for the defense for the defense - Voice For The Defense Online
for the defense for the defense - Voice For The Defense Online
for the defense for the defense - Voice For The Defense Online
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HELD: <strong>The</strong> first step of <strong>the</strong> Hall lesser-included-offense<br />
analysis requires courts to determine if reckless driving is a<br />
lesser-included offense of aggravated assault as charged. Courts<br />
do not consider <strong>the</strong> evidence that was presented at trial; <strong>the</strong>y<br />
consider only <strong>the</strong> statutory elements of aggravated assault with<br />
a deadly weapon as modified by <strong>the</strong> particular allegations in<br />
<strong>the</strong> indictment. Under this analysis, <strong>the</strong> elements of reckless<br />
driving are not included within <strong>the</strong> facts required to establish<br />
aggravated assault with a deadly weapon as charged.<br />
Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App. 2011);<br />
Reversed & remanded<br />
Appellant was convicted of three offenses of aggravated<br />
sexual assault and sentenced to 70 years’ confinement with a<br />
$30,000 fine. Much of <strong>the</strong> testimony related to acts committed<br />
be<strong>for</strong>e appellant turned 17. COA held that he was denied a fair<br />
trial because <strong>the</strong> jury charges did not limit <strong>the</strong> jury’s consideration<br />
to evidence of acts committed after his 17th birthday. CCA<br />
granted review to consider <strong>the</strong> effects of <strong>the</strong> jury instructions<br />
given and not given. <strong>The</strong> State petitioned that in <strong>the</strong> absence<br />
of a request <strong>for</strong> a Tex. Penal Code § 8.07(b) instruction from<br />
<strong>defense</strong> counsel, <strong>the</strong> judge is not required to sua sponte instruct<br />
<strong>the</strong> jury on this point. <strong>The</strong> State also argued that COA should<br />
have found any error to be harmless.<br />
HELD: A charge is erroneous if it presents <strong>the</strong> jury with<br />
a much broader chronological perimeter than is permitted by<br />
law. <strong>The</strong> trial judge is “ultimately responsible <strong>for</strong> <strong>the</strong> accuracy<br />
of <strong>the</strong> jury charge and accompanying instructions,” and this is<br />
an “absolute sua sponte duty.” In this case, <strong>the</strong> judge had a sua<br />
sponte duty to provide an 8.07(b) instruction. While <strong>the</strong> jury<br />
instruction did not specifically refer to “any offense anterior to<br />
<strong>the</strong> presentment of <strong>the</strong> indictment,” it did not limit <strong>the</strong> jury’s<br />
consideration of such. <strong>The</strong> absence of an 8.07(b) instruction,<br />
combined with <strong>the</strong> evidence of appellant’s conduct as a juvenile<br />
and <strong>the</strong> instruction that <strong>the</strong> jurors did receive—that “a conviction<br />
may be had” <strong>for</strong> any offense committed be<strong>for</strong>e <strong>the</strong> victim’s<br />
28th birthday—resulted in inaccurate charges that omitted an<br />
important portion of applicable law. <strong>The</strong>re<strong>for</strong>e, CCA found a<br />
violation of Tex. Code Crim. Proc. art. 36.14. In determining<br />
whe<strong>the</strong>r <strong>the</strong> error resulted in egregious harm, CCA looked to<br />
<strong>the</strong> facts that show appellant’s 17th birthday fell in <strong>the</strong> middle<br />
of an eight-year pattern of abuse. <strong>The</strong> jury could have convicted<br />
appellant of <strong>the</strong> same offense even if <strong>the</strong> proper instruction<br />
had been given and appellant’s pre-17 acts were disregarded<br />
by <strong>the</strong> jury. COA was correct that <strong>the</strong> court erroneously failed<br />
to instruct <strong>the</strong> jury on Section 8.07(b); however, <strong>the</strong> error did<br />
not result in egregious harm.<br />
Prudholm v. State, __S.W.3d__ (Tex.Crim.App. No. PD-<br />
1611-08, 3/16/11); COA affirmed, remanded to trial<br />
court<br />
This is an appeal from a sentence enhanced under Tex. Penal<br />
Code § 12.42(c)(2), which mandates a life sentence <strong>for</strong> a defen‐<br />
dant convicted of a sex-related offense listed in Subsection A if<br />
<strong>the</strong> defendant has been previously convicted of a Texas offense<br />
listed in Subsection B or an offense “under <strong>the</strong> laws of ano<strong>the</strong>r<br />
state containing elements that are substantially similar to <strong>the</strong><br />
elements” of a Texas offense listed in Subsection B. Here, CCA<br />
must decide whe<strong>the</strong>r <strong>the</strong> Cali<strong>for</strong>nia offense of sexual battery<br />
contains elements that are substantially similar to <strong>the</strong> elements<br />
of <strong>the</strong> Texas offenses of sexual assault or aggravated kidnapping.<br />
HELD: Sexual battery does not contain elements that are<br />
substantially similar to aggravated kidnapping or sexual assault.<br />
While <strong>the</strong> elements of <strong>the</strong> Cali<strong>for</strong>nia and Texas offenses may be<br />
similar in a general sense, <strong>the</strong>y do not display <strong>the</strong> high degree<br />
of likeness required to be substantially similar.<br />
State v. Johnston, __S.W.3d__ (Tex.Crim.App. No. PD-<br />
1736-09, 3/16/11); COA reversed, remanded to trial<br />
court<br />
COA held that <strong>the</strong> unrecorded and compelled draw of appellee’s<br />
blood by police officer, who was a seasoned EMS provider,<br />
in <strong>the</strong> police station’s blood-draw room while appellee<br />
was restrained violated <strong>the</strong> Fourth Amendment’s reasonable<br />
manner requirement.<br />
HELD: CCA clarified <strong>the</strong> necessity to consider both reasonableness<br />
questions under Schmerber v. Cali<strong>for</strong>nia, 384 U.S.<br />
757 (1966): (1) whe<strong>the</strong>r <strong>the</strong> test chosen was reasonable; and (2)<br />
whe<strong>the</strong>r it was per<strong>for</strong>med in a reasonable manner. <strong>For</strong> <strong>the</strong> general<br />
population, <strong>the</strong> Supreme Court has determined that a blood<br />
test is a reasonable means in which to analyze an individual’s<br />
blood alcohol level. <strong>For</strong> <strong>the</strong> second prong of <strong>the</strong> reasonableness<br />
question, <strong>the</strong> reasonableness of <strong>the</strong> manner in which a DWI<br />
suspect’s blood is drawn should be assayed on an objective,<br />
case-by-case basis in light of <strong>the</strong> totality of <strong>the</strong> circumstances.<br />
<strong>The</strong> officer’s specific training and experience as an EMT qualified<br />
him to per<strong>for</strong>m <strong>the</strong> blood draw. Fur<strong>the</strong>rmore, while a medical<br />
environment may be ideal, it does not mean that o<strong>the</strong>r settings<br />
are unreasonable under <strong>the</strong> Fourth Amendment. An environment<br />
is deemed safe (reasonable) if it is in accordance with<br />
accepted medical practices and <strong>the</strong>re<strong>for</strong>e does not “invite an<br />
unjustified element of personal risk of infection or pain.” Under<br />
<strong>the</strong> totality of <strong>the</strong> circumstances, appellee’s blood was drawn in<br />
accordance with acceptable medical practices and was <strong>the</strong>re<strong>for</strong>e<br />
reasonable.<br />
State v. Robinson, __S.W.3d__ (Tex.Crim.App. No.<br />
PD-1206-10, 3/16/11); COA & trial court reversed,<br />
remanded to trial court<br />
Appellee was arrested without a warrant <strong>for</strong> DWI. He was<br />
transported to a hospital, where he consented to have his blood<br />
drawn. Appellee filed a motion to suppress <strong>the</strong> results, claiming<br />
his blood was drawn without a warrant and without consent<br />
and was not drawn by a qualified person; thus, it should have<br />
been suppressed under both <strong>the</strong> Fourth Amendment and Tex.<br />
Code Crim. Proc. art. 38.23. <strong>The</strong> State stipulated to <strong>the</strong> unwar‐