Texas Court of Criminal Appeals
Watkins v. State
No. PD-1015-18 3/3/21
Issue:
When is evidence “material” under the Michael Morton Act, Code of Criminal Procedure Article 39.14?
Holding (Newell, J., 7-2):
Whether evidence is considered “material” is determined “by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial.” In this case, copies of booking records, pen packets, and prior judgments used for enhancement but not provided to the defense until trial were considered material “because they had a logical connection to subsidiary punishment facts.” Read opinion.
Dissent (Keller, P.J.):
“Addressing the 2013 amendments in this case, the Court construes the word ‘material’ to mean ‘relevant,’ saying that they mean the same thing and that ‘relevant’ is the ordinary definition of ‘material.’ But the Legislature did not change the word ‘material’ to ‘relevant’ when it amended 39.14(a). That fact should itself be a fair indication that the Legislature intended that, in order to be discoverable, the evidence listed in Article 39.14(a) be subject to a materiality standard rather than a standard of mere relevance.” Read opinion.
Dissent (Yeary, J.):
“We should construe a statute by focusing on the words actually used, themselves— here, ‘material’—rather than keying on some subliminal meaning shrouded in those words that we think, from our not-wholly-infallible judicial perspective, best implements the legislative purpose. By continuing to work within a constitutionally flawed framework, in which we purport to wrest out an evident legislative intent behind words actually used by the legislature, we risk violating our constitutional duty to avoid making the law.” Read opinion.
Commentary:
The battle among the members of the Court was whether “material” and “relevant” mean the same thing. The majority holds that they do. Arguably, this dispute is neither relevant nor material to the outcome of the case because the items at issue were exhibits the State presented at trial—why would the State offer exhibits that were not material to the case? The bigger lesson here is that the State’s discovery burden includes matters developed by the prosecutors after they received the case from the police and designed for use in the punishment phase of trial. Thus, if in trial preparation you find useful social media posts, interesting information in a book-in slip, or contradictory information in a newspaper article, then yes, you do need to produce that to the defense in order to use it at trial. Left unanswered is whether there is still a scienter requirement for discovery violations. Under the prior version of the discovery statute, evidence was only excludable if a prosecutor “willfully” violated a discovery order. See, e.g., Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014). Will mere mistakes about the discoverability of an item require exclusion at trial?
In re State ex rel. Ogg
No. WR-91,936-01 3/3/21
Issue:
Does a trial court, under the Texas Supreme Court’s Emergency Order in response to COVID-19, have the power to conduct a bench trial despite the State’s refusal to consent to a waiver of jury trial?
Holding:
No. Neither Tex. Gov’t Code §22.0035(b) nor the Emergency Order purport to authorize courts to modify substantive rights but instead address procedural matters. “It seems—and is—patently absurd that a generically framed right to modify statutory deadlines and procedures would confer upon the trial court the power to abrogate a defendant’s statutory right to a jury trial at punishment. It is equally absurd to think that this language would allow the trial court to do just that when the party insisting on a jury trial is the State.” Read opinion.
Commentary:
A strong ruling that the Supreme Court emergency orders are about deadlines and do not change the allocation of interests regarding the default standard of justice—a jury trial is required unless the defendant, the State, and the trial court all agree otherwise.
Najar v. State
No. PD-1049-19 3/3/21
Issue:
Is the sound of a siren heard while jurors are deliberating in an evading arrest case considered “other evidence” in violation of Tex. R. App. P. 21.3(f) that calls for a new trial?
Holding:
No. The sound of a siren heard outside is not “other evidence” under Rule 21.3, nor was it detrimental to the defendant. After the defendant’s trial for evading via a vehicle, his defense attorneys submitted affidavits in support of a new trial, saying they had talked to a juror post-trial who told them that during deliberations, jurors heard the sound of a siren and discussed the fact that if jurors could hear a siren from the 15th floor of a courthouse, the defendant must have been able to hear the siren of the officer trying to pull him over. The Court concluded, however, that the trial judge was not required to believe the affidavits. Read opinion.
Commentary:
The Court reconciles older case law with newer rules on new trials. The trial court is not required to accept statements in affidavits as true when ruling on a motion for new trial. Furthermore, when the State is the appellee, it can argue for the first time on appeal that the trial court rejected a juror affidavit because it did not believe the affidavit or because the affidavit was improper under T.R.Evid. 606.
Brown v. State
No. PD-1292-19 3/3/21
Issue:
Can a victim be considered “unavailable” to appear at trial for purposes of the doctrine of forfeiture by wrongdoing if the defendant tells investigators he does not know where she is, but the investigator nonetheless locates the victim before trial and she was living with the defendant?
Holding:
No. The Court rejected the argument that by deceiving the investigator about the status of his relationship with the victim (who was actually still living with him), the defendant was trying to thwart the investigator’s efforts to serve the victim with a subpoena and therefore was rendering her unavailable to testify. The Court also concluded that there is no special exception for family violence cases to the requirement that the defendant’s actions were designed to cause the witness’s absence from trial. Read opinion.
Dissent (Yeary, J.):
“I would uphold the court of appeals’ judgment with respect to the issue of wrongdoing. But I would remand to the court of appeals to consider whether [the victim] was, in fact, unavailable. The court of appeals may yet affirm the trial court’s judgment should it conclude that [the victim] was in fact unavailable, or that her out-of-court statements were not testimonial. Should it instead conclude that the trial court erred because [the victim] was available and her out-of-court statements were testimonial, the court of appeals should then address whether Appellant was harmed by the admission of those statements into evidence.” Read opinion.
Commentary:
Here, the Court holds that living with the victim, lying about knowing her whereabouts, and having previously been convicted of assaulting her does not suffice to show that the defendant procured her absence by “wrongdoing.” Even if lying to the investigator was wrongdoing, the State was unable to show this caused the victim to be unavailable. Prosecutors might find useful the Court’s survey of other jurisdictions’ handling of this issue.
Texas Courts of Appeals
Ex parte Couch
No. 02-19-00216-CR 2/25/21
Issue:
Is Penal Code §34.02(a)(4) unconstitutional on its face by punishing thought—essentially, by forbidding the mere intent to finance or invest funds intended to further the commission of criminal activity?
Holding:
No. Although the court rejected the State’s argument that use of the word “intend” in §34.02 should be read as a verb meaning “acting on one’s intent” that includes conduct in preparation of investing, the court concluded that the statute should be construed similarly to an illegal investment statute in Health & Safety Code §481.126(a). “Presuming, as we must, that the Legislature enacted Section 34.02(a)(4) with knowledge of the Court of Criminal Appeals’s construction of the phrase ‘finances or invests’ in the illegal investment statute, we conclude that the Legislature included the phrase ‘intends to finance or invest’ to foreclose the similar argument made regarding the illegal investment statute, in other words, to make clear that conduct indicating an intent to finance or invest––regardless of whether the raised or committed funds are actually expended in whole or in part––is expressly prohibited by Section 34.02(a)(4). This construction aligns with the legislative intent and the statute’s context, defines an actus reus, and avoids violating the Constitution.” Read opinion.
Commentary:
This defendant is the mother of the infamous “affluenza teen.” She was charged with money laundering related to her efforts to prevent his apprehension on a probation revocation warrant.
State v. Garcia
No. 14-20-00548-CR 3/2/21
Issue:
Does Code of Criminal Procedure Article 44.01 authorize the State to appeal a grant of relief to a defendant for a writ of habeas corpus filed under Article 11.09?
Holding:
No. “Because the trial court’s grant of relief to an applicant for a writ of habeas corpus under article 11.09 cannot be fairly characterized as an unfavorable ruling on a ruling from which the State would otherwise have the right to appeal the order, article 44.01 does not authorize the State’s appeal in this cause.” Read opinion.
Commentary:
The State should seek discretionary review in this case. There are a number of other precedents from the Court of Criminal Appeals and courts of appeals indicating that the State can appeal when a writ sets aside a judgment of conviction. The State’s Appellate Manual (TDCAA 2017) is a good resource on this issue.