Weekly Case Summaries: August 21, 2015

Texas Courts of Appeals

Fujisaka v. State (5th COA)

No. 05-15-00355-CR        8/12/15

Issue:

Is Penal Code §43.25, outlawing sexual performance by a child, facially unconstitutional as a violation of the First Amendment?

Holding:

No. The defendant argued that “authorizing” and “inducing” a child to engage in sexual conduct is generally accompanied by speech, and as such, the statute is an impermissible regulation of speech. The court held that the mere occurrence of some verbal expression in connection with one’s conduct does not trigger the First Amendment’s speech protections. The court found §43.25(b) does not reach a substantial amount of constitutionally protected speech, judged in relation to the statute’s plainly legitimate sweep; is not unconstitutionally overbroad; and is narrowly tailored to serve a compelling governmental interest. Read opinion.

Commentary:

After the decisions of the Court of Criminal Appeals in Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) and Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), defense lawyers have been much more often bringing First Amendment challenges to several Texas statutes. This is a good decision rejecting such a challenge, showing why the statute involved in this case is nothing like the statutes declared unconstitutional in Thompson and Lo.  The defendant’s First Amendment claims in this case were very strained, and he could not show that the statute was substantially overbroad. If you have a case in which a defendant has challenged a statute under the First Amendment, this decision will help raise arguments to rebut that claim.

Veliz v. State (14th COA)

No. 14-14-0057-CR           8/18/15

Issue:

Was it error to admit retrograde extrapolation testimony in this case?

Holding:

Yes. Before a court admits retrograde extrapolation testimony, the testifying expert must be found to be reliable, meaning he or she must be fully able explain the science and risks of extrapolation. In weighing reliability, the court must consider whether the expert had information on (1) the length of time between the offense and test; (2) the number of tests given and length of time between; and (3) individual characteristics of the defendant including: weight, gender, typical drinking habits, tolerance for alcohol, how much the person drank, the time of the last drink, and other factors. In this case the expert did not have much of this information, and because there was evidence the jury was affected by this information, it was significant error to admit it at trial. Read opinion.

Commentary:

This decision is very troublesome, but it is quite thorough and may be difficult to overturn on petition for discretionary review. The State’s expert witness testified that she had been made aware of the time of the stop of the defendant, whether the defendant had eaten anything, the defendant’s weight, the defendant’s height, and the defendant’s alcohol concentration at the time of the test. Rather than defer to the trial court’s findings with regard to the expert witness’ retrograde extrapolation testimony, the court of appeals allowed defense counsel’s cross-examination of the expert witness to carry more weight. Whatever comes of this decision, one thing is made very clear: If you desire to have admitted before the jury retrograde extrapolation testimony, the expert witness must be provided as many facts about the defendant as possible, and she must be able to explain her opinion with clarity, including its potential deficiencies. 

Ellison v. State (11th COA)

No. 11-12-00019-CR        8/13/15

Issue:

Was it a violation of the Confrontation Clause to allow an expert who did not complete the original tests to testify in place of the testing expert who died before trial?

Holding:

No, because the original expert had previously testified in a related trial regarding his testing of the firearm and ballistics evidence, giving the defendant the ability to cross-examine him. Additionally, it was not hearsay for the testifying expert to rely on findings from the unavailable expert in his testimony. Read opinion.

Commentary:

This is a very interesting decision—relying primarily upon the fact that the defendant had a prior opportunity to cross-examine the deceased expert witness in a prior trial involving another related victim. That is a unique holding, but it should hold up. The court also noted that the testifying expert offered up his own opinions. The court also held that the testifying expert could properly rely upon the deceased expert’s statements without running afoul of the hearsay rule. There is also no real way that the defendant was harmed by any error in this case because the evidence clearly showed that he was the individual who fired the murder weapon.

Holton v. State (8th COA)

No. 08-13-00220-CR        8/14/15

Issue:

Is Penal Code §21.02 (Continuous Sexual Abuse a Young Child) unconstitutional because it does not require jury unanimity regarding which acts of sexual abuse were committed?

Holding:

No. The jury is required to unanimously agree on each element of an offense but not the manner and means of an offense. In this case the key element of the offense is that the defendant committed a series of acts within a specified time, not the particular acts committed. Additionally, the State has full discretion when deciding what charges to allege as the predicate offenses of continuous sexual assault and what time frame to use (so long as it meets the 30-day requirement). It is then free to charge any additional independent acts of sexual abuse occurring outside that time. Read opinion.

Commentary:

This is yet another in an increasingly long line of cases that upholds our continuous sexual abuse statute against jury unanimity challenges. The statute was designed for the defendant in this case, who began molesting the victim in 2008 when she was in the sixthgrade and continuing until late 2011 when he was finally caught. The defendant deserved every bit of the 75-year prison sentence that he received in this case.

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