Speak directly with an attorney!
Call 469-322-0717
Main PageAttorney ProfileServices We OfferFrequently Asked QuestionsUseful ResourcesContact Us
SUMMER 2008 CRIMINAL CASE LAW UPDATE

Rothgery v. Gillespie County, ___ U.S. ___ (2008)
  • 6th Amendment right to counsel attaches at initial appearance even if prosecutors haven't yet become involved in defendant's case
  • State doesn't have to commit itself to prosecute before the 6th right to counsel attaches


  • Kennedy v. Louisiana, ___ U.S.___ (2008)
  • 8th amendment bars the imposition of the death penalty for the rape of a child where it did not and was not intended to result in the death of the victim
  • "as it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life is not taken"
  • "imposition of death penalty in this instance would be freakish"

    Giles v. California, ___ U.S. ___ (2008)
  • 6th amendment's forfeiture by wrongdoing doctrine doesn't allow the prosecution in a criminal case to present evidence of the testimonial hearsay statements of a declarant who was made unavailable to testify by defendant's act (murder in this case) in the absence of proof that defendant undertook these wrongful acts with the intent to keep the declarant from testifying

    District of Columbia v. Heller, ___ U.S. ___ (2008)
  • 2nd amendment protects a pre-existing individual right to have and carry weapons for self-defense which is violated by ordinance that bars possession of handguns in the home and requires that lawful firearms kept in the home be unloaded and disassembled or bound by trigger lock

    Greenlaw v. United State, ___ U.S. ___ (2008)
  • a federal court of appeals can't order an increase in defendant's sentence in the absence of an appeal or cross appeal by the government

    Indiana v. Edwards, ___ U.S. ___ (2008)
  • Constitution permits states to insist upon representation by counsel for those competent enough to stand trial but who aren't competent to conduct trial proceedings by themselves

    Boumediene v. Bush, ___ U.S. ___ (2008)
  • Guantanamo detainees are entitled to challenge the reasons why they are being held through writs of habeas

    Irizany v. State, ___ U.S. ___ (2008)
  • No requirement that a court give notice of its intent to depart from the sentencing guidelines as such would create an unnecessary delay

    Routier v. State, ___ S.W.3d ___, 2008 WL 2486417 (Tex.Crim.App.2008)
  • construes "evidence containing biological material" to mean individual samples of biological material even if taken from the same physical object or source
  • evidence containing biological material in this case is the individual blood stains on the tube sock instead of the entire sock

    Warner v. State, ___ S.W.3d ___, 2008 WL 2596961 (Tex.Crim.App.2008)
  • Question presented was whether a person can escape from custody after an officer has grasped his arms and told him he is under arrest, he pulls free and runs away
  • "custody" and "arrest" aren't the same thing for purposes of the escape statute (§ 38.06)
  • A person can escape only after an arrest
  • escape can occur only after an officer has successfully restrained or restricted a suspect, that is, when the officer's grasp has amounted to an arrest

    Michael Blair, Nos. AP-75,954 and AP-75,955
  • On his third subsequent writ application the CCA set aside judgment of guilt and sentence of death when state conceded that he wouldn't have been convicted in light of new DNA evidence

    Blount v. State, ___S.W.3d___, 2008 WL 2596663 (Tex.Crim.App.2008)
  • Because aggravated assault can only be committed in one of two ways (serious bodily injury or using or exhibiting a deadly weapon during the commission) the allegation that a defendant committed aggravated assault gives him notice that the deadly nature of the weapon alleged in the indictment would be an issue at trial

    Sims v. State, ___ S.W.3d ___, 2008 WL 2596950 (Tex.Crim.App.2008)
  • Article 37.07 (which provides that specific conduct is made admissible at the punishment phase of trial notwithstanding TRE 404 and 405) allows for admission of any evidence the trial court deems relevant to sentencing and relevant punishment evidence includes both character evidence in the form of opinion and extraneous evidence
  • Trial court could have properly determined that punishment witness was able to formulate an opinion based on a single encounter with appellant and there is no general prohibition at the punishment phase from a witness basing his opinion on a single encounter

    State v. Barbernell, ___ S.W.3d ___, 2008 WL 2596934 (Tex.Crim.App.2008)
  • state no longer required to provide theory of intoxication in charging instrument as such evidentiary rather than a component of notice
  • definitions do not describe an act or omission or create two separate manner and means
  • A charging instrument that pleads the offense of DWI provides adequate notice when it sets out the elements of the offense as provided in Section 49.04

    State v. Jordan, 256 S.W.3d 286 (Tex.Crim.App.2008)
  • even if state's failure to prove the chronological sequence of punishment enhancement allegations/prior convictions as required under 12.42(d) is subject to a harm analysis, such a deficiency will never be considered harmless

    Landers v. State, 256 S.W.3d 295 (Tex.Crim.App.2008)
  • ok for DA to prosecute defendant (for intoxication manslaughter) who he had previously represented as a defense lawyer on intoxication assault charge where defendant was unable to point to any actual as opposed to theoretical conflict of interest based on likely use of confidential information
  • court calls this a "close case"

    Ex Parte Lave, ___ S.W.3d ___, 2008 WL 2512820 (Tex.Crim.App.2008)
  • Subsequent writ application argued Crawford confrontation claim but CCA adheres to its retroactivity analysis in Keith and its holding that Crawford doesn't apply retroactively to cases on collateral review in state court

    Whitehead v. State, 2008 WL 2512836 (Tex.Crim.App.2008)
  • Judge was statutorily disqualified from presiding at the trial where judge was one of appellant's victims and resulting judgment and conviction was a nullity
  • Wasn't necessary that judge was specifically named in the indictment because retaliation transaction involved judge

    McCarty v. State, ___ S.W.3d ___, 2008 WL 2512818 (Tex.Crim.App.2008)
  • Under TRE hearsay exception for excited utterance, the event about which the utterance is made need to be the same one that sparked the declarant's excited state

    Frank v. State, ___ S.W.3d ___, 2008 WL 2548956 (Tex.App.-Houston [1st Dist.] 2008)
  • Appellant was charged with delivery of a controlled substance by constructive transfer to an undercover officer - appellant gave drugs to middleman in exchange for money and middleman gave police drugs
  • Conviction reversed because without evidence that appellant contemplated the possibility that the middleman wasn't the ultimate transferee, appellant can't be guilty of constructively delivering the drugs to undercover officer

    Ex Parte Hicks, ___ S.W.3d ___, 2008 WL 2453972 (Tex.App.-Waco 2008)
  • After 90 days appellant filed a writ and requested bail reduction or PR bond but at the hearing his lawyer only requested a PR bond based on evidence of appellant's inability to pay
  • Based on the evidence, it was error for the trial court to simply reduce the bond amounts either set bail at an amount appellant can make or release him on a PR bond

    Ex Parte Hunter, ___ S.W.3d ___, 2008 WL 2414863 (Tex.App.-Texarkana)
  • During trial it was discovered that one of the jurors had been a member of the grand jury that had indicted appellant (that indictment ended up being dismissed but he was again indicted by a different grand jury)
  • Mistrial declared and appellant filed writ asserting subsequent prosecution violated double jeopardy
  • Record fails to show manifest necessity supported the trial court's declaration of a mistrial so double jeopardy bars retrial

    Hicks v. State, ___ S.W.3d ___, 2008 WL 1862371 (Tex.App.-Texarkana 2008)
  • Act of stopping in an intersection even if for a brief time (here 3-5 seconds) is enough to support reasonable suspicion for stop
  • 545.302(a) (section regarding stopping, standing or parking) has no minimum time period

    Blocker v. State, ___ S.W.3d ___, 2008 WL 2930563 (Tex.App.-Waco, 2008)
  • Because the evidence in this case showed that affiant's information in the affidavit was mistaken, but not deliberately false or made with a reckless disregard for the truth, appellant's motion to suppress was properly overruled

    Dornbusch v. State, ___ S.W.3d ___, 2008 WL 2854658 (Tex.App.-Fort Worth, 2008)
  • Evidence factually sufficient to show that appellant operated his vehicle while intoxicated where all parties agreed that appellant's car was found in the back of Applebee's with headlights on, engine running, radio playing, and appellant sitting in drivers seat either asleep or passed out and testimony that vehicle not in park and only thing keeping it from rolling forward was the curb

    Wooten v. State, ___ S.W.3d ___, 2008 WL 2837541 (Tex.App.-Houston [14th Dist.] 2008)
  • Criminally negligent homicide is not a lesser included offense of intoxication manslaughter because intoxication manslaughter requires no proof of a culpable mental state so no error in not giving jury lesser included instruction
  • State met Kelly factors with regard to Dade Dimension RXL Analyzer machine so appellant's blood alcohol results were admissible (appellant argued that gas chromatography analysis is more reliable and accepted within scientific community)

    State v. Rudd, 255 S.W.3d 293 (Tex.App.-Waco 2008, pet. ref'd)
  • HGN inadmissible where it was performed off camera and police officer's testimony as to test was not considered reliable where other FST's performed on camera
  • police officer admitted that he had been instructed to give HGN off camera to make challenge to the administration of the test more difficult

    State v. Aguilar, ___ S.W.3d ___, 2008 WL 2388110 (Tex.App.-Houston [1st Dist.] 2008)
  • Second enhancement found not true where pen packet dates didn't correspond to conviction dates so state appealed under 44.01(a)(1)
  • 44.01(a)(1) does not expressly allow the state to appeal a finding of not true in an enhancement paragraph because the trial court's finding of not true was not an order dismissing that portion of the indictment

    Swaffer v. State, ___ S.W.3d ___, 2008 WL 2404515 (Tex.App.-Fort Worth 2008)
  • Anonymous call and officer dispatched to possible domestic disturbance but when officer arrived nothing out of the ordinary was happening he stopped them anyway for a welfare check and driver was subsequently arrested for DWI
  • Based on totality of circumstances, officer's independent observations coupled with the anonymous tip did not establish reasonable suspicion for the stop
  • Because evidence showed that officer was investigating a crime and investigation was the primary purpose for the stop the community caretaking doctrine can't justify the stop

    Villarreal v. State, ___ S.W.3d ___, 2008 WL 2744502 (Tex.App.-Corpus Christi)
  • Obscenity statute § 43.23 does not violate the due process clause of the 14th
  • Court reluctant to follow CCA's holding that 43.23 is constitutional in contrast to 5th circuit

    Grisso v. State, ___ S.W.3d ___, 2008 WL 2930568 (Tex.App-Waco)
  • Even if a motion to suppress has been filed and denied counsel must still object to admission of the evidence at trial
  • Lawyer who stated "we will not object to these" when drugs which were subject of motion to suppress were offered at trial did not preserve complaint with respect to admissibility of evidence

    Adams v. State, ___ S.W.3d ___, 2008 WL 2916352 (Tex.App-San Antonio) Trinidad v. State, ___S.W.3d___, 2008 WL 2916307 (Tex.App.-San Antonio)
  • In both cases an alternate juror sat in during deliberations at guilt/innocence and at sentencing but no objection made
  • Right to a 12 member jury is a waivable-only right and so requires no objection to preserve error
  • Texas Constitutional right (Article V, § 13) is the type of right that requires special protection and can't be denied absent express waiver

    State v. Stauder, ___ S.W.3d ___, 2008 WL 2930763 (Tex.App.-Eastland 2008)
  • defendant stopped for failing to wear a seatbelt, arrested for fictitious registration sticker, and car impounded
  • While waiting for wrecker, police search defendant's car and characterize it as an inventory but never fill out an inventory form, a requirement contained in the written department policy
  • they find gun and drugs in unlocked container in bed of truck
  • trial court's granting motion to suppress affirmed because testimony made it clear that evidence was found during an inventory search not a search incident to arrest and written inventory police not followed
  • search not good pursuant to Belton as State argues because Belton authorizes the search of the passenger compartment of a vehicle not the bed of a truck and no evidence that items in bed were within defendant' immediate control (Chimel)

    State v. Stephens, ___ S.W.3d ___, (Tex.App-Houston [14th Dist.] 2008)
  • Appellee was placed on deferred for 10 years in 1995 in Brazoria County
  • In 2003, appellee was arrested in Tom Green county for DWI and Brazoria filed a MTA
  • Appellee filed a motion to suppress in Tom Green county which was granted and DWI dismissed (no findings of fact or conclusions of law filed)
  • Appellee filed motion to suppress MTA based on collateral estoppel
  • doctrine of collateral estoppel doesn't apply because no final judgment was entered in Tom Green county and even if one had been entered, it wouldn't have included a finding on an element of the MTA, because issue determined in Tom Green case was whether there was reasonable suspicion or probable cause to stop not whether there was evidence to support the elements of the DWI offense as alleged in the MTA
  • bottom line: doctrine of collateral estoppel doesn't apply to a finding of probable cause on a pretrial motion to suppress

    Jennings v. Rissie Owens, et. al, (07/29/08)
  • In a case of first impression in the 5th Circuit, the magistrate in the Western District of Texas ruled that if you plead guilty to a sex offense in 1979, and thereafter discharge your parole, the Texas Board of Pardons and Paroles can't order you to go to sex offender treatment for the first time 27 years later, when you are released on parole for the clearly non-sexual offense of credit card abuse, without first giving you notice and an opportunity to be heard on whether you pose a threat of committing another sex offense
  • Richard Gladden's case

    Special Thanks to DCCLA.