February 1, 2019

Texas Court of Criminal Appeals

Hall v. State

No. AP-77,072   1/30/19


Is a defendant entitled to post-conviction DNA testing on a power cord used as a murder weapon when the “lone assailant theory” does not apply and the item was located in a house where a large number of people could have touched it prior to the murder?


No. The defendant cannot show by a preponderance of the evidence that he would not have been convicted if the jury was presented an exculpatory DNA test. Inculpating evidence at trial showed that the defendant acted alone, but evidence that someone other than the defendant was also involved in the crime would not exonerate the defendant. Additionally, the probative value of any exculpatory DNA test result is greatly reduced when there is a significant possibility that innocent persons with access to the item deposited DNA. Here, the defendant further stated at the hearing that he was the murderer and the motion for DNA testing was a “stall tactic” that he had originally agreed to but wished to withdraw. Read opinion. 


As a general proposition, a prosecutor should be cautious about resisting attempts at further DNA testing, especially in a death penalty case. However, when further DNA testing should be resisted, as in this case, this decision provides an excellent resource. Cases such as this are always very fact-bound. The defense made a very aggressive argument in support of additional DNA testing. Beginning with the analysis on page 12 of the Court’s opinion, each argument is thoroughly addressed. The State did a great job in noting the deficiencies in the defense request. Prosecutors who are faced with a contested request for additional post-conviction DNA testing should definitely read this decision.

Rhomer v. State

No. PD-0448-17                1/30/19


May a crash reconstruction expert testify about a motorcycle crash reconstruction when he has no formal training on collisions involving motorcycles?


Yes. Even an expert who has not had formal training on motorcycle-involved crashes may be able to analyze a crash scene based on the physical evidence present at the scene despite the involvement of a motorcycle. Here, the expert was not trained to conduct speed and energy calculations for collisions involving motorcycles, but the expert’s testimony offered no opinions including such calculations. Expert testimony about crash reconstruction in this case should be evaluated for reliability under Nenno (rather than Kelly) because no speed calculations were conducted. That no calculations were done is irrelevant to the expert’s testimony on how and where the collision happened based on the evidence observed at the scene. Read opinion.

Concurrence (Hervey, J., joined by Keasler, Richardson, and Newell, JJ.):

Judge Hervey discussed requirements for the admission of forensic evidence, including crime laboratory accreditation, forensic analyst licensing, and possible preemption of Rule of Evidence 702, which she noted involve questions the bench and bar should be aware of. Read opinion.

Concurrence (Walker, J.):

“To the extent the Court’s decision upholds the trial court’s ruling, I concur. I disagree with the Court’s opinion holding that the court of appeals correctly evaluated the reliability of [the expert’s] opinion under the Nennostandard instead of the Kelly standard. Actual accident reconstruction is a hard science, and the reliability of actual accident reconstruction opinions should be judged under Kelly.” Read opinion.


This opinion appears to turn largely on the lack of complexity and lack of conclusiveness in the expert opinion to which the defendant objected. As such, the expert’s opinion was based primarily upon his general training and experience, rather than mathematical calculations. Judge Hervey’s concurring opinion says literally nothing about this particular case (and that was apparently intentional). Rather, her opinion appears to provide a baseline for future litigation in more heavily contested forensic expert testimony. Of particular interest is her suggestion that the Texas Forensic Science Commission might be able to abrogate Rule 702 of the Rules of Evidence based upon the power given to the Commission under Chapter 38 of the Code of Criminal Procedure. It is unclear that the Legislature intended that, but when prosecutors are attempting to introduce or oppose expert testimony—especially that regarding forensic evidence— they should pay attention to Chapter 38 of the Code of Criminal Procedure and not just Chapter 7 of the Rules of Evidence.


Obtaining Backpage.com historical information

For those prosecutors who are still waiting on historical Backpage.com ads as evidence in pending cases, the federal agencies in control of that information are now accepting new requests for that ad information. Instructions for investigators and prosecutors is available here.

State Bar now taking scholarship applications for upcoming training

The Criminal Justice Section is taking applications for scholarships for various courses. You must be a current member of the Criminal Justice Section to apply. Preference will be given to lawyers licensed 5 years or less. A list of courses and the scholarship application may be accessed here.