January 17, 2014

Court of Criminal Appeals

Ex Parte Coty

No. WR-79, 318-02                1/15/14


When a forensic scientist has been found to have falsified evidence in one case, does that misconduct create an automatic due-process violation in every case the scientist worked on?


Not anymore. A due-process violation occurs when evidence is both false and material to the case. Under the Court’s previous opinions, both falsity and materiality have been presumed in every case the scientist worked on. But this opinion holds that only falsity should be presumed, and it should be presumed only if the defendant establishes each prong of a new, five-prong test. The State will have the opportunity to rebut that presumption. If the defendant meets his burden to establish the inference of falsity, the defendant must still show the evidence was material to the instant case to establish a due-process violation. Read the opinion.

Concurrence (Price, J.):

Rebutting the presumption of falsity is not as easy as it seems. For example, if a scientist had just guessed a substance’s type and weight without doing the tests he claimed he did, the State can’t show that evidence is not false by proving the guess was accurate. The actual evidence that the jury used to convict, the scientist’s report that claims he ran tests he never ran, is still a lie. And that lie is the source of the due-process violation. The fact that the guess was still accurate will go to the materiality of the evidence, not its falsity.  Read the concurrence.


Read this opinion so that you can have a better understanding how one bad scientist can knock the wheels off the criminal justice system. We all must be vigilant to make sure that everything is good with our witnesses. That said, the CCA has taken a step back from a “defendant always wins” rule. Now, even if there was a bad chemist on a case, prosecutors can point out that the defendant had other, properly tested dope at the time of the arrest, confessed, etc., and perhaps save the case. But with a bad enough scientist, a defendant may be able to win in those cases where the bad science mattered to the case and we cannot retest the evidence. Let us hope that the worst of this is behind us. Texas has made consistent strides toward integrity in scientific evidence in criminal case for almost a decade through its requirements of accredited laboratories, the availability of post-conviction DNA testing, changes to the habeas corpus statutes, and the Forensic Science Commission. But vigilance is still necessary.

Ex Parte Walton

No. WR-75, 599-03                1/15/14


The applicant’s 328-page memorandum of law attached to his writ has prompted the Court to announce page and word limits on habeas writs.


The Court amended the rules of appellate procedure to establish a 15,000-word limit on habeas writs that are computer-generated and a 50-page limit on writs that are not computer-generated. Read the opinion.


This new rule may be the greatest thing since sliced bread for habeas prosecutors. The 50-page hand-written manifesto is so much more pleasant than the 300-page version. Maybe someday the Court will be able to require pro se litigants and inmates to type their habeas petitions. There may be meritorious claims that go unaddressed in habeas simply because no one can read the handwriting.

Ex Parte Gilley

No. PD-1581-12                     1/15/14


Was the court’s in camera competency examination of a child complainant a violation of the defendant’s Sixth Amendment right to counsel at a “critical stage” of trial proceedings?


No. A competency exam is not a critical stage of trial. A pre-trial event is critical if having counsel at the event would have changed the outcome of the event in a way that benefits the defendant. The language of Rule 601(a)(2) of the Texas Rules of Evidence does not require the trial court to allow parties to participate. Read the opinion.  

Dissent (Johnson, J.):

Competency hearings are critical stages of trial because the outcome has a direct relationship with the trial. Read the dissent.

Dissent (Keasler, J.):

The Court improperly considered  the right-to-counsel claim because the claim was not addressed by the court of appeals. Read the dissent.


 The trial defense counsel here argued himself right out of court. We would discourage trial judges from handling this type of hearing outside the presence of counsel for both parties. While this record did not show the type of constitutional violation the defendant claimed—deprivation of counsel—one could argue others that might hold water. We could make arguments that merely receiving a transcript is not enough. Some statutes might be in play as well.

Office of the Attorney General

Request from the Rockwall County District Attorney

RQ-1178-GA              1/9/14


Request for opinion as to whether the Rockwall County Juvenile Board is authorized to perform certain duties, including adopting personnel and other policies for use by the juvenile probation department. 

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