Texas Court of Criminal Appeals
State v. Lerma
No. PD-0075-19 11/24/21
Issue:
Did a trial court correctly dismiss a defendant’s capital murder charge upon a motion by the defense after the State refused to disclose the identity of a confidential informant (CI)?
Holding:
Yes. Under Rule 508 of the Texas Rules of Evidence, when there is a reasonable probability that the CI can give testimony necessary to a fair determination of the defendant’s guilt or innocence, the trial court must dismiss the charges if the State does not disclose the CI’s identity. Here, the trial court found Task Officers’ testimony that they did not know the CI’s identity not credible because of their previous resistance to disclose the CI’s identity. The trial court determined this implied the CI had information necessary to the defendant’s guilt or innocence. Read opinion.
Dissent (Keller, P.J., joined by Yeary and McClure, JJ.):
In this case, the CI’s identity that was sought was a CI in a drug case, not the capital murder case. The Rule 508 exception applies only to a case in which the CI could give necessary testimony in the case in which he was a CI. And although the defendant must make a plausible showing only of how the CI’s information may be important, “mere conjecture or speculation” is not enough to satisfy this burden. The defensive theories seem too speculative that there was a connection between the CI drug buyer and the capital murder. Read opinion.
Commentary:
The important thing to know about this case is that it is a State’s appeal, and thus all fact findings were to be construed against the State. What is troubling is that the trial court found that the officers seeking to keep the identity of the informant a secret were not credible. That kind of finding is fatal to any State’s appeal where the credibility of the officers is important to the trial court’s ruling. Hopefully, this decision will be bound to its specific facts. The remedy of dismissal is rarely applied in such cases, and that remedy is particularly harsh in light of the fact that the informant in this case dealt with the related drug case, not the murder, which was the charge that was ultimately dismissed. Read this decision, and the accompanying rule, very carefully if your defendant has filed a motion to disclose the identity of a confidential informant.
Bahena v. State
No. PD-0656-20 11/24/21
Issue:
Must a defendant specifically object to both prongs—“custodian or another qualified witness”—of Rule 803(6)(D) of the Texas Rules of Evidence to preserve his hearsay objection?
Holding:
No. Although the defendant did not specifically object that the witness was not “another qualified witness,” he was objecting on the basis that the sergeant was not the proper custodian of records and his testimony was not adequate to admit the jail calls under the business records hearsay exception. This in turn shifted the burden to the State to establish the admissibility of the recorded jail calls. The Court also found that a supervising officer can satisfy the “custodian” requirement if his subordinate deputy officer compiled the evidence (in this case, jail calls). “[A] qualified witness need not be a custodian of records. Either a custodian of records or another qualified witness may lay the predicate for admission of evidence.” Read opinion.
Commentary:
Although the preservation-of-error issue may be of interest only to appellate prosecutors, all prosecutors should read this decision. The decision makes it clear that the authentication of a business record is not an onerous burden. Furthermore, the State does not have to call a “custodian” to get the record admitted. It only needs to call a “qualified witness” who can testify to the elements of the business-record rule. This should be a very helpful decision.
George v. State
No. PD-1233-19 11/24/21
Issue:
Did the trial court correctly refuse a lesser-included-offense instruction in a conspirator-liability case involving capital-murder in the course of a robbery?
Holding:
Yes. However, the Court held rather than a bright-line rule that “when one decides to steal property from another, he should anticipate that he or his co-conspirator might be confronted by that individual and that his co-conspirator might react violently to that confrontation,” the trial court should instead assess whether a jury could rationally find the defendant guilty of only robbery. Because no evidence was presented to find the defendant guilty of only robbery, the Court upheld the denial of the requested robbery instruction. Read opinion.
Commentary:
The Court’s decision turns on the fact that this was an inherently dangerous plan, by which the defendant should have anticipated a murder. Always be extremely careful in opposing a defense request for a jury instruction on a lesser-included offense. The unique facts of this case support such a conclusion. Focus on pages 19-21 of Judge Slaughter’s opinion for the unanimous court, and you will see the facts that the Court looked to in determining that no rational juror could find that the defendant could not have anticipated a murder. To learn about charges on lesser-included offenses or the application of the law of parties under §7.02(b) of the Penal Code (the so-called “conspiracy theory” of the law of parties), read this decision.
Texas Courts of Appeals
Serrano v. State
No. 02-20-00014-CR 11/18/21
Issue:
Is fleeing an officer (Tex. Transp. Code §545.421(a)) a lesser-included offense of evading arrest (Penal Code §38.04(a))?
Holding:
No. Using the cognate-pleadings analysis set out in Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), the Court compared the elements and descriptive facts alleged in the State’s indictment to the elements of fleeing. Noting that fleeing an officer requires proof of elements that evading arrest does not, the Court held that fleeing is not a lesser-included offense of evading arrest. Read opinion.
Commentary:
In issuing its decision, the court of appeals followed the holdings of other appellate courts on this same issue, and the court of appeals rejected one of its own previous decisions that was issued before Hall was decided. The Transportation Code offense contains many more elements that the Penal Code offense does not. Therefore, the Transportation Code offense cannot be a lesser-included offense of the Penal Code offense.
State v. Serna
No. 03-20-00087-CR 11/17/21
Issue:
Did a trial court correctly suppress evidence of a handgun seized by officers from a locked car parked in a home’s carport when arresting the defendant pursuant to a warrant for credit/debit card abuse?
Holding:
Yes. Although the defendant did not own the home where the car was parked, he had permission to stay at the home as an overnight guest. As a result, he had an expectation of privacy in his mother-in-law’s home, which extended to the home’s curtilage where the car was parked under a carport. Additionally, because the officers executed the arrest warrant for the credit/debit card abuse after they left the home’s curtilage (walking past two other parked cars in the driveway toward the street), their right to be within the curtilage ended and the plain view exception no longer allowed them to walk back to the car and seize any items from the curtilage without a warrant. Read opinion.
Commentary:
This decision largely turned on whether the defendant had standing, and based upon the application of the “overnight guest” and “curtilage” rules, it is pretty clear the defendant did have standing to challenge the search in this case.
Texas Attorney General Opinion
KP-0393 11/17/21
Issue:
(1) Does a county judge or the commissioners court terminate a declaration of a local state of disaster?
(2) Can a county judge declare a disaster every seven days and circumvent commissioner court approval?
(3) Can an influx of illegal immigrants fit within the definition of a “disaster”?
(4) If the commissioners court consents to a declaration, is a county judge authorized to pay bills incurred by the county out of the contingent and uncommitted fund without commissioners court approval?
Conclusion:
Gov’t Code §418.108 provides for the county judge’s authority to declare a local state of disaster, but local disaster powers of a county are limited by any existing state law, including any executive orders or proclamations issued by the Governor. A county judge may terminate a local disaster declaration at any time, and the commissioners court may prevent the extension of the declaration beyond seven days or revoke consent for its continuation thereafter. However, a county judge does not have the authority to declare a new disaster for the same underlying circumstances without the consent of the commissioners court following the first seven-day period.
A surge of individuals crossing the border into the county could (and has) created circumstances warranting emergency action and a local disaster declaration.
A county judge lacks authority to pay bills incurred by the county out of the contingent and uncommitted fund without the commissioners court’s approval. Read opinion.
Commentary:
This opinion is an exercise in statutory construction. While it is a lengthy opinion, its conclusions appear to follow from the controlling statutes. In addition to answering the questions asked, the opinion notes the supremacy of the Governor’s disaster declarations. The opinion also notes that the Governor has issued a disaster proclamation that “the ongoing surge of individuals unlawfully crossing the Texas-Mexico border poses an ongoing and imminent threat” of disaster for certain border counties. Thus, while the opinion may set forth the boundaries for the dispute between the county judge and commissioners’ court, that might not settle the dispute altogether, since the Governor and the Legislature can also weigh in on this issue. And they have.
Judges Needed for Regional Mock Trial Tournament in Arlington in February
The University of Texas at Arlington will be hosting the AMTA Regional Mock Trial Tournament and will be returning to a live format on February 25-27, 2022. The Arlington Regional will involve nearly 250 students from 14 different colleges and universities across the country. To ensure the event’s success, UTA is asking for volunteer judges. For more information on how to participate, check out the announcement on our website.