Court of Criminal Appeals
Nos. PD-1626-12 & 1627-12 8/21/13 (per curiam)
Was the defendant denied the right to confrontation at his aggravated robbery trial when the technical reviewer, rather than the analyst performing the DNA test, testified at trial about DNA test results?
Maybe. The Court of Appeals did not have the benefit of the decision in Burch v. State, No. PD-0943-12, when it affirmed the conviction and found no confrontation clause violation, so the decision is vacated and the case remanded for consideration in light of Burch.
You should watch this decision very closely, both how it is decided again by the court of appeals and how it might be decided by the Court of Criminal Appeals on petition for discretionary review once again. If we ever hope to present DNA evidence without having to call five or more (perhaps many more) witnesses, we are going to have to present testimony that shows that our testifying expert witness did more than merely review a report or testing. Our testifying expert witness is going to have to be an integral part of the process and the analysis of the DNA testing. Or we are going to have come up with creative arguments as to why the Confrontation Clause does not require the testimony of every single person at the lab who was involved in the DNA testing of a particular piece of evidence.
Texas Courts of Appeals
No. 01-12-00151-CR 8/15/13
Does the offense of delivery or manufacture of a counterfeit instrument under Transportation Code §521.456 require proof of intent to pass the instrument off as authentic?
No. The plain language of the statute requires proof of: 1) intent to sell, distribute, or deliver a forged or counterfeit instrument, and 2) knowledge that the instrument is not printed, manufactured, or made by or under direction of an authorized person. The fact that the defendant had printed disclaimer language on the fake licenses does not negate the culpability required for the commission of the offense, so he was not entitled to a mistake of fact instruction in the jury charge.
This is a thorough decision, and it should hold up if reviewed by the Court of Criminal Appeals because it relies upon recent, controlling decisions from that court. If you have a counterfeit instrument case, you should definitely read this decision and the decisions upon which it relies.
No. 04-12-00430-CR 8/14/13
Should the trial court have included a unanimity instruction in the jury charge at the defendant’s trial for aggravated sexual assault and indecency with a child when evidence of more than one criminal act was presented to support nearly all of the counts charged?
Yes. Although the defendant did not object to the charge, reversal is appropriate because the lack of a unanimity instruction resulted in egregious harm. There was no physical evidence presented at trial, the victim’s testimony was improperly bolstered by inadmissible opinion evidence, and the jury acquitted the defendant on the only count not supported by multiple criminal acts.
Cases like this are precisely the reason that the Legislature created the offense of continuous sexual abuse of a child—so that the jury will not have to be given a unanimity instruction, and so that the State will not be required to elect upon which act or acts it is relying to support a conviction of the defendant. This issue arises most often in child sex abuse cases. So if you are forced to try the defendant for the basic offenses of indecency with a child or aggravated sexual assault of a child, and there is evidence of multiple acts committed by the defendant (as there almost always is), then you will have to elect and/or the jury will have to be given a unanimity instruction.
Texas Attorney General
No. RQ-1146-GA 8/19/13
In calculating the minimum salary of a county court-at-law judge based on the “district judge’s total annual salary” under Government Code §25.0005(a), should the commissioners court include supplements paid to the district judge by other counties in a multi-county district?