Court of Criminal Appeals
No. PD-0794-15 4/27/16
Is a defendant’s plea of true to an enhancement enough to support a finding of true, even without any additional evidence from the State?
Yes. Although the sequence of prior convictions was not entirely clear because the State failed to include the year of one conviction, that does not “affirmatively show that the enhancements were improper.” When a defendant has pled true to an enhancement, the State has no burden to prove them and a defendant can prevail only if the record affirmatively shows the enhancement was improper. Read.
This changes the law concerning the effect of a defendant’s plea of true to an enhancement allegation only slightly, if at all. If you have left something out in pleading an enhancement allegation, definitely use this case to support a finding of true after the defendant has pleaded true. The record in this case was pretty thorough, and it is clear that the correct finding on the enhancement allegation was in fact “true.”
No. PD-1505-14 4/27/16
Was Penal Code §38.111, prohibiting Improper Contact with a Victim, unconstitutional as applied to the defendant because it prohibited him from contacting his biological son, a minor who lived in the same house as the victim?
No. Penal Code §38.111 “prohibits a person confined in a correctional facility after being convicted of certain sex offenses from contacting the minor victim of the offense or a minor member of the victim’s family.” The defendant, while imprisoned for the aggravated sexual assault of his stepdaughter, was prohibited from contacting his biological son, the victim’s half-brother. This prohibition was not a violation of his fundamental interests as a parent, however, because his right to contact his son had already been permanently enjoined by a family court order, and thus, he had no protected interest in contacting his son. Also, there is no violation of the Equal Protection Clause because §38.111 is not based on a suspect classification and again, this defendant had no rights that were violated by the prohibition of contact in this case. Read.
There are not a lot of decisions that have construed §38.111, so it is doubtful that defendants often get charged with committing this offense (perhaps because inmates typically do not commit it?). This decision appeared to turn largely on the fact that a family court order had already prohibited the defendant from contacting his biological son. But it seems that such a defendant could be prohibited from contacting the victim of the offense or any other minor living in the same household whether or not there was related family court litigation.
No. PD-1094-15 4/27/16
Does a defendant’s complaint about access to counsel under the Sixth Amendment need to be properly preserved to be considered on appeal?
Yes. The defendant in this case argued on appeal that his Sixth Amendment right to counsel was violated because an investigator from the district attorney’s office improperly arranged for a note to be sent to the defendant in jail while he was awaiting trial. The court found that in this case the issue was not that the defendant was deprived of his right to counsel, but that evidence obtained as a result of that note was improperly admitted at trial. Errors in the admission of evidence are subject to procedural default, so the objection should be forfeited because of the defendant’s failure to object at trial. Read.
Concurrence (Meyers, J.):
Judge Meyers concurred in the judgment because of the defendant’s failure to object at trial; however, he made clear that the evidence obtained as a result of the note sent by a district attorney’s investigator should not have been admitted at trial because it was a violation of Rule of Evidence 404(b). Read.
Concurrence (Johnson, J.):
Judge Johnson wrote to express that the note written to the defendant that was entered into evidence should not have been admitted as it was not relevant or material to the case; however, there was likely no real harm suffered by defendant as a result of the admission. Read.
This decision will be of interest only to appellate attorneys as it relates to preservation of error based upon the admission of a piece of evidence. It is doubtful that this defendant will be able to obtain relief by way of a post-conviction writ of habeas corpus (based upon ineffective assistance of counsel) because it is doubtful that he was harmed by the admission of the note into evidence.
No. PD-0143-15 4/27/16
When deciding if there was egregious harm suffered in a case, should an appeals court defer to findings of fact made by the trial court?
Not necessarily. To the extent a question of fact may depend on credibility or demeanor, it may be appropriate to defer to the trial court’s findings; however, on questions of fact or law that do not rely on an evaluation of credibility or demeanor, an appeals court is not required to defer to the trial court findings, in this case the finding of egregious harm. Read.
This is a very helpful decision for prosecutors considering whether a State’s appeal should be taken in a case in which the trial judge has issued adverse “findings” of fact. This decision will require the reviewing court to look at the substance of the “finding” to determine if it is in fact a “finding” at all, as opposed to a conclusion of law. But just remember that this same holding can be used in reviewing a judge’s findings that are adverse to a defendant as well.
No. PD-0599-15 4/27/16
Was the defendant entitled to a new punishment hearing because his original punishment was “grossly disproportionate” under the Eighth Amendment?
No. While the defendant presented a valid legal claim that his sentence was “grossly disproportionate” to the crime, he had no evidence to substantiate it. Because the defendant’s sentence was well within the statutory limits, there is no inference of disproportionality. It was an abuse of discretion for the trial court to grant a new punishment hearing without evidence that the original was seriously flawed. Read.
It is an exceedingly rare case that is actually reversed because the defendant’s sentence was disproportionate—at least in Texas. A trial judge should, therefore, grant a new sentencing hearing in only the most egregious of cases. This decision will help your trial judge think twice before granting such a new sentencing hearing, and it is just the most recent in a long line of decisions from the Court of Criminal Appeals that permit trial judges to grant motions for new trial only for a truly legal reason. This defendant deserved every bit of the 25-year sentence that he received. He was charged with robbery with an enhancement allegation for a prior conviction of aggravated robbery. He had 16 other robbery convictions, along with a few other convictions. He could have received a great deal more than 25 years.