Weekly Case Summaries: February 7, 2014

Texas Court of Criminal Appeals

State v. Swearingen

No. AP-77, 020                       2/5/14

Issue:

In 2011, the legislature amended the definition of “biological materials” contained in the DNA testing statute of the Code of Criminal Procedure. Did this change entitle the defendant to have evidence—which had not previously been subjected to DNA testing—tested in his case?

Holding:

No. In 2010, the defendant had requested testing of fingernail scrapings, a ligature, and the victim’s clothes. Those requests were denied because the defendant had not shown that the evidence contained biological material. In 2011, the legislature amended the applicable statute to make fingernail clippings per se biological material. This amendment abrogates the “law-of-the-case” doctrine in regards to finding that the scrapings had not been shown to be biological material. However, the defendant still bears the burden of establishing that, had the scrapings themselves been tested, they would have likely led to his exoneration. The mountain of evidence against the defendant would not have been overcome by a showing that a third party’s DNA was in the scrapings, especially considering the fact that blood flakes under the victim’s fingernails had already established an encounter with a third party, and the jury still convicted the defendant. Read the opinion.

Commentary:

You should always be careful in denying or opposing further DNA testing, especially in a death penalty case. But this opinion makes clear that a great deal of testing has already occurred in this particular case and that the defendant has failed to show additional testing would be exculpatory to him. This opinion is remarkable in that it is a State’s appeal from a trial court order granting additional DNA testing. It is always much more difficult to win an appeal when you are the appealing party, so a commendable job by the State in prevailing. If you have a Chapter 64 case, review this opinion because it includes and reaffirms much of the pertinent law in this area.

Taylor v. State

No. PD-0180-13                     2/5/14

Issue:

Is a pro se, incarcerated defendant’s notice of appeal timely filed when it is mailed to the court of appeals on or before the filing deadline, forwarded by that court to the proper trial-court clerk, and received in the trial court within the 10 days permitted under the mailbox rule?

Holding:

Yes. Because the rules of appellate procedure required the clerk of the court of appeals to forward the appellant’s notice of appeal to the trial-court clerk, and because his notice of appeal was actually received by the convicting court within the time limits established under the mailbox rule, the appellant’s apparent mistake in sending his notice of appeal to the court of appeals instead of to the district-court clerk was, at most, a harmless procedural defect that did not render the notice of appeal untimely. Read the opinion.

Dissent:

The appellant failed to allege anything at all about whether or not he had sent the pleading to the clerk. Because the mailbox rule requires such an allegation, the rule cannot apply in this case. Read the dissent.

Commentary:

This decision will ultimately be of interest only to appellate lawyers. The Court of Criminal Appeals will typically lean towards giving a defendant his right to appeal if it is at all possible, so this decision is no real surprise. It appears to be a logical extension of prior decisions from the court, and it is in line with similar decisions from the Texas Supreme Court (construing the same language from the rules). So if you wish to argue that a defendant does not have the right to appeal because of deficiencies in his notice of appeal, be sure you are standing on very strong ground.

Ragston v. State

No. PD-0824-13                     2/5/14

Issue:

Do the courts of appeals have jurisdiction to consider an interlocutory appeal of a pretrial motion for bond reduction?

Holding:

No. Courts that have decided otherwise have erroneously relied on dictum in a Court of Criminal Appeals case and on the Rules of Appellate Procedure, neither of which are proper authority for enlarging a court’s jurisdiction. Read the opinion.

Commentary:

For quite some time, intermediate appellate courts have been waiting for this holding from the Court of Criminal Appeals. Courts of appeals have been on both sides of the issue, with some holding that a defendant cannot bring an appeal straight from a denial of his motion for bond reduction, and with others holding that such an appeal was proper. The Court of Criminal Appeals does not state whether a defendant can raise this issue by way of a pre-trial writ of habeas corpus and then appeal from the trial court’s denial of relief. Presumably, defendants may still attempt to take that approach. Barring the success of that approach, the only way that the defendant could challenge a trial court’s ruling on bail would be in the direct appeal from his conviction.

Texas Courts of Appeals

Medrano v. State

No. 05-12-00316-CR                          1/27/14

Issue:

Does the Chapter 273 of the Elections Code violate the separation of powers doctrine by granting the Attorney General power to prosecute election law violations?

Holding:

No. The Constitution gives the legislature authority to assign concurrent criminal prosecution duties to the Attorney General (AG). Giving the AG authority to prosecute election law violations does not remove any authority from prosecutors; it merely gives the AG the independent authority to prosecute one type of case in the absence of action by a local prosecutor. Because the duties of the AG are a hybrid between the powers of the executive and judicial branches, it is not a violation of the separation of powers doctrine for the legislature to grant the AG prosecutorial authority, so long as the legislature does not take away so much authority from county and district attorneys as to “practically destroy” the role of the prosecutor’s office. Read the opinion.

Commentary:

In this case the Attorney General employed a rarely-used Election Code venue statute to prosecute a Dallas crime and a Dallas defendant in Rockwall County. The crucial fact here is that neither the Dallas County nor the Rockwall County Criminal District Attorneys sought to take control of the prosecution, so the court did not face a situation in which a prosecutor exercised control and discretion over a case and the AG sought to intervene. When a district or county attorney affirmatively takes control of a case, the result may not be the same. See, e.g., Shepperd v. Alaniz,  303 S.W.2d 846 (Tex. App. – San Antonio 1957).   

Adetomiwa v. State

Nos. 02-12-00632-CR, 02-12-00633-CR                   1/30/14

Issue:

After the legislature passed several bills amending the evading detention statute in 2011, is the charge of evading in a vehicle with no prior evading convictions a third-degree felony or a state jail felony?

Holding:

Evading in a vehicle is a third-degree felony, even on a first offense. The legislature passed three different bills that session that made changes to §38.04 of the Penal Code, but only one of those bills established a new penalty scheme for a first offense of evading in a vehicle. The other two bills included the language of 38.04 as it existed at the time the bills were drafted as a contextual reference point, but they did not make changes to the statute that conflict in any way with the unambiguous legislative intent to make a first offense of evading in a vehicle a third-degree felony. Read the opinion.

Commentary:

If you attended one of TDCAA’s recent Legislative Updates (which you always should, by the way), then you were not surprised by the “problem” revealed by this decision. The legislative notes in 2011 TDCAA publications correctly predicted this resolution to the multiple bills amending the same statute. In other words, Shannon and Diane were right.

Hamann v. State

No. 01-12-00591-CR              1/30/14

Issue:

May the State amend an indictment after a jury is impaneled but before jurors are sworn in if the defendant objects?

Holding:

No. The defendant has absolute veto power over amendments to the indictment after trial begins. However, such a violation is subject to a harmless error review. The critical inquiry in that analysis is 1) whether the original indictment sufficiently informed the defendant of the charge against him and allowed him to prepare and adequate defense at trial and 2) whether prosecution under the indictment would subject the defendant to the risk of being prosecuted later for the same crime. In this case, the facts dictated that the error was harmless. Read the opinion.

Commentary:

The error in this case is saved by a harm analysis. But this decision reinforces the need to carefully review indictments and informations to make sure they are correct in relation to the controlling penal statute, the evidence, and testimony that you will be presenting at trial.

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