September 3, 2010

Texas Courts of Appeals

Barshaw v. State – 3rd COA

08/31/10 : Cite No. 03-09-00079-CR


In a sexual assault trial, did the trial court improperly permit an expert to testify that the mentally retarded victim belonged to a class of persons that tends to be truthful?


Yes. The expert’s testimony that mentally retarded persons are honest to a fault and cannot fabricate elaborate stories was simply another way of testifying that mentally retarded persons are, as a class, truthful, and the error was harmful. Read Opinion.


The error was harmless because the jury had everything it needed from the ample evidence on credibility, their instructions, and counsel’s argument to determine credibility independently. Read Dissent.


This is settled law. You can’t call a witness to say that nuns, police officers, or even the mentally disabled are a darn honest bunch of people. Classifying an entire group of people as basically honest is not the sort of reliable information that can be provided through an expert. The dissent makes a pretty good case for the error being harmless, but it was error.

Reckart v. State – 13th COA

08/26/10 : Cite No. 13-09-00179-CR


Is the continuous sexual assault offense of Penal Code Section 21.02 unconstitutional because (1) the lack of jury unanimity denies the right to an impartial jury, (2) it violates the 8th Amendment, or (3) it reduces the State’s burden of proof?


No. There is an absence of authority for the proposition that the right to an impartial jury includes the right to a unanimous jury; the 8th Amendment argument is inadequately briefed; and the statute does not permit a non-unanimous verdict on an essential element of the offense, so the State’s burden is not reduced. Read Opinion.


This is the third court of appeals to uphold the continuous sexual abuse law against a claim that it violates some constitutional right related to the burden of proof or a unanimous verdict. The courts of appeals get it: a jury doesn’t have to agree on the same acts of sexual abuse, the jury only has to unanimously believe that at least two of the acts were proven beyond a reasonable doubt.

Texas Attorney General

Request for Opinion from Chair of House Committee on Pensions, Investments, and Financial Services



Does Section 542.2035 of the Transportation Code prohibit a municipal peace officer from using a handheld laser speed enforcement device equipped with a video camera and GPS technology to collect evidence before initiating a traffic stop? Read Request.

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