You’ll Get a Jury and Like It!

“I want a hamburger…no, a cheeseburger.”

“Spalding!”

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.  However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the court.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant’s choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made "in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state." Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.

No More Bites of the Apple: Probation Revocation and Res Judicata

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).

Discovery Violation...Now What?

In State v. Banda, the Third District Court of Appeals (Austin) decided a case at the end of last month addressing an issue regarding a discovery violation by the State.  The opinion addresses a key issue: what does a court do to remedy a discovery violation?  Often, the primary consideration is not whether a violation occurred, but what a court should do about it.

Let’s review the law on discovery:

Brady v. Maryland – A prosecutor must disclose exculpatory evidence if it is material to either guilt or punishment, including impeachment. Brady v. Maryland, 373 U.S. 83 (1963); see also Thomas v. State, 841 S.W. 2d 399 (Tex. Crim. App. 1992) (describing Brady parameters in Texas).

Under the U.S. and Texas Constitutions, Brady breaks down to two duties related to pretrial disclosure of evidence by the State:
1) Disclose all favorable, material evidence in her possession.
2) Preserve and make available to the defendant any favorable, material physical evidence that the accused cannot otherwise obtain and that may be material to his defense.

See also CCP art. 39.14; Whitchurch v State, 650 S.W.2d 422, 425 (Tex. Crim. App. 1983) (no general defense right of discovery in Texas). BUT, see also Nielsen v. State, 836 S.W.2d 245 (Tex. App. – Texarkana 1992, pet. Ref’d) (The prosecution has a duty to disclose exculpatory evidence regardless of whether the defense files a discovery motion requesting the material. But even if the evidence is requested, the State does not have to disclose it unless it is also material to the defense.)
Though a prosecutor is not required to deliver his entire file to defense counsel, a prosecutor’s open file policy is generally sufficient to comply with the prosecutor’s Brady obligation. See United States v. Bagley, 473 U.S. 667, 676 (1985).

As stated above, often the primary consideration for the trial court is not whether a Brady violation occurred, but what a court should do about it.  In Banda, the trial court decided that the State’s failure to comply with a court order on discovery was grounds for the court to dismiss the State’s case with prejudice to refile.  The appellate court did not focus on whether a discovery violation had occurred – it technically had.  The appellate court’s focus was on the fact that the trial court dismissed the State’s case without prejudice as a result of the violation.  The Court found that absent constitutional or statutory authorization a trial court cannot dismiss a prosecution except on the motion of the prosecuting attorney and that the trial court does not have general authority to dismiss the indictment without prejudice in absence of the State’s consent.  State v. Pambeck, 182 S.W.3d 365, 366, 370 ( Tex. Crim. App. 2005); State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997).  In Banda’s case there were no circumstances existing that would allow the court to make such a dismissal (even given the discovery order violation).

Ultimately, the Court held that “failure to comply with court orders on discovery may warrant suppression of the evidence in question, but discovery abuse is not recognized in the Texas Code of Criminal Procedure as a basis for dismissing the case with prejudice. See Tex. Code Crim. Proc. Ann. Art. 39.14 (West Supp. 2010)”. Id. at page 3.

Banda shows defense attorneys that discovery violations are extremely important and can be effective to win a case but only as long as the attack is not misplaced on attempting to get the court to dismiss the case.

CCA Upholds DWI Search Warrant, Overturns Lower Courts

In a recent case, the Texas Court of Criminal Appeals, encourages trial judges to take off the hypertechnical blinders and consider the totality of the circumstances when reviewing the propriety of search warrants and their accompanying affidavits.

State v. Jordan – (29 June 2011) Judge Womack writing for a unanimous court:

An affidavit for a search warrant to search an accused’s blood began with a statement that the officer had “good reason to believe that heretofore, on or about the 6th day of June, 2008, [the suspect] did then and there commit [the offense of DWI.] The affidavit then went on to describe the specific conduct that the suspect exhibited that gave rise to the DWI arrest. However, when describing the conduct, the officer did not state that the conduct also occurred on the 6th of June, 2008. The magistrate issued the warrant and blood was drawn indicating that the suspect had, indeed, driven while intoxicated.

At trial, the court suppressed the results of the blood test, ruling that the search warrant was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The 3rd District Court of Appeals (Austin) affirmed. See our prior coverage HERE.

The CCA took the time in its opinion to distinguish prior caselaw on this subject and held:

The observations of driving and intoxication described in the second part of the affidavit were the elements of the offense alleged in the first part of the affidavit (where the time of the offense was alleged). Under the circumstances of this case, it was a reasonable inference that the observations occurred on the same day that the offense was alleged to have occurred. We therefore hold that the Court of Appeals erred in failing to consider the totality of the circumstances contained within the four corners of the affidavit in reviewing the magistrate’s basis for determining probable cause.

The CCA went on to do some “math for lawyers” that was apparently missing at the trial level:

We also find that the magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify that time of the stop. Because the warrant was issued on June 6th at 3:54 am, less than four hours could have elapsed between the observation of the offense, and the issuance of the warrant.

Calling on the trial court (and the 3rd Court below) to focus on the totality of the affidavit, the CCA remanded the case to the trial court, where, they might just have themselves a DWI trial after all.

A Simple Truth (Revisited)

In September of 2010, the 3rd Court of Appeals (Austin) reversed the sexual assault conviction of Mark Barshaw because the trial court allowed the following testimony of an MHMR expert regarding the truthfulness of mentally retarded individuals:

It's been my experience that folks with mental retardation can be painfully honest, really. I mean, it's like a little kid who looks at somebody and says in the supermarket, 'You're really old,' or, you know, whatever little kids do.

See our prior post HERE.  The State appealed the 3rd Court’s reversal and now, in an opinion released on 29 June 2011, the Texas Court of Criminal Appeals reversed the Court of Appeals.

Apparently troubled by the less-than-thorough harm analysis conducted by the lower court, the CCA explained:

Even in cases in which credibility is paramount, Texas courts have found harmless error when the inadmissible expert testimony was only a small portion of a large amount of evidence presented that the jury could have considered in assessing the victim’s credibility. Upon reviewing the record as a whole, we find that additional evidence exists that should have been considered in the court of appeals’s harm analysis, as is required by [our previous caselaw].

With that, the CCA remanded the case back to the 3rd Court of Appeals to conduct a full harm analysis. A shot across the bow perhaps? I think the odds are heavily in favor of the Court of Appeals changing its mind on this one. We’ll see.

CCA Affirms Disjunctive Conviction

In May of 2010, I blogged about Young v. State, a case out of the 3rd District Court of Appeals (Austin), wherein the court upheld a conviction for failure to fulfill sex offender reporting requirements even though the jury was not required to return a unanimous verdict regarding the means of the failure.

Last week, the CCA affirmed the case, holding that:

It has long been held that juror unanimity is required in felony cases by the Texas Constitution and in all criminal trial by state statutes.  Put simply, the jury must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed...  Jurors must unanimously agree only that a sex offender failed to fulfill his reporting duty; they are not required to agree as to how he failed that duty.

See the CCA opinion HERE.

See my previous post with amplified details HERE.

Driving Near 6th Street Late at Night - Must Be Drunk

My last post was about the “reasonable suspicion” standard as applied by the 4th District Court of Appeals (San Antonio). A day after posting about that case, the Court of Criminal Appeals released a new “reasonable suspicion” case – Foster v. State. In this case, the CCA reverses the 3rd District Court of Appeals (Austin) which previously held that reasonable suspicion did not exist to justify appellant’s investigative detention. The CCA concludes, however, that the officer did have reasonable suspicion to justify detaining appellant. The detention resulted in appellant’s arrest and conviction for DWI.

What is becoming all too clear from reading these cases is that a “reasonable suspicion” determination can go either way, and that a big factor in the case is the initial ruling of the trial court. The law requires that appellate courts give the trial court decision great deference, which, if this standard is applied, can make it quite difficult to overturn a trial judge’s ruling on this issue.

Let’s see what you think about the CCA’s determination that the officer has “reasonable suspicion” to justify appellant’s detention. Here’s what the officer observed:

• Appellant was driving his vehicle near the Sixth Street bar district in Austin.
• It was late at night.
• Austin police often observe people driving while intoxicated near this area late at night.
• Appellant stopped his vehicle closely behind the officer’s unmarked vehicle at a traffic light.
• Appellant’s vehicle exhibited a lurching movement forward after he had stopped at the light.
• Appellant’s vehicle moved forward again as if to try to change lanes at the light, but he was too close to the officer’s unmarked vehicle to execute the lane change.

That’s it. That is all the objective evidence the officer had to justify the investigative detention that led to appellant’s arrest for DWI. A little flimsy if you ask me. Okay, you might say, “But wasn’t he actually driving while intoxicated? Why does it matter that the officer’s reason for the stop is a bit flimsy?” I’ll tell you why. Because we don’t live in Nazi Germany. The police cannot simply stop you whenever they have a hunch. The U.S. Constitution gives us the right to be “secure in our person, houses, papers, and effects against unreasonable searches and seizures” and we should guard against even the slightest erosion of this right. Any police detention that is not based upon specific, articulable facts should be met with sharp contempt. That’s my $0.02. But, once again, this case turned on the trial court’s initial ruling that the stop was justified, and based on the great deference owed that decision, the CCA felt it must uphold the trial court’s ruling.

Attention TX Drivers: Your Front License Plate Must Be Displayed...

"...at the foremost area of your car, most commonly the front bumper."

The Texas Court of Criminal Appeals seized the opportunity in Spence v. State to settle a split between the Texas Courts of Appeals regarding the proper placement of the front license plate.  The Amarillo Court of Appeals (7th), in Spence, had previously determined that the license plate was required to be displayed on the front bumper (the foremost area of the vehicle).  However, the Austin Court of Appeals (3rd), in State v. Losoya, 128 S.W. 3d 413 (Tex. App.--Austin 2004, pet. ref'd), held that Texas Transportation Code did not require the license plate on the font bumper.

Well, now it is settled.  The high court has spoken.  For those Nascar fans out there, go take down your Dale Earnhardt or you confederate flag decorative plate before you get a ticket! 

Attention Texas Drivers:  Your front license plate MUST be displayed on the foremost part of your vehicle, (i.e. Your front bumper).

Judge Meyers dissented, pointing out that the CCA is applying the Code inconsistently by requiring the front license plate to be displayed on the front bumper, but allowing the rear license plate to be displayed on the truck or back hatch of the vehicle and not on the rear bumper.  She "would construe the front and rear to mean any surface facing that direction."

A Simple Truth: Sexual Assault Conviction Reversed for Improper Expert Testimony

It's been my experience that folks with mental retardation can be painfully honest, really.  I mean, it's like a little kid who looks at somebody and says in the supermarket, 'You're really old,' or, you know, whataver little kids do.

That was part of the testimony of an MHMR expert at the sexual assault trial of Mark Barshaw.  Barshaw was accused of sexually assaulting a mentally retarded victim, who was 21 years-old at the time, but functioned at approxiamtely a 10 year-old level.  Upon hearing this testimony, the defense counsel objected, "You can't have somebody come in and testify to a class of people are truthful."  The State responded by stating that it was simply trying to show how mentally retarded persons "adapt" and that the testimony also went to show that "she's incapable of either appraising the the situation or the nature of the act."  The trial judge allowed the testimony to continue.

...again, it's been my experience in the hundreds and hundreds of people with mental retardation that I've seen, that it's more going to be that they're painfully honest.  They haven't learned the social skills and probably never will to know when you should lie or when it would be socially appropriate to not tell the truth because it might hurt someone's feelings, or things of that nature, to hold things back.

In allowing the testimony of the MHMR expert, the trial judge abused its discretion, said the 3rd District Court of Appeals (Austin).  The Court explained that the Texas Court of Criminal Appeals has held that evidence rule 702 "does not permit an expert to give an opinion that the complainant or a class of persons to which the complainant belongs is truthful."  Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993).  Such an expert, is essentially telling the jury that they can believe the victim in the instant case.  This, held the CCA, "is not 'expert' testimony of the kind which will assist the jury under rule 702."  Id. at 711.

The Court also cited the CCA case Schutz v. State.  957 S.W.2d 52 (Tex. Crim. App. 1977).  In Schatz, the CCA explained that:

children and mentally retarded persons are viewed by society as "impaired." When such a witness is expected to testify, expert testimony should be permitted in the offering party’s case in chief concerning the ability of the class of persons suffering the "impairment" to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events at issue in the case.  The court emphasized that such testimony should be limited to the “impaired” class’s ability to accurately relate events and should not extend to the class’s tendency to do so; the latter would violate the holding in Yount.

Id. at 70 (emphasis added).  Having violated the CCA holdings in Yount and Schutz by allowing the expert to testify that mentally retarded persons are, as a class, truthful, the Court found harm and reversed the sexual assault conviction.

Justice Henson dissented and would have held that there was no harm in the trial judge's erroneous ruling.

What To Do With the Alternate Jurors?

Back in June, I posted HERE about the Texas Court of Criminal Appeals decisions in Trinidad and Adams regarding whether, under the amended article 33.011(b) of the Texas Code of Criminal Procedure, the trial court should allow the alternate jurors to join the regular jurors in the deliberation room during deliberations.  In both cases, the CCA held that allowing the alternate jurors to be present in the jury room during deliberations did not violatethe constitutional prohibition against deliberation by more than 12 jurors. 

On 13 August 2010, the 3rd District Court of Appeals (Austin) released another case dealing with this exact issue. In Castillo v. State,  the Court cited that CCA precedent in Trinidad and Adams and, as lower courts are expected to do, held accordingly.  The Court explained that, because "there is no indication in the record that the alternate jurors voted on the verdict" it could not "conclude...that there was a constitutional violation."  Further, like the CCA opinions, the 3rd Court also declined to address the question of whether article 36.22 of the Code of Criminal Procedure, which provides that “[n]o person shall be permitted to be with a jury while it is deliberating,” was violated.

The Court handled the article 36.22 question by stating that

even if the district court’s practice violated the statute, we could not conclude on this record that Castillo was harmed by the violation. As the court of criminal appeals noted in Trinidad, harm from statutory error is governed by rule of appellate procedure 44.2(b). Thus, unless the error affected Castillo’s substantial rights, it must be disregarded.

So, in short, nothing has changed on the alternate-jurors-in-the-jury-room-during-deliberations front.  Maybe I should have simply stated that up front and then you wouldn't have wasted your time reading this entire post.  Oh well - sorry.  As you can probably tell, the cases (at least the published cases) are not too sexy right now. I’ll try to dig up some good stuff to post about, but I’m just writing about what the Courts give me.

DWI Blood Draws - "The most important decision we make all year."

Here are a couple of recent published decisions from the Courts of Appeals regarding the taking of blood samples for suspicion of DWI.

We'll begin with State v. Robinson – (10th District – Waco), June 16, 2010.

In this case, the Court upheld the trial court’s suppression of blood test results because (arguably) the State did not comply with the requirement under section 724.017(a) of the Texas Transportation Code that “only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse…take a blood specimen at the request or order of a peace officer.” The defendant, who had the initial burden to produce evidence that the statute was violated and that the evidence should be excluded, apparently shifted his burden to the State and the trial court ultimately held that because the State could not produce credible evidence that an actual nurse drew the defendant’s blood, the test results should be excluded.

Chief Justice Gray “strongly dissent[ed],” characterizing this case at the “certainly the most important decision” the Court has made “in a criminal case this year.”  He notes from the outset that "the hearing was before a county judge who would not be expected to be fully in tune with the niceties of a shifting of the burden of proof."

It is clear that the trial court placed the burden of proof to show that the blood draw was performed in compliance with the statute, Texas Transportation Code section 724.017, on the State, failing to prove such the trial court was going to suppress the blood evidence. Specifically, the trial court was focused on the fact that the State had not provided to the court’s satisfaction that the person who drew the blood was qualified as required by the statute.

Highlighting what he sees that the important practical implications of this decision, Chief Justice Gray writes:

If all a defendant has to do is to move to suppress evidence and then the State must go forward to prove the evidence was lawfully obtained, we can expect to see an even greater number of these motions and related appeals. A defendant can essentially file a motion in every case and the State will have to defend the manner in which the evidence was obtained. Thus, the presumption of proper police conduct is destroyed.

I'm with Chief Justice Gray on this one.  A thin record and an illogical burden shift should have made this case a winner for the State.  Discretionary review, perhaps?

Now onto State v. Jordan – (3rd District – Austin), June 17, 2010.

In Jordan the Court held that the affidavit for a search warrant to obtain Appellant’s blood sample for suspicion of DWI was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The State argued that because the blood was drawn at 4:20 am on June 6, 2008, the same day as the affidavit was signed, then no more than 4 hours and twenty minutes could have elapsed since the time of the observed conduct and the taking of Appellant’s blood. The Court, however, was not persuaded that the alleged offense and the completing of the affidavit occurred on the same day. Suppression of blood results affirmed.

An Affidavit that Passes the Smell Test and a Trash Can that Doesn't

Published CCA case: Flores v. State

It all started with an anonymous tip from an informant who stated that he/she had once seen Appellant and his girlfriend in possession of cocaine inside a house in San Marcos. Following up, the police officers search rummaged through the trash outside the house and found an empty package of rolling papers and a baggy that field tested positive for marijuana. Based of this (and the officers' experience in narcotics), the officers executed a probable cause affidavit in support of a warrant to search Appellant's house. The magistrate issued the warrant and officer subsequently found small quantities of marijuana and cocaine inside the home. After losing his motion to suppress the evidence, the jury convicted Appellant and awarded him 12 years confinement.

The 3rd District Court of Appeals (Austin) affirmed the denial of the motion to suppress, holding that while the informant's tip alone did not create probable cause, the two "trash runs," provided a substantial basis for concluding that probable cause existed.

On appellant's petition for discretionary review, the Texas Court of Criminal Appeals, upheld the decision of the lower courts and affirmed the conviction. Looking at the aggregate of the evidence contained in the probable cause affidavit in a non-technical sense, the court reasoned:

The cornerstone of the Fourth Amendment is that a magistrate may not issue a search warrant without first finding “probable cause” that a particular item will be found at a particular location. Probable cause for a search warrant exists if, under the totality of the circumstances presented to the magistrate, there is at least a “fair probability” or “substantial chance” that contraband or evidence of a crime will be found at the specified location.  Probable cause for a search warrant does not require that, more likely than not, the item or items in question will be found at the specified location.  In his determination of whether probable cause exists, the magistrate may interpret the probable cause affidavit in a non-technical, common-sense manner and he may draw reasonable inferences from it.

Using this reasoning, the court went on to list the reasons why the affidavit in this case was sufficient.

Judge Meyers was the lone dissenter, stating:

Finding marijuana stems, seeds, and residue in the trash does not provide probable cause to search the adjacent house for drugs. While remnants of drugs in the trash may indicate that someone possessed drugs in the past, it does not show current possession of drugs and certainly is not an indicator that there will be drugs in the house. Drug residue in the trash is equivalent to someone saying “I used to do drugs,” which may show prior possession, but does not provide probable cause to arrest the person or search their home.  If someone is found with drugs in their car and they park their car in a garage attached to their house, that does not give probable cause to search the house for more drugs.  Even if the drug residue in the trash did provide probable cause to arrest for possession, that still doesn’t give probable cause to search the house for drugs. There must be articulable facts sufficient to believe that there are drugs in the house in order to get a warrant to search the house, and drug residue in a trash can doesn’t rise to that level.

Takeaway - Once your trash is on the curb, it is no longer yours.  Don't put anything in your trash that could land you in jail for 12 years. 

Nancy Reagan Takeaway:  Say NO to Drugs!

Post-Trial Motions are NOT Self-Proving

For any new defense attorneys who may be reading this post, the following case is a must read.

Rouse v. State is a case about a defense attorney who improperly advised his client that if he did not like the sentence imposed by the judge during the sentencing phase of his guilty plea, he could simply withdraw his plea. The client was apparently led to believe that if he pled guilty (without a plea bargain), he would receive probation only. When the judge informed Appellant that he believed 10 years was an appropriate punishment (oddly, the judge seemed to be offering some kind of sua sponte plea bargain), Appellant tried to withdraw his plea, but the judge would not allow it. After Appellant was sentenced to 12 years TDC, his defense attorney (waiting until the last day to file his notice of appeal or motion for a new trial) faxed an unsworn document entitled "Motion for Appeal" to the court coordinator alleging that the defendant's plea should be withdrawn because of the incorrect legal advice that was provided to him.

On direct appeal, the 3rd District Court of Appeals relied on the unsworn affidavit to determine that Appellant's guilty plea was involuntary (Read lower court opinion here). On State's petition for discretionary review the Texas Court of Criminal Appeals considered whether the lower court erred by relying on unsworn allegations made by trial counsel in a document that was faxed to the court coordinator (when no fact-finder has evaluated the statement) to determine that a guilty plea was involuntary.  Relying on precedent from Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App. 1984), the CCA reversed the lower court decision, stating:

"We decide that the court of appeals erred to rely on the allegations in the 'Motion for Appeal' because post-trial motions such as these are not self-proving and any allegations made in support of them by way of affidavit or otherwise must be offered into evidence at a hearing. This rule is based, in part, on permitting the non-moving party an opportunity to respond to these allegations before a conviction is reversed on their basis."

The CCA also briefly considered whether and to what extent any "plea-bargaining" by the trial court concerning appellant's punishment could have influenced appellant's decision to enter an "open" plea of guilty. The CCA dismissed this contention as being without merit because the appellant's plea was entered the day before the judge's discussion with appellant regarding sentencing.