CCA

The Texas Court of Criminal Appeals recently heard a case involving excessive force by police.

In, Hereford v. State the ultimate issue presented to the CCA was whether forced used by officers to recover drugs from a defendant was excessive and unreasonable. The court held that it was.

The appellant in Hereford pulled into a parking lot and got out of his car. An officer observed him and recognized him as someone he had dealt with in the past. The officer knew Hereford had outstanding warrants. The officer conducted a pat down search and arrested him for the warrants. After appellant was arrested, the officer searched his vehicle. When the officer did not find any narcotics, he called a K9 unit whose dog alerted on the car.  Despite the alert, officers again failed to find any narcotics. When the officer returned to his patrol unit, appellant had his head down and was chewing on something. The officer commanded appellant to spit it out but he refused. The officer and two others then removed appellant from the patrol unit and tased him on the leg. The officer who made initial contact with appellant then grabbed him around the throat and tried to force him to spit out the substance. The officers then ceased trying to force the appellant to spit out the substance. After discussing their options for fifteen to twenty minutes, the officers decided to take the appellant to the hospital.

At the hospital, the officers appellant over to another officer working off-duty at the hospital. Appellant still had the substance in his mouth.  The hospital tried to get him to release it by using ammonia capsules. This did not work. The off-duty officer then took appellant into an examining room and began to tase him repeatedly – three times in the upper inner thigh (the groin) and once in the right forearm. When he was being tased, appellant's mouth would open involuntarily.  While appellant's mouth was open (during the tasing of his groin) the officer was able to get the substance out of his mouth.  It turned out to be a plastic baggie of crack cocaine.

The issue presented for the CCA was whether, under the Fourth Amendment, the manner in which the evidence that was seized was reasonable. The court used the factors found in Winston v. Lee, 470 U.S. 753 (1985) to balance the intrusion to the appellant’s personal interests, the societal need for effective law enforcement, and the state’s need for evidence. Those factors include whether the police conduct:

1. threatened the suspect’s health or safety;
2. conformed to accepted medical practices;
3. was performed by a trained professional;
4. arose from the existence of probable cause to believe the suspect had evidence of a crime;
5. unduly intruded upon the suspect’s dignity interests in personal privacy; and
6. was a commonplace procedure to which individuals are often subjected.

Balancing those interests, the court found that the off-duty officer’s actions were unreasonable and violated appellant's Fourth Amendment prohibition against unreasonable searches and seizures.

The CA, however, made it a point to highlight that this ruling was not to be construed to imply that the use of a Taser in these types of instances is per se unreasonable. The Court highlighted Ellis v. Columbus City Police Dep’t, No. 1:07CV123-A-A, 2009 U.S. Dist. LEXIS 95821 (N.D.Miss. September 15, 2009), where almost the same set of circumstances happened.  In that case though, the suspect had lunged at officers and was openly chewing a plastic bag of cocaine. The Court differentiated that case from this one by explaining that in Ellis, the officers stopped after tasing appellant several times and the tasing occurred during the arrest (not long after and by another officer).

Presiding Judge Keller dissented without opinion.

“On Sunday, he advised me that he had been in Russia” is not the same as “He advised me that he had been in Russia on Sunday.”

The Court of Criminal Appeals considered a similar ambiguity in an Affidavit for a search warrant in State v. McClain. The Affiant stated in the affidavit, “In the past 72 hours, a confidential informant advised” the defendant had been seen in possession of Meth. Without more, this purports to state that the informant provided the information in the past 72 hours and DOES NOT state when the informant actually observed the behavior – a critical piece of information, indeed.

The trial court found the affidavit deficient and suppressed the evidence that was seized during the search. The 7th District Court of Appeals (Amarillo) affirmed. The CCA now reversed the Court of Appeals, holding that the search warrant based on this affidavit was proper.

The CCA cautions trial courts not to view such affidavits in a “hypertechnical” manner.

Since the Fourth Amendment strongly prefers searches to be conducted pursuant to search warrant, the United States Supreme Court has provided incentives for law-enforcement officials to obtain warrants instead of conducting warrantless searches. One incentive is a less-strict standard for reviewing the propriety of a search conducted pursuant to a warrant. In this situation, courts must give great deference to the magistrate’s probable-cause determination.

The CCA, with the exception of Judge Johnson who dissented, held that the lower courts violated the prohibition on hypertechnical review of warrant affidavits when it strictly applied rules of grammar and syntax in its analysis. The CCA further held:

Reviewing courts should only be concerned with whether the magistrate’s determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner. And reviewing courts should defer to all reasonable inferences that the magistrate could have made.

Can the State prove Reckless Discharge of a Firearm by simply proving discharge of a firearm in the city limits?

The State charged Roman Rodriguez under section 42.12 of the Texas Penal Code for reckless discharge of a firearm inside city limits. The information alleged that the defendant

recklessly discharged a firearm by pulling the trigger on a firearm which contained ammunition and was operable.

Upholding the 4th District Court of Appeals (San Antonio), the CCA held that the charge was deficient because it failed to allege that the act was done recklessly. The CCA noted that,

The State’s information alleged that Mr. Rodriguez recklessly discharged a firearm inside [the city limits] “by pulling the trigger on an firearm which contained ammunition and was operable.” Well, of course he did. Everyone who discharges a firearm pulls the trigger, and every firearm that is discharged contains ammunition and is operable if it discharges.

The Court explained that, in essence, the State pled a tautology – “The defendant recklessly discharged a firearm because he discharged a firearm.” The Court further noted that there are many occasions where a person might discharge a firearm inside the city limits by pulling the trigger on an operable firearm containing ammunition, such as: “if a person shoots a robber or a rapist climbing into his bedroom window,” or “if he shoots a rattlesnake lying in the bushes.”

Accordingly, because the State only alleged “how” the defendant discharged the firearm and failed to alleged how he “recklessly” discharged the same, the information was deficient and should be set aside.

Judge Price concurred in the result and writes separately to express his opinion that the statute (section 42.12) is “hopelessly ambiguous” regarding the recklessness requirement.  Presiding Judge Keller joined in Judge Price’s concurrence. Judge Womack also concurs without opinion.

a question that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact. Commitment questions are impermissible unless the law requires a commitment, and the law does not require a commitment on what facts a juror will consider during sentencing.

The CCA also cautions, however, that “a trial court abuses its discretion if it disallows a proper voir dire question.”

In Davis v. State, a case decided by the CCA last month, the defense counsel asked the venire panel the follow question:

Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon, what factors do y’all think are important?

Despite counsel’s fine use of the word “y’all,” and without any objection to the question by the State, the trial judge interjected, saying, “that’s a commitment question. You can’t ask that question.” On appeal, the 14th District Court of Appeal (Houston) agreed.

The CCA now reverses, holding that

appellant’s counsel asked “what factors…are important” in sentencing. This did not ask the jurors how particular facts would influence their deliberations. This was an inquiry into the jurors’ general philosophies.

There you have it. Cases regarding commitment questions are always very fact dependant, but for now, we can add one more to the list. Counsel may properly ask: "What factors are important in assessing the sentence in a [name your offense] case."

Presiding Judge Keller penned the lone dissent.  She deems the question an improper commitment question.

Byrd v. State

In Byrd, the state charged appellant with theft of certain property from owner “Mike Morales.” At trial, however, the State did not prove, in any way whatsoever, that the property belonged to Mike Morales. The overwhelming proof showed that the property, in fact, belonged to Walmart. On appeal, appellant argued the the evidence was insufficient because the State did not prove that the property belonged to Mike Morales. The 4th Court disagreed, holding that the name of the owner was not required, as it was simply a variance of proof.

This week, the Texas Court of Criminal Appeals reversed the decision of the Court of Appeals. In a unanimous opinion written by Judge Cochran, the CCA held that:

Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment is the owner is the same person (or entity) – regardless of the name – as shown by the evidence.

The CCA explained that a conviction would still stand if an indictment alleged an incorrect name, such as Buddy Smith, when the proof at trial revealed that the victim’s name was, in fact, John Smith (Buddy was simply a nickname). In that instance, there would be sufficient evidence showing that the person alleged in the indictment is the same person from whom the property was stolen.

In this case:

Not only did the State fail to offer any evidence that "Mike Morales" - the person alleged in the theft indictment - has any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern the missing "Mile Morales," convicted her nevertheless.  According to the State, the "only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved - and possibly to the jury as well - that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter."  An alternate, less generous explanation, is that everyone was asleep at the wheel.

As a rule for future Walmart theft cases (and all theft cases), the majority opinion states:

The parties, the court, and the jury must know the identity of the owner [of the stolen property] regardless of how the State names him.

It is worth noting that the CCA did not foreclose the option of the State reindicting the appellant for theft from “Walmart,” as jeopardy has not attached to that specific offense. But as far as theft from Mike Morales goes, the appellant stands acquitted.