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SIGNIFICANT PENDING ISSUES IN THE COURT OF CRIMINAL APPEALS

SIGNIFICANT PENDING ISSUES IN THE COURT OF CRIMINAL APPEALS. Kathleen Schneider Staff Attorney Texas Court of Criminal Appeals. DISCLAIMER. MY OPINION. APPEAL ISSUES. STATE v. BLACKSHERE PD 39-09 EASTLAND COURT OF APPEALS.

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SIGNIFICANT PENDING ISSUES IN THE COURT OF CRIMINAL APPEALS

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  1. SIGNIFICANT PENDING ISSUES IN THECOURT OF CRIMINAL APPEALS Kathleen Schneider Staff Attorney Texas Court of Criminal Appeals

  2. DISCLAIMER MY OPINION

  3. APPEAL ISSUES

  4. STATE v. BLACKSHERE PD 39-09EASTLAND COURT OF APPEALS • Blackshere filed motion to suppress which the trial court carried with the trial. • After jury sworn and trial began, hearing held and trial court granted motion to suppress. • Trial court declared mistrial, dismissed case due to insufficient evidence and discharged jury.

  5. COURT OF APPEALS • Court of Appeals reversed trial court’s grant of the motion to suppress. • Neither party nor the court of appeals discussed the jurisdiction of the court to hear the case.

  6. ISSUE • Did the Court of Appeals have jurisdiction to consider the State’s appeal? • State claims appeal of motion to suppress under Article 44.01(a)(d). • Article 44.01(a)(5) permits the State to appeal the grant of a motion to suppress . . . “if jeopardy has not attached in the case and . . .” if the prosecuting attorney certifies certain matters.

  7. GUYTON V. STATE PD 1779-08 WACO COURT OF APPEALS • November 5, 2008, court of appeals reversed for factually insufficient evidence – Justice Vance authored opinion. • December 5, 2008, State mailed PDR which was received by court of appeals December 8, 2009. • February 6, 2009, court of appeals issued a “rule 50” opinion. Justice Vance had retired and Justice Davis participated for first time in case.

  8. COURT OF APPEALS • Appellant filed motion asking court of appeals to withdraw or vacate opinion dated February 6, 2009, claiming: • 1. Rule 50 opinion is untimely because 60 day window for opinion began on December 5, not December 8; court of appeals had no jurisdiction to issue opinion on February 6. • 2. Rule 50 opinion can only be written by same personnel who wrote original. Since personnel changed, court of appeals had no jurisdiction to issue the opinion. • Court of Appeals denied motion without opinion.

  9. ISSUES • Does the date of mailing under the mailbox rule in rule 9.2(b)(1) control the actual date filed under rule 9.2? • Is it permissible for a justice who did not participate in the original decision to participate in the rule 50 opinion? • What is the effect of a rule 50 opinion when a justice who did not participate in the original decision participates in the rule 50 opinion?

  10. CAMPBELL V. STATE PD 1081-09AMARILLO COURT OF APPEALS • Campbell sentenced November 18, 2008. Campbell gave pro se motion for new trial and motion to appoint counsel to prison authorities on December 18, 2008. Motions filed in clerk’s office on December 31, 2008. • Unbeknownst to Campbell, trial court appointed counsel on January 8, 2009. Campbell gave prison authorities pro se notice of appeal on February 12, 2009; it was filed in clerk’s office on March 3, 2009. Appointed counsel filed notice of appeal February 20, 2009. Counsel thought mailbox rule made notice of appeal timely.

  11. COURT OF APPEALS • Mailbox rule does not make notice of appeal timely since motion for new trial was untimely because it was file- marked by clerk more than 10 days after Campbell gave motion to prison authorities. (motion given to prison authorities on December 18, but filed-marked December 31). Therefore, notice of appeal was also untimely.

  12. ISSUES • Does the mailbox rule apply to a pro se inmate? • Is FILING complete when the motion is delivered to prison authorities. Houston v. Lack, 487 U.S. 266 (1988); Warner v. Glass, 135 S.W.3d 681 (Tex. 2004). • What about the rules of appellate procedure?

  13. AROCHA v. STATE PD 1118-09EL PASO COURT OF APPEALS • Arocha convicted in Bexar County. Appeals to the Fourth Court of Appeals. • Texas Supreme Court transferred appeal to the Eighth Court of Appeals by docket equalization order. • Arocha challenged jurisdiction of Eighth Court of Appeals based on claims that Government Code provisions for transfer violate various constitutional provisions.

  14. COURT OF APPEALS • Texas Supreme Court has established proper procedure for obtaining a transfer is to file motion. Miles v. Ford Motor Company, 914 S.W.2d 135 (Tex. 1995). • Arocha has failed to preserve his complaints about transfer of appeal because he refused to avail himself of established procedure which could potentially remedy alleged constitutional violations.

  15. ISSUE • Should Miles control procedures for transfer in a criminal case?

  16. CONSTITUTIONALITY OF STATUTES

  17. MEADOUX V. STATE PD 123-10SAN ANTONIO COURT OF APPEALS • Meadoux was 16 years old at time he committed capital murder in 2007. He was certified to stand trial as a adult. • Jury found Meadoux guilty. • Trial court imposed mandatory sentence of life without parole.

  18. COURT OF APPEALS • Meadoux’s sentence of life without parole is not “cruel and unusual” under the Eighth and Fourteenth Amendments to the United States Constitution or Article I, section 13 of the Texas Constitution. Harmelin v. Michigan, 501 U.S. 957 (1991).

  19. ISSUE • Is a sentence of life without parole for a juvenile convicted of capital murder unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution and considerations explained in Roper v. Simmons, 543 U.S. 551 (2005)?

  20. SCOTT v. STATE PD 1069/1070-09SAN ANTONIO COURT OF APPEALS • Scott charged with harassment by making repeated telephone calls to his ex-wife in a manner reasonable likely to harass, annoy, alarm, abuse, torment, embarrass, and offend her. He was also charged with this offense for repeatedly calling late at night, leaving abusive and harassing voice mail messages. • Trial court denied motions to quash in which Scott alleged § 42.07(a)(4) and (7) of the harassment statute were unconstitutionally vague on their face and overbroad.

  21. COURT OF APPEALS • Subsections (a)(4) and (7) implicate First Amendment freedoms so Scott may make a facial vagueness challenge. • The phrase, “in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another” contained in subsections (a)(4) and (7) is unconstitutionally vague on its face similar to the statutes held unconstitutional in May v. State, 765 S.W.2d 438 (1989) and Long v. State, 931 S.W.2d 285 (1996). No reasonable person standard is contained in the statute and there is no nexus between the mental state and the conduct. • Additionally, the prohibition of “repeated” communications is unconstitutionally vague because the statute does not define how many communications are prohibited or over what time period.

  22. ISSUES • Does § 42.07(a)(4) and (7) implicate the First Amendment? • Is § 42.07(a)(4) and (7) (Texas harassment statute) unconstitutionally vague, particularly the term “repeated” and the phrase “in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another?” • Does the allegation that Scott left “voice mail messages” implicate subsection (a)(7) as an electronic communication? • Did the Court of Appeals incorrectly look to vagueness when the proper question is whether the statue is overbroad?

  23. LESSER INCLUDEDOFFENSES

  24. WELSH v. STATE PD 811-09FORT WORTH COURT OF APPEALS • Welsh kicked his wife hard enough to take her breath away, threatened her, and kicked her again before she was able to escape with her children. • Welsh was charged with assault under § 22.01(a)(1) by “intentionally or knowingly caus[ing] bodily injury to [his wife], a member of the defendant’s family or household, by kicking her with his foot.” • Trial court denied Welsh’s request for jury charge on the offense of assault by contact under § 22.01(a)(3).

  25. COURT OF APPEALS • Assault by contact under § 22.01(a)(3) is an offense if a person “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” • To prove assault causing bodily injury to the victim in this case, the State was not required to prove Welsh knew or reasonably should have believed the victim would regard the contact as offensive or provocative. • Since assault by contact is not established by proof of the same or less than all the facts required to establish assault causing bodily injury, under the circumstances of this case, assault by contact is not a lesser-included offense. See Art. 37.09(1); Hall v. State, 225 S.W.2d (2007). The trial court did not err to refuse the requested charge.

  26. ISSUE • Is the allegation of causing bodily injury by kicking the victim something the victim would consider offensive or provocative contact? • Is this an element which can be deduced from the facts alleged in the indictment under Hall?

  27. McKITHAN v. STATE PD 969-09HOUSTON [1st] COURT OF APPEALS • McKithan charged with aggravated sexual assault. The indictment alleged he caused “penetration of the female sexual organ . . . by placing a finger in the female sexual organ . . .without consent . . .,namely, . . . by the use of physical force and violence, and by acts and words, [appellant] placed [victim] in fear that serious bodily injury would be imminently inflicted on [victim].” • McKithan testified he hit the victim and touched but did not penetrate her sexual organ. • Trial court denied McKithan’s requested charges on assault by causing bodily injury and assault by contact – offensive touching.

  28. COURT OF APPEALS • Assault offensive touching requires proof the defendant knew or should have reasonably believed the victim would regard the contact as offensive or provocative. This is not an element of aggravated sexual assault as charged in the indictment, which relied on assault by threat or kidnapping as aggravating factors. • Therefore, under Art. 37.09(1) assault by offensive touching would not be “established by proof of the same or less than all the facts required to establish the commission” of aggravated sexual assault as charged in the indictment. The trial court did not err to refuse the requested instruction.

  29. ISSUE • Is assault by offensive touching a lesser-included offense of aggravated sexual assault when the indictment alleges the defendant used force and violence? • Did the Court of Appeals apply Hall v. State, 225 S.W.3d 524 (2007) too rigidly? Under Hall is the element of offensive or provocative touching an element that can be deduced from the facts alleged in the indictment for aggravated sexual assault in this case?

  30. BENAVIDEZ v. STATE PD 1551-09CORPUS CHRISTI COURT OF APPEALS • Benavidez charged with aggravated sexual assault by placing the victim in fear that serious bodily injury would be imminently inflicted on her. • Trial court submitted jury charge on aggravated assault by causing serious bodily injury and jury convicted of aggravated assault.

  31. COURT OF APPEALS • Aggravated assault was not a lesser-included offense of aggravated sexual assault as alleged in the indictment because the aggravated assault required proof Benavidez caused serious bodily injury, while the aggravated sexual assault alleged required threatening to cause serious bodily injury. See Art. 37.09; ( Hall v. State, 225 S.W.3d 524 (2007). • Trial court did not have jurisdiction to convict Benavidez of aggravated assault because he was not indicted for this offense and it is not a lesser-included offense. The purported judgment is void and judgment of acquittal ordered on the aggravated assault.

  32. ISSUE • When the jury finds a defendant guilty of an offense that is not included in the allegations of the charging instrument, is the Court of Appeals correct to order the trial court to enter a judgment of acquittal on that offense?

  33. WOODARD v. STATE PD 130-10HOUSTON [14th] COURT OF APPEALS • Woodard is driver of car in a scheme to sell fake cocaine to victim on the boat where he lives. Victim is shot and killed during the episode. • Woodard indicted for murder under § 19.02(b)(1) and (2). • Trial court submits charge to jury for murder and for “lesser” offense of conspiracy to commit aggravated robbery and/or conspiracy to commit robbery. • Jury convicts of conspiracy to commit aggravated robbery.

  34. COURT OF APPEALS • Woodard’s due process rights to notice were violated by conviction for the conspiracy charges when he had not been indicted for those charges and they were not lesser-included offenses. • In light of Trejo v. State, 280 S.W.3d 258 (2009), we apply a harm analysis under Almanza v. State, 686 S.W.2d 157 (1985). • Woodard was egregiously harmed by the submission of the unindicted offense because he did not receive notice that he was charged and being tried for this unindicted offense. He was deprived of constitutional due process.

  35. ISSUE • Is the Court of Appeals harm analysis proper and are the Almanza factors adequate? • Should the evidence in the case be considered because the indicted offense and unindicted offense arose out of the same fact situation and involved the same evidence? • Since this involves notice should consideration be given to how the defendant might have responded differently if he had notice of the unindicted offense? • As a notice issue, is this a waiveable issue?

  36. SHIPP v. STATE PD 1346-09TEXARKANA COURT OF APPEALS • Receipt Shipp showed for items he allegedly bought was a forgery. Shipp’s wife claimed she had created it on a home computer. • Shipp indicted for forgery of a commercial instrument under § 32.21(d). • Court of Appeals determined receipt was not a commercial instrument so the evidence was legally insufficient to prove forgery of a commercial instrument.

  37. COURT OF APPEALS • Since jury was not charged on the lesser offense of forgery, court declined to consider sufficiency of the evidence for that offense. • A court of appeals may reform a judgment of conviction to reflect conviction of a lesser-included offense only if (1) the evidence is insufficient to convict of the charged offense, but sufficient to convict of the lesser-included offense and (2) either the jury was instructed on the lesser-included offense or one of the parties asked for but was denied such instruction. Haynes v. State, 273 S.W.3d 183, 185 (2008).

  38. ISSUES • Should Collier v. State, 999 S.W.2d 779 (1999) be overruled?

  39. Ex parte AMADOR PD 1072-09EL PASO COURT OF APPEALS • Two women at park with their children. Women see Amador exposing himself. • Amador convicted of indecent exposure based on information naming one of the women as the person who was present and offended or alarmed. • Subsequently, Amador indicted for two counts of indecency with a child by exposure based on same incident. Different child named in each indictment. • Trial court denied Amador’s pre-trial writ of habeas corpus in which Amador claimed double jeopardy protections barred the prosecution for indecency with a child.

  40. COURT OF APPEALS • Under “same elements” test for double jeopardy, indecent exposure and indecency with a child are separate offenses because each requires proof of a fact that the other does not. Indecent exposure case requires proof Amador exposed himself recklessly and another specifically named person was present who would be offended and alarmed. In the indecency with a child case State had to prove Amador exposed himself knowing that children under 17 years old were present. • Court finds Briceno v. State, 580 S.W.2d 842 (1979), which held indecent exposure was a lesser of indecency with a child, did not apply. Briceno did not involve double jeopardy or two separate charges; it dealt with charge on lesser-included offense.

  41. ISSUES • Does the Court of Appeals’ decision conflict with Parish v. State, 869 S.W.2d 352 (1994) and Briceno? • Additionally, does naming a different victim in each charging instrument mean separate offenses are charged?

  42. GARFIAS v. STATE PD 1323-08FORT WORTH COURT OFA PPEALS • Garfias and co-defendant enter gas station seeking to steal items. Garfias shoots store clerk four times. • Garfias indicted for aggravated robbery and aggravated assault. Aggravated robbery count alleged, in pertinent part, that he threatened or placed the victim in fear of imminent bodily injury or death. Aggravated assault charge stated Garfias caused bodily injury by shooting the victim. • Jury convicted Garfias of both counts. • Garfias did not raise double jeopardy issue in trial court.

  43. COURT OF APPEALS • Double Jeopardy claim may be raised for first time on appeal when “the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640 (2000). • Application of the “same elements” test shows aggravated robbery as alleged in the indictment required proof of a threat, while aggravated assault as alleged in the indictment required proof that Garfias caused bodily injury to the victim. Because each offense required proof that the other did not, the record does not show either is subsumed within the other. Therefore, a double jeopardy violation does not clearly appear on the face of the record so Garfias’ double jeopardy claim cannot be considered.

  44. ISSUES • Is the double jeopardy claim “clearly apparent” on the face of the record given this same court of appeals’ holding in Naji v. State, No 02-06-260-CR (Ft. Worth, April 26, 2007), (decided before this case)? • Is double jeopardy violated by the convictions for aggravated robbery and aggravated assault?

  45. TEETER v. STATE PD 1169-09CORPUS CHRISTI COURT OF APPEALS • Teeter drives up while deputies talking to Teeter’s girlfriend in response to a domestic disturbance call. Deputies seek to stop Teeter as he tries to drive away. During altercation, Teeter pulls a gun and points it at Sergeant Watt. Watt and another deputy shoot at Teeter, which prompts Teeter to surrender. • Teeter charged with several offenses, including one indictment alleging both attempted capital murder of Watt and aggravated assault of Watt. • Jury convicted Teeter of both offenses. • Teeter did not raise a double jeopardy claim at trial.

  46. COURT OF APPEALS • Double Jeopardy claim may be raised for first time on appeal when “the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640 (2000). • If one count of a two-count indictment is a lesser-included offense of the other, the error is apparent on the face of the record. • Under the analysis set out in Hall v. State, 225 S.W.3d 524 (2007) and Art. 37.09, aggravated assault is not a lesser-included offense because, unlike attempted capital murder, it required proof of threat. Therefore, error is not apparent on the face of the record and the issue of double jeopardy is not properly before this court.

  47. ISSUES • Under Hall v. State, 225 S.W.3d 524 (2007), and Art. 37.09(1) is allegation in attempted capital murder count that Teeter “intentionally or knowingly pointed a gun,” same as threat by using a deadly weapon as alleged in the aggravated assault count so that aggravated assault is a lesser-included offense? • Additionally, does double jeopardy analysis require consideration of factors set out in ExparteErwin, 991 S.W.2d 804 (1999), and Bigon v. State, 252 S.W.3d 360 (2008), such as whether offenses have common focus and what is allowable unit of prosecution? • Is this analysis necessary to determine if double jeopardy claim is “clearly apparent from the face of the record?”

  48. WEINN v. STATE PD 338-09AMARILLO COURT OF APPEALS • Police found meth lab in Weinn’s backyard shed, various manufacturing paraphernalia in his house, and a jug of methamphetamine in his truck. • Weinn was charged with possession with intent to deliver methamphetamine and with manufacturing methamphetamine. • Trial court overruled Weinn’s double jeopardy objection to conviction of both offenses. • Weinn pled nolocontendere to both offenses.

  49. COURT OF APPEALS • Punishing Weinn for manufacturing methamphetamine and possession with intent to distribute the same cache of drugs violates double jeopardy protections. Lopez v. State, 108 S.W.3d 293 (2003). • Since Weinn was assessed the same sentence and both offenses are first degree felonies, the later charged conviction for manufacturing methamphetamine is vacated.

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