1. Recent Decisions April 5, 2013 San Antonio Bar Association 50th Annual Criminal Law Institute

2. The Paper All published decisions from the Court of Criminal Appeals between March __, 2012 and April 4, 2013. And some others. The powerpoint www.markstevenslaw.com The talk My criteria Pages Motions, Etc Recent Power Point Presentations Scope

3. Scope Pages

4. Jury Selection

5. Unkart v. State, 2012 WL 760798 (Tex. App.–Eastland 2012, pet. granted) (not designated for publication) praise God, I haven't been charged with a crime. But if I were, then I think I would probably want to get up and tell my side. It's just my nature. I would want to probably say my point of view on the thing or my version of the facts, but that's just me. Okay if the venirepersons did not share his opinion, as long as they could follow this instruction: If the defendant decides not to testify, you cannot refer or allude to that fact during your deliberations. The court of appeals reversed anyway, finding that the judges remarks vitiated the presumption of innocence and constituted harmful, fundamental error. No objection 137

6. Unkart v. State, 2012 WL 760798 (Tex. App.–Eastland 2012, pet. granted) (not designated for publication) 1. The Court of Appeals misconstrued Blue v. State when it found fundamental error in the trial court's voir dire comments about a defendant's decision whether to testify. 2. Appellant's untimely motion for mistrial and his failure to request an instruction to disregard forfeited any complaint about the trial court's comment. PDR Granted 137

7. Standards of Proof in Texas No Evidence No Evidence Fuller v. State, 363 S.W. 3d (Tex. Crim. App. 2012) Probable Cause Preponderance ClearAndConvincing Beyond A Reasonable Doubt

8. Easley v. State, 2012 WL 4040798 (Tex. App.-Waco 2012, pet. granted) (not designated for publication) Does the trial court commit constitutional or non-constitutional error when it prevents counsel from asking prospective jurors to compare and contrast the different standards of proof in Texas? 138

9. DWI

10. Fienen v. State, 390 S.W.3d 328 (Tex. Crim. App. 2012) Remember Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App.1993)? So much for almost 20 years of precedent. Erdman is overruled because of its flawed reasoning and the flawed caselaw that has resulted from it..... When determining whether DWI suspects acted voluntarily, courts are to look at the totality of the circumstances. Law-enforcement officers may not misrepresent the law, but neither are they required to simply repeat the statutory warnings. Texas drivers have no legal right to refuse, but also a person retains an absolute right (subject to certain exceptions not relevant here) to refuse a test. 38

11. Krause v. State, 368 S.W.3d 863 (Tex. App.–Houston [14 Dist.] 2012, pet. granted) T EX. T RANSP. C ODE § 724.017 specifically excludes emergency services medical personnel. Are EMTs statutorily unqualified to take mandatory, involuntary, warrantless blood draws? 35 States PDR Granted

12. Sanchez v. State, 365 S.W.3d 681 (Tex. Crim. App. 2012) A statutory county court judge in Montgomery County had no jurisdiction to issue a search warrant for the blood of one arrested in Harris County. 35

13. Experts

14. Blasdell v. State, 384 S.W.3d 824 (Tex. Crim. App. 2012) Reversible error to exclude testimony from forensic psychologist on weapons focus effect because he would not commit that this had in fact impacted the eyewitness. No expert could testify with significantly greater certainty that an eyewitnesss perception was in fact impaired by the threatening presence of a gun, but it is no less valuable to educate a jury of the realistic potential, if that has been empirically shown to exist. 40

15. Olsen v. State, 2012 WL 1438475 (Tex. Crim. App. 2012) (not designated for publication) The trial court erred when it excluded the defenses expert testimony about the harmful effects that an inappropriate relationship with an older female had had on the defendant. 41

16. Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) Bayardo at trial: short-fall claim is false and impossible. Bayardo at writ: no way to know. Subsequent writ applicant proved by clear and convincing evidence that, in light of new biomechanical evidence, no reasonable juror would have convicted her of capital murder. 28

17. Ex Parte Jimenez, 364 S.W. 3d 866 (Tex. Crim. App. 2012) 9 this case depended primarily on expert testimony. Defense expert Dr. Ira Kanfer melted down on cross- examination. During lunch he was overheard saying that the prosecutors could go fuck themselves. He admitted saying this on re-cross: Thats an exactly correct quote. Did the defenses expert undermine his own unpersuasive testimony by telling the prosecutors what they could do to themselves? Ake error was forfeited where trial counsels request for additional experts was not presented to the trial court in writing and adequately supported by the facts. No.

18. Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) Counsel's duty is to investigate and, if an expert is necessary to present the defense, to obtain a "competent" expert; not the "best," or the "most highly qualified," and certainly not the most "pompous, bombastic, or incomprehensible expert in the nation." 9

19. 12 trial counsel failed to present available evidence that electronic monitoring records and DNA showed that the defendant could not have committed an extraneous offense offered at the punishment phase. We cannot imagine a tactical reason for not presenting evidence of the electronic monitoring report or the DNA exclusion. Ex Parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012)

20. Somers v. State, 368 S.W.3d 528 (Tex. Crim. App. 2012) EMIT tests are reliable enough to be admitted with or without confirmation. 42

21. Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) For more than sixty years, we have not once wavered from the proposition that the results of polygraph examinations are inadmissible over proper objection because the tests are unreliable. Rule 703 is not a conduit for admitting opinions based on scientific, technical, or other specialized knowledge that would not meet Rule 702's reliability requirement. If the methodology or data underlying an expert's opinion would not survive the scrutiny of a Rule 702 reliability analysis, Rule 703 does not render the opinion admissible. The court was not asked to decide whether probationers could be required to take polygraphs. What we decide is that any such requirement does not justify admitting legally unreliable evidence. 104

22. More questions about the use of polygraphs during motions to revoke probation. Dansby v. State, 2012 WL 1150530 (Tex. App.-Dallas 2012, pet. granted)(not designated for publication) Do you have any other victims. Refusal Discharge PDR Granted 5 th Amendment violation?

23. Experts Whats going on with experts? Trial judges are going to allow more expert testimony and scientific evidence. That rule will work both ways. Deal with it. Make sure you know how to get the experts you need. Polygraph evidence is not coming in.

24. Sex

25. Texas Style Fleming v. State, 341 S.W.3d 415 (Tex. Crim. App. 2011) Does the Texas Constitution require proof of a culpable mental state to statutory rape? The state constitutional question was properly briefed in the court of appeals. Remanded to the court of appeals to decide whether the state constitution provides greater, lesser, or the same protections as it federal analog. 114

26. Fleming is back Fleming v. State, 376 S.W.3d 854 (Tex. App.-Fort Worth 2012, pet. granted) Does Texass statutory rape statute violate Federal Due Process or State Due Course of Law for failing to require the state to prove a culpable mental state relating to the complainants age. Does Texass statutory rape statute violate Federal Due Process or State Due Course of Law for failing to recognize an affirmative defense based on the defendants reasonable belief that the complainant was 17 or older? 114

27. Defendants Motion To Set Aside The Indictment Flemings PDR filed by Richard Gladden Denton, Texas 114

28. Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012) We hold that, viewing the totality of the evidence and inferences in a light most favorable to the verdict, the jury could have reasonably inferred that appellant knowingly had care, custody, control, or management of the ten pornographic images of unknown children found on the free space of his computer. 116

29. Crabtree v. State, 389 S.W.3d 820 (Tex. Crim. App. 2012) Article 62.003 clearly requires that the Texas Department of Public Safety make a determination that a sex offense from another state is substantially similar to a Texas offense before registration is required in Texas, and because no such determination was made here, the evidence was legally insufficient to support the conviction. The wisdom of a particular statute is outside this Courts purview. 114

30. State v. Rosseau, 2011 WL 6207037 (Tex. App.–San Antonio 2011, pet. granted) Sexual assault is ordinarily a second degree felony, but it is a first degree felony if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01. Tex. Penal Code § 22.011(f). Does Texas really hate the polygamists so bad that it made being married a basis for turning second degree sexual assault into a first degree crime? 118

31. Search and Seizure

32. Rare custody State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012) This routine traffic stop escalated into a custodial detention because the objective circumstances would have caused a reasonable person to perceive that the detention was restraint on his movement comparable to a formal arrest. 32

33. Mahaffey v. State, 364 S.W.3d 908 (Tex. Crim. App. 2012) The law does not require a driver to signal a lane change when the lane he is driving in ends, and he merges into the remaining lane. 81

34. Miller v. State, 2012 WL 5869416 (Tex. Crim. App. 2012) The emergency doctrine did not authorize the police to remain inside appellants apartment, and although their initial entry was consensual, appellant revoked her consent before the police saw contraband in plain view. 82

35. Lothrop v. State, 372 S.W.3d 187 (Tex. Crim. App. 2012) Driving on the improved shoulder to pass another car that was slowing did not violate the Transportation Code, and did not give the officer reasonable suspicion to stop the driver. 85

36. State v. Duarte, 389 S.W.3d 349 (Tex. Crim. App. 2012) Here, a tip by a confidential informant of unknown reliability, standing virtually alone, did not provide a sufficient basis for a magistrate's probable cause determination. Although substantial deference must be given to magistrates who issue warrants, and although probable cause is a flexible, nondemanding standard... [a] magistrate should not be a rubber stamp, and to ensure against this, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. 89

37. Tucker v. State, 369 S.W.3d 179 (Tex. Crim. App. 2012) Memo to trial judges: Even though appellate courts must review your rulings on historical facts deferentially- even when those facts are on video – you still must view the video before overruling a defendants motion to suppress where there is a conflict as to whether consent was voluntarily given. 91

38. Clay v. State, 2013 WL 85375 (Tex. Crim. App. 2013) Although our legislature has not expressly authorized search warrants to be sworn out over the telephone, and not in the physical presence of the magistrate, neither has it prohibited such practice, and until the legislature addresses the question, the courts will decide legality on a case-by-case basis; the circumstances of the telephonic warrant application in this case sufficed to satisfy the solemnizing function of the oath requirement under Article 18.01(b). 96

39. Aguirre v. State, 2013 WL 163450 (Tex. Crim. App. 2013) (Cochran, J., concurring in the refusal of petition for review) Judge Cochran strongly recommends that the one who loses a motion to suppress should always request findings of fact. For want of a nail the shoe was lost. For want of a factual finding, the appeal was lost. Even though the testimony was conflicting, counsel failed to request findings, and that this failure sealed appellants fate on appeal. Absent specific findings, the appellate courts hands are tied: Factual findings can only help the losing party on appeal. 97

40. Aguirre v. State, 2013 WL 163450 (Tex. Crim. App. 2013) (Cochran, J., concurring in the refusal of petition for review) Such a factual finding might pass the red face test if phrased very carefully. Unfortunately for appellant, with no explicit factual findings it is almost impossible for him to overcome the extremely deferential standard of review that we use for the trial judge's implicit factual findings. 97

41. Insufficient Evidence

42. A few cases Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012)(evidence insufficient to support conviction for endangering a child) Louis v. State, 2012 WL 2007632 (Tex. Crim. App. 2012)(although there was proof that the defendant disciplined his son to an excessive, horrific, and cruel degree, the evidence insufficient to prove that he intentionally or knowingly caused his death) Gross v. State, 380 S.W.3d 181 (Tex. Crim. App. 2012)(juries can draw reasonable inferences from the evidence, but convictions may not be based on speculation; mere presence and flight are insufficient, standing alone, to prove guilt as a party. 122-33

43. A few more cases Daugherty v. State, 387 S.W.3d 654 (Tex. Crim. App. 2013)(contractors beware, and get your money up front: Theft of services by deception requires proof that deception before the services are rendered) Britain v. State, 2012 WL 6028965 (Tex. App.-San Antonio 2012) & Brasse v. State, 2012 WL 6028960 (Tex. App.-San Antonio 2012)(Although the prosecutors were unable to recognize the difference between a tragic incident and criminal recklessness, the court of appeals was) Winfrey v. State, 2013 WL 690861 (Tex. Crim. App. 2013)(human scent discrimination, while maybe raising a strong suspicion, is insufficient to prove guilt beyond a reasonable doubt) 122-33

44. Preserving Error

45. Jacobson v. State, 2013 WL 440069 (Tex. Crim. App. 2013) DeGarmo is given the burial it so richly deserves.

46. Like this... Everitt v. State, 2013 WL 440066 (Tex. Crim. App. 2013) The court of appeals erred when it parsed the defendants trial objections, and utilized the kind of hyper-technical analysis repeatedly rejected by the court of criminal appeals. Cook v. State, 2013 WL 331342 (Tex. Crim. App. 2013) Defendants motion for mistrial really meant stop, and was enough to inform everyone what he wanted, and was as good an objection as any under these circumstances. Bryant v. State, 2012 WL 5232147 (Tex. Crim. App. 2012) need not spout magic words' or recite a specific statute to preserve an issue as long as the basis of his complaint is evident to the trial court.

47. Not like this... Brewer v. State, 367 S.W.3d 251 (Tex. Crim. App. 2012) Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012) There is nothing in the record here suggesting that the trial court or the prosecutor understood Clark to be making due process or fair-trial objections. The trial court is entitled to know when it is being asked to make a constitutional ruling, because constitutional error is subject to much stricter harm analysis on appeal.

48. What about no objection? Thomas v. State, 2012 WL 3762479 (Tex. App.-Amarillo 2012, pet. granted) Motion to suppress denied. State offers lab report at punishment phase of plea proceedings. I don't have any objection to that, Your Honor. Mr. Martindale has been kind enough to let me see them before this afternoon and we have no objections.

49. Effective Assistance of Counsel

50. Is the statute of limitations for aggravated assault two years or three, and could you be ineffective for not knowing? State v. Bennett, 2012 WL 11181 (Tex. App.-Dallas 2012, pet. granted)(not designated for publication)

51. Ex parte De Los Reyes, 2013 WL 1136517 (Tex. Crim. App. 2013) Padilla v. Kentucky: counsel must inform her client whether his plea carries a risk of deportation. Chaidez v. United States: Padilla does not apply retroactively. Although the court of criminal appeals could have held that Padilla applied retroactively under state habeas law, it chose to follow lockstep with the United States Supreme Court.

52. Martinez v. State, 2012 WL 1868492 (Tex. Crim. App. 2012)(not designated for publication) Can trial counsel properly advise his client that he could be deported for pleading no contest to an aggravated felony when deportation is automatic upon conviction?

53. Who owns the file? In re McCann and Turner, 2013 WL ________, No. 76, 998 & 76, 999 (Tex. Crim. App. March 20, 2013)(not designated for publication)

54. Habeas

55. Ex parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) The court was authorized to consider applicants subsequent writ because the legal claim – the unknowing use of false testimony – was unavailable to him when he filed his first writ; and, although applicant was able to show that two witnesses falsely testified against him at his trial, he could not show that this testimony was material, that is that it affected the judgment of the jury.

56. Ex Parte Gaither, 387 S.W.3d 643 (Tex. Crim. App. 2012) Gaither falsely swore in his writ that his plea had been involuntary because his trial lawyer promised his sentences would be served concurrently. The court of criminal appeals: –Denied relief –Cited Gaither for abuse of the writ –And referred his case to the appropriate prosecuting agency for perjury prosecution

57. Ex Parte Parrott, 2013 WL 85370 (Tex. Crim. App. 2013) Although the defendants sentence was illegally enhanced with a state jail felony, he could not show harm, since it was undisputed that he had other felony convictions that the state could have relied on for enhancement, other than the state jail felony that it actually used; Granting relief to a defendant who is only fictionally harmed is contrary to the type of relief for which the great writ, an extraordinary remedy, was intended.

58. Stanley v. Bell County District Clerk, 2012 WL 6162692 (Tex. Crim. App. 2012) Tex. Rule Appellate Proc. 73.2, items 5 & 17 Stanley used the correct form and appears to have substantially complied with the instructions The court granted mandamus relief, ordering the clerk to file Stanleys writs.

59. Ex parte Milner, 2013 WL 512759 (Tex. Crim. App. 2013) The court had jurisdiction to consider this claim in a subsequent writ because of actual innocence, specifically, no rational juror could have found defendant guilty of both offenses without violating the federal prohibition against double jeopardy.

60. Some Other Interesting Issues

61. Castillo v. State, 369 S.W.3d 196 (Tex. Crim. App. 2012) To benefit from the mailbox rule, use the post office, not a private courier.

62. Blackshear v. State, 385 S.W.3d 589 (Tex. Crim. App. 2012) The court wants to make it perfectly clear that a defendant fails to preserve error if his motion for continuance is not written and sworn to, and the appellate courts must find waiver even though the state does not complain.

63. State v. Meru, 2012 WL 5292924 (Tex. App.-Corpus Christi 2012, pet. granted)(not designated for publication) Is criminal trespass a lesser included offense of burglary?

64. Ex parte Maxwell, 2013 WL 458168 (Tex. Crim. App. 2013 (not designated for publication) Is the law that prohibits mandatory life without parole against juveniles retroactive? If so, what remedy applies?

65. Ex Parte Reinke, 370 S.W.3d 387 (Tex. Crim. App. 2012) When determining how long an incompetent defendant can be committed, the maximum term provided by law for the offense for which the defendant was to be tried is not to be increased by sentencing enhancements.

66. Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012) Pre-arrest, pre-Miranda silence can be used as substantive evidence of guilt even if the defendant does not testify. Whether or under what circumstances the Fifth Amendments Self-Incrimination Clause protects a defendants refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights. Cert. granted Salinas v. Texas, No. 12-246

67. Guilty pleas are involuntary when: The four year sentence agreed to in plea bargain was more than was authorized for a state jail felony. Ex parte White, 2012 WL1142353 (Tex. Crim. App. 2012)(not designated for publication) Defendant was incorrectly informed that he would not have to register as a sex offender. Ex parte Price, 2012 WL 4834109 (Tex. Crim. App. 2012)(not designated for publication)

68. In re State ex rel. Tharp, 2012 WL 5499867 (Tex. Crim. App. 2012) When a defendant pleads guilty in a felony case, the default option is for the jury to decide punishment in a unitary proceeding; the default option is avoided only if the jury is validly waived, and this requires the states consent.

69. Rubio v. State, 2012 WL 4833809 (Tex. Crim. App. 2012) (not designated for publication) The insanity defense focuses on whether the accused understood the nature of his action and whether he knew he should not do it. In the context of the insanity defense, the word wrong means illegal. If the accused knows that his conduct is illegal by societal standards, then he understands that his conduct is wrong, even if, due to a mental disease or defect, he thinks his conduct is morally justified.

70. Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) For purposes of issue preclusion, the Travis County and Brazos County Attorneys are the same parties; therefore, the theft prosecution in Travis County was barred by res judicata after the state tried but failed to prove it by a preponderance of the evidence in a motion to revoke in Brazos County. Also, good bye and good riddance to the ridiculous notion that probation revocation hearings are administrative proceedings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings.

71. Ex parte Chaddock, 369 S.W.3d 880 (Tex. Crim. App. 2012) Defendant was separately tried twice for committing the same crime against the same person – organized crime and aggravated assault. Multiple punishments for the same crime are permissible long as the offenses are tried together. The question squarely presented in this case – and not previously answered – is whether multiple trials are authorized for the same offense. Successive prosecutions subject a defendant to embarrassment, expense and ordeal and compel him to live in a continuing state of anxiety and insecurity," and create "a risk of conviction through sheer governmental perseverance."

72. Scales v. State, 380 S.W.3d 780 (Tex. Crim. App. 2012) A juror is not disabled under article 33.011 and may not be removed just because she has made up her mind and refuses to change it.

73. Yzaguirre v. State, 367 S.W.3d 927 (Tex. App.–Texarkana 2012) (pet. granted) Under the Penal Code, is an instruction on the law of parties necessary? Say what? Bruce Anton

74. McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App. 2012) Rule 606(b) did not prevent the defense from obtaining affidavits and calling jurors to testify at a motion for new trial hearing concerning internet research conducted by a juror on the effect of date rape drugs in this sexual assault case.

75. In re State ex rel. Weeks, 2013 WL 163460 (Tex. Crim. App. 2013) Mandamus relief granted in mid-trial preventing trial judge from giving certain instructions to the jury on the law of parties in a capital murder trial. Judge Price, joined by Judge Womack, dissented: Where will it end?

76. Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012) Trial in a prison chapel is not the public trial envisioned by the Sixth Amendment. Practice Tip

77. Can you commit aggravated robbery by threatening the complainant with a deadly weapon when the complainant never sees the weapon? Boston v. State, 373 S.W.3d 832 (Tex. App.–Austin 2012, pet. granted) The court of criminal appeals granted Bostons petition for discretionary review to decide this issue: The Court of Appeals erred when it held that the victim was threatened or placed in fear of imminent bodily injury or death when the evidence showed that no threat was perceived by the victim.

78. Does everyone who commits criminally negligent homicide necessarily use or exhibit a deadly weapon, and, if so, is this a problem? Chambless v. State, 368 S.W.3d 785 (Tex. App.–Austin 2012, pet. granted)

79. Gilley v. State, 383 S.W.3d 301 (Tex. App.–Fort Worth 2012, pet. granted) Does the trial court violate a defendants Sixth Amendment right to counsel by excluding counsel from a Rule 601 hearing to determine the competency of a child witness? 20