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Sunday, July 7, 2013

Lawyerless Meeting Not Reversible Error As Against the Poster Child for Harmless Error

A sexually-violent-predator supervisor met with a person jailed for violating civil commitment. No lawyer was present even though the inmate had invoked his right to counsel. The Ninth Court of Appeals held that mention of that non-cooperation at his trial did not rise to the level of Sixth Amendment harmful error beyond a reasonable doubt.
Quite commonly, this kind of holding is very frustrating to a criminal defense lawyer. In this case, though, the discussion was only mentioned only once in the State's argument, and since the State plead and proved-- six, count 'em, six-- prior offenses such that he got a life sentence, and the rest of the case was pretty clearly proved, to hold that the error harmless isn't crazy. Still, I would not be surprised if the Office of Violent Sexual Offender Management never met with a represented defendant without the defendant's lawyer or a waiver ever again.
Defendant also complained of overuse of the term of "sexually violent predator" during the trial and in the jury charge. Chief Justice Steve McKeithen wrote for a panel including Justices David Gaultney and Charles Kreger.
Hat tip for this to the estimable Jim Skelton.
Malone v. State, ___ S.W.3d ___(No. 09–12–00511–CR, Tex. App.--Beaumont (Jun. 26, 2013) (no pet. h.)

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