Criminal Appeals

April 16, 2009

Dallas Court of Appeals Case of the Day- Plano PD fakes car burglary to bust pot smokers

Did you know the police are allowed to lie to you? It’s true. The police can make up facts out of whole cloth and present them as fact.

What if the police wanted you to open the door to your house so they could peek inside? One would think that cops must obtain a warrant before entering a private residence. Instead, cops can lie about your car being robbed so you open the door for them.

This brings us to our case of the day. Stern vs. State No. 05-08-00553-CR

February 16, 2009

Sharon Keller impeachment bill filed- HR 480

by Robert Guest

Court of Criminal Appeals judge Sharon Keller has been described as “Texas’ Judge Dread”. A self described “pro prosecutor” judge who not only shown a reckless disregard for innocence claims, but infamously closed the courthouse denying a death penalty appeal for Michael Richards.

From the Star Telegram-

Fort Worth State Rep. Lon Burnam filed a resolution this afternoon calling for the impeachment of Texas Court of Criminal Appeals Presiding Judge Sharon Keller.

February 10, 2009

Dallas Court of Appeals Case of the Day- Deeds vs. State

by Robert Guest

Today’s case of the day is….

State of Texas vs. James Ray Deeds-

Facts- Balch Springs officer Palfreyman was working late one night when a motorist flagged the officer down. The motorist was concerned about a possible DWI driver in a red pickup.

January 29, 2009

Dallas Court of Appeals- You can unring a bell

by Robert Guest

If you were on trial for a misdemeanor assault, and a witness accused you of murder, would that prejudice your case? Would you feel better if the judge told the jury to “disregard” the murder allegation?

That brings us to our case of the day, Hecht v. State, No. 05-07-00431-CR.

Facts- Hecht was charged with misdemeanor assault family violence. The State couldn’t get the victim to testify, so the government put on third party witnesses to build their case.

January 17, 2009

Court Of Appeals Case Of The Day- Herring in Texas?

by Robert Guest

Blawgers are still sifting through the 4th amendment wreckage from the Herring disaster.

How would a similar situation play out under Texas law? Would our exclusionary rule (38.23) protect the public from illegal searches based on non existent warrants?

This brings us to White vs. State, a 1999 case from the San Antonio Court of Appeals. H/T to the TDCAA message board and David Newell for bringing forward this opinion.

January 14, 2009

Herring vs. US- SCOTUS continues assault on 4th Amendment

by Robert Guest

SCOTUS has a sorry history of eviscerating constitutional protections to save dope cases. Today’s case, Herring vs. US, is textbook SCOTUS drug war/police apologetics.

Facts-

The police really wanted to arrest Herring because they had arrested him before. Once a criminal always a criminal right? The police knew that Herring was going to the impound lot to visit his car and wanted to arrest him before he left. Herring wasn’t breaking any law. How could these cops arrest Herring without evidence of any crime?

December 22, 2008

Court of Criminal Appeals Case of the Day- Bartlett vs. State

by Robert Guest

Hat tip to the TDCAA website for highlighting this recent COCA DWI opinion. In a remarkable decision the Court of Criminal Appeals actually upheld the rights of a DWI defendant. Unbelievable.

Case-Roy Bob Bartlett vs. The State of Texas

Facts- Roy Bob was charged with DWI. Roy Bob refused a breath test. The State wanted the jury charge to include language that refusing a breath test is evidence of guilt. The jury charge addressed the refusal and what the jury could think about said refusal.

December 18, 2008

Court of Criminal Appeals Case of the Day- Roberts vs. State

by Robert Guest

First, a capital murder primer. Capital murder cases are those in which the death penalty is available, but not required. If the State waives the death penalty and a defendant is convicted of capital murder, the sentence is automatic life in prison.

On capital appeals it too often seems that the goal is to save the conviction and find/make law to effect that purpose. That’s why this decision was so remarkable. Roberts vs. State involves a bad person, who did a bad thing, has no friends or connections politically, and no reason to expect sympathy from our highest criminal court. All Roberts had is dedicated defense lawyers, including an assistant Dallas Public Defender who represented him in the Court of Criminal Appeals, Chris Souza. Mr. Souza wrote an excellent brief with a simple request- uphold the law.

Facts- Roberts shot and killed a woman in her apartment. The woman was pregnant with an embryo. The embryo died. The state’s medical witness testified that you could not tell this woman was pregnant by looking at her. The defendant did not know the woman was pregnant. Roberts was convicted of capital murder for the intentional killing of two people.

December 1, 2008

Amarillo Court of Appeals- Case of the Day

by Robert Guest

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.

November 10, 2008

Dallas Court of Appeals Case of the Day- Objection!

by Robert Guest

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.