June 30, 2017

U.S. Supreme Court

McWilliams v. Dunn

No. 16-5294                        6/19/17


Does conducting a psychiatric evaluation of the defendant and providing the defense with a report satisfy the Ake standard for appointed expert witnesses?


No. Ake requires that the defense have access to a competent psychiatrist not only to conduct an examination, but also to evaluate the report and help with preparation and presentation of the evidence at trial. This can be met by retaining an expert to work specifically for the defense team, but the Court did not decide whether doing so is required to meet the Ake standard. Read opinion.

Dissent (Alito, J.):

Review in this case was granted to answer whether Ake requires the appointment of a psychiatric expert as a member of the defense team rather than a neutral expert available to both parties. The Court should answer in the negative and affirm the judgment below.


This decision may not change the practice with regard to defense requests for expert assistance, but the Court does appear to move a little closer to holding that Ake requires a defense expert (not just an independent expert) for significant mental health claims. Prosecutors do not often get involved in these questions, but especially in a death penalty case or an insanity case, make your trial judge aware of this decision.

5th Circuit Court of Appeals

Alvarez v. City of Brownsville

No. 16-40772                      6/26/17


May a defendant who pled guilty, but was subsequently found actually innocent, make a §1983 civil rights claim against a city for withholding Brady material?


No. To prevail in a §1983 claim, a plaintiff must prove a constitutional violation. A defendant does not have a constitutional right to impeachment or exculpatory evidence prior to entering a guilty plea. Brady material is important in relation to the fairness of a trial but does not affect whether a plea is voluntary. Read opinion.


This decision represents an application of prior decisions from the Fifth Circuit, which applied and/or extended the 2002 decision of the U.S. Supreme Court in United States v. Ruiz. Be cautious about applying this decision in state court, however. The Michael Morton Act provides greater protection than the U.S. Constitution. Furthermore, this case dealt with whether officials should have been held liable for failing to comply with Brady, not whether the defendant’s conviction should have been overturned (this defendant’s conviction had already been overturned).

Texas Court of Criminal Appeals

Because the Texas Courts website (which includes all the state’s appellate courts) was down at press time, Court of Criminal Appeals opinions from June 28 will be summarized in next week’s weekly case summaries email.

Texas Courts of Appeals

London v. State

No. 01-13-00441-CR        6/27/17


Does the assessment of statutory court costs for witness subpoenas in criminal cases violate the Sixth Amendment when applied to an indigent defendant who pled guilty?


No. The defendant’s as-applied challenge failed because he did not present any evidence that material, favorable witnesses were available to be called. Furthermore, the defendant pled guilty the day before trial started and was therefore required to pay the subpoena fees for State witnesses whether he chose to continue with the jury trial or not. The statutory fees could not have denied the defendant his right to confront witnesses when he would have been in no worse position to insist on his right to a trial if the witnesses had been available for cross examination. Read Opinion.

Dissent (Jennings, J.):

“What makes [Code of Criminal Procedure] article 102.011(a)(3) unconstitutional as applied to [the defendant] is that it required him, an indigent criminal defendant, to pay for the witnesses that the State subpoenaed to testify against him. In other words, although [the defendant] had a fundamental constitutional right to physically confront the witnesses who were to testify against him, the only way he was able to secure that right was by bearing the State’s costs for it. In effect, he is being penalized for initially setting his case for trial. Given [the defendant’s] inability to pay such costs, article 102.011(a)(2) is unconstitutional as applied to him.” Read opinion.


Issues regarding court costs appear to have a great deal of life left in them. The dispute among the justices in this case might mean that this case will again be reviewed by the Court of Criminal Appeals.

Texas Attorney General Request for Opinion

Request sent 6/23/17


May an attorney serving a county pursuant to a collection contract under Article 103.0031 of the Code of Criminal Procedure collect delinquent restitution owed to a crime victim? Read request.


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TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]