Barbara J. Panza and Justice Kerry FitzGerald 2017-12-20 04:55:40
Heart of DWI Instructions: Burnett v. State of Texas 1 “[T]he trial court must submit to the jury only the portions of the statutory definition of ‘intoxicated’ that are supported by the evidence,” distinguishing Ouellette v. State. Some evidence (odor of alcohol, other signs, and field sobriety tests) was consistent with consuming alcohol; other evidence showed the defendant possessed pills and admitted to having a prescription for the medication. There was no evidence as to the kind of drug, whether it can cause intoxicating effects, or whether the defendant’s symptoms of intoxication were consistent with intoxication by the pills found. At trial, the defendant objected to including the entire “loss of faculties” statutory definition because the evidence showed only intoxication due to alcohol. Student’s Expectation of Privacy in Dorm Room: State of Texas v. Rodriguez 2 A university student retained a Fourth Amendment expectation of privacy in her dorm room even though the university’s housing agreement permits routine inspections by authorized university personnel. The university police called the local authorities, who entered the dorm room without a warrant and eventually arrested one of the students who resided there. Coach’s Expectation of Privacy in Locker Room: Long v. State of Texas 3 The definition of “oral communication” under Article 18.20 of the Texas Code of Criminal Procedure incorporates the Fourth Amendment’s legitimate expectation of privacy standard. Unlike a public school teacher who has no reasonable expectation of privacy in a classroom, under the facts of the case, the coach had an expectation of privacy as to his locker room communications with school athletes. Probable Cause for Arrest: State of Texas v. Ford 4 An officer approached the defendant, told her a store employee reported she was concealing store items in her purse, listened to the defendant’s claim she was still shopping and would pay for items, and observed store items in her cart. The officer picked up the jacket covering her purse, discovered the purse was zipped up and full of store merchandise, and arrested her in the store. Methamphetamine was found in her purse. Officer had probable cause to arrest and was not required to credit a suspect’s innocent explanation for her conduct when probable cause was apparent from other circumstances. Suppression Rulings in Co-Defendant’s Case: State of Texas v. Arizmendi 5 Subsequent trial court order granting a co-defendant’s motion to suppress due to lack of probable cause is not “evidence” with respect to the suppression issue and is not a basis for the defendant’s motion for new trial. Expert Testimony: Wolfe v. State of Texas 6 Applying the Kelly factors,7 the experts’ testimony on abusive head trauma based particular “constellation” of symptoms exhibited by the 7-month-old baby was sufficiently reliable testimony that addressed the subject of abusive head trauma generally and indicated that the types of injuries suffered were the product of an intentionally inflicted impact. Mistrial at Punishment Hearing: Ex parte Pete 8 A trial court may grant a mistrial limited to a new punishment phase of trial. A defendant who moves for a mistrial limited to the punishment phase may not complain in a subsequent habeas corpus proceeding or appeal that his or her punishment hearing will be before a different jury, abrogating Bullard v. State. Cellphone Records: Hankston v. State of Texas 9 The defendant’s rights relating to cellphone records are the same under both the Fourth Amendment and Article I, Section 9 of the Texas Constitution. Discovery Documents—State’s Writ of Mandamus: Powell v. Hocker 10 Discovery statute does not allow a trial court to permit defense counsel to give copies of discovery materials to the defendant. The trial court had granted the defense counsel’s motion seeking “release” from the portion of Article 39.14 of the Texas Code of Criminal Procedure, which prohibits a defense attorney from giving the defendant copies of discovery information. Notes 1) No. PD-0576-16, 2017 WL 4158919 (Tex. Crim. App. Sept. 20, 2017). 2) 521 S.W.3d 1 (Tex. Crim. App. 2017). 3) No. PD-0984-15, 2017 WL 2799973 (Tex. Crim. App. June 28, 2017). 4) No. PD-1299-16, 2017 WL 4159087 (Tex. Crim. App. Sept. 20, 2017). 5) 519 S.W.3d 143 (Tex. Crim. App. 2017). 6) 509 S.W.3d 325 (Tex. Crim. App. 2017). 7) Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). 8) 517 S.W.3d 825 (Tex. Crim. App. 2017). 9) 517 S.W.3d 112 (Tex. Crim. App. 2017). 10) 516 S.W.3d 488 (Tex. Crim. App. 2017) (orig. proceeding). BARBARA J. PANZA is a staff attorney with the 5th Court of Appeals in Dallas. JUSTICE KERRY FITZGERALD served on the 5th Court of Appeals in Dallas for 15 years. He is a member of the State Bar of Texas Rules Committee and moderates an annual ethics program presented by the Dallas Bar Association.
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