Texas Court of Criminal Appeals
Holder v. State
No. PD-0026-21 2/2/22
Issue:
When a trial court fails to suppress evidence that was obtained as a result of an illegal search in violation only of Article I, §9 of the Texas Constitution, what is the proper harm analysis?
Holding:
In a unanimous decision, the Court held Texas Rule of Appellate Procedure Rule 44.2(b) (“Other Errors” that do not affect substantial rights) provides the proper harm analysis. Exclusion of evidence obtained only in violation of Article I, §9 of the Texas Constitution falls under Art. 38.23 of the Code of Criminal Procedure (Evidence Not to be Used), which is a statutory violation instead of a constitutional violation. Therefore, Texas Rule of Appellate Procedure Rule 44.2(a) (“Constitutional Error”) is not the correct standard. Read opinion.
Commentary:
The Court’s ruling might seem counter-intuitive at first blush, given that the evidence in this case was obtained in violation of the Texas Constitution. However, the Court logically explains that, because the Texas Constitution has no exclusionary remedy of its own, CCP Article 38.23—Texas’s statutory exclusionary rule—provided the only basis to actually exclude the evidence at trial. Thus, because the evidence here was obtained in violation of only the Texas Constitution, but admitted in violation of only Art. 38.23, a statute, the error was non-constitutional in nature and triggered only the non-constitutional harm-analysis standard of TRAP 44.2(b). Recall, though, that if evidence is obtained in violation of the Fourth Amendment of the United States Constitution, its improper admission is a constitutional error because the Fourth Amendment has an inherent exclusionary rule. See Hernandez v. State, 60 S.W.3d 106-07 (Tex. Crim. App. 2001). This decision will likely be of interest to only appellate practitioners, but it is important because TRAP 44.2(b) is a more forgiving harm standard, requiring an appellate court to disregard non-constitutional errors, defects, irregularities, or variances—including statutory or rule violations—unless the errors affected the defendant’s substantial rights.
Shumway v. State
Nos. PD-0108-20 & -0109-20 2/2/22
Issue:
Does the corpus delicti rule bar a conviction in a case involving a defendant who confessed to committing a sexual offense against a pre-verbal child that did not result in any perceptible harm?
Holding:
No. An exception to the corpus delicti rule is appropriate in cases in which evidence introduced at trial shows the defendant voluntarily confessed to a sexual offense against an infant who is incapable of outcry that did not result in any perceptible harm. So long as the record reflects sufficient corroborating facts and circumstances of the confession itself and the State presents legally sufficient evidence satisfying the standard set out in Jackson v. Virginia, the conviction should be upheld. Here, the defendant’s conviction was not barred because evidence showed the defendant: 1) was left alone in the presence of the child during the time of the confessed incident, 2) was exhibiting internal religious turmoil and was emotionally withdrawn following the incident, and 3) had confessed consistently to two separate individuals. Read opinion.
Concurrence (Slaughter, J.):
Because the judicially created corpus delicti rule no longer serves a legitimate purpose and has never been legislatively adopted, the rule should be abolished entirely. Read opinion.
Commentary:
Although the majority of the Court reaffirmed that the corpus delicti rule is here to stay, the Court nonetheless has created another important exception. The Court was careful to explain that this “incapable of outcry” exception, like the “closely related crime” exception adopted in Miller v. State, 457 S.W.3d 919 (Tex. Crim. App. 2015), is narrow and was warranted because of “the unique circumstances presented in this case.” However, based on the Court’s analysis and the Court’s “public policy concerns[,]” as expressed here and in Miller, it is possible that the Court could extend the “incapable of outcry” exception to other, similar scenarios which also “involve victims who lack the ability to relate the occurrence of the crime[,]” such as adult victims of sexual offenses who are mentally ill or are mentally or physically disabled.
Laws v. State
No. PD-1124-20 2/2/22
Issue:
Must a defendant seek a mistrial or file a motion for a new trial supported by an affidavit to preserve his CCP Art. 36.22 (Conversing with Jury) complaint when an alternate juror is permitted to retire with the jury while it deliberates?
Holding:
No. The Court held that an Art. 36.22 complaint is not the same type of claim as a juror misconduct claim, which requires the defendant to seek a mistrial or to file a motion for new trial. Misconduct requires the defendant to provide extrinsic evidence proving the misconduct. At issue here was the presence of the alternate juror, and although the defendant did not specifically state “Art. 36.22” in his objection, it was preserved when the adverse ruling was obtained. However, the Court did not address whether permitting an alternate juror to retire with the jury during deliberations was a violation of Art. 36.22 causing substantial harm to a defendant. Instead, the court remanded the case to the court of appeals to address the issue. Read opinion.
Commentary:
It is important that attorneys and judges know the distinctions between the types of alternate juror-related claims that can arise in a case like this because here, only a juror-misconduct objection requires extrinsic evidence of the misconduct to establish error. In contrast, the existing record will suffice to establish a violation of CCP Art. 36.22 (alternate juror present during deliberations) or Article V, §13 of the Texas Constitution (right to 6- or 12-person jury) because the record will show whether or not an alternate juror was present during deliberations. Hence, while a defendant must move for a mistrial or file a motion for a new trial to preserve error for a juror-misconduct claim (since those are means by which the defendant can develop proof beyond the existing record to demonstrate the alleged misconduct), a mere objection—not a motion for mistrial or new trial—when an alternate juror’s improper presence is discovered is all that is required to preserve those other errors.
Texas Courts of Appeals
Ex parte Ramirez-Hernandez
No. 04-21-00340-CR 1/26/22
Issue:
Did a trial court properly deny a defendant’s application to reduce his cumulative bail of $1 million?
Holding:
No. In applying the factors set out in Ex parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. [Panel Op.] 1981), the court held that although there was no indication the bail amount was used as an instrument of oppression, the offenses and possible sentence were of a serious nature, and there were concerns the defendant might be a flight risk, the amount constituted a de facto setting of no bond and reversed the trial court’s order. Read opinion.
Commentary:
Although trial and appellate courts consider all the factors enumerated in CCP Art. 17.15 and Ex parte Rubac when determining whether the amount of bail set is excessive, practically speaking, the most important factor is the defendant’s flight risk, since that consideration is most closely connected with the ultimate purpose of bail—to secure the defendant’s presence for trial. Accordingly, for prosecutors, the more evidence that you can present to show that the defendant is a high flight risk, the better the chances that a high bail amount—whether for one charge or cumulatively for multiple charges—will survive judicial scrutiny. To prove high flight risk, consider adducing any evidence that you can regarding the defendant’s: previous failures to appear for court settings; poor ties to the community (lack of family or friends in the area, no stable employment or other regular commitments in the area, etc.); strong community ties beyond the jurisdiction; prior disregard for bond conditions (e.g., leaving the jurisdiction without permission, failing to abide by a curfew, etc.); prior disregard for community supervision conditions; funds and means to flee; motive to flee (e.g., facing a lengthy prison sentence or onerous collateral consequences like lifetime sex offender registration if convicted); etc.
Texas Attorney General Opinion
KP-0400 2/1/22
Issue:
Can a part-time assistant county attorney representing the Department of Family and Protective Services (DFPS) maintain a private practice representing parents or children in CPS cases in other counties?
Conclusion:
Because the assistant county attorney would receive a salary less than the benchmark salary, Government Code §§46.005(a) and 41.254 would not prohibit the assistant county attorney from maintaining a private practice. However, Texas Disciplinary Rules of Professional Conduct Rules 1.06 (prohibiting an attorney from representing opposing parties to the same litigation) and 1.10 (prohibiting an attorney from representing a private client in connection with a matter in which the attorney participated personally and substantially as a public employee unless the appropriate government agency consents after consultation) may be implicated. Read opinion.
Commentary:
Ultimately, the question of whether a part-time assistant county attorney can represent DFPS in cases in one county while maintaining a private practice in another county wherein the attorney represents parents or children in cases against the Department will turn on the specific facts of each case the attorney handles. A conflict of interest is not automatic but could arise in any number of circumstances. As the AG opinion notes, though, the Department has the burden to establish a violation of one or more of the disciplinary rules, including those pertaining to conflict of interest, if it seeks to disqualify an attorney in a case. See In re Houston Cnty. ex rel Session, 515 S.W.3d 334, 342 (Tex. App.—Tyler 2015, orig. proceeding).