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US Supreme Court rules that any invocation of an accused's right to remain silent must
be "unequivocal."
Certiorari from the Sixth Circuit
Berghuis v. Thompkins, 560 U.S. ____, No. 08-1470 (6/1/10)
Reversed: Kennedy (5-4); Sotamayor dissented w/ Stevens, Ginsburg, Breyer
A Michigan state court convicted Thompkins of first-degree murder, assault with intent to commit murder,
and several firearms related charges. After exhausting his remedies in state court, Thompkins petitioned
for relief in a Michigan federal district court. The district court denied the petition. On appeal, Thompkins
argued that his confession was obtained in violation of the Fifth Amendment and that he was denied
effective counsel at trial. The Sixth Circuit held that the Michigan Supreme Court’s finding that Thompkins
waived his Fifth Amendment right was unreasonable because Thompkins refused to sign an
acknowledgment that he had been informed of his Miranda rights and rarely made eye contact with the
officer throughout the three hour interview. The Sixth Circuit also held that the Michigan Supreme Court
improperly determined that Thompkins was not prejudiced by his counsel’s failure to request a limiting
instruction related to his separately tried co-defendant’s testimony.
Questions:
(1) Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant’s Fifth Amendment
rights were violated?
(2) Did the Sixth Circuit fail to give the state court deference when it granted habeas corpus relief with
respect to defendant’s ineffective counsel argument when there was substantial evidence of the
defendant's guilt?
Conclusion: Yes. Yes. The state court’s decision to reject Thompkins’ Miranda claim was correct.
Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so
“unambiguously.” Moreover, the Court reasoned that Thompkins waived his Miranda right to remain silent
when he “knowingly and voluntarily” made a statement to police. The Court further held that even if
Thompkins’ counsel was ineffective, he cannot show he was prejudiced by counsel’s deficient
performance—a prerequisite to establishing that his Sixth Amendment right was violated.
CCA rules that court cannot order reimbursement of appointed attorney fees unless
Court enters finding that defendant has the financial resources to do so
Mayer v. State, State Prosecuting Attorney’s PDR from Swisher County – COA’s judgment
affirmed.
Appellant was convicted of aggravated kidnapping and assessed a 30 year sentence. COA affirmed the
conviction and sentence but reversed the trial court’s order that Appellant reimburse the county for court-
appointed-attorney fees in the amount of $2,850. Mayer v. State, 274 S.W.3d 898, 902 (Tex. App.-
Amarillo 2008) (under article 26.05(g) trial court has authority to order reimbursement of appointed
attorney fees if the court determines that defendant has financial resources that enable him to offset, in
part or in whole, the costs of the legal services provided). Here there was no such showing. Judgment was
affirmed as reformed.
SPA’s grounds for review:
1. Procedural default. SPA contends Appellant waived his complaint because he did not object to the trial
court's order to repay attorney fees, which it claims is governed by the holding in Idowu v. State, 73 S.W.
3d 918, 921 (Tex. Crim. App. 2002), that if a defendant wishes to complain about the propriety of, as
opposed to the factual basis for, a trial court's restitution order, he must explicitly do so in the trial court.
The state also compares appellant's failure to object to a situation in which an appellant first challenges on
appeal probation conditions that may be unreasonable, unconstitutional, or violative of statutory
provisions. It points to Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999), in which we held that "[a]
defendant who benefits from the contractual privilege of probation . . . must complain at trial to conditions
he finds objectionable."
Holding: COA properly analyzed and rejected the SPA’s claim of procedural default. CCA points out that
two years after Idowu, it held that "a claim regarding sufficiency of the evidence [to support a restitution
order] need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to
do so." Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). Moreover, “Appellant's complaint
about the sufficiency of evidence of his financial resources and ability to pay were likewise not waived by
his failure to raise such a complaint at trial. We reiterate that no trial objection is required to preserve an
appellate claim of insufficient evidence, thus the court of appeals did not err in addressing appellant's
complaint about the order to reimburse court-appointed attorney fees.” CCA therefore rejects the SPA’s
argument that such a complaint must be raised in the trial court or on a motion for new trial.
2. COA should have remanded the indigency issue to the trial court to decide. Appellant argues that the
trial court had already found Appellant indigent and appointed counsel at trial and on appeal, so a remand
would be pointless. CCA also points to also observe that article 26.04(p), which provides that "[a]
defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder
of the proceedings in the case unless a material change in the defendant's financial circumstances
occurs."
Holding: COA committed no error when it determined that the trial court erred in ordering reimbursement
of attorney fees without remanding the case to the trial court. “When claims of insufficient evidence are
made, the cases are not usually remanded to permit supplementation of the record to make up for alleged
deficiencies in the record evidence. Sufficiency of the evidence is measured by viewing all of the record
evidence in the light most favorable to the verdict. In this case, there is no indication that the state was
precluded from presenting evidence and being heard on the issue of appellant's financial resources and
ability to pay for reimbursement of the court-appointed-attorney fees.”
Judgment is therefore affirmed.
COURT OF CRIMINAL APPEALS from June 15, 2010
State’s PDRs from Atascosa & Wilson Counties
Trinidad & Adams v. State, __S.W.3d__ (Tex.Crim.App. Nos. 1218-08, 1219-08, 1220-08, 1221-08;
6/9/10)
Reversed: Price (9-0); Johnson concurred
In 2007, the Texas Legislature amended Code Crim. Proc. art. 33.011(b). According to the amendment,
an alternate juror in a criminal case tried in the district court, if not called upon to replace a regular juror,
shall no longer be discharged at the time that the jury retires to deliberate, but shall be discharged after
the jury has rendered a verdict. The amended statute does not indicate whether the alternate juror should
be allowed to be present for, and to participate in, the jury’s deliberations or, instead, whether he should
be sequestered from the regular jury during its deliberations until such time as the alternate’s services
might be required by the disability of a regular juror. In the instant cases, the trial court opted for the
former contingency. COA held in each case that, in doing so, the trial court violated the constitutional
requirement of a jury composed of twelve persons, or, alternatively, that the trial court violated the
statutory prohibition against permitting any person not a juror into the jury deliberation room. CCA granted
the State’s PDRs to address the contentions that COA erred to hold (1) that the appellants did not forfeit
any complaint on appeal by failing to object when the jury retired to deliberate, and (2) that the alternate
jurors’ participation in deliberations violated either the constitution or the statute. CCA holds that there was
no constitutional violation and that any complaint about a statutory violation was forfeited by the
appellants’ failure to invoke the statute in a timely manner. CCA reinstates the judgments of the trial courts.
Appellant’s PDR from Nacogdoches County
Ex parte Brooks, __S.W.3d__ (Tex.Crim.App. No. 1046-07, 6/9/10)
Reversed, remanded: Johnson (9-0); Meyers concurred
Appellant argued that the five-year statute of limitations for theft under Code Crim. Proc. art. 12.01(4)(A)
barred prosecution of a pending indictment and that the trial court erred when it dismissed the preceding
indictment. Because COA failed to decide this claim and CCA cannot review a decision by a lower court
that has not been made, CCA sustained appellant’s ground for review and reversed and remanded to
COA.
Appellant’s PDR from El Paso County
Contreras v. State, __S.W.3d__ (Tex.Crim.App. No. 0490-09, 6/9/10)
Reversed, remanded: Keller (9-0); Womack concurred; Price concurred w/o opinion; Johnson
concurred w/o opinion
Appellant was convicted of felony murder for the death of his twenty-two month-old niece. The issues are:
(1) whether COA erred in failing to find that a factual dispute existed which would entitle appellant to an
application paragraph under Code Crim. Proc. art. 38.23(a); and (2) whether the submission of felony
murder in the jury charge violated appellant’s right to a unanimous verdict because multiple culpable
mental states were submitted in the alternative for the underlying felony of injury to a child. CCA sustains
appellant’s first ground for review involving his Article 38.23 instruction claim, specifically in regards to a
threat made during interrogation to jail appellant’s wife, but overrules his other grounds for review. The
case is remanded for harm analysis.
Appellant’s PDR from Brown County
Worthy v. State, __S.W.3d__ (Tex.Crim.App. No. 0924-09, 6/9/10)
Affirmed: Cochran (9-0); Keller concurred w/ Meyers
CCA granted appellant’s PDR to resolve a conflict among the courts of appeals concerning whether Code
Crim. Proc. art. 37.07 § 3(g) requires the State to give pretrial notice of “same-transaction contextual
evidence” that it intends to offer in the punishment stage of a non-capital trial. CCA concludes that it does
not. Article 37.07 § 3(g), which explicitly states that the notice requirement applies “in the same manner
required by Rule 404(b),” refers to the scope of the evidence offered as well as to the timing of the
evidence offered. Pretrial notice of “same-transaction contextual evidence” is not required under Rule 404
(b), nor is it required under Article 37.07 § 3(g).
State’s Motion for Rehearing on PDR from Bexar County
Wilson v. State, __S.W.3d__ (Tex.Crim.App. No. 0307-09, 6/9/10)
Denied: Per curiam; Keasler dissented w/ Keller, Hervey
CCA addresses the State’s first ground for rehearing: At trial, appellant did not preserve the precise
complaint that forms the basis of the decisions by COA and CCA. CCA says that while this is true, it is
irrelevant because the State improperly relied on Tex. Pen. Code 37.09, which pertains to unpreserved
complaints, rather than Section 37.10, which pertains to preserved complaints. Despite these unique
circumstances, CCA holds that the State’s failure to raise preservation to COA is no longer a bar to it
raising it for the first time in a CCA petition.
COURTS OF APPEALS from May 4, 2010
Summaries are by Chris Cheatham, of the Cheatham Law Firm, Dallas, Texas.
Because D was not adequately represented during the 30 day period for filing a motion for new
trial, appellate court abated proceedings and restarted the appellate timetable.
Bearman v. State, 2010 WL 724516 (Tex.App.-Houston [1 Dist] Mar 04, 2010) (NO. 01-08-00787-CR).
While trial counsel might have made D aware of his right to file a motion for new trial, D did not have the
assistance of counsel in doing so, and because of the gap in D’s representation during the 30-day period
after sentencing, D was denied counsel during a critical stage of the criminal process.
be "unequivocal."
Certiorari from the Sixth Circuit
Berghuis v. Thompkins, 560 U.S. ____, No. 08-1470 (6/1/10)
Reversed: Kennedy (5-4); Sotamayor dissented w/ Stevens, Ginsburg, Breyer
A Michigan state court convicted Thompkins of first-degree murder, assault with intent to commit murder,
and several firearms related charges. After exhausting his remedies in state court, Thompkins petitioned
for relief in a Michigan federal district court. The district court denied the petition. On appeal, Thompkins
argued that his confession was obtained in violation of the Fifth Amendment and that he was denied
effective counsel at trial. The Sixth Circuit held that the Michigan Supreme Court’s finding that Thompkins
waived his Fifth Amendment right was unreasonable because Thompkins refused to sign an
acknowledgment that he had been informed of his Miranda rights and rarely made eye contact with the
officer throughout the three hour interview. The Sixth Circuit also held that the Michigan Supreme Court
improperly determined that Thompkins was not prejudiced by his counsel’s failure to request a limiting
instruction related to his separately tried co-defendant’s testimony.
Questions:
(1) Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant’s Fifth Amendment
rights were violated?
(2) Did the Sixth Circuit fail to give the state court deference when it granted habeas corpus relief with
respect to defendant’s ineffective counsel argument when there was substantial evidence of the
defendant's guilt?
Conclusion: Yes. Yes. The state court’s decision to reject Thompkins’ Miranda claim was correct.
Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so
“unambiguously.” Moreover, the Court reasoned that Thompkins waived his Miranda right to remain silent
when he “knowingly and voluntarily” made a statement to police. The Court further held that even if
Thompkins’ counsel was ineffective, he cannot show he was prejudiced by counsel’s deficient
performance—a prerequisite to establishing that his Sixth Amendment right was violated.
CCA rules that court cannot order reimbursement of appointed attorney fees unless
Court enters finding that defendant has the financial resources to do so
Mayer v. State, State Prosecuting Attorney’s PDR from Swisher County – COA’s judgment
affirmed.
Appellant was convicted of aggravated kidnapping and assessed a 30 year sentence. COA affirmed the
conviction and sentence but reversed the trial court’s order that Appellant reimburse the county for court-
appointed-attorney fees in the amount of $2,850. Mayer v. State, 274 S.W.3d 898, 902 (Tex. App.-
Amarillo 2008) (under article 26.05(g) trial court has authority to order reimbursement of appointed
attorney fees if the court determines that defendant has financial resources that enable him to offset, in
part or in whole, the costs of the legal services provided). Here there was no such showing. Judgment was
affirmed as reformed.
SPA’s grounds for review:
1. Procedural default. SPA contends Appellant waived his complaint because he did not object to the trial
court's order to repay attorney fees, which it claims is governed by the holding in Idowu v. State, 73 S.W.
3d 918, 921 (Tex. Crim. App. 2002), that if a defendant wishes to complain about the propriety of, as
opposed to the factual basis for, a trial court's restitution order, he must explicitly do so in the trial court.
The state also compares appellant's failure to object to a situation in which an appellant first challenges on
appeal probation conditions that may be unreasonable, unconstitutional, or violative of statutory
provisions. It points to Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999), in which we held that "[a]
defendant who benefits from the contractual privilege of probation . . . must complain at trial to conditions
he finds objectionable."
Holding: COA properly analyzed and rejected the SPA’s claim of procedural default. CCA points out that
two years after Idowu, it held that "a claim regarding sufficiency of the evidence [to support a restitution
order] need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to
do so." Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). Moreover, “Appellant's complaint
about the sufficiency of evidence of his financial resources and ability to pay were likewise not waived by
his failure to raise such a complaint at trial. We reiterate that no trial objection is required to preserve an
appellate claim of insufficient evidence, thus the court of appeals did not err in addressing appellant's
complaint about the order to reimburse court-appointed attorney fees.” CCA therefore rejects the SPA’s
argument that such a complaint must be raised in the trial court or on a motion for new trial.
2. COA should have remanded the indigency issue to the trial court to decide. Appellant argues that the
trial court had already found Appellant indigent and appointed counsel at trial and on appeal, so a remand
would be pointless. CCA also points to also observe that article 26.04(p), which provides that "[a]
defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder
of the proceedings in the case unless a material change in the defendant's financial circumstances
occurs."
Holding: COA committed no error when it determined that the trial court erred in ordering reimbursement
of attorney fees without remanding the case to the trial court. “When claims of insufficient evidence are
made, the cases are not usually remanded to permit supplementation of the record to make up for alleged
deficiencies in the record evidence. Sufficiency of the evidence is measured by viewing all of the record
evidence in the light most favorable to the verdict. In this case, there is no indication that the state was
precluded from presenting evidence and being heard on the issue of appellant's financial resources and
ability to pay for reimbursement of the court-appointed-attorney fees.”
Judgment is therefore affirmed.
COURT OF CRIMINAL APPEALS from June 15, 2010
State’s PDRs from Atascosa & Wilson Counties
Trinidad & Adams v. State, __S.W.3d__ (Tex.Crim.App. Nos. 1218-08, 1219-08, 1220-08, 1221-08;
6/9/10)
Reversed: Price (9-0); Johnson concurred
In 2007, the Texas Legislature amended Code Crim. Proc. art. 33.011(b). According to the amendment,
an alternate juror in a criminal case tried in the district court, if not called upon to replace a regular juror,
shall no longer be discharged at the time that the jury retires to deliberate, but shall be discharged after
the jury has rendered a verdict. The amended statute does not indicate whether the alternate juror should
be allowed to be present for, and to participate in, the jury’s deliberations or, instead, whether he should
be sequestered from the regular jury during its deliberations until such time as the alternate’s services
might be required by the disability of a regular juror. In the instant cases, the trial court opted for the
former contingency. COA held in each case that, in doing so, the trial court violated the constitutional
requirement of a jury composed of twelve persons, or, alternatively, that the trial court violated the
statutory prohibition against permitting any person not a juror into the jury deliberation room. CCA granted
the State’s PDRs to address the contentions that COA erred to hold (1) that the appellants did not forfeit
any complaint on appeal by failing to object when the jury retired to deliberate, and (2) that the alternate
jurors’ participation in deliberations violated either the constitution or the statute. CCA holds that there was
no constitutional violation and that any complaint about a statutory violation was forfeited by the
appellants’ failure to invoke the statute in a timely manner. CCA reinstates the judgments of the trial courts.
Appellant’s PDR from Nacogdoches County
Ex parte Brooks, __S.W.3d__ (Tex.Crim.App. No. 1046-07, 6/9/10)
Reversed, remanded: Johnson (9-0); Meyers concurred
Appellant argued that the five-year statute of limitations for theft under Code Crim. Proc. art. 12.01(4)(A)
barred prosecution of a pending indictment and that the trial court erred when it dismissed the preceding
indictment. Because COA failed to decide this claim and CCA cannot review a decision by a lower court
that has not been made, CCA sustained appellant’s ground for review and reversed and remanded to
COA.
Appellant’s PDR from El Paso County
Contreras v. State, __S.W.3d__ (Tex.Crim.App. No. 0490-09, 6/9/10)
Reversed, remanded: Keller (9-0); Womack concurred; Price concurred w/o opinion; Johnson
concurred w/o opinion
Appellant was convicted of felony murder for the death of his twenty-two month-old niece. The issues are:
(1) whether COA erred in failing to find that a factual dispute existed which would entitle appellant to an
application paragraph under Code Crim. Proc. art. 38.23(a); and (2) whether the submission of felony
murder in the jury charge violated appellant’s right to a unanimous verdict because multiple culpable
mental states were submitted in the alternative for the underlying felony of injury to a child. CCA sustains
appellant’s first ground for review involving his Article 38.23 instruction claim, specifically in regards to a
threat made during interrogation to jail appellant’s wife, but overrules his other grounds for review. The
case is remanded for harm analysis.
Appellant’s PDR from Brown County
Worthy v. State, __S.W.3d__ (Tex.Crim.App. No. 0924-09, 6/9/10)
Affirmed: Cochran (9-0); Keller concurred w/ Meyers
CCA granted appellant’s PDR to resolve a conflict among the courts of appeals concerning whether Code
Crim. Proc. art. 37.07 § 3(g) requires the State to give pretrial notice of “same-transaction contextual
evidence” that it intends to offer in the punishment stage of a non-capital trial. CCA concludes that it does
not. Article 37.07 § 3(g), which explicitly states that the notice requirement applies “in the same manner
required by Rule 404(b),” refers to the scope of the evidence offered as well as to the timing of the
evidence offered. Pretrial notice of “same-transaction contextual evidence” is not required under Rule 404
(b), nor is it required under Article 37.07 § 3(g).
State’s Motion for Rehearing on PDR from Bexar County
Wilson v. State, __S.W.3d__ (Tex.Crim.App. No. 0307-09, 6/9/10)
Denied: Per curiam; Keasler dissented w/ Keller, Hervey
CCA addresses the State’s first ground for rehearing: At trial, appellant did not preserve the precise
complaint that forms the basis of the decisions by COA and CCA. CCA says that while this is true, it is
irrelevant because the State improperly relied on Tex. Pen. Code 37.09, which pertains to unpreserved
complaints, rather than Section 37.10, which pertains to preserved complaints. Despite these unique
circumstances, CCA holds that the State’s failure to raise preservation to COA is no longer a bar to it
raising it for the first time in a CCA petition.
COURTS OF APPEALS from May 4, 2010
Summaries are by Chris Cheatham, of the Cheatham Law Firm, Dallas, Texas.
Because D was not adequately represented during the 30 day period for filing a motion for new
trial, appellate court abated proceedings and restarted the appellate timetable.
Bearman v. State, 2010 WL 724516 (Tex.App.-Houston [1 Dist] Mar 04, 2010) (NO. 01-08-00787-CR).
While trial counsel might have made D aware of his right to file a motion for new trial, D did not have the
assistance of counsel in doing so, and because of the gap in D’s representation during the 30-day period
after sentencing, D was denied counsel during a critical stage of the criminal process.
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| RECENT TEXAS APPELLATE DECISIONS courtesy of the Texas Criminal Defense Lawyer's Association |