Weekly Case Summaries: February 26, 2016

Court of Criminal Appeals

Ex parte Perry

No. PD-1067-15      2/24/16

Issue:

Can the State prosecute the governor for the threat to exercise a veto and his ultimate exercise of that veto?

Holding:

In this case, no. Governor Perry was charged with “abuse of official capacity” and “coercion of a public servant” for his threat and eventual veto of funding to the Public Integrity Unit of the Travis County District Attorney’s Office. Governor Perry filed a petition for pretrial habeas relief based on his belief that prosecuting a veto under “abuse of official capacity” is a violation of the Separation of Powers provision of the Texas Constitution and that using the “coercion of a public servant” statute to prosecute a threat to exercise a veto is a violation of the First Amendment. The Court held that the Separation of Powers argument is cognizable on a pretrial habeas petition to avoid the disruptive effects of prosecution and avoid undue infringement of properly granted powers. Because the Governor’s veto power cannot be limited by the Legislature or the judicial branch (of which district attorneys are members), it was not an “abuse of official capacity” for the governor to exercise his veto power. The Court also found that Penal Code §36.03(a)(1), as it incorporates §1.07(a)(9)(F), is overbroad in violation of the First Amendment because it penalizes a substantial amount of protected conduct, and most if not all of the coercive activity it might legitimately prohibit is more specifically prohibited in other statutory provisions. Read.

Concurrence (Alcala, J.):

Judge Alcala joined the majority but wrote separately to note her support for the approach taken in the majority opinion to determine what claims are cognizable in pretrial writs of habeas corpus, and that this method should be followed in other cases and by the lower courts as well. Read.

Concurrence (Newell, J.):

Judge Newell agreed that the pretrial writ of habeas corpus was cognizable and should have been granted in regard to the “abuse of official capacity” claim, but not because failure to do so would undermine a constitutional right—rather, because it was clear from the face of the pleadings that that the charge was a constitutional violation of the separation of powers clause. Read.

Dissent (Meyers, J.):

Judge Meyers dissented due to his belief that the separation of powers claim is not properly dealt with in a pretrial writ of habeas corpus. He also disagreed with the majority’s “overly broad definition of ‘threat,’” noting that it should have used narrowing constructions of the term. In general, he believed the majority’s holding was politically motivated to achieve this outcome. Read.

Dissent (Johnson, J.):

Judge Johnson does not find a violation of the separation of powers doctrine in this case due to the fact that the district attorney is a member of county government, and the state separation of powers does not apply. Additionally she believes that the term “threat” was construed too broadly in the majority opinion and that it inherently implies an improper or illegal act; thus, many of the threat examples used by the majority were incorrect. Read.

Commentary:

As a practical matter, this case may have very little precedential value for prosecutors in general. Do not let defense lawyers tell you that this case stands for the proposition that an as-applied constitutional challenges can be raised by way of an application for a pretrial writ of habeas corpus. The Governor’s separation-of-powers claim in this case was a very specific kind of as-applied challenge that usually does not get raised, and—in that connection—the court also held the State to a stipulation that it made at trial in a bill of particulars—a very unusual practice. The court’s construction of the word “threat” in this case probably will have almost no lasting effect as well, unless prosecutors begin charging this type of coercion of a public servant claim much more often.

Ex parte Palmberg

No. WR-82,876-01            2/24/16

Issue:

Is a plea involuntary because the defendant mistakenly believed that specific evidence would be used against him at trial, evidence that was later unavailable?

Holding:

No. The defendant in this case claimed that he would not have pled guilty to possession of a controlled substance if he knew at the time that there was not enough of the substance available for a lab to analyze, as it had all been used in the presumptive field test. The Supreme Court has held that a plea is not involuntary when the defendant does not know the specifics of the case against him; so long as he is aware of his circumstances, he accepts any risk of taking a plea. The due process concerns in this case do not rise to the level of using false evidence, the prosecution failing to turn over exculpatory information, or ineffective assistance of counsel. Read.

Dissent (Alcala, J.):

Judge Alcala would grant relief because she finds no material distinction between this case and one in which the defendant has been convicted on insufficient evidence. Read.

Commentary:

Be careful not to read too much into this decision. In this case, the investigating officer conducted a field test of the substance recovered from the defendant and used up all of the substance in doing so. The State’s expert was, therefore, unable to confirm (prove) that the substance was in fact cocaine. This case is not one which the substance was proved to be something other than what the State alleged, as in Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App 2014). Furthermore, a defendant in the exact same situation as this defendant could gain relief if he claimed that he was led to believe that the State could conduct testing of the substance or if he based his claim upon ineffective assistance of counsel.

Nixon v. State

No. PD-0851-14 & PD-0852-14    2/24/16

Issue:

What is the solution when a jury has incorrectly assessed punishments to run consecutively instead of concurrently as required by law?

Holding:

Code of Criminal Procedure Article 37.10 addresses this situation, but it turns on whether the verdict was an informal verdict—which can be modified by the court or remanded to the jury for further consideration—or a partially unauthorized punishment—of which the unauthorized portion must be struck by the judge and the authorized portion allowed to remain. In this case a jury notation for the two punishments to run consecutively when, by law, they are required to run concurrently, is an unauthorized punishment because it was designed to have a punitive effect and should be omitted under Art. 37.10(b), but the terms of confinement remain. Read.

Dissent (Alcala, J.):

Judge Alcala wrote to express her belief that if a verdict is so ambiguous that the trial judge cannot discern the jury’s intent, the judge should act under Art. 37.10(a) and allow the jury to consent to the judge altering the verdict or remand to the jury to reconsider. In this case she believes the trial court properly informed the jury of the prohibition on consecutive sentences and allowed them to reassess punishment. Read.

Dissent (Yeary, J.):

Judge Yeary would classify the verdict in this case as an “informal” one given that it strayed from the verdict form given by the trial court. As such the trial court should have followed Art. 37.10(a) and reformed the judgment with the consent of the jury or allowed them to reconsider punishment. Read.

Commentary:

First of all, it is important to be aware of whether a defendant’s sentences can be cumulated or not. Typically, if the cases are tried together, they cannot be cumulated (or “stacked”). And it is permissible to inform the jurors of this fact. This might be one way to avoid the jury rendering a verdict like the one in this case. But this is a case in which the court’s decision and the construction of the controlling statute failed. This jury wanted this defendant to have a 16-year sentence. There is no doubt about that. The court’s decision in this case prevents that from happening.

Finley v. State

No. PD-1473-14      2/24/16

Issue:

Did the defendant “use force” against a police officer to the degree that he was guilty of resisting arrest under Penal Code §38.03?

Holding:

Yes. In Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014), the Court held that using force requires some “violence, compulsion, or constraint exerted upon or against a person or thing.” The State is also required to show that the defendant used violence against the officer himself, not against the broader goal of effectuating an arrest. The defendant’s actions in this case of forcefully pulling and clenching his arms away from the officers are sufficient to show he used force against them and resisted arrest. Read.

Dissent (Meyers, J.):

Judge Meyers disagreed that the defendant’s conduct was sufficient to show force against an officer and reiterates his previous dissent in Dobbs. Read.

Commentary:

There are some previously decided cases that suggest that pulling away from an officer does not constitute resisting arrest. It would appear that those cases are no longer good law. With this decision and the court’s recent decision in Dobbs, the court has significantly clarified the law on resisting arrest.

Vasquez v. State

No. PD-0078-15      2/24/16

Issue:

Did the defendant properly preserve his complaint that his recorded confession was part of an improper two-step interrogation?

Holding:

No. The defendant’s written motions objected to the statements on the basis that they were involuntary, unwarned, and out of compliance with Code of Criminal Procedure Art. 38.22, not that there was an improper two-step interrogation. The mention of a two-step interrogation in the defendant’s final argument was not enough to preserve the argument because neither the State nor the trial court understood the specific nature of the objection. Read.

Commentary:

It is a shame that this capital murder defendant’s claim could not be resolved in the State’s favor on the merits. It would have been nice for there to be some clarification in the caselaw dealing with claims involving “two-step” interrogation techniques. It is good that this capital murder defendant’s conviction is upheld nevertheless.

Kent v. State

No. PD-1340-14      2/24/16

Issue:

When multiple thefts are aggregated under Penal Code §31.09, must each theft be proven beyond a reasonable doubt, and must the jury unanimously agree on each underlying theft?

Holding:

No and no. Under §31.09, the aggregate theft statute, the scheme or continuing course of conduct provides the basis for the charge. While the amounts of separate thefts may be aggregated, the conduct is considered to be one singular offense. Additionally, the jury must be unanimous in its agreement that a threshold amount has been reached and that all elements have been proven for each specific instance of theft the individual believes was a part of the scheme or course of conduct—it is not required that each member of the jury rely on the same specific instances of theft. Read.

Commentary:

This is a very helpful decision on jury unanimity. There is not a great deal of extensive analysis, but it should finally to put to rest any lingering claims that the jury must be unanimous about the individual thefts that make up a charged offense of aggregate theft.

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