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or under the authorily of the United States. The ju~y was only asked todeternline wl~ethcr the defendant mu iwoloed with an identificationdocument. Court llolrls that without suc11 a finding, a sentence overll~ree years was errox Reviewing the test of piail error, court finds theincre:lse UI sentence affected the fairness, integrity or public reputationof the judicial proceedings, and rcve~sed the sentence.EXCEPTION FOR 2241 PETITIONS: flPPeRY K CHAh"LER,No.99-41-4161,6/0WOI.SlGNlRCLLNe DECISIONS REPOReHEARSAY-EXCITBD LiTlERANCE EXCEPTION: Reyes v.Strrte, No. 02-00-283-CR, 6/14/01.Police officer arri\res at scene of mault 5 minutes afier receiling a911 cd. He described the complainaut as upset. \Vhen he aked herul~at happened, she said "He [the defendant] hit me." COA 11okIs thissatisfies TRE 803(2), the excited utterance rule. COA also r~lles thatstatements by the two clddren of the con~plainanl in respollse to theofficer's q~~estions were also excited utterances.IThis opinion is subslihlted for the palel opinion eillered onNovember 27, 2000. The petitioner fled a petition under 28 USC S2241, alleging a claim bnsed on the holdu~g of Richcirdso~~ 11. UnitedSt&s 526 US 13 (1999), wl~ich required ~III). unanin~ily in CCEcases. He filed a 2241 petition, alleging the remedy under 2255 \\'ainadeq~lale and ineffective. Court holds that limitations on second orsuccessive pctitio~~s do not nuke the remedy under 2255 inadequateor ioeffective. Inste;~d, the pelitiot~er nmst establish his claim is baedon a relroacli\~ely applicable Supreme Court decision mluch estblishedtllat tl~c petitio~~er inmay have been co~irictetl of a nonesislentoffense, and the chim imust Iuve been foreclosed by circuit llav at ll~etime wl~en the claim sl~ould have been i:~ised. Court holds thatRichrdso~r is ~'etroaclively applic:~ble. However; because the decisiondoes not establish that petitioner was innocent, or convicted of a nonedstcntoffense, relief TVIS denied.COMMENTS ON SILENCE POI,I,OX'ING ARREST HELDIMPROPER: UA'ITED E RODRIGUEZ, No. 99-10-982,07/30/01.The dcfe~~danl mas convicted of misappropriating postal funds.Postal investig;!tors obscwed llin~ mke hvo hags of money and placetl~em in a lockel: They confronted 11iu1 and placed him under arrest,illen questioned him about what llad occurred. Ile refused to answerquestions, in\zoking his right to remain silent and requesting a Iauyl:At trial 11e testiGetl that what he did urns to expose Uaws in postal secorityProsecutor questioned him about the failnre to make Illat claimwhen initidly questioned. He dso arg~~ed hat the stoiy was not crediblebecause it was not made at the first opportunity to do so. Courtl~oltls tlte prosecutor improperly used the defend;u~Us post-arrestsileace. Since the comments were tied tiirectly to the defendant's credibilityand the plamibility of his testimon): reversal was requiretl.COURT OF APPEALSHEARSAY-MEDICAL KECORDS EXCEFI'IOIOIY: Sfl~rdorirll 11.Sfnte, No. 01-00-00956-CR, 6/7/01.The medical records exception to the l~earsay rule, TRE 803(4), isnot linlited to shtements made by the patient to he doctor. A statementmade by the parent of an injured child to the doctor is also atlmissibleunder the rule. This is a case of first impression, ;~ccording lo the COA,becauseof the hvo prior Texas cues ti~at discuss the issue, one did not baseits decision on the rule and the other did not discuss it. COA relies onfedenl cases.[Case is noteworthy for the dissent, wl~ich exl~aostively analy~ss therule to urge its strict limitation.]ARRBST: Rodrigrrez u. Sfnte, No. 04-00-00710-CR, 6/13/01COA holds that a defendant is under arrest. and hence able to challeiigestatus for lack of probable cause if: (1) the suspect is p11)vicdydepri\d of his freedom in any significant way; (2) wl~en a law eeforcenlentoffice~s tells a suspect he may not leave; or (3) wllen a lawenforcen~ent officer creates a situation that woould leave a reasonablepelson to believe tl~at his freedom of moven~ent 11% l~een significantlyrestricted and d ~en there is probable cause to arrest and u41en theofficer has not told the suspect he is free to leave.HEARSAY- REQUIREMENT: Ledhetter' v.Stnte, No. 07-99-0417-CR, 6IlY01.Case constmes the una\~ailability requirement of TRB 804(b)(l)uhere the decla~mt nmst be unavdable for the hea~x~y exception toapply Here, tile witilness testified at fils1 trial, and \\as cross enaoined.Before the second trial, he was s e ~ witl~ d a subpoena 3 weeks beforehid. No writ ofattachment was issued to con~pel attendance where prosecutionknew witoess wo111d not attend trid before it conn~~enced. COA l~oldsthat w11ile merely issuing a subpoenawoould not be sufficient to establisl~una\~dabilit): sening it is. A writ of attacl~ment is not necessaq toaUow hearsaySI'IPULATION OF DWI PRIORS: Ororla a St&, No. 08-00-196-CR, 617101).Case construes limits of Tmez u. Stote wl~ere CG\ held that adefendant could force state to stipulate to prior DWs, in a felony D\Vlcae, and avoid use of those prio~s at guilt innocence stage of tdd. COAhere holds that Tmez does 1101 olean the prion can never be oelltioned.Thez merely limits the srate to reading only hvo allegationsto the ju~y anti limiting the evidence to the stipula' ' lolls.NOTICE OF APPEtU: ,llnr611t u. Stflte, No. 10-01-090-CR,6/13/01.Alost courts have held t11at TMI' 25.2(b) - the notice of appdrequirement following a negotiated guilty plea - is satisfied even witha general notice of appeal if the record reflects a satisfxtion of therule's other requirements: apretrial motio~~ or tile coort's permissionto appcal. COA holds that those cats were incorrectly decided andrefoses to follow them. The rule of substantial compliwce does notapply here.OClOBER 2001 WWW.TCDLA.COM VOICE FOR THE DEFENSE 31