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COURT OF CRIMINAL APPEALS (February 7, 2012)
An oral ruling is not "an order" for the purposes of establishing the decision of the trial court.
State v. Sanavongxay, No. 1809-10 (Tex.Crim.App. Jan 25, 2012).
The trial court orally ruled on the defense motion for a continuance and did not rule on the defense motion
to suppress DNA evidence, but, on its own motion, chose to exclude the DNA evidence because of the
State's tardy notice to the defense. No order was signed. Because there was no order from which to
appeal, no writing that memorialized the trial court's informal notations on the motion to suppress or the
trial judge's oral explanation of her non-ruling, COA correctly held that it had no jurisdiction over the
State's appeal.
D's choice to testify during sentencing was voluntary, and his Fifth Amendment right to remain
silent was not violated, because neither statement by the trial court amounted to a threat that D
would be penalized for exercising his constitutional right to remain silent. Johnson v. State, No.
0527-11 (Tex.Crim.App. Jan 25, 2012).
The trial court's first statement asking whether D would be testifying was characterized as it exercising
reasonable control over the mode and order of interrogating witnesses and presenting evidence pursuant
to Tex. Code Crim. Proc. art. 37.07, § 3(a)(1). The trial court's second statement, asking about what D
had been doing in the 18 years between his arrests, would be perceived by a reasonable person as a
request to offer mitigating evidence rather than an implied threat of punishment.
For a list of other issues pending before the court, click here.
COURTS OF APPEALS (February 7, 2012) Summaries are by Chris Cheatham, of the Cheatham Law
Firm, Dallas, Texas.
Sufficient evidence to support DWI, despite testimony from the manager of the bar from which
D was driving home that "[D] commonly mumbles and giggles and talks to herself as a result of
her prior head injury." Zill v. State, No. 01-10-00679-CR (Tex.App.-Houston [1 Dist] Oct 6, 2011).
"Although [D's] behavior during the traffic stop may have been consistent with a head injury, her behavior
also constitutes recognized evidence of intoxication….The jury was fully entitled to believe [officer] that [D]
was intoxicated and disbelieve [D's] alternative explanation that her prior head injuries caused her
behavior."
Deemed sufficient for RS of DWI was officer's observation of D driving the wrong direction
through the drive-through lane at Burger King and nearly hitting the drive-through menu
coupled with information obtained from anonymous caller complaining about D's erratic driving.
Zibafar v. State, No. 01-10-01139-CR (Tex.App.-Houston [1 Dist] Oct 6, 2011).
"An officer generally cannot rely only upon a police broadcast of an anonymous telephone call to establish
probable cause or reasonable suspicion. However, an anonymous tip, corroborated by the officer's
personal observations, may be sufficient to give an officer reasonable suspicion to detain an individual."
Here, in addition to the above-referenced observations at the drive-through, "[w]hen [officer] initially
approached [D's] car, [officer] saw [D] pour liquid out of a Styrofoam cup onto the floorboard of his car.
When he reached [D's] car, [officer] detected an odor of alcohol in the car."
D deemed intoxicated at the time of accident, despite negative results of blood-alcohol test
and despite expert testimony that D's drunken-like demeanor is consistent with the symptoms
of D's mental disorders. Kiffe v. State, No. 01-10-00746-CR (Tex.App.-Houston [1 Dist] Oct 13,
2011).
D admitted to taking certain prescription drugs such as valium on a regular basis (including the night
before the accident) but not necessarily on the day of the accident. Regarding the expert testimony, "[the
expert] testified that other reasons could explain all of the symptoms observed by [officer and other eye-
witnesses]…. The jury could have reasonably chosen to place greater weight on the testimony of the
witnesses, who observed [D] on the day of the offense, than [the expert], who observed him months later."
Officer lacked RS to stop vehicle leaving neighborhood despite the late hour (1 a.m.) and
despite officer's hunch that the occupants were part of a burglary ring. Turner v. State, No. 05-
10-01225-CR (Tex.App.-Dallas Oct 18, 2011).
"[D] was not pulling out from a dark area behind a business that had been closed for an hour. Rather, he
was parked on a neighborhood street, turned on his light, and pulled away from the curb as [officer] pulled
onto the street…. In fact, [officer] could not give an exact date as to whether or not there had been any
recent car thefts, but he estimated there may have been five in the neighborhood within the past year.
While he did testify the number of occupants in the car could indicate a burglary ring because such rings
usually travel in groups, he did not see a look out, he did not see anyone running from the house towards
the car or wearing dark clothes, nor did the car appear to be weighted down with stolen merchandise.
Thus, his testimony that [D] and his occupants might be part of a burglary ring was based on nothing more
than a mere suspicion or a hunch, rather than articulable facts."
* * * * * * * * * * * * * * * * * * * * * * * * * * *
US Supreme Court rules that any invocation of an accused's right to remain silent must
be "unequivocal."
Certiorari from the Sixth Circuit
Berghuis v. Thompkins, 560 U.S. ____, No. 08-1470 (6/1/10)
Reversed: Kennedy (5-4); Sotamayor dissented w/ Stevens, Ginsburg, Breyer
A Michigan state court convicted Thompkins of first-degree murder, assault with intent to commit murder,
and several firearms related charges. After exhausting his remedies in state court, Thompkins petitioned
for relief in a Michigan federal district court. The district court denied the petition. On appeal, Thompkins
argued that his confession was obtained in violation of the Fifth Amendment and that he was denied
effective counsel at trial. The Sixth Circuit held that the Michigan Supreme Court’s finding that Thompkins
waived his Fifth Amendment right was unreasonable because Thompkins refused to sign an
acknowledgment that he had been informed of his Miranda rights and rarely made eye contact with the
officer throughout the three hour interview. The Sixth Circuit also held that the Michigan Supreme Court
improperly determined that Thompkins was not prejudiced by his counsel’s failure to request a limiting
instruction related to his separately tried co-defendant’s testimony.
Questions:
(1) Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant’s Fifth Amendment
rights were violated?
(2) Did the Sixth Circuit fail to give the state court deference when it granted habeas corpus relief with
respect to defendant’s ineffective counsel argument when there was substantial evidence of the
defendant's guilt?
Conclusion: Yes. Yes. The state court’s decision to reject Thompkins’ Miranda claim was correct.
Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so
“unambiguously.” Moreover, the Court reasoned that Thompkins waived his Miranda right to remain silent
when he “knowingly and voluntarily” made a statement to police. The Court further held that even if
Thompkins’ counsel was ineffective, he cannot show he was prejudiced by counsel’s deficient
performance—a prerequisite to establishing that his Sixth Amendment right was violated.
CCA rules that court cannot order reimbursement of appointed attorney fees unless
Court enters finding that defendant has the financial resources to do so
Mayer v. State, State Prosecuting Attorney’s PDR from Swisher County – COA’s judgment
affirmed.
Appellant was convicted of aggravated kidnapping and assessed a 30 year sentence. COA affirmed the
conviction and sentence but reversed the trial court’s order that Appellant reimburse the county for court-
appointed-attorney fees in the amount of $2,850. Mayer v. State, 274 S.W.3d 898, 902 (Tex. App.-
Amarillo 2008) (under article 26.05(g) trial court has authority to order reimbursement of appointed
attorney fees if the court determines that defendant has financial resources that enable him to offset, in
part or in whole, the costs of the legal services provided). Here there was no such showing. Judgment was
affirmed as reformed.
SPA’s grounds for review:
1. Procedural default. SPA contends Appellant waived his complaint because he did not object to the trial
court's order to repay attorney fees, which it claims is governed by the holding in Idowu v. State, 73 S.W.
3d 918, 921 (Tex. Crim. App. 2002), that if a defendant wishes to complain about the propriety of, as
opposed to the factual basis for, a trial court's restitution order, he must explicitly do so in the trial court.
The state also compares appellant's failure to object to a situation in which an appellant first challenges on
appeal probation conditions that may be unreasonable, unconstitutional, or violative of statutory
provisions. It points to Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999), in which we held that "[a]
defendant who benefits from the contractual privilege of probation . . . must complain at trial to conditions
he finds objectionable."
Holding: COA properly analyzed and rejected the SPA’s claim of procedural default. CCA points out that
two years after Idowu, it held that "a claim regarding sufficiency of the evidence [to support a restitution
order] need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to
do so." Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). Moreover, “Appellant's complaint
about the sufficiency of evidence of his financial resources and ability to pay were likewise not waived by
his failure to raise such a complaint at trial. We reiterate that no trial objection is required to preserve an
appellate claim of insufficient evidence, thus the court of appeals did not err in addressing appellant's
complaint about the order to reimburse court-appointed attorney fees.” CCA therefore rejects the SPA’s
argument that such a complaint must be raised in the trial court or on a motion for new trial.
2. COA should have remanded the indigency issue to the trial court to decide. Appellant argues that the
trial court had already found Appellant indigent and appointed counsel at trial and on appeal, so a remand
would be pointless. CCA also points to also observe that article 26.04(p), which provides that "[a]
defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder
of the proceedings in the case unless a material change in the defendant's financial circumstances
occurs."
Holding: COA committed no error when it determined that the trial court erred in ordering reimbursement
of attorney fees without remanding the case to the trial court. “When claims of insufficient evidence are
made, the cases are not usually remanded to permit supplementation of the record to make up for alleged
deficiencies in the record evidence. Sufficiency of the evidence is measured by viewing all of the record
evidence in the light most favorable to the verdict. In this case, there is no indication that the state was
precluded from presenting evidence and being heard on the issue of appellant's financial resources and
ability to pay for reimbursement of the court-appointed-attorney fees.”
Judgment is therefore affirmed.
An oral ruling is not "an order" for the purposes of establishing the decision of the trial court.
State v. Sanavongxay, No. 1809-10 (Tex.Crim.App. Jan 25, 2012).
The trial court orally ruled on the defense motion for a continuance and did not rule on the defense motion
to suppress DNA evidence, but, on its own motion, chose to exclude the DNA evidence because of the
State's tardy notice to the defense. No order was signed. Because there was no order from which to
appeal, no writing that memorialized the trial court's informal notations on the motion to suppress or the
trial judge's oral explanation of her non-ruling, COA correctly held that it had no jurisdiction over the
State's appeal.
D's choice to testify during sentencing was voluntary, and his Fifth Amendment right to remain
silent was not violated, because neither statement by the trial court amounted to a threat that D
would be penalized for exercising his constitutional right to remain silent. Johnson v. State, No.
0527-11 (Tex.Crim.App. Jan 25, 2012).
The trial court's first statement asking whether D would be testifying was characterized as it exercising
reasonable control over the mode and order of interrogating witnesses and presenting evidence pursuant
to Tex. Code Crim. Proc. art. 37.07, § 3(a)(1). The trial court's second statement, asking about what D
had been doing in the 18 years between his arrests, would be perceived by a reasonable person as a
request to offer mitigating evidence rather than an implied threat of punishment.
For a list of other issues pending before the court, click here.
COURTS OF APPEALS (February 7, 2012) Summaries are by Chris Cheatham, of the Cheatham Law
Firm, Dallas, Texas.
Sufficient evidence to support DWI, despite testimony from the manager of the bar from which
D was driving home that "[D] commonly mumbles and giggles and talks to herself as a result of
her prior head injury." Zill v. State, No. 01-10-00679-CR (Tex.App.-Houston [1 Dist] Oct 6, 2011).
"Although [D's] behavior during the traffic stop may have been consistent with a head injury, her behavior
also constitutes recognized evidence of intoxication….The jury was fully entitled to believe [officer] that [D]
was intoxicated and disbelieve [D's] alternative explanation that her prior head injuries caused her
behavior."
Deemed sufficient for RS of DWI was officer's observation of D driving the wrong direction
through the drive-through lane at Burger King and nearly hitting the drive-through menu
coupled with information obtained from anonymous caller complaining about D's erratic driving.
Zibafar v. State, No. 01-10-01139-CR (Tex.App.-Houston [1 Dist] Oct 6, 2011).
"An officer generally cannot rely only upon a police broadcast of an anonymous telephone call to establish
probable cause or reasonable suspicion. However, an anonymous tip, corroborated by the officer's
personal observations, may be sufficient to give an officer reasonable suspicion to detain an individual."
Here, in addition to the above-referenced observations at the drive-through, "[w]hen [officer] initially
approached [D's] car, [officer] saw [D] pour liquid out of a Styrofoam cup onto the floorboard of his car.
When he reached [D's] car, [officer] detected an odor of alcohol in the car."
D deemed intoxicated at the time of accident, despite negative results of blood-alcohol test
and despite expert testimony that D's drunken-like demeanor is consistent with the symptoms
of D's mental disorders. Kiffe v. State, No. 01-10-00746-CR (Tex.App.-Houston [1 Dist] Oct 13,
2011).
D admitted to taking certain prescription drugs such as valium on a regular basis (including the night
before the accident) but not necessarily on the day of the accident. Regarding the expert testimony, "[the
expert] testified that other reasons could explain all of the symptoms observed by [officer and other eye-
witnesses]…. The jury could have reasonably chosen to place greater weight on the testimony of the
witnesses, who observed [D] on the day of the offense, than [the expert], who observed him months later."
Officer lacked RS to stop vehicle leaving neighborhood despite the late hour (1 a.m.) and
despite officer's hunch that the occupants were part of a burglary ring. Turner v. State, No. 05-
10-01225-CR (Tex.App.-Dallas Oct 18, 2011).
"[D] was not pulling out from a dark area behind a business that had been closed for an hour. Rather, he
was parked on a neighborhood street, turned on his light, and pulled away from the curb as [officer] pulled
onto the street…. In fact, [officer] could not give an exact date as to whether or not there had been any
recent car thefts, but he estimated there may have been five in the neighborhood within the past year.
While he did testify the number of occupants in the car could indicate a burglary ring because such rings
usually travel in groups, he did not see a look out, he did not see anyone running from the house towards
the car or wearing dark clothes, nor did the car appear to be weighted down with stolen merchandise.
Thus, his testimony that [D] and his occupants might be part of a burglary ring was based on nothing more
than a mere suspicion or a hunch, rather than articulable facts."
* * * * * * * * * * * * * * * * * * * * * * * * * * *
US Supreme Court rules that any invocation of an accused's right to remain silent must
be "unequivocal."
Certiorari from the Sixth Circuit
Berghuis v. Thompkins, 560 U.S. ____, No. 08-1470 (6/1/10)
Reversed: Kennedy (5-4); Sotamayor dissented w/ Stevens, Ginsburg, Breyer
A Michigan state court convicted Thompkins of first-degree murder, assault with intent to commit murder,
and several firearms related charges. After exhausting his remedies in state court, Thompkins petitioned
for relief in a Michigan federal district court. The district court denied the petition. On appeal, Thompkins
argued that his confession was obtained in violation of the Fifth Amendment and that he was denied
effective counsel at trial. The Sixth Circuit held that the Michigan Supreme Court’s finding that Thompkins
waived his Fifth Amendment right was unreasonable because Thompkins refused to sign an
acknowledgment that he had been informed of his Miranda rights and rarely made eye contact with the
officer throughout the three hour interview. The Sixth Circuit also held that the Michigan Supreme Court
improperly determined that Thompkins was not prejudiced by his counsel’s failure to request a limiting
instruction related to his separately tried co-defendant’s testimony.
Questions:
(1) Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant’s Fifth Amendment
rights were violated?
(2) Did the Sixth Circuit fail to give the state court deference when it granted habeas corpus relief with
respect to defendant’s ineffective counsel argument when there was substantial evidence of the
defendant's guilt?
Conclusion: Yes. Yes. The state court’s decision to reject Thompkins’ Miranda claim was correct.
Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so
“unambiguously.” Moreover, the Court reasoned that Thompkins waived his Miranda right to remain silent
when he “knowingly and voluntarily” made a statement to police. The Court further held that even if
Thompkins’ counsel was ineffective, he cannot show he was prejudiced by counsel’s deficient
performance—a prerequisite to establishing that his Sixth Amendment right was violated.
CCA rules that court cannot order reimbursement of appointed attorney fees unless
Court enters finding that defendant has the financial resources to do so
Mayer v. State, State Prosecuting Attorney’s PDR from Swisher County – COA’s judgment
affirmed.
Appellant was convicted of aggravated kidnapping and assessed a 30 year sentence. COA affirmed the
conviction and sentence but reversed the trial court’s order that Appellant reimburse the county for court-
appointed-attorney fees in the amount of $2,850. Mayer v. State, 274 S.W.3d 898, 902 (Tex. App.-
Amarillo 2008) (under article 26.05(g) trial court has authority to order reimbursement of appointed
attorney fees if the court determines that defendant has financial resources that enable him to offset, in
part or in whole, the costs of the legal services provided). Here there was no such showing. Judgment was
affirmed as reformed.
SPA’s grounds for review:
1. Procedural default. SPA contends Appellant waived his complaint because he did not object to the trial
court's order to repay attorney fees, which it claims is governed by the holding in Idowu v. State, 73 S.W.
3d 918, 921 (Tex. Crim. App. 2002), that if a defendant wishes to complain about the propriety of, as
opposed to the factual basis for, a trial court's restitution order, he must explicitly do so in the trial court.
The state also compares appellant's failure to object to a situation in which an appellant first challenges on
appeal probation conditions that may be unreasonable, unconstitutional, or violative of statutory
provisions. It points to Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999), in which we held that "[a]
defendant who benefits from the contractual privilege of probation . . . must complain at trial to conditions
he finds objectionable."
Holding: COA properly analyzed and rejected the SPA’s claim of procedural default. CCA points out that
two years after Idowu, it held that "a claim regarding sufficiency of the evidence [to support a restitution
order] need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to
do so." Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). Moreover, “Appellant's complaint
about the sufficiency of evidence of his financial resources and ability to pay were likewise not waived by
his failure to raise such a complaint at trial. We reiterate that no trial objection is required to preserve an
appellate claim of insufficient evidence, thus the court of appeals did not err in addressing appellant's
complaint about the order to reimburse court-appointed attorney fees.” CCA therefore rejects the SPA’s
argument that such a complaint must be raised in the trial court or on a motion for new trial.
2. COA should have remanded the indigency issue to the trial court to decide. Appellant argues that the
trial court had already found Appellant indigent and appointed counsel at trial and on appeal, so a remand
would be pointless. CCA also points to also observe that article 26.04(p), which provides that "[a]
defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder
of the proceedings in the case unless a material change in the defendant's financial circumstances
occurs."
Holding: COA committed no error when it determined that the trial court erred in ordering reimbursement
of attorney fees without remanding the case to the trial court. “When claims of insufficient evidence are
made, the cases are not usually remanded to permit supplementation of the record to make up for alleged
deficiencies in the record evidence. Sufficiency of the evidence is measured by viewing all of the record
evidence in the light most favorable to the verdict. In this case, there is no indication that the state was
precluded from presenting evidence and being heard on the issue of appellant's financial resources and
ability to pay for reimbursement of the court-appointed-attorney fees.”
Judgment is therefore affirmed.
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| RECENT TEXAS APPELLATE DECISION SUMMARIES courtesy of the Texas Criminal Defense Lawyers Association |