November 8, 2019

Court of Criminal Appeals

Ex Parte Kelley

No. WR-87,470-01            11/6/19

Issue:

Was the defendant entitled to relief on the basis that he w0as actually innocent of aggravated sexual assault of a child under 6 in light of newly discovered evidence?

Holding (per curiam):

Yes. The trial court, the defendant, and the State agreed that the defendant was entitled to relief based on actual innocence. Read Opinion.

Concurring (Newell, J., joined by Richardson, J.):

The concurrence agreed that the defendant was entitled to relief based on actual innocence, but was not entitled to relief based on his novel due process and ineffective assistance of counsel claims. The concurrence explained that the defendant had not met his burden on a due process issue based on failure to conduct a complete police investigation, because he had not shown a specific constitutional violation involving state misconduct. Additionally, the defendant did not meet his burden on the ineffective assistance of counsel claim because counsel did not have an actual conflict based on her prior representation of person identified as a potential alternative perpetrator after trial. Read Opinion.

Commentary:

This was a controversial case in Central Texas and caused a flurry of amicus briefs regarding potential consequences. Ultimately, the Court makes no new precedent. The concurrence details why the Court granted relief and will be a useful resource to attorneys litigating ineffective assistance of counsel claims and actual innocence claims in child abuse cases.

Texas Court of Appeals

Paxton v. Escamilla

No. 03-18-00346-CV        11/6/19

Issue:

Are deferred prosecution agreement records excepted from disclosure under the Texas Public Information Act’s law-enforcement exception?

Holding:

Yes. The court determined that subsection (a)(2) of the law-enforcement exception excepts from disclosure deferred prosecution agreements with unexpired terms in which charges have not been refiled and deferred prosecution agreements in which charges were refiled but then dismissed. Additionally, the court determined that subsection (a)(1) of the law-enforcement exception excepts from disclosure deferred prosecution agreements pertaining to cases in which a deferred prosecution agreement was executed, the defendant failed to comply with one or more conditions of the agreement, and charges were later refiled and are still pending.  Read Opinion.

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