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dumping; Trial Court: Inforn~ation Quashed; COA: Reve~sed (23111449 - Houston [14tl1] 2000, PDR rePd); Opinion: Keasler, joined by Keller, Meyeen, Psice, Womack, He~vey & Holcomb; Johnson concurred in result. Appellant filed a motion to quash the information and a pretrial writ, allegiug tlte illegal dnmping stahlte was unconstih~tional as applied to 1Cm because the information did not allege a culpable mentd slate. The trial court denied both, but COA reve~sed and dismissed the infomation after hding that a ntental state of at least "reckless" was required for tbe offense. Mer CC4 refused the State's PDR, CCh tlten pnted review on its own motion to determine wl~etlter tl~e issue was cognizable on habeas cotpus. HEID: Pretrial habeas writ may not issue on pound that a penal statute is beine ~~~~co~~stitntio~~all~ applied bemuse of allegations in the indictme~~t or infornlation. CG\ briefly discussesmits, then addresses Appellant's arguments. Generally, CCh has lteld that whenever there is a valid statute under ~'l~icl~ a prosecution may be brought, babes co~pus is not amilable to test sufficiency of the complaht, ilfor~nation, or indictment. tUt11ough tbere are recognized exceptions to Illis IIII~, Appellant is not arg~~ing any - he does not areuc " that the statute is ~~~tco~lstit~~tio~lal on its hce (mennine " there is no vdid smhlte md the charging inslmment is void), or that the plea& ing on its face, sho\vs tl~e olfcnse is barred by lin~itatio~~s. Appellant's argument that the statute is unconstih~tio~ld as applied because the iuformation fds to allege a culpablemental stateis rdy just an attack on the charging instlnn~c~lt. Failure to allege a culpable mental state does not render the iilfo~n~ation void; it is simply subject to being qnashed. Appellant has not alleged my grounds cognizable on a wit, The issue of wl~etl~er the stat~~te requires a culpable n~ental slate is not yet ripe for review, as appeal of the trial court's denial of the motion to quash provides Appellant wit11 an adequate remedy at law TTm, CWs judgment is reversed. DEATH PENAElY JOIMNYRAY CONNER u. Stale, No. 73,591, from Harris County; Mll'med, 9/12/01; Opinion: Meye~s, joined by Kellel; Price, Johnson, He~~eg & Holcon~b; \Tomack conculs UI point one, but olbe17r~ise joins. Facts: Appellant shot the victim wi~ile robbing ber stoly. An eye- \vitness inside the store testified that he heard someone say "Give me aU your money," and saw 11th robber pointing a gun at the victim's cbest, ale robber shot at the eye-witness, as he rat away Tlte eyewitness t11e11 tunled to sce the robbq u'ho he later identified as ~\ppellant, shooting the victim. Other witnesses saw the robber run away and speed away ill a nwrby \relucle. Appellant hlrlled IIimself in a few da)~ Intel: CCA holds the evidence is legally md factually suEcient to support the conviction for murder in the course of aggravated rol~beq~. Tainted idc~ttfication: The pboto army shown to \wious witnesses was overly suggestive because Appellant's photo was tbe only one that showed police booking nun~bc~s. HBLD: Trial court did not abuse its discretion in holding the out-of-cosrt identification was inioermissiblv . sueeestive ... and did 11111 rnwe tllc \\ilncssrs tu t~~isitle~~lifv Asnell;ml. (:C\ IIOICS 111t1t fi~r of 111v \ IY IIIIIII~IS 11;iiI OIII~T 11x1s of tlw hi1uhi11~ " cml, , and the sixth sl~owed the pe~son staading aginst a height indicator The witnesses could have made the same assumption about all the men in tlte photo spread. Gang tattoo testimony: During punishn~ent a HPD cop was allowed to testify as at expert what tattoos were worn by membe~s of various street gangs, and the n~eaning of those tattoos. He testitied rega~rli three of Appellant's tattoos. Appellant asserts tlial this testimony gave the jmy the impressioo that Appellant was a violent mcnlber of a "black street gang" wl~e~~ there was no evidence to connect I~II to SLICII a gang or gang activity. HELD: 'lestimonv concerning the n~eani~ie behind Annella~it's tattoos was relevant to his character and hence to punislune~~t. bloreover, only once did tlte cop suggest tltat one of Appellant's tattoos was comtected wit11 gang activity. Also, CCA rejecls Appellant's argument that tlte evidence was more prejudicial than probative under TRX 403. Denial of hearing on motion for new trial: Here be clnims he WZIS de~ued the etYective assistance of connsel because the trial court instructed juro~s that they were not obligated to discuss their senice witlt defesse counsel. Because the joron refused to speak with couw sel after trial, he was unable to ineestigate statlltoly grounds for a new trial. HELD: Anoellant was not deprived of effective counsel or doe process becaose he was not prevented from doing somethine he has the legal right to do. Nothing pmrents the Ida1 court from so insh~ucling tlte jut): md notlung requires juro~s to spmk with counsel and cooperxte \vit11 the i~~\~estigation. PDRS GRANTED IN SEFTEIMBER 1750-00 PEACOCK, JAAIES DNlD 09/12/01 A llill Rail Jumping (027///657) 1. Did the state prove they had exercised due diligence in ereculing the capias that resulted from tbe motion to revoke Pmcock's probation? 0337-01 GARCIA-VEGA, bWRLE LISHTE 09/12/01 S Hidalgo Cap. fifi~rdel; Agg. KiKid~pping % rQg. R 032 897(032///897) 1. Should the juvenile law of a sister state or Texas ju~venile 1awgo1~erl1 the admis~ibility of a written statement taken by law enforcelllent authorities of a sister state? 0496-01 GRIFPITII, LONDON 091 12/01 A Harris Agg. Sen~alksa~~lt (NP) 1. Did tlte Court of Appeals err in holding that an enl~ancement paraglxp11 that was rejected by tbe j1ny could be sufficient to support the petitioner's automatic sentence of life imprison~nent for agg~xvated sexual assault of a cldd? 0519-01 BFAI,, DANIEL LOUIS 09/12/01 A Harris Possession wvfintent to Deliver Amphetmi~~e (035///676) 1. Tl~e Comt of Appeals erred in l~olding tbe date to be nsed in 32 VOICE FOR THE DEFENSE \NWW.lCDlA.COM NOVEMBER ZOO1
determining tl~e finality of a conviction, for enl~mcement purposes, is tl~e date the judgment is signed and not the date of the appellate court's nlandate. 2. The Court of ilppeds erred in holding that the e\idence wa legally sufficient to support the finding of t~ue to the enl~ancement pa~xgrapl~. 0542-01 CHAW, RICHARD, JR. 09/12/01 S Potter Agpvated 1ka111t (034Uf692) 2. If indeed the trial court's procedure um improper was the error in proceeding with elwen juro~x "S~IIIC~II~" error defying 11x111 analysis, as the Co~ia ofilppeals held? 0587-01 McCLINTON, JK, HAROLD 09/12/01 S Harris Possession of Cocaine (038///747) 1. Does a trial court have the power to refor111 a defendant's sentence after tl~e defendant has heady begw to sene the sentence? 0598-01 MOTILW, FRJDDIE 09/12/01 S Harris Capital Murder (038///821) I. Does harmful error under Rule 44.2(b) of the mles of appellate procedure result from theintroduction of \ictin related evidence at the guilt stage 1'11en that e\idcncc is it~~~ocuous and failed to mislead or colh~se the july in making its determination of whether the Appellant had the specific intent to kill? 2. Should a Court of Appeals examine the ove~wl~eh~ung evidence of guilt in deterwining 11arn1 i~nder Rule of Appellate Procedure 44.2(b)? 3. Wlwe there is legdly md factually sulficie~it eddencc to support a conviction for capital n~urdcr, does the adnussian of irrelevant yet benign victin~ related evidence during the guilt phnse constitute revessible error under Rule 44.2(b) of the Rules of Appellate Procedure? 4. Does inadmissible evidence h~troduced at the guilt stage violate a defendant's substmtid rigl~ts under Rule 44.2(b) of the Rules of Appellate procedure w11c11 there is strong e~idence of the Appellant's goilt, the contlxdicto~y evidence is weak, selt-sen4ng, aud not belie\,- able, and the outcome of the case \\,auld not have changed had the improper evidence not bee11 admitted? 0746-01 \T'lI,LOYER, CMG JOMTHON 09/12/01 S \Vaiier Agg. Sexual i\ssault (03W672) 1. The Coml of ilppeds erred in holding that the trial court's ruling could not be upheld on a basis not mised at trial. 2. The Court of i\ppeds erred it1 holding that R~de 613(a) of the Texas Rules of Evidence did not apply because the victim was the defendants partyopponent under Rule 801(e) (2). 3. The Court of Appcals erred in holding the exclusion of defense evidence is harmful wllere anotl~er witness testifled to the same or similar evidence. 0817-01 hli3NDEZ, JOHN BUSTMIOhIT: 09/12/01 ATaylor Morder (042///347) 1. Wlletller the adoption of Rule 33.1, Tea. R. App. Proc., requiring contempolwleous objection to presewe all non-stmch~d appellate error ha overruled thirty years of court opinions requiring the trid court to stla sponte u~itlal~x\v a guilty plea before a ju~y rvl~en evidence of innocence is adduced before that jur). and not withdraun. 0827-01 IILITCIIINSON, CLYDE 2, JR. 09/12/01 A Harrison Bwglaiy of Building (042///336) 1. Did the Coml of Appeals err in ordering the trial court to supplemeut the trid record \\it11 written Eu~dings of fact md conclosio~~s of law that wcre not required by law to be made by the trial court? 2. Did the Court of Appeals err in osdering the record to be supplemented? 3. Did the Court ofAppeds err bydlouu~g the state to supplen~ent the record with regard to Appellant's Batson challenge, wl~ich unfairly gave the state hvo bites at the apple? 0953-01 GUTIERREZ, ESEQUIEL 09/12/01 S Sau Palricio Delive~y of Controlled Substance (046///394) 1. This Court should re-examine Stover's l~olding that wl~ere a motion to revoke is fled and a capias issues before the espimtion of the probationa~y term, but the probationer is not apprel~ended until dter the tern1 is expired, the state must, if the issue is raised, prove due diligem in attenlpting to apprehend the probationel: 0958-01 ANTONELLI, LOUIS 09/12/01 S Dallas Motion to Quash (NP) 1. Did the Court ofAppeals err in selectively iuld 11at.sldy applying civil appellate rules to a criminal appeal instead of p~~rposefully less-stringent crin~~d xppeuste li~les? 2. Because the trial court's second order cannot stmd independently, and is only effective if it incolpontes the fint order, the Court of ~lppeals erred UI dimissing the state's appd because it referred to the date of the only order quailing the indictment. 01-1057 KEETER, JACKIE RUSSELL 09/12/01 S Hanliltou Indecency u/Cl~ild (046///394) I. Did the Court of Appeals apply an improper standard of revieicw to the trial court's denial of the defendant's motion for new trial? 2. When ruling on a n~otio~~ for new trial based upon the victin's recantation of her trial testimony, is the trial court required to accept the recantation as probably true if there esists no controverting evidence? NOVEMBER 2001 WWW.TCDL&.COM VOICE FOR THE DEFENSE 33
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