Weekly Case Summaries: October 30, 2015

Texas Court of Criminal Appeals

State v. Swearingen

No. AP-77,043 & AP-77,044          10/28/15

Issue:

Is an order granting DNA testing under Code of Criminal Procedure Chapter 64 proper when it has been denied in a previous appeal in the same case?

Holding:

No. Chapter 64 motions are subject to the “law of the case” doctrine, which holds an appellate court’s previous ruling on the issue should be binding in a subsequent appeal. Because the defendant had previously asked for the same evidence to be tested and was denied, this request for DNA testing should have been denied. Regarding the new evidence the defendant wanted tested, he could not meet the requirement that an exculpatory test result would have likely resulted in a different outcome in the case. Read.

Concurring and Dissenting Opinion (Yeary, J.):

Judge Yeary concurred in part of the judgment, but in regards to the new evidence that the defendant had not asked for previously, he felt the Court should have allowed the testing. Judge Yeary contended that it is possible that if each of these items revealed exculpatory results, it may have resulted in a different outcome. Read.

Dissent (Alcala, J.):

Judge Alcala dissented because she believes if the three new items for which defendant requested DNA evidence all came back with exculpatory results, it would, by a preponderance of the evidence, show that the defendant would not have been convicted. Read.

Commentary:

You may recognize the defendant’s name because this case has been before the Court of Criminal Appeals (hence the application of the “law of the case” doctrine). All that you need to know is at the end of the court’s statement of facts, “The judge signed these orders without conducting any evidentiary hearing and a mere six months after we held that Chapter 64 [of the Code of Criminal Procedure] did not entitle Swearingen to DNA testing of most of the same pieces of evidence.” So as a matter of precedential value, this part of the decision may be of little value. The trial judge also issued a conditional ruling ordering the release of the evidence to be tested by the defendant, assuming that the Court of Criminal Appeals vacated the trial judge’s primary ruling (which it did). The court held that Chapter 64 did not give the trial judge the authority to issue such a ruling and that the State, therefore, could not challenge that particular ruling by way of a State’s appeal. The court made it clear, however, as it has held previously, that such a ruling outside the authority of Chapter 64 would be subject to a writ of mandamus.

Ex parte Fournier; Ex parte Dowden

No. WR-82,103-01            10/28/15

Issue:

Are the defendants, convicted under Penal Code §33.021(b), which was found unconstitutional in Ex Parte Lo, entitled to relief under an “actual innocence” theory?

Holding:

No. The “term ‘actual innocence’ shall apply, in Texas state cases, only in circumstances in which an accused did not, in fact, commit the charged offense or any of the lesser-included offenses.” While not entitled to a claim of actual innocent, these defendants were entitled to relief under Ex parte Lo and Ex parte ChanceRead.

Concurrence (Alcala, J.):

Judge Alcala agreed in the outcome of the case and noted in her concurrence that legal and factual innocence should be kept distinct due to the “benefits” that follow a declaration of actual innocence. Read.

Dissent (Yeary, J.):

Judge Yeary agreed that the defendants are not entitled to a claim of actual innocence but dissented with the majority because of his view that Lo should not be used to nullify convictions that were already final when it was decided. Read.

Commentary:

The court has been struggling mightily about how to arrive at an “actual innocence” ruling in cases in which a defendant has been convicted under an unconstitutional statute. This seems to be a compromise. But I would not expect that this is the court’s last word on the outer parameters of what constitutes “actual innocence” in Texas state court. The bottom line is that a majority of the court seems inclined to grant such defendants habeas corpus relief, but not to afford them status as those who are “actually innocent.”

Nowlin v. State

No. PD-0840-14                 10/28/15

Issue:

Was the evidence in this case enough to prove the defendant knew that she was hindering apprehension in a felony arrest?

Holding:

No. There was no evidence that the defendant knew her boyfriend was being arrested for a felony; thus, the hindering apprehension charge should not have been enhanced to a third-degree felony. The defendant was not acquitted, however—her case was remanded for sentencing as a misdemeanor. Read.

Commentary:

This case appears to be an anomaly because the federal felon-in-possession charge in this case was based upon a sealed indictment. The defendant could not have known what it was, unless the evidence specifically showed it. The case is instructive to make sure that prosecutors have proved all of the elements. Let’s hope we would not see a case like this again.

Ramsey v. State

No. PD-007-15   10/28/15

Issue:

Was the evidence in this case enough to show the defendant had the intent to defraud or harm another in a case for forgery?

Holding:

Yes. The Court held that the appellate court incorrectly applied the standard of review, and when considering the cumulative force of all the admitted evidence in the light most favorable to the conviction, a rational trier of fact could have found each element of the offense beyond a reasonable doubt. Read.

Dissent (Meyers, J.):

Judge Meyers agreed that there is evidence to show intend to harm or defraud, but he noted that the case was charged incorrectly, that the defendant defrauded the company itself and not the company’s owner as was charged. Read.

Commentary:

If you have a “conflicting inferences” case, this is the decision to read. As the court noted (and as it has noted on numerous occasions in the past), the issue in a sufficiency challenge is not whether a jury could have found the defendant “not guilty” because there was conflicting evidence, but whether ANY rational trier of fact could have found each element of the offense beyond a reasonable doubt. This should not be an issue before a criminal judge, but this concept is often foreign to civil judges, so if your judge has more of a civil background, show him this decision.

Owens, Jr. v. State

No. PD-0967-14                 10/28/15

Issue:

Did an appellate court err when it reversed and remanded a case based on the belief that the competency hearing prior to the trial was flawed?

Holding:

Yes. The proper remedy, even if the competency hearing was flawed and the defendant harmed by that flaw, is to abate the appeal and remand for further proceedings. Additionally, the Court found that the error in the original competency hearing was harmless. Read.

Dissent (Alcala, J.):

Judge Alcala would remand the case to the trial court for a retrospective competency hearing, if possible, instead of remanding to the court of appeals for consideration of an issue previously raised by the defendant on appeal. Read.

Commentary:

It seems hard to believe that the court of appeals reversed this case for an entirely new trial when the Court of Criminal Appeals has repeatedly made it clear that the appropriate remedy is abatement for a proper competency hearing or trial. The only basis for the defendant’s alleged incompetency in this case was his amnesia that allegedly resulted from a car crash that the defendant caused and that resulted in the felony murder charges against him. So any error in allowing a particular expert to testify at the competency hearing was clearly harmless.

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