Dallas Criminal Defense Lawyer Blog

I check the fresh opinions from the Dallas Court of Appeals almost daily. TCDLA helps me stay on top of opinions from across the State. Today, a TCDLA member shared an interesting DWI case with the defense bar.

Kurt Wells vs. The State of Texas- This opinion was handed down on 11/25 from the Amarillo court of appeals.

Facts -Kurt was convicted of DWI. Kurt performed the Horizontal Gaze Nystagmus test. (Personally, I would never take the HGN test, because, inter alia, the results are not confirmed on the in dash video tape.) At trial the State offered a statement from the American Optometrist Association declaring that HGN testing was valid and useful in DWI cases.

The Problem- The State offered this evidence through the arresting offer. The officer is not an optometrist, or a member of AOA. The officer had no knowledge of how the AOA came to its conclusion. We call such evidence, hearsay. Also, allowing these statements violates your right to confront the witnesses against you (Crawford).

State's Argument on Appeal- Sure it was hearsay, and it did violate the 6th Amendment right to confrontation; but it was merely a harmless error. Please uphold the conviction.

Holding- Conviction Reversed. Here is a great quote from a justice (Brian Quinn) who gets it.

While it is laudable for the State to concede error, it seems somewhat incongruous to invite like conduct in the future by simply holding that its actions were harmless. Indeed, experience teaches that in the heat of battle litigants often push the envelope of propriety until they are told to stop. As the old cliche goes, "give 'em an inch and they'll take a mile." So, care should be taken to dissuade litigants from attempting to take the mile when given the inch inherent in the harmless error rule. This seems especially so in those situations were there exists a quantum of admissible evidence indicative of guilt. The presence of legitimate evidence of guilt should not be seen by the State as a way to slip into the record evidence of dubious legitimacy.

Harmless error holdings are dangerous because they encourage the State to continue violating your rights. It's only by reversing convictions that conduct is changed.

Harmless error findings also discourage future appellants from asserting their rights on appeal. Many defendants can't afford to appeal their conviction. Those who can afford an appeal may choose to forgo an appeal if they think the court will rule that error is harmless.

Speaking of harmless error. There is no harm in requiring a new trial. If we are going to err, it should be on the side of upholding the constitution and granting new trials. Mr. Wells might very well be convicted again. If he is, at least it is without violating his constitutional protections.

Posted by Robert Guest | Permalink | Email This Post | Comments ( 0 )

Posted In: Criminal Appeals , DWI

Bookmark:

Texas appellate courts have a longstanding tradition of throwing out issues on appeal because the defense didn't object correctly at trial. The law is- to raise an issue on appeal you must specifically object to that issue at trial.

It's a logical fallacy to believe that a defendant is intentionally waiving an error at trial because his attorney doesn't make the perfect objection. However, that is the law.

That brings us to the case of the day- Unique Elmore vs. State.

Unique Elmore was charged with multiple drug offenses including cocaine possession. Texas has a law that requires the State to provide the defendant 30 days notice before going to trial on multiple drug offenses. The idea is to let the defendant be tried on each drug offense seperately. Otherwise the jury could be negatively influenced by the multiple charges.

At trial Elmore's attorney objected to trying multiple drug cases at once. Here is the objection by defense counsel.

The Defendant objects to being tried for more than one case at one time. He is entitled to be tried for his alleged involvement in the crimes alleged in the three indictments separately. To try them together is to invite the jury to convict him for being a criminal generally rather than for his guilt or innocence of the offense with which he's charged, so we would ask that the court proceed with one of the three cases, any one is fine with us, and defer the trial of the other two for a later time.

Now the defendant wants to appeal the judge's decision to overrule this objection.

You are the appellate judge. How would you rule?

A. New Trial- The judge violated the defendant's right to have seperate trials.
B. Harmless Error- The defendant wasn't harmed by the error so no reversal. No harm, no foul.
C. No Appeal For You! The defense attorney didn't object the right way. That objection, was really a waiver.

If you guessed C you're right. The court ruled that the defendant couldn't even appeal the issue because the defense attorney didn't object the right way.

From the court's decision.

In this case, appellant's objection at trial was pursuant to section 481.132(e), requiring separate trials due to prejudice from a joinder of offenses. Appellant's issue on appeal, however, is misjoinder of offenses due to lack of the notice required by section 481.132(b). Because appellant's issue on appeal does not comport with his objection at trial, we conclude he has not preserved error. See LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992) (defendant may waive lack of notice of intent to join offenses under Texas Penal Code section 3.02(b) by not objecting).

Posted by Robert Guest | Permalink | Email This Post | Comments ( 1 )

Posted In: Criminal Appeals , Dallas Criminal Justice

Bookmark:

A new case from COCA shows why it's best not to write down your feelings in jail. Especially if those feelings are violent rap lyrics, and you are on trial for murder.

Such were the facts from Mendoza vs. State, which was handed down today. The defendant was found guilty of murder. During punishment the State offered numerous rap lyrics found in the defendant's cell. The issue was whether these lyrics were relevant, and if the State could prove the defendant wrote them.

Here is a sampling of what the jurors read-

Fuck the world & Fuck the reasons time to release the inner DEMOND
Give me a screwdriver so I can dig in your temple,
Bust your face with a crow bar like I’m poppin a pimple.
Plain & simple I lose my temper its the end of your time;
I’ve been dreamin to be dead; cause all the pain & heavy strain fucked up my mind
Every time I take a breath it’s like I’m makin a death wish
I’m having memories of nightmares; cuz there were plenty of them.

The lesson from COCA- anything you say can be used against you in a punishment hearing, including rap lyrics.

Texas has bifurcated trials, the first stage is guilt innocence. If a defendant is found guilty a seperate trial is held on punishment. The issues at punishment are much broader than guilt/innocence. Therefore, a wider range of evidence will be admissible. These rap lyrics would never get in during guilt/innocence. COCA held they were relevant to punishment in that they showed the defendant was a continuing threat for society.

Posted by Robert Guest | Permalink | Email This Post | Comments ( 2 )

Posted In: Criminal Appeals

Bookmark:

I read most of the new criminal opinions from the Dallas Court of Appeals. Many defendants want to appeal not just their trial, but their sentence. A common example is a defendant who goes to the judge for punishment and receives a long jail sentence instead of probation.

The defendant will then claim the sentence is cruel and unusual punishment or that the judge abused her discretion. Ergo, the sentence is unconstitutional and should be changed.

Week after week I see these appeals denied for the same reason. The defendants do not object to the sentence when it is pronounced.

LESSON OF THE DAY:
If you are sentenced in a criminal case and you want to appeal said sentence you must OBJECT when the sentence is pronounced. If not, this is what the Dallas Court of Appeals will say.

Appellant did not complain about the sentence either at the time it was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda, 135 S.W.3d at 723.... We affirm the trial court's judgment.

Texas has a tradition of throwing out issues on appeal if the defense does not object on the record. Even worse, if the defendant objects; but not for the right reasons, then the error will still be waived on appeal. This doctrine allows many errors, even constitutional errors, to go without justice. This "waiver by omission" is a horrible practice, but it is very much the current appellate law in Texas.

A larger issue that may be addressed in the near future is- can a sentence that is within the range of punishment be unconstitutional? That is, if the sentencing possibilities range from probation to 99 years in jail, and you get 99 years, can that cruel and unusual or an abuse of discretion?

Posted by Robert Guest | Permalink | Email This Post | Comments ( 0 )

Posted In: Criminal Appeals , Dallas Criminal Justice

Bookmark:

Texas has some stupid laws. Unfortunately Texas also has legislators who lack the courage or wisdom to repeal stupid laws. Instead, Texans must rely on federal courts, or even the Supreme Court to declare our stupid laws unconstitutional.

One such stupid law bans the "promotion" (sale) of dildos.

§ 43.23. OBSCENITY. (a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.

An obscene device is a dildo, vibrator etc. Of all the things to waste law enforcement resources on, dildo prohibition is probably the most useless (marijuana would be a close second).

This brings us to a recent decision by the 13th District Court of Appeals in Corpus Christi-

Villareal vs. State
Facts (from the court's opinion)-

On June 25, 2004, Corpus Christi Police Officer Adrian Dominguez was working undercover when he visited a business, called Friends 4 Ever, to determine if it was selling obscene materials or devices. Dominguez was aware that law enforcement agents had previously informed the business owner that the business needed to cease selling certain items that were considered obscene under state law. Appellant was at the business working as a cashier and sales clerk. During the visit, Dominguez purchased a vibrator from appellant; the vibrator was called "Lick it Lover" and resembled the male sexual organ. A few hours after Dominguez's purchase, police officers arrived at the business, where they executed a search warrant and placed appellant under arrest.

You would think that a city with twice the national average for property crime, and 21 murders annually could find a better use of their undercover police. But I digress. A jury found Villareal guilty, and the judge sentenced her to 6 months in county jail!

Wait a minute, wasn't that law declared unconstitutional?
That's right. The federal 5th Circuit Court of Appeals issued an injunction in February declaring 43.23 unconstitutional. However, the Court of Appeals in Corpus Christi held that a federal court injunction is not binding on State courts. That is, until our state's highest criminal court, the Court of Criminal Appeals, rules that 43.23 is unconstituional, the conviction still stands.

Now, it's clear that the judges in Corpus recognize how untenable their position is. In their own words.

This Court thus remains duty-bound, for better or worse, to follow the rulings of the court of criminal appeals, which has held--in contrast to the Fifth Circuit--that section 43.23 does not violate the due process clause of the Fourteenth Amendment.

So, for now, the promotion of dildos is illegal in Texas, again.

Posted by Robert Guest | Permalink | Email This Post | Comments ( 5 )

Posted In: Criminal Appeals

Bookmark: