Significant Texas Opinions Flashcards
(36 cards)
Does an outcry statement apply to a video recording of that statement?
Bays v. State TCA 2013
No. Limited to live testimony of outcry witness. Child-complainant’s own videotape statement does not meet the requirements of the statute, 38.072.
In Texas, does the pre-trial hearing on for admission of the outcry statement constitute an opportunity to cross-examine for 6th Amendment concerns?
Sanchez v. State TCA 2011
No. The hearing under 38.072 is limited to a determination of reliability (time, content, circumstances)
What is the purpose of pre-trial hearing for outcry statement and how is it limited?
TCCP 38.072
Court to determine reliability of STATEMENT based on: time, content, and circumstances
Sanchez v. State 2011 - NOT for determining credibility of the OUTCRY WITNESS, that is for the jury
How do you determine an outcry witness if child told multiple people?
Robinett v. State, Tex. App.–Amarillo 2012
The proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense.
it is possible to have more than one proper outcry witness, so long as the outcries concerned different events and not simply repetition of the same event told to different individuals
Can a prosecutor comment on D’s failure to take responsibility if D testifies at guilt/innocence but not punishment?
Randolph v. State 2011
Yes. If D denies offense in G/I it’s “fair game”
TEST: whether language used was “manifestly” intended or was of such a character that the jury would necessarily and naturally take it as a comment on D’s failure to testify.
On appeal, what does court consider as to whether prosecutorial misconduct in the form of improper jury argument warrants a mistrial?
1) severity ;
2) efficacy of curative measure; and
3) the certainty of conviction absent the misconduct
Archie v. State - Tex. Crim. App. 2007
What is the standard for “voluntary” statements by accused?
Creager TCA 1997
Among other things…
Not influenced by fear or hope of third party - whether suspects will was overcome
Does 38.22 apply to CPS workers?
Wilkerson v. State 2005
No. not if not working in concert with law enforcement - so make law enforcement connection
What constitutes “custody” for 38.22?
Dowthitt TCA 1996
1. physically deprived of freedom of action in significant way;
2. when law enforcement tells D he cannot leave;
3. law enforcement create situation that would lead a reasonable person to believe not free to leave;
4. when probable cause to arrest, but law enforcement doesn’t tell D he can leave
Same as Miranda
How does 38.22 and Miranda differ?
38.22 includes “right to terminate interview at anytime”
What’s the appellate standard for 38.22?
Bifurcated:
Credibility - abuse of discretion
Historical Facts - de novo
Is the jury’s job in 38.22 instruction the same as 38.23?
No. 38.23 is just for disputed fact;
38.22 jury applies historical facts to question or voluntariness.
Can court make ruling on affidavits in 38.22 hearing?
No. It’s not a “paper hearing” like 11.07
Does waiver of appeal by stating “no objection” also waive right to jury instruction under 38.23?
No.
What is the requirement to trigger a jury instruction under 38.23?
- Evidence heard by jury raises a fact issue;
- Fact must be affirmatively contested;
- Contested facts must be material to lawfulness of obtaining evidence
How is 38.23 “good faith” exception different that Federal “good faith” exception?
38.23 REQUIRES probable cause, Federal only requires officer’s belief in probable case is in good faith
Does “illegally seized” under 38.23 apply to non-law enforcement?
Yes. Others cannot illegal seize items.
Does “attenuation of taint” apply to 38.23?
Yes. It applies to “obtaining”
Can an officer create a false DNA or fingerprint report to get a confession from the accused?
No, it’s tampering with evidence under 37.09 - leads to suppression under 38.23
Neither police nor private individuals have a license to fabricate documents or other evidence and then use them to affect a criminal investigation or other official proceeding
Wilson v. State, 311 S.W.3d 452, 461 (Tex. Crim. App. 2010)
Does Texas have an “Inevitable Discovery Rule”?
No. 38.23 excludes illegally OBTAINED evidence - regardless of how it MIGHT have been obtained
Daugherty 1996
Can a search warrant be issued based on illegally obtained evidence?
No. Unless warrant would be independently valid, 38.23 dictates exclusion
Diminished capacity in Texas
No.
Can use mental illness to negate mens rea BUT NOT say that D was incapable of forming mens rea
What should D counsel do if relationship evidence is let in for murder pursuant to 38.36?
Request limiting instruction and jury instruction
Can cops stick around for dog sniff after owner withdraws consent?
Weaver CCA 2012 – once D revokes consent to search, police cannot remain on premises to conduct a dog sniff search; Officer can only remain on “portion of premises which is open to the public”
