEFENDANTS HAVE EXPECTATION OF PRIVACY IN POLICB INI'BRROGATION ROOM: TRWJNO F! SlBB, No. 04-00- 00580-CR (9/19/@1), Continuing with its holding in State u Scbefnemann, 47///754 (San Antonio 2001), COA holds that the defendant had a justiftable expectation of prhszcy when the police, unknown to him, put him in mom with codefendant in order to overhear their come~mtion. Suppression of sfatenlenfs upheld. [* * * Note: CCA has also gmted revlew of a State Prosecuting Attorney's PDRon the very lssuein this case- see Scheinemann PDR, No. 1196-01, supra, on which COA had relied.] SAPB RELEASE IN KIDNAPPING CASE: ClRRBON U. flX'!E, No, 06b-0-001809-CR (9/18/01). Good discussiori of safe relme in an aggravated Wdnapping case. A voluntzy safe release reduces the pnnislment but is not raised where the victim is found unlwned. Burden is now on the defendant and is determined solely by the conduct of the accnsed, not the victim's pliysicd condition. EVIDENCE HELD INSUPPICIENf IN FELONY D\VI: lf%iKRR K STATH, No. 06-01-00034-CR (9114/01). Evidence in a felony DWI deemed insuBcient when the prior convictions were too remote in tinie to be admissible. COA refuses to accord evidentiaty signi5cance to an intenRening convicllon that was provided10 trial court but never introdnced in hnt af Le juy Rather than enter a judgment of acquittal, COA refornls judgment to a conviction for a nlisdemeanor and remands for a new punishment hearing. INVOWNTARY PLEA: LOPEZ K fl&, No. 06-01-00073-CR (9/20/01). An insolnntary plea cmot be raised absent tdal court pernlission to appeal, if the sentence docs not exceed tha ngreed to by the panies. It is not a jurisdictional defect. DWI BREATH TBST RESULTS:PRICB u. STHE, No. 02-00-253- CR, 9/20/01. Retrogmde extrapolation of breatl~ test results is not required if die remainiug evidence is sufficient to prove intoxication beyond a reasonable doubt. State mayseu~reaJt~ryinstruction Illat &ow a conviction for either
Page 1 and 2: 10 DECEMBER 2001 FENSE -
Page 3 and 4: COLUMNS President's Message THE PUR
Page 5 and 6: L COMMllTEE CHAIRS AND CO-CHAIRS AM
Page 7 and 8: I MESSAGE FROM THE EXECUTIVE DIRECT
Page 9 and 10: AND THE WINNER OF ROUND TWO IS.. .D
Page 11 and 12: 5. Actively momolitor RgeIIcie~ ;UI
Page 13 and 14: Not Guilty Verdicts Mike WaMns rece
Page 15 and 16: I I The Col~a spec@caUy excepted Nu
Page 17 and 18: DNA tesUng of evidence conldning bi
Page 19 and 20: LAWYERS ON THE MOVE Vietietar Amado
Page 21 and 22: A JUDICIAL PERSPECTIVE ON SENTENCIN
Page 23 and 24: A JUDICIAL PERSPECTIVE ON SENTENCIN
Page 25 and 26: SPRlNT PCS is olfering a 15% discou
Page 27 and 28: HOW TO EFFECTIVELY USE A MENTAL HEA
Page 29 and 30: HOW TO EFFECTNELY USE A MENTAL HEAL
Page 32: unwilling lo consider all evidence
Page 38 and 39: impakment of faculties or akol~ol c
Page 40: a New Member Application 0 Rsnewal

10 DECEMBER 2001 - Voice For The Defense Online

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