November 18,2022

Texas Court of Criminal Appeals

Ex parte Salinas

No. WR-90,982-01                  11/16/22


Were the defendant’s trial attorneys ineffective by failing to object to the trial judge admitting evidence that the defendant refused to answer one question about the murder weapon officers asked during an interview at the stationhouse?


No. The law was unsettled at the time of trial as to whether a defendant who has waived his Miranda rights may selectively decline to answer particular questions under Doyle v. Ohio, 426 U.S. 610 (1976), which prohibits use for impeachment purposes of a defendant’s silence at the time of arrest and after receiving Miranda warnings. Although the convicting court recommended granting a new trial based on defense attorneys’ failure to challenge use of the defendant’s pretrial silence, the Court of Criminal Appeals concluded that basing an ineffective assistance claim “on law that is unsettled as of the time of the attorney’s performance would indulge in the kind of retrospective evaluation that Strickland forbids.” Read opinion.


It is a foundational principle of the first, deficiency prong of the Strickland test for ineffective assistance of counsel that the performance of a trial attorney must be assessed at the time of the attorney’s representation, not through a contemporary lens, which causes “the distorting effects of hindsight.” Evaluating the attorney’s performance at the time it was rendered necessarily includes including different interpretations and defensive strategies when a particular area of the law is unclear or unsettled at that time. 

This case features two unsettled areas of the law: (1) whether evidence concerning the defendant’s selective post-arrest, post-Miranda silence is admissible, notwithstanding Doyle; and (2) whether the defendant’s silence or refusal to answer a particular question during a police interrogation that is not electronically recorded actually counts as part of the “oral statement” contemplated by Article 38.22, §3. As the Court of Criminal Appeals (CCA) observes, both of these issues remain open questions, unresolved by either the CCA or the United States Supreme Court. Consequently, if either of these issues arise in a trial or appellate case, keep this opinion and its listed authorities concerning the debates handy. 

U.S. District Court for the Eastern District of Texas

Netflix v. Babin

No. 9:22-CV-00031                  11/14/2022


Can a federal district court enjoin a district attorney from pursuing indictments under §§43.262 and 43.25 of the Penal Code against Netflix based on a movie it streamed?


Yes. The court granted an injunction prohibiting the district attorney from prosecuting Netflix under §43.262 (Possession or Promotion of Lewd Visual Material Depicting Child) for airing the French movie Cuties. The court concluded that the district attorney’s decisions to dismiss without prejudice previous charges under §43.262 and file a policy statement stating that his office would not prosecute any offense under that section until §43.262 was found to be constitutional were insufficient to make Netflix’s First Amendment claims moot. A threat of prosecution—not necessarily a pending prosecution—can give a court jurisdiction to consider granting an injunction. The federal court also concluded that the Younger abstention doctrine did not bar it from granting the injunction because there was a substantial likelihood Netflix would prevail on its First Amendment claims that §43.25 (Sexual Performance by a Child) is unconstitutional as applied. Read Opinion.


If you’re curious about the Younger abstention doctrine and why and when a federal court can get involved in—and enjoin—ongoing criminal prosecutions in state courts, this case will be an interesting read. 

Otherwise, this case is noteworthy because it creates another avenue for debate as to whether §43.262 implicates and violates the First Amendment. Prior to this federal injunction lawsuit, that question was at issue only at the state level in Ex parte Lowry, No. PD-0887-21, which is currently pending before the CCA on the State’s petition for discretionary review. Now an issue at the federal level too, expect further litigation and additional opinions on the matter because:  (1) the district attorney could appeal this decision to the Fifth Circuit; and (2) this federal injunction lawsuit is currently set for a bench trial on January 30, 2023, concerning the merits of a permanent injunction, which would depend upon the federal district court’s assessment of the facial constitutionality of §43.262 and the scope of §43.25. This basically means that the race is on between the CCA and the federal courts, and that the plot has thickened. Stay tuned.

Texas Attorney General Opinion Requests

No. RQ-0484-KP                     Nov 9, 2022


Does a magistrate have authority to deny bail to a person who has committed a second felony while released on bail for an earlier felony under Code of Criminal Procedure Article 17.027(a)(1)? Read Request.

Requested by:

Julie Renken, Washington County District Attorney

No. RQ-0485-KP                     Nov 10, 2022


Can a municipality or local government entity engage in a Trap, Neuter, Release program without violating Penal Code §42.092 (Cruelty to Nonlivestock Animals)? Read Request.

Requested by:

Tom Selleck, Brazoria County Criminal District Attorney

No Summaries Next Week

Because of the Thanksgiving holiday, TDCAA will not publish Weekly Case Summaries on Nov. 25. We will return with summaries the following week on Dec. 2. Happy holidays to all our readers!