November 3, 2017

Hurricane Harvey Relief Fund

The donation period for the Foundation Hurricane Harvey Disaster Relief Fund is now closed. On behalf of the board of Trustees of the Texas District and County Attorneys Foundation, thanks to everyone for your generous contributions to the fund. In the coming weeks those in our profession hit hardest by the storm will receive help from you – prosecutors and prosecutor offices from Texas and around the country. Well done!

Court of Criminal Appeals of Texas

Ex parte Macias

No. PD-0480-17                11/1/17


Does a trial court have jurisdiction to conduct a trial before the appellate mandate following a state interlocutory appeal is issued?


No. Under Rule of Appellate Procedure 25.2(g), all proceedings in the trial court are suspended once the record is filed in the appellate court. The trial court resumes jurisdiction only once it receives the appellate court mandate. Where a trial court started a trial before the appellate court mandate issued but dismissed the jury before the case was complete, the defendant was not put in double jeopardy by a later trial because jeopardy does not attach if the trial court lacks jurisdiction over the case. Read opinion.


This case will come in handy if a trial court attempts to move on with a case when the State has taken an appeal.

Owings v. State

No. PD-1184-16                11/1/17


Can an error in failing to require election of the specific incidence of sexual abuse relied on by the State be harmless?


Yes. A constitutional error is harmless only if the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. When all the instances of sexual abuse are recounted by the same source—the victim—the four purposes underlying the requirement for an election are still met. The defendant is not entitled to protection from the introduction of extraneous offenses that involve the victim. In this case, the repeated incidences of sexual abuse were described by the victim with equal specificity, so there is no risk that the jury “added up” the repeated incidents without finding any individual incident was proven beyond a reasonable doubt. Also, there is no risk that the defendant was deprived of adequate notice of which offense to defend against because his defense was a blanket denial that any incident of sexual abuse occurred. The issue at trial was whether the victim was credible. Additional acts of sexual abuse described by the victim did not make her testimony more or less credible. Read opinion.

Concurrence (Yeary, J.):

The test for constitutional error “is the test this Court deemed in Phillips v. State, 193 S.W.3d 904, 913-14 (Tex. Crim. App. 2006), and Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006), to be appropriate for judging the harm inflicted by election errors. Although this may not be the case in which to revisit Phillips, I write to suggest that, on some future occasion, the Court should take a second look to determine whether it might be more appropriate to apply the standard for harm governing non-constitutional errors in this context.” Read opinion.

Concurrence (Walker, J.):

“Our bedrock procedural protections are not designed for situations such as the case before us involving generic, undifferentiated, ongoing acts of sexual abuse of young children.… Penal statutes, such as the aggravated sexual assault statute involved in this case, are intended to criminalize one discrete criminal offense at one discrete moment in time.” (Internal quotations omitted). The legislature enacted Penal Code §21.02, criminalizing continuous sexual abuse of a young child or children, designed for cases like this one. If the defendant was charged under this statute, the issues involving election of offenses could have been avoided. Read opinion.


This opinion will be of primary interest to prosecutors handling appeals because it is a great roadmap for how to argue an election error in a sexual abuse case was harmless. Prosecutors handling these trials, however, should focus on the error in the case that caused the reversal on appeal—know when you must make an election and learn how to do it. Or, if you think an election will be difficult, consider Judge Walker’s advice and charge the case as continuous sexual abuse instead so that you need not make an election.

Texas Courts of Appeals

Aguillen v. State

No. 06-17-00004-CR        10/31/17


May extraneous-offense evidence of physical abuse against a victim’s siblings be admitted under Code of Criminal Procedure Art. 38.37 §2(b) in a trial for indecency with a child?


No. Evidence of extraneous offenses committed by the accused against third parties may only be admitted if the extraneous offense is one specifically delineated in Code of Criminal Procedure Art. 38.37, §2(a)(1)-(2), which all involve sexual misconduct of some sort. Evidence of physical abuse against third parties has no connection to the charged offense of indecency with a child. The extraneous-offense evidence was also substantially more prejudicial than probative because evidence that the defendant physically assaulted the victim’s siblings does not make any element of indecency with a child more or less probable. Read opinion.


Keep in mind that extraneous offenses committed against the victim are admissible under Code of Criminal Procedure Art. 38.37, §1. This deals only with extraneous offenses against third parties. Although the court erred by admitting evidence of non-sexual abuse against the victim’s siblings, evidence of physical abuse toward the victim was properly admitted.

State v. Norris

No. 14-16-00455-CR        10/31/17


Has a defendant unequivocally and unambiguously invoked his right to counsel by stating he would like to call his sister so she can look for a lawyer?


No. Not every mention of a lawyer constitutes an invocation of a right to counsel. Officers are not required to stop the interrogation, or even seek clarification, for an ambiguous or equivocal statement about a lawyer. A forward-looking statement about contemplating the process of obtaining a lawyer does not unequivocally and unambiguously invoke the right to counsel. Read opinion.


An interesting aspect of this opinion is the competing interpretations of what the suspect said in the video recording of the interrogation. The Court examines both interpretations and holds that neither was a clear invocation of the right to counsel.