Texas Court of Criminal Appeals

Williams v. State

No. PD-0477-19                         5/26/21

Issue:

When requesting a jury instruction on a lesser-included offense, does a defendant have to point to specific evidence supporting an alternative to the greater offense to preserve error?

Holding:

Yes. “[I]f a defendant requests a particular lesser-included instruction and he sets out, on the record, the specific evidence that supports a rational basis for rejecting the greater offense but supporting the lesser offense, the trial judge errs if he refuses to instruct the jury on that lesser offense. … But general or insufficiently specific objections do not preserve error for appeal.” Read opinion.

Dissent (Yeary, J. joined by Walker and McClure, J.J.):

“On its face, Rule 33.1(a)(1)(A) makes no distinction between legal and factual specificity. It requires only that the ‘grounds’ for a request, objection, or motion be ‘stated … with sufficient specificity to make the trial court aware of the complaint[.]’ The ruling that [the defendant] sought from the trial court was clear enough: a lesser-included offense instruction. The ‘grounds’ were specific enough too, in my estimation.” Read opinion.

Commentary:

This is a very important decision for attorneys handling appeals of criminal cases in Texas. Jury charge error is one of the few things a defendant can raise for the first time on appeal. But when it comes to lesser-included-offense error, the Court has now made clear that a defendant must specify at trial how a lesser-included offense is raised by the evidence if he is to have his claim addressed on appeal. No longer will advocates be allowed to sift through the cold paper record to find support for “Hail Mary” jury charge requests. That said, judges and litigants must remember that any amount of evidence is sufficient—even if weak, incredible, impeached, or unbelievable—to support a lesser-included instruction. Thus, if you have any doubt that the evidence supports submission of a proper lesser-included offense, err on the side of caution and do not object.

Ex parte Jones

No. PD-0552-18                         5/26/21

Issue:

Is the “revenge pornography” statute, Penal Code §21.16(b), facially unconstitutional in violation of the First Amendment?

 Holding:

No. Penal Code §21.16(b) protects sexual privacy–a compelling government interest–and is narrowly tailored, targeting only “… intentional, identifying disclosures that cause harm by requiring the defendant to be knowing or reckless about the depicted person’s lack of consent. …” The State must also show a reasonable expectation of privacy under known circumstances giving rise to that expectation. Therefore, the statute is not overbroad and does not prohibit a substantial amount of protected speech. Read opinion.

Concurrence (Yeary, J.):

The statute does not violate the First Amendment and survives strict scrutiny. However, because Penal Code §21.16(b) “does not target speech per se, but only the secondary effect that such speech has on sexual privacy whenever the depicted person has not consented to the disclosure,” intermediate scrutiny should apply. Read opinion.

Commentary:

The majority opinion comprehensively addresses this constitutional challenge to the 2017 version of the “Revenge Porn” statute. The current version of the statute contains additional language consistent with the Court’s construction in this case, so it should survive similar attacks. Unfortunately, the Court chose not to publish its opinion, which means that Jones is technically not precedential. Tex. R. App. P. 77.3.

Texas Courts of Appeals

Campbell v. State

No. 10-19-00191-CR                  5/19/21

Issue:

Did including the definition of “intentionally” in a jury charge for murder constitute harmless error?

Holding:

Yes. The Court held that while charging the jury on the definition of “intentionally” may have been error, it was harmless. “Because the jury charge provided alternative manner and means as well as alternative mental states, [the defendant] has not shown actual harm in the jury charge.” Read opinion.

Dissent (Gray, C.J.):

“The definition in the charge was not ‘tailored’ to the offense as required. … The record in this case demonstrates some harm because the only contested issue was intent, and the failure of the definition of ‘intentionally’ to limit the relevant conduct to intending the result made the finding of murder all but inevitable.” Read opinion.

Commentary:

One theory neither opinion addresses is whether the full definition of intent was proper because an option available to the jury was murder cause by committing “an act clearly dangerous to human life.” See Tex. Penal Code §19.02(b)(2). While there is case law holding that this type of murder is a result of conduct offense, the statutory language suggests it contains both a result element—death—and a nature of conduct element, the “act clearly dangerous.”

Rodriguez v. State

No. 10-18-00253-CR                  5/20/21

Issue:

Did a defendant waive her Art. 39.14(a) complaint when she failed to request a continuance after receiving an untimely disclosure of her arrest warrant on the first day of trial?

Holding:

Yes. Although the defendant objected under Art. 39.14 that the warrant had not been disclosed before trial, the record showed that the defendant did not request a continuance. Accordingly, the defendant “had the opportunity to avoid the prejudice and impairment but chose not to.” Read opinion.

Concurrence (Gray, C.J.):

“This is one of the top five most important Michael Morton Act cases this Court has decided. The Court holds that a motion for continuance is required to preserve error for the State’s failure to produce requested discovery. I disagree.” Read opinion.

Commentary:

Keep an eye on this case. The Court has raised a procedural hurdle for Michael Morton Act claims that the Court of Criminal Appeals will ultimately resolve. Trial prosecutors must read discovery requests and ensure that they can show that their trial exhibits are traceable back to discovery previously provided to the defense. Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021). The problem here is that the warrant in question would not normally be a part of the file created by the police and submitted to the prosecutor, but it was obviously something both parties expected as an exhibit. Moreover, the warrant was most likely contained in the file created by the police for the sex offender the defendant was hiding, and thus in the possession of the State for purposes of the MMA.