Court of Criminal Appeals
No. AP-77,046 3/9/16
Does the Court of Criminal Appeals have jurisdiction to address the defendant’s DNA recalculation requests?
Yes. The Court determined that a previous Agreed Joint Order for DNA Testing, filed by the defendant and the State in the trial court, serves as a Chapter 64 motion. The defendant’s failure to file an affidavit along with the joint order is not a jurisdictional requirement, and the Court has proper jurisdiction over the case. The Court remanded the case to the trial court to ensure that a recalculation of the DNA evidence is conducted by DPS given the previous potential errors in DNA analysis. Read.
This is the first case involving the problems that arose last summer regarding mixture DNA and the Combined Probability of Inclusion (CPI) statistics used by DPS and other labs to report results. Since the scientists decided that the CPI calculations needed to be done with a “stochastic threshold,” prosecutors and others have been busy notifying convicted felons who may have had mixture DNA evidence in their cases that they may be entitled to a recalculation of the statistics used in their case. You can read the background on this at http://www.tdcaa.com/brady-resources/2014-brady-materials. This opinion may answer a question that some have asked: is a request for recalculation actually cognizable under Chapter 64? The answer to that appears to be “yes,” but may also be largely academic. At this point, prosecutors are leading the charge to make the recalculation available to convicted felons. Note that the AG in this case requested the recalculation in the fall, and the joint motion to the Court appears to be more like the parties sending DPS to the principal’s office for not getting the recalculation done in a timely fashion.
No. WR-84,073-01 3/9/16
What procedures are required before the Court can consider evidence in an 11.07 hearing that was not originally filed in the trial court?
Holding (per curiam):
If an Article 11.07 application has been filed and set for submission by the Court, a party wanting the Court to consider additional evidence has two options. First, the party may file a motion for the Court to consider evidence that is directly filed in the Court of Criminal Appeals but must show “compelling and extraordinary circumstances,” or it may file in the Court of Criminal Appeals a motion to supplement in the trial court and explain the relevance of the additional evidence. Read.
This decision provides a useful road map for getting the record right in post-conviction writs.
No. PD-0180-15 3/9/16
Did a defendant give proper notice of appeal when she wrote “APPEAL” on top of her Order requesting the trial court to appoint counsel?
Yes. The Rules of Appellate Procedure related to the perfection of an appeal are designed to be construed liberally, and notice of an appeal is sufficient if given in writing, filed with the court clerk, and show a desire to appeal. A defendant writing “APPEAL” on her order requesting counsel was enough to give the trial court judge notice of her intent to appeal her conviction and invoked the court of appeals’ jurisdiction. Read.
When evaluating whether a defendant seeks to appeal, the courts should resolve fact questions in favor of intent to appeal. While prosecutors might pick up an extra appeal this way, it is highly likely we would see the same appeal down the road via a writ, and it is sometimes the case that an appeal delayed is an appeal lost due to outside factors.
Final Order Adopting Amendments to Texas Rules of Appellate Procedure 73.4 and 79.02 and Texas Rule of Evidence 615
Misc. Docket No. 16-001 and Misc. Docket No. 16-9012 2/29/16
The Court has officially adopted changes to Rules of Appellate Procedure 73.4 and 79.2 and Rule of Evidence 615. Changes were originally adopted December 7, 2015; the comment period has now closed with no revisions. Rule of Evidence 615 has been updated to reflect changes from the Michael Morton Act, Code of Criminal Procedure Article 39.14. Read.
The changes to Rule 615 clarify that prosecutors can obtain statements of defense witnesses for purposes of cross-examination.
Texas Courts of Appeals
Bible v. State (10th COA)
No. 10-15-00131-CR 3/3/16
Can an out-of-court statement by an accomplice serve as evidence against a defendant?
Yes. While an accomplice’s previous out-of-court statement cannot corroborate the accomplice’s in-court testimony if it was admitted during the trial, it has independent evidentiary value that the jury can use to connect the defendant to the crime. Read.
Remember that the statement in question might be excludable under other circumstances. In this case, the defense wanted it in for other purposes, and the State was able to benefit as well.
Bien v. State (11th COA)
Nos. 11-14-00057-CR & 11-14-00058-CR 3/3/16
Can a defendant be convicted of criminal solicitation to commit capital murder and criminal attempt–capital murder without violating double jeopardy?
No. The two offenses have different elements under the Blockburger test however, when looking at the Ervin factors, specifically the identical punishment ranges and the common gravamen of the offenses, double jeopardy prohibits punishing a defendant separately for each of these two offenses. The remedy is to affirm the conviction for the more serious offense; the sentences and degree of felony were the same for both offenses in this case, but because criminal solicitation to commit capital murder is a “3g” offense, the court affirmed this decision and vacated the conviction for criminal attempt. Read.
Key in this case seems to be that both indictments focused on the same act—hiring the hit man. Other facts might support both charges. Do not let your opponents overstate this case.
Herrera v. State (2nd COA)
No. 02-14-00431-CR 2/18/16
Was the defendant entitled to a hearing on his motion for new trial when there was confusion over whether the complainant actually wrote the victim impact statement found in the presentence investigation report?
Yes. The defendant’s ability to question the author of a victim impact statement is statutorily provided for; thus, questions of whether the complainant was the actual author of the statement, whether she may have wanted charges dropped, or that she did not want the defendant to go to prison are all factual matters that should have been developed at a hearing. Read.
Dissent (Walker, J.):
Judge Walker distinguished between proper victim impact statements generated under Code of Criminal Procedure Article 56.03, and general presentence investigations under CCP Article 42.12, §9(a). Because she believed this statement was not actually a victim impact statement, there is no right to cross-examine or question the author of the statement. She argued that the proper remedy in this case would have been for the defendant to object to the victim testimony in the PSI in an attempt to exclude it from the punishment phase of the trial. Read.
This case involves whether the trial court considered information in assessing punishment that might have been false. The dispute between the majority and dissent over that falsity seems a little off the mark. A cautious prosecutor who sees allegations like this might prefer to deal with it at the motion for new trial stage as opposed to a writ several years later.