Pollard v. State
2012 Tex. App. LEXIS 8596
| Tex. App. | 2012Background
- Pollard challenges his capital-murder conviction for the shooting death of Terrell McCoy; the Dec. 22, 2006 Hawkins party involved a large cash dice game with tensions among suspects.
- Masked robbers entered Hawkins’s secluded Bryan, Texas home after a dice game, ordering attendees to surrender money; Mississippi (McCoy) was killed.
- Police found DNA evidence at Hawkins’s scene and linked Pollard to unknown blood drops; Pollard initially denied involvement and provided statements.
- Pollard’s DNA entered the investigation via a cup and spoon seized in a “detox cell”; pollard allegedly abandoned the items when returned to his cell.
- Mohler conducted DNA testing and relied on Burgett’s testing; Pollard’s saliva and cell-phone data were later tested under warrants based on the initial results.
- Pollard was convicted of capital murder and sentenced to life imprisonment without parole; this is an appeal with multiple suppression and confrontation- Clause challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation Clause—admission of non-testifying reliance | Pollard: Mohler relied on Burgett’s testing; violated Confrontation Clause. | Pollard: Burgett’s testing not subject to cross; Mohler’s testimony lawful. | Overruled: error harmless beyond reasonable doubt. |
| DNA from cup/spoon—Fourth Amendment suppression | Pollard had privacy interest; seizure invalid. | Abandoned cup/spoon; no reasonable expectation of privacy. | No abuse; suppression denied. |
| DNA testing of Pollard’s saliva and cell-phone evidence | Warrants based on DNA from seizure; suppression needed if seizure illegal. | Probable cause supported by DNA results; warrants valid. | No abuse; evidence admissible. |
| Sufficiency of the evidence | No eyewitness identifies Pollard; theory lacks direct proof. | Conspiracy/party liability supported; massive circumstantial evidence. | Evidence sufficient; capital murder as party established. |
| Lesser-included offenses jury instructions | Court should have instructed on lesser offenses. | Defendant denied offense; no evidence justifying lesser charge. | No error; sufficient evidence supports capital offense; no lesser included instructions warranted. |
Key Cases Cited
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (Sup. Ct. 2009) (live testimony required for testimonial certifications; chain of custody concerns recognized)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (Sup. Ct. 2011) (testimonial reports generally require the analyst testifying or prior opportunity to confront)
- Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006) (harmless error framework for Confrontation Clause violations)
- Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) (determinative on law-of-evidence and confrontation issues)
- De La Paz v. State, 273 S.W.3d 671 (Tex. Crim. App. 2008) (testimonial nature of statements; cross-examination relevance)
- Hudson v. Palmer, 468 U.S. 517 (Sup. Ct. 1984) (prisoner lacks reasonable privacy in cells; DNA collection permissible)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (circumstantial evidence treated as probative as direct)
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct. 1979) (standard for sufficiency of evidence to support conviction)
- Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001) (lesser-included offenses; evidence standard for instruction)