October 10, 2014

Texas Court of Criminal Appeals

State v. Redus

State v. Zermeno

No. PD-0067-14

No. PD-0069-14          10/8/14


When the State filed a notice of appeal from a grant of suppression with a certification that did not state specifically that the appeal was not taken for delay and that the suppressed evidence was of substantial importance, did the lack of the appropriate words prohibit the appellate court from considering the appeal for lack of jurisdiction?


Yes. The elected prosecutor must actually vouch for the facts that his interlocutory appeal is not being taken for purposes of delay and that the evidence suppressed is of “substantial importance” to the case. Read the opinion


This may seem like a technical requirement for the State’s notice of appeal, full of form over substance. But it has long been the law, and this decision affirms that. Keep in mind, however, that the defendant cannot challenge the truth of the State’s assertion that the appeal is not taken for delay and that the suppressed evidence is of substantial importance to the case. The State merely needs to allege it, but the elected prosecutor should evaluate a proposed State’s appeal from a suppression ruling to make sure it meets those two requirements.

Ex parte Perez

No. AP-76,800        10/8/14


Was a habeas writ, delayed almost 20 years solely by a claim that the defendant did not know he could seek habeas relief any earlier, barred by laches under the new standards announced by the court in a previous decision involving this defendant, Ex parte Perez, 398 S.W.3d 206?


Yes. Under the new standards, the State is not required to make a particularized showing of prejudice to plead laches. Instead, the State must show only something that places the State in a less favorable position. Read the opinion.

Dissent (Meyers, J):

The court has never before conditioned relief on time limits. If the Legislature wished to place some kind of time limit on an applicant’s filing of a writ, it was capable of doing so, but it did not. The court should not take it upon itself to do it for the Legislature. Read the dissent.


With the two decisions issued in this case and the decision issued by the court last week in Ex parte Smith, the court has made clear that it wants prosecutors to allege, and courts to rely upon, the doctrine of laches when confronted with dilatory applications for a writ of habeas corpus. If you want to rely upon laches, read the this decision to see how the doctrine was applied in practice. Prosecutors still need to satisfy the factors that the court has laid out for the doctrine of laches to be successful. And do not think that this decision is of importance only to post-conviction lawyers. The doctrine of laches should be applicable to pre-trial and probation writs of habeas corpus (under Article 11.072 of the Code of Criminal Procedure).

Cameron v. State

No. PD-1427-13 10/8/14


Was the defendant denied the right to a public trial after the bailiff removed all spectators from the courtroom prior to voir dire because the room would be too crowded with the 65-member jury panel, and the court said the spectators could come back in if they wanted but no one ever actually re-entered the courtroom?


Yes. Even though the judge told defense counsel explicitly that he was not closing the courtroom, that the doors to the hallway could be opened if defense counsel wished, and that the defense could bring in any spectators they chose and the court would do its best to accommodate them, the fact that no one actually re-entered the courtroom after being told to leave was sufficient to show the trial was closed, and nothing on the record justified the closing. Read the opinion.

Dissent (Keller, P.J.):

The court accepts as true that no one was allowed back in to the trial, but there was evidence to show the public was allowed to re-enter. Read the dissent.


It is quite clear that the court takes very seriously any attempt to exclude anyone from the courtroom, even during jury selection, when the typical courtroom may be full of prospective jurors with hardly any room at all for the public, spectators, or the defendant’s and victim’s families. Read this decision. This was not a case in which the trial judge was being a hard-headed jerk. The trial judge was honestly trying to deal with security and courtroom overcrowding issues,  yet that still was not good enough to prevent this case from being reversed. So what is the remedy, especially during jury selection? The court suggests, as it has in the past, that the proceedings be moved to a larger courtroom or that the jury panel be split in half. When your trial judge wants to move someone out of the courtroom for any reason, even during a full jury selection, show him this decision (and the decisions it cites). The conviction is likely going to get reversed, and there is no way around it.  Do not let it happen.

Whatley v. State

No. PD-1627-13        10/8/14


Could a reasonable jury have inferred that the defendant was awake but feigning sleep when he inappropriately touched his stepdaughter while sleeping in bed with her twice on vacation and a third time at their home afterwards, and therefore his actions were voluntary?


Yes. The evidence showed the defendant only sometimes fell asleep quickly in bed and had never before touched anyone inappropriately when he did, and it permitted the jury to infer the defendant was awake and aware of his actions. Read the opinion.


Any time a defense lawyer tells you that a jury cannot stack inference upon inference (a civil law concept) in finding him guilty, show him this decision. Jurors can look at conflicts in testimony, and they make reasonable choices all the time. This defendant touched the victim inappropriately on three separate occasions, and his defense was that he was sleeping. Yeah, right.


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