March 25, 2011

Texas Courts of Appeals

Martin v. State – 3rd COA

03/16/11 : Cite No. 03-10-00202-CR


(1) Does the offense of continuous sexual assault (CSA) violate constitutional or statutory jury unanimity provisions?

(2) Was the jury charge instruction about an offense occurring before the victim’s 14th birthday erroneous?

(3) Is the law denying parole for CSA unconstitutional?


(1) No, as the court has said before and despite a Hawaiian court’s recent ruling to the contrary.

(2) Yes, but in context, it was harmless.

(3) No, there is a rational basis for the legislature to deny parole to persons convicted of continuous sexual abuse of a child but to allow parole to persons convicted of other sexual offenses against children younger than 14. Read Opinion.


The sexual misconduct committed by this defendant is a walking, talking explanation for why the offense of continuous sexual abuse and no parole 25-life punishment range is, thank you. This case is a good blueprint for using the continuous sexual abuse law and responding to the checklist of constitutional challenges likely to follow.

Branch v. State – 3rd COA

03/18/11 : Cite No. 03-09-00477-CR


Did defense counsel’s failure to object to the prosecutor’s three comments that, under parole laws, the defendant would be out of prison in “X” years constitute ineffective assistance of counsel?


Yes, counsel should have objected to the improper closing argument and the failure to do so prejudiced the defendant. Read Opinion.


The defendant has not shown neither that his defense attorney was ineffective nor that he was prejudiced as a result of his attorney’s failure to object. Read Dissent.


There is a reasonable argument presented for how the prosecutor was merely responding to arguments raised by the defense. But, those responses likely kicked open an only cracked door. The lesson: leave the parole charge alone; do not make arguments that encourage the jury to predict how it will be applied to the defendant; let the facts do the talking for punishment.

Salinas v. State – 14th COA

03/17/11 : Cite No. 14-09-00395-CR


Did the trial court improperly admit evidence of the non-testifying defendant’s pre-arrest, pre-Miranda silence?


No. Despite the dearth of Texas authority and the split in the federal circuits, the evidence was admissible. Read Opinion.


The defendant’s silence over one question (“What if the shells found at the scene match your shotgun?”) was quite telling, as it was the only question left unanswered over an hour of noncustodial interrogation. The prosecutor did an excellent job of setting it up as an inference of guilt. Fortunately, there also was a confession to a third-party witness. Still, 20 years in prison for the cold-blooded murder of two people? Sometimes, life is cheap.

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