Weekly Case Summaries: January 4, 2013

Texas Courts of Appeals

State v. Thomas

No. 01-11-00500-CR        12/20/12

Issue:

Did the trial court improperly grant a motion for new trial in the interest of justice on the ground that the jury did not hear exculpatory testimony from an alleged eyewitness?

Holding:

Yes. Defense counsel was “undisputedly aware of the exculpatory evidence before trial but consciously decided, on the record, not to call the witness at trial.,” An argument that counsel was ineffective was expressly abandoned, and another that the sentence was grossly disproportionate was not presented to the trial court.
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Commentary:

There are limits on a trial court’s authority to grant a “do over.” The defendant must allege and prove something bad actually happened at trial—it is not enough to allege there was other relevant evidence the court or jury did not hear. This case has good discussion on the parameters of “in the interest of justice” motions for new trial.

Ex parte Shaw

No. 02-12-00116-CR        12/21/12

Issue:

Did the trial court incorrectly deny a defendant’s release on personal bond or reduction of bond because the State was not ready for trial within 90 days of the defendant’s arrest?

Holding:

Yes. Even though the defendant had been indicted within the 90-day window on one of the three charges for which he was arrested, he was entitled to relief. The exception of CCP art. 17.151, §2(2) did not apply to the pending indictment because, at the time of the hearing, the 90-day window had already elapsed. “We find nothing in the statute or the caselaw to suggest that once the statutory window is no longer open, the legislature nonetheless intended to allow the State to maintain a hold on an accused for an unindicted charge simply because it had gotten ready on another case before the shutters came down.”
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Commentary:

The court applied CCP art. 17.151 in a straightforward, “as written” manner. Indicting one case does not allow you to hold a defendant without bond on another case after the relevant period expires. Note that this does not mean the defendant gets a PR bond on all cases. I wonder how high the bond was set on his UPF case?

Ex parte Doan

No. 03-08-00704-CR        12/21/12 (not desig. for pub.)

Issue:

On remand from the Court of Criminal Appeals: Does the doctrine of res judicata bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense?

Holding:

No. The trial court conducting the revocation hearing did not enter a finding of “not true” regarding the theft allegation. Instead, it merely overruled and dismissed the State’s motion. As it did not determine an issue of ultimate fact, the trial court’s action had no preclusive effect.
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Commentary:

The Court of Criminal Appeals stirred things up when it revised Texas law on probation revocations in Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012). The Third Court of Appeals has made things even murkier on remand by holding that the trial court’s order is insufficient for the defendant to invoke res judicata in Travis County based on Brazos County’s failure to prove any allegations in its motion to revoke. Texas is out of step on this issue, and Texas prosecutors should start making the argument that Ex parte Tarver and Ex parte Doan should be overruled because collateral estoppel and res judicata are civil law doctrines that have no application to related prosecutions and revocations.

Miranda v. State

No. 03-1100469-CR        12/28/12

Issue:

Where a defendant participated in a gang rape and was charged with multiple counts of aggravated sexual assault—with the aggravating element that he acted in concert with other assailants who also sexually assaulted the victim during the course of the same criminal episode—and, further, alternatively charged with acting as a party to the other assailants, did the jury charge wrongly permit the jury to convict the defendant based on less-than-unanimous verdict?

Holding:

No. Despite the multiple possible offense combinations, the jury was not required 1) to agree about which assailant, in addition to the defendant, sexually assaulted the victim; 2) in what manner the other assailant committed sexual assault; or 3) that the defendant was the primary actor or party to each offense. While previous cases expressly hold unanimity for 3) is not required, no authority supports a requirement of unanimity for 1) or 2).
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Commentary:

Each type of penetration in a sexual assault case, i.e., oral, vaginal, or anal, is a separate offense requiring a unanimous verdict. But the liability as principal or party, and the manner in which consent is lacking, do not require unanimity. But applying those principles to a half-dozen men gang-raping a teenage girl all night is fairly complicated. Would it have been easier simply to charge him with two counts of aggravated sexual assault based upon where his DNA was recovered?

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