November 20, 2020

Court of Criminal Appeals

Wells v. State

No. AP-77,070                        11/18/20


1. Did the trial court correctly exclude the full video of the capital murder defendant’s interview showing his post-offense mental state?

2. Did the trial court violate the defendant’s right to a fair trial when it prevented a behavioral genetics expert from testifying that the defendant has six specific gene variants that increase his propensity for violence?


1. Perhaps not. The Court did not rule on the propriety of the exclusion of the video. Instead, the Court concluded that any error in its exclusion was harmless. Better evidence of the defendant’s post-offense mental state came in through a variety of other sources, and the exclusion of the video segment could not have affected the jury on the mitigation issue. The defendant did not demonstrate a constitutional due process violation because the trial court’s ruling did not prevent him from presenting the substance of his defense to the jury.

2. No. The trial court’s ruling centered on the disconnect between the underlying studies and the expert’s opinion that the defendant was predisposed to violence. The court identified multiple problems between the studies the expert submitted as foundational to his opinions and their inapplicability to the defendant’s claimed genetic propensity for violence. In sum, the expert’s opinion lacked the foundational support and scientific reliability necessary to support expert testimony. As an unsupported opinion, the expert’s proposed testimony did not serve the purposes for which it was offered, that is, to objectively assist the jury in assessing the defendant’s personal moral culpability.Read Opinion.


This is an interesting opinion. The State objected to admission of the video on hearsay and relevance grounds. But relevance is pretty squishy when the issue is mitigation in a capital case. The Court conducted an extensive harmless error analysis, and its holding should withstand the further review in the federal courts. This case shows the tricky nature of objecting to mitigation evidence in the punishment phase. The second issue is also noteworthy because of the double-edged nature of the evidence the defense sought to admit.

Ukwuachu v. State

No. PD-0776-19                     11/18/20


Did the court of appeals correctly hold that the conviction was based on false evidence based on the prosecutors use of phone records to cross-examine defense witnesses?


No. The appeals court erred to conclude the record established that any false or misleading testimony was placed before the jury. The law governing the falsity prong of a false-evidence claim requires both an allegation of falsity of some particular testimony and proof of that falsity with highly persuasive evidence that undermines the evidence presented at trial. Here, the defendant has satisfied neither requirement. The defendant did not introduce the phone records into evidence, nor did he introduce any expert testimony to establish that the State misled the jury about any information shown in the records. Without these phone records or such expert testimony, the defendant could not prove that the State actually elicited witness testimony that conflicted with the substance of those records. Because the defendant failed to make the requisite showing of falsity, the Court reversed the court of appeals’ grant of a new trial. Read Opinion. 


This is the second time this messy case has been to the Court. False testimony is a complicated beast, and it remains unclear just where it begins and ordinary impeachment through cross-examination ends.

In re Meza

No. WR-90,325-01                 11/18/20


Is a former criminal district attorney—now a member of a private law firm—disqualified from acting as defense counsel on a case he had reviewed while serving as criminal district attorney?


Yes. The Court concluded that under unequivocal, well-settled law, the former district attorney is disqualified from acting as defense counsel. Before he left office, the district attorney examined the State’s files and discussed the evidence with the assistant district attorney who had been assigned to the case. It was clear that by reviewing the file and engaging in a discussion with the assistant district attorney about the evidence, the district attorney participated in the preparation of the case. The district attorney’s involvement in this case far exceeded the kind of involvement the Court has previously held sufficient for disqualification. Read Opinion.


Even minor participation in a case as prosecutor disqualifies a lawyer from that case as defense counsel but probably will not disqualify an entire law firm.

Texas Courts of Appeals

Davis v. State

No. 06-20-00032-CR              11/10/20


Was the evidence legally sufficient to support a deadly weapon finding when there was no evidence showing that the knives were exhibited during the commission of the offense and the victims had not seen or been threatened with the knives, as one knife was concealed inside of a backpack and the other knife was laying outside of the backyard?


Yes. Using a deadly weapon during the commission of a felony offense extends to any employment of a deadly weapon, even its simple possession, if the possession facilitates the associated felony. Here, the defendant testified that his purpose for going to the home was to assault the victim. He said that he packed the knives because they were the only weapons he could find, showing that he had made a conscious decision to use them before going to the house. Circumstantial evidence showed that the defendant attempted to break down the front door while he possessed the knives. Because “simple possession, if such possession facilitates the associated felony,” is sufficient, the Court concluded that the deadly weapon finding was supported by legally sufficient evidence. Read Opinion.

State v. Dunn

No. 14-19-00701-CR              11/17/20


Did the trial court abuse its discretion when it ordered the State to disclose the identity of a confidential informant and subsequently dismissed the indictment when the State refused?


Yes. Before a trial court orders the identity of a confidential informant to be revealed, the confidential informant’s potential testimony must be shown to significantly aid the defendant—mere conjecture about possible relevance is insufficient to meet this threshold burden. In other words, the defendant must show the confidential informant can give testimony necessary to a fair determination of the issues of guilt or innocence on the charged offense. Here, the defendant offered nothing more than conjecture and speculation that the confidential informant might offer testimony relevant to a fair determination of guilt or innocence. The Court concluded this was insufficient to meet his burden under Texas Rules of Evidence 508(c)(2). Read Opinion.


A straightforward application of Rule 508.

State of Texas, et al. v. El Paso County

No. 08-20-00226-CV              11/13/20


If a local order from a county judge and an executive order from the Governor conflict, does the Governor’s order control?


Yes. The Disaster Act (Tex. Gov’t Code ch. 418) explicitly gives the Governor the power to “control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area.” Without an exemption from an executive order dealing with the COVID-19 pandemic, the El Paso county judge does not have the authority to issue emergency shutdown orders for businesses and stay-at-home orders for portions of the county’s residents, even with a “dramatic upswing in the COVID-19 pandemic” that caused hospitals to reach capacity. “[W]e reject the County’s paradigm that the Governor’s order can set a ceiling for occupancy and the County can then set a floor, with the public required to abide by the more restrictive provision. If conduct is allowed under the Governor’s order, that County cannot prohibit it. If activities are prohibited by the Governor’s order, the County cannot allow them.” Read Opinion.

Dissenting (Rodriguez, J.):

“Because the Governor’s attempt to suspend the inherent disaster-management authority of county and city leaders violates the small government ethos the Framers wove into the Texas Constitution, the cooperative spirit of the Texas Disaster Act, and, most importantly of all, the plain text of the Texas Disaster Act, I respectfully dissent.” Read Opinion.


There will be no case summaries next week. Happy Thanksgiving!