Our bookstore is temporarily closed. Please check back soon.

December 11, 2009

Texas Court of Criminal Appeals

Ex Parte Chabot

12/09/09 : Cite No. AP-75,940


Were the defendant’s due process rights violated when the only direct evidence that linked him to the sexual assault was perjured testimony, even though the State had no knowledge of the perjury at the time of trial?


Yes. The DNA evidence showed the "critical" testimony the State relied on was perjured. The resulting circumstances merit a finding that the defendant’s due process rights were violated. Read Opinion.


The court should have made more clear that the finding of a due process violation because of perjured testimony is very rare when there is no evidence that the State knew or should have known about the perjured testimony at the time that it was given. I would agree that a due process violation had occurred only if the perjured testimony was material to such a degree that the defendant most likely would not have been convicted, except for the perjured testimony. That standard surely would have been met in this case because the State’s key witness, an accomplice witness, testified that he did not sexually assault the murder victim, but the newly acquired DNA evidence revealed that the accomplice witness was the only one who did in fact sexually assault the murder victim.


Rouse v. State

12/09/09 : Cite No. PD-1533-08


May an appellate court, in deciding that a plea was entered involuntarily, rely on unsworn allegations made by trial counsel in a document faxed to the court coordinator and later filed with the district clerk, when no fact-finder has evaluated that statement?


No. Both sides need an opportunity to present and respond to allegations. Read Opinion


This is what it means when a court says that a motion for new trial (or other similar motion) is not "self-proving." Evidence has to actually be offered on the matter at a contested hearing.


Garner v. State

12/12/09 : Cite No. PD-0904-07


When a court reviews a pro se appellant’s points of error submitted after his counsel filed an Anders brief, does that imply there are points of arguable merit?


No. While a complex analysis or analysis on unsettled law may indicate arguable merit, a simple review, even a lengthy review, does not. Read Opinion.


I wonder if this opinion will encourage appellate courts to give more thorough analyses in its Anders opinions. Probably not.


Crumpton v State

12/12/09 : Cite No.PD-1634-07


When the jury found the defendant guilty of the offense "as included in the indictment," did that include a finding of a deadly weapon?


Yes. The indictment expressly alleged that the defendant committed the offense with "a deadly weapon." The verdict’s reference to the indictment therefore constituted a finding that that allegation was true. The verdict was an adequate basis for the trial court’s entry of the deadly-weapon finding in the judgment. Read Opinion.


There is language in the opinion that suggests that the allegation of a homicide always necessarily includes an allegation of the use and/or exhibition of a deadly weapon. I am not so sure about that. Does that mean that criminally negligent homicide (a state jail felony, and the offense involved in this case) is almost always going to be subject to punishment as a third degree felony (because of Section 12.35(c) of the Penal Code)? Is that what the Legislature intended? This is an opinion from a sharply divided court, and we have almost certainly not seen the last of this Court’s treatment of "deadly weapon" jurisprudence.


An examination of the manslaughter indictment, the application paragraph on the lesser charge of criminally negligent homicide, and the verdict form indicates that the jury could not have found the defendant guilty of criminally negligent homicide without also expressly deciding that she drove her "motor vehicle, a deadly weapon." Read Concurrence.

Dissent from Keller

A jury has the ability to find a defendant guilty of causing a death but at the same time answer a deadly-weapon special issue in the negative. Read Dissent.

Dissent from Meyers

The jury did not make an express deadly-weapon finding, and the trial court’s entry of an affirmative finding was improper. Finding that a single reference back to the indictment can constitute an express finding would be inconsistent with our reasoning in Lafleur. Read Dissent.


Hobbs v. State

12/09/09 : Cite No. PD-0319-09


Did the trial court err when it refused the defendant’s request to withdraw his jury waiver while at the same time allowing a continuance?


No. While specific to the facts in this case, the State showed there would be adverse consequences if the defendant were allowed to withdraw his waiver. However, the defendant is entitled to a hearing on a motion for new trial based on how the waiver was originally obtained. Read Opinion.


This is a very helpful opinion that would prevent a defendant from playing games with his waiver of his right to a jury trial. This defendant attempted to withdraw his waiver on the very same day that he filed the written waiver. But be careful. This decision provides yet another example of a case in which the trial judge should have permitted a hearing on the defendant’s motion for new trial.


TDCAA is pleased to offer our members unique case summaries from
the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas
Court of Criminal Appeals, Texas Courts of Appeals and the Texas
Attorney General. In addition to the basic summaries, each case will
have a link to the full text opinion and will offer exclusive
prosecutor commentary explaining how the case may impact you as a
prosecutor. The case summaries are for the benefit of prosecutors,
their staff members, and members of the law enforcement community.
These summaries are NOT a source of legal advice for citizens. The
information contained in this email message may be privileged,
confidential, and protected from disclosure. Any unauthorized use,
printing, copying, disclosure, dissemination of or reliance upon this
communication by persons other than the intended recipient may be
subject to legal restriction or sanction. Please email comments,
problems, or questions to [email protected] In addition, if you
would like to discuss the summaries with fellow prosecutors, look for
the thread in our criminal forum.