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told the 911 operator on the day of the incident that appellantwas not intoxicated. Nevertheless, the trial judge believed thatthe jury might link the evidence of appellant’s odd behavioron the day of the assault and his history of substance abusewith the psychiatrist’s description of drug-induced symptoms.She there fore included an instruction in the jury charge statingthat vol un tary intoxication is not a defense. Appellant assertedthat the trial court erred by including the voluntary intoxicationin struc tion. CCA holds that it was not error to include theinstruction because there was sufficient evidence for a juror tocon clude that intoxication somehow excused appellant’s actions.Moore v. State, 286 S.W.3d 371 (Tex.Crim.App. 2009)Dismissed (improvident grant)Appellant was convicted of capital murder and sentencedto life in prison. Appellant claimed that the trial court erredin denying his Batson challenges to seven African-Americanju rors. COA agreed that appellant met his burden to establisha Batson violation with respect to one juror, reversed the judgmentof the trial court, and remanded the case. CCA grantedthe State’s PDR to determine whether COA “erred in holdingthat the trial court was required to find that the trial prosecutoren gaged in purposeful racial discrimination when she exerciseda peremptory challenge.” Having examined the record and briefsin this case, CCA concludes that its decision to grant review wasim provident.Moore v. State, __S.W.3d__ (Tex.Crim.App. No. 1340-08, 7/1/09) ReversedAppellant pled guilty to manufacturing methamphetamine.During the taking of the plea, the trial court added conditions tothe State’s plea bargain, including a requirement that appellantap pear in court on a future sentencing date. When appellantfailed to appear for sentencing, he violated those additional conditions, and for that reason, the trial court converted appellant’splea-bargain agreement into an open plea and sentenced himto 40 years’ imprisonment. COA reversed the conviction andre manded to the trial court because of the additional conditions.CCA affirms the judgment of the trial court because appellantfailed to preserve error for review by not raising the error atei ther the plea hearing or the sentencing hearing.Appellants’ PDRsMenefee v. Texas, 287 S.W.3d 9 (Tex.Crim.App. 2009)Vacated and Remanded to COAAppellant pled guilty to possession of cocaine with intentto deliver, enhanced to a first-degree felony. The trial court sentencedhim to 56 years’ imprisonment. Appellant contendedthe evidence was insufficient to support his guilty plea. COAdis agreed, holding that notwithstanding a defect in the writtenstip u la tion of evidence that the appellant entered in support ofthe plea, his sworn responses during the plea colloquy providedsuf fi cient support for his plea. CCA declares that COA erred tohold that the deficiency in the written stipulation was remediedby appellant’s plea colloquy.Freeman v. State, 286 S.W.3d 370 (Tex.Crim.App. 2009)Vacated and Remanded to COAAt appellant’s DWI trial, it came to light that the police videotape of appellant’s stop and field sobriety tests was recordedover. At the close of evidence, appellant requested a spoliationin struction regarding the video. Appellant did not cite any constitutionalauthority. The State argued that the federal standardunder Arizona v. Youngblood, 408 U.S. 51 (1988), applied. There quested instruction was denied. COA held that appellant adequatelypreserved his claim under the Texas due course of lawpro vision by requesting the instruction. The court then appliedits holding from Pena v. State, 226 S.W.3d 634 (Tex. App.—Waco2007), which held that the Texas due course of law provisionpro vides a greater level of protection than the Due Process Clauseof the Fourteenth Amendment. COA held that appellant’s duecourse of law rights were not violated. CCA has since reversedPena, holding that Pena failed to preserve his complaint thatthe Texas due course of law provides greater protection than thefed eral provision. Based on its decision in Pena, CCA vacates thejudg ment of COA and remands this case to reconsider whetherthe issue was preserved.Death Penalty OpinionDirect AppealRusseau v. State, __S.W.3d__ (Tex.Crim.App. No.74,466, 7/1/09) AffirmedFacts: In 2002, a jury found appellant guilty of capital murder.That same jury answered three statutory special issues insuch a way that the trial court was required to assess appellant’spun ish ment at death. In 2005, CCA affirmed the trial court’scon vic tion, reversed its punishment, and remanded the case tothe trial court for a new punishment hearing. At the conclusionof that hearing, the trial court, in accordance with the jury’san swers to the three special issues, again assessed appellant’spun ish ment at death. On appeal from the second punishmenthear ing, appellant brought the following issues.Rejected Issues:1. On remand, the trial court’s jurisdiction was statutorilylim ited to punishment issues. After remand, appellant’s appealwas limited to issues that arose during remand. That being thecase, appellant’s argument that the evidence at trial was insufficientpresents nothing for CCA to review.2. The evidence was legally sufficient to prove future dangerousness. A jury could have concluded that appellant exhibiteda dangerous aberration of character, that he was a chronicand increasingly dangerous violator of criminal laws, and that38 VOICE FOR THE DEFENSE October 2009
if he were allowed to live, there is a probability that he wouldcom mit violent criminal acts in the future, so as to constitutea continuing threat to people and property.3. The trial court did not err by failing to define “probability”in the first special issue. The term is not statutorily defined, andCCA presumes that jurors give it its usual meaning.4. The trial court did not err by failing to define “criminalacts of violence” because the phrase is not unconstitutionallyvague and need not be defined for the jury.5. The trial court did not err by failing to define “militates.”The term is not statutorily defined, and CCA presumes that jurorsgive it its usual meaning. Furthermore, appellant did notask the trial court for the “limiting definition” of “militates” thathe claims is constitutionally required, and nothing suggests thathe suffered harm from the lack of such a definition.6. The trial court did not err by failing to define “continuingthreat to society” because the jury is presumed to understandthe phrase. And, the U.S. Supreme Court has concluded that thisspe cial issue, even without the definition in question, adequatelyguides the jury.7. The trial court’s instructions on the special issues wereproper. CCA cites first that the jury’s deliberations were not limitedto evidence “which a juror might regard as increasing [the]de fen dant’s moral blameworthiness.” The jury could considerany of the evidence submitted at trial. CCA cites second thatap pel lant did not ask the trial court for the instruction that heclaims is constitutionally required, and nothing suggests thathe suffered harm from the lack of such an instruction.8. Appellant argued that the trial court erred by failing toin struct the jury that finding guilt in the first phase of trial didnot foreclose consideration of evidence which they believed reducedmoral blameworthiness. CCA counters that the trial courtin structed the jury that it must consider all evidence admittedat the guilt or innocence and punishment stages, including evidenceof defendant’s background or character or circumstancesof the offense that militate for or mitigate against the deathpen alty. Although the instructions given to the jury did nottrack the language of the instruction that appellant argues isconstitutionally required, they had much the same meaning.9. Appellant argued that the trial court erred by failingto instruct the jury that there is no presumption in favor ofdeath, even if the jury found appellant to be a “future danger”in answer to special issue one, and that special issue three, regarding mitigating circumstances, is to be considered withoutre gard to the jury’s finding on special issue one. CCA countersthat the trial court instructed the jury that if it answered specialis sues one and two in the affirmative, then it would proceed toan swer special issue three either “yes” or “no.” Nothing in ourlaw required the trial court to further instruct the jury that therewas no presumption in favor of death.10. Appellant argued that the trial court erred by failing toinstruct the jury so as to provide a vehicle for a juror to returna life verdict where the juror concludes that the aggravating factors,although established by the evidence, still are not so severeas to call for death as a punishment. CCA concludes that thetrial court’s instructions met the requirements of Article 37.071,which, in turn, met the requirements of the Eighth Amendment.11. The trial court properly refused to preclude the deathpen alty as a sentencing option or, in the alternative, to quashthe indictment because a grand jury had not considered andal leged the facts legally essential to appellant’s conviction anddeath sentence. CCA rejects this argument because appellantfailed to cite the pages in the record where he made the argumentto the trial court and received a ruling thereon.12. The Texas death penalty statute is not unconstitutionalfor its failure to provide for meaningful appellate review of thesuf fi ciency of the evidence to support the jury’s negative answerto the third special issue, the mitigation issue.13. The trial court did not abuse its discretion by readmittingevidence at punishment without first holding a Dauberthear ing and requiring the State to establish predicate for theevi dence. CCA says that a trial court’s admission of evidencewill not be reversed absent a clear abuse of discretion.14. The trial court did not err by instructing the jury thata unanimous vote was required to answer the first and secondspe cial issues in the affirmative and the third special issue in thenegative, and that at least ten jurors were required to answerthe first two special issues in the negative and the third in theaf fir mative. CCA relies on its previous rejection of constitutionalattacks on the “10-12 rule.”15. The Texas capital sentencing statute is not unconstitutionalfor its failure to inform the jury that a single holdout juroron a special issue would result in an automatic life sentence.Court of AppealsDriver’s nervousness combined with his drivingslowly away from a high-crime area did not justifycontinuation of traffic stop beyond the time needed toissue a traffic citationSieffert v. State, __S.W.3d__, 2(Tex.App. No.07-08-0242-CR—Amarillo 6/2/09)“When the driver refused Officer Lewis’ request to searchthe SUV, he had learned nothing new that justified prolongingtheir detention. At that point, it was incumbent upon him toei ther issue a warning or citation to the driver for speeding. Initiatinga drug-related investigation by calling for a drug-sniffingcanine and then removing the passengers from the SUV, questioningthem about their activities, identities, and the SUV’scontents impermissibly prolonged their detention by exceedingthe purpose of the traffic stop.”October 2009 VOICE FOR THE DEFENSE 39
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