May 19, 2017

Texas Court of Criminal Appeals

State v. Arizmendi

No. PD-0623-16                5/17/17


Are the ruling and testimony from a co-defendant’s suppression hearing “new evidence” for the basis of a motion for new trial?


No. A trial court’s ruling on a motion to suppress in a related case is not “evidence” in the context of a newly-discovered-evidence claim. While testimony from the hearing is evidence, the defendant could have sought out the arresting officer or the police report before accepting the plea deal. This evidence was available to the defense, and failure to obtain it was due to a lack of diligence. Read opinion.

Concurrence (Hervey, J.):

A motion-for-new-trial waiver should be treated like a post-conviction habeas waiver and not be enforced when the allegation is that of an involuntary plea. Read opinion.

Concurrence (Newell, J.):

The Court should hold that granting a new trial “in the interest of justice” simply refers to the trial court’s power or authority to grant a new trial and is not an independent legal basis for granting it. Read opinion.

Dissent (Alcala, J.):

The trial court did not abuse its discretion by granting the defendant a new trial. The record established that the guilty plea was involuntary due to her attorney’s ineffectiveness. Although this legal theory was not included in writing in the motion for new trial, the State failed to preserve this complaint because it did not obtain an adverse ruling. Alternatively, the trial court retains inherent authority to consider an untimely basis for granting a new trial. Read opinion.


This opinion may come in handy because it is not uncommon for the second or third defendant in a multi-defendant case to end up with a “better deal” for one reason or another—here, by winning a motion to suppress. In a nutshell, the fact that another defendant won a motion to suppress is not grounds for an earlier pleading defendant to get a new trial. Judge Newell’s concurrence is interesting because it points out that the Texas Supreme Court has similar precedent based on similar policies. The only way a defendant should win in this situation is if her trial lawyer was ineffective for failing to file a motion to suppress. But even that claim may not succeed if the decision to forego the motion to suppress was a reasonable tactical decision, which seems to be the case here.

Texas Courts of Appeals

Fisher v. State

No. 14-16-00108-CR         5/11/17


Is a photographic lineup impermissibly suggestive when the suspect is wearing clothing matching the description given by the victim?


No. All the photos in the lineup showed subjects with similar age, skin tones, facial features, and hairstyles. The fact that the defendant was the only subject wearing a red hoodie as described by the victim is not clear and convincing evidence that the lineup was impermissibly suggestive. Read opinion.


Good procedures at your jail can ensure that the photos used in lineups aren’t subject to attack this way. The modern trend seems to be the use of a towel or smock to ensure that witnesses don’t fixate on the shirt worn by the suspect. While this lineup was upheld, be cautious of how clothing in the photos could affect admissibility.

Gonzalez v. State

No. 01-15-00902-CR         5/16/17


Does CCP Article 39.15 violate a defendant’s right to confront juvenile witnesses?


No. Article 39.15 allows the defendant, his counsel, and any expert witnesses “ample opportunity” to review the evidence in question. It does not prevent the defense from confronting juvenile accusers regarding their motivation or bias in testifying, nor does it prevent bringing up inconsistencies between prior statements and testimony at trial. Read opinion.


A moderately helpful, but long, opinion. In a nutshell, because lawyers with access to the forensic videos can confront and impeach the victims and witnesses, the rule prohibiting copying the forensic videos does not violate the confrontation clause.

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