March 17, 2017

U.S. Supreme Court

Pena-Rodriguez v. Colorado

No. 15-606      3/6/17


Does the no-impeachment-of-jury-verdict rule, which prohibits most post-verdict testimony about jury deliberations, preclude testimony that one juror relied on racial bias to convict a defendant?


No. If a juror makes a clear statement during deliberations that he relied on racial bias to convict a defendant, under the 6th Amendment, the no-impeachment rule (in Texas, T.R.Evid. 606(b)) must yield to permit the trial court to consider evidence of the juror’s statement. The Court noted that not every offhand comment indicating racial bias or hostility will justify setting aside the rule prohibiting testimony about jury deliberations. The defense must show that the statement casts serious doubt on the fairness of the jury’s deliberations and verdict, and racial animus was a significant motivating factor in the juror’s vote to convict. Read opinion.

Dissent (Thomas, J.):

Justice Thomas would hold that the Sixth Amendment does not give a defendant the right to impeach a jury trial. “In its attempt to stimulate a ‘thoughtful, rational dialogue’ on race relations … the Court today ends the political process and imposes a uniform, national rule. The Constitution does not require such a rule. Neither should we.”

Dissent (Alito, J., joined by Roberts, C.J. and Thomas, J.):

“Juries occupy a unique place in our justice system. … The jury trial right protects parties in court cases from being judged by a special class of trained professionals who do not speak the language of ordinary people and may not understand or appreciate the way ordinary people live their lives. To protect that right, the door to the jury room has been locked, and the confidentiality of jury deliberations has been closely guarded. Today, with the admirable intention of providing justice for one criminal defendant, the Court not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the Constitution. This is a startling development, and although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”


No one disputes that a jury trial should be free from the blight of racism. But the majority opinion is heavy on polling other jurisdictions in support of its holding and light on a workable framework for litigants in the criminal justice system. Just what is a “clear statement” of “racial stereotypes or animus”? Well, we know it isn’t an “offhand comment indicating racial bias or hostility,” right? How much racial animus does it take to be a “significant motivating factor” in a verdict? Will we see more aggressive investigation of jurors post-verdict? And what can prosecutors do to ensure that the juries we pick do not harbor members who are infected with a mindset that might undermine our search for justice?

Texas Courts of Appeals

Smith v. State

No. 14-15-00502-CR     3/9/17


Does a trial court’s erroneous inclusion of a jury charge at the punishment phase that “voluntary intoxication is not a defense to commission of a crime” require reversal?

Holding (Frost, C.J.):

No. While the charge was a correct statement of the law, it did not belong in the punishment-phase jury charge. In this plurality opinion, the majority opinion held that this unnecessary instruction might have made the charge imperfect, but it did not amount to error. Read opinion.

Concurrence (Jewell, J.):

The concurrence would find that including the voluntary intoxication language in the punishment charge was harmless error that did not require reversal. Read opinion.

Dissent (Christopher, J.):

The dissent would “apply a bright-line rule that guilt-innocence instructions should never appear in punishment-phase charges.” Read opinion.


An unusual split decision. Given the facts of the case and the underlying issue it is an excellent candidate for further review by the Court of Criminal Appeals. One thing missing in the three opinions is a discussion of the voir dire regarding punishment and mitigation. In a case like this the parties must have addressed the type of evidence that would be adduced in punishment and the jury’s role in responding to that evidence. Prosecutors briefing a case with a jury charge error should review voir dire if they must make a harm argument.

Whitfield v. State

No. 14-15-00820-CR     3/9/17


(1) Does the Confrontation Clause required the State to call as a witness every individual who has been involved in DNA testing?

(2) Did postings on social media about this pending case by the prosecutor’s office violate the defendant’s due process rights and require a new trial?


(1) No. Testimony from the lab supervisor who performed the analysis that determined the DNA match and testified to her own conclusions was sufficient to allow admission of the DNA evidence under Bullcoming v. New Mexico. The technician who prepared the underlying screening report was not a necessary witness.

(2) No. While the prosecutor office posting on Facebook and Twitter about pending cases “might present serious ethical and procedural concerns and might even compromise a defendant’s due process rights,” in this case, the trial court did not abuse its discretion in refusing to grant a new trial. During the hearing on the motion for new trial, none of the jurors said they saw or discussed any social media posts about the trial. Read opinion.


The DNA holding is built on a thorough rendition of the facts and should help prosecutors, along with Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), if you face similar objections to DNA testing. The social media holding should be viewed as a “how to protect your conviction” rather than a license to post comments on the internet during trial—save your tweets for after sentencing.

TDCAA Training: Prosecuting Violent Crimes

TDCAA will present a Prosecuting Violent Crimes seminar for prosecutors and investigators April 11–14 at the Omni Houston Hotel at Westside. The course will cover handling victims and witnesses, prosecuting multiple defendants, self-defense claims, eyewitness identification, DNA issues, weapons, and punishment. One day of the course will be dedicated to specialized tracks on sexual assault, child victims, and domestic violence, so attendees can choose which subject(s) they need to know most.  

     In addition, TDCAA will offer an extra 1.75 hours of MCLE for a separate, free presentation on domestic violence through a CJD grant from the Governor’s Office. Those who attend this additional training will receive a complimentary copy of TDCAA’s Protective Orders manual and a two-sided laminated sheet on POs. For more information or to register, click here.

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]