Texas Courts of Appeals
Ripstra v. State (14th COA)
Nos. 14-15-00842-CR & -00843-CR 12/29/16
May a defendant’s Facebook posts be admissible under Rule of Evidence 801(e)(2) as an admission of a party opponent?
Yes. In this case, a mother was charged with deliberately causing ongoing medical problems for her daughter. The State offered the mother’s Facebook posts to support its theory that the defendant was abusing her daughter to get attention—seeking affirmation from her friends on Facebook whenever the daughter had health problems. The Court affirmed the trial judge’s decision to admit the hearsay statements made by the defendant (but not statements made in response by her Facebook friends), noting that the only requirements for admission of party opponent are that: (1) the admission is the opponent’s own statement and (2) it is offered against her. Read opinion.
This is a fascinating case. The defendant was a pediatric nurse abusing her toddler in a manner described as “medical child abuse,” which included falsely reporting symptoms leading to unnecessary and extreme medical treatments, poisoning her toddler with salt, tampering with her daughter’s medical devices, and removing her child’s blood from a central line. The court was little troubled by the hearsay objection.
Nolen v. State (2nd COA)
No. 02-15-00159-CR 12/22/16
Does Code of Criminal Procedure Art. 38.37, §2(b) (allowing testimony about extraneous offenses to show character conformity) violate the constitutional prohibition against ex post facto laws, when a defendant’s crime was committed before the effective date of the statute (9/1/13)?
No. Art. 38.37, §2(b) does not violate the ex post factor provisions because it does not change the State’s burden of proof or lessen the amount of evidence required to obtain a conviction. “Article 38.37 eliminates the necessity of showing the evidence falls within one of the exceptions to rule 404(b). In that sense, it relaxes the strictures associated with rule 404(b); however, in no way does it alter the quantum of proof required by law to support the conviction.” Read opinion.
This is an unpublished case, but the analysis of the ex post facto challenge to Art. 38.37 is a useful addition to the child abuse prosecutor’s toolkit. The analysis of the ineffective assistance of counsel claims is similarly useful to prosecutors litigating Art. 11.07 writs.
Ex parte Shires (2nd COA)
No. 02-16-00348-CR 12/29/16
Does Texas Constitution Art. I, §11b violate the 14th Amendment because it does not require a trial court to find by clear and convincing evidence that release of a pretrial detainee on bond would pose a substantial risk of harm to the community and that no conditions of pretrial release would otherwise assure the community’s safety?
No. Due process does not require that a trial court make express findings, nor does it require that the judge consider alternative conditions before imposing a condition of pretrial detention. The Court also rejected the defendant’s argument that Art. I, §11b is facially unconstitutional because it does not require trial courts to make findings about community safety and pretrial bond release under a clear and convincing evidence standard. Read opinion.
Dissent (Dauphinot, J.):
Justice Dauphinot contended that the U.S. Constitution requires a trial judge’s ruling about community safety in regard to pretrial release to be decided under a clear and convincing evidence standard rather than a preponderance of the evidence standard allowed under Texas. Constitution Art. I, §11b. Read dissent.
This case bears watching because of various movements, including in the Texas Legislature, to change the bail system. It would not be surprising to see the same claim pop up in other cases until the Supreme Court addresses the issue directly.
Olivas v. State (2nd COA)
No. 02-14-00412-CR 12/30/16
Does the Texas Constitution require a warrant and finding of probable cause to obtain cell tower location information?
No. The Court agreed with the 14th Court of Appeals (Jackson v. State, 491 S.W.3d 411 (Tex. App. — Houston [14th Dist.] 2016, pet. filed) that obtaining cell phone records from a service provider by court order under a prior version Code of Criminal Procedure Art. 18.21, §5(a) does not violate either the 4th Amendment or Texas Constitution Art. I, §9. Read opinion.
Dissent (Dauphinot, J.):
Justice Dauphinot would find insufficient evidence to prove the defendant committed capital murder by killing the mother of his child and his baby, then committed arson to hide evidence. “I must ask, have we learned nothing from Cameron Todd Willingham? From Michael Morton? … Willingham, Morton, and an unsettling number of other persons have been convicted, not because of intended prosecutorial misconduct, but because the investigation centered exclusively on them early on and sloppy pseudo-scientific investigation showed the possibility of their guilt.” Read dissent.
The court’s holding on cell-phone records is consistent with the application of the third-party information doctrine and existing precedent. The dispute between the majority and dissent on sufficiency of the evidence might be interesting reading on a cold winter night.
Mumphrey v. State (6th COA)
No. 06-16-00016-CR 12/28/16
May a trial judge sit on a felony DWI case when he was the prosecuting attorney in a prior negligent homicide admitted in the punishment phase of the trial??
Yes, in these circumstances. The Court distinguished this case from Williams v. Pennsylvania, 136 S.Ct. 1899 (2016) in which the judge had unconstitutionally failed to recuse himself from a capital murder case in which he previously had personal involvement as a prosecutor. First, the judge had not participated in the case on trial as a prosecutor. Second, unlike in Williams, the defendant in this case never sought to recuse the trial judge even though the defendant was aware of the judge’s prior participation in the negligent homicide case, which had previously been filed as intoxication manslaughter. Finally, Texas law (unlike Pennsylvania law applicable to Williams) does not automatically disqualify a trial judge because he previously represented the State in a prior case against the defendant. And most significantly, in this case, the jury—not the judge—decided both guilt/innocence and punishment. Read opinion.
This probably would not have been an issue at all if the defendant hadn’t testified about the prior conviction during the punishment phase and the judge had not disputed the defendant’s version of the facts after the jury assessed. The Texas Rules of Disciplinary Professional Conduct and Canons of Judicial conduct do not prohibit a judge from sitting in this situation.
Penigar v. State (2nd COA)
No. 02-16-00100-CR 12/22/16
Does enhancement of a third-degree felony for a habitual offender—raising the punishment range to 25 to 99 years or life—transform the offense into a first-degree felony?
No. A finding that a defendant is a habitual offender raises the punishment level but does not increase the felony offense level. Read opinion.
See a story by former TDCAA Research Attorney Jon English about this issue in the The Texas Prosecutor, “State jail dungeons and bad judgment dragons,” (Nov.–Dec. 2016).
Texas Attorney General Opinions
Opinion KP-0216 1/3/17
May a district attorney use asset forfeiture funds to buy carpet for a county-owned building?
Yes. Purchasing carpet for a county building could be a permissible use of forfeiture funds as remodeling and renovating costs as long as the expenditure relates to the official purposes of the prosecutor’s office. An elected prosecutor need not seek commissioners court permission to spend the forfeiture funds for this type of authorized purpose, as long as the expenditure does not interfere with the commissioners’ authority with respect to county buildings. Read opinion.
But does this mean that commissioners will now expect us to replace old, dirty carpet instead of them?
Mandatory Brady Training
Every lawyer in a prosecutor office prosecuting criminal cases above Class C misdemeanors must complete a mandatory one hour training on Brady and the duty to disclose exculpatory evidence within 180 days of beginning work as a prosecutor. See Tex. Gov’t Code §41.111. TDCAA offers a court-approved class online that is free. You can find it on the TDCAA web site here. Once you complete the course, TDCAA will report your compliance to the Court of Criminal Appeals. If you have any questions, call Rob Kepple at 512-474-2436.