The Court of Criminal Appeals
Perkins v. State
NO. PD-0310-20 (9/7/22)
Issue:
Is the State required to accept a defendant’s stipulation of evidence regarding an unadjudicated extraneous offense offered for non-character conformity purposes rather than introduce testimony regarding the commission of that offense into evidence during the State’s case-in-chief?
Held:
No. The court declined to extend their holding in Tamez v. State involving jurisdictional DWI convictions to the situation presented in this case. However, the court remanded the case for the court of appeals to determine whether the trial court’s admission of this evidence ran afoul of Rule 403.
Concurrence: (Yeary, J)
Appellant’s offer to stipulate to the fact of a prior conviction was properly rejected.
The details of extraneous offenses themselves, and not the mere fact of conviction, are what make misconduct evidence relevant and support the determination that the evidence is indeed more probative than prejudicial for purposes of Rule 403.
Commentary:
This should be a helpful decision for a prosecutor who is confronted by a defendant who is attempting to limit the effectiveness of the State’s evidence by stipulating to the evidence. As noted by the court, the State is—generally—not required to agree to a defendant’s offer of a stipulation. This decision clearly limits the requirement that the State agree to such a stipulation only to cases in which the State is offering prior convictions that must be alleged in the indictment and proven in the State’s case-in-chief at the guilt/innocence stage.
Courts of Appeals
Martinez v. State
No. 04-19-00745-CR (8/31/22)
Issue:
Did the trial court err in denying a motion to suppress the historical cell site data for a 74-day period?
Held:
No. Although the probable cause for the warrant did not justify the collection of 74 days of phone records, the evidence was obtained in good faith reliance on the warrant.
The court further held that even if the good faith exemption does not apply, there was no reversible error because the records of the historical cell site data for the periods with probable cause (the hours just before and after the murder) were severable from the rest of the records without probable cause, so the trial court’s failure to suppress the improperly seized historical cell site records was harmless beyond a reasonable doubt.
Commentary:
The important part of this decision is the application of the good-faith exception, and in that respect, prosecutors should be a little careful. The defendant did not preserve error under the Texas Constitution, so only the federal version of the good-faith exception was applied. Nevertheless, this is a good and helpful analysis under the federal good-faith exception, and it could be helpful in future cases. The court held that the search warrant affidavit in this case provided probable cause, just not for the 74-days of phone records that were obtained. Even with that limitation, this should be a helpful decision for law enforcement and prosecutors.
Traylor v. State
No. 04-21-00258-CR (8/31/22)
Issue:
Did the trial court abuse its discretion by allowing the State to impeach the defendant during cross examination by asking questions about his prior convictions for the same type of crime?
Hold:
Yes–but the error was harmless. Further, the overwhelming nature of the State’s evidence was a key factor in the Rule 403 analysis, but it was just one of the factors in the harm analysis.
Concurrence: (Rios, J.)
The analysis of Rule 403 was unnecessary in this case because the court need only focus on the harm aspect of allowing the evidence.
Commentary:
The overwhelming nature of the State’s evidence against the defendant is ultimately what led the court of appeals to hold that the trial court abused its discretion in admitting the evidence of the prior convictions. The State had very little need for that evidence. The court’s analysis under Rule 403 and Theus is thorough and might well hold up on further review by the Court of Criminal Appeals. Prosecutors, wishing to impeach a witness (including the defendant) with prior conviction, should read this decision.
Rafiq v. State
NO. 09-20-00094-CR (8/31/22)
Issue:
Was an officer allowed to seize a murder defendant’s phone before obtaining a warrant to prevent destruction of evidence?
Held:
Yes. The seizing officer had sufficient reasonable suspicion that the defendant’s phone contained evidence of the crime that could be deleted or destroyed if he returned the phone to the defendant. Those exigent circumstances justified the officer in temporarily seizing the phone to preserve that evidence until the police could obtain a warrant to search its contents.
Commentary:
This is a rather unusual fact situation, which may prevent this case from being a great deal of help to prosecutors in other cases. The defendant initially gave the officer’s limited consent to seize and search the cell phone to look for specific things, and at trial and on appeal, the defendant did not challenge the duration of law enforcement’s seizure of his cell phone before ultimately obtaining a warrant to search it. However, there is another reason to be very cautious about this decision. The court held that “reasonable suspicion” allows the police to seize evidence for a reasonable period of time to prevent the destruction of evidence, but that exigent-circumstances theory has traditionally required the existence of probable cause, so proceed with caution before relying on this analysis in your cases.
Announcement
DPS Crime Lab: Testing of Oils & Vapes
September 6, 2022
The DPS Crime Laboratories have issued notice that they are now offering quantitative testing of suspected delta-9 THC oils and vape cartridges seized by law enforcement agencies. For details, see the official notification posted September 1, 2022, listed under the category “Seized Drugs.”
Testing related to suspected cannabis edibles and waxes is still not available, but the agency will work on that project next.
If you have questions, please contact your local laboratory manager or email DPSLabServices@dps.texas.gov.