Court of Criminal Appeals
Gonzalez v. State
No. PD-0572-19 10/28/20
Issue:
Has the defendant been egregiously harmed by an erroneous jury charge—the inclusion of the unindicted culpable mental state of recklessness—or should the error at issue be considered nothing more than a formatting defect?
Holding:
The Court concluded that erroneously including recklessness in the jury charge application paragraph, which tracked the statutory language—rather than the indictment’s language—was a mere formatting defect. This defect did not cause egregious harm because: 1) the record reflects that the parties and the trial court anticipated that the jury would consider the reckless culpable mental state; 2) the Court’s precedent allows recklessness to be submitted as a lesser-included-offense instruction under these circumstances; 3) the inclusion of recklessness in the application paragraph rather than in a separate lesser-offense instruction did not substantively affect the potential theories of liability upon which the jury could convict the defendant; and 4) reckless aggravated assault on a public servant carries the same range of punishment as the charged intentional or knowing aggravated assault on a public servant. Read Opinion.
Commentary:
This opinion deals largely with whether the defendant was harmed by the jury charge error. The court still speaks favorably of its decision in Reed, in which the court held that it is error to charge the jury on intentional, knowing, and reckless aggravated assault if the State has pleaded only intentional and knowing aggravated assault. The bottom line for the trial prosecutor is that, if you want jurors to consider a reckless culpable mental state, and you have not pleaded recklessness in the indictment, you can safely have the jurors instructed on recklessness as a separate lesser-included offense.
Romano v. State
No. PD-1289-19 10/28/20
Issue:
Was the evidence for a conviction of indecent exposure sufficient to show that the defendant was reckless as to the presence of another person after he exposed his genitals in broad daylight in a public parking lot at a public park?
Holding:
Yes. The defendant was in a public park in densely-populated Houston in a parking lot that was open and visible to passing road traffic, bicyclists, pedestrians, and anyone using the public restroom facilities or picnic tables immediately nearby. Exposure of genitalia in a place as public as Memorial Park is risky when it is done under circumstances (such as time and weather) that make it likely that other people will be present. Viewed in the light most favorable to the trial court’s verdict, the evidence was sufficient to support a finding beyond a reasonable doubt that the defendant acted recklessly, and the court of appeals erred to find otherwise. Read Opinion.
Commentary:
This is a good decision to read if you are trying an indecent exposure case. The holding is a pretty straightforward reliance upon the facts of the case and the proper standard of review. These cases often turn on whether the defendant was reckless about whether someone else was present. The court of appeals had relied upon a prior decision out of Harrison County in reversing the defendant’s conviction. But as the court noted here, “there is a big difference between outside a car in a parking lot in a public park in Harris County [Houston] and inside a car parked deep in the woods off of a small trail in Harrison County.”
Texas Courts of Appeals
Blacklock v. State
No. 14-19-00307-CR 10/22/20
Issue:
Is a defendant entitled to impeach a complainant using convictions that occurred around the time of the offense despite the convictions now being more than 10 years old at the time of trial?
Holding:
No. Texas Rules of Evidence 609(b) provides that if more than 10 years have passed since the conviction or release from confinement, evidence of the conviction is admissible only if its probative value substantially outweighs its prejudicial effect. It was not outside the zone of reasonable disagreement for the trial court to conclude that the probative value of the complainant’s remote-in-time convictions did not substantially outweigh the dangers of unfair prejudice, especially considering that the trial court had already permitted admission of two more recent prostitution convictions and three more recent theft convictions. Read Opinion.
Dissenting (Poissant, J.):
The dissent disagreed with the majority as to the sufficiency of the evidence in regard to the aggravated sexual assault charge. Read Opinion.
Commentary:
The majority opinion is a good application of the Theus case, still the leading case on the admissibility of prior convictions to impeach a witness. The victim was impeached with the fact that she had convictions for burglary of a motor vehicle, prostitution (twice), and theft (three times). It hardly seems necessary to further impeach the victim with much more remote misdemeanor convictions for theft and prostitution.
In re Ogg
No. 14-20-00451-CR through -00454-CR 10/27/20
Issue:
Did the trial court properly grant the defendant’s motion to conduct a bench trial without the State’s consent to waiver of a jury trial by suspending the consent requirement in Code of Criminal Procedure Art 1.13(a) based on the Texas Supreme Court’s emergency orders regarding COVID-19?
Holding:
Yes. The emergency order expressly allows the court in a criminal case to suspend all procedures prescribed by statute. The State has no constitutional right to a jury trial—that right belongs to the defendant. The State’s right to withhold consent to the defendant’s waiver of his constitutional right to a jury is statutory. The trial court’s application of the emergency order to suspend the consent requirement in Art. 1.13(a) is consistent with the plain language of the emergency order. Thus, the State has not established a clear legal right to the relief sought. Read Opinion.
Commentary:
You definitely need to read this decision and be prepared for it because you can bet that local defense counsel has read it. The dispute in this case centers around one of the emergency orders issued by the Texas Supreme Court during the pandemic. The order allows a court to “suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order . . .” This emergency order is based upon §22.0035 of the Government Code, which provides that “the supreme court may modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor.” Defense counsel and the trial judge in this case used the language from the emergency order to suspend the operation of Art. 1.13(a) of the Code of Criminal Procedure, which requires the State to approve of a defendant’s waiver of his right to a jury trial before it becomes effective. Did the Legislature and the Supreme Court really intend to allow for the suspension of Art. 1.13(a)? Based on this opinion, what other statutes can be suspended during the pandemic? The analysis by the court of appeals in this case is very sparse. This really does seem to be an issue that needs to be addressed by the Court of Criminal Appeals, and the way in which a party challenges a mandamus decision in a court of appeals is to file another petition for a writ of mandamus in the Court of Criminal Appeals. So stay tuned. (Update: On October 28, 2020, the Court of Criminal Appeals granted the State’s Motion for Emergency Stay.)