Aug. 2, 2019

Texas Courts of Appeals

In re State of Texas, ex rel. Durden

No. 04-19-00376-CR      7/24/19


Can a writ of mandamus be used to compel a judge to discontinue a “pay-to-plea” policy in which criminal defendants are required to pay fines and court costs before the judge will accept a plea bargain and formally pronounce sentence?


No. “We decline [the] relator’s request to compel Judge Shahan or any other judge in Kinney County to develop new policies or local rules of administration. … To the extent the directions to the Clerk and Kinney County Treasurer contained in the June 18 Order are inadequate to address the return of all funds that Judge Shahan concedes are ‘inappropriate under applicable law,’ we are confident Judge Shahan will take all necessary steps to identify any person who paid the fines and court costs in violation of applicable laws and return those funds.” Read opinion.


This mandamus application was rendered moot when the judge rescinded his policy of requiring payment of fines and court costs before the acceptance of a plea bargain, and there was indication that the judge intended to reinstate that policy. This decision does not provide any law suggesting the impropriety of such a policy, but it does appear to assume that such a policy is not appropriate. In any event, a review of the court of appeals website reveals a very thorough, principled, and well-researched petition filed by the Kinney County Attorney, which prosecutors should turn to if this issue arises again.

Davis v. State

No. 05-18-00272-CR    7/24/19


Does admission of statements made by one of two sexual assault victims during a forensic sexual assault exam violate the Confrontation Clause and Crawford when the victim has died before trial?


No. Although the defendant “raises a significant concern involving statements made by an unavailable witness within her medical records,” any error in admission of statements that the victim was threatened, where the assault occurred, and the identity of the people who assaulted her and the victim named in the indictment was harmless. Read opinion.

Concurrence (Pedersen, J.):

“I believe [the] appellant is due an answer to the question he raises, and I believe litigants, counsel, and trial courts would benefit from a careful consideration of the important constitutional issue he raises. I would like our Court to speak clearly concerning how the Confrontation Clause should apply in the case of a sexual assault examination when the victim is not available to testify at trial.” Read opinion.


This is an important issue, as identified by the concurring opinion. But Texas courts have typically held that a victim’s statements given during a SANE examination are not “testimonial” for the purposes of Crawford v. Washington. These statements are typically admissible under the “medical diagnosis and treatment” exception to the hearsay rule. The problem is that many of these decisions are unpublished. See Berkley v. State, 298 S.W.3d 712 (Tex. App. — San Antonio 2009, pet. ref’d). If a defense lawyer cites the concurring opinion to you, refer the judge to Berkley (and perhaps the unpublished decisions that have cited it).

Ex parte Palacios

No. 08-16-00220-CR    7/24/18


Is Penal Code §38.171 (criminalizing a failure to report felony with serious bodily injury or death) unconstitutionally vague?


No. The statute is not unconstitutionally vague on its face. In this pretrial writ of habeas corpus proceeding, the defendant, after witnessing a murder, drove to a hotel to spend the night and did not report the murder. She also encouraged her husband not to report the murder. The court rejected the defendant’s argument that no culpability requirement should be applied to the statute when serious bodily injury or death may or may not have resulted from what a defendant has seen. Read opinion.


This is a wonderful decision. If you are faced with a pretrial or facial vagueness challenge—that does not involve the First Amendment—definitely turn to this decision.


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