Texas Court of Criminal Appeals
No. PD-1043-14 6/3/15
Does the admission of a supervising DNA analyst’s opinion regarding a DNA match violate the Confrontation Clause when that opinion is based on computer-generated data obtained through batch DNA testing?
No. The DNA testing in this case was done in a batch process, meaning that each step in the testing was completed by a different technician. The testifying witness was the lab supervisor who conducted a final analysis—comparing the raw DNA profiles to other evidence in the case—but she did not perform any of the testing herself. Because the lab supervisor did not introduce or testify about a formal report or assertion from a non-testifying analyst, and instead used non-testimonial information—computer-generated DNA data—to form an independent, testimonial opinion, and because the defendant had the opportunity to cross-examine the supervisor about her analysis, there is no violation of the Confrontation Clause. Read opinion.
This is the decision that prosecutors have been waiting for. But do not get too excited. It does not change the law in any significant respect. The court did not overrule Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013). And the State did not attempt to introduce any report into evidence, so this decision does not stand for the proposition that an expert’s (or multiple experts’) report is admissible—just a supervising expert’s opinion. But it should go a long way towards helping introduce DNA evidence in the typical case in which a DNA opinion is arrived at after a batch testing process. The court identifies the question presented in this case as unanswered by the Court of Criminal Appeals and the United States Supreme Court. So keep your eyes open to see if any attempt is made to take this case to the high court in Washington. And celebrate. This is a great victory for prosecutors and for DNA labs.
No. PD-0545-14 6/3/15
Is the successive prosecution of a defendant for burglary and aggravated assault barred by double jeopardy following an acquittal on capital murder charges?
Yes and no. The charge for burglary is barred as a violation of jeopardy, but the aggravated assault is not. The aggravated assault charge is not barred, however, because there were two different victims—one who died and one who survived after the defendant stabbed them. Because these are not factually the same, the aggravated assault is not barred by jeopardy. Read opinion.
This is a relatively straightforward double jeopardy decision and does not change the law in any real way. The analysis can be complicated, as is often the case with double jeopardy decisions. The burglary in this case was essentially a lesser-included offense of the capital murder, so it was jeopardy barred. The aggravated assault was not because it involved a different victim than that alleged in the capital murder charge.
No. PD-0789-14 6/3/15
Must the trial court give a jailhouse-witness instruction pursuant to CCP Article 38.075(a) in the jury charge if the witnesses testified to any statement made by the defendant against the defendant’s interest?
Yes. Under Article 38.075(a), a statement can be against the defendant’s interest even if it does not expose the defendant to criminal liability. Any statement by the defendant that is adverse to his position is a statement against his interest under Article 38.075. Read opinion.
Concurrence (Keller, P.J.):
Judge Keller notes that she would construe the jailhouse-witness statute in a manner similar to the accomplice-witness statute. She would require the instruction be given in this case but believes lack of the instruction here may be harmless. Read here.
Concurrence (Newell, J.):
Judge Newell writes to expound on the difficulty of interpreting 38.075(a) but agrees with the majority’s broad interpretation of “statement against interest.” He writes that an Article 38.075(a) instruction should be required any time a jailhouse informant testifies regarding a defendant’s statement that could be used against the defendant at trial. Read here.
It is frustrating the defendant may be able to gain a reversal in this case, even though he did not object to the jury charge (the court remanded the case for a harm analysis). But this is consistent with how the courts have treated rules that require corroboration of a particular witness’ testimony before the State can gain a conviction of the defendant based upon that witness’ testimony.
Texas Courts of Appeal
Jackson v. State (14th COA)
No: 14-13-00170-CR 5/28/15
Is an inventory search of a vehicle lawful even if the vehicle is ultimately not impounded?
Yes. The defendant was pulled over while driving, suspected of driving while intoxicated, and eventually arrested for outstanding warrants. While the officer waited for the defendant’s mother to come to retrieve the defendant’s car, the officer conducted an inventory search of the vehicle in case it would need to be impounded. The court found the search lawful because the officer followed proper procedures and did not use the potential impoundment as a pretense for “general rummaging” through the vehicle, but rather he acted to avoid potential unnecessary delay. Read opinion.
This decision is well-researched and well-reasoned. If an inventory was conducted in your case, you should read this decision, as it contains all of the pertinent law. All inventory cases boil down to whether the officer conducting the inventory was following his department’s policy. The defendant tried to claim that the officer in this case was not, but the record supported the trial court’s finding that department policy was in fact followed when the officer conducted the inventory.
Navarro v. State (14th COA)
No. 14-13-00706-CR 5/28/15
Is alcohol concentration level an element of a separate offense when considering PC §49.04(d), and does “blood” in the statute refer only to “whole blood”?
Yes and yes. The court held that a person’s blood alcohol concentration (BAC) level provides the basis for a separate offense under §49.04(d) and is not merely a basis for enhancement. Evidence of a blood alcohol level of 0.15 or greater represents a change in the degree of the offense, from Class B to Class A misdemeanor, rather than just an enlargement of the punishment range. Also, the court definitively ruled that “blood,” as used to determine blood alcohol concentration, means “whole blood,” or blood with all its component parts including red blood cells and blood plasma. The measure of BAC using only blood components—here, plasma—is not enough. Read opinion.
This decision makes clear that the so-called 0.15 enhancement is actually not an enhancement, but is in fact an element of a Class A misdemeanor offense. That is consistent with prior case law, not the least of which is the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The holding that the evidence was insufficient to support the 0.15 finding was also consistent with prior cases that have suggested that, in the context of DWI, “blood” means “whole blood.” But where the opinion goes off the rails is in holding that the trial court should have charged the jury on a correct definition of “blood” because of questioning and final argument by the prosecutor that may have misled the jurors. There is no definition of “blood” in the Penal Code, so a trial judge should not give a definition not required by the Legislature in defining the offense. If a prosecutor has committed error in questioning or in final argument, a defendant should complain about that, and not about the jury charge. Hopefully, this decision can be corrected on petition for discretionary review by the Court of Criminal Appeals.