Texas Court of Criminal Appeals
Maciel v. State
No. PD-0753-20 10/6/21
Issue:
Was a defendant entitled to a jury instruction on necessity when she denied operating the vehicle but stated that while she was intoxicated, she attempted to move the vehicle off the road when the driver became ill?
Holding:
Yes. Although necessity is a confession-and-avoidance defense requiring the defendant to admit to otherwise illegal conduct, the Court held the defendant was entitled to an instruction on any defensive issue raised by the evidence. Specifically, the totality of the defendant’s defensive evidence—officer testimony, bodycam video, and the defendant’s testimony proving every element of the DWI offense—satisfied the confession-and-avoidance requirement. Read opinion.
Concurrence (Newell, J.):
The Court should, after holding that error has occurred, address the question of whether a particular error harmed the defendant instead of automatically remanding to the courts of appeals. “Rather than expecting the courts of appeals to be clairvoyant on remand, we should just answer the question when we have the chance.” Read opinion.
Commentary:
Along with Rodriguez v. State, decided by the Court of Criminal Appeals on September 15, this decision re-emphasizes that a defendant need not completely admit to the charged offense before she is entitled to a justification defense under Chapter 9 of the Penal Code. If the defendant’s admission to the offense can be implied from any of the facts in the case, she can be entitled to the jury charge. This decision also re-emphasizes that a Chapter 9 justification defense can be required in many types of offenses, not just the “typical” ones. If you want to object to a trial court charging on such a defense, you need to read this decision and Rodriguez.
Baltimore v. State
No. PD-0928-20 10/6/21
Issue:
Was testimonial evidence sufficient to support a defendant’s conviction for unlawful carrying of a handgun on premises licensed to sell alcohol when the offense took place in a parking lot of an establishment licensed to sell alcohol?
Holding:
Without deciding whether the evidence was sufficient, the Court vacated the judgment of the court of appeals with instructions to consider its recent holding in Curlee v. State, 620 S.W. 3D 767 (Tex. Crim. App. 2021), in which an officer’s opinion was held not to be sufficient evidence that a playground was open to the public. Read opinion.
Commentary:
This is a very curious remand order. The definition of “premises” for this offense is completely different from the definition of “playground” in Curlee. This suggestion to the court of appeals appears to have little to do with statutory construction, and more to do with the type of evidence or testimony that the court will accept in determining the status or nature of a particular piece of property.
Lozano v. State
No. PD-1319-19 10/6/21
Issue:
Was a defendant egregiously harmed by erroneous “duty to retreat” jury instructions when he was not entitled to deadly force self-defense instructions in the first place?
Holding:
No. Although the “general duty to retreat” instructions in this case were erroneous, they did not affect the basis of the defendant’s case, deprive him of a valuable right, or vitally affect his defensive theory. Instead, because there was no evidence the defendant acted in self-defense, the error benefitted the defendant with the possibility of acquittal on that basis and increased the State’s burden of proof. Read opinion.
Commentary:
This decision solely turns on whether the defendant was harmed, so it is pretty case-specific. Nevertheless, the decision is a good reminder that, in a self-defense jury charge, we should not be instructing the jurors on “retreat,” unless it is from language taken directly from the current version of the statute (which only deals with when a defendant is NOT required to retreat). There is no longer a general duty to retreat on the part of a defendant. That was removed from the statute in 2007, and after the 2011 decision of the Court of Criminal Appeals in Morales v. State, any instruction on a defendant’s general duty to retreat is an erroneous comment on the weight of the evidence.
Griffin v. State
No. PD-0150-21 10/6/21
Issue:
Did the court of appeals properly construe the scope of Texas Penal Code §20A.02 (the human trafficking statute) to apply in a continuous human trafficking case involving one perpetrator taking a victim on multiple occasions to multiple locations?
Holding:
The Court refused discretionary review in this case.
Concurrence (Newell, J.):
Just as in Ritz v. State, 533 S.W.3d 302 (Tex. Crim. App. 2017), nothing has changed. “This is a policy determination that our legislature gets to make. We are not at liberty to disturb it.” Read opinion.
Dissent (Keller, PJ.):
“[I]t is high time to face the issue.” The statute has been construed beyond its proper scope. As noted in Ritz, the dissent concludes that “taken together, the (a)(7) and (a)(8) trafficking provisions contemplate a minimum of two perpetrators in any trafficking offense—a person who traffics the child (subsection (a)(7)) and another person who commits the sexual offense against the child (subsection (a)(8)).” Read opinion.
Commentary:
This was a prosecution under Section 20A.03 (continuous trafficking), but the dispute centers around the statutory construction for the predicate or underlying offenses under Section 20A.02. The dispute centers around whether there must be a separate “trafficker” and “abuser” in a trafficking case, or whether the “trafficker” and the “abuser” can be the same person. According to the current state of the law, and the construction of the statute, the “trafficker” and the “abuser” can be the same person. There is not really much else to be gained from these two decisions—there is a dispute and not all of the judges on the Court of Criminal Appeals agree on the resolution of the dispute. The Legislature almost certainly meant for Section 20A.02 to be read broadly, and the courts have followed that broad construction.
Monroy-Pena v. State
No. PD-0223-21 10/6/21
Issue:
Were a prosecutor’s statements in closing arguments (“the defendant has a right not to testify against himself” and, regarding his pre-trial behavior, “[t]his is his testimony”) improper comments on the defendant’s exercise of his Fifth Amendment right?
Holding:
The Court refused discretionary review in this case.
Dissent (Slaughter, J.):
“Merely referring to a [defendant’s] pre-trial actions and behavior which demonstrated his consciousness of guilt as his ‘testimony’” did not violate the Fifth Amendment or Art. 38.08 of the Code of Criminal Procedure. As a result, the dissent would have granted the State’s petition for discretionary review to correct this error. Read opinion.
Commentary:
This is a good reminder not to ever refer to a defendant’s “testimony” when he did not testify. Even if you really did not mean his “testimony.”
Texas Courts of Appeals
State v. Hatter
No. 14-20-00496-CR 9/30/21
Issue:
Did the trial court have authority to order the State to dismiss a re-filed charging instrument based on a promise by the prosecutor to dismiss the original felony charge in exchange for guilty pleas in other misdemeanor cases that were also subsequently dismissed?
Holding:
Yes. Although a county attorney or district attorney has the authority to dismiss a prosecution, it is only with the approval of the trial court. In addition, a grant of immunity from prosecution also requires the trial court’s approval. Here, where an agreement to dismiss and not re-file a felony charge was made in exchange for the defendant’s guilty plea to misdemeanor charges that were also eventually dismissed, the trial court’s granting of the defendant’s motion for specific performance provided the approval necessary to render the grant of immunity enforceable. Neither statute nor caselaw requires the trial court’s approval of an immunity agreement to be concurrent with the offer itself. Read opinion.
Dissent (Jewell, J.):
In this case, the prosecutor’s promise not to re-file the felony charge is not an enforceable grant of immunity because there was no exchange of consideration and because the court never approved it. Code of Criminal Procedure Art. 32.02 does not apply to a motion for specific performance but instead governs when the State seeks a dismissal, and the State was not seeking a dismissal here. Read opinion.
Commentary:
This decision does not turn on whether the prosecutor promised, even though the prosecutor testified that he did not promise. This is a State’s appeal. Defense counsel said that the trial prosecutor promised, and the trial court made a finding that a promise was made. That finding is to be upheld in a State’s appeal. This decision instead turns on whether the trial court approved of the promise—the grant of immunity (or perhaps the plea agreement). Case law is clear that the trial court must approve. Hopefully, the Court of Criminal Appeals will review whether the trial court’s granting of a motion for specific performance—much later—constitutes that required approval. This case could be a good reminder to get the terms of your plea agreement—ALL of the terms—documented in writing.
Texas Attorney General Opinion Request
RQ-0434-KP 10/6/21
Issue:
Under House Bill 957, who has the authority to manufacture firearm suppressors, and how is HB 957 affected by federal law?
Requested by:
Elton R. Mathis, Waller County Criminal District Attorney