United States Supreme Court
Rivas-Villegas v. Cortesluna
No. 20-1539 10/18/21
Issue:
Did a police officer violate clearly established law on excessive force by briefly placing his knee on a defendant’s back, therefore making him ineligible for qualified immunity?
Holding:
No. In a per curiam opinion, the Court concluded there was no established precedent similar to the facts in this case that could have put the officer on notice that his actions were unlawful. Because there was no clearly established law that the officer violated, the Court reversed the Ninth Circuit’s decision that the officer was not entitled to qualified immunity. Read opinion.
Commentary:
This is a not a decision about the propriety of the officer’s conduct. This is only a qualified immunity decision. In that regard, this decision is not a significant change in the Court’s jurisprudence regarding qualified immunity. The court of appeals, which held that the officer was not entitled to qualified immunity, relied only on one of its own precedents. It did not rely upon any Supreme Court authority. Furthermore, unlike the noise complaint involved in the prior court of appeals case, this case involved a domestic violence defendant who was terrorizing a mother and her two daughters.
City of Tahlequah v. Bond
No. 20-1668 10/18/21
Issue:
Did two officers, who shot and killed a defendant after he raised and attempted to throw a hammer at one of them, violate clearly established law on excessive force, therefore making them ineligible for qualified immunity?
Holding:
No. In a per curiam opinion and without addressing whether the officers violated the Fourth Amendment or recklessly created a situation that required deadly force, the Court determined that no clearly established precedent placed the officers on notice that their conduct constituted excessive force. As a result, the officers were entitled to qualified immunity, and the Court reversed the Court of Appeals’ decision. Read opinion.
Commentary:
Like the case above, this decision is not a significant change in the Court’s qualified-immunity jurisprudence. That is the sole issue before the Court. The decision did not deal with the propriety of the officers’ conduct. As such, neither of these Supreme Court decisions should have much bearing on how local prosecutors consider the propriety of an officer’s actions in using force against a suspect. If you are looking for a decision from the Court that does that, look at Torres v. Madrid, decided by the Court on March 25, 2021.
Texas Court of Criminal Appeals
State v. Brent
No. PD-0020-21 10/20/21
Issue:
After discharging a defendant from community supervision, does a trial court have indefinite jurisdiction to grant “judicial clemency”?
Holding:
No. Interpreting CCP Art. 42A.701, the Court held that depending upon the type of discharge, the most a trial court has is 30 days after a defendant is discharged from community supervision to grant judicial clemency. Read opinion.
Concurrence (Yeary, J.):
“Judicial clemency” under Art. 42A.701(f) is constitutional under the authority granted to the courts by Art. IV, §11A of the Texas Constitution. However, if the majority had construed the statute to allow for indefinite judicial clemency, there would be great risk that it could be struck down as a violation of separation of powers. Read opinion.
Commentary:
With this decision, the court upholds what the vast majority of other courts of appeals had held on this matter. It is possible that the court might support a holding that a trial court must grant “judicial clemency” before the 30 days is up. But 30 days will probably continue to be the prevailing time period, since that is the time period during which a trial court’s plenary power exists.
Ramos v. State
No. PD-0788-20 10/20/21
Issue:
Does convicting a defendant for continuous sexual abuse of a child (PC §21.02(b)) and prohibited sexual conduct (PC §25.02(a)(2)) for acts committed against the same victim in the same timeframe violate the Double Jeopardy Clause of the Fifth Amendment?
Holding:
No. Analyzing the statutes through the lens of Blockburger v. United States, 284 U.S. 299 (1932) and its previous decision in Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999), the Court held each offense contains distinct elements that the other does not. The focus of §21.02 is that at least two offenses must be committed over more than 30 days and for §25.02(a), that the actor knows the person with whom he is having intercourse with is impermissibly related to him (in this case, his stepchild). Read opinion.
Commentary:
Prohibited sexual conduct is not one of the predicate offenses for the offense of continuous sexual abuse of a child, so the court could perform a traditional double-jeopardy analysis, rather than rely upon §§21.02(e) or 21.02(f). This is a very thorough double-jeopardy analysis, and anyone who needs to learn about the court’s double-jeopardy jurisprudence should definitely read it.
Molina v. State
No. PD-1079-19 10/20/21
Issue:
Does admitting expert testimony about a DNA-comparison analysis violate the Confrontation Clause when the analysis is based on computer-generated data from the expert’s lab and data from another independent lab?
Holding:
No. Because the independent lab report indicated only: (1) that tests were performed on some of the items of evidence, (2) the results of those tests, (3) that quality control protocols were followed, and (4) data relating to the partial DNA profile, the report was not “inherently inculpatory or … created for use against [the defendant],” or testimonial in nature. In addition, the lab report was only a basis for the expert witness’s testimony. The expert conducted an independent analysis and did not testify directly from the lab report and therefore was not acting as a surrogate witness for the independent lab. Read opinion.
Commentary:
In this case, an analyst with the Houston Forensic Science Center compared the DNA profile that he generated from a buccal swab to the DNA profile developed by an independent lab (Reliagene). The expert witness did not have personal knowledge of Reliagene’s protocols, but he had Reliagene’s report. The information in that report revealed that their results were reliable, based upon his expert opinion. The computer-generated data was not included in the witness’s report, and Reliagene’s report was not admitted into evidence. This decision is a logical extension of the court’s prior decision in Paredes, and it should be very valuable to prosecutors who are using DNA evidence, especially in cold cases.
Hill v. State
No. WR-83,074-04 & -05 10/20/21
Issue:
Should the doctrine of laches apply when, after 10 years, the defendant’s enhancing conviction is overturned, and he is challenging his sentences for the underlying convictions?
Holding:
No. The appropriate time to have applied laches would have been in the habeas proceeding for that enhancing conviction, not after the defendant’s conviction has been overturned and he is now raising different claims less than six months after they became available to challenge. Read opinion.
Concurrence and Dissent (Keller, P.J.):
The defendant had nearly 10 years to obtain relief on his previous conviction, and because he slept on his rights, the State was unable to retry the defendant and suffered prejudice. As a result, laches should bar the defendant from challenging his prior conviction for enhancement purposes for his later two convictions. Read opinion.
Concurrence and Dissent (Yeary, J. joined by Slaughter, J.):
“The Court’s decision today leaves open the possibility that a defendant can challenge a sentence fifty years down the road, after all witnesses have passed away and no one remains from the original trial, solely because the underlying felony is later, on whatever basis, invalidated.” Read opinion.
Commentary:
This decision may only be of interest to post-conviction prosecutors, but the decision has a great deal to say about laches, illegal-sentence claims, and improper-enhancement claims. Only time will tell if illegal-sentence claims will be treated differently in the laches context. The decision underscores the need for the State to raise laches at every step of a defendant’s post-conviction proceedings, and it underscores the need for the State to prove every element of a laches claim, particularly the actual prejudice suffered by the State in the defendant raising the delayed claim.
Texas Courts of Appeals
Biggers v. State
No. 06-20-00129-CR 10/14/21
Issue:
For enhancement purposes, must an out-of-state judgment contain (1) language regarding the specific statute upon which a defendant was convicted, (2) the type of illegal substance involved, and (3) the amount of drugs involved to be used by the State?
Holding:
No. Texas law does not require that any or all of this information must be included in an out-of-state judgment before it can be used for enhancement purposes. Although the judgment in this case did not include this information, it was sufficient to prove the defendant had been convicted of an out-of-state offense which led to imprisonment in another penitentiary when it stated he was sentenced to four years under the custody and control of the Oklahoma Department of Corrections. Read opinion.
Commentary:
The defendant did not object to the admissibility of the exhibit that proved the Oklahoma conviction, and he did not object to any error in the enhancement allegation. Thus, the defendant could not raise those issues for the first time on appeal. This decision deals solely with the sufficiency of the evidence (which can be raised for the first time on appeal).
Delagarza v. State
No. 13-19-00617-CR 10/14/21
Issue:
Does a parent, during his criminal proceeding, have standing to challenge a related warrantless non-consensual search of his minor child that occurred in his presence?
Holding:
No. Although parents have a right to make decisions that are of substantial legal significance for their children, an individual’s constitutional right to be free from unreasonable search and seizure is inalienable and belongs to the child. Here, the Court declined to carve out an exception that would allow a child’s Fourth Amendment protections to be transferred and give standing to a parent. Read opinion.
Commentary:
This decision is entirely consistent with Fourth-Amendment jurisprudence regarding standing to challenge a search or seizure. It is an important addition to case law regarding the search and seizure involving juvenile defendants.
TDCAA Assistant Training Director
The Texas District and County Attorneys Association is seeking an Assistant Training Director. The Assistant Training Director (“ATD”) will be responsible for the creative development and production of TDCAA’s online training. The ATD will work under the supervision and direction of the Training Director. The ATD’s duties will include:
- under the direction of the Training Director and association leadership, developing and expanding the association’s online learning opportunities
- conducting needs assessments to evaluate and determine the online learning needs of prosecutors’ offices
- in conjunction with the Training Committee, developing the content of TDCAA online learning
- planning and producing all association online learning programs
- investigating and developing varied modalities of online learning, including webinars, virtual training, and podcasts
- making initial speaker contacts for all TDCAA online learning offerings or supervising such contacts by other staff or course directors
- directing the preparation of all materials related to online learning initiatives and assisting in developing and editing seminar materials as needed
- supervising the meeting planner dedicated to online training in the production, web hosting, and credit reporting of all online learning initiatives
- evaluating the overall effectiveness of association online learning programming
- assisting the Training Director as necessary to produce association live training events
Any applicant must be a licensed attorney in Texas for at least the past three years. Some travel will be required for live training events and production of online trainings. Remote work may be an option, with time required at TDCAA headquarters in Austin as needed to accomplish needed tasks. The starting salary is $75,000, plus health care and retirement benefits.
Applicants should send a cover letter and current resume to Rob Kepple at Robert.Kepple@tdcaa.com.
2021 Elected Conference and PMI: Elected Edition
Registration is now open for TDCAA’s 2021 Elected Conference. From December 1st through the 3rd, we’ll be in Rockwall with a slate of training designed specifically for our elected membership. Click here for more information.
This year, we’ll also be hosting our second ever PMI: Elected Edition. If you are interested in honing your managerial skills and learning to better apply those skills to the mission of justice, you won’t want to miss this training. The PMI Elected Edition is open only to elected prosecutors, and enrollment is limited. Click here to read more.