The Matlock Blog

Dallas' Fifth Court of Appeals reverses conviction on Crawford grounds

In Mason v. State, No. 05-04-00451-CR (June 13, 2007), the Fifth Court of Appeals in Dallas reversed a misdemeanor conviction for assault on Crawford Confrontation Clause grounds. This is actually the second time this court has reversed the conviction in this case. In June, 2005, the same court reversed the conviction following the direct appeal from the Dallas County Criminal Court No. 10. Following that decision (here), the State filed a PDR in the Court of Criminal Appeals. That request was denied. Subsequently, the State filed a writ of certiorari to the U.S. Supreme Court in May of 2006. The Supremes granted the writ, vacated the original appellate judgment and remanded the case back to the Fifth COA for reconsideration in light of the intervening decision in Davis. v. Washington, 126 S.Ct. 2266 (2006). See, Texas v. Mason, 127 S.Ct. 68 (2006).
On remand, both parties submitted supplemental briefs on the issues raised in Davis and Hammon, the companion case. The issue was whether the non-testifying complainant's out-of-court statements to the police officer who responded to the 911 call were testimonial in nature. The Fifth COA held they were.
In Mason, the lone testifying State witness was the Seagoville Police Officer who responded to a 911 call by the complainant. When he arrived, he spoke to the complainant at the front door who appeared upset and angry. The officer began questioning her about why she had called the police. The complainant stated her boyfriend had slapped her, shoved her off the bed, put his hand on her throat and threatened to kill her. The officer then apparently entered the house and questioned the appellant in another room, presumably the bedroom. The appellant's story was that while they were sleeping, he reached over to answer the phone and accidentally hit the complainant. The officer refused to believe the story in light of the injuries to the complainant, and subsequently arrested the appellant.
At trial, the officer was the only State witness to testify. The complainant did not appear. The record was silent on whether the complainant was unavailable. Additionally, the State presented no evidence that the defense had a prior opportunity to cross-examine the complainant. Over defense objections, the State was allowed to introduce the complainant's out-of-court statements made to the officer in response to his questioning.
The Fifth COA analyzed the two non-testimonial cases, Davis and Hammon. Davis involved statements made to a 911 operator stating the appellant had just hit her and ran our the door. The Supreme held those statements were non-testimonial. However, in Hammon, the Court concluded the statements were testimonial. Those statements were made after the police responded a late night domestic disturbance. Once the officers arrived, they spoke to the complainant wife who stated everything was ok. The police officers noted broken glass on the floor and the general appearance of the complainant. They then began to question the appellant separately from the complainant. The Court noted the lack of emergency as well as the formality of the questioning. They held this type of questioning and the corresponding answers served the exact purpose that in-court testimony serves, specifically to "establish or prove past events potentially relevant to later criminal prosecution." Davis 126 S.Ct. at 2273-74.
The Fifth COA concluded in Mason the facts in that case were very similar to the facts of the Hammon case. "The statements were made to the responding police officer at the scene and described past events." Mason, slip op. at 8. The COA applied the same reasoning the Supreme Court did with Hammon that the statement to police was "an obvious substitute for live testimony, w[as] inherently testimonial, and did precisely what a witness does on direct examination." Id. (quoting Davis, 126 S.Ct. at 2278).
Because the statements by the complainant were testimonial, and the State failed to meet its burden of establishing either the complainant was unavailable and the defense had an opportunity to cross-examine her, the trial court erred in admitting the out-of-court statements. It further concluded that because the error was constitutional in nature, and that it was not proven to be harmless beyond a reasonable doubt (because the officer was the only State witness and the injuries were consistent with the appellant's story), a reversal was required.

Dallas' Fifth Court reverses open plea of guilty for not informing of deportation consequences

In an unpublished opinion, the Fifth Court of Appeals reversed the convictions in Banda v. State, No. 05-06-00370-CR May 10, 2007, because the defendant was not properly informed of the deportation consequences of her open pleas of guilty.
In a short opinion, the Fifth Court of Appeals reviewed the trial court's responsibilities when admonishing a defendant of the consequences of a plea. One such responsibility is advising the defendant they may be deported, excluded from admission to the U.S., or denied naturalization if not a U.S. citizen. The court noted a complete failure to admonish will result in reversal of the conviction.
The Court noted there were no references in the record of the trial court admonishing of the consequences of the guilty plea, whether done so in writing or orally. The Court dismissed the State's argument that because the defendant had a social security number, she must therefore be a U.S. citizen. Because a number of deportable groups could maintain social security numbers, the Court refused to speculate as to why the defendant had a social security number, and instead focused on the record before them. That record clearly indicated the defendant was not properly advised of the deportation consequences of her plea. As such, the Fifth Court of Appeal reveresed the convictions and remanded for further proceedings.

Third Court of Appeals affirms confession obtained in violation of right to counsel

In State v. Morris, No. 03-05-00829-CR (May 1, 2007), the Third Court of Appeals in Austin affirmed a Comal County judge's decision to suppress statements of a capital murder defendant because they were obtained in violation of the defendant's right to counsel. After the defendant had been arrested on the charge of capital murder, he made a written request for the appointment of counsel. That request was granted, and several days later the court formally appointed counsel. The newly-appointed counsel requested discoveryfrom the District Attorney's office two days later, and the State acknowledged the appointment by sending notice of the arraignment the next day to appointed counsel. Eight days after the appointment of counsel, the defendant was video-interviewed by law enforcement, during which he made incriminating statements. A suppression hearing was held, where the trial court concluded the interview violated the defendant's Sixth Amendment right to counsel.
The State appealed arguing the Sixth Amendment right to counsel had not yet attached because there had been no attorney-client relationship established. Because the appointed counsel and defendant had not yet met, the State argued there was no attorney-client relationship, and therefore no Sixth Amendment violation. The State argued in the alternative that even if the relationship had been established, the defendant waived his rights during the interview. The Third Court disagreed.
The Court conducted a contrasting analysis of the Fifth Amendment rights and the Sixth Amendment rights of a defendant. The Court pointed out the differences between the two rights which are important in this case. The Sixth Amendment right to counsel does not attach until adversarial proceedings have been initiated against a defendant. This right cannot be invoked as easily as the Fifth Amendment right to counsel. However, once the adversarial proceedings have begun, if counsel is appointed, an attorney-client relationship has been established. Once this is done, no contact between the defendant and law enforcement is allowed without the presence of counsel.
As for the argument by the State that the defendant had waived his right during the interview, the Court made clear that a defendant whose Sixth Amendment right to counsel has been established (in this case by the initiation of formal adversarial proceedings and the appointment of counsel as requested) the right cannot be waived at a later time without the presence of counsel. In other words, the basic invocation/ waiver analysis used in the Miranda context is not applicable to the Sixth Amendment context. Whereas in the Fifth Amendent and Miranda contexts a suspect can invoke his rights to counsel and silence, but may later waive those rights without ever having conferred with counsel. This is not the same as the Sixth Amendment right to counsel, as the Third Court makes clear.