United States Supreme Court
Andrus v. Texas
Issue:
Was defense counsel ineffective under Strickland v. Washington, 466 U.S. 668 (1984) for failing to investigate or present available mitigation evidence regarding a defendant’s abusive and neglectful childhood?
Holding (Per Curiam):
Yes. The Court concluded that the defendant showed deficient performance under the first prong of Strickland, and that there was a significant question of whether the Court of Criminal Appeals properly considered prejudice under the second prong. The Court stated that counsel performed virtually no investigation, either of the few witnesses he called during the case in mitigation, or of the many circumstances in the defendant’s life that could have served as powerful mitigating evidence. Read Opinion.
Dissenting (Alito, J., joined by Thomas, J., and Gorsuch, J.):
“In sum, the CCA assessed the issue of prejudice in light of more than the potentially mitigating evidence that the Court marshals for Andrus. The CCA had before it strong aggravating evidence that Andrus wantonly killed two innocent victims and shot a third; that he committed other violent crimes; that he has a violent, dangerous, and unstable character; and that he is a threat to those he encounters. The CCA has already held once that Andrus failed to establish prejudice. I see no good reason why it should be required to revisit the issue.” Read Opinion.
Commentary:
The Court has remanded this case back to the Court of Criminal Appeals, so that it can consider the second prong of the Strickland test—whether the defendant was prejudiced by his trial attorney’s deficient performance. Judge Richardson had written a concurring opinion that detailed why the defendant was not harmed, so perhaps that opinion will carry the day when the Court of Criminal Appeals once again considers this case.
Court of Criminal Appeals
Ward v. State
No. AP-77,096 6/17/20
Issue:
Does the Court of Criminal Appeals (CCA) have jurisdiction over a defendant’s appeal from a trial court’s denial of a pretrial writ of habeas corpus when the defendant has been charged by indictment with capital murder but not yet sentenced to death?
Holding (Per Curiam):
No. Although an intermediate court of appeals may have jurisdiction over a properly filed appeal of the denial of a capital murder defendant’s pretrial writ, the CCA does not. The record before the Court showed that, when the defendant filed his pretrial writ, he had been indicted for capital murder but not sentenced to death. Thus, the CCA does not have jurisdiction over the defendant’s appeal. Read Opinion.
Commentary:
It seems strange that a court of appeals would have to—in the first instance—address a facial challenge to the Texas death penalty statute. But the Texas Constitution makes clear that the Court of Criminal Appeals does not have jurisdiction over a death penalty case until the death penalty has actually been assessed. It is questionable whether an intermediate court of appeals could consider a pretrial challenge to the constitutionality of the Texas death penalty statute. See State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011); Ex parte Powell, 570 S.W.3d 417 (Tex. App. — Waco 2019, no pet.); Ex parte Ragston, 402 S.W.3d 472 (Tex. App. — Houston [14th Dist.] 2013, pet. granted and affirmed on other grounds).
Moreno v. State
No. PD-1044-19 6/17/20
Issue:
Is evidence that a defendant suffered from Post Traumatic Stress Disorder (PTSD) relevant to the defense of duress during the guilt stage of trial?
Holding:
No. The defense of duress applies only to the type of compulsion that a person of “reasonable firmness” could not resist and PTSD evidence would show merely that the defendant has a greater sensitivity to compulsion than a person of reasonable firmness. Read Opinion.
Commentary:
Add this decision to others that have limited the admissibility of evidence on “diminished capacity” or other types of mental deficiencies. But this decision is a very short, rather straightforward construction of the statute that provides for the defense of duress. Therefore, it probably only applies to those types of cases.
Texas Courts of Appeals
State v. Kahookele
No. 03-18-00399-CR 6/9/20
Issue:
- Does the State’s use of a 1990 murder conviction as a 3g offense to enhance the punishment range from a state jail felony to a third-degree felony violate the constitutional protection against ex post facto laws?
- May an aggravated state-jail felony—two counts of possession of a controlled substance with a prior conviction for a 3g offense—be further enhanced under the habitual-offender statute based on a defendant’s prior convictions of engaging in organized criminal activity and forgery by possession?
Holding:
- No. The Court stated that the 3g enhancement paragraph in this case did not seek to punish the defendant for the 1990 murder a second time and does not affect that crime or its punishment. Rather, the 3g enhancement paragraph increased the available punishment range because the defendant is alleged to have engaged in criminal conduct again. Further, when the defendant was convicted of murder in 1990, murder was a punishable offense, not an act that “was innocent when done.” Finally, the addition of murder to the statutory list of 3g offenses did not alter the rules of evidence or change the testimony that the law required to convict him of murder when it was committed.
- Yes. Under the habitual-offender statute in Penal Code §12.42(d), the two sequential felonies further enhance the defendant’s range of punishment for the charged narcotics offenses because they are state-jail felonies “other than a state jail felony punishable under Penal Code §12.35(a)”—that is, the charged offenses are aggravated state-jail felonies, not punishable under Penal Code §12.35(a). Read Opinion.
Dissenting (Kelly, J.):
“I cannot join the majority’s opinion because I disagree that an aggravated state jail felony enhanced under Texas Penal Code §12.35(c) can be further enhanced to a 25-year minimum punishment under Texas Penal Code §12.42(d).” Read Opinion.
Commentary:
This is an excellent decision. The majority opinion takes the reader step-by-step through each of the allegations, and it is very well-researched. This should be an important decision to rely upon for the enhancement of so-called aggravated state jail felonies (those in which the state jail felon had been previously convicted of an offense under what is now Article 42A.054 of the Code of Criminal Procedure). Because this is an important question of statutory construction, and because there is a dissenting opinion, expect this case to be reviewed by the Court of Criminal Appeals. Nevertheless, great job by the State in this case.
State v. Torres
No. 08-18-00092-CR 6/15/20
Issue:
Does an offense under Texas Occupations Code §1956.040—selling stolen regulated material—incorporate the elements of ownership and appropriation?
Holding:
No. The Court concluded that neither ownership of the regulated material nor appropriation without the owner’s effective consent are elements of the offense of selling stolen regulated material under Texas Occupations Code §1956.040. Because they are not elements of the offense, the State was not required to allege them in the indictment and the trial court erred by granting the defendant’s motion to quash. Read Opinion.
Commentary:
Few will have the opportunity to prosecute an offense under this Occupations Code statute. But this decision may come in handy if the defendant raises a similar argument in a prosecution for another “theft-like” offense.