Texas Court of Appeals

Mayo v. State

No. 07-200243-CR                           4/4/24

Issue:

Did the sentence imposed at the defendant’s revocation hearing constitute cruel and unusual punishment?

Holding:

No. The defendant was revoked from his community supervision for assault family violence and sentenced to 10 years in prison with a $10,000 fine. The Court noted that in except for very rare cases, “a punishment that falls within the legislatively prescribed range and that is based upon the sentencer’s informed normative judgment, is unassailable on appeal” (quoting Simpson v. State, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016). After reviewing the evidence presented by the State at the revocation hearing, the Court concluded that the threshold requirement for applying the Solem test (Solem v. Helm, 463 U.S. 277 (1983)) had not been met, and “the trial court’s imposition of the maximum sentence is not grossly disproportionate to the gravity of the offense.” Read opinion.  

Commentary:

In the typical case in which cruel and unusual punishment is raised on appeal, the court of appeals will not address the merits of the issue because the defendant did not object at trial. In this case, however, the defendant raised an objection by way of a motion for new trial, which courts have typically held is sufficient for a defendant to be able to present his cruel and unusual punishment claim on appeal. The analysis by the court of appeals in this case is the manner in which an appellate court should address a defendant’s typical cruel and unusual punishment claim—without addressing all of the Solem factors because the defendant failed to satisfy the threshold requirement for applying those factors. The evidence reflects that this defendant is a repeated domestic violence offender, and he deserves every bit of the prison time that he received.

Rodriguez v. State

No. 13-23-00081-CR                       4/4/24

Issue:

Did the trial court err by allowing a forensic investigator who did not conduct the victim’s forensic interview to be the State’s outcry witness?

Holding:

Yes. Although the Court found the error to be harmless based on the other evidence presented, the proper outcry witness was the forensic investigator who actually conducted the victim’s forensic interview. “Simply put, a person who merely watches a video recording of an outcry statement is not an outcry witness within the meaning of the statute.” Read opinion.

Commentary:

This case stresses the importance of making sure that a proposed outcry witness is in fact an outcry witness. Hearing only generalities about the offense will not make one an outcry witness. Overhearing or listening to a video of an outcry also does not make one an outcry witness. The proper outcry witness in this case—the person who actually conducted the forensic interview—no longer worked for the Children’s Advocacy Center (CAC), and that appears to be reason that forensic interviewer was not available to testify at trial. If the proper outcry witness is not available to testify, the State cannot then search for a substitute outcry witness. Thankfully, this conviction was saved because the error was harmless, and the defendant will continue to serve his 30-year prison sentence.

Grimaldo v. State

No. 13-23-00228-CR                       4/4/24

Issue:

Was the defendant’s Sixth Amendment right to counsel violated by the defense attorney conceding guilt over the defendant’s alleged objection?

Holding:

No. Under McCoy v. Louisiana, 584 U.S. 414 (2018), it is structural error for a defense attorney to concede guilt over his client’s objection. “To demonstrate a McCoy violation, [the defendant] was required to make both the trial court and his attorney aware that he was specifically opposed to counsel’s concession of guilt.” This he did not do to the Court’s satisfaction. “The first indication that [Grimaldo] was dissatisfied with his final trial attorney’s theory of the case did not appear until [the defendant] filed his brief in this appeal. Such a delay will simply not support a McCoy claim.” Read opinion.

Commentary:

There may be very little that a trial prosecutor can do to stop a defense attorney in how he chooses to represent his client. Consequently, this decision may only be of interest to post-conviction prosecutors. In this case, the defendant expressed his innocence at a pretrial hearing, but the defendant was represented by a different defense attorney than the one who represented the defendant at trial. The pretrial hearing was also presided over by a different judge than the one who presided over the trial. As such, this decision could be limited by its very specific facts. It will be interesting to see if the Court of Criminal Appeals wishes to review this decision.

TDCAA executive director search is underway

Rob Kepple will be retiring at the end of the year, and the TDCAA Board of Directors has formed a search committee to help select the new executive director. Interested in applying for the position? See the job posting here. The application deadline is May 1, 2024.

Domestic Violence Resource Prosecutor

The Texas District and County Attorneys Association is pleased to announce the creation of a new position: Domestic Violence Resource Prosecutor (DVRP). Patterned after the successful Traffic Safety Resource Prosecutor position (which provides training and support for prosecutors handling intoxicated driving cases), the DVRP will be responsible for training and technical assistance to Texas prosecutors and law enforcement personnel around the state. For more information, see the job posting here.

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