March 29, 2019

Court of Criminal Appeals of Texas

Jones v. State

No. PD-1289-17               3/27/19

Issue:

Does preventing the defense from cross-examining a witness about biases violate the defendant’s constitutional rights under the Confrontation Clause?

Holding:

Yes. The defendant’s right to confront the witnesses against him includes the right to cross-examine witnesses about their testimony and impeach them about biases or ulterior motives. Interest in the outcome of a child custody determination is a valid area for exposing bias through cross-examination. Because the witness was the sole eyewitness to the charges of family violence and had an interest in the pending child custody suit against the defendant, the court erred in excluding cross-examination about that interest. However, the error does not require reversal because it was harmless beyond a reasonable doubt given the testimony from other witnesses in the case. Read opinion.

Concurrence (Hervey, Richardson, Newell, JJ.):

“Today, the majority holds that [the witness] was subject to cross-examination for potential bias because she was aware that there were on-going CPS termination proceedings against the defendant. I not only disagree with the majority’s reasoning, I also fear that it opens Pandora’s Box, paving the way for any defendant to cross-examine any third-party witness who testifies against a defendant and is aware of on-going termination proceedings against the defendant. … I conclude that the court of appeals erred when it held that [the defendant’s] right to confrontation was violated, and I dissent from the majority’s affirmation of that holding, but because the majority ultimately concludes that [the defendant] is not entitled to relief, I concur in the result.” Read opinion.

Concurrence (Newell, Hervey, Richardson, JJ.):

“The trial judge never prevented [the defendant] from cross-examining [the witness] about her possible bias or motive stemming from her desire to keep the child safe. The trial judge only held that [the defendant] could not introduce evidence of the termination proceedings and any potential outcomes of such proceedings. … Ultimately, this case is probably best understood as a ‘we would have let it in’ case. Had I been the trial judge evaluating the offer of proof, I probably would have clarified that [the defendant] was free to question [the witness] about her love for her grandchild and her desire to keep that child safe. But this isn’t a call on the field; it’s a booth review. Consequently, I am unwilling to second-guess the trial judge for her reasonable, and constitutionally permissible, limitation on cross-examination.” Read opinion.

Dissent (Walker, J.):

“I agree with the Court that the trial court’s exclusion of [the defendant’s] sought-after line of cross-examination was erroneous, and I join Part II of the Court’s opinion. However, I disagree with the Court’s conclusion that the error was harmless. There was harm in the exclusion, and I would affirm the decision of the court of appeals.” Read opinion.

Commentary:

This is one of those complicated opinions where the reader must comb the concurrences and dissents to find enough votes for a holding. The majority opinion teaches two things. First, a question can be fair game on cross even if the witness answers the question in the negative, e.g. “Q: You’ll say whatever the prosecutor wants because X. A: No, not that’s not true.” Second, a pending CPS case may be relevant to show bias. Prosecutors should remember that testimony that is not admissible under some rules of evidence may nevertheless be admissible when offered to show bias or motive.

Ex parte Lalonde

No. WR-87,660-01          3/27/19

Issue:

Is an officer’s perjury regarding his qualifications considered materially false testimony when other witnesses corroborated the remainder of the officer’s testimony?

Holding:

No. To succeed on a habeas claim of false testimony violating due process, a defendant must show that the false testimony was material and reasonably likely to influence the judgment of the jury. Here, one of the three officers who testified in the case gave false testimony regarding his qualifications. This false testimony is not material because it had no bearing on the underlying issue of whether the defendant gave consent to a search of his home. Even if the perjury would have attacked the officer’s credibility to such a degree that none of his testimony could be relied upon, the other officers also testified that the defendant consented to the search. Read opinion.

Concurrence (Keller, PJ., Slaughter, Keel, JJ.):

The presiding judge wrote separately to clarify how to categorize and treat various types of alse-evidence claims. “False-evidence claims have three components: (1) the prosecution’s use of false evidence, (2) the culpable mental state with respect to the falsity (knowing or unknowing), and (3) the materiality of the evidence. Conducting a harm analysis is also sometimes required, depending on the nature of the false-evidence claim and when that claim is presented.” Read opinion.

Commentary:

Claims involving false evidence will seem more complicated after you read these opinions. Some readers will have difficulty accepting that a witness who is on a district attorney’s “will not sponsor” list and who lied at trial does not earn the defendant a new trial. Nevertheless, the court explains why the false testimony was not material in this case. Different facts may lead to different results. This case will lend guidance to any office evaluating what to do in the face of an officer-implosion.

Texas Courts of Appeals

Prince v. State

No. 01-18-00208-CR       3/26/19

Issue:

Is a defendant harmed when the trial court erroneously admitted an entire forensic interview under the Rule of Optional Completeness?

Holding:

No. In this case, the court assumed that the trial court erred in admitting the forensic interview under the optional completeness rule. The court noted that the victim was very emotional during the interview and that the State made substantial use of the interview during its closing argument. The jury also sent four notes during deliberations including one where they asked to see the interview again.  Nevertheless, the victim’s statements in the 28 minute interview were mostly cumulative of the victim’s testimony at trial, and the State adduced evidence that corroborated the victim’s trial testimony. Therefore, any error was harmless. Read opinion.

Commentary:

Here, the defense attorney elicited testimony that some acts described in the interview were not testified to at trial, and that some acts testified to at trial were not described in the interview. In other words, the victim “was telling different stories.” Defense counsel also asked about whether the interviewer noticed any “red flags” during the interview—there were—and what the victim said about who she first outcried to. The court was unwilling to say that this cross examination created the sort of false impression that could be corrected by introducing the entire interview. What will work better when there is a false impression is to limit the corrective offer to specific matters that correct the false impression rather than offering the entire interview.

Castillo v. State

No. 01-18-00284-CR       3/26/19

Issue:

May the testimony of a child victim of sexual assault (not named in the indictment as the victim of a charged sexual assault) be admitted into evidence when the charge for that extraneous offense was previously dismissed as part of a plea bargain?

Holding:

Yes. Code of Criminal Procedure Art. 38.37 allows the introduction of evidence that the defendant has committed a separate offense of a sexual nature against a child. It is not necessary for the defendant to have been charged with, tried for, or convicted of the separate offense. Here, the defendant was charged with indecency with a child in the separate case. The defendant pleaded guilty to injury to a child, and the indecency charge was dismissed. The dismissal was not an adjudication of the defendant’s guilt or innocence on that charge and does not amount to an acquittal. Read opinion.

Commentary:

This decision will be very useful. Plea bargains for lesser offenses are very common. The argument that these amount to acquittals of the charged offense is also very common and, as shown here, dead wrong.

Texas Attorney General Opinions

RQ-0276-KP

Request:

May a clerk deny a defendant’s request to withdraw deposits of money made by the defendant and accepted by the clerk’s office when the deposits were made as payments toward fines and court costs and when there has been no guilty plea by the defendant and no finding of guilt by the court?

Announcements:

TDCAA Domestic Violence Seminar

Registration is now open for TDCAA’s 2019 Domestic Violence Seminar. Whether you are new to prosecution or a seasoned hand, this course will cover practical skills you need to do your job today. From intake to advocacy, this is Domestic Violence training developed for Texas prosecutors and presented by Texas prosecutors. Join us in Georgetown Texas April 9­–12 for this exciting training opportunity. For more information, please click here.

Criminal Confessions Docuseries Seeking Cases

A producer for Shed Media in Los Angeles, Josh Paris, is seeking potential cases to feature in the third season of the true-crime documentary series “Criminal Confessions” on Oxygen. Producers are looking for adjudicated cases that were successfully investigated and that have compelling videotaped confessions. If you or someone in your office has handled a case that fits this bill, please reach out to Josh directly at [email protected] and 323/904-4680, ext. 2011. The deadline is April 3rd.

TCDLA and State Bar CLE

The Texas Criminal Defense Lawyers Association (TCDLA), with co-sponsorship by the State Bar’s Criminal Justice Section, is hosting a CLE called “What You Need to Know About Sex Offender Registration” on Friday, April 26 in Austin. Registration for prosecutors and staff is free before April 15 and $50 after that. See the flyer here for more information, and register online at www.tcdla.com.

NCFI Digital Evidence for Prosecutors Training

The National Computer Forensics Institute is offering free training for state and local prosecutors on the investigation of crimes involving technology and presenting digital evidence in court. These five-day courses are held at the NCFI facility in Alabama at no cost to participating prosecutors. The application deadline is today, March 29. More information and the application are available here.

State Bar now taking scholarship applications for upcoming training

The Criminal Justice Section is taking applications for scholarships for various courses. You must be a current member of the Criminal Justice Section to apply. Preference will be given to lawyers licensed 5 years or less. A list of courses and the scholarship application may be accessed here.

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