May 16, 2014



Fifth Circuit Court of Appeals

In re Campbell

No. 14-20293                          5/13/14


Was a Texas death-row inmate whose previous Atkins claim of mental retardation had been rejected by the courts entitled to permission to seek habeas relief and a stay of execution based on newly-discovered historical evidence of mental retardation?


Yes. Although the Court of Criminal Appeals dismissed a subsequent writ last week in the same case, the Fifth Circuit found that he made a showing that the State had withheld evidence of an IQ test the defendant took in elementary school as well as an IQ test administered upon the defendant’s incarceration. This evidence, along with corroborating evidence obtained through a psychological examination performed by an expert hired by the defense, was sufficient to grant a stay in the execution and to permit the defendant to petition the federal district court again for habeas relief. Read the opinion.

(Note: the Court of Criminal Appeals opinion in the Campbell case can be found here, and Judge Alcala’s dissent can be found here.)


If you read the opinion carefully, you will see that the Fifth Circuit is recounting what Campbell alleges to be true, not facts found after an adversarial hearing on the matter. Of course, if you read media coverage of the case, you would probably believe the stay was about the recent problematic execution in Oklahoma, rather than Atkins and Brady claims.




Texas Court of Criminal Appeals

Cooper v. State

No. PD-1022-12                     5/14/14


Was it a violation of double jeopardy to convict the defendant of both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victim during a single robbery?


Yes, although the majority opinion does not establish the reasoning behind the holding. Read the opinion.

Concurrence (Keller, P.J.):

Although significant factors can be cited to support a conclusion that the different methods of committing robbery are different offenses, these factors, at best, counterbalance other factors that weigh against such a conclusion. Thus, the unit of prosecution in a robbery case is each individual subjected to assaultive conduct during the course of a theft. Read the concurrence.  

Concurrence (Cochran, J.):

Like assault and battery, which were separate offenses at common law but have been merged into one offense, robbery by assault and robbery by threat are merged into the completed crime. Read the concurrence.

Dissent (Price, J):

Threat and bodily injury are at least part of the gravamen of the offense, not mere manner and means. Read the dissent.


Sometimes, the logic of a rule does not fit well with the result expected. The CCA has held that an assault was the unit of prosecution in robbery. The CCA has also held that the two different manners of committing assault—threat and infliction of bodily injury—represent separate offenses. But the result—multiple robberies of the same person in a single transaction—while logical, is not palatable. We might be seeing this again as lawyers apply the reasoning of the concurrence to other crimes.

Harleston v. State

No. WR-79,196-01                 5/14/14


When testimony at a habeas evidentiary hearing reflected that a child sex-assault victim fully recanted her original accusation, then fully repudiated that recantation, then switched back-and-forth between affirming and recanting her original accusation, was the record that resulted sufficient to prove the defendant’s actual innocence by clear and convincing evidence?


No. The defendant has the burden to bring evidence so conclusive that it would preclude conviction from a rational jury, and evidence that merely casts doubt on a defendant’s innocence does not meet that “Herculean” burden. Read the opinion.

Concurrence (Price J.):

There is support on the record for the convicting court’s finding that the defendant’s recantations are credible, but the record makes a more compelling case for rejecting those recantations. Read the concurrence.


This opinion offers an education in how to craft habeas findings. Credibility findings are important, but a trial court must do more than slap the words “credible” or “not credible” on its findings if it wants the Court of Criminal Appeals to defer to those findings. A court must “show its work.” Moreover, the opinion appears to reset the bar for “actual innocence” relief at a high mark. Child-abuse prosecutors and habeas prosecutors should familiarize themselves with this case—the issues presented here occur again and again, and this case may provide insights in how to litigate similar claims and insulate prosecutions against such claims.

Perez v. State

No. PD-1380-13                     5/14/2014

Issue 1:

Did the State’s motion to amend the indictment by abandoning five of 11 counts and reordering them by severity serve to amend the indictment, even though the court never physically altered the charging instrument?

Issue 2:

Did boilerplate language in the motion for new trial preserve a claim that the trial court erred by failing to hold a hearing on the motion?

Holding 1:

Yes. Such alterations do not invade the province of the grand jury because the grand jury returned a true bill on all of the charges for which the appellant was tried and convicted.

Holding 2:

No, the boilerplate language in the motion did not preserve the claim that a hearing was required.  Read the opinion.


The Court continues to retreat from its strict rules for amendment originally set out in Ward v. State. And the Court continues to hold a hard line on just what triggers the need for a hearing on a motion for new trial. But after this case, do we really know what is required to amend an indictment anymore? In many counties, the indictment may now consist of an electronic image rather than paper—how is that amended after Riney and Perez? The safer practice would seem to be to alter the indictment somehow so that it corresponds to the motion to amend. That way, if the case is not reached for trial and other prosecutors and defense counsel work on the file, there is an amended indictment in the file rather than an unamended indictment.




Office of the Attorney General

Request from the Dallas County District Attorney

RQ-1198-GA                          5/12/14


Does the Dallas County Juvenile Board have the authority to hire an attorney, as a full-time employee, to provide in-house legal services to the Board, the Juvenile Department, and the Charter School Board? Read the request.


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