October 11, 2019

Court of Criminal Appeals

Ex Parte Adams

No. PD-0711-18                 10/9/19


Does the collateral estoppel component of the Double Jeopardy Clause as articulated in Ashe v. Swenson bar the State from prosecuting a defendant for aggravated assault for stabbing a different victim (Victim 2), after the defendant was acquitted in an earlier trial of aggravated assault for stabbing another victim (Victim 1) in the same incident?

Holding (Walker, J.):

No. The Court found that the defendant’s subsequent prosecution was not barred by collateral estoppel because the defensive issue decided by the jury at the first trial did not encompass both victims. The Court stated that the defensive issue in the first trial specifically related to Victim 1 only, and the jury did not necessarily decide the matter as to the second victim. Ultimately, the Court determined that the jury’s “not guilty” verdict acquitting the defendant of aggravated assault against Victim 1 was not a final jury determination. Read Opinion.

Concurring (Keller, J.):

“The present case was different because the [defendant]’s self-defense claim as to [Victim 1] does not necessarily apply to [Victim 2]. Evidence in the first prosecution suggested that [Victim 1] was an aggressor in the fight but that [Victim 2] was merely trying to break it up. A jury’s conclusion that [the defendant] acted in self-defense against [Victim 1] would not rationally require it to also believe that he acted in self-defense against [Victim 2]. Consequently, unlike Ashe, the prior prosecution did not necessarily resolve against the State an issue of fact crucial to the second prosecution. I join the Court’s opinion.” Read Opinion.


This case further underscores how difficult it is for a defendant to succeed on a collateral estoppel claim. The court found that the jury could have only rationally acquitted the defendant if it found that the State failed to prove that the defendant did not act in self-defense or defense of a third person. In the jury charge, those defenses were restricted to the first victim only. The second victim was not mentioned in the jury charge. So, the jury did not necessarily decide in the defendant’s favor with regard to the second victim. Perhaps the result would have been different if the jury charge had related to the second victim as well?  Or if the jury had been given one of the old “multiple assailants” charges?  The court did not speak to that, however.

Williams v. State

No. PD-1199-17                 10/9/19


In a certificate of analysis under Code of Criminal Procedure Art. 38.41, can someone other than the analyst who conducted the testing serve as the affiant?

Holding (Keasler, J.):

Yes. The Court stated that there is no requirement in the statute that the affiant be the analyst who tested the physical evidence. Art. 38.41, §3 says that the information must be “certified under oath,” but it does not require that oath to be given by any particular individual. In response to the dissent, the Court reiterated that for §5’s substantial-compliance purposes, the affiant does not need to be the same person as the analyst. However, the affiant must nevertheless provide information that is responsive to §3—including information pertinent to “the analyst.” Read Opinion.

Concurring (Keller, J.):

“I agree with the Court’s holding that Article 38.41 does not require the affiant to be the analyst. I would not go further than that holding to comment on matters that are not before us. Such statements are dicta. I concur in the Court’s judgment.” Read Opinion.

Dissenting (Walker, J.):

“The certificate of analysis is required to include at least seven pieces of information. In this case, it—at best—included three. There is no way this certificate of analysis can comply with Article 38.41 if it includes less than half of the information required. A certificate of analysis that fails to substantially comply cannot trigger the statute’s timer and require the defendant to exercise or forfeit his constitutional rights before trial. That completely ignores the presence and purpose of §3 in the statute. Therefore, in my opinion, [the defendant] was under no obligation to waive his objection before trial. His objection at trial was valid and should not have been overruled. Respectfully, I dissent.” Read Opinion.


There is precious little case law construing Article 38.41 (or Article 38.42 that deals with chain-of-custody affidavits). This decision should be helpful if you have relied upon that statute and the defense has not objected as required by the statute. The majority’s analysis is thorough and well-researched. Nevertheless, if you desire to rely upon Article 38.41, it would serve you well to comply with all of the requirements set forth in the statute. One would presume that there is little case law construing this statute because—when the statute is utilized—most defendants object. So be careful when relying upon this statute.

Texas Court of Appeals

Corporon v. State

No. 03-18-00286-CR         10/2/19


Is a defendant’s Sixth Amendment right to a public trial violated when defense counsel instructs three of the defendant’s family members to leave the courtroom during jury selection?


No. The Court stated that the inquiry is not whether individuals were excluded but whether the district court “fulfilled its obligation to take every reasonable measure to accommodate public attendance” at the defendant’s trial. Here, nothing in the defendant’s affidavits suggested that the district court failed to fulfill that obligation or was in any way responsible for the removal of defendant’s family members from the courtroom. In a lengthy footnote, the Court rejected the defendant’s argument that defense counsel’s actions should be imputed to the district court because defense counsel is an “officer of the court.” The Court stated that there was no authority to support the defendant’s proposition and instead cited to federal cases that have held when defense counsel is responsible for the exclusion of individuals from the courtroom or consents to their exclusion, the defendant forfeits any complaint on appeal that his trial was closed. Read Opinion.


The court of appeals did not address the defendant’s failure to object to the purported closure of the courtroom, and why would the defense object to something that defense counsel had done himself?  Nevertheless, the Court of Criminal Appeals has made it clear that the defendant’s right to a public trial can be waived. In addition to the analysis here, that would seem to prevent a trial judge from being held responsible for what the defense attorney did in this case. It appears that, in his motion for new trial, the defendant did not raise a claim of ineffective assistance of counsel. That would have required a different analysis, but it could have netted a different result.

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