Texas Court of Criminal Appeals
Ex parte Best
Nos. WR-89,923-02 & -02 2/3/21
Issue:
Can a district judge require the Texas Department of Public Safety Crime Lab to make an audiovisual record of DNA testing in a capital murder trial with five defendants?
Holding:
No. While Code of Criminal Procedure Article 38.43 gives trial courts some discretion in regulating pretrial DNA testing, “it does not extend to the point of ordering the State to create or generate evidence that does not otherwise exist. This Court has plainly said that a trial court does not have the authority to do that.” Read opinion.
Commentary:
This decision is only 11 pages long, but it is packed with a lot. In these cases, the trial judge ordered the State and DPS to videotape the lab during the DNA testing in these cases and use no fewer than three cameras to capture the entire DNA testing process—audio and video. In rejecting the trial court’s authority to issue such an expansive order, the Court of Criminal Appeals has once again rejected a trial judge’s authority to require the State to “create” evidence. Cite to this decision if a trial judge has far exceeded his authority in matters of discovery or evidence testing. The Court also held that the defendants’ due process rights were not violated, even though the State’s DNA testing might exhaust or consume the available samples to be tested, thereby preventing the defendants from doing their own testing. Of interest to those who consider filing mandamus actions, this is also one of those rare cases in which the Court of Criminal Appeals permitted the application for a writ of mandamus to be first filed with the Court of Criminal Appeals, without first filing an action in a court of appeals. One reason is that the State also filed an application for a writ of prohibition, over which courts of appeals do not have jurisdiction. The other reason is that many of these cases were capital murder cases in which the State was seeking the death penalty, over which the Court of Criminal Appeals has exclusive jurisdiction.
Texas Courts of Appeals
Ex parte McManus
Nos. 07-20-00152-CR & -00153-CR 1/26/21
Issue:
Was bail of $200,000 for a felony evading arrest charge and $200,000 for failure to appear for jury trial unreasonable, considering the COVID-19 pandemic and his pre-existing health conditions of degenerative bone disease, high blood pressure, and migraines?
Holding:
No. The trial court was not required to reduce the defendant’s bail because of his health conditions. Citing similar holdings in Ex parte Robles, No. 14-20-00317-CR (Tex. App. — Houston [14th Dist.] Oct. 29, 2020, no pet.), the Court noted that a trial court may consider any evidence of such claims under the existing factors for setting bail. In Robles, the defendant presented little evidence of the actual risk to him. “We find the same to be true here as [the defendant] has provided no evidence of his medical conditions nor any evidence of whether or how the jail’s COVID-19 procedures would be insufficient to protect him.” Read opinion.
Commentary:
While the defendant made several arguments in support of his position, it appears that he presented the trial judge with precious little evidence. For example, the defendant presented no evidence regarding his medical condition. It certainly did not help the defendant that the two offenses with which he is charged are evading arrest and failure to appear (bail jumping). One wonders if the result would have been a little different if the defendant had done a better job of presenting evidence and showing his greater susceptibility to COVID-19.
Wilkins v. State
No. 02-19-00324-CR 1/28/21
Issue:
Was evidence sufficient to show the defendant was driving a car when officers: (1) saw his car stopped in the right-hand lane of traffic on I-35 with his engine running, transmission in neutral, exterior lights off, and emergency brake on; (2) received multiple 911 calls about the stopped car; (3) saw the defendant driver and a passenger both wearing seatbelts and slumped over asleep, with two open beer cans in the center console and an open 30-pack of beer in the passenger compartment?
Holding:
Yes. Once officers woke the driver, they saw he was groggy with bloodshot eyes, had a hard time walking, and had a strong odor of alcohol about him. Two of the three field sobriety tests the defendant performed indicated intoxication. The Court concluded the evidence was sufficient to convict the defendant of felony DWI (enhanced by a prior felony DWI). Read opinion.
Commentary:
This is a great decision and should be very helpful in cases where the defendant may not have been “driving” the vehicle at the time he was observed but was clearly “operating” it. The court’s research is exhaustive, and it refuses reliance upon older decisions that relied upon the now-defunct “reasonable hypothesis” test.
State v. Adrian
No. 09-20-00041-CR 2/3/21
Issue:
Are two 911 calls from the same caller that an F-150 pickup truck traveling on a specific stretch of a highway whose driver seemed “possibly intoxicated” and almost hit a guardrail sufficient for an officer to make a traffic stop?
Holding:
Yes. The officer had sufficient reasonable suspicion to stop the pickup truck and investigate for suspected DWI. The Court noted that the caller pulled over at the scene of the traffic stop and confirmed the F-150 pickup stopped by the officer was the same one the caller reported. Even though the officer was the only witness to testify at trial and the 911 caller was not named, the evidence was sufficient to investigate the possible DWI. The Court reversed the trial court’s order of suppression of the evidence. Read opinion.
Commentary:
DWI cases are ones in which the State can comfortably rely upon a 911 caller, even if he is anonymous, because such callers usually provide a good deal of specific information either contemporaneously with or shortly after viewing the suspected drunk driver. Read this decision, and the decisions upon which it relies, if you are trying to substantiate an officer’s stop based upon such a 911 call.