G:\COURSES\2009\@Litigation Update\Articles\14 .Wpd

$G:\COURSES\2009\@Litigation Update\Articles\14 .Wpd$ CRIMINAL LAW UPDATE Court of Criminal Appeals — 2008 (January 1, 2008 to December 29, 2008) Presented By: J. GARY HART Court of Criminal Appeals of Texas Written By: PAUL WOMACK, Judge, Court of Criminal Appeals of Texas State Bar of Texas 25th ANNUAL ADVANCED LITIGATION UPDATE INSTITUTE January 15-16, 2009 San Antonio CHAPTER 14 Copyright 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007 © 2008, Paul Womack. Contents Paul Womack — Biographical Information ........................................ ii Court of Criminal Appeals Membership............................................1 Selected Case Activity in Texas Appellate Courts ....................................1 Selected Decisions.............................................................3 i PAUL WOMACK Judge, Court of Criminal Appeals of Texas P. O. Box 12308 Austin, Texas 78711 (512) 463-1595 [email protected] BIOGRAPHICAL INFORMATION EDUCATION B.S., Louisiana State University, 1970 J.D., School of Law, The University of Texas at Austin, 1975 PROFESSIONAL ACTIVITIES Instructor, Thurgood Marshall School of Law, Texas Southern University, 1976–77 Private Practice of Law, 1977–78 Research Assistant, Judge Truman Roberts, Court of Criminal Appeals of Texas, 1979–82 Assistant District Attorney, Travis County, Texas, 1983–86 First Assistant District Attorney, Williamson County, Texas, 1987–96 Judge, Court of Criminal Appeals of Texas, 1997–present Board Certified Specialist in Criminal Law, 1984–present ACADEMIC APPOINTMENTS AND LAW-RELATED PUBLICATIONS Adjunct Professor, School of Law, The University of Texas at Austin, 1983 – present Author, Texas Criminal Procedure — Trial & Beyond (University of Texas School of Law, 1994, revised annually) Author, “Judiciary,” The New Handbook of Texas (Texas State Historical Ass’n 1995) PERSONAL Born 1947 in Shreveport, Louisiana Married to Sally L. Ray; father of Millie Womack (born 1985) Resident of Georgetown, Texas ii J. Gary Hart has been board certified in criminal law since 1995. He obtained a BA degree from Davidson College in 1979, and his JD with honors from the University of Texas School of Law in 1984. From 1984 until 1996, he worked for Judge Sam Houston Clinton on the Texas Court of Criminal Appeals, first as briefing attorney and then as research attorney. Between 1996 and 2006, Mr. Hart was in private practice, specializing in the representation of death row inmates in their state and federal post-conviction applications for writ of habeas corpus. Since April of 2006, Mr. Hart has been back at the Court of Criminal Appeals as research attorney for Judge Tom Price. Court of Criminal Appeals Membership — January 1, 2008 Judges Age Tenure Sharon Keller, Presiding 53 13 years Lawrence E. Meyers 60 15 years Tom Price 61 11 years Paul Womack 60 11 years Cheryl Johnson 61 9 years Michael E. Keasler 65 9 years Barbara Parker Hervey 53 7 years Charles Holcomb 73 7 years Cathy Cochran 64 6.3 years Average tenure: 9.8 years ------------------------------------------------------------------------------------------------------------- Selected Case Activity in Texas Appellate Courts — FY 2007 New civil cases filed in courts of appeals .......................4,940 Petitions for review filed in Supreme Court ...................... 831 Petitions for review granted by Supreme Court ............ (16.6%) 138 * * * * New criminal cases filed in courts of appeals....................5,613 Petitions for discretionary review filed in Court of Criminal Appeals . 1,810 Petitions for discretionary review granted by CCA ......... (8.8%) 159 Death-penalty appeals filed in CCA ..............................16 Habeas corpus & other extraordinary matters disposed of by CCA . 7,082 1 2 Criminal Law Update Chapter 14 Selected Decisions, Court of Criminal Appeals, January 1, 2008 to December 29, 2008.* Appellate Procedure Haynes v. State, PD-1923-06 (April 30, 2008). Court of Appeals did not err in considering unassigned issue of jeopardy without allow- The doctrine of in para materia is applicable ing the parties to brief the issue. Bigon v. only to a comparison of statutes, and it State, 252 S.W.3d 360 (January 16, 2008). should not have been applied to compare the statute that defines the offense of tampering Court of Appeals had no jurisdiction to issue with a governmental record (Penal Code another opinion under Rule of Appellate section 37.10) with Rule of Civil Procedure Procedure 50 more than 30 days after the 13. State v. Vasilas, 253 S.W.3d 268 (May appellant’s petition for discretionary review 7, 2008). was filed, and the opinion was ordered with- drawn and the original opinion and judg- In a case in which the evidence was largely ment reinstated. Miller v. State, 267 S.W.3d based on a determination of the credibility 32 (April 2, 2008). of the witnesses, the Court of Appeals failed to defer to the jury’s verdict when it found When appellate counsel files a motion to the evidence factually insufficient. Lancon withdraw because he believes the appeal to v. State, 253 S.W.3d 699 (May 14, 2008). be frivolous, he may simultaneously file an Anders brief; he may not file an Anders brief If the appellate record is supplemented, without a motion to withdraw, since the sole counsel should normally file a supplemental purpose of an Anders brief is to explain and brief pointing out the existence of the sup- support the motion to withdraw. In re plemental record and explaining that mate- Schulman, 252 S.W.3d 403 (April 30, 2008). rial pertinent to a particular point of error may be found in that supplemental record. When the evidence was insufficient to prove Segundo v. State, AP-75,604 (December 10, a greater offense, but sufficient to prove a 2008). lesser-included offense, an appellate court may not reform a judgment of conviction to Court of Appeals erred by speculating about show a conviction for a lesser-included of- trial judge’s possible, unexpressed fact find- fense that was not submitted to the jury. ings or credibility assessments when he had made express factual findings. State v. *These summaries do not include every issue that was decided in every case, but there is a summary of at least one holding in every case except those cases: (1) decided by unpublished opinions, (2) summarily remanded to a court of appeals, or (3) in which a petition was dismissed as improvidently granted. 3 Criminal Law Update Chapter 14 Sheppard, PD-793-07 et seq. (December 10, Williams v. State, AP-74,391 (June 11, 2008). 2008). Use of judicial rather than statutory guide- Argument lines to determine mental retardation does not violate Eighth Amendment or Equal [No cases] Protection Clause or state separation-of- powers provision. Neal v. State, 256 S.W.3d 264 (June 18, 2008). Bail Jury’s finding that the appellant was not [No cases] mentally retarded was not so against the great weight of the evidence as to be manifestly unjust; the court’s charge was not Bond Forfeiture egregiously harmful. Williams v. State, AP- 75,541 (November 26, 2008). The surety has the burden to prove the existence of equitable grounds for remittitur under Article 22.17(a) of the Code of Crim- Change of Venue inal Procedure; the decision rests in the sound discretion of the trial court, which [No cases] was not abused when it denied remittitur in this case in which the surety presented evidence on only one factor (of which there are Charge of the Court at least six). McKenna v. State, 247 S.W.3d 716 (March 12, 2008). When the indictment in a DWI case alleged that the defendant was intoxicated by the The statute (Article 22.13(a)(5) of the Code introduction of alcohol into his body, the of Criminal Procedure) that exonerates a court’s charge that authorized conviction if defendant and his sureties from liability there was a “concurrent cause” for the intox- upon the forfeiture if the defendant is incar- ication improperly expanded on the indict- cerated elsewhere after failing to appear ment. Otto v. State, PD-1311-06 (February does not violate the separation-of-powers 6, 2008). provision of the Texas Constitution. Safety National Casualty Corp. v. State, PD-0413- Because he did not file a written motion 07 (May 14, 2008). challenging the district court’s jurisdiction over offenses committed before his seventeenth birthday, as Code of Criminal Procedure Article 4.18 requires, the Capital Sentencing defendant may not contest the district court’s jurisdiction, but he could complain A defendant may waive submission of the that the “on or about” language in the mitigation special issue in Code of Criminal court’s charge permitted his conviction for Procedure article 37.071, section 2(e)(1). offenses he committed when he was a 4 Criminal Law Update Chapter 14 juvenile. Alberty v. State, 250 S.W.3d 115 right to remain silent; it also was undisputed (April 9, 2008). that the police did not scrupulously honor this assertion of the right to remain silent. When defendant pleaded guilty in death- Ramos v. State, 245 S.W.3d 410 (February penalty case, jury’s verdict did not need to 6, 2008). have a finding of guilt in addition to its findings on the special issues. Fuller v. State, Officer’s introducing himself at the jail to a 253 S.W.3d 220 (April 30, 2008). defendant who was represented by counsel did not constitute an “initiation of communi- The “failure-to-stop-and-render-aid” statute cation” that would violate the Sixth Amend- (Transportation Code section 550.021) does ment. State v. Maldonado, 259 S.W.3d 184 not create separate offenses, but merely (June 4, 2008). alternate means of committing an offense, and the use of the word “or” in the court’s Sixth-Amendment right to counsel attached charge did not deny a unanimous verdict. when a magistrate arraigned the defendant Huffman v.

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