Texas Courts of Appeals
Thomas v. State
No. 14-19-00685-CR 8/26/21
Issue:
Does Art. 38.371 violate the Due Process Clauses of the Fifth and Fourteenth Amendments?
Holding:
No. Art. 38.371 is rationally related to a legitimate state interest—to allow the State to present evidence: 1) explaining why a complainant in a domestic violence case may be uncooperative, 2) confirming the veracity of a complainant’s initial but later recanted statements to police, and 3) contextualizing the nature of the relationship. In addition, proper procedural safeguards in the statute prevent the admission of evidence of the person’s character in violation of his due process rights. Read opinion.
Commentary:
Family violence is rarely a one-time (or, as here, two-time) event, and without Art. 38.371 it would be difficult to show juries the “full picture” of an abusive relationship. That could leave the jury with the mistaken idea that the crime came out of nowhere, when in fact it had been long-simmering. This is especially important in cases where, as here, the “defense strategy was to challenge complainant’s credibility.” It also could leave the jury confused about other things, such as why a complainant might be uncooperative, or recant, or even refuse to testify. Giving the jury the full context surrounding the incident allows the jury to actually make credibility determinations and to understand the family dynamics at play. As the court holds, that’s a legitimate state interest.
There are two other things to note here. First, as the court recognizes, Art. 38.371 does not allow the admission of character evidence that would be inadmissible under the Rules of Evidence. This statute is therefore narrower in scope than its child-sex-abuse counterpart, Art. 38.37, §2, which expressly allows character evidence to be admitted. Second, because Art. 38.371 does not allow character evidence, the trial court must still review any extraneous-offense or bad act evidence under Rule 404(b) before it can be admitted. The trial court did that here, and the second part of the court’s opinion reviews that decision.
Texas Attorney General Opinion
KP-0383 8/30/21
Issue:
What is the maximum allowable period of deferred adjudication for a third-degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health & Safety Code?
Conclusion:
The maximum period of regular community supervision for third-degree felonies under either Title 7 of the Penal Code or Ch. 481 of the Health and Safety Code is five years under Art. 42A.053. The maximum period of deferred adjudication community supervision for all felonies is 10 years under Art. 42A.103. Because the special provisions for deferred adjudication prevail over provisions for regular probation, the five-year maximum under Art. 42.053 does not apply to deferred adjudication under Art. 42A.103, so the two statutes do not conflict. Read opinion.
Commentary:
This AG opinion comes as a relief to a certain appellate prosecutor who may have said the same thing on a trial-support call four years ago, and also to TDCAA’s own Diane Beckham, who says as much in her “Punishment and Probation” book (pages 56 and 62). (New 2021 edition now available: https://www.tdcaa.com/product/punishment-probation-2021-2023-preorder/). Deferred adjudication is “community supervision” under Chapter 42A, but it’s governed by its own subchapter (C, Arts. 42A.101–.111). As both the opinion request and the opinion itself note, case law has long held that the deferred-adjudication provisions are “distinct and separate from,” and therefore “prevail over,” those that apply to regular community supervision. Simply put: If you’re talking about regular community supervision, use subchapter B; if you’re talking about deferred-adjudication community supervision, use subchapter C.
Texas Attorney General Opinion Request
RQ-0428-KP 9/1/21
Issue:
Does Code of Criminal Procedure Art. 55.01(a)(1)(C), which provides for the expunction of all records and files relating to the arrest of a person convicted of unlawfully carrying certain weapons, include expunction of the conviction itself?
Requested By:
Mark A. Gonzalez, Nueces County District Attorney