5th Circuit Court of Appeals
No. 19-70014 2/8/21
Can a district court consider newly discovered evidence (a spreadsheet from the prosecutor’s office, specifying race and gender of venire panelists and bolding the names of African-American jurors) relevant to a capital murder defendant’s Batson claim?
No. Because the defendant had already litigated the issue of Batson claims in state court, he was not entitled to raise them in federal court, even though the spreadsheet was not disclosed to the defense until after the District Attorney’s discovery policies changed, post-trial. Under Cullen v. Pinholster, 563 U.S. 170 (2011), the spreadsheet does not fall under an exception for introducing new evidence in federal habeas court for claims litigated in state court. Read opinion.
This decision will be important and relevant only to those prosecutors who litigate post-conviction writs of habeas corpus, and specifically federal writs of habeas corpus. Don’t cite this decision in support of the idea that the State cannot or should not turn over any voir dire notes when requested to do so during a Batson hearing. The current state of the law in Texas requires a prosecutor to turn over those notes—if requested—if the prosecutor uses them to refresh his or her memory in support of any race-neutral explanations for peremptory challenges. Interestingly, the 5th Circuit did not view the spreadsheet in this case as necessarily indicative of an improper identification of African-American or Hispanic veniremembers. That is an conclusion that is on shaky ground, however, because, in Miller-El v. Dretke, the United States Supreme Court viewed similar notes to be indicative of discrimination on the part of prosecutors in exercising their peremptory challenges.
Texas Courts of Appeals
No. 10-19-00169-CR 2/17/21
Is evidence that a father left his 2-year-old daughter alone late at night for approximately 60 minutes in a Pack ’n Play crib so he could attend a party sufficient to convict for abandoning a child under Penal Code §22.041(b)?
No. Although officers who arrived at the house saw guns and alcohol located in the house, there was no testimony presented about the child’s access to the guns and alcohol. The child’s mother testified that the child was active and liked to climb on things; however, she was not asked whether the child could climb out of the Pack ’n Play. The evidence presented at trial “may be cause for a conviction for something else, but not for the offense of abandoning a child.” Read opinion.
The court of appeals cites no specific case law in support of its decision, and—admittedly—there is little case law dealing with the sufficiency of the evidence to support a conviction for abandoning a child. This decision may be in line with what little case law exists. The court of appeals does not identify the “something else” with which the defendant could have been charged. But it certainly seems as if the defendant could have been prosecuted under §46.13 of the Penal Code for leaving firearms so accessible to a child.
No. 03-19-00077-CR 2/10/21
Was a warrant to search the defendant’s phone valid when it was based on the defendant’s violation of the revenge-porn statute (Penal Code §21.16), which the defendant contended is unconstitutional?
Yes. “[W]e need not determine the constitutionality of section 21.16(c) because even if we were to conclude that it is unconstitutional, we would conclude that the good-faith exception to the exclusionary rule applies.” Read opinion.
There is—as yet—no definitive decision on the constitutionality of §21.16(c). It is possible that the result would have been different if the search warrant had been based entirely upon evidence under a statute that had already been declared to be unconstitutional on its face. An officer arguably might not be able to rely in good faith in support of a search warrant in those circumstances. Note that the defendant in this case was not ultimately charged under §21.16(c). He was charged with several counts of possession of child pornography.
No. 03-17-00734-CR 2/17/21
Is evidence that a defendant discharged a firearm in a crowded area that same as firing into or in the direction of a crowd for purposes of the murder statute?
Yes. Testimony that there was a large number of people standing shoulder to shoulder on the street is sufficient to show the defendant committed an act clearly dangerous to human life with an intent to cause serious bodily injury by shooting a firearm at a crowd of individuals. Evidence that several people in the area were struck by bullets also supports the jury’s finding that the defendant fired “into” or “in the direction of” the crowd. Read opinion.
Five people were shot. One was killed at the scene. Three were hospitalized. The court of appeals had no difficulty in finding that the defendant committed an act clearly dangerous to human life.
Texas Attorney General Opinion
What jurisdiction does a criminal district attorney have to prosecute federal officials who violate criminal provisions of the Election Code, and can any such prosecutions happen in absentia?
Determining whether a state prosecutor can pursue a case in any specific situation requires multiple factual determinations that are outside the scope of the opinion process. The OAG did not find, however, that the Sixth Amendment and Code of Criminal Procedure Art. 33.03 establish a right of an accused to be present in the courtroom through the conclusion of trial proceedings. Under Art. 33.03, an accused’s right to be present at trial may not be waived even by the accused until the jury has been selected. Read opinion.