Texas Court of Criminal Appeals
Allen v. State
No. PD-0203-19 4/21/21
Issue:
Were the defendant’s dual convictions for Indecency with a Child by Contact and Continuous Sexual Abuse of a Young Child allowable under PC §21.02(e)?
Holding:
No. “The evidence supporting the Indecency with a Child by Contact offense shows that it occurred within the time period the Continuous Sexual Abuse of a Young Child offense was committed.” The Court concluded that in determining whether a defendant may be convicted for a continuous abuse offense and another offense listed in §21.02(c) in the same criminal action and against the same victim, the evidence must show that the second offense happened outside of the period when the continuous abuse offense was committed. Because the evidence in this case showed that the indecency offense happened within the time period the continuous sexual abuse offense was committed, convictions for both are not allowed under §21.02(e)(2). Read opinion.
Commentary:
This is not a double jeopardy case but is purely a construction of §21.02(e). The bottom line is, if you want to obtain more than one conviction for a continuous offense and another offense that could provide the basis for the continuous offense, you must plead and prove that the other individual offense occurred outside the time period during which the continuous offense occurred. Note that the court gave the defendant the very unusual opportunity to file a post-submission ground for review based upon the U.S. Supreme Court’s recent decision in Ramos v. Louisiana, asking whether the jury must be unanimous on which particular acts of sexual abuse were committed. Courts have repeatedly and unanimously held that the jury does not have to be unanimous as to the particular acts that make up a continuous offense. That is one of the reasons the Legislature has created continuous offenses in the first place. But since the court has raised the issue at the end of its opinion (but ultimately did not decide it in this case), be prepared for an enterprising defense lawyer to raise the issue in a case in the future. Ramos did not deal with the viability of continuous offenses, but rather dealt with one of the only states that did not require a unanimous verdict in criminal cases at all. Texas has long required unanimous jury verdicts in criminal cases.
Hallman v. State
No. PD-0478-20 4/21/21
Issue:
Did the State violate the Michael Morton Act when it did not reveal impeachment evidence until the punishment phase?
Holding:
The Court did not address the issue but instead remanded the case to the court of appeals for “further consideration and disposition” under its recent decision Watkins v. State, “in which [they] construed the phrase ‘material to any matter involved in the action.’” Read opinion.
Commentary:
This is a predictable result and should not be an indication of who might prevail in a reconsideration of this case before the court of appeals. The court of appeals initially had made a construction of “material” in Article 39.14(a) that was essentially the same as the construction of “material” in Brady v. Maryland. The Court specifically rejected that construction in Watkins. So that portion of the new opinion by the court of appeals will have to change, but we will have to see if it will change the result. Even if the undisclosed evidence in this case was “material,” the error in failing to disclose it will be subject to a harm analysis.
Harrell v. State
No. PD-0985-19 4/21/21
Issue:
Was the corpus delicti rule satisfied for DWI when the defendant was found in his van with the motor turned off and no evidence of the key’s location was presented at trial?
Holding:
Yes. The Court held the corpus delicti rule was satisfied when there was evidence “from which a jury could rationally conclude that [the defendant] was operating the vehicle in a public place while intoxicated” when the defendant was buckled in the driver’s seat, failed SFSTs, had a BAC of .09, and was parked at a gas station where a 911 caller said the defendant was operating the vehicle. Read opinion.
Commentary:
Corpus delicti is rarely raised in DWI cases, but this is a good application of that rule in a DWI case. If you have a case in which the defendant has admitted to driving, read this decision. One of the sticking points for the court of appeals and the defendant in this case appears to be the fact that both claimed the State did not prove the defendant’s identity through evidence other than the defendant’s confession. First of all, that was not true, because the evidence clearly showed that the defendant was driving, even apart from his admission. Secondly, the court made it clear that the State does not have to prove identity to show the corpus delicti of an offense.
Miranda v. State
PD-1340-18 4/21/21
Issue:
Did the closely-related-crimes exception to the corpus delicti rule apply to a case involving improper relationship, sexual assault, and sexual performance with three victims over a span of more than one year?
Holding:
Yes. The Court referred to its decision in Miller v. State and said the closely-related-crimes exception to the corpus delicti rule would be “a fact-specific one.” Because the defendant “engaged in a course of conduct, grooming his underage female students … [u]sing his position of authority … [and] given the identical nature of all the sexual offenses … we are satisfied that the offenses are sufficiently closely related. …” Read opinion.
Concurrence (Yeary, J. joined by Slaughter, J.):
“Today the Court continues along a jurisprudential course of extending, yet again, a court-invented common-law exception to the court-invented common-law doctrine known as the corpus delicti rule. …Rather than continue to chart this anomalous course, I would exercise our prerogative to simply jettison the court-invented common-law doctrine that generates this anomaly in the first place.” Read opinion.
Commentary:
If you have charged a defendant with multiple offenses and the defendant has admitted to at least some of those offenses, you definitely need to read this decision (and Miller). Even as was the case in Miller, there still appears to be little appetite for jettisoning the corpus delicti rule altogether, as sought by Judge Yeary in his concurring opinion.
Texas Courts of Appeals
Brickley v. State
No. 03-19-00784-CR 4/15/21
Issue:
When an indictment for aggravated sexual assault includes two deadly weapons, must the jury find that the defendant used or exhibited both weapons and that they were both deadly weapons?
Holding:
No. “Here, the jury had to agree that [the defendant] ‘used or exhibited a deadly weapon,’ but the jury did not need ‘to unanimously agree on which weapon was used.’” The Court held the evidence was sufficient to establish that the defendant used or exhibited a rock during the same criminal episode in which the sexual assaults occurred, and that the rock could be considered a deadly weapon. Read opinion.
Commentary:
This is a very fact-specific case, but it is a good reminder that the jury needs to be unanimous regarding the charged offense and its elements. The jury does not, however, have to be unanimous as to various manners and means or ways in which the State might prove those elements.
Barron v. State
No. 11-19-00125-CR 4/15/21
Issue:
Did the doctrine of cumulative error apply in the defendant’s case when she was not permitted to present evidence of justification defenses during trial?
Holding:
No. The Court pointed out that the defendant was being prosecuted for tampering with evidence—not murder. Therefore, the defendant’s justification defense of self-defense did “not apply to excuse the conduct in question—tampering with evidence” because the justification defenses were “wholly irrelevant in this case.” The Court concluded that introducing the concept of self-defense in a tampering with evidence case “would unnecessarily risk confusing the jury…” Read opinion.
Commentary:
In this case, whether in self-defense or otherwise, the defendant and co-defendant killed two victims, stuffed their bodies underneath a trailer home, and concealed the bodies by putting the trailer’s skirt back up. That was the basis for the tampering charge. The court of appeals correctly held that self-defense did not apply to the tampering charge. But hopefully it is not okay to kill someone in self-defense and then hide the dead body where no one can find it.
Jeansonne v. State
No. 01-19-00583-CR 4/20/21
Issue:
Did the trial court correctly admit extraneous offense evidence of the defendant’s two prior convictions for aggravated sexual assault of a child when the State did not specifically reference Article 38.37 in its notice but later supplemented its notice 19 days before trial to include the provision?
Holding:
Yes. Although the State provided supplemental notice later than the 30-day requirement, it had already given defendant notice of its intent to use extraneous offense evidence more than eight months before trial. Although the State’s initial notice did not reference Article 38.37, the defendant “has not referred us to any authority, and we unaware of any, requiring the State to specifically list in its notice of extraneous offense evidence the statutes or rules under which that evidence will be introduced.” Read opinion.
Commentary:
This is one of those cases in which the court holds that form should not rule over substance. It is otherwise a very fact-intensive case.