Weekly Case Summaries: November 1, 2013

Court of Criminal Appeals

Ex parte Holloway

No. WR-78,955-01        10/30/13

Issue:

Was the defendant entitled to a new trial on the basis of “actual innocence” because post-conviction DNA testing excluded the victim as a contributor of DNA on the alleged murder weapon?

Holding:

No. Multiple witnesses testified they saw the defendant stab the victim, and there is evidence the defendant cleaned the knife after the incident, which may have removed the victim’s DNA. The DNA results do not show by clear and convincing evidence that no reasonable juror could have convicted the defendant. Read opinion

Commentary:

The CCA holds the line on actual innocence. Consistent with prior precedent, an actual innocence claim is generally going to fail where all the defense manages is knocking out a piece of the State’s evidence post-conviction. The absence of the victim’s DNA on the knife did not establish that someone else committed the offense, especially in light of the remaining evidence.

Turner v. State

No. AP-76,580        10/30/13

Issue:

Should the trial court have granted the defendant’s request for a formal competency trial under CCP art. 46B.005?

Holding:

Yes. The defense presented evidence that the defendant had a debilitating mental illness and refused to cooperate with his counsel. Because there was also evidence of a link between that illness and his refusal to cooperate, the trial court should have conducted a formal competency inquiry. Read opinion

Dissent (Keller, P.J.):

Refusal to cooperate with counsel does not make the defendant incompetent to stand trial. Expert evaluations, statements by the defendant’s attorneys, and the appellant’s own testimony all indicate he had the ability to consult with his attorneys with a reasonable degree of rational understanding. Read dissent

Commentary:

It is often the case that there is some evidence of mental illness, the defendant is found competent by mental health professionals, but the defendant continues to misbehave. This opinion should put trial judges, prosecutors, and defense counsel on notice that a defendant may require multiple evaluations during the pendency of a criminal case. Just because a defendant may be competent at one point does not mean their condition will not deteriorate.

Druery v. State

No. AP-76,833        10/30/13

Issue:

Did the defendant make a substantial showing of incompetency to be executed under CCP art. 46.05?

Holding:

Yes. The threshold inquiry requires the defendant to provide more than “some evidence” but less than a “preponderance of the evidence” of incompetency. The initial inquiry is non-adversarial, so the trial court should not have considered competing evidence of competency. Because the defendant met his initial burden, the court should have ordered further proceedings under Art. 46.05. Read opinion

Commentary:

A fairly straight-forward discussion of how Article 46.05 operates. If you have an upcoming execution, you need to read this opinion, because there will be more incompetent to execute claims after Staley, Nos. AP–76,798, AP–76,868 (Tex. Crim. App. Sept. 11, 2013).

Wortham v. State

No. PD-0765-12        10/30/13

Issue:

Was the defendant entitled to instructions on the lesser-included offenses of reckless and criminally negligent injury to a child at his trial for intentional or knowing injury to a child by shaking?   

Holding:

Yes. The defendant presented more than a scintilla of evidence supporting the lesser-included instructions because he testified that he shook the child in an effort to revive her after she suffocated under a plastic bag. If believed, this evidence could have negated an element of the offense as charged by the State, and the defendant was entitled to the instruction.  Read opinion

Concurrence (Keller, P.J.):

Injury to a child is a result of conduct offense. Because the conduct alleged by the State and the conduct admitted by the defendant caused the same result (when viewing the evidence in the light most favorable to the defendant), they constitute the same offense. Read concurrence

Ex parte Lo

No. PD-1560-12        10/30/13

Issue:

Is PC §33.021(b) (online solicitation of a minor by sexually explicit communication) facially unconstitutional?

Holding:

Yes. The statute is a content-based restriction on speech, so the court must apply strict scrutiny. Although the State has a compelling interest in protecting children from sexual predators, the statute is not narrowly drawn to achieve that goal because it regulates only the explicit speech itself, not harmful conduct designed to induce a minor to commit an illegal sex act. Read opinion

Commentary:

Sex offenders get some love from the CCA. We seldom see the Court striking down statutes as facially unconstitutional. As she often does, Judge Cochran give us an opinion that is informative, educational, and funny. She discussed both Miley Cyrus and Fifty Shades of Grey. Yet I wonder, is this statute really about content, or is it something else? The Court says there was no legislative history regarding grooming, but actually there was: “Usually individuals go through a series of ‘grooming’ step s when soliciting sex with a child through the Internet. This process begins with befriending a child online, developing trust, then engaging in sexually explicit conversation, and finally meeting with the child.” House Research Organization, Bill Analysis at 3, Tex. H.B. 2228, 79th Leg., R.S. (2005). This method of prosecuting online solicitation has been widely used in some Texas counties.

Werner v. State

Nos. PD-0326-13 & 0327-13        10/30/13

Issue:

Was the defendant harmed by the trial court’s erroneous refusal to sever two consolidated stalking offenses?

Holding:

No. Although the defendant was entitled to severance under PC §3.04(c), he was not harmed because there was a substantial overlap of the evidence supporting both stalking charges. There was overwhelming evidence of guilt of the first stalking offense, and most of that evidence would have also been admissible at a trial for the second offense. Read opinion

Commentary:

This one will make some people at the other table howl. The right response in this situation is to say: “Your honor, the defendant is entitled to the severance. But the State will request that you stack the sentence on the other case after we successfully prosecute both of these cases.” Often, that is enough to make the other side back down. As prosecutors, we should not act (or encourage courts to act) in a way we know is wrong just because we expect it to be harmless. 

State v. Esparza

No. PD-1873-11       10/30/13

Issue:

Did the State’s failure to establish the scientific reliability of a breath test result under TRE 702 during a pre-trial suppression hearing qualify as a “theory of law applicable to the case” to justify an otherwise erroneous ruling suppressing that evidence when the defendant never raised that admissibility issue in his motion or at the suppression hearing?

Holding:

No. Although a reviewing court may typically uphold a trial court’s suppression ruling if it is correct on any “theory of law applicable to the case,” whether specifically raised or not, this rule should not be applied if it works a manifest injustice to the losing party. Because the State had no notice that the defendant was objecting to the breath test’s admissibility under TRE 702, this theory is not available as a justification for the trial court’s decision to suppress. Read opinion

Concurrence (Keller, P.J.):

The rule allowing a trial court’s decision to be upheld on any “theory of law” should not apply in appeals from suppression rulings because these are not final rulings by the trial court on all possible reasons for admitting or excluding the evidence. Additional reasons for admission or exclusion may arise at trial. Read concurrence

Concurrence (Hervey, J.):

The majority opinion incorrectly implies that a trial court may not sua sponte inquire into the admissibility of scientific evidence under TRE 702. Read concurrence

Dissent (Meyers, J.):

The defendant raised the lawfulness of his detention and the breath test evidence in his motion to suppress, and he was not required to specifically cite the rules of evidence. The burden was on the State to show admissibility under TRE 702, and they provided no evidence at the hearing. The court did not abuse its discretion by suppressing the evidence. Read dissent

Commentary:

As prosecutors, we are the appellee most of the time. The majority opinion concerns me because it might represent a crack in the “right for any reason” rule we often rely upon. Presiding Judge Keller’s concurrence makes a lot of sense to me, but perhaps it was deemed to prosecutor-friendly to command a majority.

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