Texas Court of Criminal Appeals
Haggard v. State
No. PD-0635-19 12/8/20
Issue:
Were the defendant’s confrontation rights violated when the trial judge allowed a sexual assault nurse examiner (SANE) to testify against the defendant from Montana using FaceTime (a two-way video system)?
Holding (Hervey, J.):
Yes. The Court noted that it previously has followed the decision in Maryland v. Craig, 497 U.S. 836 (1990), in which the Supreme Court ruled that in most cases, face-to-face confrontation is required. The Court also noted that the State did not subpoena the witness to travel from Montana and testify, and the trial court made no ruling that that allowing the SANE to testify remotely “furthered an important public policy.” Read opinion.
Concurrence (Yeary, J.):
“The Court today reaches and extensively discusses the merits of the Confrontation Clause issue, although the court of appeals never decided that question. (That may explain why the Court’s opinion does not even mention the court of appeals’ opinion until it comes to address that court’s harm analysis; and why the Court never seems to articulate a definite holding with respect to Confrontation Clause error.) The Court never explains why it is appropriate to do so. And I do not agree that the Court’s opinion should address the merits of whether Confrontation Clause error occurred.” Read opinion.
Dissent (Slaughter, J.):
The leading Confrontation Clause cases, including Craig and Crawford, did not involve live, two-way video testimony. “These cases also do not take into account the advances in modern technology that have vastly improved the quality of video conferencing technology over the past thirty years. In any event, after Crawford, we do not know whether either Craig or Coy are still valid precedents. If they are, we do not know how they would apply to the factually distinct scenario of live, two-way video testimony.” Read opinion.
Commentary:
The majority opinion is entirely in line with the court’s prior decisions, as well as those of the United States Supreme Court. Physical, face-to-face confrontation is still going to be required in most cases. That means that—in most cases—the defendant and the witness should be in the courtroom together when the witness is testifying. The majority opinion briefly lists the exceptions, none of which applied here. Any exception will also still require extensive fact finding on the part of the trial court before the exception can be successfully applied. The words “COVID” or “coronavirus” or “pandemic” are not in the court’s opinion, so that issue was not addressed. However, the majority did continue to emphasize its desire for physical, face-to-face confrontation in most cases, and you should expect that emphasis to continue in future cases.
Texas Courts of Appeals
Aguilera v. State
No. 08-18-00227-CR 12/7/20
Issue:
Does language in a State’s motion to vacate a plea of “true” in a probation revocation stating that the plea “shall be vacated” effectively vacate the plea and allow adjudication of guilt?
Holding:
Yes. The Court concludes that stating the plea “shall be vacated” was not substantively different from “is vacated” and the trial court therefore had jurisdiction to vacate the plea, revoke community supervision, and adjudicate guilt. Read opinion.
Commentary:
The defense saw the dispute in this case as turning on an application of the rules of grammar. The State was merely trying to prevent a defendant from serving community supervision after the trial court had made a deadly weapon finding. It is clear what the trial judge was trying to do when he issued the order, and the court of appeals gave effect to that. It is not clear whether you will want to rely heavily upon this opinion in the future, as the court of appeals relied largely upon one of its own prior civil decisions in construing the trial court’s order.
Texas Attorney General Opinions
KP-0343 12/7/20
Issue:
Does a peace officer have a duty to intervene to prevent another peace officer from violating the rights of a citizen?
Conclusion:
Code of Criminal Procedure Art. 2.13(a) of the Code of Criminal Procedure makes it “the duty of every peace officer to preserve the peace within the officer’s jurisdiction.” Penal Code §39.03 makes it a criminal offense for a public servant to deny or impede “another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.” To date, the Attorney General’s Office found no judicial opinion in which Art. 2.13 or §39.03 had been applied in a criminal or civil proceeding against an officer for failure to intervene. “Thus, we cannot conclude that there is an absolute duty for an officer to intervene under the circumstances you describe.” Read opinion.
Commentary:
The opinion here is a less an opinion on the merits of the question, and more of an opinion stating, “I don’t know,” or “We can’t answer that.” In light of the fact that a member of the Texas House of Representatives was asking the question, might we see some proposed legislation on the matter in the near future?
CCP changes for January 2021
As part of its code reorganization efforts, the Texas Legislature passed a bill (HB 4173) in 2019 that makes non-substantive changes to chapters in the Code of Criminal Procedure affecting protective orders, grand juries, and victims’ rights. Those changes take effect on January 1, 2021, and the crack staff in our publications department (read: one very busy Diane Beckham!) has laid out those new chapters, along with source and disposition charts, as PDFs that you can download for free at https://www.tdcaa.com/books/ (look for the links along the right-hand “rail” of your desktop layout). These changes will also be incorporated into the upcoming 2021 edition of TDCAA’s code books, which will be available next summer following the 87th Regular Session, but to bridge the gap until then, please take advantage of these free resources and share them with others in your courthouse as needed.
TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the 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 commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to Diane Beckham.