Court of Criminal Appeals
State v. Hunter
No. PD-0861-20 6/16/21
Issue:
Can the State charge a defendant with solicitation of capital murder when he threatens to harm or kill his pregnant girlfriend if she does not seek an abortion of her unborn child?
Holding:
The Court in this case refused to grant the State’s petition for discretionary review.
Concurrence (Keller, P.J. joined by Hervey, Richardson, Newell, Keel and McClure, JJ.):
“The State’s indictment does not charge a crime under the laws of the State of Texas, the Court of Appeals’s resolution was correct, and the correct resolution is so obvious that we need not grant review. A mother choosing to abort her unborn child is not a crime under Texas law, so the defendant cannot be guilty of the offense of solicitation for soliciting such a crime.” Read opinion.
Concurrence (Richardson, J.):
“This Court makes hard decisions on a regular basis. … Hard decisions come in many forms, but we are required to follow the law as written. All of our decisions should reflect our judicial oath to act impartially and to follow the law. We strive to do that, even though the task may be difficult, and we may be personally conflicted about the outcome.” Read opinion.
Dissent (Yeary, J.):
“This case does not involve a charge of any kind against a mother for causing the death of her unborn child. … This case is instead about whether a person who is not the mother of that child has the unfettered right to solicit another person (including its mother) to cause its death.” Read opinion.
Commentary:
This case involves a very technical construction of the controlling statutes. To understand this case more fully, start with the opinion by the court of appeals. But read it slowly; it is quite technical. As a practical matter, what this case means is that a defendant cannot be prosecuted for solicitation of capital murder if the victim is an unborn child and the person solicited to commit the capital murder is the unborn child’s mother. Certainly—even after this decision—a man cannot force a woman to have an abortion and get away with it. And read this defendant’s text messages, reproduced in the opinion; he definitely cries out to be prosecuted. There are several offenses that would be options for charging the defendant. But if the desired offense is solicitation of capital murder, the remedy appears to be with the Legislature.
Courts of Appeals
Kingsbury v. State
No. 02-19-00239-CR 6/10/21
Issue:
Did admitting redacted copies of a defendant’s prior judgments of conviction into evidence during the punishment phase substantially affect the defendant’s rights?
Holding:
No. Admitting redacted copies would not cause the jury to speculate about the nature of the redacted offense because “there was sufficient information in the record for the jury to avoid speculating about what offenses [the defendant] might have committed.” Here, the redactions actually benefitted the defendant because they “prevented the jury from seeing a greater offense rather than the one for which [the defendant] had actually been convicted.” Read opinion.
Commentary:
The redaction in this case was actually done to protect the defendant’s right, and yet he still complained. The court of appeals did not hold that the redaction was error, but held that, even if it was error, the defendant was not harmed. And he clearly was not. This opinion is also significant because it represents another decision in support of the admissibility of expert testimony on domestic violence.
Turner v. State
No. 05-19-01328-CR 6/9/21
Issue:
Did the inclusion of a jury instruction that stated, “Penetration is complete however slight,” constitute error?
Holding:
No. The Court held the instruction was not an improper comment on the weight of the evidence, stating “[t]he instruction in this case did not direct the jury to a specific conclusion … [or] … single out any particular piece of evidence.” Read opinion.
Concurrence and Dissent (Partida-Kipness, J.):
The concurrence and dissent would have concluded that submitting the penetration instruction was contrary to Court of Criminal Appeals’ 2015 opinion in Green v. State. Read opinion.
Commentary:
Do not view this decision as a wholehearted endorsement of the use of this definition of penetration. Read Green and other decisions that emphasize that—in the vast majority of cases—terms should not be defined in the jury charge if the Legislature has not defined them. The court of appeals held that, even if including the definition in this case was error, the defendant was not harmed because the degree of penetration was not a contested issue in the case.
Smith v. State
No. 11-19-00222-CR 6/10/21
Issue:
Did the trial judge correctly admit a defendant’s videotaped interview containing statements made by a Homeland Security agent who was unavailable to testify at trial?
Holding:
No. Because they were testimonial and exceeded the permissible scope and purpose of presenting legitimate background context, admission of the agent’s video statements violated the defendant’s confrontation rights. However, the Court held the admission did not require reversal because the challenged statements did not contribute to the defendant’s conviction or punishment and did not affect the integrity of the process. Read opinion.
Commentary:
After Crawford v. Washington, we have all had to decide whether any out-of-court statements are “testimonial.” It does not seem that a law enforcement officer’s statements to a defendant during the interrogation of that defendant are “testimonial.” Courts have routinely allowed the admission of those statements to give context to the defendant’s statements. Hopefully, this decision will get reviewed by the Court of Criminal Appeals, even though the court of appeals found the error to be harmless.