Texas Court of Criminal Appeals
Cuevas v. State
No. PD-0144-25 4/2/26
Issue:
Did an erroneous inclusion of a presumption on self-defense harm the defendant and require reversal?
Holding:
Yes. If the presumption of reasonableness in self-defense is “conflated with the ability to act in self-defense at all, that misconstruction could be devastating to a defendant’s self-defense claim.” The Court concluded that the State made misstatements of the law on self-defense, and the trial judge should not have overruled defense objections to these misstatements. While the “instruction did not incorrectly recite the abstract law relating to the presumption, the state consistently told the jury that the instruction meant that [the defendant] had no defense. As a result, [the defendant] was virtually stripped of his defensive theory. We conclude that he suffered at least ‘some harm.’” Read opinion.
Concurrence (McClure, J., joined by Walker, J.):
“The majority assumed error because the court below found error, and because the State did not file a petition from that adverse determination. I write separately to discuss my belief that the prosecutor’s misstatements regarding self-defense were so erroneous as to be the deciding factor in the Court’s determination that error in the jury charge caused some harm” to the defendant. Read concurrence.
Dissent (Yeary, J., joined by Finley, J. and Schenck, P.J., joining only Part VI):
“This is not an ordinary error-in-the-jury-charge case. In fact, in my view, there was likely no error at all in the court’s charge to the jury. The way I see things, in its zeal to repair another injustice done to the defendant in this case—namely, misrepresentations by the prosecutor about a proper understanding of the law, compounded by the trial court’s refusal to correct those misrepresentations—the Court finds a non-erroneous jury instruction to have been so harmful that it justifies reversing and remanding this case for a whole new trial. I believe the Court is making [a] mistake.” Read dissent.
Commentary:
Judge Parker’s majority opinion focuses a great deal on the trial prosecutor’s voir dire and closing argument, but this is not a case in which the trial prosecutor’s voir dire and closing was actually an issue before the Court. The issue was whether there was error in the jury charge and, if so, whether that error harmed the defendant. In that respect, the majority stated—as the court of appeals held—that when the evidence conclusively establishes the defendant was engaged in criminal activity at the time he used deadly force (as was the case in this fact situation), the presumption of reasonableness is not the law applicable to the case. Therefore, even though the presumption is a defense-friendly instruction, the trial court should not charge the jury on that presumption if the evidence conclusively establishes one of the elements showing that the presumption should not apply—in this case, that the defendant was engaged in criminal activity at the time he used deadly force.
The majority asserted this holding on the bottom of page 19 and the top of page 20. The majority also noted that the Court only assumed there was error in the jury charge because the parties did not challenge that holding by the court of appeals. The actual holding by the majority opinion is that the defendant was harmed. In finding harm, the majority focused upon statements by the State in voir dire and in closing argument, suggesting that a defendant could not act in self-defense if he was already engaged in criminal activity at the time that he used deadly force. The important things to take from this case are: (1) prosecutors should not suggest that as a matter of law, a defendant cannot use deadly force in self-defense if he was engaged in criminal activity at the time, and (2) judges should not instruct a jury on the presumption of the reasonableness of the defendant’s use of deadly force if the evidence conclusively establishes that the defendant was engaged in criminal activity at the time he acted in self-defense.
Moten v. State
No. PD-0932-25 4/2/26
Issue:
Should State v. Heath, 696 S.W.3d 677 (Tex. Crim. App. 2024) be overruled with “the state” in the discovery statute interpreted to mean the prosecutor’s office, and “the prosecution” interpreted to mean those that participate in the investigation or prosecution of the offense?
Determination:
The Court granted the State’s petition for discretionary review as to these two issues. Read the State Prosecuting Attorney’s PDR and the amici curiae brief.
Commentary:
Heath gave a rather broad definition of what constituted “the state,” for the purposes of Code of Criminal Procedure Art. 39.14, and the Heath court also held that a trial judge had the discretion to exclude evidence that was not timely turned over to the defense. In this case, the court of appeals held that the trial judge had no discretion other than to exclude evidence that was not timely disclosed, thereby taking Heath one step further regarding a trial judge’s discretion. The State Prosecuting Attorney (and the amici) asks the Court of Criminal Appeals to overrule Heath. With this grant of the State’s petition for discretionary review, that issue is now squarely before the Court. The Court’s grant of PDR is limited to the first two issues raised by the State Prosecuting Attorney—focusing upon the definition of the “state,” for purposes of Art. 39.14.
Texas Courts of Appeals
Skorich and Woody v. State
Nos. 07-25-00001-CR and -00002-CR 3/30/26
Issue:
Does the state of Texas have territorial jurisdiction if injuries to a child were committed in another state but the child’s condition deteriorated while in Texas?
Holding:
Yes. Under Penal Code §1.04, a Texas court has jurisdiction over an offense when either the conduct or a result that is an element of the offense occurs in Texas. Injury to a child is a result-oriented offense, and Penal Code §22.04(a) defines the offense as occurring when a person, by act or omission, causes a child bodily injury. “The consequences of a defendant’s conduct (i.e., the injury) is therefore an element of the offense.” Read opinion.
Commentary:
It seems clear that the defendants (cross-country truck drivers) in this case engaged in abusive conduct related to the 7-year-old victim and did not seek the necessary care for the victim within the state of Texas. But even if that were not clear, the court’s reliance upon §1.04 ensures that these convictions were proper in Texas. This decision also shows how the venue for these offenses was proper in Deaf Smith County. This court also determined that the defendant/boyfriend, who was not an official step-parent, by his actions had assumed a duty of care to the victim so as to make him criminally liable for his omissions to care for the victim. This decision will be helpful to child abuse prosecutors in several respects. April is Child Abuse Prevention Month, and this decision (and its horrific underlying facts) underscore why it is so important for prosecutors, law enforcement, advocates to protect the most vulnerable among us.
Howard v. State
Nos. 14-24-00283-CR–-00285-CR 3/31/26
Issue:
Did a judge display judicial vindictiveness in sentencing when he suggested a punishment range to guide the State and defense’s plea negotiations?
Holding:
No. The trial court stated on the record sufficient, objective, and non-vindictive reasons, after the jury found the defendant guilty, to justify its decision to assess a higher punishment than the court would have accepted in exchange for a guilty plea. “Although the entirety of this record does not demonstrate that the trial court acted vindictively, we do not endorse the manner in which this sentencing proceeding unfolded. The trial court’s actions here showed a lack of care creating an appearance of judicial involvement in the parties’ negotiations that courts should strive to avoid.” Read opinion.
Commentary:
The defendant did not raise a vindictiveness claim at trial, and he was sentenced in accordance with an agreement with the State. In an abundance of caution, the court addressed the defendant’s claim on the merits. The court of appeals noted that the trial judge should not have suggested a punishment range to guide the parties’ negotiations. But the trial judge’s other comments made it clear that she was still open to the full range of punishment. This decision is an important reminder for judges and prosecutors to avoid creating a claim of judicial bias or the absence of impartiality.
Pham v. State
No. 14-25-00295-CR 3/31/26
Issue:
Does a jury have the power to change or “correct” its verdict from a conviction on a lesser offense to a conviction on a greater offense after the jury has already confirmed its verdict on a lesser offense through polling, and after the punishment phase of the trial is already underway?
Holding:
No. Once the judge polled the jury and all of the jurors indicated they agreed, their verdict became final. “Because [the defendant’s] jeopardy on the greater offense had ended after the jury was polled on the lesser offense, we conclude that a jeopardy violation occurred when the trial court permitted the jury to change its verdict from the lesser offense to the greater offense after the punishment phase of trial had commenced.” Read opinion.
Commentary:
The jurors in this case stated that they found the defendant guilty of the lesser offense and then affirmed that verdict when they were individually polled. However, the jurors also conveyed to the trial court that they had intended to find the defendant guilty of the greater offense. They collectively affirmed to the trial court that this was their intent, and the trial judge accepted that guilty verdict as to the greater offense. The verdict forms are reproduced on page 6 of the court’s opinion, which appear to bear out that the jurors found the defendant guilty of the greater offense and crossed out a finding of guilty as to the lesser offense. But in the absence of an objection, it not clear how or in what order these verdict forms were created.
Rather than treat this as an informal verdict situation, the court of appeals found this to be a double jeopardy violation. What happened in this case is certainly irregular. But the defendant’s double jeopardy claim was raised for the first time on appeal. In fact, no objection at all was raised during trial. The court of appeals got around that fact by relying upon case law, which states that a double jeopardy claim can be raised for the first time on appeal if the undisputed facts show that the double jeopardy violation was clearly apparent on the face of the record. This is a very unusual fact situation and perhaps will never be repeated. The opinion by the court of appeals is extremely thorough, both in presenting the facts and case law, so perhaps it will hold up on review by the Court of Criminal Appeals. This decision appears to conflict with a decision from the Dallas Court of Appeals, so further review by the Court of Criminal Appeals would be helpful.