United States Supreme Court
Kansas v. Cheever
571 U.S. ____ (2013) No. 12-609 12/11/13
Does the Fifth Amendment’s protection against self-incrimination prohibit the government from introducing evidence from a court-ordered mental evaluation of a defendant as rebuttal evidence?
No. When a defense expert who has examined the defendant testifies that the defendant lacked the mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. Read the opinion.
This decision is in line with holdings from the Court of Criminal Appeals, so the law should not change that much in Texas. But be sure to use this decision, even if the defendant is permitted to raise a claim about his mental state that does not rise to the level of a “defense” in Texas. He should not be permitted to introduce this evidence in the first place in most situations. But if he is, use this decision to demand that the State’s own expert examine the defendant, then use that expert testimony to rebut the defendant’s defensive evidence.
Texas Court of Criminal Appeals
Ex Parte Villegas
No. WR-78, 260-01 12/18/13
Did the applicant’s claims of ineffective assistance and actual innocence entitle him to relief under Schlup v. Delo, 513 U.S. 298 (1995)?
Relief was proper, but not for the reasons set out by the trial court. The federal Schlup decision allows applicants to be granted relief based on a showing of actual innocence when there is no other procedure by which they can have their case heard. But Texas law allows habeas applicants at least one bite at the apple, and this was the applicant’s first bite. Because this was an initial writ, the Court was allowed by statute to consider the ineffective assistance of counsel claims and remand for a new trial, even though his claims of actual innocence were not “unquestionably established.” Read the opinion.
Concurrence (Price, J.):
The Court should not refer to these cases as Schlup claims because the legislature has codified the Schlup criteria into Arts. 11.07 and 11.071 of the Code of Criminal Procedure. A Schlup claim is used for applicants in other jurisdictions who do not have a statute that allows them to communicate their actual innocence to an appeals court. Because Texas has a statutory mechanism to let these applicants be heard, referring to the process as a Schlup claim confuses everyone involved in the process and sets a bad precedent. Read the concurrence.
The court’s opinions do not make it clear what evidence was heard, so this is basically nothing more than a procedural decision of interest to post-conviction attorneys. Judge Price does seem to have a point that, in Texas, a first application should not be referred to as a Schlup claim, as Texas has statutorily provided more protection to a habeas corpus applicant than that provided in federal court.
Texas Courts of Appeals
Ex Parte Zavala
No. 04-13-00301-CR 12/11/13
Is the Online Solicitation of Minor statute facially unconstitutional because one section requires proof the actor solicited a minor with the intent that the minor engage in sexual activity, while another section prohibits the defendant from arguing that there was no intent to actually meet the minor in person?
No. The gravamen of §33.021(c) of the Code of Criminal Procedure is the knowing solicitation of a minor to meet the person with the intent that the minor will engage in some form of sexual contact with that person. It does not matter what happens after the solicitation occurs because the offense has been completed. This is true even if the defendant was engaged in a fantasy at the time of the solicitation, with no intent that a meeting actually occur. Because the State is not required to prove that a meeting was intended, §33.021(d)’s prohibition against a defendant arguing lack of intent to meet does not conflict with §33.021(c). Read the opinion.
In recently declaring §33.021(b) (“grooming”) unconstitutional, the Court of Criminal Appeals made it clear that §33.021(c) (“luring”) was still valid. This decision reaffirms that.
Adkins v. State
No. 14-12-00956-CR 12/17/13
Did the State violate a defendant’s Confrontation Clause rights by calling only the technician who tested the blood drawn in a DWI case and not also calling the nurse who actually drew the blood?
No. In this case, the Confrontation Clause did not require the nurse who drew the blood to be available for cross-examination. The forensic analyst who actually tested the blood and signed the report detailing the results was available for cross-examination, and that is all the Confrontation Clause requires. Read the opinion.
This decision should be very helpful in DWI cases, and it appears to be in line with other decisions in the same area, such as Mitchell v. State, decided by the San Antonio Court of Appeals on December 4, 2013.
Johnson v. State
No. 01-12-00926-CR 12/5/13
Were uncorroborated allegations of aggravated sexual assault made by a 13-year old sufficient to support a guilty verdict when there was no other evidence supporting her story, but significant evidence disputing the allegations?
Yes. A rational jury could have believed any part of the victim’s testimony, and portions of the testimony, if believed, were sufficient to support the conviction. However, the panel that decided this case noted in a lengthy footnote that its holding reflected the court’s previous determination that it would not re-weigh evidence in a criminal case, pursuant to the Court of Criminal Appeals’ decision in Brooks v. State, 323 S.W. 3d 893(Tex. Crim. App. 2010) (finding in a plurality opinion that a factual-sufficiency standard and legal-sufficiency standard are indistinguishable). Two of the three judges in the panel suggest in the footnote that the evidence in this case was weak and that they believe an appeals court should remand a criminal case when the record suggests a jury failed to properly credit facts favorable to the defendant. Read the opinion.
This decision shows how easy it is to uphold a finding of sufficient evidence to support a child sex abuse conviction. Appellate courts will typically bend over backwards in construing the child’s testimony. And it does not matter that the child was heavily contradicted at trial because the jury is always entitled to believe the child. The real difficulty in proving these cases is at trial, not on appeal.
Miller v. State
No. 14-13-00062-CR 12/5/13
When a vehicle straddled the dividing line of a highway for several hundred feet, was an officer’s stop of the vehicle valid even though the officer’s testimony did not establish that the movement from the lane was “unsafe” as required by §545.060 of the Transportation Code?
Yes. The vehicle’s failure to maintain a single lane was not the sole reason for the stop. The fact that the vehicle straddled the lane for several hundred feet led the officer to suspect that the driver might be intoxicated, overmedicated, or falling asleep. Those circumstances established a reasonable suspicion that a crime was being committed. Read the opinion.
Dissent (Jamison, J.):
Video evidence that the vehicle may have straddled the lane for a few seconds is not independently sufficient to form a reasonable suspicion that any crime is being committed. Read the dissent.
This is a great decision, well-argued on appeal and well-developed at trial. Weaving across a traffic line or straddling a traffic line are always difficult grounds for traffic stops, which is why it is so important to rely upon all possible bases for the officer’s actions—such as intoxication, as in this case. And it is also important to remember that an officer does not need probable cause of an actual offense to stop a vehicle; he needs only reasonable suspicion. Keep this opinion close at hand.
Scott v. State
No. 06-13-00080-CR 12/17/13
Was a defendant entitled to a new trial when it was discovered a juror had failed to reveal that he knew the defendant’s mother, who was both the complainant in the case and a witness who testified to ask for leniency for her son?
No. A defendant is not automatically entitled to reversal of his conviction just because a juror withheld information. The information that was withheld must be both 1) material and 2) withheld despite due diligence exercised by the defendant. In this case, the defendant failed to ask the follow-up questions on the record that could have determined whether or not the juror was biased as a result of his relationship with the defendant’s mother. Read the opinion.
This is a very thorough decision, well-researched and well-reasoned, so we can definitely rely upon it if there is a claim that a juror has failed to disclose a close relationship to a witness. Nevertheless, the Court of Criminal Appeals may take up this decision on discretionary review because the facts are similar to other cases in which the courts have granted defendants new trials. So keep your eye on this case.
Taylor v. State
No. 06-13-00078-CR 12/13/13
Was the evidence sufficient to support a conviction of theft against a contractor who eventually provided the goods he was paid to provide and was in the process of attempting to complete the work he was hired to do when he was arrested?
Yes. Although contract-theft cases require more than a showing that money was not paid back by a contractor who failed to complete a job, evidence that the contractor secured payment by making a false representation to the customer is sufficient to support a conviction for theft. Read the opinion.
Dissent (Carter, J.):
The false statement by the contractor is not enough to support a theft conviction. The State was also required to prove that the money secured by the false statement was not then put towards the completion of the contracted work. Read the dissent.
It is so, so difficult to win a theft conviction that arises out of a contract for services. Couple that with the fact that there is a dissenting opinion, and we can expect the Court of Criminal Appeals to review this decision. But do not take that as any indication that this is a weak opinion. Quite the contrary. The majority’s decision is very thorough and well-reasoned. Keep your eye on this case to see how it holds up—but definitely rely upon it in the meantime if you have a theft case that arises out of a contract for services.
Watson v. State
No. 04-12-00398-CR 12/4/13
When a confidential informant who performed a controlled drug-buy did not testify at the resulting trial, did the informant’s absence cause authentication, chain-of-custody, accomplice-witness, and Confrontation Clause issues that rendered the evidence obtained by the informant inadmissible?
No. The confidential informant wore a video-recording device, and any witness observing the scene visually depicted by the device was able to lay the necessary predicate for the evidence the device obtained. Officers witnessed the informant go into the house where the buy took place and then come immediately out, so the drugs they took from the informant did not have a chain-of-custody gap that would render the drugs or the lab results inadmissible. Additionally, although the informant was the source of all of the evidence used against the defendant, the fact that the informant did not testify in court put the evidence outside of the accomplice-witness rule. Finally, the videotape was being taken to prove events that were unfolding in the present moment, not past events, and therefore the videotape was not “testimonial” and not a violation of the Confrontation Clause. Read the opinion.
This is a good, basic decision on issues that often arise in narcotics cases involving confidential informants. And it should hold up well. Rely upon it if some of these issues come up in narcotics cases.
Fox v. State
No. 06-13-00056-CR 12/4/13
When a person sues a city and includes fantastic accusations the defendant allegedly believes are true, can the defendant be found guilty of tampering with a governmental record if the State proves the accusations against the city are false?
No. Although a notice to sue becomes a governmental record when it is filed, the State is required to prove a defendant knew his claims in the document were false when he filed the document, which is different from proving the claims were actually false. While the State provided witnesses who stated the claims were not true, the testimony did not prove beyond a reasonable doubt that the defendant knew the claims were false when he filed the document. Read the opinion.
It seems that the defendant in this case is one of those individuals who does not recognize the authority of people the rest of us take for granted as proper parts of the criminal and civil justice systems in Texas. In that respect, note that the defendant was prosecuted for tampering with a governmental record under §37.10 of the Penal Code, not simulating legal process under §32.48. It appears that many of the claims that the defendant made, which the State viewed as false statements, were instead viewed by the court of appeals as opinions or conclusions. But it seems like those would be questions for the jury.
Salinas v. State
No. 1-12-00378-CR 12/5/13
Is the $133 court cost assessed by §133.102(a)(1) of the Texas Local Government Code unconstitutional on its face because it violates the separation of powers clause of the Texas Constitution by requiring the judicial branch to collect a tax?
No. The appellant contends that this court cost is a tax that is remitted to the comptroller and primarily used to fund non-court programs. But by the appellant’s own admittance, at least two of those funds are for appropriate court purposes. Because it would be possible for the comptroller to direct those collected costs exclusively to the two funds the appellant properly admits are appropriate, severability principles of the Code Construction Act dictate the entire statute cannot be read as invalid based on the other 12 funds that could be inappropriate. Read the opinion.
Dissent (Jamison, J.):
None of the funds designated by the statute represent a cost necessary or incidental to the trial of a criminal case, and therefore the entire statute should be held invalid. Read the dissent.
Court costs have been increasingly litigated across the state in criminal cases, and it would appear that the Court of Criminal Appeals is eventually going to have to resolve all of these claims. But none of these claims directly attack the validity of a criminal judgment and/or sentence. They should instead be dealt with under the procedures outlined in Chapter 103 of the Code of Criminal Procedure.
Office of the Attorney General
Request from the Office of Court Administration
1) When a municipal defendant appeals a conviction to a county court from a municipal court of record, if the municipal judgment is affirmed, has the defendant incurred additional court costs at the county level?
2) Are any of the court costs collected from the defendant from the municipal judgment directed to the county?
3) Is the city or the county responsible for collecting the court costs and directing the costs intended for the state to the Comptroller?
4) When an appeal from a regular municipal court to a county court results in a trial de novo, if the defendant is found guilty, are the court costs the defendant owes those that should be assessed for a conviction in a county court?
5) In scenario No. 4, is any part of the court costs collected from the county directed to the city? and
6) In scenario No. 4, which entity is responsible for collecting the court costs and directing the court costs intended for the state to the Comptroller?