Texas Supreme Court

In re Peters

No. 23-0611                      10/4/24

Issue:

In a civil case arising out of an intoxication assault, can the civil trial court order a defendant to identify the bars that had served him alcohol as part of discovery, overriding the defendant’s assertion of the Fifth Amendment privilege against self-incrimination?

Holding:

No. Distinguishing this case from Rogers v. United States, 340 U.S. 367 (1951), the Court ruled that even though the defendant had given some details of how much he drank (three beers) and that he had consumed those beers at bars, he was not required to give further details. While in Rogers, disclosure would have increased the likelihood of another person being prosecuted, “here, by contrast, [the defendant]’s discovery responses could further incriminate him by leading to evidence that [the defendant] drank more than the three beers he claimed.” Read opinion.

Commentary:

In reaching this decision, the court relied upon its prior decisions regarding the application of the Fifth Amendment privilege in civil cases. The plaintiffs relied upon the Rogers decision in support of defeating the defendant’s Fifth Amendment argument, claiming that the defendant had previously waived the privilege on the subject matter at issue. At least part of the court’s decision seems to turn on the holding that the defendant’s previous waiver of his Fifth Amendment privilege was not voluntary—because the defendant was confused, disoriented, and intoxicated. It is not clear whether such factors would lead to a finding of involuntariness in a Texas criminal case. Therefore, prosecutors should not read too much into this decision or try to apply it in the criminal context.

Court of Criminal Appeals

Villarreal v. State

No. PD-0048-20                10/9/24

Issue:

Was the defendant’s Sixth Amendment right to counsel violated when the trial judge recessed for the day while the defendant was testifying and ordered that the defense counsel could confer with the defendant on everything except his ongoing testimony?

Holding:

No. The Court looked at U.S. Supreme Court precedent to establish that while the length of the recess is an important variable, “the type of communication being restricted is the true controlling factor.” The trial judge’s instructions were narrowly tailored to protect the defendant’s right to counsel while achieving “the truth-seeking function within our adversarial system.” The Court also distinguished discussing or conferring about the ongoing testimony from “taking consideration of” the ongoing testimony. “The former disrupts the truth-seeking function of trial; the latter allows counsel to constitutionally advise his client during the overnight recess.” Read opinion.

Concurrence (Yeary, J.):

“Either the Sixth Amendment requires that a defendant be allowed to consult with his attorney during breaks of any duration, and about any topic, during his testimony; or else basic fairness requires that any consultation with counsel, about any topic, should be categorically banned throughout the course of his testimony, however long that may go on. After all, the defendant having opted to testify in his own behalf, ‘the rules that generally apply to other witnesses—rules that serve the truth-seeking function of the trial—are generally applicable to him as well.’” Read concurrence.

Concurrence (Keel, J., joined by McClure, J.):

“The majority’s failure to recognize these simple, clear rules may encourage trial courts to enter orders that force attorneys to choose between effective and candid consultation about the case on trial, on the one hand, and censored consultation, on the other. In the majority’s example, the attorney in an overnight recess who wants to advise his badly testifying client to change course and plead guilty could not detail how and why his testimony was so faulty that his advice had changed. The attorney would have to choose between giving his advice effectively by explaining its rationale—and violating the court’s order—or giving the advice without explanation and forcing his client into an uninformed choice. The conflict would undermine the Sixth Amendment right to assistance of counsel.” Read concurrence.

Dissent (Walker, J.):

“The court of appeals and this Court draw the wrong lesson from Perry. Perry took pains to emphasize the difference between a fifteen-minute break and an overnight recess during the defendant’s testimony. The Supreme Court made it clear that a trial court could not prohibit discussions overnight, even though those discussions would inevitably include the defendant’s ongoing testimony. … The trial court’s order effectually prohibited [the defendant] and his defense attorney from conferring for twenty-four hours, violating [the defendant]’s right to counsel guaranteed by the Sixth Amendment under Geders. And a violation of the Sixth Amendment right to counsel under Geders is structural error immune to harm analysis.” Read dissent.

Commentary:

In reaching its holding, the majority relied upon decisions from other state supreme courts and rejected opinions from federal appellate courts. There are two decisions from the United States Supreme Court on the matter, but neither are binding on the specific question in this case—whether, during an overnight recess, a trial judge can prevent defense counsel from talking with the defendant about his ongoing testimony. Prosecutors should be very careful in recommending this decision to trial judges faced with similar circumstances. Regardless of the staying power of this divided holding, there are also ethical rules ensuring that a represented defendant be able to maintain continued communication with his counsel. As a purely legal exercise, this is a very interesting decision that could be reviewed by the United States Supreme Court. In the meantime, the unique facts of this case should not provide guidelines for prosecutors on how to treat testifying defendants during an overnight recess.

Ex parte Aparicio

No. PD-0461-23                10/9/24

Issue:

In a pretrial habeas proceeding, did the defendant meet the burden in showing a prima facie case of selective enforcement or prosecution when, as part of Operation Lone Star, men were charged with criminal trespass while women were not?

Holding:

No. The Court first recognized that the defendant’s claim is cognizable on pretrial habeas. “In order to succeed in a claim of selective enforcement or prosecution, the defendant must prove with ‘exceptionally clear evidence’ that: 1) The prosecutorial policy had a discriminatory effect; and 2) it was motivated by a discriminatory purpose.” But the Court concluded that the defendant failed to meet his burden of showing he was arrested and prosecuted because of his gender. “We recognize and are concerned by at least the appearance of a discriminatory impact in the subjects of this case and others in the five-county area. Nevertheless, [the defendant]’s evidence fails to meet the ‘demanding’ standard required for judicial interference in the State’s discretion in administering criminal justice policy and priorities.” Read opinion.

Dissent (Keller, P.J., joined by Keel, J.):

“[W]hile selective-prosecution claims are not ordinarily cognizable, the extraordinary nature of the facts before us would make Appellant’s claim cognizable if it were in fact a selective prosecution claim. But I believe that his claim is not in fact cognizable because it is not a selective prosecution claim but is a selective-enforcement claim, for which dismissal of the case is not a valid remedy.” Read dissent.

Dissent (Yeary, J.):

“[T]he actual claim that [the defendant] is making is a non-cognizable selective enforcement claim; it should be dismissed, not denied on the merits.” Read dissent.

Dissent (Keel, J.):

“The majority tries to justify DPS’s arrest policy by citing additional evidence of discrimination. The majority points out that Operation Lone Star’s processing centers could house only men, but this shows the enterprise was discriminatory from the start—it does not justify the discrimination. The majority also points out that some males were exempt from arrest for trespass; minors, old men, injured men, and men belonging to a family group were not charged. But those exemptions are irrelevant to deciding whether Appellant was charged, at least in part, because he was male. The fact that he was further discriminated against based on, for example, his age, marital status, or health would not rebut the fact that he was charged because he was a man. Discrimination is not justified by more discrimination” (internal citations omitted). Read dissent.

Commentary:

The majority divided this case into two separate questions: (1) whether a defendant could raise this type of claim in an application for a pretrial writ of habeas corpus in the first place (cognizability), and (2) whether the defendant had established a prima facie case of gender discrimination that would allow his case to go forward. Both of these issues are threshold issues that do not ultimately reach the merits of the defendant’s claims. It is not at all clear that a defendant could read the discussion starting on page 26 of the majority’s opinion and arrive at a roadmap as to how to develop enough evidence to establish a prima facie case. The majority focused a great deal on the apparent motivation of law enforcement and prosecutors to respond to an emergency situation, rather than prosecuting the defendant because he is a man.

Ex parte Roark

No. WR-56,380-03                          10/9/24

Issue:

In a shaken baby syndrome (SBS) postconviction writ, is the defendant entitled to a new trial under CCP Art. 11.073 with the advancement of knowledge regarding SBS and its application to the defendant’s case?

Holding:

Yes. Code of Criminal Procedure Art. 11.073 permits an applicant to obtain postconviction relief based on a change in science relied on by the State at trial if certain requirements are met. The Court reviewed new scientific research regarding SBS and the prior hearings concerning the defendant’s multiple appellate hearings. “After independently reviewing the record, we conclude that Article 11.073 applies and [the defendant] has met his burden for relief. We find that scientific knowledge has evolved regarding SBS and its application in [the defendant]’s case. Additionally, we find that given further study, the experts would have given a different opinion on several issues at a trial today—some already have. The admissible scientific testimony at trial today would likely yield an acquittal.” Read opinion.

Dissent (Keller, P.J., joined by Yeary and Keel, JJ.):

“Even with the new evidence, the jury would have been confronted with the fact that the child went from appearing normal to being near death within just a few hours during which time [the defendant] was the sole caregiver. The presence of extensive, fresh bruises [the victim]’s genital area—bruises that were inflicted after the doctor’s appointment earlier that day and during a time that only [the defendant] was present—is, in my opinion, evidence that would lead a jury to believe that [the defendant] was responsible not only for the bruises, but [also] for the injury to [the victim]’s brain. In light of all the evidence, both new and at trial, I would hold that [the defendant] has failed to meet his burden to show by a preponderance of the evidence that a jury would not have convicted him.” Read dissent.

Commentary:

The fundamental dispute in this case—resolved on page 55 of the majority’s 57-page opinion—appears to be whether the defendant would have been convicted if the jury had been given the updated nature of the expertise regarding the child/victim’s injuries. As apparently acknowledged by most, the expertise regarding these types of injuries has changed, so it is unlikely that—today—a child abuse prosecutor would be aided by reading this lengthy decision. This decision still would be of most interest to post-conviction prosecutors. Those post-conviction prosecutors—faced with a similar factual and procedural background as in this case—could expect a similar result.

Texas Courts of Appeals

Llanas v. State

No. 03-22-00745-CR                       10/3/24

Issue:

Can a defendant appeal a court’s ruling on a motion to suppress when the motion was filed after the court accepted his guilty plea?

Holding:

No. A trial begins under Rule 25.2(a)(2)(A) when jeopardy attaches. Once a trial court accepts a defendant’s negotiated guilty plea, “the defendant has a vested interest in the finality of the proceeding,” “the issue is joined such that the defendant has been ‘put to trial before the trier of fact,’ and both he and the State are ‘bound by his plea.’” Read opinion.

Commentary:

The court in this case essentially holds that a trial begins, and jeopardy attaches, in a plea bargain situation when the trial judge accepts the defendant’s guilty plea. In the vast majority of situations, a defendant will have raised a legal issue like a motion to suppress well before pleading guilty, so this decision will have little application. Appellate prosecutors will want to keep watch over this decision to see if the Court of Criminal Appeals wishes to resolve the interesting—at least to appellate lawyers—issue.

Poor v. State

No. 11-22-00221-CR                       10/3/24

Issue:

Does a child victim’s inability to legally consent to sexual conduct render the child incapable of factually committing the act of prostitution under Penal Code §43.05?

Holding:

“No. Of course not.” On rehearing, the Court again affirmed the defendant’s conviction and concluded that §43.05 should not be read so literally as to require proof that the child victim had the requisite culpable mental state—knowingly—under the prostitution statute. “We cannot invade the province of the legislature by holding that sexual offenders who compel prostitution of children under fourteen may escape prosecution under the statute.” Read opinion.

Commentary:

This decision now stands in happy contrast with the decision of the Court of Criminal Appeals in Turley, in which the court held that the victim in that case did not commit prostitution because law enforcement intervened. In reaching its holding, the court of appeals in this case expressly rejected the holding of the Fourteenth Court of Appeals in Turley, which was then reversed on other grounds by the Court of Criminal Appeals. Prosecutors of compelling prostitution cases—involving young children—should definitely rely upon this decision. But prosecutors should almost certainly expect the Court of Criminal Appeals to review this decision. What the CCA will do with this decision, as well as Turley, is anybody’s guess. In the meantime, great job by the State in arguing this case.

Announcements:

TEC Emergency Rule Adopted: Prosecutor Referrals

On September 24, 2024, the Texas Ethics Commission (TEC) adopted an emergency rule to address the Court of Criminal Appeals’ recent decision in Ex Parte Charette, No. PD-0522-01 (Tex. Crim. App. Sept. 11, 2024). The text of Emergency Rule 1 TAC 13.1 can be found on the TEC website and TDCAA’s summary of the Charette decision can be found here.

Webinar On Expert Witnesses In Sex Assault Trials

The Office of the Governor’s Sexual Assault Survivors’ Task Force invites you to the October installment of its Quarterly Webinar Series. On Thursday, October 17, 2024, Margaret Bassett, LPC-S, Director Applied Research & Innovative Instruction at the University of Texas at Austin’s Institute on Domestic Violence & Sexual Assault (IDVSA) will present Fact or Expert: An Introduction to the Ethical Role and Use of Expert Witnesses.

Join for an informative training where participants will gain knowledge about who can be an expert witness and skills needed to professionally and ethically use or serve as an expert witness; benchmarks for establishing “expertise” before serving as or employing expert witnesses; and ethical, personal, and professional benefits of serving as, or utilizing, experts for case consultation and at trial. Registration information for this online event can be found here.