Court of Criminal Appeals Update: Significant Decisions from September 2014 to June 2015
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COURT OF CRIMINAL APPEALS UPDATE: SIGNIFICANT DECISIONS FROM SEPTEMBER 2014 TO JUNE 2015 HON. DAVID C. NEWELL Texas Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 [email protected] 512-463-1570 State Bar of Texas 41ST ANNUAL ADVANCED CRIMINAL LAW COURSE July 27-30, 2015 San Antonio CHAPTER 2 Hon. David C. Newell Court of Criminal Appeals P.O. Box 12308 Austin, Texas 78711 512-463-1570 BIOGRAPHICAL INFORMATION EDUCATION B.A. in English, Magna Cum Laude, University of Houston, 1993 J.D. from the University of Texas, 1997 PROFESSIONAL ACTIVITIES Assistant District Attorney, Harris County D.A.’s Office – Appellate Division Assistant County Attorney, Ft. Bend County Attorney’s Office Assistant District Attorney, Ft. Bend D.A.’s Office – Appellate Division Board Certified in Criminal Law and Criminal Appellate Law 2006-2008, 2010-present Chairperson, Editorial Board for the TDCAA Prosecutor 2004-2006 Board Member, Editorial Board for the TDCAA Prosecutor LAW RELATED PUBLICATIONS/TEACHING OPPORTUNITIES Column Co-Author As the Judges Saw It - TDCAA Texas Prosecutor Author/Speaker - Supreme Court/CCA Update 2007-2009, 2011 TDCAA Annual Civil and Criminal Law Update Author/Speaker – Supreme Court Update 2006 TDCAA Annual Civil and Criminal Law Update Speaker – The Texas Lawyer’s Creed: Or, The Importance of Behaving Like A Professional Even Though You Aren’t Paid or Treated Like One 2005 Practicing in Fort Bend County Courts Acknowledgement This paper and presentation would not have been possible without the assistance of my incalculably brilliant briefing attorney, Jessica Rugeley. All the smart stuff comes from her. I provided the dynamic use of bold typeface, limited commentary, and possibly inappropriate snark. If there is something you find helpful here, it came from Jessica. If there is something that irritated you, chances are that came from me. Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................................................. 1 II. MOTIONS TO SUPPRESS ............................................................................................................................... 1 A. Search Incident to Arrest—Police could not arrest based upon an uncorroborated and anonymous call about a vehicle chasing a man in a field. ......................................................................... 1 B. Search Warrants ......................................................................................................................................... 1 1. Officer’s statement that he smelled marijuana from an ambiguously described “location” outside of building with multiple tenants was insufficient to provide probable cause. ..................... 1 2. Search warrant affidavit established probable cause after illegal dog sniff information was excised when the affidavit as a whole established that officers twice smelled raw marijuana and observed activities consistent with an illegal grow operation. ................................... 2 C. Warrantless Blood Draws—Implied consent statute does not provide independent justification to seize a felony DWI suspect’s blood without a warrant or a recognized exception to the warrant requirement . yet? ........................................................................................... 3 D. Statements - Questions about the defendant’s name and phone number that were asked in a custodial interview did not fall within the “booking” exception to the Miranda rule because the questions were not asked during a booking procedure and the circumstances did not indicate that the questions were reasonably related to an administrative purpose. ........................ 5 III. TRIAL PROCEDURE ....................................................................................................................................... 6 A. Open Courts – Record established that the trial judge improperly closed the courtroom during voir dire by removing the defendant’s family and friends and failing to consider reasonable alternatives despite the trial court’s failure to rule. or did it? ............................................... 6 B. The trial court lost jurisdiction to revoke community supervision when capias on the motion did not issue prior to the expiration of the term of community supervision. ................................. 7 C. Defendant charged with possession of controlled substance has an absolute right to have the substance analyzed by an independent expert but the trial court is not required to appoint an expert for indigent defendants unless the defendant makes a preliminary showing of materiality. ...... 7 IV. EVIDENCE ........................................................................................................................................................ 8 A. Confrontation Clause: The admission of a supervising DNA analyst’s opinion regarding a DNA match did not violate the Confrontation Clause when that opinion was based upon computer-generated data obtained through batch DNA testing. ................................................................ 8 B. Forensic expert may testify that cocaine was found in the defendant’s blood sample even though amount was lower than DPS’s reportable level. ............................................................................ 9 C. Convictions over ten years old may only be admitted when probative value “substantially outweighs” prejudicial effect; Texas Rule of Evidence 609(b) does not incorporate common-law “tacking doctrine.” ............................................................................................................... 9 D. Text messages were properly authenticated when the witness testified that she knew the defendant sent the messages because they came from his phone number, he called her between texts, and referenced the text-message conversation. ................................................................ 10 E. Defendant’s incriminating statements made during a substance-abuse program that he was required to attend as part of a plea bargain were still involuntary and did not fall under the voluntary drug-abuse treatment privilege................................................................................................. 10 V. OFFENSES ...................................................................................................................................................... 11 A. NEW RULE: The State need only establish the corpus delicti of one offense when the defendant extra-judicially confesses to multiple offenses committed in the same criminal episode or course of conduct. ................................................................................................................... 11 B. Improper Photography or Visual Recording—Penal Code § 21.15(b)(1) is facially unconstitutional because it prohibits inherently expressive and protected conduct when a more narrowly tailored statute could address privacy concerns. ................................................. 12 C. Unlawfully Carrying a Weapon—Penal Code § 46.02 does not prohibit a condominium owner from openly carrying a weapon on jointly owned condominium complex common areas. .......... 13 i Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 D. Telephone Harassment—For purposes of § 42.07(a)(4), the telephone harassment statute, "repeated" simply means more than one phone call. ................................................................................ 13 E. Failure to Comply with Sex Offender Registry Requirements—Evidence of a failure to notify police about an anticipated change of address before moving looks a lot like failure to notify of an actual change of address after moving, but pleading the wrong one can result in jury charge error. ................................................................................................................................. 14 F. Aggravated Sexual Assault of a Child—Evidence was sufficient to show the defendant acted voluntarily when the complainant testified that she did not believe defendant was asleep and the defendant's wife testified that he did not normally touch her in his sleep. ....................... 15 G. Cruelty to Non-Livestock Animals—Health and Safety Code § 822.013 provides a defense to the crime of cruelty to animals when the defendant killed a dog that attacked his own dog. ............................................................................................................................................. 15 H. Theft—Evidence was sufficient to show the defendant intended to deprive the owner of property when the defendant developed a pattern of taking money for unfulfilled contracts. ................. 16 I. Aggravated Kidnapping—Whether defendant voluntarily released the victim in a safe place is determined on case-by-case basis with an eye towards seven non-exhaustive factors. ........................... 16 J. Money Laundering and Conspiracy to Commit Money Laundering—Two legal money transfers do not establish a conspiracy to commit a felony violation of the Election Code. .................... 17 K. Injury to a Child—Defendant whose conviction was reformed to lesser-included offense was entitled to new trial when the record was unclear as to which culpable mental state the jury determined