July 22, 2016

Texas Courts of Appeals

Clement v. State (2nd COA)

No. 02-14-00267-CR        7/14/2016


Did the trial court violate the Fifth Amendment by allowing an in-court field sobriety test to show the defendant did not have resting nystagmus?


No. The privilege against self-incrimination in the Fifth Amendment protects only against testimonial communications. Because the in-court field sobriety test did not elicit testimony from the defendant, it did not implicate her rights under the Fifth Amendment. Read.


Keep this one handy if your opponent springs the old “the defendant has some sort of natural nystagmus” defense at trial. The bulk of the opinion and dissent deal with the failure of the prosecutor and officer to present this evidence in question-and-answer format.


Reed v. State (2nd COA)

No. 02-15-00225-CR        7/14/2016


In a child sexual assault case, is the State allowed to present multiple outcry witnesses?


Yes. Code of Criminal Procedure Article 38.072 allows statements describing the alleged offense made by the child complainant to the first person to whom the child made a statement about the offense. But because the defense challenged the truthfulness of the child victim’s testimony, some of the additional outcry statements about multiple sexual acts committed over a period of time were admissible as prior consistent statements under Tex.R.Evid. 901(e)(1)(B). Other statements were admissible as statements made for the purpose of medical treatment under Tex.R.Evid. 803(4). Read.


Remember, when dealing with hearsay issues, multiple exceptions or statutes may apply to evidence. Give the trial court alternatives to rule the State’s way.


Prince v. State (4th COA)

No. 04-15-00524-CR        7/13/2016


Did the State’s failure to disclose a “ride-along witness” constitute a discovery or Brady violation and prevent the defense from exposing the officer’s bias and motive?


No. During trial, the officer testified that he was “working alone” during a routine traffic stop. The defendant testified that there was another individual with the officer at the time of the stop and search of the vehicle. The defendant knew there was another individual present, although the prosecutor apparently learned about the “ride-along witness” only after the defendant testified to the ride-along’s presence at the scene. Prior to closing argument, the prosecutor talked to the officer outside of court, and the officer told the prosecutor that the ride-along witness was a high school student who was interested in being a police officer and was essentially job-shadowing the officer. The Court agreed with the State that there was no Michael Morton Act violation because the defendant knew about the existence of the ride-along witness and because the defense had the opportunity to cross-examine the officer regarding this witness but chose not to. Read.


We may see more of this case on discretionary review or habeas. No reader should come away from it with the idea it is permissible for an officer to omit the presence of another person on the scene from his report and then parse his words at trial. Another trial court might have lunched on chopped prosecutor with a garnish of diced officer on these facts.


Wiggins v. State (14th COA)

No. 14-15-00480-CR        7/14/2016


In a guilty plea, must the record contain a specific finding that a defendant said he understood the consequences of a deadly weapon finding to satisfy the Due Process Clause?


No. The record does not need to show that a defendant specifically understood the consequences of a deadly weapon finding. In this case, the defendant expressly waived his rights against compulsory self-incrimination, right to a trial by jury, and right to confrontation. This differs from the facts in Boykin v. Alabama, where the record is silent as to whether the defendant understood the consequences of his plea. The court compared its holding to Court of Criminal Appeals decisions holding that a trial court’s failure to admonish a guilty-pleading defendant on the range of punishment does not make a plea invalid under Boykin. Read.


The 14th Court joins the 6th Court in holding that there need not be a specific admonishment in guilty pleas about the effect of a deadly weapon finding.

Ex Parte Harrington (14th COA)

No. 14-16-00059-CR        7/14/2016


Is §32.51 of the Texas Penal Code unconstitutional on its face?


No. The court concluded that §32.51 is “a straightforward proscription against the improper possession or use of another person’s private identifying information.” The defendant contended that “thoughts qualify as the ‘possession’ of information, which means that a person can be charged for merely thinking about another person.” The court rejected the defendant’s argument that §32.51 violates the First Amendment because there is no actus reus (required act). Possession of identifying information—not thought—is the activity proscribed by the statute, the court concluded. Read.


This First Amendment battle goes to the State. Reading the full opinion may result in an Eighth Amendment violation.

Office of the Attorney General

Request from Texas Forensic Science Commission

RQ-0117-KP        7/18/2016


Whether “forensic analysis” as defined in Article 38.35 of the Code of Criminal Procedure that is neither accredited by the Commission nor exempt by statute or administrative rule is admissible in a criminal action under Texas law?

Read request.

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