Weekly Case Summaries: December 7, 2012

Court of Criminal Appeals

Ex parte Flores

No. AP-76,862      12/5/12

Issue 1:

Was trial counsel ineffective for failing to call additional or different expert witnesses on the issue of causation in a capital murder trial?

Holding 1:

No. In an effectiveness review based on failure to call expert witnesses, the court must focus on counsel’s investigation of the need for the experts, not the choice of a specific expert. The testifying expert was well-known and qualified, and the record does not show a reasonable probability of a different outcome if different or additional experts had been called.

Issue 2:

Was counsel ineffective for failing to challenge sufficiency of the evidence on appeal?

Holding 2:

No. The attorney testified that his strategy was to limit the scope of appeal to constitutional issues because he wanted to keep the arguments as clear as possible for the appellate court and there was little chance of success on the sufficiency issue. Considering the evidence in the light most favorable to the verdict, the defendant failed to show a reasonable probability of success had sufficiency of the evidence been challenged.
Read opinion

Concurrence (Keller, P.J.):

The court was incorrect in holding that when findings of fact from the habeas court inadequately address the issues to be resolved, the reviewing court may make its own findings of fact; instead, the court should remand. However, in this case the evidence supports only the conclusion that counsel was effective.
Read concurrence

Commentary:

Unless you handle habeas corpus cases, this decision might be of little assistance to you. But the court’s decision on the sufficiency of the evidence could be of potential assistance if you have to handle a particularly difficult child-death case, especially if causation is an issue. The ineffective-assistance-of-counsel issue should be very helpful if you are confronted with a claim that a trial attorney should have called a particular expert witness.

Ex parte Henderson

No. AP-76,925      12/5/12 (per curiam)

Issue:

Was the trial court’s recommendation granting a new trial on the basis of newly available evidence supported by the record?

Holding:

Yes. On remand of the application for a subsequent writ of habeas corpus to the trial court, six expert witnesses presented evidence on new scientific developments, and the trial court concluded that no reasonable juror would have convicted the defendant of capital murder in light of the new evidence. The trial court’s recommendation for a new trial is entitled to deference.
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Concurrence (Price, J):

A new trial should be granted on the basis of the inadvertent use of false evidence, rather than actual innocence.
Read concurrence

Concurrence (Cochran, J.):

The trial court’s findings of fact and conclusions of law do not necessarily mean the defendant is actually innocent; a new trial is needed to ensure that a guilty verdict is based on scientifically reliable evidence.
Read concurrence

Concurrence (Alcala, J.):

“The holding of this case is quite narrow: Due process prohibits the execution of a person when faulty science was essential to the State’s establishment of an element necessary for conviction … and the habeas record shows that today’s scientific community reaches a different consensus.” 
Read concurrence

Dissent (Keasler, J.):

The court’s opinion grants relief without identifying any legal basis for it.
Read dissent

Dissent (Hervey, J.):

Potentially unreliable evidence does not equate with “false testimony” or “innocence” and does not require a new trial.
Read dissent

Commentary:

You will be hard-pressed to discern a cogent holding from these various decisions. And that can be dangerous. Judge Alcala refers to a “majority” in her concurring opinion, but there is no real “majority” here. If you are cited this decision by a defendant who is making an actual innocence claim, make sure that you point out that the State agreed with the granting of relief (a new trial) to the defendant in this case. But hopefully this decision will not lead towards a belief that a bare actual innocence claim can be based solely on the change in an expert witness’ opinion. The State should be able to retry this defendant, assuming that pertinent witnesses are still available, and there will be ample evidence in support of another guilty verdict, in light of the inconclusive nature of the expert witness testimony, and the remarkable evidence of guilt on the part of the defendant as outlined in Judge Keasler’s opinion. If you want to get a handle on the enormous amount of expert testimony that was presented in this case, read Judge Cochran’s concurring opinion. But it is not light reading. Very complex. I am still struck with the idea that, even in light of the compelling testimony offered by the various expert witnesses, another jury will still find this defendant guilty of capital murder.

Blasdell v. State

No. PD-1892-11      12/5/12

Issue:

Did the trial court abuse discretion in excluding as irrelevant an expert witness’s testimony on the “weapon focus effect” in a case involving uncorroborated eyewitness identification testimony?

Holding:

Yes. According to the court’s holding in Tillman v. State, expert testimony regarding the reliability of eyewitness identification will be deemed relevant so long as it illustrates how identification procedures or the circumstances surrounding an eyewitness event have been empirically demonstrated to have the potential to cause a mistaken identification.
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Concurrence (Hervey, J.):

“[T]he relevance prong of Rule 702 is satisfied if an eyewitness-identification expert provides the jury with additional information that ‘may help guide the jury in its understanding of the standards in the area’ and the potential for a particular eyewitness procedure to cause a mistaken identification.”
Read concurrence

Commentary:

The bottom line of this decision is that, if your case is based almost entirely upon eyewitness identification testimony, or if your case contains some problematic eyewitness identification procedures, you had better think twice (and even a third time) about objecting to a defendant’s attempt to put on expert testimony on the reliability of the eyewitness identification procedures that occurred in your case. And you should also know that, effective this past September, essentially every law enforcement agency in the State was required to adopt a written policy on their eyewitness identification procedures, pursuant to Article 38.20 of the Code of Criminal Procedure.

Texas Courts of Appeals

Smith v. State

No. 04-11-00278-CR      11/28/12

Issue:

Was a defendant’s right to confrontation denied by a witness’s use of a pseudonym?

Holding:

No. The record does not show whether the defendant accepted the State’s offer to disclose the witness’ criminal history; the defendant made no argument to show how the failure to identify the witness by name implicated any of the four core concerns that comprise the essence of the right to confrontation; and any error was harmless beyond a reasonable doubt.
Read opinion

Commentary:

This decision will probably hold up. But keep in mind that this particular defendant did very little to establish on the record at trial how his right to confrontation was actually hindered by the informant’s use of a pseudonym. He did not attempt to question the jurors about their knowledge of the witness. And he offered no argument that the failure to identify the witness impaired his right of confrontation.

State v. Hernandez

No. 04-11-00796-CR      11/28/12

Issue:

Did trial court properly dismiss a sexual assault indictment because the State inadequately alleged the particular bigamous conduct elevating the offense from a second- to first-degree felony?

Holding:

No. The bigamous conduct is an element of the offense, but the State tracked the statutory language, and the State is not required to plead the constituent elements of the offense of bigamy so as to provide adequate notice. The order granting the motion to quash is reversed.
Read opinion

Commentary:

You might not think that his decision will be particularly useful since you may not plead bigamy as an aggravating element for the offense of sexual assault of a child. But this is a good holding for any offense that allows the State to use an underlying offense to enhance or aggravate the charged offense. The court of appeals in fact drew an analogy to the offense of engaging in organized criminal activity, for which the State is not required to allege the particular elements or manner and means of the underlying or predicate felony.

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