Texas Courts of Appeals
No. 11-11-00219-CR 7/11/13
Did the trial court correctly deny the defendant’s motion for mistrial after a juror was found to be disqualified and dismissed, leaving only 11 members on the jury?
Yes. The defendant did not object to, and actually agreed with, the trial court’s finding that the juror was disqualified because she could not be fair and impartial. A trial court must consider less drastic alternatives to a mistrial, and in cases such as this, that alternative is provided by statute: 11 jurors may render a verdict under CCP art. 36.29.
It may take months or years to get a murder case like this one to trial because of busy dockets, conflicting schedules, and the other sources of friction inherent in criminal litigation. A prosecutor and his team may spend many sleepless nights reviewing and preparing for trial. The parties may spend all day picking a jury to try this very important case. But then, rather than spend another few minutes to seat an alternate juror or two, the parties seat only 12. Jurors are human beings, and they are inherently fallible and fragile. It is easy to lose one or two because they did not realize the defendant was that Joe Blow, or they catch the flu, or they thought about it and just cannot be fair to someone accused of committing the charged offense. The court does a good job explaining how the rules can operate such that you can obtain a verdict from 11, but a prudent prosecutor (and trial judge) should always take advantage of the laws that allow—encourage even—the use of alternates. A one-day trial needs one alternate. A trial longer than one day needs two alternates. If your jury box is not big enough, explain to the commissioners that retrying one murder case will cost more than that little bit of construction needed. I have never heard a valid explanation for the failure to seat alternates other than seating issues.
Nos. 14-12-00461-CR & 14-12-00462-CR 7/11/13
Did the trial court err in denying the defendant’s request to disclose the identity of a confidential informant (CI) and motion to suppress based on allegedly false statements in a search warrant affidavit?
No. The defendant failed to show the CI should be disclosed under TRE 508 because the CI in this case merely provided information used to establish probable cause for a warrant; he was neither a participant in the offense nor present when the search warrant was executed. The defendant also failed to show that the affiant knowingly, intentionally, or recklessly disregarded the truth of statements made by the CI and included in the affidavit for the search warrant.
This case can be a useful tool to show prosecutors and officers how confidential informants may be properly used while still protecting their identities under TRE 508. The case was interesting, too, because of the defendant’s substantial attack on the warrant under Franks. I will be sharing this case with some narcotics officers in my county.
No. 14-12-00800-CR 7/16/13
Did the trial court err in granting the defendant’s motion to dismiss based on a due process claim because of a 14-year delay between the alleged offense and the indictment?
Yes. The defendant was charged with aggravated sexual assault of a child, which has no statute of limitations, so he had the burden to show the delay: 1) substantially prejudiced his right to a fair trial, and 2) was intentionally used by the State to gain a tactical advantage. The defendant failed to present any evidence of improper purpose on the State’s part because at most, the delay was a result of inadequate police work by an inexperienced detective.
A great State’s-appeal victory from a difficult record. The trial court made a devastating finding that the delay here was to gain a tactical advantage. Compounding that, the trial court found the detective who caused the delay was not credible. But kudos to the prosecutors who stuck to their guns and relied on the record, which contained nothing supporting the court’s findings of bad intent. This case shows the limit of “almost total deference” to trial court findings of fact based on credibility and demeanor. Almost, but not total. This opinion will go in my State’s appeal toolbox.
Texas Attorney General
No. RQ -1135-GA 7/12/13
Does Government Code §51.608, as added by SB 389, violate the constitutional prohibition on ex post facto laws because upon conviction a criminal defendant could be charged court costs not attached to the offense at the time it was committed?
No. RQ-1136-GA 7/15/13
Do the bills passed by the 83rd Legislature (2013) regarding the confidentiality of juvenile records in fine-only misdemeanor cases irreconcilably conflict? If so, which bill controls? If not, when do each of the bills become effective?