November 14, 2016

Ninth Circuit of Appeals

Barnett v. Marquis

No. 14-35329      11/3/16


Is a prosecutor immune from suit for refusing to present a sheriff as a witness or work with him in ongoing investigations?


Yes. Prosecutors are absolutely immune for prosecutor conduct, which includes decisions about witness credibility and the presentation of evidence. They are allowed to refuse to present a witness based on any credibility issues, regardless of whether those issues prove correct or if they are motivated by personal animus. Additionally, a prosecutor’s a decision to refuse to work with an officer on cases is, in effect, the same as a refusal to prosecute that officer’s cases, which is protected by absolute immunity. Read.


This should be useful in light of anecdotal evidence of more prosecutors refusing to accept cases from certain officers or sponsor certain officers as witnesses.

Court of Criminal Appeals

Ex parte Lea

No. WR-82,867-01            11/9/16


Is the defendant entitled to have his community supervision reinstated because his revocation was based on an unconstitutional conviction?


Yes. The defendant’s community service revocation was based on him committing a new crime while on community supervision, improper photography under Penal Code §21.15(b)(1), which was later determined to be facially unconstitutional. Because his community supervision was revoked solely on the basis of his conviction under a void statute, he is entitled to have his community supervision reinstated. Read.

Dissent (Yeary, J.):

Judge Yeary reiterated his previous Ex parte Fournier dissent and would not grant retroactive collateral relief on the underlying conviction for improper photography or retroactive collateral habeas corpus relief to set aside an otherwise valid revocation simply because the conviction that provoked the revocation was based on a statute that was later declared to be unconstitutionally overbroad. Read.


This result should not surprise Texas prosecutors.

Thomas v. State

No. PD-1086-15


What should the appeals court consider in the harm analysis when reviewing a trial court’s decisions under Code of Criminal Procedure Art. 36.28 to read back certain trial testimony to the jury?


A reversal for Art. 36.28 error is required only if the error affected a defendant’s substantial rights, but that does not mean a reviewing court should look for only variance or contradiction between the portions of testimony read back to the jury and those not read. The harm analysis should review the entire record, including “all of the testimony and physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, and closing arguments.” In this case, while additional testimony should have been read to the jury under Art. 36.28, the failure to do so did not affect the defendant’s substantial rights and was harmless. Read.

Concurrence (Yeary, J.):

Judge Yeary concurred in the decision but wrote separately to argue that it was improper for the Court to address the issue of error preservation in its decision since discretionary review was granted only to discuss the harm analysis. Read.


The Court’s discussion of preservation of error is troubling, although enough judges declined to join that part of the opinion such that it might be viewed as dicta. The court’s ruling on the merits glosses over the difficulty in answering requests for read backs.


Ex parte Ruiz

No. WR-27,328-03 & WR-27, 328-04         11/9/16


Is the defendant entitled to a subsequent writ of habeas corpus?


No. The defendant’s claims of ineffective assistance of trial counsel have been fully heard by a federal district court, and he is barred from claiming ineffective assistance of habeas counsel under Ex parte Graves. Additionally, the duration of the defendant’s time on death row does not raise that punishment to the level of cruel and unusual under the Eighth Amendment. Read.

Concurrence (Johnson, J.):

Judge Johnson concurred with the decision of the majority because this defendant has had a full hearing in the federal district court; however, she would consider reviewing Ex parte Graves’ decision that assistance of counsel on a habeas claim need not be competent or effective. Read.

Dissent (Alcala, J.):

Judge Alcala dissented; she would support overturning the bar on subsequent writs and overruling Ex parte Graves to consider this case on the merits. Read.


The Court makes a pragmatic decision not to reopen a capital case where the claims at issue were resolved by a federal court rather than the CCA. The dissent appears to be wrong when it claims that the federal courts applied an overly deferential standard to the claim.

Texas Courts of Appeals

Castellanos v. State (13th COA)

No. 13-14-00524-CR         10/27/16


Is blood alcohol content (BAC) an element of a Class A DWI or an enhancement?


A BAC of 0.15 or greater is an element of a Class A DWI under Penal Code §49.04(d). This Court agreed with the Navarro decision from the 14th Court of Appeals that BAC is an element because it elevates the degree of offense, and the BAC must be proven at the guilt/innocence phase of trial. Read.


This issue has troubled trial courts around the state. The holding is consistent with Calton v. State¸ 176 S.W.3d 231 (Tex. Crim. App. 2005) as well as Navarro. The safer approach is to treat the 0.15 allegation as an element that must be read to the jury prior to trial and proven at guilt. It ensures the defendant his Sixth Amendment rights under Apprendi and has little or no prejudicial effect.


Hernandez v. State (2nd COA)

No. 02-14-00498-CR         11/3/16


Did the State’s outside-the-record use of a racial slur in its closing argument result in an unfair trial for the defendant?


Yes. Even though the defendant did not ask for a mistrial at the time of the objection, some comments are so inflammatory or prejudicial that they can be raised on appeal. The judge’s vague instruction to the jury was not enough to alleviate the harm caused by the prosecutor’s statement. Read.

Concurrence (Walker, J.):

Justice Walker concurred with the opinion of the court because the defendant framed his issue as prosecutorial misconduct, which need not be strictly preserved. Additionally, the prosecutor’s statement was so inflammatory that it denied the defendant his due process right to a fair trial. Read.

Dissent (Sudderth, J.):

Justice Sudderth dissented because while she agreed that the prosecutor’s conduct was improper and inflammatory, the defendant did not properly preserve his complaint. Read.


Crimes often involve nasty, even unforgiveable words. Those words often enter evidence through the testimony of witnesses. But here, the terrible word came through the prosecutor’s final argument. It is an improper jury argument because it interjected new facts. As developed by the dissent it is questionable whether the improper argument was preserved for appeal. But prosecutors should learn from this case not to interject new facts in argument, especially divisive, red-letter words that hopefully will disappear from our language one day.

State v. Sciacca (1st COA)

No. 01-15-00953-CR         10/27/16


Did the lack of an application paragraph for Penal Code §9.04 in the jury charge require a new trial?


No. Motions for new trial based on jury charge error are subject to a harm analysis. In this case, there was no harm for leaving out an application paragraph on “Threat as Justifiable Force” because the jury was given proper instructions on the justifiable use of force and still found the defendant guilty. If the use of force was not justified, the threat of force is also not justified; by finding the defendant guilty, the jury rejected the defendant’s justification excuse. Read.


The court’s charge included the concept of threat of force as force in the general self-defense application. Arguably, there is no error in the charge.

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