Texas Court of Criminal Appeals

Ratliff v. State

No. PD-0545-20                            3/16/22

Issue:

Was evidence that a defendant (the police chief) initialed a police report omitting facts surrounding the legality of an individual’s arrest sufficient to support a conviction for misdemeanor tampering with a governmental record?

Holding:

No. Under PC §37.10 an omission is not an offense, nor does it create a duty to act. While best practices would advise an officer to include facts surrounding an arrest, “there is no statute or code requiring anything more than the facts demonstrating that the arresting officer had probable cause to believe an offense occurred.” Read opinion.

Concurrence and Dissent (Keller, P.J. joined by Yeary and Slaughter, JJ.):

Agreeing with the majority on the tampering conviction, the dissent concludes evidence was also insufficient to support the defendant’s official-oppression convictions. At the time, because the law was unsettled on whether officers could legally enter a suspect’s home when in “hot pursuit” in misdemeanor cases, it was impossible for the defendant to “know” his entry was unlawful. Read opinion.

Commentary:

A few statutes require that an offense report for certain offenses include particular information, but public intoxication is not one of those offenses. Without a statute or other legal authority imposing a duty upon the reporting officer to include certain information (here, details of the suspect’s unlawful arrest) in the offense report, the officer (and the defendant, the officer’s supervisor) did not commit the offense of tampering with a governmental record when the officer omitted information from the report. A failure to act (omission) is not illegal if there is no corresponding duty to act in the first place. Note, though, that this opinion is distinguishable from a scenario involving an officer who makes a false statement in his/her report, rather than omitting information.

Texas Courts of Appeals

Hughes v. State

No. 14-20-00628-CR                    3/15/22

Issue:

1. Does the right to confrontation apply at a probation revocation hearing?
2. If so, did a defendant’s presence via Zoom satisfy due process requirements if he was unable to communicate privately with his attorney regarding the confrontation and cross-examination of a witness?

Holding:

1. Yes. Probation revocation hearings in Texas are judicial proceedings that could result in the loss of liberty. Therefore, the Sixth Amendment confrontation right applies.
2. No. Without deciding generally whether a defendant’s presence via Zoom satisfies due process requirements, the court concluded that in this case the defendant’s Sixth Amendment right was violated. Because the defendant was in a separate break-out room and unable to discuss how to cross-examine the only witness in his case with his attorney, he was not “present” at his hearing for Sixth Amendment purposes. In addition, the defendant had not waived his right to be physically present and was permitted only to appear via Zoom because he had been exposed to COVID-19. Read opinion.

Dissent (Wise, J.):

The defendant’s appeal is limited to his right to be present during a criminal proceeding; therefore, judicial restraint should be exercised by addressing only this claim. Instead, the majority unnecessarily creates a broad rule of constitutional law by holding the Confrontation Clause applies at community supervision revocation hearings. In addition, the defendant’s complaint that he was unable to communicate with his attorney is not supported by the record. “[N]othing in the record affirmatively shows that [the defendant] was prevented from speaking with counsel, either through typed messages or a separate breakout room.” Read opinion.

Commentary:

Expect the State to file a PDR in this case, and the Texas Court of Criminal Appeals will probably grant review regarding both parts of this opinion for two reasons. First, there is now a split among the intermediate appellate courts in Texas (as well as between the Fourteenth Court of Appeals and many federal courts) regarding whether the Confrontation Clause applies to probation-revocation proceedings. Further, the CCA may want to assess whether the answer to that question depends on if the probation being revoked is deferred-adjudication community supervision, or “formal” or “straight” post-conviction community supervision, given the differences between the two. Second, because courts may continue to conduct some hearings, trials, or other proceedings by Zoom or other remote, electronic means even post-pandemic, the CCA may want to weigh in on the defendant’s burden to provide a record that affirmatively demonstrates he or she was prevented from being “truly present” during a remote proceeding, for purposes of the Sixth Amendment, before an appellate court may reverse on those grounds.

Hinton Memorial Scholarship Reminder

Want to go to the 2022 TDCAA Annual Criminal and Civil Law Conference but don’t have the funds? Just a reminder that the Foundation, through generous gifts in memory of Mike Hinton, can provide you with a scholarship! All you need to do is fill out the application HERE and send it in. Questions? Just call Rob at 512/971-8425. But hurry, applications are due April 30.

TDCAA Advanced Appellate Course Registration Now Open

This course is designed for prosecutors who are assigned primarily to an appellate caseload or have significant mixed trial and appellate experience who want to prepare and participate in a hands-on course to increase their effectiveness in brief writing and oral argument. If you are interested in attending, please review the posted brochure on our website to review conditions, dates, and locations.