August 10, 2012

5th Circuit Court of Appeals

U.S. v. Davis

No. 11-040256    8/1/12


In a federal criminal case, if a defendant fails to renew his motion for acquittal after he presents his case, is he entitled to the usual review of the sufficiency of the evidence?


No. Where a defendant moves for a judgment of acquittal at the end of the government’s case and, after presenting evidence, fails to renew that motion, he forfeits his insufficiency challenge and review is for a manifest miscarriage of justice. “A manifest miscarriage of justice exists only if the record is devoid of evidence pointing to guilt, or because the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” Presenting evidence includes cross-examination that elicits favorable testimony. Read opinion


Do not get too excited. This holding would not transfer over to state cases. The Court of Criminal Appeals has repeatedly held that a defendant does not need to preserve error to raise a challenge to the sufficiency of the evidence in criminal cases. Texas state criminal courts also do not recognize “manifest miscarriage of justice” or “plain error” that you might see in decisions from other jurisdictions. This case can be important to Texas prosecutors because it involves violation of three statutes in Chapter 47 of the Penal Code—gambling. The whole sufficiency challenge centered around the existence of consideration at an “Internet café,” that was not really an Internet café, but was in fact a front for the lottery or gambling operation. A very useful opinion if have one of these types of cases.

Texas Court of Criminal Appeals

Wilson v. State

No. AP-76,835     8/7/12


Was the defendant entitled to CCP Chapter 64 post-conviction DNA testing for a hair found on the victim’s body that did not belong to the victim, defendant or co-defendant?


No. The court reaffirms its holding in Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002) that the presence of another person’s DNA at a crime scene, by itself, does not constitute affirmative evidence of a defendant’s innocence. Read opinion


As noted, this holding is line with the court’s prior DNA testing decisions. On its face, the defendant’s claim might have appeared to have merit. But the court did not take kindly to the fact that the defendant decided to raise the claim a mere week before his scheduled execution. If it walks like a duck, and quacks like a duck, it is probably a delaying tactic.

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