Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of April 19, 2010

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Deaver v. State,  No.  02-08-00329-CR    (Apr. 22, 2010)   (Livingston, C.J., joined by McCoy, J.; Dauphinot, J., concurs with opinion).  [Note: both opinions at the same link.]

Held:   Appellant’s ineffective assistance of counsel claim, which is based on his contention that his counsel did not attempt to suppress a cell phone video containing child pornography, cannot succeed because appellant cannot show that a suppression motion would have been granted. Appellant did not meet his burden of developing facts to show that an unconstitutional search of his phone occurred, and the record does not preclude the possibility that the officer who discovered the pornographic video saw it in plain view.

Concurrence:   The record does not contain evidence that the police saw pornographic images on appellant’s cell phone before searching the seized cell phone pursuant to an unchallenged search warrant; instead, the record provides that Officer Shipp saw only “images.” The record is thus inadequate to show that defense counsel somehow rendered ineffective assistance at trial by not challenging the warrantless viewing of mere images.

Witkovsky v. State,   No. 02-09-00259-CR   (Apr. 22, 2010)   (opinion on PDR) (Meier, J., joined by Walker and McCoy, JJ.). Note: This opinion was withdrawn June 4, 2010]

Held:   In contravention of code of criminal procedure article 42.12, section 10(a)’s requirement that only the judge may alter conditions of community supervision, Slawson unilaterally modified Appellant’s condition of community supervision requiring that he attend and successfully complete a sex offender treatment program when she transferred him from Clark’s sex offender treatment program to Strain’s sex offender treatment program. The trial court therefore abused its discretion by revoking Appellant’s community supervision on the basis of his failure to successfully complete Strain’s sex offender treatment program.

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