November 22, 2013

5th Circuit Court of Appeals

U.S. v. Thompson

No. 12-31203      11/18/13


1) Did the prosecutor commit a Batson violation by striking 71 percent of the black potential jurors based on their body language during voir dire?

2) Was the trial court required to record findings of a juror’s demeanor when the prosecutor justified the strike based on demeanor alone?


No on both issues.

1) A prosecutor’s intuitive assumptions, inarticulable factors, or even hunches can be proper race-neutral bases for rejecting a potential juror. Courts do not address the strength of a prosecutor’s race-neutral justification, only whether or not the prosecutor is telling the truth that the challenge is not race-based.

2) When the court finds the prosecutor’s demeanor-based justification credible, no findings are required, although it is better practice to record the court’s findings when they are applicable. Read the opinion.

Dissent (Dennis, J.):

A court of appeals must determine whether a juror’s demeanor can credibly be said to have exhibited the basis for a race-neutral strike, and that determination cannot be made unless the trial court records findings regarding the prosecutor’s justification. Read the dissent.


Certainly, you can look at the venire and see some haters out there just by how they glare, roll their eyes, and cross their arms. But facing the haters head-on by questioning them and getting their words on the record will give you a better record on which to eliminate them. Or you might learn it is the other side they hate. It is interesting, too, that the defense was also subjected to a Batson challenge for using all of its strikes on a racial group—two of those challenges were sustained by the trial court.

Texas Court of Criminal Appeals

Ex Parte Gill   

Nos. PD-0596-13 & PD-0624-13                  11/20/13


May a judge consider victim or community safety concerns when deciding a habeas writ for a defendant who has been in jail more than 90 days without being formally charged?


No. The language of CCP art. 17.15, which allows a judge to consider victim and community safety concerns in setting bail, is not imparted to CCP art. 17.151. The latter statute requires a defendant be released after 90 days through either a personal bond or a reduction of bail, and there is no language that considers the threat to a victim or the community. Additionally, it is not a violation of the separation-of-powers provision of the Texas Constitution for the legislature to require a court to release defendants under specific conditions. Read the opinion.

Concurrence (Price, J.):

The majority reached the right result but should not have considered the State’s constitutional argument. The State did not raise this issue until after the Court had granted the petition for discretionary review, and it has not been the Court’s custom to consider issues for the first time at that stage from a party that has prevailed in both the trial court and the court of appeals. Read the concurring opinion.


A tough opinion for Texas prosecutors, but it should not be unexpected in light of the CCA’s history of construing statutes according to their plain language. Encourage your agencies to complete as much investigation as possible prior to arresting suspects. If you have a defendant about to be released under art. 17.151, make sure you ask for appropriate bond conditions.

Roberson v. State

No. PD-0917-12 11/20/13


When an indictment lists the events alleged in an enhancement paragraph in the incorrect chronological order, is the jury precluded from finding the enhancements occurred in the statutorily required sequence for a habitual-offender enhancement?


No. If the evidence at trial shows the events occurred in the order required by statute, then the State has met its burden to prove an enhancement. Read the opinion.


It seems to me the CCA could have gone straight to the discussion of the hypothetically correct jury charge line of cases and affirmed the case in a couple of paragraphs rather than several pages.

Ex Parte Buck

No. WR-57, 004-03     11/20/13


Does a claim of ineffective assistance of counsel that permeated sentencing, direct appeal, and initial habeas proceedings defeat the statutory bar against subsequent habeas applications in a death penalty case?


No. Ineffective assistance of counsel is not within the statutory exceptions outlined in CCP art. 11.071, §5(a). Read the opinion.

Dissent (Alcala, J.):

When defendant’s initial habeas counsel failed to meet the minimum standards of competency guaranteed by statute, and when that incompetency resulted in forfeiture of a substantial claim for habeas relief, the Court should void the initial filing and adjudicate the subsequent claim on the merits. Read the dissent. 


The CCA correctly held the line and did not open up the capital writ process to litigation regarding the effectiveness of habeas counsel. To do so would undo all the hard work the Texas Legislature and Congress did in the ’90s to ensure that capital cases actually move through the state and federal systems.

Texas Courts of Appeals

Williams v. State

No. 01-12-00251-CR        11/14/13


Did the prosecutor’s closing argument incurably bias the jury when he implied the defense used the county’s open-file policy to fabricate an alibi that incorporated all of the State’s evidence?


No. Although the statement was improper, it did not rise to the level of egregiousness that cannot be cured by an instruction to disregard. Read the opinion.

Dissent (Jennings, J.):

A closing argument that accuses defense counsel of manufacturing evidence is exactly the kind of statement the Court of Criminal Appeals has held to be so egregious as to warrant a mistrial. Read the dissent.


Craft your argument so that it attacks the other side’s arguments and evidence, not the person who made the arguments and presented the evidence. This is an important distinction that can mean the difference between conviction and mistrial.

Washington v. State

No. 14-12-00307-CR        11/19/13


Can deadly conduct serve as the underlying crime in a felony murder conviction?


Yes. Although manslaughter or a lesser-included of manslaughter cannot be the underlying charge for a felony murder conviction, felony deadly conduct requires proof the defendant acted knowingly rather than recklessly and is therefore not a lesser-included of manslaughter. Read the opinion.

Wilson v. State

No. 04-12-00372-CR        11/20/13


Was the evidence sufficient to support a possession of child pornography conviction when the images were contained in the “temporary internet history” folder of a computer that was not in the exclusive control of the defendant?


Yes. The defendant had told police he had viewed the images multiple times on his computer and he knew they were of underage children. Additionally, the defendant had taken steps to prevent others from viewing his monitor or accessing his computer. Based on that evidence, a reasonable jury could find he intended to possess the pornographic images. Read the opinion

Concurrence (Martinez, J.):

Because the defendant admitted to viewing the images, the jury’s decision was permissible. However, without that admission, the evidence was not sufficient to show that the defendant intended to possess the images in his temporary internet cache. Read the concurring opinion.


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