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ever in the United States’ history.”
Appellant complained the court “continually den[ied] defense
counsel’s attempts to explore mercy as a consideration
during the individual voir dire.” Appellant did not show that
he was forced to accept any objectionable jurors.
Appellant alleged the court erred in refusing to grant a
hearing on his motion for new trial on the following grounds:
(1) there was unauthorized communication between the bailiff
and jury that violated his Sixth Amendment right to an impartial
jury, and (2) the future dangerousness question violates due
pro cess. On the first point, the bailiff ’s direction to jurors to
keep their voices down so that they could not be heard outside
the jury room did not implicate appellant’s right to an impartial
jury. Regarding the second point, CCA has repeatedly stated that
the facts of an offense alone may support an affirmative future
dangerousness finding.
Motion for Leave to File
Original Writ of Mandamus
State v. Dittman, __S.W.3d__ (Tex.Crim.App. No.
74,593-01, 3/30/11); Denied
A sexual assault case is pending in the district court. Complainant
was interviewed at the Child Advocacy Center. The
State has a DVD recording of the interview, and the court has
ordered the State to make a copy of the recording for defense
counsel. The prosecutor sought a writ ordering the district judge
to rescind his order. The issue is whether the order to make the
defense a copy is permitted under the discovery statute, Tex.
Code Crim. Proc. art. 39.14(a).
HELD: In applying the plain language of the statute, CCA
held that the court’s order for the State to make the DVD copy,
which is an easy and inexpensive task, is reasonable. Alternatively,
the court could have ordered the State to deliver the
original copy of the DVD to defendant to duplicate, which is a
seemingly less desirable option.
Court of Appeals
Summaries by Chris Cheatham of Cheatham Law Firm, Dallas
Parks v. State, 330 S.W.3d 675 (Tex.App.—San Antonio
2010, pet. ref’d)
Encounter between D and officers was not consensual. One
officer used a spotlight to illuminate D, who was walking behind
a mall with three other men, and the officers communicated in
an authoritative tone to D to walk to the patrol car and place his
hands on the car. The court emphasized that two officers were
present (armed and uniformed). Although D did not immediately
place his hands on the car, he yielded to officer’s request/
command by stopping his path of travel. Officers were without
RS, even though one officer noticed that D and the three accompanying
men had blue rags in their pockets, and even though
officer associated blue rags with gang members and believed
that gang members often carry weapons to protect themselves or
drugs. “While the State correctly argues that gang membership
may be a factor to be considered in determining if reasonable
suspicion exists, it has not cited any authority holding that gang
membership alone provides reasonable suspicion for an investigative
detention or a Terry frisk.” Moreover, officer did not
testify that any particular gang identified with blue rags or that
such a gang was active in the area, and officer did not explain
how he acquired his knowledge about the weapon-carrying
propensities of that gang.
Gonzales v. State, 330 S.W.3d 691 (Tex.App.—San
Antonio 2010)
DWI conviction upheld, even though officers were unable
to locate D after the accident for up to 30 minutes, at which
point officers found D at his residence—where he had partaken
in post-accident drinking. “[D] testified that the cause of his
intoxication was his consumption of three glasses of wine after
arriving at his residence,” and D alleged that the accident was
due to a tire blowout and sleep deprivation. The court nevertheless
determined that various circumstantial evidence was sufficient
to support the conviction: a one-vehicle accident, no skid
marks, driver left scene of accident, and officer’s testimony that
“a person would not likely have reached the level of intoxication
he observed in [D] unless the person drank continuously for
twenty minutes, and he saw no evidence near [D] that indicated
[D] had been drinking at his residence.”
Tanner v. State, No. 09-09-00458-CR, 2010 WL
4263822 (Tex.App.—Beaumont 10/27/10)
Prosecutor’s calling attention to D’s lack of witnesses did
not constitute an improper comment on D’s failure to testify
because D was not the only witness who could have been called
to testify. “A remark that calls attention to the absence of evidence
which only the defendant could supply will result in reversal;
however, if the language can reasonably be construed to refer
to appellant’s failure to produce evidence other than his own
testimony, the comment is not improper.”
Vasquez v. State, 324 S.W.3d 912 (Tex.App.—Houston
[14th Dist] 2010)
The State argued successfully that the following gave rise
to RS: “(1) the initial stop was out of the ordinary when [D]
pulled to the left rather than to the right; (2) [D’s] distant travel
plans to Greenspoint Mall when there were several major malls
in between his home and Greenspoint Mall; (3) [Trooper’s]
knowledge of the Greenspoint Mall being a ‘high-crime area’
and a ‘source location for the ultimate destination of drugs and
narcotics’[;] (4) [D’s] absence from work during the day; (5)
[D’s] desire to travel so far when gas prices were almost $4.00 a
gallon; (6) [D’s] failure to identify the store or the type of dress
he was looking for; (7) [Trooper’s] past training in identifying