One to Watch-Due Process
******* 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.