One to Watch-Due Process

ONE TO WATCH - SEX OFFENDER REGISTRATION AND DUE PROCESS Coleman v. Dretke, U. S. Fifth Circuit Court of Appeals No. 03-50743 Coleman was convicted of burglary of a habitation in 1986. While on parole in 1991, he was indicted for aggravated sexual assault of a child and indecency of a child by contact. Pled guilty, convicted of misdemeanor assault and the state revoked his parole. Parole panel imposed two additional conditions on his release - that he register as a sex offender and attend sex offender therapy. He registered but failed to do therapy and his parole was revoked. Claim on appeal: conditions of parole violated his due process rights. Reversed and Remanded. Because of the stigma attached with being a registered sex offender, as well as the highly invasive nature of sex offender treatment in Texas, an inability to challenge the parole conditions in court was a violation of Coleman's due process rights. Absent a conviction for a sex offense, the state must afford an individual a hearing to find that they actually possess the characteristics of a sex offender which warrant the imposition of such stringent parole conditions.
******* Given the unusually visible debate between the majority panel and other members of the 5th Circuit protesting the refusal to grant an en banc rehearing, the stage may be set for Supreme Court review of this case. The majority adopts several legal positions that could be very damaging to the authority for a Parole Board or State court to impose restrictions on many sex offenders who weren't convicted on a sex offense. It also lays the groundwork for similar challenges to other conditions arising from conduct separate from the convicting offense.

Ex Parte McFarland, Texas Court of Criminal Appeals No. AP-75,044 5/18/2005 Follow up to Burdine case. Sleeping lawyer. Defendant was convicted of capital murder and sentenced to death in 1992 for the robbery-murder of a grocery store owner. Defendant challenged his conviction, claiming he was denied council because one of his attorneys repeatedly napped during the trial. When the sleepy attorney was questioned about his behavior at the hearing on the motion for new trial, he explained, "I'm 72 years old. I customarily take a short nap in the afternoon." The napping began in voir dire and progressively got worse, including several times when his co-council and bailiffs had to nudge the attorney in an attempt to wake him. Convictions affirmed. Although one attorney slept through portions of the trial, defendant was not deprived of the assistance of council because at least one of his attorneys was awake and active at all times in the courtroom. The Court of Criminal Appeals was careful to examine the record in this case and found that a court-appointed "young" and well-rested co-counsel was awake and active throughout trial. CCA was also careful to point out that the defendant demanded retention of the hired 71-year old napper even after problems were noticed by all.

State v. Cullen - 4th COA, 5/18/2005 No. 04-04-00583-CR Cullen's car was pulled over after it was reported that he was driving erratically and at a high rate of speed. Shortly after he passed the officers, he attempted to make a left hand turn and crashed into a telephone pole. Officers observed that Cullen has glassy, bloodshot eyes and had a strong odor of alcohol on his breath. After showing signs of intoxication during field sobriety tests, including the inability to complete the on-leg stand test, the officers determined that Cullen was intoxicated and placed him under arrest. Before trial, Cullen filed a motion to suppress the testimony of the arresting officers. The trial court granted Cullen's motion to suppress. Motion to suppress affirmed. The only evidence of Cullen's intoxication presented at the suppression hearing was that of the testimony of the arresting officers. The Fourth Circuit found that the trial court was free to disbelieve the officers' testimony and was thereby within its discretion in granting Cullen's motion to suppress.

Jones v. State, 5th COA 5/18/2005 No. 05-03-01634-CR
Jones was convicted for possession of cocaine. In determining punishment, the jury considered the defendant's two prior felony convictions and sentenced him to 99 years confinement. On appeal defendant challenged the jury charge which failed to include the applicable parole law and objected to an improper closing argument by the State. In the State's closing argument they referred to the defendant as a "little drug dealer" to which defense counsel's objection was sustained. The State then said to the jury, "I stand by my statement," to which another objection was sustained. Affirmed. White the trial court did fail to give the appropriate jury charge and the prosecutor's remarks during closing statements were inappropriate, the court found that the defendant was not egregiously harmed, and the errors did not warrant a mistrial. Justice Wright did however caution the State that after the trial court sustains an objection it is "unacceptable" for the prosecutor to communicate to the jury that the stand by their previous statement.

Erazo v. State - 14th COA, 5/18/2005 No. 14-01-01195
Defendant was convicted of the murder of his seven-month pregnant girlfriend, who was carrying his child, by shooting her in the back of the head. During the punishment phase the State admitted an autopsy photo of the dead fetus removed from the murder victim. The Court of Criminal Appeals ruled that the trial court abused its discretion in admitting the photograph and remanded the case to determine the harm resulting from the error. The 14th COA affirmed the conviction, but reversed and remanded to the trial court for new punishment hearing. Because the court could not determine whether or not the admission of the autopsy photo of the fetus influenced the jury's punishment verdict, they could only conclude that the error was harmful.

Expunction Bill Passes Texas House

Judge David Finn

SB166 passed the House. It provides:

Art. 55.03. EFFECT OF EXPUNCTION. When the order of expunction is final:
(1) the release, maintenance, dissemination, or use of the expunged records and files for any purpose [other than a purpose described by Section 411.083(a) or (b)(1), (2), or (3), Government Code,] is prohibited;
(2) except as provided in Subdivision (3) [3] of this article, the person arrested may deny the occurrence of the arrest
and the existence of the expunction order; and (3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter
in question has been expunged.

SECTION 2. The Department of Public Safety of the State of Texas shall as soon as practicable take action as necessary to ensure compliance with Subdivision (1), Article 55.03, Code of Criminal Procedure, as amended by this Act, including the destruction of information that has been maintained by the department solely to enable the department to comply with Subdivision (1), Article 55.03, Code of Criminal Procedure, as that law existed immediately before the effective date of this Act.

SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2005.

Texas Probation Overhaul Bill: Big Changes?

Here are some of the features of SB1266, the probation reform bill
currently in the Senate and likely to be voted on soon:


Shortens the period of supervision for some (non 3g) offenses

Deletes minimum period of community supervision in felony cases

Deletes judge-authorized increases in the maximum period of
community supervision

State jail felons (other than drug offenders who get automatic
community supervision) can get community supervision from judge or
jury

Provides for automatic orders of nondisclosures for those who
successfully complete deferred adjudication

Removes requirement for sworn statements that the person has never
been convicted before in order to be eligible for probation.

Requires a judge in a felony case who imposes confinement as a
condition of community supervision to give the defendant credit on
the defendant's sentence in the same manner as if the defendant
served the term of confinement in TDCJ.

Authorizes the period of community supervision to be reduced or
terminated by the judge, at any time, after the defendant has
completed one-third of the original community supervision period or
two years of community supervision, whichever is less

Requires the judge to review the defendant's case for the purpose of
considering termination of community supervision, as soon as
practicable after a defendant has completed one-half of the original
community supervision period or two years, whichever is greater.

Prohibits a judge from refusing to terminate a period of community
supervision solely on the ground that the defendant is indigent and
unable to pay required restitution, fines, costs, or fees.

Requires, rather than authorizes, a judge to set aside the verdict
or permit the defendant to withdraw his plea, if the judge grants a
dismissal to the defendant, rather than discharges the defendant.

Authorizes the judge to discharge the defendant without permitting
the defendant to withdraw the defendant's plea and without setting
aside the judgment, if the judge terminates the period of community
supervision.

Requires the judge to grant the defendant a discharge subject to
enhancement, if the judge terminates the period of supervision after
determining, at a hearing at which the defendant is provided the
same due process rights as those provided at a revocation hearing,
that the defendant failed to comply with a significant condition of
community supervision, and as a result evidenced an intentional
effort to avoid rehabilitation.

Provides that failure to pay a fine, restitution, court cost, or
other fee does not constitute noncompliance with a significant
condition of community supervision unless the judge determines the
defendant was not indigent and intentionally refused to make the
payment.

Provides that a discharge subject to enhancement is a final
conviction for purposes of criminal enhancement.

Authorizes the judge in a felony case to extend a period of
community supervision under this section by imposing a maximum of
five one-year extensions for good cause. Prohibits the judge from
imposing more than one extension per hearing.

Authorizes the judge to extend the period of community supervision
in a misdemeanor case for any period the judge determines is
necessary, not to exceed an additional two years beyond the three-
year limit, if the defendant fails to pay a previously assessed
reimbursement for appointed counsel.

Authorizes the judge to grant a defendant credit on the sentence
imposed for all or part of the time the defendant was on community
supervision if the judge revokes community supervision solely on the
basis of an administrative violation of conditions of release.

Eliminates the due diligience defense in revocation hearings.