33rd / 424th District Courts

In case you don't get enough of it from the news media, the Peterson trial is extensively covered, analyzed, dissected, editorialized, commented upon and otherwise reported about on the CourtTV Peterson site. That link is to the jury blog itself but there are many links in the sidebar.

keywords: confrontation clause, sixth (6th) amendment.
The case: Crawford v. Washington, ___ U.S. ___, 124 S. Ct 1354 (2004) (158 L.Ed.2d 177, 72 USLW 4229, 63 Fed. R. Evid. Serv. 1077, 4 Cal. Daily Op. Serv. 2017, 2004 Daily Journal D.A.R. 2949).

(attached file in PDF form) MEMO TO: District Attorney Office and Criminal Defense Bar March 4, 2003

U.S. v. Gould, No. 02-30629 (5th Cir. 2004)(majority opinion) or see
version including dissenting opinions



Case involves the "protective sweep" exception on an entry by police into a home. No contention of a "hot pursuit" exception or exigent circumstances exception. Assertion is of a valid "protective sweep" under Maryland v. Buie, 110 S.Ct. 1093 (1990). Government attempts to distinguish the limitation in i>U.S. v. Wilson, 36 F.3d 1298 (5th Cir. 1994) limiting the protective sweep when incident to arrest.

FELLERS V. UNITED STATES

Held: The Eighth Circuit erred in holding that the absence of an “interrogation” foreclosed petitioner’s claim that his jailhouse statements should have been suppressed as fruits of the statements taken from him at his home. Pp. 4—6.

Based on 6th Amd right to counsel, not the 5th.

Please have them prepared and submit to the Court at the time a plea is entered or any other disposition is made of the case other than from a jury trial.

Please have them prepared and submit to the Court at the time a plea is entered or any other disposition is made of the case other than from a jury trial.

This case reminds us that not every assertion of a defendant's "odd behavior" rises to the level of requiring a competency hearing. The judge is a "gatekeeper" regarding that inquiry.

"Article 46.02(b), section 2(b) provides: “If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding ...
Bennett, Chanda L. v. The State of Texas

I have had some concern on an issue that has been raised tentatively by a few defense attorneys in the area about whether a waiver of appeal (in a plea bargain case) could be effectively made PRIOR to sentencing. The following case makes it clear that the waiver can be contemporaneous with the entire plea process.

(from Monreal v. State, 99 S.W.3d 615; 2003 Tex. Crim. App. LEXIS 57 (Crim App 2003)

The Setting: Defendant in a criminal case testifies. Guilt or punishment phase. Suddenly he comes to a point in the questioning where he decides to exercise his privilege against self-incrimination.

Question: May the Dft claim the 5th piece-meal or by taking the stand has he waived the privilege for all purposes?

Conclusion: A witness, even the present defendant, may not selectively assert the privilege against self-incrimination.

Facts: Punishment phase of the trial where probation was a possibility. Restitution was likely to be a significant amount plus possible fine up to $10,000. State wished to adduce evidence of defendant's lack of financial resources and financial irresponsibility in the past. Also involved the fact that allowing the evidence would virtually guarantee that Dft would need to call Witness "C" to try to explain the circumstances, and that witness was one that the State actually wanted to bring but was not on their witness list.