June 8, 2018

Texas Court of Criminal Appeals

Zuniga v. State

No. PD-0174-17                6/6/18


Does a charge of engaging in organized criminal activity for committing murder as a member of a criminal street gang require proof of the defendant’s intent to “establish, maintain, or participate as a member of a criminal street gang?”


No. In Penal Code §71.02, the phrase “establish, maintain, or participate” applies only to the immediately following phrase “in a combination or in the profits of a combination.” It does not apply to the element of being a member of a criminal street gang. The hypothetically correct jury charge for engaging in organized crime would require proof that 1) “as a member of a criminal street gang,” the defendant, 2) committed murder. The “as a member of a criminal street gang” element requires proof that the defendant was acting in the role, capacity, or function of a gang member at the time of the offense. Read opinion.


This is a good decision on the statutory construction of §71.02 for prosecutors relying upon the “criminal street gang” form of engaging in organized criminal activity. This is also a good decision to read for prosecutors who need to prove that the defendant is a member of the criminal street gang, because this defendant challenged that as well. The Court also makes the important point that the State is not required to prove a gang-related dispute between the victim(s) and the criminal street gang. The State is required only to prove that the defendant was acting pursuant to his role or capacity as a gang member at the time that he committed the offense. The evidence needs to show only some nexus or relationship between the commission of the predicate or underlying offense and the defendant’s gang membership.

Bien v. State

Nos. PD-0365-16 & PD-0366-16                 6/6/18


Could conviction of both attempted capital murder and criminal solicitation of capital murder violate double jeopardy?


Yes. Based on the pleadings in this case, attempted capital murder and solicitation of capital murder are the “same offense” under the Blockburger test. The attempt charge alleged that the act amounting to “more than mere preparation” was employing a hitman to kill the defendant’s former brother-in-law. This is the same act alleged in the solicitation charge. The solicitation charge also requires proof that the defendant believed the conduct he was soliciting constituted capital murder. This element is the functional equivalent of the intent to commit capital murder in the attempt charge. The Blockburger test is not controlling when there is clear legislative intent to impose multiple punishments, but no such intent is clear here. Read opinion.

Dissent (Yeary, J.):

“Here, the evidence shows that [the defendant] engaged in conduct on two discrete occasions whereby he approached [an undercover officer] in an attempt to engage him to commit murder for remuneration. … It is at least arguable that the double jeopardy issue in this case is not fully governed by the Blockburger/cognate pleadings ‘elements’ approach; that there is a ‘units of prosecution’ component to the double jeopardy analysis that must be addressed as well. ‘When two distinct statutory provisions are at issue, the offenses must be considered the same under both an ‘elements’ analysis and a ‘units [of prosecution]’ analysis for a double jeopardy violation to occur.’ Benson, 459 S.W.3d at 71. … I do not think the double jeopardy issue is fully resolved until this possibility is explored.” Read opinion.


This is yet another double jeopardy case in which the court has used the “functional equivalence” test in deciding whether elements of two offenses are the same for double jeopardy purposes. Prosecutors should be cautious when attempting to gain more than one conviction for a defendant based upon the same scheme or course of conduct.

Ramjattansingh v. State

No. PD-0972-17                6/6/18


Is the State required to prove an unnecessary element erroneously added to the charging instrument and jury charge?


No. When a jury instruction adds an element to the charged crime, challenges to the sufficiency of the evidence are assessed only against the elements of the crime from a hypothetically correct jury charge. A hypothetically correct jury charge will not include the added element unless the variance is material. An unnecessary element that does not relate to the unit of prosecution is immaterial. This still applies even if the State included the element in the charging instrument and did not object to the unnecessary element in the jury charge. Here, the defendant was charged with a DWI enhanced to a Class A misdemeanor by having a BAC over 0.15 at the time of testing. The additional element alleging that the defendant had a BAC over 0.15 at the time of driving is immaterial. Read opinion.


In this decision, the court did not expressly decide that the evidence was sufficient to show that the appellant’s BAC was over 0.15, although that can certainly be discerned from the facts set forth within the opinion. The court expressly decided only 1) what would constitute the hypothetically correct jury charge as part of a correct analysis of the sufficiency of the evidence, and 2) that the State did not essentially invite an analysis other than that based upon the hypothetically correct jury charge. The court remanded the case back to the court of appeals to conduct the correct sufficiency analysis. As such, this decision may be of interest only to appellate lawyers. In that respect, the opinion may now be the court’s most comprehensive decision on the types of variances parties will confront when the defendant challenges the sufficiency of the evidence based upon a variance. This is set forth at the end of Part II of the court’s opinion.

Ex parte Moore

No. WR-13,375-05           6/6/18


What are the criteria for evaluating intellectual disability under the DSM-5?


In response to Moore v. Texas, 137 S.Ct. 1039, the Court of Criminal Appeals abandoned the Briseno evidentiary factors and adopted the DSM-5 approach to evaluating a defendant for intellectual disability. The DSM-5 has three criteria for finding someone to be intellectually disabled: “(A) deficits in general mental abilities, (B) impairment in everyday adaptive functioning, in comparison to an individual’s age-, gender-, and socioculturally matched peers, and (C) onset during the developmental period.” The DSM-5 retains a requirement that adaptive deficits be related to intellectual functioning deficits. Under this new standard, the Court concluded the defendant failed to show that he is intellectually disabled. Read opinion.

Dissent (Alcala, J.):

“The sole issue in this case is whether [the defendant] has established that he is intellectually disabled such that his execution for capital murder would be prohibited by the Eighth Amendment to the federal Constitution. I conclude that, under current medical standards described in the Diagnostic and Statistical Manual of Mental Disorders and the manual of the American Association on Intellectual and Developmental Disabilities, [the defendant] has met his burden to show that he is intellectually disabled. He is, therefore, categorically exempt from the death penalty because his execution would violate the Eighth Amendment’s prohibition on cruel and unusual punishment.” Read opinion. 


At long last, in the continued absence of legislative action on this issue, the Court of Criminal Appeals has issued a new test for determining intellectual disability (what used to be called mental retardation). This is now the leading decision on that issue from the court, both in terms of the expression of the new test and also in the application of that new test. Keep your eyes on this decision as the defendant may again ask for review by the United States Supreme Court.

Ex parte Kussmaul; Ex parte Long; Ex parte Pitts; Ex parte Shelton

Nos. WR-28,586-09; WR-28,772-02; WR-35,508-03; WR-84,754-01             6/6/18


Could new DNA evidence identifying two unknown suspects in a sexual assault and capital murder case against four defendants entitle the defendants to relief under Code of Criminal Procedure Art. 11.073 and actual innocence?


Yes, the defendants are entitled to relief under Art. 11.073. No, the defendants have not met the burden of proof for relief under an actual innocence claim. A defendant is entitled to relief under Art 11.073 when 1) new scientific evidence is available, 2) the evidence would have been admissible at the time of the original trial or plea, and 3) by a preponderance of the evidence, had the evidence been presented at trial the defendant would not have been convicted. This is an easier standard to meet than that for a claim of actual innocence. Although the new exculpatory DNA evidence is sufficient to meet the standard under Art. 11.073, it was insufficient to meet the standard for actual innocence given the other evidence presented by witnesses at trial connecting the defendants to the assault. Read opinion.


As is the case with most DNA exoneration and actual-innocence cases, this decision is very lengthy and very fact-bound. Prosecutors responding to a DNA exoneration claim or an actual-innocence claim should definitely read this decision. Be prepared—it is well over 70 pages long, with the first 50 taken up by the facts and procedural history. It should give the picture of the difficult task at hand in responding to these types of claims. Now the State is faced with the equally difficult task of deciding whether and how to prosecute these cases again.

Texas Courts of Appeals

Thomas v. State

Nos. 14-17-00240-CR to 14-17-00242-CR               5/31/18


May a trial court consider a defendant’s untruthfulness during a punishment hearing when assessing punishment?


Yes. Code of Criminal Procedure Art. 37.07 allows the State and the defendant to offer evidence of “any matter the court deems relevant to sentencing.” The court may properly consider a defendant’s conduct during trial and truthfulness while under oath. A trial court sitting as the fact-finder must weigh the credibility of the witnesses, including a defendant who chooses to testify. Defendants who plead guilty and testify truthfully tend to demonstrate true remorse and may receive leniency from the court when the sentence is assessed. A defendant who professes honesty in hopes of a more lenient sentence must accept the consequence if the court finds he has testified untruthfully. Read opinion.  


You may not have known that you needed a decision that says that a trial judge can consider the defendant’s credibility when assessing the defendant’s punishment. But here it is.


From our friends at the OAG’s Human Trafficking and Transnational/Organized Crime Section:

Backpage record certification requests should be sent to [email protected] Please remember to attach the records you need certified and the certification document that you are requesting be completed and returned to you. Please allow 2-3 days for your request to be processed. If you have a record certification request that requires urgent attention, indicate that by including the word “URGENT” in the subject line of your email.

Additionally, the FBI and its law enforcement partners are continuing to put processes in place to make historical Backpage data available to federal, state, and local law enforcement officials for use in ongoing investigations and prosecutions. Further information and guidance will be disseminated as soon as these processes are in place.

Please share this information with your state and local law enforcement partners. This information will also be posted on backpage.com.

Recent changes to forensics accreditation requirements:

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which went into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: https://www.youtube.com/watch?v=ZiWabgbOL9o