November 6, 2015

Texas Court of Criminal Appeals

In re Medina

No. WR-75, 835-02           11/4/15


Was the trial court’s decision to allow the State to call the defendant to testify in a post-conviction evidentiary hearing considered a ministerial duty?


No. While the Fifth Amendment clearly prohibits the State from calling a defendant to testify in a trial or sentencing hearing, its application to post-conviction hearings is less clear. The relevant caselaw is not so obvious that it would give rise to a ministerial duty on the part of the trial judge to prohibit the State from calling the defendant to testify. Read.

Concurrence (Johnson, J.):

Judge Johnson wrote to express her concern at the use of the term “privilege” instead of “right” in the majority opinion when discussion the Fifth Amendment. Read.

Dissent (Alcalá, J.):

Judge Alcalá believes that death penalty habeas proceedings are part of a criminal case, and as such, the defendant cannot be compelled to testify. She does not find any ambiguity in the existing law and would require the judge to prohibit the State from calling the defendant to testify. Read.


This is a narrow decision, but it offers insight on how to litigate ineffective assistance of counsel claims more effectively on collateral review. If a defendant approves of a risky tactic by his counsel, he cannot hide that approval behind the Fifth Amendment. There will be “the sky is falling” Internet wails about this case by people who do not read it.

Ex parte Barnaby

No. WR-80,099-01            11/4/15


What is the standard for reviewing the materiality of false evidence in the context of a guilty plea?

Holding (per curiam):

The Court decided that the materiality of false evidence should be held to the same standard as materiality of counsel’s deficient performance: If the defendant had known the evidence was false, he would not have pled guilty but instead gone to trial. Read.


The standard announced by the Court is a workable one, although it is a target the defense can hit. Here, the fact that the defendant had multiple other enhanced cases shows that he would not have changed his plea on the case tainted by the bad analyst.

McKay v. State

No. PD-1133-14                 11/4/15


Was a single statement included in a lengthy DFPS report sufficient evidence to prove the defendant acted with criminal negligence?


No. The State attempted to prove that the defendant intentionally injured a child, but the jury rejected that and found him to be only criminally negligent. After reviewing the sufficiency of the evidence, there is not enough evidence to support a claim for negligence; the Court of Appeals relied solely on a single statement made by the child’s mother and included in a 1,000-page DFPS document. This was not enough to support the conviction. Read.

Dissent (Hervey, J.):

Judge Hervey disagreed and wrote that if the evidence was considered in the light most favorable to the verdict, there were reasonable inferences regarding the child’s behavior and that the defendant failed to perceive these risks and acted with criminal negligence. Read.


This is an odd case. The State charged the defendant with intentional, knowing, and reckless injury to a child, but he was convicted of the lesser-included offense of negligent injury to a child. The State’s evidence was more designed to show an intentional act—the victim had other injuries indicating ongoing abuse and the child’s mother lied to healthcare providers about who injured the child. Under §6.02(e), evidence of a higher mental state is sufficient to prove a lower mental state, but the majority and dissent spend all their time sifting the record for evidence of negligence. The State should consider a motion for rehearing.


Ex parte Reyes

No. PD-1277-14                 11/4/15


In a habeas petition, after the Court of Appeals reversed the trial court’s finding regarding one ground of the defendant’s appeal, should it have rendered judgment in the case?


No. Because there were no explicit findings of facts or conclusions of law regarding the defendant’s other grounds for appeal, the case should have been remanded back to the trial court for it to resolve the additional claims, not render its own judgment in the case. The Court also expressed its belief that actual innocence affords a greater relief than a new trial. Read.


This decision will mainly interest post-conviction attorneys. Where a reviewing court reverses a lower court on one ground, it must also address other grounds that would be dispositive of the case. The chief example would be a challenge to the legal sufficiency of the evidence.

Ex parte Sanchez

No. WR-83,806-01            11/4/15


Was the defendant entitled to habeas corpus relief due to ineffective assistance of counsel when his counsel erroneously advised him he was eligible for community supervision if he pleaded “no contest” to an aggravated assault charge?

Holding (per curiam):

Yes. The defendant’s trial counsel was deficient due to the incorrect belief that the defendant was eligible for community supervision, and the trial court and the prosecutor were also under this mistaken assumption. The defendant was never properly advised that he was not eligible for community supervision and thus his plea was not knowingly and voluntarily entered. Read.

Concurrence (Yeary, J.):

Judge Yeary agreed to grant relief but wrote separately because of his view of the recent Guthrie-Nail v. State opinion that gives judges the discretion to choose whether or not to make a deadly weapon finding. He agreed that trial counsel was technically ineffective but not necessarily incorrect in his assertions regarding community supervision. Read.


Judge Yeary’s concurrence points out the tension between this case and the Court’s recent decision in Guthrie-Nail. Arguably, the two cases cannot be reconciled.

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