June 10, 2016

Fifth Circuit Court of Appeals

Loupe v. O’Bannon, et. al.

No. 15-30535      5/27/16


Is a state prosecutor immune from suit for damages for 1) ordering a sheriff’s deputy to make a warrantless arrest without probable cause of a witness who refused to testify to abuse, and 2) subsequently prosecuting the witness for making a false report?


Yes and no. The attorney is absolutely immune from suit for malicious prosecution because it was an action taken “to initiate prosecution” and was “intimately associated with the judicial phase of the criminal process.” This protection is designed to allow prosecutors do their jobs without “harassing litigation” and to encourage independent judgment. However, the prosecutor is not immune from suit for his actions ordering a warrantless arrest of the witness because that did not involve a prosecutorial function; it was instead an investigatory or police function and not essential to the prosecutor’s role as an advocate for the state in the courts. Read.


This decision appears to be in line with precedent from the United States Supreme Court and other federal appellate courts, so it is a little surprising that it had to reach this level before this result was obtained. This decision should provide extra caution to prosecutors in advising law enforcement about the actions that officers take against suspects.


Court of Criminal Appeals

Dabney v. State

No. PD-1514-14                 6/8/16


Does Rule of Evidence 404(b) require notice for rebuttal evidence, and must the State present rebuttal evidence only after the defense case?


No and no. The defense raised a theory in voir dire and opening statements that opened the door to extraneous offense evidence. The State was not required to anticipate this defensive theory prior to trial and give 404(b) notice of the rebuttal evidence. Additionally, because the defensive theory was raised in opening statements, the State could present its rebuttal evidence in its case-in-chief. Read.


This is a very helpful decision because the defensive theory that the State wished to rebut was raised during voir dire and opening statement and because the rebuttal evidence was presented during the State’s case-in-chief. Keep this decision close, and show it to your judge if he has some concerns about such rebuttal evidence.

Smith v. State

No. PD-1615-14                 6/8/16


Did the defense preserve error when it objected to the admission of a blood vial taken during a warrantless DWI stop but did not object to the results of the blood-alcohol-level tests?


No. A plurality of the court found that during a bench trial, the defense raised an objection to admitting the blood vial taken without a warrant or court order during the DWI investigation, citing Chapter 724 of the Health & Safety Code. This objection was “carried” but never ruled on by the judge, as is required to preserve error. Additionally, the defense did not object to testimony from a forensic scientist regarding the results of the blood test, so the erroneous admission of the blood vial itself is not cause for reversal. Read.

Dissent (Richardson, J.):

Judge Richardson dissented due to his belief that the defense properly preserved error in the case and that the conviction should be reversed under Missouri v. McNeely. The fact that the trial judge admitted the blood vial and relied on the BAC tests in his verdict shows that the judge made an implicit ruling under Texas Rule of Appellate Procedure 33.1(a). Read.


This is a rather fact-specific decision, and even more so because there is no majority opinion. It provides little or no aid in determining whether a defendant has preserved error in a particular case. As such, it will only be of interest to appellate prosecutors who follow the decisions of the court closely.


Texas Courts of Appeals

In re Hawk (5th COA)

No. 05-16-00462-CV        5/31/16


Does Code of Criminal Procedure Art. 39.14 require the State to allow a defendant to photograph, physically examine, and conduct forensic testing on a chair used when blood testing individuals accused of driving while intoxicated?

Holding (memorandum opinion):

No. Art. 39.14 serves as the comprehensive pretrial discovery statute, and courts are not required to grant discovery access greater than what is included in that article. To get access to the chair used in the jail’s blood-draw room, the defendant must show that the inspection or testing of that item is material to the case or his defense. To establish materiality, a defendant must show a reasonable probability that the evidence in question would result in a different outcome in the proceeding. Because the defendant could not show that the chair is material, the trial court should not have ordered it turned over as part of discovery. Read.


It is not a remarkable proposition that a trial judge should not force the State to turn over a chair in which the defendant apparently had sat over a year after he had sat in it. And it seems the court of appeals believed as much because this decision is not published. The decision is important, though, because it represents a construction of the Michael Morton Act after Article 39.14 was amended, and because the court uses the well-recognized definition of “materiality” based in federal and state constitutional law. The defendant made no attempt to show how inspection of this chair would have helped him, so subsection (h) of the statute is not even mentioned.

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