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June 11, 2010

Court of Criminal Appeals

Trinidad v. State and Adams v. State

06/09/10 : Cite Nos. PD-1218-08 through PD-1221-08


Was it a violation of the defendant’s constitutional rights when the judge instructed the alternate jury member to remain and be part of the deliberation process?


No. The mere presence of a 13th member in the jury room did not violate Article V, Section 13 of the Texas Constitution because the alternate member was not permitted to vote. Read Opinion.


Judge Johnson states that more concise language from the legislature about what to do with the retained alternate juror would be most helpful. Read Concurrence.


The real concern is whether the alternate juror’s presence during jury deliberations constitutes a violation of Article 36.22 of the Code of Criminal Procedure. And in that regard, I am going to have to agree with Judge Johnson. The Legislature should have made it clear what to do with the alternate juror when they first amended Article 33.011 to allow an alternate juror to be available past the guilt/innocence stage. 

Contreras v. State

06/09/10 : Cite No. PD-0490-09

Issue :

Was the defendant entitled to a jury instruction under Article 38.23 challenging the voluntariness of his confession specifically because officers threatened to arrest his wife without probable cause?

Holding :

Yes. Conflicting testimony regarding the threat created a fact issue requiring a jury instruction. Read Opinion. Read Opinion.


Judge Womack joins the opinion except as to the portion requiring the charge to include an instruction under Article 38.23 on the law applicable to waiver of the right to counsel that was already given to the jury elsewhere. Read Concurrence.


This is a rather complex opinion, but it is very helpful once you think all the way through it. Do not focus on the preservation remarks; that will just confuse you. Or it did me. The real impact of this decision will be to confine factual disputes about alleged Miranda violations to Article 38.22 instructions only. The court clearly holds that an Article 38.23 instruction is not the appropriate vehicle to deal with a factual dispute concerning an alleged Miranda violation.

Worthy v State

06/09/10 : Cite No. PD-0924-09


Does Article 37.07, § 3(g), of the Code of Criminal Procedure require the State to give pretrial notice of "same-transaction contextual evidence" that it intends to offer in the punishment stage of a non-capital trial?


No. Pretrial notice of "same-transaction contextual evidence" is not required under Rule 404(b), therefore it is not required here. Read Opinion.


Presiding Judge Keller states that she would refrain from addressing whether the evidence was same transaction contextual evidence. Read Concurrence.


This case may have involved "same transaction contextual" evidence, but not the way that you normally think about it. The extraneous conduct was not related to the defendant, but to the defendant’s step-brother, who was a registered sex offender. But I promise you that the jury was not focusing on that relatively brief part of the testimony. The jurors were almost certainly much more focused upon the defendant’s nine-month sexual affair with a fourteen-year-old girl.

Texas Courts of Appeals

Jacobsen v. State – 3rd COA

06/08/10 : Cite No. 03-09-00479-CR 6/8/1



Does the continuous sexual assault offense violate a defendant’s right to a unanimous verdict?


No. The plain language of the statute identifies the prohibited pattern of behavior and the underlying acts are not elements of the offense but evidentiary facts. Thus, the jury need not agree on which evidentiary facts constitute the pattern necessary for the offense. In line with decisions on the validity of similar statutes in other states, the Texas CSA offense does not violate due process. Read Opinion.


This decision should really be published. Rule 47.4(b) states that an opinion can be published if it involves a constitutional issue important to the jurisprudence of Texas. This is a relatively new statute that should be utilized much more often, given the prevalence of sexual crimes being committed against young children, and given the difficulty for prosecutors in electing which acts to present to a jury. The Texarkana Court of Appeals upheld the constitutionality of this statute back on February 10, but there needs to be a body of case law on this statute to give confidence to the bench and bar that this is one of the best ways to tackle one of the toughest types of cases that prosecutors ever have to try.


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