September 11, 2015

Texas Courts of Appeals

Belcher v. State (12th COA)

No. 12-14-00115-CR     9/2/15


Is CCP Art. 38.37, allowing evidence of extraneous offenses or acts against children, constitutional?


Yes. Art. 38.37 serves the same purpose as Federal Rule of Evidence 414 and is narrowly drawn to protect the rights of the defendant. Read opinion.


This opinion gives a complete template for defending the validity of the most recent changes to Article 38.37. Read it ASAP if you prosecute child abuse cases. Make sure you eat lunch first.

Williams v. State (6th COA)

No. 06-14-00219-CR        9/3/15


Should the trial court have given a jury charge that alleged two separate methods of committing an offense, without requiring a jury unanimity instruction?


No. When the State charges two methods of committing an offense and presents evidence to support both methods (enough to be considered two separate offenses), the court must require the jury to come to a unanimous verdict on the way in which the defendant committed the sexual assault. “[T]he jury must be instructed that it must unanimously agree on one incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all of the essential elements of the single charged offense beyond a reasonable doubt.” Read opinion.


This opinion is a frustrating read because a fairly straightforward (and awful) case is reversed on appeal for an easily avoided jury charge error. As prosecutors, we have great control over how offenses are charged: what offense is charged, what language is included in the indictment, and whether to seek multiple indictments or multiple counts when the facts show multiple offenses. In making these decisions, we must be familiar with all the nuances of the charges—whether a statute contains multiple manners and means, multiple offenses, or both—and that discrete offenses require unanimity from the jury while manners and means of committing a discrete offense do not require unanimity. Here, the indictment charged two different offenses (incorrectly pleaded as paragraphs rather than counts); the jury had to be unanimous as to each offense. The jury charge did not contain appropriate unanimity instructions (or apparently separate verdict forms for each offense). The arguments that unanimity was not required exacerbated the errors. Accordingly, the defendant was harmed and a new trial is required. Admittedly, there are some offenses in the Code where it is unclear just what we are required to prove, but that is not true with sex cases.


State v. Ruiz (13th COA)

No. 13-13-00507-CR        8/27/15


Is implied consent under §§724.011(a) and 724.014(a) of the Transportation Code equivalent to voluntary consent as a recognized exception to the warrant requirement?


No. Because the defendant was unconscious and unable to either consent or refuse consent to a search, the implied consent provisions under the Transportation Code do not apply and cannot be used to justify a warrantless search. Additionally, the State did not produce enough evidence to justify an exigency exception to the warrant requirement. Read opinion.

Dissent (Perkes, J.):

Judge Perkes wrote to express his belief that the State had shown both implied consent from the defendant and exigent circumstances to get a blood draw without a warrant. He relies on the Amaya decision that concluded a defendant who is dead, unconscious, or incapable of refusal has not withdrawn the consent in the Transportation Code. Read.


Keep a close eye on developments in this case. The Court here effectively invalidates the portion of the Transportation Code that deems unconscious persons have not withdrawn their consent to give a sample of blood and misconstrues Beeman v. State in reaching this result. Let’s hope the CCA will decide Villareal soon and grant review of this decision so that we have full guidance on these issues.

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