Case Summaries

Each week, TDCAA staff members summarize the most important cases from Texas and federal criminal courts and provide insightful commentary on how those cases could impact the criminal justice system as well as a link to the opinions. Find a library of previous Weekly Case Summaries here.

Summaries

September 17, 2021

Texas Court of Criminal Appeals

State v. Lujan

Nos. PD-0244-19 & 0245-19                 9/15/21

Issue:

After being given Miranda warnings during her first and third recorded interrogations at the police station, were the defendant’s statements made in a second recording in a police car (without Miranda warnings and without her knowledge) admissible?

Holding:

No. The Court noted: (1) a difference in formality between the in-room and in-car interrogations, (2) an officer’s comment that “when we come back, we can continue if you like,” and (3) a shifting goal to find the body, which suspended the interrogation. Distinguishing the case from Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005), the Court upheld the trial court’s suppression of the in-car recording and agreed the defendant was misled about the nature of the in-car interview and did not knowingly waive her rights.  Read opinion.

Concurrence (Yeary, J.):

Art. 38.22 §2(a) mandates that “a warning be conveyed ‘during’ each separate recording that is made—regardless of whether it is a separate ‘statement’ or the continuation of an earlier-warned statement.” Therefore, the trial court had the discretion to rule the recording in the car was inadmissible after no statutory warnings were given. Read opinion.

Concurrence (Newell, J.):

Although there was no need to evaluate the Bible factors in this case because no warnings cannot be a “fully effective equivalent” warning, this case highlights the problems with Bible and whether it focuses on the voluntariness of the statements or whether a second statement is a continuation of the first. Read opinion.

Dissent (Keller, P.J.):

Bible is binding precedent, and this case should be resolved under Bible. However, the totality of the circumstances, including the short break between the interrogations, shows that the in-room recording and in-car recording were part of the same oral interrogation under Art. 38.22 and Miranda. Therefore, the Court should reverse the suppression order. Read opinion.

Commentary:

If you had read the lower court’s opinion and all the briefs in this case, you would never have expected the majority opinion that came from the court this week. Everyone assumed that Bible applied to this case—it was just a question of whether, under the Bible factors, the second statement was part of a second interview or merely a continuation of the first. But the court holds that Bible is inapplicable when the second statement is not itself “warned and waived.” This turns the Bible analysis on its head: If the interview was a continuation under Bible, then it was warned and waived.

You can view the majority’s opinion one of two ways, neither of which is explicit in the opinion. First, the majority may be saying that if a statement is involuntary under Art. 38.21, then the Art. 38.22, §3 recording requirements are irrelevant. But the majority never actually holds that the statement was involuntary in light of the trial court’s findings.

Second, the majority may be implicitly adopting Judge Yeary’s view that the recording requirements in Art. 38.22, §3 apply to each discrete recording—regardless of how many separate statements or interrogations there are. But again, the majority doesn’t actually hold this. Instead, the majority hedges and simply claims to distinguish Bible based on “the unique facts of this case.” In the meantime, prosecutors should probably advise detectives to re-Mirandize whenever they start a new recording. Just in case.

Ex parte Couch

No. PD-0349-21                         9/15/21

Issue:

Is Penal Code §34.02(a)(4) facially unconstitutional because it creates a “thought crime” under the First, Eighth, and 14th Amendments?

Holding:

Although the Court of Criminal Appeals did not address the issue, on its own motion, the Court vacated the judgment and remanded the case to the court of appeals to first address whether the claim was cognizable on a pretrial habeas writ. Read opinion.

Commentary:

There are two ways to commit an offense under §34.02(a)(4). First, a person “knowingly … finances or invests … funds that the person believes are intended to further the commission of criminal activity.” Second, a person “knowingly … intends to finance or invest funds that the person believes are intended to further the commission of criminal activity.” Missing from the plain language of the second is any act—thus, Couch argued, it’s a “thought crime.” The court of appeals tried to save the statute by holding that “intends to finance or invest” actually means engaging in “conduct indicating an intent to finance or invest.” It’s that strained reading that Couch challenged on PDR.

But this was a pretrial writ and cognizability matters. Couch was charged with violating the statute both ways. Even if the court were to strike down the second, that wouldn’t affect the first. The court of appeals shouldn’t have stepped into this mess without first deciding whether it actually had to. (And if the defendant’s name sounds familiar, it’s because she is the mother of the defendant who infamously argued that he suffered from “affluenza.” One wonders whether masks or vaccines would be effective against that.)

Villafranco v. State

No. PD-0488-20                         9/15/21

Issue:

Must a trial court hold an adversarial hearing on the admissibility of evidence of prior sexual abuse?

Holding:

Yes. By holding an in camera examination of the victim without the prosecutor or defense counsel present, the trial court did not follow proper procedure under Rule 412. Although the defendant did not object at trial, the Court of Criminal Appeals held that a Rule 412 adversarial hearing is a critical stage of trial, and the defendant’s right to counsel was not forfeited by inaction alone. The Court abated the appeal for an adversarial hearing. Read opinion.

Dissent (Keller, P.J.):

Regardless of whether a Rule 412 hearing is a critical stage of trial, the defendant in this case was not actually denied counsel at a critical stage. For there to be a denial of counsel at a critical stage of trial, it must be a complete denial. Before the in camera examination, defense counsel was able to ask the complainant questions about the prior sexual contact, and she answered. Therefore, there was no complete denial of counsel in this case. Read opinion.

Commentary:

Words matter. Rule 412 requires an in camera hearing, not an in camera examination. And the Court said in 2007 that a “hearing” should be adversarial. LaPointe v. State, 225 S.W.3d 513, 518 (Tex. Crim. App. 2007). This case is a faithful application of LaPointe, which also held that the remedy for a Rule 412 violation is abatement for an adversarial hearing. What this case adds to the mix is preservation: The right to counsel at a Rule 412 hearing is a right that cannot be forfeited by inaction nor waived simply by counsel’s “agreement” with the court’s proposed procedure.

Ex parte Cook

No. WR-91,503-01                     9/15/21

Issue:

When a defendant commits DWI with two children in the car, has he committed one offense or two under Penal Code §49.045?

Holding:

One offense. The unit of prosecution for DWI with child passenger is each driving incident, rather than the number of children in the car at the time. Read opinion.

Commentary:

The Court is unanimous; the opinion short. As the Court points out, two courts of appeals have already held this. Beyond the straightforward holding, Presiding Judge Keller’s opinion is a helpful reminder that “circumstance” elements will usually affect the gravamen of the offense only when they make otherwise innocent conduct criminal. If the circumstances simply “aggravate otherwise criminal conduct,” look to that conduct to determine the unit of prosecution.

Simms v. State

No. PD-1248-19                         9/15/21

Issue:

Was a defendant charged with aggravated assault entitled to a lesser-included instruction on deadly conduct if he acknowledged speeding before causing a fatal head-on car crash but testified that he dozed off or passed out, which caused him to veer into oncoming traffic?

Holding:

Yes. The defendant’s testimony amounted to some evidence that would have allowed a jury to conclude that the defendant’s involuntary loss of consciousness—rather than his reckless speeding—was the cause of the crash. Read opinion.

Dissent (Yeary, J., Keller, P.J., Keel, and McClure, JJ. joining):

“[I]t is not the collision that is alleged to have been ultimately caused by Appellant. Instead, the indictment alleges, among other things, that Appellant’s ‘FAILING TO CONTROL SPEED’ is what caused serious bodily injury to [the victim]. Common life experience demonstrates that not all automobile collisions necessarily result in injury. This one did, and in fact, the evidence showed it resulted in serious bodily injury—the worst kind, death—to [the victim].” Read opinion.

Commentary:

The defendant’s claim—that his voluntary act was only speeding and therefore only deadly conduct—is ludicrous. Even if he fell asleep while speeding, he voluntarily sped, and so he should be responsible for the resulting collision under the transferred intent provisions of PC §6.04(b). But this isn’t a sufficiency case; it’s a jury-charge case. The defendant’s claim may be ludicrous, but even ludicrous claims should be submitted to the jury if there is any evidence to support them. And here (setting aside §6.04(b)), there was at least some evidence that the defendant wasn’t reckless as to the result of causing serious bodily injury.

The dissent’s argument, while appealing, misses the reason why deadly conduct is a lesser-included offense of aggravated assault in the first place. It’s true the reckless mental state for aggravated assault is result-oriented, while the reckless mental state for deadly conduct is not, but causing serious bodily injury necessarily involves placing the victim in imminent danger of serious bodily injury. In this specific context, then, you can’t simply look at the final result when deciding whether a deadly-conduct instruction is warranted.

Rodriguez v. State

No. PD-1130-19                         9/15/21

Issue:

What actions and admissions by a defendant are relevant in deciding whether the defendant satisfied the requirements of confession and avoidance, and was he entitled to jury instructions on defenses of necessity, self-defense, and defense of a third person?

Holding:

All the facts surrounding a defendant’s charged conduct may be relevant in deciding whether he has raised a defensive issue. Confession and avoidance is a judicially imposed requirement that necessitates those who argue a justification defense to admit—or at a minimum, not deny—the charged conduct. The Court reconciled its seemingly inconsistent holdings in Martinez v. State, 775 S.W.2d 645 (Tex. Crim. App. 1989), and Juarez v. State, 308 S.W.3d 398, 401–02 (Tex. Crim. App. 2010), to hold that a defendant’s testimony explicitly denying a culpable mental state or asserting accident does not automatically foreclose a justification defense if his testimony may otherwise imply a culpable mental state. The Court concluded that the defendant in this case “satisfied confession and avoidance notwithstanding his assertion that he unintentionally fired the gun because his testimony impliedly supported the charged conduct.” Read opinion.

Commentary:

Jury-charge issues are reviewed differently from evidence sufficiency. For jury charge issues, the court looks at the evidence “in the light most favorable to the requested instruction.” Unless there is really and truly no evidence to support a defensive instruction, the trial court should err on the side of caution and give it.

Texas Attorney General Opinion

KP-0385                          9/13/21

Issue:

Does a district attorney have the authority to represent the State in litigation over an emergency protective order under Code of Criminal Procedure Art. 17.292 issued by a municipal judge sitting as a magistrate?

Conclusion:

Code of Criminal Procedure Art. 17.292 permits, but does not require, the district attorney to represent the State before a municipal court judge who is acting as a magistrate and hearing a motion to vacate and suspend an emergency protective order issued under Art. 17.292. Read opinion.

Commentary:

District attorneys and criminal district attorneys don’t usually go to municipal court; that’s for city attorneys. But when the municipal court is acting as a magistrate, things get murky because the district attorney may have a duty to represent the State on those matters. This opinion tries to clear the murk with respect to Art. 17.292 protective orders in municipal court, which the district attorney did not believe he had either the duty or authority to handle. The opinion concludes that he has no duty, but he does have the authority to participate in these proceedings.

Texas Attorney General Opinion Request

RQ-0432-KP                   9/15/21

Issue:

Is an executive order enforceable as a “law” under §1.07(a)(30) of the Penal Code?

Requested By:

Dee Hobbs, Williamson County Attorney

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to Stephanie Huser.