December 17, 2021

Texas Court of Criminal Appeals

Stephens v. State

Nos. PD-1032-20 and -1033-20                12/15/21

Issue:

Is Election Code §273.021, which grants the Attorney General the unilateral power to prosecute select election-law violations in district and inferior courts, unconstitutional?

Holding:

Yes. Because Election Code §273.021 impermissibly delegates a prosecutor’s power in the judicial branch to the Attorney General, a member of the executive branch, the statute is unconstitutional and violates the Separation of Powers Clause. Although Article IV, §22 of the Texas Constitution allows the legislature to assign the Attorney General “other duties,” this clause does not transform prosecutorial power, a judicial duty, into an executive duty. Without consent or a request for assistance from the local prosecutor, the Attorney General has no authority to independently prosecute criminal cases in trial courts. In addition, Penal Code §37.10 grants the Attorney General only concurrent jurisdiction with a consenting local prosecutor to prosecute a small class of cases involving the state Medicaid program. Read opinion.

Dissent (Yeary, J.):

Penal Code §37.10 and Election Code §273.021(a) can be harmonized by concluding that each statute governs a different situation. “The AG may, whenever he has the consent of the local prosecutor, prosecute tampering cases that involve Medicaid, under §37.10(i); and he also may always prosecute tampering cases, at his own discretion, whenever they involve ‘an official ballot or other election record[,]’ under §273.021(a). Whether the AG ultimately may also prosecute other types of tampering offenses, at least with the local prosecutor’s consent, I would not resolve today.” Read opinion.

Commentary:

This decision has automatically become one of the leading decisions on separation of powers in Texas. To learn how separation of powers is currently viewed in the criminal arena, this is the decision to read. The Court held that the Texas Constitution provides that an official of one branch of government may only exercise functions of another branch of government if it is expressly permitted by the Constitution itself. One could readily imagine this concept being applied in other contexts and expect this decision to be cited in the future. The Court also squarely placed the authority for prosecution in Texas with the local district and county attorneys. The Court held that, under the Texas Constitution, overlap in the constitutional duties of the Attorney General and those of the district and county attorneys can occur, if at all, only on a case-by-case basis. The Court cited specific instances in some statutory provisions in which the Attorney General may assist, upon request, the local district and county attorneys in limited circumstances.

Avalos v. State

Nos. PD-0038-21 and -0039-21                12/15/21

Issue:

Is the mandatory life without the possibility of parole punishment for capital murder when the State waives the death penalty (Penal Code §12.31(a)(2)) unconstitutional as applied to a defendant who is intellectually disabled?

Holding:

No. Examining U.S. Supreme Court cases leading up to its decision in Miller v. Alabama, 576 U.S. 460 (2012), in which the Supreme Court held an individualized assessment of mitigating evidence was required before imposing a mandatory life without parole sentence for juveniles, the Court of Criminal Appeals concluded that Penal Code §12.31(a)(2) does not violate the Eighth Amendment. Although intellectually disabled offenders and juveniles share many of the same mitigating characteristics, intellectually disabled offenders differ substantially because the condition that led them to committing murder may pose a continuous and dangerous threat to society that is not merely transient and dependent on maturity, as is the case with juveniles. Therefore, the Miller requirement does not apply to intellectually disabled offenders. Read opinion.

Commentary:

This is a thorough decision that details the various holdings by the United States Supreme Court on categorical exclusions of certain punishment for various criminal offenders. But since the Supreme Court has been issuing these decisions, watch this case (and others like it) to see if the Supreme Court wishes to review it.

State v. Kahookele

No. PD-0617-20                            12/15/21

Issue:

Can an aggravated state-jail felony be enhanced under the habitual offender statute (Penal Code §12.42(d))?

Holding:

Yes. Reading the statutory language and finding no ambiguity, the Court held §12.42(d) excepts only ordinary state jail felonies. Interpreting the statute as excepting all state jail felonies would disregard the specific and exclusive plain language of the statute. As written, “an aggravated state jail felon with a greater history of convictions for felonies other than ordinary state jail felonies may be subjected to a higher range of punishment than an aggravated state jail felon with a lesser history of such convictions.” Read opinion.

Commentary:

This is a great decision for prosecutors and gives great guidance as to how or if various state jail felonies can be enhanced. Read this decision carefully if you wish to enhance a state jail felony or further enhance a state jail felony that has already itself been enhanced.

Martin v. State

No. PD-1034-20                            12/15/21

Issue:

Does Penal Code §46.02(a-1)(2)(C) (unlawful carrying a weapon by a gang member) require proof the defendant was continuously or regularly committing gang crimes?

Holding:

Yes. Adopting the Fourteenth Court of Appeals’ decision in Ex parte Flores, 483 S.W.3d 632 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d), the Court held that for purposes of prosecution under §46.02(a-1)(2)(C), “criminal street gang” as defined by Penal Code §71.01(d) requires the State to not only prove a defendant’s membership in a gang but also that the defendant continuously or regularly engaged in criminal activities as a gang member. Read opinion.

Concurrence (Yeary, J.):

The Court believes the “plain language” of the statute does not support an interpretation that a defendant need only be a member of a criminal street gang who engages in criminal activities. However, “I am less sure … that the language of these provisions plainly precludes that construction.” Read opinion.

Commentary:

This case grew out of the much-publicized fight between two competing gangs in Waco in 2018. The Court rejected an interpretation that would allow for conviction of a person for the weapons offense if the person was unaware of the gang’s criminal activities and had not personally committed a crime or associated in the commission of a crime. The Court also found that there was no evidence that the defendant was aware of his particular gang’s criminal activities. To prosecute a defendant under this statute, the State must present evidence (direct or circumstantial) that the defendant was aware of his gang’s criminal activities and/or that the defendant had personally committed a crime or associated in the commission of a crime. The Court viewed what the defendant did in this particular case as merely being present. In cases where the State needs to prove that a defendant is a member of a criminal street gang under this statute or under Chapter 71 of the Penal Code, be sure to read this decision before making a charging decision.

Texas Courts of Appeals

Massey v. State

No. 02-20-00140-CR & -00149-CR                         12/9/21

Issue:

Did a trial court correctly deny a defendant’s motion to suppress drug evidence after finding his frisk was not supported by reasonable suspicion but found 1) the defendant consented to the frisk, 2) the taint of any illegality of the frisk was attenuated after the defendant committed criminal offenses after the frisk, and 3) the officer found the drugs in plain view after the defendant discarded them during the detention?

Holding:

No. The court held 1) the defendant’s brief acquiescence to authority did not amount to consent, 2) his alleged criminal offenses (resisting a search and evading detention) were “petty and relatively predictable” in the situation of an illegal frisk, and 3) the plain-view doctrine did not apply because the drugs were not in plain view prior to the officer’s illegal frisk. Read opinion.

Commentary:

This decision underscores how difficult it can be for the State to prove that a defendant consented to a search, especially a protective frisk. The defendant’s purported consent cannot merely be his acquiescence to an officer’s lawful authority. On that issue, the court’s analysis is extremely thorough and well-researched. It will be difficult to challenge on further review. The court also employed a thorough attenuation-of-the-taint analysis.

Robertson v. State

No. 11-19-00343-CR                    12/9/21

Issue:

Does a truck’s registered owner have apparent authority to consent to a search of the truck’s toolbox if the registered owner previously gave the truck to his brother (the defendant)?

Holding:

Yes. Although this case “pits the consent of the registered owner of a vehicle versus the non-consent of a driver [who] had been a permissive user of the vehicle for several months,” it was reasonable for officers to believe the registered owner had apparent authority. The registered owner called the police department daily to retrieve his truck after it had been impounded. He also stated the truck was in his name and didn’t want to have to pay the impound fees. He also had equal right to control the truck and the greater right of possession under impound statutes as the registered owner. Read opinion.

Commentary:

This is a significant decision, and prosecutors should watch to see if it is reviewed further by the Court of Criminal Appeals. Courts have dealt with situations in which one owner of a vehicle has refused to consent to search while another owner of a vehicle has granted consent. This situation is different in that it pitted the consent of the registered owner of the vehicle against the non-consent of the driver, who had permissive use of the vehicle for several months. The case may have been decided differently if the driver had consented and the registered owner had refused consent.

Rivera v. State

No. 01-20-00062-CR                    12/14/21

Issue:

After excusing a potential juror and both parties having exercised all their peremptory challenges, does a trial court abuse its discretion by refusing to allow a party to retract and reassign one or more of his peremptory challenges?

Holding:

No. No statute, rule, or other authority requires the trial court to allow a party to retract and reassign his peremptory challenge after consenting to an excusal of a potential juror, even if those who could be impaneled on the jury is expanded. The defendant here did not ask to retract and reassign any of his peremptory challenges until after he had already consented to excusing the potential juror. By agreeing to excusing the potential juror, the defense should have known the jury panel would naturally expand by one potential juror. Read opinion.

Commentary:

A trial judge could freely allow a party to retract or reassign his peremptory challenges after a prospective juror is excused. This decision only stands for the proposition that the trial judge is not required to allow such a reassignment.

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