appellate review « CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

May 5, 2009

INADVERENT TRIAL ERROR COSTLY FOR CLIENT

Filed under: Houston Criminal Lawyer — Tags: appellate review, Intoxilyzer, orensic science — johntfloyd @ 12:39 pm

Offer of Proof; Preserving Error for Appellate Review under Rule 103(a) (2)

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

In a recent article (“False Forensics: An Attorney’s Worst Nightmare.” 05-01-09), we reported on the increasing problems associated with the specialized field of forensic science. Prestigious organizations and scientists are calling now for a National Institute of Forensic Science with strict standards and enforcement mechanisms set up to insure that only truthful and valid forensic evidence is used to convict criminal defendants. It was faulty forensic science and lack of professional standards that prompted a former Houston Police Department crime lab technician to testify falsely in the rape and robbery trial of Gary Alvin Richard in 1987. Richard was recently released from prison after serving 22 years on a life sentence for violent crimes he did not commit. He case marked the fourth criminal defendant wrongfully convicted in Harris County because HPD crime lab technicians either lied or misrepresented forensic evidence test results to produce criminal convictions for unethical county prosecutors.

In our “False Forensics” blog, we concluded by saying: “Because of all the recent revelations and developments in the forensic science system, criminal defense attorneys now have an increased responsibility to challenge all forensic evidence offered at a criminal trial; to demand the methods used for gathering, processing, and preservation of that evidence; and to request for discovery of all notes by any analysts testing the evidence. Defense attorneys can no longer take this evidence as ‘scientifically’ infallible. Not only must defense lawyers thoroughly cross-examine these pro-prosecution witnesses about testing methodology, they must also identify all the analysts and support personnel involved in the testing process. Finally, defense attorneys must press for disclosure of testing mistakes made by the testifying ‘expert’ as well as all other mistakes made by others in the crime lab for which he works. This information goes to the heart of ‘reliability’ of the expert testimony, an issue open to cross-examination in Texas criminals.”

A decision by the Texas Court of Criminal Appeals (“CCA”), Woodall v. State, issued on April 29, 2009 not only revised the manner in which expert testimony and evidence must be challenged but underscored the responsibility of defense counsel to properly object to this kind of testimony in order to preserve the issue for review. 1/ The Woodall case involved a DWI conviction obtained in Harrison County. The Sixth District Court of Appeals (“Sixth District”) had reversed his conviction on February 22, 2007. 2/ The Sixth District had seven other DWI cases pending before it at the time, all raising the same issue decided in the Woodall case. The Sixth District consolidated these seven cases and overturned the convictions in each on March 7, 2007. None of the seven cases were designated for publication. The CCA granted the state’s petition for discretionary review in all eight cases and consolidated them for one decision.

The issue upon which the Sixth District based its reversals involved the science associated with the Intoxilyzer 5000, a machine that tests samples of breath for alcohol content. The attorneys in all the cases, except for Woodall’s attorney, filed motions to cross-examine the State’s expert on the operation of the Intoxilyzer 5000 and each motion listed the following eight areas of concern about the internal workings of this breath testing machine: (more…)

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February 14, 2009

OBJECTIONS, BOLSTERING, AND APPELLATE REVIEW

Filed under: Child Abuse Crimes Lawyer — Tags: appellate review, bolstering, child abuse, child sex crime, impermissible, Objections, sexual abuse — johntfloyd @ 6:33 pm

Objections to Bolstering Testimony Should Communicate Evidentiary Basis

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The Texas Rules of Evidence, Article 103, requires that a timely objection be based on a specific ground in order to preserve for appellate review an alleged trial error concerning the admissibility of evidence.

An en banc Texas Court of Criminal Appeals seventeen years ago held that “… all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.” See: Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim. App. 1992).

The Court of Criminal Appeals recently reaffirmed the Lankston principle that objections to the admissibility of evidence must be both timely and specific to preserve an issue for appellate review. See: Rivas v. State, 2009 Tex. Crim. App. LEXIS 98 (Jan. 28, 2009). The Rivas court rejuvenated the language of Lankston to set the stage for its ultimate ruling, saying:

“Our system of justice is characteristically adversarial. One consequence is that many substantive and procedural features, especially most evidentiary rules, are really optional with the parties. Although we may speak of evidence as inadmissible, it is more precise, if not more correct, to say that the rules make such evidence objectionable. Indeed, this is just another way of calling attention to the fact that no issue concerning the admissibility of evidence ever arises unless one of the parties objects to it.

”It follows that the trial judge’s role in the admission and exclusion of evidence is generally not called into play unless a dispute develops between the parties concerning the proper application of an evidentiary rule. And because, absent any such dispute, our system generally expects him not to interfere with the presentation of evidence, it likewise does not fault him for refusing to interfere when a party fails to make the basis for his objection known. Beyond this, there are no technical considerations or form of words to be used. Straightforward communication in plain English will always suffice.” Id., at LEXIS 1-2. (more…)

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