Texas Court of Criminal Appeals
No. PD-0175-14 2/25/15
Does the common-law “tacking doctrine” allow offenses that are more than 10 years old to be revived by more recent offenses of moral turpitude and presented at trial?
No. Although the doctrine once filled in gaps in the language of previous versions of the Rules of Evidence, the unambiguous language of the modern Rule 609 supplants the doctrine and renders offenses older than 10 years inadmissible unless the judge finds their probative value substantially outweighs their prejudicial effect. Read the opinion.
So under this decision, you can still use the fact of a defendant’s intervening conviction to support the ability to impeach the defendant with an otherwise remote prior conviction (more than 10 years old). But now it is just one factor among many that can be considered by the trial judge. This decision is in line with what the Fourteenth Court of Appeals decided in Leyba v. State, 416 S.W.3d 563 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d), which the court here cited with approval. One more instance in which the common law has been replaced by the more recent rule or statute.
No. PD-1189-13 2/25/15
When the jury returned a general verdict of “guilty” in a felony murder trial where injury to a child was the underlying felony, but on appeal the verdict was reformed from felony murder to the lesser-included underlying felony and remanded for a new sentencing hearing, was a new trial on guilt/innocence actually required because the general verdict precluded the trial court from determining which mens rea the jury had found accompanied the injury to a child offense and therefore also precluded the trial court from determining the appropriate punishment range?
Yes. A whole new trial must be ordered because punishment ranges for injury to a child vary depending on whether the offense was committed intentionally, knowingly, or recklessly, and the jury charge included each of those mental states in the disjunctive. Read the opinion.
This is an anomaly from the normal decision that would be made in this type of case. Because there are different punishment ranges for the possible offenses, depending upon which culpable mental state applied, the court felt forced to award the defendant an entirely new trial. The only way to avoid this would be to plead or charge a culpable mental state that limited the possible punishment to only one degree of offense.