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Tuesday, December 29, 2009

When the State Overreaches, the Defense Must Object

Sometimes the State does not know her own strength. In the case considered in Ex parte Lane, No. AP-76,141, 2009 WL 4825122 (Tex. Crim. App. Dec. 16, 2009). The State pops a defendant with life for having half a pound of meth and some pot. Defense counsel did not object to:
• .her co-defendant’s confession in their joint trial;
• an officer’s testimony about the Texas “methamphetamine epidemic;”
• that officer’s testimony about how meth is distributed in Texas and its wholesale and retail prices;
• the State’s argument, outside the record, that the defendant was bringing meth into Smith County, to poison the children of Smith County and turn them into addicts, and that children were in fact shooting up and smoking meth.
Her lawyer, it was said, should have objected to the “epidemic” and to the argument outside the record. No matter, though. She would have been found guilty anyway. The error was harmless, the court said..
At punishment, no objection was made to:
• a DEA agent’s testimony about the social problems caused by meth;
• that agent’s testimony about addiction and that 45,000 people could get high from the defendant’s meth;
• the State’s argument that it should consider the application of the parole law to the defendant.
This was the defendant’s first felony. Her priors were one year’s probation for possession less than two ounces of pot and a two-year probation for DWI. She successfully completed both of them.
Her boyfriend should not have been able to sell her down the river. How bad meth is is not relevant as to whether the meth was hers. And a half-pound of meth won’t get every man, woman, and child in a medium-sized suburb high. That’s just a lie.
With a prosecution like that, defense counsel coulda been a contender.

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