October 12, 2012

Court of Criminal Appeals

McQuarrie v. State

No. PD-0803-11      10/10/12


Did the trial court properly exclude affidavits and testimony regarding a juror’s Internet research on date rape drugs under TRE 606(b) at a hearing on the defendant’s motion for new trial?


No. The Internet research occurred outside the jury room deliberations and was an “outside influence” for the purposes of TRE 606(b). The court may not consider the subjective thought processes and reactions of the jury, but it must make an objective determination, based on affidavits and testimony, as to whether the outside influence likely resulted in injury to the defendant’s constitutional rights. Read opinion

Dissent (Keller, P.J.):

“‘Outside influence’ does not encompass information gathering by a juror that does not involve communicating with other people.” Internet research by a juror is “extraneous prejudicial information” covered by the Federal rules but not TRE 606(b), and testimony about it is inadmissible. Read dissent

Dissent (Cochran, J.):

The Texas Supreme Court did not adopt the federal “extraneous prejudicial information” exception, and the court may not read that exception into TRE 606(b) by expanding the meaning of “outside influence.” Read dissent


It certainly does seem like Judge Cochran is correct that the majority has read into Rule 606(b) an exception that was not put into the rule. I hope that this decision does not represent an erosion of the rule, but is only a minor exception. I would continue to object to evidence from jurors in support of a motion for new trial, and I would have your trial judges instruct your jurors not to conduct their own research in addition to the other regular instructions that are given.

Scales v. State

No. PD-0442-11      10/10/12


Was the defendant’s right to a unanimous verdict violated when the trial court dismissed and replaced a juror under CCP art. 33.011 after considering only the testimony of the jury foreman?


Yes. The record was insufficient to support the trial court’s determination that the juror was unable or disqualified to serve, rather than simply dissenting based on her evaluation of the evidence. Read opinion


The bottom line of this new decision on rehearing is that, if there is any possible interpretation that could suggest that a juror just disagrees with the majority, then that juror should not be dismissed. It is also a good idea that the trial judge actually question the juror that is allegedly disqualified.

Gutierrez v. State

No. PD-1658-11      10/10/12


May an invalid condition of probation, requiring the defendant to either obtain legal immigration status or leave the country, be challenged for the first time on appeal?


Yes. Such a condition of probation is absolutely prohibited by both the Supremacy Clause of the Federal constitution and Art. I, §20 of the Texas constitution, and it is not subject to ordinary principles of waiver and procedural default. Additionally, estoppel by contract and judgment do not apply since the condition is unenforceable on public policy grounds. Read opinion

Concurrence (Cochran, J.):

The defendant’s probation could not have been revoked for failure to comply with this condition because failure to obtain legal immigration status within a certain timeframe is beyond her power to control. Read concurrence


Typically you should be able to suggest that a defendant must object to a condition of probation. This particular condition of probation is the very rare exception to that rule. 

Gross v. State

No. PD-1658-11      10/10/12


Were a murder defendant’s post-offense actions sufficient to form a basis for his guilt under the law of parties?


No. Post-offense actions are relevant to show pre-existing intent, but in this case, they were insufficient to show an understanding or common scheme with the actor to commit the murder. The defendant’s presence at the scene and subsequent flight, without more, could not provide the jury with a reasonable basis to infer the defendant was a participant in the murder. Read opinion


The defendant presented evidence that supported his lack of knowledge of the shooting that ultimately occurred, and the State was unable to refute that.

Johnson v. State

No. PD-0678-12      10/10/12

Dissent to Refusal to Grant State’s Petition for Discretionary Review (Keller, P.J.):

The court should have granted review to clarify how courts should assess the sufficiency of the evidence in forgery cases. In this case, the court of appeals relied on old cases in applying the “alternative-reasonable-hypothesis construct” and faulting the State for failing to locate or identify the purported payor on a stolen money order. Read dissent


The court’s decision not to review the court of appeals’ decision is very disappointing. The court of appeals’ opinion represented a return to the reasonable hypothesis test. I hope that this decision will not represent an encouragement to restore that long-defunct doctrine to our criminal jurisprudence.

Texas Attorney General

Request from Clay County Attorney

RQ-1087-GA      10/4/12


Whether a sheriff is required to submit a policy manual to the commissioners court for their approval or rejection? Read request


It should be interesting to see how the Attorney General handles this request concerning one elected official apparently being asked to submit to a group of other elected officials.

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