July 14, 2017

Texas Courts of Appeals

In re Clendennen

No. 10-16-00427-CR        7/5/17


May a defendant seek a writ of mandamus from a denial of a motion for recusal? When may a trial court disqualify a district attorney on the basis of a conflict of interest?


“Relator’s petition for writ of mandamus is denied.” Read opinion.

Concurrence (Gray, J.):

Mandamus is an extraordinary legal remedy that should be utilized only when no other adequate legal remedy exists. An appeal is usually an adequate legal remedy for trial court errors, including denial of a motion for recusal. Furthermore, a petition for mandamus is premature when there is an insufficient record to determine whether a claimed dispute is material to the case and whether only the district attorney’s testimony can resolve that dispute. Read opinion.

Concurrence (Davis, J.):

The resolution of this petition rests on the discretion exercised by the district attorney and by the trial court. A prosecutor abuses his discretion and may be disqualified for a conflict of interest only when the conflict rises to the level of a due process violation. The standard of review for disqualification of a prosecutor by a trial court is whether the trial court abused its discretion. Neither the district attorney’s actions nor the trial court’s ruling constitutes an abuse of discretion. Read opinion.


It is extraordinarily difficult to remove an elected prosecutor from a case, and there are sound policy reasons for that. When to recuse an office is an issue largely reserved to the discretion of the prosecutor. The disparate opinions from the court of appeals in this case offer little guidance on when an elected district attorney should recuse.

Price v. State

No. 14-15-00987-CR        7/11/17


Does a juror who falsely denies having seen news coverage about the case during trial become “disabled” within the meaning of Code of Criminal Procedure Art. 36.29?


No. There is a distinction between a venireperson being disqualified and a juror being disabled from sitting. Although lying to the court would have made a venireperson subject to a challenge for cause, it does not render a juror disabled from sitting. Neither does the definition of disability include juror misconduct. The fact that the juror denied having watched the news coverage, but stated he could still be fair and impartial, does not qualify as a “mental condition” or “emotional state” that would render him disabled. Read opinion.

Concurrence (Christopher, J.):

The judge could have concluded that the juror was disabled because lying and withholding evidence from the court is a condition that “potentially inhibits a juror from fully and fairly performing the functions of a juror.” However, the appellate court may reverse the trial court’s ruling only if it is an abuse of discretion, which this was not. Read opinion.


Trial courts can seat up to four alternate jurors in felony cases and up to two alternate jurors in misdemeanor cases. (Tex. Code Crim. Proc. Art. 33.011). More and more we see jurors doing things they should not do during trial, and they still get sick, have deaths in the family, and learn during trial that they actually know parties and witnesses. Retrials are hard; seating alternate jurors is easy. Prudence dictates that we request courts to seat alternate jurors. Keep an eye on this case—the issue may catch the interest of the Court of Criminal Appeals.

Cameron v. State

No. 04-12-00294-CR        7/12/17


Is the public wrongfully excluded from voir dire when everyone present was asked to leave the courtroom to accommodate the large venire panel and was not able to return due to space concerns?


Yes. The 6th Amendment right to a public trial extends to voir dire. Violation of the right to a public trial is a structural error that does not require a showing of harm. The defendant must show that the trial was closed to the public, and if this burden is met, then the reviewing court must determine if the closure was justified. In this case, when all spectators present before the start of voir dire were asked to leave to seat the panel and not allowed back in on request because there was no available seating, the trial was closed to the public. The closure is not justified when the court fails to consider all reasonable alternatives, such as dividing a large venire panel to reduce courtroom congestion. Read opinion.

Dissent (Angelini, J.):

The defense failed to meet its burden to prove that the voir dire was not open to the public. The trial court’s findings show that the courtroom was cleared to seat the venire panel, but the bailiffs did not tell spectators that they would be excluded from watching proceedings. Read opinion.


It is possible this case will make another trip to the Court of Criminal Appeals because of the dissent and because the Court of Appeals ruled that the trial court’s findings were unsupported. What prosecutors should take from this case is the need for situational awareness in the courtroom. Prosecutors need to know what the bailiffs and judge are doing, and if they are closing the court to spectators in voir dire, we need to speak up. If there is a big trial coming up where you know there is large community and media interest, you may need to get with the judge ahead of time and plan how to accommodate observers during voir dire.

Alberty v. State

No. 06-16-00204-CR        7/11/17


Are certified copies of judgments of conviction, mug shots, and witness testimony sufficient evidence to link a defendant to prior offenses when non-corresponding fingerprint cards were inadvertently included in the penitentiary packets?


Yes. The State must prove two elements beyond a reasonable doubt to establish that a defendant has been convicted of a prior offense: 1) a prior conviction exists, and 2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove these elements, but “evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means” to prove a prior conviction. Read opinion.


A messed-up pen packet is better than no pen packet at all. This case shows the need for a better system to prove up prior criminal convictions. It seems silly that we have electronic submission of cases by law enforcement, electronic filing of documents by attorneys, and digital video in court rooms, but only messy stacks of paper to prove that defendants are habitual offenders.


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