Courts of Appeals
No. 11-19-00227-CR 7/22/21
Did requiring a defendant to object to five of the 12 ultimate jury members in open court and within the hearing of those jurors amount to an abuse of discretion?
No. Under the facts of this case and the lack of persuasive authority, the Court held there was no abuse of discretion because the potential harm was “self-inflicted” when the defendant objected to the venirepersons after they had been seated. However, the Court advised the better practice is for trial courts to refrain from requiring objections to be made in the presence of venirepersons.
The Court tries as hard as it can to tell trial courts to hear challenges for cause outside the presence of the jury. But moving the venire in and out of a courtroom is a huge logistical challenge and takes time. The Court does not discuss whether the bench conferences were actually audible to the venire, nor does it discuss the trial court’s reasons (if any were stated) for denying defense counsel’s requests. This case bears watching.
No. 11-19-00236-CR 7/22/21
Was a defendant entitled to present testimony concerning his brother’s prior bad acts against him under an alternate-perpetrator defense theory?
No. Although the defendant did not preserve his issue for appeal, evidence that the defendant’s brother sexually assaulted him as a child was not sufficient for an alternate-perpetrator defense because there was no connection between the charged offenses and his brother. In addition, the prior bad acts evidence would not have survived a Rule 403 balancing test and would have confused the issues for the jury even if it had been relevant. Read opinion.
Do not rely on this case for a blanket rule that offenses committed against the defendant are inadmissible to show an alternative perpetrator. Issues like this are intensely fact-bound. This opinion offers little information on how the offenses committed against the defendant were different than the offenses the defendant was convicted of other than the genders of the participants were different.
Nos. 01-17-00661-CR & -00662 7/27/21
Does Texas Rule of Appellate Procedure 77.3 allow a court of appeals to rely on a Court of Criminal Appeals unpublished opinion?
Without determining Rule 77.3’s scope, the Court decided that while the CCA opinion in Ex parte Jones was unpublished, because the issue of the constitutionality of Penal Code §21.16(b) was identical to the issue in this case, the result should be the same, as a practical matter. Adopting the reasoning that §21.16(b) is constitutional, the Court reversed the trial court’s orders granting the defendant’s motion to quash the indictment and his habeas application. Read opinion.
It is time for the Court of Criminal Appeals to eliminate Rule 77.3. If the Court does not want to create precedent, it can do so through the use of memorandum or summary opinions. The opinion in this case seems to be a message to the Court of Criminal Appeals. If the lower court merely wanted to reach the same result, it could simply have cribbed the appropriate language from Jones without citing it as authority.
No. 01-19-00608-CR 7/27/21
Did a trial court correctly deny a defendant’s motion to suppress when evidence showed police officers questioned the defendant after seeing him walking in a high-crime area and acting suspiciously?
Yes. At the suppression hearing, the evidence showed police officers did not activate their patrol car’s overhead lights and sirens or block the defendant’s path when interacting with him. The defendant freely answered the police officers’ questions and consented to fingerprinting and a search of his backpack. As a result, the court held the encounter was consensual and did not amount to an investigative detention. Read opinion.
While the initial encounter was consensual, the dissent argued when the defendant hesitated to consent to the search, the police officers detained him by compelling his compliance through a show of their official authority, at which time the police officers did not reasonably suspect the defendant was, had been, or soon would be engaged in criminal conduct. Therefore, the detention was unconstitutional. Read opinion.
Between the majority and dissenting opinions are 70 pages that largely plow the same ground in excruciating detail. The theory of the dissent seems to be that, regardless of the defendant’s acquiescence to the officers’ request to be searched, he was seized by the officers once they issued instructions regarding the search. Taken to its logical end, this theory would eliminate consent as a law enforcement tool.
Texas Attorney General Opinion Request
Does a Texas legislator or any federal (or other state) legislator have a constitutional right to break quorum? Does the Texas Constitution or state statutes expressly allow for vacating legislative seats or seeking a determination if legislators have vacated their legislative seats when members deliberately deny the constitutional quorum requirement, announce intentions to leave, and remain outside the State to prevent the presiding officer from compelling attendance?
James White, State Representative, House District 19
It will be interesting to see if the AG decides to wade into this hot-button political issue.