Texas Supreme Court
State v. $3,774.28, et al.
No. 24-0258 5/14/25
Issue:
Should a trial court, in ruling on a no-evidence motion for summary judgment, consider previously filed evidence that is referenced in, but not attached to a response to the motion?
Holding:
Yes. T.R.Civ.P. 166a(i) does not require attachment of previously filed summary judgment evidence. The Court concluded that the response in this asset forfeiture case sufficiently pointed out and discussed the evidence in compliance with the procedural rules. The Court held that “a response to a no-evidence motion for summary judgment that discusses and calls the court’s attention to evidence already in the court’s record ‘points out’ and thus ‘produces’ that evidence. Certainly we encourage nonmovants to attach all relied-upon evidence as exhibits to their response. … But the mere fact that evidence is not ‘attached’ to the no-evidence response does not foreclose its consideration on summary judgment. In other words, the act of attachment does not magically convert ‘evidence’ into ‘summary judgment evidence.’” Read opinion.
Commentary:
The Court’s ruling on this issue turns on its interpretation of the requirement of Rule 166a(i) that the nonmovant “produce” evidence for its response to a no-evidence motion for summary judgment. Distinguishing “produce” from “attach” and utilizing the plain, dictionary meaning of “produce” and the comment accompanying the rule, which explains that the nonmovant “need only point out” the evidence that raises a fact issue, the Court rejects the notion that the nonmovant must physically affix its evidence to its response when that evidence is already in the court’s record and is identified by the nonmovant’s response. This is a helpful ruling for the State (which will commonly be the nonmovant in these scenarios, like here), but be advised that the better approach remains for asset-forfeiture prosecutors to still attach at least some evidence (i.e., enough to constitute a scintilla) to their responses when it is feasible to do so, like when the evidence consists of an affidavit.
Texas Courts of Appeals
Rodriguez v. State
No. 01-23-00664-CR 5/8/25
Issue:
Did the trial judge’s comment about the correlation between the county’s backlog of cases and the number of crimes committed violate Code of Criminal Procedure Art. 38.05 as an improper communication about the defendant’s murder prosecution?
Holding:
No. The judge explained to the venire panel: “I had a prospective juror ask me some weeks back, months back, when did I think we would get caught up. And I answered in this way, I said when individuals stop breaking the law we might get caught up. But the way things have been going, as you see on the news, it doesn’t look like we’re going to get caught up anytime soon.” The Court concluded that this comment did not violate Art. 38.05 because it was not made while ruling on the admissibility of evidence, nor did it convey the judge’s opinion about the case. “The trial court’s comment explained that the number of criminal trials correlated to the number of crimes. That is not a comment on the appellant’s guilt.” Read opinion.
Commentary:
This is a good case to keep in mind because trial judges sometimes make comments like this during voir dire as a means of generally introducing the criminal justice system and jury-selection process to the venire panelists, or in response to questions by the panelists. This opinion instructs that, so long as the judge’s remarks do not actually convey some opinion about the merits of the case, the weight of the evidence, or the defendant’s guilt, they should be fine for purposes of Article 38.05. Incidentally, the appellate court also held that the trial judge’s remarks in this instance did not violate the defendant’s due process rights, deprive the defendant of an impartial judge, or impinge the defendant’s presumption of innocence—so the case will be useful against those arguments in the future, too.
Jenkins v. State
No. 14-23-00740-CR 5/15/25
Issue:
Do Code of Criminal Procedure Arts. 36.01 and 37.07 prohibit an indictment from being read until the punishment phase of trial?
Holding:
No. The Court rejected the capital murder defendant’s argument that the prosecutor and judge should not have read portions of the indictment to the venire panel during jury selection. Noting that the defense did not cite any cases and the Court’s research did not reveal any case in which a court has held that reading from the indictment during voir dire was improper, the Court concluded that the plain language of Art. 36.01 “does not provide that the indictment or information [must be] read for the first time after the jury is impaneled or that the indictment may not be read during voir dire.” Read opinion.
Commentary:
This published case will be helpful to trial prosecutors and judges alike since it clearly provides that either the judge or the prosecutor (or both) may read the charging instrument during voir dire without running afoul of Articles 36.01 and 37.07. That being said, though, prosecutors who opt to read the charging instrument during voir dire as a means to discuss the venire panelists’ views on the charge and other pertinent issues must be cautious to avoid delving into any specific facts of the case beyond the bare information listed in the charging instrument to keep the voir dire process general and preserve the impartiality of the empaneled jury.
Ex parte Butschek
Nos. 14-23-00924-CR & -00925-CR 5/20/25
Issue:
Is the 2015 version of Penal Code §33.021(b), which prohibits sexually explicit communications that occur online or by text between an adult and a minor, facially unconstitutional?
Holding:
No. even though §33.021(b) prohibits speech on the basis of its content, that speech is unprotected by the First Amendment because the speech is integral to the commission of a criminal sexual offense. Read opinion.
Commentary:
The Court of Criminal Appeals invalidated a prior version of this statute as facially unconstitutional in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). After Lo, the legislature amended Penal Code §33.021(b) in effort to make the provision pass constitutional muster. Here, the Fourteenth Court of Appeals holds that the legislature succeeded in doing so and, based on the appellate court’s logic and the authorities it relies upon, it is likely that the Court of Criminal Appeals will agree (if the Court grants any petition for discretionary review).
Alvarado v. State
No. 01-23-00339-CR 5/20/25
Issue:
Is a defendant entitled to automatic reversal if he asks for a court reporter and the judge instead uses a court recorder?
Holding:
No. Although Tex. Gov’t Code §52.041(a) requires a judge of a court of record to appoint an official court reporter, and §52.046(a) requires an official court reporter to record oral testimony and closing arguments, the judge instead relied on a local rule addressing the trial court’s use of a court recorder in place of a court reporter because of a shortage of court reporters. The judge asserted to the defense that using a court recorder would comply with T.R.App.P. 13.1 and 13.2. However, even if the judge’s decision was an abuse of discretion, the Court concluded that the defendant “has not shown that the decision affected any of his substantial rights in any way” and did not require reversal. Read opinion.
Commentary:
Although prevailing authorities are clear that a trial court must appoint an official court reporter to transcribe the proceedings upon the defendant’s request, this case instructs that, even if a trial court abuses its discretion by instead using a court recorder to make an audio recording of the proceedings instead, that error is subject to a non-constitutional harm analysis under Rule of Appellate Procedure 44.2(b). Though there likely isn’t much you can do as the prosecutor in this situation—aside from perhaps educating the trial judge about this opinion—try to help protect the record by ensuring that any court recorder used in lieu of a court reporter attends and records all aspects of the proceedings and, thus, makes a full and accurate record.
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