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Searching cases from 5/2013

  • Gelinas v. State

    The lower court relied on Hutch v. State in finding that the defendant suffered egregious harm from an erroneous jury instruction. Hutch is disavowed. Under an Alamanza analysis, the erroneous Texas Code of Criminal Procedure Article 38.23 instruction did not egregiously harm the defendant. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-1522-11, 05-15-2013.
  • United States v. Kelly

    The district court granted a 18 U.S.C. §3582(c) motion and reduced the defendant's sentence from 121 months to 120 months after determining that it could not further reduce the sentence due to the mandatory minimum in effect at the time of his original sentencing. A §3582(c)(2) modification hearing is not the equivalent of an original sentencing hearing under Dorsey, therefore, the appellant is not entitled to retroactive application of the FSA's mandatory minimums. The trial court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-30936, 05-13-2013.
  • Wilson v. State

    The state prosecuted the appellant for alleged misdemeanor telephonic harassment of her former neighbor. That the neighbor acknowledged a legitimate reason for a telephone call negates any reasonable inference that the defendant left the message with the intent to harass, or that it was made in a manner reasonably likely to harass or annoy the neighbor. Four remaining messages occurred too far apart over a 10-month period to be considered part of a single episode. The trial court's judgment is reversed and a judgment of acquittal is rendered.Houston's 1st Court of Appeals, No. 01-11-01125-CR, 05-09-2013.
  • Taflinger v. State

    The appellant, who was charged with alleged misdemeanor driving while intoxicated, argues that the trial court erred by denying his motion to suppress. The officer had reasonable suspicion to stop, based on a tip made by an informant with whom he was familiar, whom the officer believed to be reliable and credible, who relayed events witnessed firsthand and gave a description of the vehicle; further, the officer was at the gas station where the informant worked at the time of the tip and was able to corroborate the tip within seconds. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00553-CR, 05-09-2013.
  • Ex parte Perez

    The doctrine of laches was used as the basis to deny applicant the opportunity to file an out-of-time petition for discretionary review based on the state's claim of prejudice to its ability to retry him. The federal laches standard is abandoned in favor of the Texas common law standard in habeas corpus cases. In light of the revised approach, the case is remanded to the trial court. Court of Criminal Appeals, No. AP-76,800, 05-08-2013.
  • Lashley v. State of Texas

    A jury convicted the appellant of engaging in organized criminal activity. Even assuming that each entrance into individual apartment structures constituted a separate burglary, at most this would establish that multiple crimes were committed during the course of a single criminal episode. No evidence was offered from which a factfinder could infer an intent that the combination would perpetuate and engage in criminal activity beyond the conclusion of this single episode. The trial court's judgment is modified to show conviction for a lesser included offense and affirmed, the sentence is reversed and remanded for a new punishment hearing. Houston's 14th Court of Appeals, No. 14-12-00336-CR, 05-02-2013.
  • Washington v. Thaler

    This is a habeas review of a claim that has been adjudicated on the merits by a Texas court. There is no U.S. Supreme Court precedent establishing an obligation for a trial court judge to dismiss a juror for bias where no party objects. The denial of habeas relief is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-20079, 05-02-2013.
  • United States v. Becerril-Pena

    The defendant/appellant pleaded guilty to illegally reentering the United States after a prior deportation. A district court should discharge its duties under U.S. Sentencing Guidelines §5D1.1(c) by considering the applicable 18 U.S.C. §3553(a) factors of deterrence and protection, following the processes of Rule 32, and imposing reasoned and individualized sentences under the circumstances presented with appropriate explanation given. The sentence is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-11171, 05-02-2013.
  • State v. Cooley

    The state appeals appellee's sentence on the ground that Texas Penal Code §49.09(a) mandates a minimum sentence of 30 days' confinement upon a second conviction of alleged driving while intoxicated. A trial court convicting a Class A misdemeanor defendant of a second DWI must sentence the defendant to a minimum of 30 days' confinement. The sentence is vacated and remanded. Houston's 14th Court of Appeals, No. 14-12-00499-CR, 05-02-2013.
  • Miller v. Thaler

    The appellant challenges the district court's denial of his 28 U.S.C. §2554 application challenging his guilty-plea conviction for intoxicated manslaughter with a vehicle. The appellant has not, by clear and convincing evidence, rebutted the presumption of correctness owed to the state habeas court's factual determination. The district court's denial of the habeas petition is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-40696, 05-01-2013.
  • Marsh v. State

    The appellant appeals his conviction for possession of a firearm by a felon after he entered a plea of nolo contendere pursuant to a plea bargain. Although the investigative detention of appellant rose to the level of an illegal arrest, the evidence supports that appellant gave his consent to search before the arrest became illegal. The trial court's judgment is affirmed. Court of Criminal Appeals, No. 04-12-00257-CR, 05-01-2013.

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