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The Texas Court of Criminal Appeals churned out fewer opinions in its 2003-2004 term than it did in each of the past two terms. University of Texas School of Law professor Robert O. Dawson says the CCA had a fairly quiet term. “They didn’t strike out in any bold, new directions,” says Dawson, who teaches criminal law and is one of the founders of the Texas Center for Actual Innocence at UT. “They didn’t work that much,” Austin solo Roy Greenwood Jr., a former administrative assistant at the CCA, says of the court’s latest term. And Houston criminal-defense attorney Randy Schaffer says, “There was less plenary review of cases and issues.” According to the CCA clerk’s office, the court wrote 461 opinions in its 2003-2004 term, including 151 that were signed. Records previously provided by the clerk’s office show that in the 2002-2003 term, the court wrote 612 opinions, including 186 that were signed. In the 2001-2002 term, the court wrote 578 opinions, of which 159 were signed opinions. [ See "Court of Criminal Appeals Caseload," below.] CCA Presiding Judge Sharon Keller says she doesn’t know why the court wrote fewer opinions in its latest term. “If I had to guess, I’d say the efforts the court has made to get current on our cases showed up last term and the term before it,” Keller says. “We’re more current than we used to be.” One reason the CCA may have so many more signed opinions in 2002-2003 is because the judges worked on cases to reduce the backlog, Keller says. As of Aug. 24, the judges had 82 cases for which opinions still needed to be written, says Troy Bennett, the CCA’s clerk. That number could change by Sept. 15, when the CCA begins its new term, because the court is continuing to act on cases, Bennett says. Bennett says the CCA ended the 2002-2003 term with 80 cases pending. The number of petitions for discretionary review granted by the court remained about the same in the last two terms. As of Aug. 24, the court had granted 119 PDRs, compared to 111 granted in the 2002-2003 term, Bennett says. The discretionary review cases — which, unlike appeals in death penalty cases, the court can choose to review — often center on conflicts between courts and make up a significant number of opinions the court writes. Accepting a lot of new PDRs would mean writing a lot of new law, and the majority on the court isn’t interested in doing that, says Frank Maloney, a former CCA judge. “I think they feel they’ve corrected the law and put it on an even plane,” Maloney says. But Maloney says that U.S. Supreme Court decisions on some issues have required the CCA to act. One of those issues is how to judge the mental retardation claims of individuals accused or convicted of capital murder. In 2002, the Supreme Court ruled 6-3 in Atkins v. Virginia that executing the mentally retarded violates the Eighth Amendment’s ban on excessive punishment. But the nation’s high court did not define mental retardation and left it up to the states to decide how to address the issue. Although the Texas House of Representatives passed H.B. 614 in April 2003 to address the Atkins decision, the bill died in the Senate. Because there was no legislative guidance on the issue, the CCA decided it had to act on Feb. 11. In an 8-1 decision in Ex Parte Briseno, the CCA set guidelines for trial courts to follow in evaluating mental retardation claims in capital murder cases. The court also held in Briseno that a habeas corpus writ applicant who raises an Atkins claim bears the burden of proof to establish, by a preponderance of the evidence, that he or she is mentally retarded. “Given that uncourt-like task, they did a good job,” Dawson says of the CCA’s decision in Briseno. The CCA had to provide guidance to the lower courts, he says. Chuck Mallin, appellate chief in the Tarrant County District Attorney’s Office, describes the CCA’s decision in Briseno as “a how-to-do-it guide.” Anyone who has a capital case in which mental retardation is an issue had better read the opinion, Mallin says. But Richard Burr, Briseno’s attorney, says the CCA, without hearing arguments, set the standard for determining mental retardation so high that no one can meet it. “They’ve turned Atkins into a meaningless gesture,” says Burr, a shareholder in Houston’s Burr & Welch. Burr says the CCA focused on the crime, not whether the person who committed the crime is retarded, when it set out factors for a fact-finder to consider when weighing evidence of mental retardation. Greenwood takes issue with the CCA’s finding that a separate hearing is not required to determine a death-row inmate’s claim in a habeas writ that he or she is retarded. That finding is not consistent with Texas’ habeas practice, he says. If a doctor states in an affidavit that an individual is or isn’t retarded, Greenwood questions how the credibility of the statement can be determined without holding a hearing at which the doctor testifies. “The ultimate result of Briseno will be that some [Texas] death-row inmates who are retarded will get executed,” says David Dow, a University of Houston Law Center professor and director of the Texas Innocence Network. Because 5 of Texas Code of Criminal Procedure Article 11.071 makes the state court’s decisions on habeas writs in death-penalty cases immune from federal review, it would be difficult to get such cases before the Supreme Court, Dow says. Mallin says that, with the exception of Briseno, the state could claim no major victories in the CCA’s rulings during the term. “It was not a state-oriented term,” he says. Test Results A continuing area of concern for prosecutors involves the admissibility of evidence against defendants charged with driving while intoxicated. In a 7-2 decision in Stewart v. State, the court held on Feb. 18 that breath-test results are relevant evidence that a driver was driving drunk. But prosecutors don’t see the decision as an outright victory. “What they seemed to have done is add one more nail in the coffin of the Intoxilyzer,” says Williamson County District Attorney John Bradley. Bradley says the court found that breath-test evidence is admissible but has disallowed the use of retrograde extrapolation to interpret the test results. “We’re still left without the tools to prove a defendant was intoxicated while driving,” he says. State prosecuting attorney Matthew Paul says the CCA specifically did not rule in Stewart on the issue of whether a breath test is more prejudicial than probative under Texas Rule of Evidence 403. That rule permits the exclusion of otherwise relevant evidence if its probative value is substantially outweighed by the danger that the evidence will prejudice or confuse the jury. Paul says the problem may require the Legislature to amend Texas Penal Code 49.04(a). “The way the statute is written now, we have to prove that the person was intoxicated while driving,” he says. [ See "On Tap at the CCA," below.] Bradley says prosecutors can prove a defendant was intoxicated at the time a breath test was administered — sometimes an hour or two after an arrest — but not at the time the defendant was driving. Also during the term, the all-Republican CCA continued to change case law written when Democrats held a majority of the seats on the court. Schaffer accuses the CCA of “blindsiding” a pro se habeas applicant on June 16 in Ex Parte Townsend. In the 7-2 decision, the CCA held that Barryon Townsend forfeited his claim in a writ application that the trial court illegally stacked his sentences because he didn’t raise the issue on direct appeal. The CCA held in 1992′s Ex Parte Barley that a trial court lacks authority to stack a prior sentence that a defendant has begun to serve on the end of a subsequent sentence because that would violate the constitutional protection against being punished twice for the same offense. In Townsend, the CCA overruled Barley to the extent that the decision allowed an individual to raise the stacking issue for the first time in a habeas writ. Schaffer contends that the CCA is saying Townsend has to serve an illegal sentence because Townsend did not raise the issue first on appeal. Notes Schaffer, “They’re changing the rules after the game’s been played.”
On Tap at the CCA Issues that could impact the prosecution of persons charged with driving while intoxicated will be back before the Texas Court of Criminal Appeals in its 2004-2005 term. On Sept. 29, the CCA will hear arguments in Getts v. State addressing the Texas Legislature’s intent in 2001 when it modified the 10-year remoteness rule for DWI enhancement. State Prosecuting Attorney Matthew Paul says the law always has allowed prosecutors to enhance a DWI charge to a felony if the defendant has two prior convictions for drunken driving, including one conviction within 10 years of the latest alleged offense. When the Legislature changed the rule in 2001, it put in language that, according to the 12th Court of Appeals, changed the 10-year period relevant for enhancement to the period between the two prior convictions, Paul says. “Right now, how we charge felony DWI is on hold,” Paul says. “Everyone is waiting to see what happens.” Paul petitioned the CCA to review Bobby Doyle Getts’ case. The indictment against Getts for a 2002 drunken-driving offense alleged that he had two prior DWI convictions in 1984 and 1997 that boosted the charge to a felony. Getts argued in motions to dismiss and quash the indictment that the 1984 conviction could not be used for felony enhancement. After the 173rd District Court overruled both motions, Getts pleaded guilty and drew a three-year prison sentence. Getts then appealed. In 2003, the 12th Court in Tyler held that the 173rd District Court erred when it overruled Getts’ motions because the change in Texas Penal Code 49.09(e) made Getts’ 1984 conviction too remote for enhancement purposes. Holding that the district court lacked jurisdiction to hear the case, the 12th Court reversed the judgment against Getts and reformed his conviction to that of a Class B misdemeanor. Paul contends that it was not the Legislature’s intent to change the statute to make the 10-year period relevant for enhancement the period between a defendant’s prior convictions. If that’s the law, Paul says, a DWI defendant with prior convictions in 2001 and 1989 could be charged only with a misdemeanor, but a defendant with prior convictions in 1955 and 1960 would face a felony charge. Nancy Perkins, an Athens solo who represents Getts, contends Paul’s argument with regard to legislative intent is wrong. “I think the law on its face is very clear,” Perkins says. In another DWI-related case, the CCA has a chance to address an issue it left unresolved in the 2003-2004 term. In a 7-2 decision on Feb. 18, the CCA held in Stewart v. State that breath test results are relevant evidence that a defendant was driving drunk. However, the court did not address whether, absent extrapolation evidence, breath test results are admissible under Texas Rule of Evidence 403. State v. Mechler will address the question unanswered in Stewart, says Houston solo Brian Wice, appellate attorney for Matthew Reid Mechler. Mechler, who was charged with misdemeanor DWI, moved to suppress the results of two breath tests administered to him approximately 90 minutes after his arrest. After a Texas Department of Public Safety technical supervisor testified at a suppression hearing that she could not provide extrapolation testimony, Fort Bend County Court-at-Law No. 4 Judge R.H. “Sandy” Bielstein granted Mechler’s motion to suppress based on the danger that the test results, without interpretation through extrapolation, would prejudice the defense. Bielstein cited Rule 403 and the CCA’s 2001 decision in Mata v. State, which set out factors that must be satisfied for extrapolation evidence to be submitted. After the state appealed, Houston’s 14th Court of Appeals reversed Bielstein’s judgment, holding that there was not a clear disparity between the degree of prejudice of unextrapolated breath test results taken 90 minutes after a defendant’s arrest and the probative value of those results. Wice says Mechler raises the question of whether a trial judge has inherent discretion under Rule 403 to exclude evidence the judge thinks is substantially more prejudicial than probative in the context of a DWI case. David Newell, a Fort Bend County assistant district attorney, says he believes Mechler is a better case than Stewart for supporting the admissibility of breath test results without extrapolation evidence. Newell says Mechler’s test results showed he had an alcohol concentration of .166 and .165. The legal limit is .08. “We’re looking at twice the legal limit here an hour and a half after [Mechler] was arrested,” Newell says. — MARY ALICE ROBBINS
Court of Criminal Appeals Caseload 2003-2004 Term Judge — Signed — Per — Curiam — Concur — Dissent — Concur/Dissent — Total Cathy Cochran — 18 — 22 — 4 — 9 — 0 — 53 Barbara Hervey — 21 — 31 — 3 — 9 — 0 — 64 Charles Holcomb — 20 — 16 — 2 — 3 — 0 — 41 Cheryl Johnson — 9 — 25 — 5 — 7 — 0 — 46 Michael Keasler — 21 — 20 — 3 — 3 — 0 — 47 Sharon Keller — 16 — 16 — 6 — 11 — 1 — 50 Lawrence Meyers — 16 — 23 — 5 — 8 — 0 — 52 Tom Price — 17 — 22 — 8 — 6 — 0 — 53 Paul Womack — 13 — 32 — 6 — 4 — 0 — 55 Total — 151 — 207 — 42 — 60 — 1 — 461 Source: Texas Court of Criminal Appeals clerk’s office

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