New Case Summary-January 2008

Only One Usable Breath/Blood Sample may be Taken Pursuant to Section 724.012(a) of the Transportation Code

State v. Neesley, 2007 WL 3276430 (Tex.Crim.App. Nov 07, 2007)

One and only one sample of breath or blood may be taken pursuant to provision of the Transportation Code requiring a police officer to take a blood or breath specimen from a suspect who was involved in a life-threatening accident, although “sample” means a usable sample.


Incarceration Does Not Always Constitute “Custody” for Miranda Purposes

Herrera v. State, 2007 WL 4146707 (Tex.Crim.App. Nov 21, 2007)

In the event that questioning occurs while the defendant is incarcerated, courts must nevertheless still apply the same traditional “custody” analytical framework for Miranda purposes.

Agreement to Cap the Maximum Sentence to which the Defendant could be Subject Constituted a “Plea Bargain”, and Therefore, this was a Plea-Bargain Case to which There was No Right of Appeal

Menjivar v. State, 2007 WL 4099409 (Tex.App.-Hous. (1 Dist.) Nov 15, 2007)

As stated.

Submitting Aggravated Sexual Assault Charge in the Disjunctive Did Not Offend Defendant’s Constitutional Right to a Unanimous Verdict

Santee v. State, 2007 WL 4099503 (Tex.App.-Hous. (1 Dist.) Nov 15, 2007)

This, the court held because the charge effectively permitted the jury to find the defendant guilty of aggravated sexual assault in a single verdict if it found that, inter alia, the defendant caused his sexual organ to penetrate or contact victim's sexual organ. Because penetration necessarily includes contact, the jury, in effect, unanimously determined that defendant contacted complainant's sexual organ and that it was, thus, not error to submit the charge in the disjunctive. All of the jurors who believed there was penetration necessarily also believed that antecedent contact had occurred.

Defendant's Written Waiver, Upon Entering his Guilty Plea, of His Right to Confront and Cross-Examine Witnesses Applied Only to the Guilt Stage
Stringer v. State, 2007 WL 3276107 (Tex.Crim.App. Nov 07, 2007)

The written waiver at issue was devoid of any reference to punishment and also the waiver’s express reference to Article 1.15 of the Code of Criminal Procedure defined the scope of the waiver and, in doing so, limited the application of the waiver to the guilt stage.

Drug Conviction Reversed For Failure of Police to Quantify Proportion of Codeine in Cough Suppressant Cocktail

Sanchez v. State, 2007 WL 3227744 (Tex.App.-Hous. (1 Dist.) Nov 01, 2007)

Evidence was insufficient to prove that nonnarcotic cough suppressant, Promethazine, was present in sufficient proportion to confer valuable medicinal qualities other than those possessed by codeine alone, as required by Tex. Health & Safety Code Ann. § 481.105(1), because the police chemist could not quantify the amount of codeine or the amount of Promethazine that had been contained in the liquid.

Victim’s Mother Vicariously Consented to Tape Recording of Conversations Between Defendant and Victim, Even Though Defendant and Victim Did Not Themselves Consent

Weaver v. State, 2007 WL 4157237 (Tex.App.-Waco Nov 21, 2007)

Defendant argued that the trial court erred by denying his motion to suppress tape recordings of telephone conversations between himself and the child victim on the ground that they were made without either his or the victim’s consent. Specifically, the defendant filed a motion to suppress the tapes because: (1) there was no vicarious consent; and (2) there is a reasonable expectation of privacy in conversations conducted via speakerphone. “Until recently, ‘no Texas cases have addressed a parent's ability to vicariously consent to the recording of a child's telephone conversations.’” (internal citation omitted) Both parties cited to Alameda v. State, a Fort Worth Court of Appeals case, later affirmed by Texas Court of Criminal Appeals, which addresses the doctrine of vicarious consent in the context of the parent/child relationship. In that case, the tapes were deemed admissible because the mother in that case articulated her belief that the defendant and victim were engaging in inappropriate behavior. The instant defendant argues that, unlike in Alameda, the mother of the victim in this case failed to articulate a good faith reasonable basis for believing that the recordings were in the victim’s best interest. In particular, the defendant complained that the State never inquired as to the mother’s basis for recording the conversations. Sufficient evidence of the mother’s belief that the recordings were in the victim’s best interest was manifested in the written statement that were admitted into evidence at the hearing, concluded the appellate court. According to those statements, the mother had observed the Defendant touching the victim.