Texas Court of Criminal Appeals
Ex parte Castillo
No. WR-90,880-02 10/12/22
Issue:
Has a defense attorney been ineffective by failing to file a notice of appeal when the defendant has expressed a wish to appeal, but the trial court’s certification says there is no right to appeal because the defendant entered a guilty plea?
Holding:
No. Because the defendant had no right to appeal, “he suffers no prejudice even if counsel performed deficiently in failing to file a notice of appeal.” Although the U.S. Supreme Court has ruled that there is a presumption of prejudice when a defendant waives an appeal, “this case concerns a certification showing no right to appeal rather than mere waiver of appeal.” Read opinion.
Commentary:
This opinion will be of interest only to appellate prosecutors. It was important to the court that the defendant was represented by counsel at the time that the certification of the defendant’s right to appeal was created, and that the defendant signed that certification. This decision should have precedential value for those types of situations.
Texas Courts of Appeals
Swenson v. State
No. 06-21-00126-CR 10/7/22
Issue:
Did the defendant’s Facebook postings showing details of his plan to hunt and kill peace officers establish sufficient evidence of attempted capital murder?
Holding:
No. Under Penal Code §15.01(a), no act committed by the defendant “went beyond mere preparation and crossed over into an act constituting attempt.” While the defendant’s threats showed his intent to kill, they were not acts that “tend to effect” homicide and instead had the contrary effect of alerting officers to his plan. “[T]he allegation that Swenson had a plan cannot qualify as an act beyond mere preparation.” The Court also concluded that the defendant driving himself around a city to look for officers to kill also was a preparatory act rather than an attempt to commit capital murder. Read opinion.
Commentary:
This is a very thorough decision, and the court makes a distinction between attempted property crimes and attempted personal-injury crimes (like capital murder). The court’s extensive survey of the case law revealed that a defendant would need to be in striking distance of an intended victim (in this case, a police officer), and that a defendant would need to take a weapon in hand and position it or move it in the direction of the intended victim. That may indeed be the law based upon the thoroughness of this well-reasoned decision, but it is rather chilling to think that a defendant must get that close to shooting a police officer before being convicted of attempt. The defendant was also convicted of committing the offense of terroristic threat, and the trial judge made an affirmative finding that the defendant committed the offense with a bias or prejudice against peace officers. That conviction stands and is not affected by this opinion. The defendant’s conviction for committing the offense of evading arrest—arising out of these same facts—was upheld by the court of appeals.