October 23, 2015

Texas Courts of Appeals

In re The State of Texas ex. rel Michael Munk (11th COA)

No. 11-15-00169-CV        10/15/15


Was it proper for a district court to compel Article 39.14 discovery prior to an indictment in the case?


No. The district court did not have jurisdiction in the case prior to an indictment; thus, it was improper for that court to issue an order compelling discovery under 39.14. Read.


Many believed that, by this time, there would be many decisions construing the Michael Morton Act. That did not transpire. This is one of the first, if not the very first, and it is very helpful to prosecutors. No one doubts our duty to comply with Brady v. Maryland and Article 39.14 of the Code of Criminal Procedure, but that compliance has to begin at some point. This decision makes clear that, at least in a felony case, a defendant cannot force compliance with the Michael Morton Act until he has in fact become a defendant—when he has been indicted. This particular decision may not have an impact on misdemeanor cases because it ties its reasoning to the time at which a district court gains jurisdiction over a felony case—when the indictment has been filed. This decision also does not say what might happen if a magistrate—acting purely as a magistrate—attempted to force early compliance with the Michael Morton Act. So stay tuned.

Brown v. State (6th)

No. 06-14-00183-CR        10/8/15


Was it ineffective assistance of counsel for the defense not to object to a prosecutor’s misstatement of the burden of proof in voir dire?


No. While the prosecutor did misstate the law, it was not ineffective assistance of counsel on behalf of the defense to not object because it was reasonable that this was part of a legitimate trial strategy, and the defendant could not show prejudice. Read.


The import of this decision is not really in its treatment of the defendant’s ineffective assistance of counsel claim, which is largely unremarkable. The real importance is the suggestion that the trial prosecutor should not have stated that the State’s burden of proof was not beyond all reasonable doubt (as opposed to beyond a reasonable doubt). Prosecutors should not focus upon the word “all” but on the word “reasonable” in this particular phrase. It is not synonymous with “beyond all doubt” or “beyond a shadow of a doubt,” which is not the State’s burden of proof. You may be uncomfortable when your trial judge states that your burden of proof is beyond all reasonable doubt, but there is in fact a case to support that particular phrasing. Just focus upon the word “reasonable.”

Arias v. State (14th COA)

No. 14-14-00847-CR        10/15/15


Is the State required to negate all exceptions to the financial responsibility requirement as an element of the offense of failure to establish financial responsibility?


No. The exceptions are not elements to be pled and disproved by the State but defenses that should be raised by the defendant. Read.


This may not come up that often in our cases, but it is helpful nonetheless. It would certainly be tiresome to plead the negation of all of the many exceptions (which are not really exceptions) to the offense.

Byram v. State (2nd COA)

No. 02-14-00343-CR        10/15/15


Was it a Fourth Amendment violation for an officer to stop and search a car based on the fact that a passenger in the vehicle appeared to be passed out?


Yes. The community caretaking exception does not apply to this case because there were other means of help available to the passenger outside of the police officer. Additionally, the driver’s actions did not rise to the level of reasonable suspicion; thus, the stop of the car should be suppressed. Read.

Dissent (Walker, J.):

Judge Walker dissents because she believes proper deference was not given to the trial court’s decision to deny the motion to suppress and that the community caretaking exception to the warrant requirement should apply. Read.


This decision cannot possibly be correct. An officer saw a female passenger unconscious in the defendant’s vehicle, and when the officer called out to the defendant to see if the female passenger was OK, the defendant ignored the officer and drove away. What else was the officer supposed to do? Hope for the best? The majority opinion states that there was no indication that the female passenger was alone. Who else was there? The defendant, who showed no apparent desire to make sure that she was OK? This decision needs to be reviewed by the Court of Criminal Appeals, and the presence of a dissenting opinion should help that to happen.

Office of the Attorney General

KP-0041                10/19/15

Letter from the Tarrant County Criminal District Attorney


What is the discoverability under Brady and the Michael Morton Act of recordings of inmate phone calls to which the criminal district attorney’s office has access?


Under Brady v. Maryland, the district attorney has no duty to investigate phone calls that his or her office has access to in order to search for exculpatory information; however, if such information is discovered, it must be turned over to the defense. Under Article 39.14, it is likely that a district attorney’s office that has full access to inmate phone calls without a warrant, would be considered to have “possession, custody, or control” of those calls. Read.


Recordings of inmate phone calls can last for hours and hours, and it would take up much of a prosecutor’s time to listen to all of them to determine what information, if any, the recordings contained. This is a very reasonable compromise. If you have listened to an inmate phone call, and it contains exculpatory or impeaching information, you must disclose it to the defense. But that does not mean that you must listen to all recordings of all inmate phone calls to make the Brady determination.

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