July 31, 2015

Texas Courts of Appeals

State v. Fellows, Marston, & Carter (13th COA)

No. 13-14-00283-CR   7/23/15


When the State has failed to preserve evidence prior to testing it, is that a violation of defendant’s due process rights?


Not necessarily. Where evidence has been lost by the State prior to testing, to prove a due process violation, the defendant must show that the lost evidence either: (1) was both material and exculpatory or (2) that law enforcement acted in bad faith in failing to preserve the evidence. In this case, the defendants could not show that the lost evidence would have exonerated them of the crime of conspiracy to promote gambling or that the State acted in bad faith. Read opinion.


When the other side complains about the Youngblood rule being too difficult for the defense, remember to tell them that the burden of proof is always on the State to prove the defendant guilty beyond a reasonable doubt and that missing or lost evidence always makes that job harder. Here, the court gave the defense plenty of attention in showing that the lost evidence was neither exculpatory nor material.

Proenza v. State (13th COA)

No. 13-13-00172-CR   7/23/15


Was it fundamental error for the judge to question a witness during trial based on his personal experience and not to clarify any preceding testimony?


Yes. The judge’s questioning of the defense witness was not for any common purpose and tended to give the jury the impression that the court disbelieved the testimony. Additionally the questioning cast doubt on the defense’s theory of the case and showed bias so egregious as to deem the trial court biased on the matter of Proenza’s guilt. Read opinion.

Dissent (Garza, J):

Judge Garza wrote to note he did not find the trial judge’s comments to be fundamental error as the error was not “structural”; thus, no harm analysis was required, and the comments were harmless under the applicable standard. Read.


A trial court can seldom go wrong if it limits its comments to: denied, sustained, granted, overruled, move along, and the jury will remember the evidence. Here, the trial court’s initial questions were of little moment, but when the trial court started quizzing the witness regarding its own experiences, it seems to have crossed a red line for the court of appeals. The bigger problem is that trial counsel did not object and preserve the error. Maybe trial counsel, who was actually present with the witness and all the parties, believed the questions were innocuous. Indeed, maybe trial counsel believed that the trial court’s questions helped his defense because the witness held firm in the face of the questioning. If the questioning was so wrong that trial counsel should have objected, then the defendant could obtain relieve via a writ. “Fundamental error” is a discredited concept in Texas criminal law that encourages laying behind the log and bushwack litigation—hopefully the Court of Criminal Appeals will use this case as an opportunity to discard the fundamental error doctrine.

Bailey v. State (1st COA)

No. 01-12-00200-CR   7/23/15


In a failure to appear case, can a defendant selectively waive her attorney-client privilege for certain portions of testimony that are helpful to her case?  


No. While presenting the statutory defense of reasonable excuse, the defendant expressly waived privilege as to a significant part of her communications with her original attorney, but not all communications (there were charges against the defendant in multiple counties, and she expressly waived attorney-client privilege for some charges but not all). The court found that the legal effect of the waiver could not be limited selectively to only those communications that were helpful to the defense. As a matter of law, the waiver also extended to all other related attorney communications which were relevant to the defense and thereby, in fairness, became admissible when Bailey injected those communications into the case. Given the defense’s theory of the case, it was not ineffective assistance of counsel to elicit testimony of the formerly privileged communications. Read opinion.

Dissent (Radack, C.J.):

Chief Judge Radack wrote to express her belief that defense counsel was ineffective because he elicited testimony of privileged communications over the specific objection of his client. The defendant expressly waived the privilege regarding certain charges but also expressly held on the privilege for others. Defense counsel went further and prompted privileged testimony regarding the other charges for which privilege had not been waived. She believed this resulted in ineffective assistance of counsel. Read dissent.


A rare en banc opinion. And, it will rarely be useful outside the context of bail jumping cases. The opinion reveals that subsequent defense counsel attempted a difficult maneuver at trial but was not quite able to pull it off.

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