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IIndependent Impulse Instruction: AppeU~~t contends that he waseutitlcd to have the juq instructed that because Muphy may have independentlykilled the victim, Appellant could not be found guilty unless heanticipated the killing. The trial court did give an inslructiou on consphcy liability of parties as provided in TPC $ 7.02(b).Held: Independent impulse is not illeluded in the Penal Code.and thusLA~ellant9s pronosed iostruction would simplv negatethe conspiraw liability theory of the State's case. In Mflj$e/d,716609 (CCA 1986), CCA held the defendant w;ls entitled to the instmctionif the evidence idsed the issue. However, in Gimbtirg, 98411245 (CCA19981, CC4 held that defendants were no longer entitled to alibi instructionsbecause alibi was not enumerated in me Penal Code. iIffrj$e/d is overruled.have on others does not have any tendency to make it more or less probablethat the defendant lumself, ~xther thao ;u~ accomplice or codefendantactually caused the death, or did not achlally cause the dealh, bnl intendedto kill the victim, etc. Here, Appella~t con~plzins about relevance of tlle victim-relatedevidence to all three punisl~ment issues, not just mitigation. Themajority addressed only mitigation, but xs Appellant did not present errorregarding the other hvo issues (objection wxs based solely onTRE403), themajoritywas correct to address only that issue. IIowwel; its opinion shouldnot be read as bearing on the issue of relevance to future dangerousness oranti-partie? issees.Other rejected claims: Fuhue dangerousness insufficiency; deuial oflesser-included offense instmction.Opinion of Cay Witness: Da\is was allowed to give her opinion of theultimate issue in the case. When the State asked who was responsible forthe robbeq she answered (over abjections) that Appellant was. Appellautcontend that it uns error to allow her to render a lay opinion and to speculateabout Appellmt's mental state.Held: Under 'IliE 701. Davis' opiniol~ was admissible becauseshe had personal knowledge of the facts, and her testimony wasbased on that knowledge: moreover. her noinion was helpful to them. CCA also s a that ~ if the trial court erred to admit Davis' opinion, theewr was harmless.Supplen~entation of Record: Appellant claimed the State engaged inprosecutorial misconduct because Wood \\,as allowed to testify that she hadnor had she been sentenced. Appellant n~o\~ed to supplen~ent fhe appellaterecord with a docket sheet to support this claim that the State had is&\Vood a "swcethemt" d d in excl~ange for her testimonyHeld: Motion to supple~nent is denied. Wlile TRIP 34.5(c)(l)allows tl~e record to be supplen~ented with nlnterial onuned from the appellaterecord, it does not allow creation of a new appellate record.Victun Impact Evidence at Punishnlcnt: The State was allowed,through the victim's brother to introduce photos of the victim, his familymembers, u~cludi~~g\~~eddingpich~res and sceues of various fanlily activities.Appellant complains the pl~otos wre not relevant to any issue in the punishmentphase, were inadmissible victim irupact evidence, and were moreorciodicial than nrohati!,~.and had the effect of lmmanizing the victim and lus family. Although it hadrelatively lomprobative due, the photos did not hwe a potential to impressthe juy in an irrational way. It did nothing to single out tlus \ictim or hisfamily as being different fron~ other families, and was not gmesonle ordesigned to shock jurols or cause an extreme factors. Also, the testimonywas comprised of only seven photos witl~~ three pages of testimou): so timeto present it was relatively brief. Trial coiul was witlh~ his discretion toadmit them.Concurring Opinion: The majority s;~ys victim impact and characterevidence is relevant in contest of the nutigation special issoe and as rebuttalto uutipiltiug evidence, bo does 1101 address rele~nnce of the photos to fl~eother punishment issues: fuhlre daugerousness and mli-parties. Here,there wxs no evidence fhat Appellant knew the victim or his fmlilx thus thevictin~ impact and cha~acter evidence is patently irrelevant to the question offilfure dangerousness. On the anti-pallies issue, such a charge was given:jum~s were ~zked to determine url~ether Appellmt himself caused the deathof the victim, or if not, that he intended to kill the victin or mother, or thathe auticipated that a hwm life would be taken. Relem~ce of victim impactand cha~acter evideuce 11s new been addressed by CC\. The puqose ofthe anti-parties charge is to focus the jury on the conduct or mental state ofthe defendant a opposed to that of a codefcndaut or accomplice. Wl~etl~erthe defendant knew or was aware of the impact the victim's death would2042-00 HKlEU, FREDDIE it 06/06/01 S Ifiu~ison Assault (032///68)The Court of Appeals erred in holding that Hatten's waiver of connselwvasuot !mowing and intelligent because the trid courl did not adnlonish I ~II asto the dangers and disadvmtagcs of sex-representation before accepting hisplea of "tme" to the state's ~n~otion to revoke.0260/4-01 JAUBERT, JR., JAhW HARttON 06/20/01 S X111ant Murder &~Ufempted Murder (NP)1. Does counsel render ineffective assistance by failing to request noticeof extwleous offenses pu~suanto art. 37.07, §3(g) ofthe Code of Crin~~alProcedure where the record is silent as to counsel's reasons for not doingSO?2. Does counsel render ineffective assistance by failing to request uoticeof ext~meous offenses pursuznl to article 37.07, section 3(g) of the Code ofCriminal Procedure where the record snpports no iderence that theDefendm~t was harmed?3. Docs article 37.07, Section 3(g), of the Code of Cri~uh~ai Procedurerequire the state to give notice that it v intends to use exhaseons offense evidencewhere that evidence is not wd in the state's case-hchiet?4. Does cowsel render ineffecti e assistance by faihng lo request noticeof exhmleous offenses pmseanl to article 37.07, section 3(g), of the Codeof Crinund Proccd~~re where the state iutroduces the con~plained-of-evdencefor putposes of rebuttal, impeachment, or testing the bsis of a cbxactcrnitness' knowledge?5. When a case is transferred on appeal to a diierent court should thereceiving court of appeals apply the law of the fo~~\~arding co~nl of appeals?0288-01 BRO\W, RASHkW bWURKE 06/20/01 S Nab8arro TakingControlled Sobstance into a Jail (035///183)1. \Vhere the Dcfe~~dant is charged wit11 taking a contmUed subshnceinto a comtioual facility, is tl~e eiridence insufficient to prove lhal theDefendant voluntarily engaged UI conduct pursumt to Penal Code, §6.01 (a), because the defendaut \!as hmsported into the jail agniust his will?037617-01 GARCIA, GABRIEL 06/20/01 A Guaddupe Uulanhl Ca~qu~gof \Veapoe; POhl (AT)1. The Court of Appeals erred in finding that thae was re;lsonable suspicionto stop md detain Appellant because Appellant hesitated before proceedingthrough an illegal olice vehicle checkpoint, in violation ofAppellant's ~igl~ts under the 41 P 1 Amendment.
SiGlWWAh DECISIONSINEFFECTIVE ASSISTANCE OF COUNSEL: 2'11rwe1' u. State, No. 2-99-410-CR, 5/17/01It is ueU established that the fahe to co~umunicate a plea offer is IdCand eslablishes both prongs of Sfricklmd CO,\ holds that the failure tonotify the defendant of a deadline for acceptance of that plea offer is l oIl\C.NOTICE OF APPEAL IN PLEA BARGAIN: fifflllinez u. State, No. 2-00-237-CR., 5/17/01Eollowing a plea bargain, the defendant filed a notice of appeal thathiled to cornplywvitl~ Rule 25.2. Tl~e an~ended notice of appeal was not fileduntil dter the deadline. Tl~e COi\, ~IIIIS, has no jurisdiction to hear appeal.EXPECTATION OF P N C Y IN INTERROGATION ROOM: State u.Schei~terrrarar, No. 04-00-00581-CR, 5/16/01nvo defendants, under arrest, ask to spmk to one a~~olher alone.1 Unknown to either, the police record ll~e co~~versation. Thougb ordinarilydefendants in custody h:ive no expectation of privacy in an interrogationroom, here, the defendan6 by their request to speak alone, n~destetl adesire for prim): one wlucl~ the COA h~ds to be objectively reasonable.Confession suppressed.IMPROPER JURY ARGUMEW Harris arrd Walker u. Strrte, No.14-99-00722-CR, 5/10/01This is a strange case. Defendant wa cos\icted of felou in possession ofa fiream. 1l1e evidence was found to be legally sufficient because of coatndicto~y-statenlents given police at arrest sce~~c by dekndmt and codefendantand because of fin?i\,e gestures by defeodant in the car prior to atmt.E~idence factually it~suficient \\here COA hds tllat the slatenlents vere notthat conl~adicto~y.EXCLUSION OF PSYCHOLOGICAL EVIDENCE ERRONEOUS:dlrrhn~~rrrrad e. State, Ko. 08-98-00399-CR, 5/24/01COA h~ds that exclusion of psycl~ological evidence at pulushn~ent phasewas erroneous baed on two tl~eories. Noting that admissibility of evidenceat the punislment phase is less a matter of relevance tha~~ policy becausethere are no elen~ental facts to prove, COAholds that \\hett the State ar~~edthat Defendant sl~owed no remow and was a cold blooded killer thatDefendant um entitled to rebut dlegation wit11 expel? testinmy. COA alsoreviews estensh~ely . the prior . case law about probation suitabilily and concludrs111:~ cy~ur~ ttvin~n~~y is :~dn~i.isihlc 011 III;I~ i.w :LS well. I'IIIIIICI; (:I).\i1111ds lint he ps)t'Ili:~l~.id ;:illsfit 11 TKli 7111 \\llr~e Ilia 0llmi011 \\;bil~l!d 011well cstablisl~ed psychological testing.FACTUALLY INSUFFICIENT EVIDENCE WHEN EYEWITNESS ID'DSOhlEONE ELSE: Ward u. State, No. 10-99-252-CR, 5/23/01).one else and because the defendant produced volu~uinous elridence of alibi,hcludu~g co\vorkeken, supervisor, and vrork records, evidence \vas deemedto be factudly insificient.nvo defendants 011 trial for aggnwted robbe~y wlwe the presidiugjudge o\rr the wial is avisitu~g judge. State argues to the jn~y tk~t the usualelected judge \vould not want these two defendanb on probalion. Tlus vasoutside the record and Barnhl. COA dso addressed the state's cross examinationof one defendant wl~ere the prosecutor asked the defendant orargued to the defendant that it would not l~ave been wise to plead g~~iltydireclly to the judge without an agreed reconm~endation for a sentence.Because tl~e defendant could only Lave learned this informtion from hiscounsel, the Cot\ holds that tllis h e of questioning vioalted tl~e attorneyclient privilege. Error, 11on.cvel; was l~arn~less.INl'eRPRETER'S STATBMENIS ADMISSIBLE: Gonrez u. State, No.OI-00-00421-CR, 5/1/7101Defendant, arrested for D\M, spoke only Spanish. He tells an inte~preterwho tells the police he vas driving on a public street. The officer testifies incourt as to rrl~alhe inter~reter told 11it11. COA holds that state~~~enls of interpreterare skltenlenfs of the defendant on 2 theo~y of agency and tlms,adnussible as stateaests by a party opponent.DWI ENIIANCEMEW 1Villianrso11 u. State, No. 05-98-00968-CR,5/15/01With a prior D\W alleged to elevate a subsequent D\VI to a felon): theprior judgment need not retlecl a co~~riction. Since 1984, IIO final conviction112s been required and tl~us, only a finding tl~at guilt has been adjudicated.EVIDENCE HELD FACTUALLY INSUFFICIENT Ngrrjwr s. State, No.06-000-00148-CR, 5/24/01DEFECTIIT JURY CHARGE - NEGLIGENT HOMICIDE: Plol'es U.State, No. 10-99-361-CR, 5/23/01A ju~y clmrge for criminally negligent ho~nicide was found defectivewhere it stated th:it the defendant acting with criminal negligence causedbodily inju~y to the con~phi~ant. R omitted the allegation that those actscaused the victiiu's deatl~. No objectio~~ to j111-f charge but error \vas egregiousbmd on Apprwdi u I\'~III JerSeJ', 530 US. 466 (2000). COA corncluded that an error wlmx a ju~y \\'as pcm~itted to co~~vict on less thm dlelements required for conviction violated due process md tlms, was egregiouslyharn~ful. Look for a PDR on this one.&I'u~J~DEPECTnT JURY CHARGE -VIOLATING PRO'IECTI\'B ORDER:I< Sfflfe, NO. 03-99-00819-CR, 5/31/01A joy charge for the offense of violating a protective order was deemeddefective For failing to require that the juy fi~l tllat the defe~~dant knew aprotective order had bee11 issued, that he \vas mare of its contents, and ll~atl~ei~~teutionaUyvioI;~tedit. COAfound egregious harm, absent objection,based on weak evide~~ce on those elements. Decent discussion on when anoffense requires a culpable mental slate.INSUFPICIEiVI EVIDENCE TO PROVE DEADLY WEAPON: Lee u.State, No. 03-00-00079-CR, 5/31/01The defendant is charged \\it11 aggravated robbe~y No weapon was everfound but one witness rlescribed it as a11 air pistol. The defendant put it tothe l~eatl of the victin but never tl~reatened her with it nor alten~pted to useit as a bludgeon. COA holds that there is no1 enougl~ evide~~ce to prove it wasa deadly~veapon, based on tl~c defendant's intent.SEPTEMBER 2001 VJVJVJ.TCDU\.COM VOICE FOR THE DEFENSE 45
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Page 4 and 5: The purposesforwhich the corporatio
Page 6 and 7: SB7--The FairDefense ActCourtl~o~~s
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Page 13 and 14: provided at the plea 11ea1~1g could
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Page 19: IS.\TZd 420,423 (Tex App. -Amtin 19
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Page 28 and 29: statistics. The statistics cited in
Page 30 and 31: TCDlXs own B.G. "Gerry" Murris has
Page 32 and 33: Mr. Gedd GarreltChair, Texas Board
Page 34 and 35: Article 4212 (10) (e), Tevas Code o
Page 40: vconunent on his failu~e to testih
Page 47: I CRIMINAL DEFENSE LAWYERS PROJEClP

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