September 14, 2018

Texas Court of Criminal Appeals

Beham v. State

No. PD-0638-17                 9/12/18


Are photos of the defendant “holding himself out as a gang member” and testimony by an expert on gang activity relevant to sentencing, even if the State does not show the defendant is a member of a particular gang?


Yes. General testimony about indicators of gang affiliation (e.g., dress, color schemes, and gang signs) and the types of activity gangs are associated with is relevant because a jury may reasonably find that a defendant who willfully displays these indicators is more likely to be a gang member. Evidence that a defendant portrays himself as a gang member can be relevant character evidence, particularly during sentencing for a violent crime. The evidence is still relevant even if the State cannot show the defendant is actually a member of any particular gang. Read opinion.


This case will be helpful because prosecutors deal with many defendants who are in criminal groups but may not be “documented.” If a defendant shows all the traits of a Bandido, Blood, or Tango Blast, that can be admissible even if you don’t know the particular gang or if he is truly a member. The Court’s discussion of relevancy in punishment is also interesting. It may assist prosecutors aiming to prove a particular character trait in punishment.

Arroyo v. State

No. PD-0797-17                 9/12/18


Is testimony that the defendant touched the victim’s “chest” sufficient to support a conviction for indecency with a child by touching the breast?


Yes. The term “sexual contact” under Penal Code §21.11(c) contains no references to age or gender. The offense does not require a “breast” to belong to a female or to be developed. This case is distinguishable from Nelson v. State, 505 S.W.2d 551 (Tex. Crim. App. 1974), because the testimony provided more detailed evidence about the defendant’s actions than the victim’s statement in Nelson. Read opinion.


Child abuse prosecutors may find this very useful because their victims—even after reaching maturity—often have difficulty describing what happened with medical precision. When combined with cases like Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990), this case will help prosecutors fight offenses committed against these most vulnerable victims.

Texas Courts of Appeals

Diamond v. State

No. 14-17-00005-CR                         9/11/18


Does Brady require disclosure that the crime lab analyst who testified at trial was “off of casework” at the time due to mishandling evidence in another case?


Yes. Information about the analyst’s work status and earlier errors is favorable evidence that the defendant could have used to attempt to exclude the analyst’s testimony or impeach her during cross-examination. Here, the evidence is material because the lab report showed a BAC level of 0.193, which enhanced the defendant’s conviction to a Class A misdemeanor. While the State provided other evidence of intoxication, the jury could have relied only on the lab report to find that the defendant had a BAC of 0.15 or higher. There is a reasonable probability that the jury would have reached a different result had the analyst’s testimony been excluded or impeached with the undisclosed information. Read opinion.

Dissent (Donovan, J.):

“Impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence. Given the unchallenged findings of fact by the trial court that the blood samples were labeled as [the defendant’s] and there was no evidence of any errors in [the analyst’s] analysis of [the defendant’s] blood, the undisclosed evidence in this case would not impeach the evidence that [the defendant’s] blood was analyzed and had a BAC level of .193. Thus, the likelihood of a different result is not great enough to undermine confidence in the outcome of the trial. I would therefore conclude the alleged Brady evidence is not material and affirm the trial court’s ruling.” (Internal citations omitted). Read opinion.


Prosecutors throughout the state continue to struggle with how to achieve Brady and Michael Morton Act compliance with regard to personnel issues of agencies and crime labs. This case represents an excellent opportunity for the Court of Criminal Appeals to lend guidance to criminal law practitioners, crime labs, and police. Should a one-time mistake by a lab technician forever dog him on the witness stand? Should vaguely articulated training concerns be required disclosures in a criminal case? Will requiring disclosures of these matters result in a chilling effect and actually hamper the efforts of crime labs to improve the quality of their work? Stay tuned.


Who’s coming to Galveston?

Our Annual Criminal and Civil Law Update in Galveston is almost here! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Online registration has closed, but you can still register onsite starting Tuesday September 18. 

New TV documentary looking for Texas cases

The producers of a new TV documentary called “Murder for Hire” are seeking cases to potentially be featured on the show. It’s being co-produced by Dick Wolf (creator of the Law and Order series) and Shed Media, and the same folks produce “Criminal Confessions.” More information is available here.