| Law Office of Paul B. Kennedy, Attorney at Law, PLLC 811 Heights Boulevard, Houston, Texas 77007 Tel: (832) 606-9432 Fax: (866) 587-2584 DWI Defense, Criminal Defense, Traffic Tickets, Family Law |
COURT OF CRIMINAL APPEALS from March 3, 2010
Writ of Habeas Corpus from Collin County
Ex parte Hood, __S.W.3d__ (Tex.Crim.App. No. 75,370, 2/24/10)
Relief granted: Cochran (5-4); Keasler dissented w/ Keller, Hervey; Meyers dissented w/o opinion
Applicant was tried after the U.S. Supreme Court’s ruling in Penry I (1989) but before the state statute was
amended to accommodate that decision. One of the issues applicant raised on appeal was that the trial
court erred “in failing to instruct the jury of a method to be used by them to give effect to mitigating
evidence.” In his first writ application (1997) he challenged the nullification instruction, but then deleted
that claim from his amended application. A subsequent pro se application in 2004 was denied as an abuse
of the writ. His third writ application (2005) alleged that “the nullification instruction did not allow the jury to
consider and give effect to mitigating evidence presented at trial.” The habeas judge concluded that
applicant’s “nullification” claim was unavailable when he filed his previous habeas application and also that
the two special issues did not provide an avenue for the jury to give full consideration and full effect to
applicant’s mitigating evidence. Recall that in 2007, CCA denied relief on the 2005 death writ. Ex parte
Hood, 211 S.W.3d 767 (Tex.Crim.App. 2007). (Also recall this is the case in which the trial judge and the
elected DA had an affair.)
Reconsidering that decision on its own motion, CCA granted applicant a stay of execution in September 9,
2008, stating, “[b]ecause of developments in the law regarding nullification instructions ... it would be
prudent to reconsider the decision we issued [on January 10, 2007] in dismissing applicant’s second
subsequent writ application.” Here, CCA reconsiders whether applicant could have raised his Penry claim—
a claim alleging that the entirety of the sentencing scheme employed by the trial court precluded the jury
from giving full consideration and effect to his mitigating evidence—before May 24, 2004, when he filed his
pro se writ.
CCA concludes that five U.S. Supreme Court decisions, all of which were issued after applicant filed his
writ in 2004, announced new law directly applicable to applicant’s claim. Therefore, his second subsequent
writ application, filed in 2005, should be reinstated because it was not procedurally barred. Applicant is
entitled to a new trial on punishment. CCA has already held, in numerous habeas applications since 2007,
that Tennard v. Dretke, 542 U.S. 274 (2004), and Smith v. Texas, 543 U.S. 37 (2004), et al. did announce
new law and that those death-row inmates were entitled to have their Penry claims addressed.
Appellant’s and State’s PDRs from Lubbock County
Gonzales v. State, __S.W.3d__ (Tex.Crim.App. No. 0337-09, 2/24/10)
Reversed/remanded in part, affirmed in part: Price (9-0)
Appellant was convicted of two counts of aggravated sexual assault, the jury having found that he had
anal and vaginal intercourse with his eight-year-old daughter during one incident. The morning his jury
trial was to commence, he filed a motion for appointment of an expert to help him evaluate the State’s
medical evidence and a written motion for continuance so he could take full advantage of the expert’s
assistance. The trial court granted the motion for an expert, but denied the continuance. In a motion for
new trial, appellant complained of the denial of the continuance. CCA granted PDRs from appellant and
the State to address, respectively, whether the trial court erred in denying appellant’s motion for new trial
without conducting a hearing, and whether the court violated Fifth Amendment double jeopardy by
convicting on both counts.
Regarding appellant’s PDR, CCA holds that to show reversible error on the denial of a pretrial motion for
continuance, a defendant must show both that the trial court erred in denying the motion and that the
denial harmed him. If the judge could determine from the existing record that he had not erred in denying
the motion, he was not required to hold a hearing in order to make a record on whether appellant was
harmed. Here, the court was justified in concluding that it had not erred. Appellant did not complain of a
lack of expert assistance, only that his experts lacked sufficient time. Prior case law injects a diligence
requirement for a continuance for additional trial preparation. Appellant’s motion failed to state either his
diligence to obtain expert assistance sooner or, alternatively, how circumstances prevented him from
realizing earlier that he required such assistance.
Regarding the State’s PDR, CCA holds that the Legislature intended penetration of the anus to be a
discrete act from penetration of the sex organ, even though these theories of assault are in the same
subsection of the penal provision.
Appellant’s PDR from Bexar County
Joseph v. State, __S.W.3d__ (Tex.Crim.App. No. 1111-08, 2/24/10)
Affirmed: Meyers (9-0); Keller concurred; Cochran concurred w/ Price, Johnson, Holcomb
Appellant was convicted of murder and sentenced to 25 years’ confinement. A key piece of evidence was
a recorded statement produced as a result of appellant’s interview with police. The trial court denied
appellant’s motion to suppress, finding that appellant had waived his rights prior to and during the
statement. CCA affirms that the totality of the circumstances shows appellant knowingly, intelligently, and
voluntarily waived his rights under Article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona.
Appellant was adequately advised of his rights and, as he stated to CCA, he “clearly understood his
rights.” Immediately after being told that he had the right to remain silent, that he did not have to make any
statement to anyone, and that any statement he made would be used against him, he willingly participated
in a six-hour interview with police. Not once did he ask to stop the interview, nor did he request an attorney.
Appellant’s PDR from Harris County
Smith v. State, __S.W.3d__ (Tex.Crim.App. No. 1805-08, 2/24/10)
Reversed, remanded: Keasler (9-0)
A jury found appellant guilty of indecent exposure. Before trial, the judge denied his motion to quash,
which alleged that the information was fundamentally defective for failing to allege the act or acts relied on
to constitute recklessness. CCA holds that the information, which alleged appellant “exposed his penis and
masturbated,” was insufficient and that this was a substance defect. CCA therefore reverses and remands
to determine what, if any, harm analysis applies.
State’s PDR from Harrison County
Holmes, et al, v. State, __S.W.3d__ (Tex.Crim.App. Nos. 0453-07, 0454-07, 0455-07, 0456-07, 0457-
07, 0458-07, 0459-07, 0460-07; 2/24/10)
Affirmed, remanded: Meyers (9-0); Price, Cochran concurred w/o opinion
The defendants in eight cases were charged with DWI. In each case, the defendant filed a pretrial motion
to cross-examine the State’s expert on the breath-testing machine, the Intoxilyzer 5000. The trial court
denied the motions, and the defendants entered pleas of no contest. Each defendant was found guilty.
The trial court certified the defendants’ right to appeal. All eight defendants appealed, and COA reversed
and remanded the cases to the trial court. The State filed a PDR in each case. CCA consolidated the
cases and granted the State’s petition. CCA issued an opinion related to the preservation of error and
affirmed COA in all of the cases except Woodall. In Woodall, CCA reversed COA, holding that the error
was not preserved. The State Prosecuting Attorney filed a motion for rehearing in the cases CCA affirmed,
claiming that the issues presented in the State’s grounds for review were distinct from the preservation of
error issue. CCA granted the State’s motion for rehearing and ordered rehearing on thier own motion in
Woodall. CCA affirms. The trial court’s ruling disallowing cross-examination of the State’s expert witness
violated the defendant’s fundamental rights to a fair trial. Because the denial of the right to present a
defense is a violation of due process and results in constitutional error, CCA conducts harm analysis. “We
cannot determine beyond a reasonable doubt that the trial court’s failure to allow the defendants to
present a defense did not contribute to their decision to enter pleas. Soon after the trial court denied their
pretrial motions to permit cross-examination, the defendants changed their pleas to no contest and were
found guilty. This indicates that the trial court’s erroneous ruling was indeed a contributing factor in the
defendants’ convictions and punishments.”
PDRs Granted
http://www.cca.courts.state.tx.us/issues/ISSUES.htm
08-1389 – Ernesto Gonzales, San Patricio County – Murder
Whether the Thirteenth Court of Appeals decided an important question of state or federal law that
conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United
States by failing to hold a competency hearing when there was evidence that Gonzales may have been
incompetent.
09-1755 – Calvin Bernard Sumrell, Dallas County – Delivery of Controlled Substance
Whether the Court of Appeals misconstrued the record on a ground urged by the Defense, and improperly
delivered an opinion not borne out by the record?
10-0001 – Ryan Foster, Travis County – DWI
1. Whether the Third Court erred in applying the “as consistent with innocence as with criminal activity”
standard is analyzing the totality of the circumstances and determining whether the officers had
reasonable suspicion to detain.
2. Whether the Third Court failed to give appropriate deference to the trial court’s implied factual findings
when it held that Foster was detained “when he found himself barricaded on the front and side by two
vehicles, one of which was a marked police car.”
COURTS OF APPEALS from March 3, 2010
Summaries are by Chris Cheatham, of Cheatham and Flach, PLLC, Dallas, Texas.
Deferred adjudication considered “court ordered community supervision,” rendering D ineligible for
expunction of his arrest records.
Texas Dept. of Public Safety v. Nail, 2010 WL 45859 (Tex.App.-Austin Jan 08, 2010) (NO. 03-08-
00435-CV)
The dissent wrote: “[T]he majority considers the requirement in the underlying judgment that [D] pay an
$800 fine to be a ‘condition’ of community supervision and, therefore, determines that [D] was placed on
community supervision within the meaning of article 42.12. Based on this reasoning, the majority
concludes that [D] is ineligible for expunction. The majority's analysis is inconsistent with the plain
language of article 42.12.”
Deemed a “race neutral” reason for striking two black females was State’s explanation that the women
were employed as postal workers; prosecutor pointed out that two non-black panel members who were
also employed as postal workers were removed for cause and, thus, all persons on venire employed as
postal workers were removed, either for cause or by prosecutor’s use of peremptory strikes.
Leadon v. State, 2010 WL 143467 (Tex.App.-Houston [1 Dist] Jan 14, 2010) (NO. 01-08-00839-CR,
01-08-00840-CR)
Writ of Habeas Corpus from Collin County
Ex parte Hood, __S.W.3d__ (Tex.Crim.App. No. 75,370, 2/24/10)
Relief granted: Cochran (5-4); Keasler dissented w/ Keller, Hervey; Meyers dissented w/o opinion
Applicant was tried after the U.S. Supreme Court’s ruling in Penry I (1989) but before the state statute was
amended to accommodate that decision. One of the issues applicant raised on appeal was that the trial
court erred “in failing to instruct the jury of a method to be used by them to give effect to mitigating
evidence.” In his first writ application (1997) he challenged the nullification instruction, but then deleted
that claim from his amended application. A subsequent pro se application in 2004 was denied as an abuse
of the writ. His third writ application (2005) alleged that “the nullification instruction did not allow the jury to
consider and give effect to mitigating evidence presented at trial.” The habeas judge concluded that
applicant’s “nullification” claim was unavailable when he filed his previous habeas application and also that
the two special issues did not provide an avenue for the jury to give full consideration and full effect to
applicant’s mitigating evidence. Recall that in 2007, CCA denied relief on the 2005 death writ. Ex parte
Hood, 211 S.W.3d 767 (Tex.Crim.App. 2007). (Also recall this is the case in which the trial judge and the
elected DA had an affair.)
Reconsidering that decision on its own motion, CCA granted applicant a stay of execution in September 9,
2008, stating, “[b]ecause of developments in the law regarding nullification instructions ... it would be
prudent to reconsider the decision we issued [on January 10, 2007] in dismissing applicant’s second
subsequent writ application.” Here, CCA reconsiders whether applicant could have raised his Penry claim—
a claim alleging that the entirety of the sentencing scheme employed by the trial court precluded the jury
from giving full consideration and effect to his mitigating evidence—before May 24, 2004, when he filed his
pro se writ.
CCA concludes that five U.S. Supreme Court decisions, all of which were issued after applicant filed his
writ in 2004, announced new law directly applicable to applicant’s claim. Therefore, his second subsequent
writ application, filed in 2005, should be reinstated because it was not procedurally barred. Applicant is
entitled to a new trial on punishment. CCA has already held, in numerous habeas applications since 2007,
that Tennard v. Dretke, 542 U.S. 274 (2004), and Smith v. Texas, 543 U.S. 37 (2004), et al. did announce
new law and that those death-row inmates were entitled to have their Penry claims addressed.
Appellant’s and State’s PDRs from Lubbock County
Gonzales v. State, __S.W.3d__ (Tex.Crim.App. No. 0337-09, 2/24/10)
Reversed/remanded in part, affirmed in part: Price (9-0)
Appellant was convicted of two counts of aggravated sexual assault, the jury having found that he had
anal and vaginal intercourse with his eight-year-old daughter during one incident. The morning his jury
trial was to commence, he filed a motion for appointment of an expert to help him evaluate the State’s
medical evidence and a written motion for continuance so he could take full advantage of the expert’s
assistance. The trial court granted the motion for an expert, but denied the continuance. In a motion for
new trial, appellant complained of the denial of the continuance. CCA granted PDRs from appellant and
the State to address, respectively, whether the trial court erred in denying appellant’s motion for new trial
without conducting a hearing, and whether the court violated Fifth Amendment double jeopardy by
convicting on both counts.
Regarding appellant’s PDR, CCA holds that to show reversible error on the denial of a pretrial motion for
continuance, a defendant must show both that the trial court erred in denying the motion and that the
denial harmed him. If the judge could determine from the existing record that he had not erred in denying
the motion, he was not required to hold a hearing in order to make a record on whether appellant was
harmed. Here, the court was justified in concluding that it had not erred. Appellant did not complain of a
lack of expert assistance, only that his experts lacked sufficient time. Prior case law injects a diligence
requirement for a continuance for additional trial preparation. Appellant’s motion failed to state either his
diligence to obtain expert assistance sooner or, alternatively, how circumstances prevented him from
realizing earlier that he required such assistance.
Regarding the State’s PDR, CCA holds that the Legislature intended penetration of the anus to be a
discrete act from penetration of the sex organ, even though these theories of assault are in the same
subsection of the penal provision.
Appellant’s PDR from Bexar County
Joseph v. State, __S.W.3d__ (Tex.Crim.App. No. 1111-08, 2/24/10)
Affirmed: Meyers (9-0); Keller concurred; Cochran concurred w/ Price, Johnson, Holcomb
Appellant was convicted of murder and sentenced to 25 years’ confinement. A key piece of evidence was
a recorded statement produced as a result of appellant’s interview with police. The trial court denied
appellant’s motion to suppress, finding that appellant had waived his rights prior to and during the
statement. CCA affirms that the totality of the circumstances shows appellant knowingly, intelligently, and
voluntarily waived his rights under Article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona.
Appellant was adequately advised of his rights and, as he stated to CCA, he “clearly understood his
rights.” Immediately after being told that he had the right to remain silent, that he did not have to make any
statement to anyone, and that any statement he made would be used against him, he willingly participated
in a six-hour interview with police. Not once did he ask to stop the interview, nor did he request an attorney.
Appellant’s PDR from Harris County
Smith v. State, __S.W.3d__ (Tex.Crim.App. No. 1805-08, 2/24/10)
Reversed, remanded: Keasler (9-0)
A jury found appellant guilty of indecent exposure. Before trial, the judge denied his motion to quash,
which alleged that the information was fundamentally defective for failing to allege the act or acts relied on
to constitute recklessness. CCA holds that the information, which alleged appellant “exposed his penis and
masturbated,” was insufficient and that this was a substance defect. CCA therefore reverses and remands
to determine what, if any, harm analysis applies.
State’s PDR from Harrison County
Holmes, et al, v. State, __S.W.3d__ (Tex.Crim.App. Nos. 0453-07, 0454-07, 0455-07, 0456-07, 0457-
07, 0458-07, 0459-07, 0460-07; 2/24/10)
Affirmed, remanded: Meyers (9-0); Price, Cochran concurred w/o opinion
The defendants in eight cases were charged with DWI. In each case, the defendant filed a pretrial motion
to cross-examine the State’s expert on the breath-testing machine, the Intoxilyzer 5000. The trial court
denied the motions, and the defendants entered pleas of no contest. Each defendant was found guilty.
The trial court certified the defendants’ right to appeal. All eight defendants appealed, and COA reversed
and remanded the cases to the trial court. The State filed a PDR in each case. CCA consolidated the
cases and granted the State’s petition. CCA issued an opinion related to the preservation of error and
affirmed COA in all of the cases except Woodall. In Woodall, CCA reversed COA, holding that the error
was not preserved. The State Prosecuting Attorney filed a motion for rehearing in the cases CCA affirmed,
claiming that the issues presented in the State’s grounds for review were distinct from the preservation of
error issue. CCA granted the State’s motion for rehearing and ordered rehearing on thier own motion in
Woodall. CCA affirms. The trial court’s ruling disallowing cross-examination of the State’s expert witness
violated the defendant’s fundamental rights to a fair trial. Because the denial of the right to present a
defense is a violation of due process and results in constitutional error, CCA conducts harm analysis. “We
cannot determine beyond a reasonable doubt that the trial court’s failure to allow the defendants to
present a defense did not contribute to their decision to enter pleas. Soon after the trial court denied their
pretrial motions to permit cross-examination, the defendants changed their pleas to no contest and were
found guilty. This indicates that the trial court’s erroneous ruling was indeed a contributing factor in the
defendants’ convictions and punishments.”
PDRs Granted
http://www.cca.courts.state.tx.us/issues/ISSUES.htm
08-1389 – Ernesto Gonzales, San Patricio County – Murder
Whether the Thirteenth Court of Appeals decided an important question of state or federal law that
conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United
States by failing to hold a competency hearing when there was evidence that Gonzales may have been
incompetent.
09-1755 – Calvin Bernard Sumrell, Dallas County – Delivery of Controlled Substance
Whether the Court of Appeals misconstrued the record on a ground urged by the Defense, and improperly
delivered an opinion not borne out by the record?
10-0001 – Ryan Foster, Travis County – DWI
1. Whether the Third Court erred in applying the “as consistent with innocence as with criminal activity”
standard is analyzing the totality of the circumstances and determining whether the officers had
reasonable suspicion to detain.
2. Whether the Third Court failed to give appropriate deference to the trial court’s implied factual findings
when it held that Foster was detained “when he found himself barricaded on the front and side by two
vehicles, one of which was a marked police car.”
COURTS OF APPEALS from March 3, 2010
Summaries are by Chris Cheatham, of Cheatham and Flach, PLLC, Dallas, Texas.
Deferred adjudication considered “court ordered community supervision,” rendering D ineligible for
expunction of his arrest records.
Texas Dept. of Public Safety v. Nail, 2010 WL 45859 (Tex.App.-Austin Jan 08, 2010) (NO. 03-08-
00435-CV)
The dissent wrote: “[T]he majority considers the requirement in the underlying judgment that [D] pay an
$800 fine to be a ‘condition’ of community supervision and, therefore, determines that [D] was placed on
community supervision within the meaning of article 42.12. Based on this reasoning, the majority
concludes that [D] is ineligible for expunction. The majority's analysis is inconsistent with the plain
language of article 42.12.”
Deemed a “race neutral” reason for striking two black females was State’s explanation that the women
were employed as postal workers; prosecutor pointed out that two non-black panel members who were
also employed as postal workers were removed for cause and, thus, all persons on venire employed as
postal workers were removed, either for cause or by prosecutor’s use of peremptory strikes.
Leadon v. State, 2010 WL 143467 (Tex.App.-Houston [1 Dist] Jan 14, 2010) (NO. 01-08-00839-CR,
01-08-00840-CR)
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| RECENT TEXAS APPELLATE DECISIONS courtesy of the Texas Criminal Defense Lawyer's Association |