Texas Court of Criminal Appeals

Vandyke v. State

No. PD-0283-16                  12/20/17

Issue:

Does the savings clause in SB 746, which decriminalizes the failure to comply with the terms of sex offender treatment and applies retroactively to any defendant whose appeal was pending, violate the separation of powers clause of the Texas constitution by usurping the governor’s power to grant clemency?

Holding:

No. “The Legislature’s decision to make, alter, and repeal laws can violate the separation of powers when it grants trial courts the discretion to lower a particular defendant’s sentence after sentencing or exempt a defendant from serving his or her sentence based on new legislation.” The governor’s power of clemency affects only the punishment to which an individual is subjected, not the underlying conviction. Conversely, when the legislature retroactively decriminalizes conduct, pending convictions predicated on that conduct are invalid. Exercising the legislative right to determine criminal conduct does not usurp the governor’s power to grant clemency. Read opinion.

Dissent (Yeary, J.):

“Today, the Court holds that a legislative act nullifying an existing criminal conviction nevertheless does not impinge upon our state constitutional mandate of separation of powers among the three discrete departments of government… The Court’s holding is contingent upon its understanding of what constitutes a ‘pardon’ in contemplation of the clemency power. Although I admit that the Court’s understanding derives from relatively long-standing case law, I believe there is an older, broader definition of ‘pardon’ that has greater constitutional provenance and is far more likely to correspond to the Framers’ original conception of what a pardon—or at least a full pardon—does. By my understanding of ‘pardon,’ the Legislative Department in this case encroached upon an Executive Department prerogative.” Read opinion.

Commentary:

The odds of the disputes in this case arising in subsequent case law are low. The disputes in this case center upon the court’s view of a 1941 case of the court, so they have not arisen often. And it is not likely that the Legislature will decriminalize previous criminal conduct while convictions for that conduct are pending on appeal. But if you want to learn more about the concept of the Governor’s power to pardon, and the Legislature’s power to repeal, look no further than these two well-written opinions. You will learn more than you ever thought possible about these two concepts (with a little separation-of-powers law thrown in), and you will see the best of the scholarship of the court on display.

Marcopoulous v. State

No. PD-0931-16                  12/20/17

Issue:

Do a defendant’s repeated history of visiting a bar known for narcotics sales, his short time spent at the bar, and “furtive gestures” immediately prior to being pulled over constitute probable cause to satisfy the automobile exception to a warrant requirement for search of a vehicle?

Holding:

No. Furtive gestures alone are not a sufficient basis for probable cause. Considering the defendant’s brief stop at a bar known for narcotics sales in conjunction with the furtive gestures is still an insufficient basis for probable cause. “We wish to stress three aspects of our decision today. First, as with any probable cause determination, it is fact-driven. We do not hold that observations akin to [the arresting officer’s] will never meet the standard of probable cause; we simply conclude that [the Defendant’s] observed behavior was insufficient in this case. Second, it was only barely insufficient. We do not hesitate to say that, had [the officer] observed any additional indicators of drug activity, either at [the bar] or within [the defendant’s] car, the scale would tip in favor of a finding of probable cause. Finally, although probable cause to search the vehicle was lacking on these particular facts, we do not conclude that the Fourth Amendment was necessarily violated—we decide only that the automobile exception is unavailing.” Read opinion.

Dissent (Keel, J.):

The defendant has never challenged the lawfulness of his arrest for a traffic offense. After arrest, cocaine was found on his person and in his truck. Police officers may search a person incident to a lawful arrest. The conviction for possession of less than a gram of cocaine can be upheld based on the cocaine found on the defendant’s person without addressing the legitimacy of the vehicle search. Alternatively, the nature of the bar as a front for drug sales, defendant’s previous visits to the bar, his brief stay at the bar on the day in question, and his furtive movements after seeing the patrol car behind his vehicle are together sufficient to support a finding of probable cause to search under the automobile exception. Read opinion.

Commentary:

The bottom line of this case is that the State has lost the legal dispute that was before the court, but the case was remanded back to the court of appeals to discuss other possible bases for upholding the trial court’s ruling. And one need look no further for that alternative basis that Judge Keel’s dissenting opinion. If the defense presents this case in hopes of defeating an automobile-exception argument, point the judge to the last part of the majority opinion titled “Conclusion,” in which the majority makes it clear how limited the holding is in this case.

Texas Supreme Court

Tafel v. State

No. 16-1019        12/15/17

Issue:

Are forfeiture proceedings civil in nature? Does conviction for possession of a weapon under Penal Code chapter 46 authorize a forfeiture under Code of Criminal Procedure art. 18.19(e)?

Holding:

Yes and No. A forfeiture proceeding under Code of Criminal Procedure chapter 18 is an in rem proceeding against the property itself, not against the owner, and is therefore civil in nature. Art. 18.19(e) mandates forfeiture of the weapon when a defendant is convicted of “an offense involving the use of the weapon.” This is not the correct proceeding for forfeiture following a conviction for possession of a weapon under Penal Code chapter 46. Code of Criminal Procedure art. 18.19(d) allows the return of confiscated weapons to a defendant who receives deferred adjudication under chapter 46, with some exceptions. To give full effect to art. 18.19’s bifurcated design, the only applicable forfeiture provisions for the possession conviction are under art. 18.19(d). Read opinion.

Commentary:

If you ever seek to have a defendant’s guns forfeited to the State, read this decision and follow the requirements of the appropriate subsection of Art. 18.19. The court also makes it clear, if it needed clarifying, that a property seizure under Chapter 18 of the Code of Criminal Procedure is a civil law matter.

Texas Courts of Appeals

Rush v. State

No. 10-16-00353-CR        12/13/17

Issue:

Is walking away from an officer when lawfully detained sufficient evidence of “fleeing”?

Holding:

Yes. When in a motor vehicle, “fleeing” has been held as “anything less than prompt compliance with an officer’s direction to stop.” High speed is not a requirement, only an attempt to get away from the officer. “Fleeing slowly is still fleeing.” The court applies the same standard to fleeing on foot. The defendant fled when he exited the passenger side of the detained vehicle, walked away, and did not stop when commanded to by the detaining officer. Read opinion.

Commentary:

This is an interesting decision. It is short and to the point. But the court cites to appropriate controlling case law. This decision should help for any cases involving a dispute regarding the lawfulness of the detention of a passenger or whether a person walking away is, in fact, fleeing.

Cormier v. State

No. 01-16-00566-CR        12/19/17

Issue:

Is a legal definition for “imminent” required in the jury instruction for a duress defense?

Holding:

No. The Penal Code contains no definition for “imminent.” Although the Court of Criminal Appeals has defined “imminent” in other contexts, such as evaluating the sufficiency of the evidence, this does not supplant the Legislature’s authority to define the term in the statute to instruct a jury on duress. The definition in one context by the Court of Criminal Appeals does not require a trial court to define a term that the statute does not. “Imminent” is used frequently in the Penal Code in a variety of contexts, all without definitions. The lack of a definition for the term and its frequent use as an undefined modifier indicate that “imminent” has a common meaning, and it is within the trial court’s discretion to refuse to submit a definition to the jury. Read opinion.

Commentary:

This decision follows the overriding general rule that, if a word or phrase is not defined in the criminal statute, it should not be defined in the jury charge, regardless of whether it may or may not have been defined in a court decision.

Announcements:

Spots are still available for TDCAA’s January 2018 Prosecutor Trial Skills Course. If you are a new or returning Texas prosecutor, or just looking for a refresher, this course is for you. Come spend an engaging week in San Antonio learning the ropes with prosecutors from all over this great state. The course will be held this coming January from the 7^th to the 12^th. Registration and more detailed event information can be found here.

There will be no case summaries next week. Wishing everyone happy holidays and all the best in the new year!

Texas Courts of Appeals

State v. Atkinson

No. 04-17-00184-CR         12/07/17

Issue:

Is a judge’s handwritten edit to the caption of a motion to dismiss sufficient to change it from a motion to dismiss with leave to refile to a motion to dismiss with prejudice?

Holding:

No. Although the trial judge added the words “/w prejudice” to the caption of the motion, the text of the dismissal order unambiguously states “the case is hereby dismissed with leave to refile.” An unambiguous order must be given effect based on the literal language used; matters extrinsic to the order may not be considered. Furthermore, the alteration to the caption is not a part of the motion filed by the State because it was done by the trial judge, not State’s counsel. It is not the place of the trial judge to modify motions. Finally, the trial court’s docket sheet, which indicates a dismissal with prejudice, does not control over the text of a written order. Read opinion.

Commentary:

A trial court does not have the authority—generally—to dismiss a case “with prejudice.” Instead of deciding the case on that basis, however, the court of appeals construes the motion and its accompanying order as requesting and obtaining a dismissal of the case “without prejudice” to refile. There is some good language in this opinion if a similar fact situation arises in one of your cases.

Announcements:

Spots are still available for TDCAA’s January 2018 Prosecutor Trial Skills Course. If you are a new or returning Texas prosecutor, or just looking for a refresher, this course is for you. Come spend an engaging week in San Antonio learning the ropes with prosecutors from all over this great state. The course will be held this coming January from the 7^th to the 12^th. Registration and more detailed event information can be found here.

Texas Courts of Appeals

Fisk v. State

No. 04-17-00174-CR         12/06/17

Issue:

Are the elements of former UCMJ Article 125 for sodomy of a child sufficiently similar to Penal Code §22.011 to act as a prior for enhanced punishment?

Holding:

No. A defendant convicted of indecency with a child under Penal Code §21.11 who has a prior conviction for a sexual offense enumerated in Penal Code §12.42(c)(2)(B) receives a mandatory life sentence. A prior conviction under the laws of another state, or the UCMJ, may be used as an enhancement when the elements are “substantially similar” to the elements of an enumerated Texas offense. Article 125 encompasses a markedly different range of conduct, including prohibiting certain forms of consensual sexual activity between adults. The interests protected by UCMJ Article 125 are also different; Article 125 was designed to protect against a certain type of sexual activity, not to protect against sexual acts against children. Read opinion.

Commentary:

This decision represents an exhaustive application of the controlling authority from the Court of Criminal Appeals, and it appears to hold up because the UCMJ statute was directed only at specific types of sexual activity. Nevertheless, the Court of Criminal Appeals may still want to review this decision because it is unique.

Texas Attorney General Opinions

RQ-0196-KP        12/01/17

Request:

May handgun license holders carry handguns on the premises of a church that does not post signs excluding handguns? And are churches exempt from the private security fees charged to private institutions? Read request.

Commentary:

This request deals with a straightforward analysis of recently enacted statutory provisions and does not appear to be controversial. It is made in response to the recent tragic shooting at the church in Sutherland Springs.

RQ-0195-KP        11/29/17

Request:

Is the use or expenditure of civil asset forfeiture funds by a district attorney to purchase property insurance for a property awarded to the State as contraband while the appeal of the case is pending a use for official purposes of those funds pursuant to the Texas Code of Criminal Procedure Art. 59.06(c)(l)? Read request.

Commentary:

This opinion request is reasonable but not nearly as straightforward. It will require a much more exhaustive statutory analysis of Chapter 59 of the Code of Criminal Procedure and perhaps elsewhere. But it certainly does sound reasonable that a local authority should be able to insure real property that has been forfeited while that property is awaiting sale.

Court of Criminal Appeals of Texas

Bohannan v. State

No. PD-0347-15                11/22/17

Issue:

Can a conviction for violating a civil commitment order be upheld when the underlying commitment order has been reversed on appeal?

Holding:

Yes. A civil commitment order is effective immediately upon entry, even if appealed. Once the order is issued, the defendant is required to follow it until reversed. An eventual reversal does not excuse violations of the order before it was reversed. Read opinion.

Commentary:

This decision is controlled by the court’s prior decision in Stevenson v. State, 499 S.W.3d 842 (Tex. Crim. App. 2016). The court also discusses several other similar cases and how they apply or do not apply to this fact situation. This decision should be very helpful if you have a similar fact situation, but do not get carried away; it seems clear that the defendant could not be prosecuted for any alleged violations that occurred after his order had been reversed.

Ex parte Beck

No. PD-0618-16                11/22/17

Issue:

May a defendant challenge the facial constitutionality of a statute for the first time in a post-conviction habeas writ when the statute at issue has never been declared facially unconstitutional by any court with binding authority?

Holding:

No. As a general rule, a first-time challenge to the facial constitutionality of a statute may not be presented in a post-conviction habeas proceeding. Facial constitutional challenges must be preserved during the trial proceedings. However, challenges to a conviction under a statute that has already been declared facially unconstitutional are allowed because such a statute is “void from its inception” and treated “as if it had never been.” Here, the defendant was convicted under the improper-relationship statute (Penal Code §21.12), which references the former online-solicitation statute (Penal Code §33.021). Although the online-solicitation statue was found to be facially unconstitutional, this does not automatically invalidate the improper-relationship statute, nor can the defendant challenge it for the first time in a post-conviction writ. Read opinion.

Concurrence (Yeary, J.):

The exception that allows a defendant to receive habeas relief for a conviction under a statute that has been previously declared unconstitutionally overbroad should be limited only to defendants who can demonstrate that the statute was unconstitutional as applied to their own conduct. Read opinion.

Commentary:

This is not a decision on the constitutionality or unconstitutionality of the improper-relationship statute. This decision is solely about the proper way to consider a facial constitutional challenge in an application for a post-conviction writ of habeas corpus. The improper-relationship statute has not yet been declared unconstitutional, even that portion of the statute that is based upon conduct under §33.021(b) of the Penal Code (online solicitation of a minor), a prior version of which was declared facially unconstitutional in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2010). If you are you looking for any ammunition in support of an argument that the improper-relationship statute is constitutional, you will not find it with this decision, but footnote 15 might give you a starting point.

Ex parte Johnson

No. WR-85,192-01           11/22/17

Issue:

May a defendant bring a claim that the Parole Board is not complying with a statute in a writ of habeas corpus?

Holding:

No. The Court overrules Ex Parte Sepeda, 506 S.W.3d 25, which stated that habeas relief was an appropriate remedy to compel the Parole Board to comply with a statute. A claim that the Parole Board is not complying with a statute does not allege a constitutional violation or a jurisdictional defect that would be cognizable in a post-conviction habeas writ. Read opinion.

Concurrence (Keasler, J.):

Although the defendant is not entitled to relief through writ nor mandamus, the Parole Board policy could be changed to address the defendant’s concern about parole eligibility for consecutive sentences while still avoiding the inefficiency of parole reviews when the defendant cannot actually be released due to the sentences being served consecutively and concurrently to the parole-eligible one. On the date that the defendant would be eligible for actual parole on all sentences, the Board may retroactively consider the defendant for “parole” on the first sentence and, if it would have been suitable, grant him “parole” backdated to the original eligible date so that the consecutive sentence is considered to have started at that time. This gives the defendant the opportunity to receive the credit towards the second sentence that he claims is unfairly being withheld, but it does not require the Board to conduct additional hearings before it is necessary. Read opinion.

Dissent (Alcala, J.):

“Can the parole board disregard applicable statutes without any judicial oversight? After today’s majority opinion, the answer to this question is ‘Yes.’ … I would grant either habeas or mandamus relief to [the defendant]. I would hold that, when, as here, an inmate is serving two sentences concurrently but he also has a yet-to-commence third sentence that will be served consecutively to the shorter of his concurrent sentences, the parole board must consider him for parole on his shorter concurrent sentence at the point at which he becomes statutorily eligible for parole on that sentence.” Read opinion.

Dissent (Walker, J.):

“The Court today holds that mandamus relief is not warranted for [the defendant], who is seeking relief from a parole policy of holding a parole vote on all of an inmate’s concurrent sentences only when the inmate’s controlling sentence is eligible for parole. In my view, the parole authorities are failing to perform a ministerial duty imposed by one of the Board of Pardons and Paroles’s own valid regulations, the policy is improper, and [the defendant] should be granted mandamus relief.” Read opinion.

Commentary:

The Court was badly divided in this case, so we might see a change in this holding in the near future. Keep an eye out for any updates.

Texas Courts of Appeals

Flores v. State

No. 04-16-00502-CR         11/15/17

Issue:

Does Code of Criminal Procedure Art. 21.15 require the indictment to allege the acts relied upon to constitute recklessness in a manslaughter charge?

Holding:

Yes. Under CCP Art. 21.15, the State must allege circumstances which indicate that the defendant “was aware of the risk and acted in conscious disregard of that risk.” Here, alleging that the defendant drove “at an excessive rate of speed above the posted speed limit” does not give sufficient notice under CCP 21.15. Driving above the speed limit is not inherently reckless behavior, so more specificity about how the defendant’s speed was reckless is required. Read opinion.

Commentary:

This is a horrible decision. The State alleged that the defendant committed the offense of manslaughter by “driving and operating a motor vehicle at an excessive rate of speed above the posted speed limit, or by driving and operating a motor vehicle straight through a left-turn only lane in an attempt to pass another motor vehicle, or by racing another motor vehicle in a public place, or by any combination of said three acts, thereby causing a motor vehicle to collide with another motor vehicle.” If that is not enough to comply with Article 21.15, the Court of Criminal Appeals should grant review of this decision and say so. It is possible that the court of appeals based its decision, at least in part, on the disjunctive pleading (use of the word “or”). Although it should not make a difference in this context, perhaps this might be a good time to remind ourselves that it is permissible to charge (plead in an indictment or information) in the conjunctive (use of the word “and”).

Allen v. State

No. 01-16-00768-CR         11/28/17

Issue:

Is the “Summoning Witness/Mileage” fee assessed under Code of Criminal Procedure Art. 102.011(a)(3)(b) facially unconstitutional?

Holding:

Yes. A fee assessed against a defendant violates the Separation of Powers clause of the Texas Constitution if the money collected is directed toward the general revenue fund of the state or county and is not directed by statute for a criminal justice purpose. The constitutional infirmity is the statute’s failure to direct the funds received from the fee to be used in a manner that would constitute a court cost (i.e., for a criminal justice purpose). Read opinion.

Commentary:

This decision follows prior decisions from the Court of Criminal Appeals on this matter. Be aware of it and the decisions it cites if you are confronted with this type of argument.

Court of Criminal Appeals of Texas

Proenza v. State

No. PD-1100-15                11/15/17

Issue:

Are claims of improper judicial comments raised under Code of Criminal Procedure Art. 38.05 forfeitable rights under Marin?

Holding:

No. Under Marin v. State, 851 S.W.2d 275, error-preservation rules are split into three categories: 1) absolute requirements and prohibitions, 2) rights of litigants that must be implemented unless expressly waived, and 3) rights of litigants that are to be implemented upon request. Category Three Marin rights are waived if not properly preserved at trial. Category One and Two Marin rights are “so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection” and are not waived even if not preserved at trial. CCP 38.05 creates a duty for the trial court to refrain from commenting on the weight of the evidence or its bearing on the case that cannot be forfeited by party inaction. The right to be tried in a proceeding devoid of improper judicial commentary is “at least a Category-Two, waiver-only right.” Read opinion. 

Concurrence (Newell, J.):

Compliance with Code of Criminal Procedure Art. 38.05 is fundamental to the proper functioning of the adjudicatory system, and a defendant is not required to object at trial to preserve the right to complain about a judge’s comments on appeal. However, the Court attempts to apply Marin v. State too strictly. Marin was meant to be a “cursory” examination of error preservation and was not intended to examine and place all rights into one of three categories. Read opinion.

Dissent (Keller, P.J.):

Preservation should be required for a complaint under Code of Criminal Procedure Art. 38.05. Requiring preservation is the general rule and there should be only limited exceptions under Marin. The statutory language of CCP Art. 38.05 does not prevent judicial-comment complaints from being forfeitable, and equity and policy favor requiring preservation to give trial judges the opportunity to address and cure complaints. Read opinion.

Commentary:

The contemporaneous objection requirement is an important safeguard in our justice system because it forces parties to actively engage in a proceeding rather than hope for a windfall while relying on an unrevealed flaw for a do-over if the result is not to their liking. This decision might be viewed as the Court’s retreat from a fairly disciplined approach to preservation of error over the last two decades. That said, the Court’s holding that a non-constitutional harmless error analysis applies to a court’s improper comment may serve as fair compensation. Otherwise, trial courts can seldom go wrong by limiting its remarks at trial to “granted, denied, sustained, overruled, move along, and the jury will remember the evidence.”

Texas Courts of Appeals

Elizondo v. State

Nos. 14-16-00871-CR to -00873-CR           11/14/17

Issue:

Must a party preserve error for a complaint that the trial court considered evidence outside of the record?

Holding:

Yes. There is no authority to support a claim that the trial court considering improper evidence violates a right so fundamental to the proper functioning of the adjudicatory process that it does not need to be preserved. The Court of Criminal Appeals has not decided whether a party must preserve error on an argument that the trial judge was not neutral. To the extent that this is an evidentiary complaint, preservation of error is required. In this case, the court presumed for the sake of argument that preservation was not required to reach the merits and concluded that the trial court did not, in fact, consider evidence outside the record. Read opinion.

Commentary:

The court held in the alternative that the record did not show the trial judge considered matters that were outside the record. The defendant in this case will certainly use the Proenza decision above to argue he was not required to preserve his claim by objection.

Texas Attorney General Opinions

KP-0173               11/14/17

Issue:

May an attorney serving a county pursuant to a collection contract under Art. 103.0031 of the Code of Criminal Procedure collect delinquent restitution owed to a crime victim?

Response:

If a court serving the county orders a defendant to make restitution to a crime victim and payment is delinquent, a commissioners court may refer the matter to a private collections attorney under contract with the county pursuant to Art. 103.0031(a)(l)(A) of the Code of Criminal Procedure. Read opinion.

Announcements

There will be no case summaries next week. Happy Thanksgiving!

Court of Criminal Appeals of Texas

Gibson v. State

No. PD-1043-16                11/8/17

Issue:

Is a trial objection asserting a specific ground not included in an earlier suppression motion sufficient to preserve a claim of error?

Holding:

Yes. To preserve a complaint for review, a party must present a timely objection or motion to the trial court stating the specific grounds for the ruling desired. A trial objection is sufficient to make the trial judge aware of the basis of the objection. It is not relevant that the basis of the objection was not raised in an earlier motion to suppress. The claim of error is preserved as long as the claim on appeal corresponds with the trial objection. Read opinion.

Concurrence (Keller, P.J.):

The defendant’s brief to the court of appeals incorrectly stated that the motion to suppress was re-litigated at trial. The motion was not relitigated, but the defendant did make a trial objection that preserved the claim of error. The court of appeals was justified in relying on the motion to suppress to find the claim was not preserved because it was misled by the defendant’s brief. Nevertheless, the defendant did include a citation to the portion of the record where the new claim was raised at trial and is entitled to have the claim reviewed on the merits. Read opinion.

Commentary:

Do not let this opinion deter you from raising the issue of preservation when briefing an appeal. Just make sure you brief the merits as well. The lesson in this case is that there may be multiple ways for a defendant to preserve and multiple points within a criminal prosecution where the error may be raised.

Hallmark v. State

No. PD-1118-16                11/8/17

Issue:

Can a plea agreement include a term that if the defendant does not appear at sentencing the judge will sentence within the entire range of punishment, rather than the agreed number of years?

Holding:

Yes. A “sentencing-within-the-full-range-of-punishment” condition can be a part of the plea agreement as a remedy for partial breach of the agreement’s terms. The judge is following the plea agreement when considering the full range of punishment after the defendant fails to appear for sentencing, and the defendant has no right to withdraw the plea. Here, there is no indication that the judge improperly participated in the plea negotiations, but in any case, an objection to the judge’s involvement must be made at the time the plea is entered to preserve error. Read opinion.

Dissent (Walker, J.):

The “sentencing-within-the-full-range-of-punishment” condition was not a part of the plea agreement. The trial court rejected the plea agreement when it declined to sentence the defendant to the agreed-upon term after the defendant failed to appear at the sentencing hearing. The defendant should be allowed to withdraw her guilty plea because she objected to the court’s rejection of the plea agreement. Read opinion.

Commentary:

Allowing a defendant facing a sentence of confinement to return later to start that sentence is always dangerous. The plea bargain term used here is a prudent way to protect your case from a defendant who has second thoughts about that pending sentence.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Hurricane Harvey Relief Fund

The donation period for the Foundation Hurricane Harvey Disaster Relief Fund is now closed. On behalf of the board of Trustees of the Texas District and County Attorneys Foundation, thanks to everyone for your generous contributions to the fund. In the coming weeks those in our profession hit hardest by the storm will receive help from you – prosecutors and prosecutor offices from Texas and around the country. Well done!

Court of Criminal Appeals of Texas

Ex parte Macias

No. PD-0480-17                11/1/17

Issue:

Does a trial court have jurisdiction to conduct a trial before the appellate mandate following a state interlocutory appeal is issued?

Holding:

No. Under Rule of Appellate Procedure 25.2(g), all proceedings in the trial court are suspended once the record is filed in the appellate court. The trial court resumes jurisdiction only once it receives the appellate court mandate. Where a trial court started a trial before the appellate court mandate issued but dismissed the jury before the case was complete, the defendant was not put in double jeopardy by a later trial because jeopardy does not attach if the trial court lacks jurisdiction over the case. Read opinion.

Commentary:

This case will come in handy if a trial court attempts to move on with a case when the State has taken an appeal.

Owings v. State

No. PD-1184-16                11/1/17

Issue:

Can an error in failing to require election of the specific incidence of sexual abuse relied on by the State be harmless?

Holding:

Yes. A constitutional error is harmless only if the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. When all the instances of sexual abuse are recounted by the same source—the victim—the four purposes underlying the requirement for an election are still met. The defendant is not entitled to protection from the introduction of extraneous offenses that involve the victim. In this case, the repeated incidences of sexual abuse were described by the victim with equal specificity, so there is no risk that the jury “added up” the repeated incidents without finding any individual incident was proven beyond a reasonable doubt. Also, there is no risk that the defendant was deprived of adequate notice of which offense to defend against because his defense was a blanket denial that any incident of sexual abuse occurred. The issue at trial was whether the victim was credible. Additional acts of sexual abuse described by the victim did not make her testimony more or less credible. Read opinion.

Concurrence (Yeary, J.):

The test for constitutional error “is the test this Court deemed in Phillips v. State, 193 S.W.3d 904, 913-14 (Tex. Crim. App. 2006), and Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006), to be appropriate for judging the harm inflicted by election errors. Although this may not be the case in which to revisit Phillips, I write to suggest that, on some future occasion, the Court should take a second look to determine whether it might be more appropriate to apply the standard for harm governing non-constitutional errors in this context.” Read opinion.

Concurrence (Walker, J.):

“Our bedrock procedural protections are not designed for situations such as the case before us involving generic, undifferentiated, ongoing acts of sexual abuse of young children.… Penal statutes, such as the aggravated sexual assault statute involved in this case, are intended to criminalize one discrete criminal offense at one discrete moment in time.” (Internal quotations omitted). The legislature enacted Penal Code §21.02, criminalizing continuous sexual abuse of a young child or children, designed for cases like this one. If the defendant was charged under this statute, the issues involving election of offenses could have been avoided. Read opinion.

Commentary:

This opinion will be of primary interest to prosecutors handling appeals because it is a great roadmap for how to argue an election error in a sexual abuse case was harmless. Prosecutors handling these trials, however, should focus on the error in the case that caused the reversal on appeal—know when you must make an election and learn how to do it. Or, if you think an election will be difficult, consider Judge Walker’s advice and charge the case as continuous sexual abuse instead so that you need not make an election.

Texas Courts of Appeals

Aguillen v. State

No. 06-17-00004-CR        10/31/17

Issue:

May extraneous-offense evidence of physical abuse against a victim’s siblings be admitted under Code of Criminal Procedure Art. 38.37 §2(b) in a trial for indecency with a child?

Holding:

No. Evidence of extraneous offenses committed by the accused against third parties may only be admitted if the extraneous offense is one specifically delineated in Code of Criminal Procedure Art. 38.37, §2(a)(1)-(2), which all involve sexual misconduct of some sort. Evidence of physical abuse against third parties has no connection to the charged offense of indecency with a child. The extraneous-offense evidence was also substantially more prejudicial than probative because evidence that the defendant physically assaulted the victim’s siblings does not make any element of indecency with a child more or less probable. Read opinion.

Commentary:

Keep in mind that extraneous offenses committed against the victim are admissible under Code of Criminal Procedure Art. 38.37, §1. This deals only with extraneous offenses against third parties. Although the court erred by admitting evidence of non-sexual abuse against the victim’s siblings, evidence of physical abuse toward the victim was properly admitted.

State v. Norris

No. 14-16-00455-CR        10/31/17

Issue:

Has a defendant unequivocally and unambiguously invoked his right to counsel by stating he would like to call his sister so she can look for a lawyer?

Holding:

No. Not every mention of a lawyer constitutes an invocation of a right to counsel. Officers are not required to stop the interrogation, or even seek clarification, for an ambiguous or equivocal statement about a lawyer. A forward-looking statement about contemplating the process of obtaining a lawyer does not unequivocally and unambiguously invoke the right to counsel. Read opinion.

Commentary:

An interesting aspect of this opinion is the competing interpretations of what the suspect said in the video recording of the interrogation. The Court examines both interpretations and holds that neither was a clear invocation of the right to counsel.

Hurricane Harvey Relief Fund – give today!

In the wake of Harvey’s devastating impact on our state, the Board of the Texas District and County Attorneys Foundation has started a relief fund to assist those prosecutor office staff members who have suffered losses. 100 percent of your donation to the fund will go directly to those who have suffered hurricane and flood damage. The campaign runs until October 31, so please help out! Please click here to help those in our profession who need your help! And if you have suffered loss and are seeking assistance, click here to download the application form. If you have any questions, call Rob Kepple at 512/474-2436.

Court of Criminal Appeals of Texas

State v. Elrod

Nos. PD-0704-16 to -0706-16      10/25/17

Issue:

Can a search warrant be supported on a tip from a named informant of unknown reliability?

Holding:

Yes. A supporting affidavit that specifies a named informant as the source of information is sufficient to support probable cause when the tip contains enough particularized facts to suggest direct knowledge on the informant’s part. The determination does not rely on a presumption of reliability, but on the extent and detail of the informant’s statement. Read opinion.

Commentary:

This is a unanimous decision that really should not have been necessary. It has long been the law in Texas that a named informant, even a criminal one, can provide probable cause for a search warrant. It is only necessary that the information is sufficiently detailed and that the affidavit reveals the informant’s direct knowledge. The court’s decision addresses each of the problems that the trial court had with the affidavit. Excellent job by the State in prevailing in this State’s appeal.

Texas Courts of Appeals

Saldivar v. State

No. 14-16-00888-CR        10/19/17

Issue:

Does a judgment that is void due to a sentence outside the statutory punishment range require a guilty plea to be set aside?

Holding:

No. When a judgment following a guilty plea is successfully challenged, the appropriate remedy is specific performance of the plea. If specific performance is not possible, the appropriate remedy is withdrawal of the plea so that both parties return to their original positions. A mutual mistake of law regarding the applicable range of punishment means that the plea cannot be enforced as the parties originally intended and must be set aside. When all parties understood and agreed to the correct range of punishment but the court failed to impose a mandatory fine, the plea can be enforced as intended by holding a new hearing on punishment only. Read opinion.

Commentary:

This is an interesting decision because the court distinguishes the recent decision of Thomas v. State, 516 S.W.3d 498 (Tex. Crim. App. 2017), instead of following it, as suggested by both parties in this case. The court extensively analyzed Thomas and found that this defendant could indeed receive specific performance with a new punishment hearing in which the mandatory fine could be assessed. A withdrawal of the guilty plea is not necessary because the defendant was correctly admonished as to the mandatory fine being part of the range of punishment. It is possible that the Court of Criminal Appeals will review this decision because Thomas is so recent, but it could still hold up.

Announcements

TDCAA is now shipping its 2017 code books. For more information or to place an order, visit http://www.tdcaa.com/publications.