Texas Court of Criminal Appeals
Lewis and Nolley v. State
No. PD-0833-13 4/30/14
Is a mandatory life sentence for a juvenile unconstitutional under Miller v. Alabama?
No. Under Miller, a court must make an individualized determination of the appropriateness of a life without parole sentence if the defendant is a juvenile, but not if the juvenile is facing a mandatory life sentence with the possibility of parole. Read the opinion.
These two defendants were on direct appeal when Miller was decided. The courts of appeals reformed their sentences from life without parole to life. These opinions will be useful for those cases where defendants complain about the Legislature’s solution to the Miller problem.
Bruton v. State
No. PD-1265-13 4/30/14
Did the state properly authenticate foreign public documents that purported to show a defendant’s criminal history in another country under Rules of Evidence 902(3) and (4)?
No. The documents were not accompanied by a final certification by a diplomatic or consular official, and the State failed to demonstrate good cause for the lack of certification. Read the opinion.
After reading this opinion, you will know two bits of French for sure: “voir dire” which should already be familiar, and “apostille,” which is the easier of two methods to make foreign certified copies admissible.
Colyer v. State
No. PD-0305-13 4/30/14
Was the defense entitled to a new trial when a juror later testified he only voted guilty because he wanted to terminate the trial quickly due to concerns about approaching inclement weather and news his daughter was sick?
No. Under Rule 606(b) a juror may testify as to whether any outside influences improperly influenced his decision, but concerns about weather or children’s health are not considered “outside influences.” Read the opinion.
This opinion now becomes the leading resource for litigating juror misconduct claims and gives definitive guidance on what constitutes an “outside influence.” A juror’s personal worries about the weather and about communications with the family doctor do not qualify. “A juror’s vote, when polled in open court, is a ‘final sale’ item; it cannot be exchanged because that juror later has buyer’s remorse.” Have that snippet ready the next time you receive an affidavit from a juror who later has misgivings about a verdict.
Francis v. State
No. PD-0519-13 4/30/14
Did the prosecutor willfully violate a pre-trial discovery order requiring inspection of all physical evidence when, on the first day of trial, she revealed to defense counsel a machete to be entered into evidence when all the information previously available to the defense indicated only a small knife was alleged as a deadly weapon?
No, but only because the trial court didn’t see it that way, and the Court of Criminal Appeals concluded that under these facts, almost absolute deference was owed to the trial court’s implicit conclusion that the prosecutor’s conduct was less than willful. The opinion notes that under the same facts, the trial court could also have found the prosecutor’s actions to be willful and suppressed the evidence. Read the opinion.
Given the heightened scrutiny of discovery practices of Texas prosecutors, read this case with interest, recognize how easily these errors can happen, and look for ways to make sure you are in compliance.
Texas Courts of Appeals
Reeder v. State (opinion on rehearing)
No. 06-13-00126-CR 4/29/14
Is implied-consent an exception to the warrant requirement for blood draws?
No. Although this court had previously held the opposite in this case in January, on rehearing, the court holds that the United States Supreme Court’s remand of Aviles v. State, 385 S.W.3d 110, 112 (Tex. App.— San Antonio 2012, pet. ref’d), vacated, 134 S.Ct. 902 (2014) has signaled that the Supreme Court does not accept implied-consent as an exception to the warrant requirement. The State must therefore demonstrate exigent circumstances that do not run afoul of Missouri v. McNeely to draw blood without a warrant. Read the opinion.
The Court (and other courts of appeals it cites) reads too much into the Aviles remand order from the Supreme Court. Consent is a well-accepted exception to the requirement of a warrant. Every Texas driver consents to the taking of a specimen if they are arrested for DWI, and Texas law otherwise provides that such consent is irrevocable for felony DWI, DWI with child, serious bodily injury or death, or habitual offender cases. Ultimately, the Supreme Court may not approve of Texas’ statute, but they will need to say it in a case other than McNeely. Texas prosecutors should receive more guidance when the Court of Criminal Appeals addresses the merits of this issue in State v. Baker, No. PD-13-1592, which was submitted on April 16, 2014.