Texas Courts of Appeals

Ramjattansingh v. State

No. 01-15-01089-CR        8/10/17

Issue:

Is a breath test showing a BAC over .15 two hours after the defendant stopped driving sufficient to prove that the defendant’s BAC was over .15 “at or near the time of the offense?”

Holding:

No. The results of a breath test taken two hours after arrest is not sufficient to determine the BAC at the time of driving without retrograde extrapolation. Penal Code §49.04(d) requires the State only to prove a BAC over .15 at the time of testing, not at the time of the offense. However, if the State invites error by including “at or near the time of the offense” in the information and jury charge, it will be held to the higher burden of proof. Read opinion.

Commentary:

This case is governed by its unique facts, but it is troubling because one could certainly find cases in which a defendant was administered a breath or blood test in a similar time frame. Nevertheless, the court of appeals held, “Given the impact that the passage of time has on a defendant’s alcohol concentration, a two-hour interval is not close enough in time to an alleged instance of drunk driving to qualify as near the time of the offense, at least not on this record.” That is a little troubling and surprising. Perhaps this case will be restricted to its unique facts, but not all of this opinion rings true.

Hernandez v. State

No. 01-16-00755-CR        8/10/17

Issue:

May a first conviction under Penal Code §22.01 be labelled as “assault-family violence” although not subject to enhancement?

Holding:

Yes. The terms “assault-family member” or “assault-family violence” are descriptive only. There is no requirement that only the title of the offense as identified in the Penal Code be used in the judgment. As long as the description of the offense is accurate, “pedagogical precision” is not required. Read opinion.

Concurrence (Keyes, J.):

Designating a first assault conviction as “assault-family violence” is not only allowed but also serves an important function in the law. This designation gives the defendant notice of the full nature of the crime and the potential consequences. It also serves as proof of a conviction involving family violence to enhance later charges or in child custody proceedings. The best practice to meet the requirements of Code of Criminal Procedure Art. 42.01 is to give an accurate description of the offense. Stating that the defendant was convicted of assault of a family member fully complies with this practice. Read opinion.

Commentary:

There is nothing wrong with the lead opinion, but in her concurring opinion, Justice Keyes actually presents the stronger argument. It is not at all unusual to designate the misdemeanor offense as assault-family violence. And, as noted by Justice Keyes in her concurrence, the trial judge is actually required to make an affirmative finding of family violence by Article 42.013. As a practical matter, it is helpful to future prosecutors and judges to so designate the misdemeanor offenses because—as we all know—domestic violence offenders are often very likely to reoffend. Their punishment will need to be enhanced with the next domestic violence offense, and this designation in the misdemeanor judgment is the easiest way to make that happen. This is a very helpful domestic violence decision, and there is a thorough discussion regarding the admissibility of the contents of a 911 call over a confrontation objection.

Foster v. State

No. 05-15-01539-CR        8/11/17

Issue:

Does a missing reporter’s record of the punishment phase of trial entitle the defendant to a new punishment hearing?

Holding:

No. Under Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003), to be entitled to a new trial due to a missing record the defendant must show: 1) he timely requested the reporter’s record, 2) a significant portion of the record has been lost or destroyed through no fault of his own, 3) the missing portion of the record is necessary to his appeal, and 4) the parties cannot agree on the record. A mere assertion that the missing record could potentially assist on appeal is not sufficient to show that the record is necessary for resolution of the appeal. Routier reversed Kirtley v. State, 56 S.W.3d 48 (Tex. Crim. App. 2001), in which a bare assertion that the missing record might show ineffective assistance of counsel was sufficient to grant the defendant a new hearing. Read opinion.

Concurrence (Schenck, J.):

The missing record of the sentencing phase of trial does not support presumed harm or reversal under Routier. The decision of punishment is a normative, discretionary function that is different from the guilt-innocence determination. There is a presumption that trial counsel was competent and the presiding judge was impartial. The defendant is required to do more than merely suggest the missing portion of the record might have revealed reversible error to overcome the presumption of regularity in the punishment proceedings. Read opinion.

Dissent (Brown, J.):

The defendant is entitled to a new punishment hearing because there is no record of the punishment phase of the trial, and the record is necessary to resolve his appeal. The absence of any record constitutes a fundamentally unfair proceeding. Routier is distinguishable from Kirtley because Routier had a transcript of the missing record. The court should follow the decision in Kirtley and grant a new punishment hearing because, like Kirtley, the defendant has no record at all of the punishment phase of his trial. Read opinion.

Commentary:

In this case, punishment was determined by the trial judge after a 30-minute proceeding. The same judge who presided over that proceeding also presided over the hearing regarding the lost record. This decision appears to be consistent with Nava v. State, the most recent decision from the Court of Criminal Appeals regarding a portion of lost record. Nevertheless, because there is an obvious division of opinion among the court of appeals justices, expect the Court of Criminal Appeals to review this decision.

French v. State

No. 11-14-00284-CR        8/10/17

Issue:

Is a jury unanimity instruction required when the charge includes disjunctive language of two distinct criminal acts within aggravated sexual assault of a child?

Holding:

Yes. A defendant may face prosecution for aggravated sexual assault of a child for penetration of separate orifices, even during the same transaction. Each section of Penal Code §22.021 constitutes a separate criminal act. If the charge contains disjunctive language (i.e. “or”) alleging more than one criminal act, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees that the defendant committed a single, specific criminal act. Read opinion.

Commentary:

Any time that prosecutors try a child molestation case, think seriously about including a unanimity instruction in the jury charge. And then think about it again. Such instructions are often necessary when the State is prosecuting the defendant for something other than continuous sexual abuse of a child. That said, the evidence in this case was not particularly strong regarding an alternate means of molesting the victim—penetration of the victim’s sexual organ. The evidence focused almost entirely upon the penetration of her anus.  Even though the defense raised an objection at trial, it seems unlikely that the defendant was harmed by any error in the jury charge.

Kou v. State

No. 04-16-00346-CR        8/16/17

Issue:

May a nurse or doctor testify about medical lab test results consistent with the Confrontation Clause?

Holding:

No. A lab report is testimonial in nature and the analyst who wrote it must testify to admit it into evidence. A nurse or doctor may testify about symptoms she observed or about her independent opinions and conclusions, including diagnoses, but may not act as a surrogate of the analyst to introduce lab results into evidence. Read opinion.

Commentary:

In a very thorough opinion, the court found the error in admitting the results of the lab report to be harmless. The evidence was admitted in the context of a SANE nurse’s expert testimony—which was otherwise admissible—but she was essentially repeating the lab report results that had been developed by a non-testifying analyst. 

State v. Aguilar

No. 04-16-00689-CR        8/16/17

Issue:

Can a CPS Special Investigator act as an agent of law enforcement when interviewing a defendant after his arrest?

Holding:

Yes. When a child has been or may become the victim of a criminal offense, the Texas Family Code mandates a joint investigation by law enforcement officials and CPS. A CPS investigator is not presumed to be an agent of law enforcement based merely on a joint investigation. However, the actions and perceptions of the parties involved may indicate that a CPS investigator is acting on behalf of law enforcement and is bound by all constitutional and statutory limitations on interrogation. There was sufficient evidence to establish an agency relationship when the special investigator met with detectives at the crime scene, was allowed to listen in on police interrogations, allowed police officers to listen in on his interview, which took place in the police interrogation room, and there was no substantive civil-action purpose for interviewing the defendant. Read opinion.

Commentary:

This is a very thorough decision regarding whether a CPS investigator was a law enforcement agent when she was conducting a joint investigation with law enforcement after a child had been killed. If there is a situation in which a similar interrogation has been conducted, read this decision to determine if the defendant should have been informed of his rights prior to the interrogation.

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Texas Courts of Appeals

Paz v. State

No. 01-15-00979-CR        8/3/17

Issue:

Is the erroneous omission of a jury instruction on voluntariness reversible error?

Holding:

Yes. A jury instruction is required when some evidence regarding the voluntariness of a defendant’s statement is presented, even if the judge correctly denied a motion to suppress the statement. The evidence presented must merely be sufficient for a jury to reasonably find that the statement was involuntary. If the defense does not object to exclusion of the instruction on voluntariness, the defense must show egregious harm for reversal. The defendant in this case suffered egregious harm because his statement to police was a key part of the State’s case and was emphasized heavily during closing arguments. Read opinion.

Commentary:

It is rare that a conviction is overturned because of jury charge error when the defendant did not object to the jury charge. This case should encourage prosecutors to think about the trial court’s charge to the jury when the defendant’s statement to the police has been introduced into evidence. Even though the defense raised no objection to the absence of an instruction on voluntariness, he is entitled to it if any evidence raises the issue of voluntariness. The court’s opinion also emphasizes that Article 38.22 of the Code of Criminal Procedure provides broader protection to a defendant than the United States Constitution. 

State v. Medina

No. 04-16-00199-CR        8/9/17

Issue:

Is the provision of alcohol along with a receipt sufficient to prove that a “sale” of alcohol has occurred?

Holding:

Yes. Under Texas Alcoholic Beverage Code §101.63(a), a person sells an alcoholic beverage by providing another person with an alcoholic beverage in exchange for consideration. A “receipt” is a writing marking a bill as paid. A trier of fact could reasonably infer that the defendant sold alcoholic beverages to an intoxicated person when the defendant took an order from an intoxicated woman, delivered the drinks to her table, and handed the woman a receipt. Read opinion.

Commentary:

This is a helpful and thorough decision on what constitutes a “sale” of an alcoholic beverage. This particular offense may be prosecuted rarely, but this decision should also help in construing the evidence in other similar prosecutions. Good job by the State in fighting the trial court’s ruling in this State’s appeal.

Texas Attorney General Opinions

No. KP-0157       8/3/17

Issue:

May relatives of a public official perform uncompensated work for the official’s office without violating nepotism laws if the relatives receive reimbursement of actual expenses or a per diem expense payment?

Conclusion:

Yes. Section 573.041 of the Government Code prohibits a public official from appointing certain relatives to positions compensated with public funds. The reimbursement of expenses, however, is not compensation. Thus, a public official may appoint a close relative to a volunteer position that provides reimbursement for incurred expenses but no compensation. Read opinion.

Commentary:

This opinion is consistent with previous treatment of this issue—that reimbursement for expenses does not constitute compensation, even indirectly. In a footnote, the opinion does suggest that paying a per diem rate for expected expenses could be problematic because it might be viewed as compensation, as opposed to reimbursement.

No. KP-0158       8/8/17

Issue:

May the State obtain a waiver of a defendant’s right to seek expunction of the arrest record for the offense for which it places the defendant in pretrial diversion?

Conclusion:

Yes. Article 1.14 of the Code of Criminal Procedure allows a person to waive the right to seek expunction of arrest records and files as a condition in a pretrial diversion agreement, provided the waiver is voluntarily, knowingly, and intelligently made. Read opinion.

Commentary:

This is a brief opinion, short and to the point. This should help offices in administering a pre-trial diversion (or intervention) program, which is becoming a more common part of the criminal justice system (as is expunction).

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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].

Texas Courts of Appeals

Phillips v. State

No. 01-16-00653-CR        7/27/17

Issue:

Is an officer’s expert opinion testimony about a defendant’s gang affiliation based on tattoos and self-admission reliable and relevant evidence during the punishment phase of trial?

Holding:

Yes. The behavior of gangs and gang members is an accepted area of expert testimony. Gang affiliation is relevant character evidence during the punishment phase of trial. Expert testimony does not need to be based in science but can apply to technical or other specialized knowledge. An officer’s expertise can be based on experience and training while working in gang investigation units and conversations with gang members. Documentation of gang membership through rosters or dues payments is not required for a reliable expert opinion on gang affiliation. Self-admission and gang-related tattoos are frequently relied upon by law enforcement to identify gang members, and an officer may properly rely on them to form an expert opinion regarding gang affiliation. Read opinion.

Commentary:

It is not uncommon for an officer to testify concerning gang affiliation, gang tattoos, or the nature of a particular gang. This case represented a more sophisticated attack upon the officer’s expert testimony, so the court’s decision should be helpful in future gang prosecutions.

Ballard v. State

No. 01-15-00671-CR        7/25/17

Issue:

Must documents incorporated by reference in an affidavit be delivered to the person whose premises are to be searched prior to the start of the search?

Holding:

No. An incorporated affidavit is not required to be attached to the warrant at the time of execution of the search. Unless a defendant can show prejudice, failure to include the attachments at the time that the warrant is executed does not require suppression of the evidence. To show harm, a defendant must demonstrate that the search revealed evidence that would not have been uncovered under the full scope of the warrant including attached affidavits. Read opinion.

Commentary:

The court of appeals in this case relied upon two other decisions that involved incorporation by reference in the search warrant context. The court also refused to extend a United States Supreme Court decision to prevent incorporation by reference. Incorporation by reference should normally not be necessary, but if it has occurred in a case, this decision should help with the defendant’s motion to suppress.

Golliday v. State

No. 02-15-00416-CR        7/27/17

Issue:

Does preventing the defense from offering evidence concerning a sexual assault complainant’s drug use, statements made during medical treatment, and medical history violate the defendant’s constitutional rights to present a defense?

Holding:

Yes. The court should not have prevented the defense from offering evidence of a history of mental health problems and eliciting testimony about statements the complainant made concerning her recollection of the events that night. This prevented the defense from properly impeaching the complainant by challenging her ability to accurately perceive and remember the events of that night. It also impeded the defense’s ability to offer medical reasons for the complainant’s condition that night. These hindrances effectively deprived the defendant of his constitutional rights to due process, to confront his accusers, and to offer a defense. Read opinion.

Dissent (Livingston, J.):

The defendant’s offer of proof of excluded evidence was not sufficient to preserve his complaints for review. The defendant was required to specifically raise the complaints of violation of his constitutional rights, and failure to do so was a waiver of the complaints. The court should not reach the merits of the appeal. Read opinion.

Commentary:

The issue in this very complicated case boils down to whether the defense’s objection at trial was sufficiently specific to alert the trial court to an argument that his constitutional rights were being violated by the exclusion of the proffered evidence. Neither opinion deals very extensively with whether this evidence was inadmissible under the Rules of Evidence. The majority opinion largely deals with the admissibility of the evidence under constitutional authority, and the dissenting opinion discusses whether that constitutional claim was properly raised at trial. The dissenting opinion does not suggest that this evidence was inadmissible, so trial prosecutors might seriously consider allowing a defendant to present such evidence, regardless of how it might damage a complaining witness in front of the jury. This is a very divided decision from an en banc court on the State’s motion for rehearing. There is a better-than-average chance that the Court of Criminal Appeals may wish to review this decision, but such a review may deal only with preservation of error.

Jones v. State

No. 01-15-00717-CR        8/01/17

Issue:

Does preventing the defense from cross-examining a witness about biases violate the defendant’s constitutional rights under the confrontation clause?

Holding:

Yes. The defendant’s right to confront the witnesses against him includes the right to cross-examine witnesses about their testimony and impeach them about biases or ulterior motives. Interest in the outcome of a child custody determination is a valid area for exposing bias through cross-examination. Because the witness was the sole eyewitness to the charges of family violence and had an interest in the pending child custody suit against the defendant, the court erred in excluding cross-examination about that interest, and the defendant was entitled to reversal. Read opinion.

Dissent (Brown, J.):

The defendant’s offer of proof was substantively and procedurally defective because it failed to show bias stemming from the child custody proceedings and to segregate admissible evidence from inadmissible evidence. Because of these defects, the defendant did not preserve error and the court should not reach the merits of the appeal. Read opinion.

Commentary:

In support of its holding, the majority opinion relies upon two other appellate court decisions where the courts had held that similar testimony was admissible. As with the above decision, the presence of a dissenting opinion might make it more likely that the Court of Criminal Appeals will review it, but, once again, such a review might not include a decision on the merits, but on preservation only. Prosecutors should be cautious about objecting too strenuously to the admissibility of such evidence.

State v. Ruiz

No. 04-16-00226-CR        7/26/17

Issue:

Does the exclusionary rule require suppression of evidence obtained from a cell phone when a private citizen searches the phone and seizes it as evidence without committing any criminal offense?

Holding:

No. Texas’ exclusionary rule (Code of Criminal Procedure Art. 38.23) is not implicated when a private citizen acts in violation of the warrant requirement but violates no law while doing so. In this case, after students complained that a substitute teacher was taking “up-skirt” photos of female students, the school principal called the substitute teacher into his office and asked to see his phone, telling the teacher that he was going to turn the phone over to law enforcement. The teacher admitted “he had a problem” and that he had inappropriate images on his cell phone. Law enforcement later got a warrant to search the contents of the phone. The court held that because the school official did not violate any laws, the evidence acquired from the phone should not be suppressed. Read opinion.

Dissent (Martinez, J.):

In Texas, the warrant requirements of the 4^th Amendment apply to the actions of private citizens. Because a police officer “standing in the shoes” of the school official could not have looked through the defendant’s phone without a warrant or exigent circumstances, neither could the school official. Because there was no warrant and no exigent circumstances at the time of the school official’s search, the evidence obtained from the phone should be suppressed. Read opinion.

Commentary:

Even though the trial judge granted the defendant’s motion to suppress, the court found that the school principal was a private individual. The court of appeals gave deference to that finding and then went on to apply what is now well-settled law regarding the actions of private individuals in conducting searches. Article 38.23 of the Code of Criminal Procedure applies to private individuals, but if there is no violation of the law—as in this case—that statute cannot be used to exclude the evidence that the private individual uncovered. This should be a very helpful decision, and it should hold up on petition for discretionary review, notwithstanding the dissenting opinion.

Harris v. State

No. 04-16-00681-CR        7/26/17

Issue:

Is physical proximity of a hidden firearm to the defendant sufficient evidence to establish a link between the firearm and the defendant’s possession of it?

Holding:

No. When a firearm is not found on or in the exclusive possession of a defendant, the State must produce evidence affirmatively linking the defendant to the firearm to prove possession. It is not sufficient to simply show that the firearm was found in close proximity to the defendant. A defendant’s prior criminal history—violent or otherwise—also may not be used to infer possession. Read opinion.

Commentary:

The gun in this case was in a bag on the floorboard directly in front of the defendant and in between his feet. It should have been reasonable for a juror to find that the bag belonged to the defendant and that the contents of the bag were also the defendant’s. Let’s hope this decision can get overturned by the Court of Criminal Appeals.

Alvarez v. State

No. 11-16-00176-CR        7/27/17

Issue:

Does a sentence of 40 years for conviction of a first-degree felony of possession of a controlled substance with intent to deliver violate the 8^th Amendment prohibition against cruel and unusual punishment?

Holding:

No. A sentence that falls within the statutory range of punishment is presumed not to be excessive, cruel, or unusual. A sentence of 40 years falls within the statutory punishment range of 5–99 years or life for a first-degree felony. A sentence may still be cruel and unusual punishment, even when within the statutory range, if it is grossly disproportionate to the offense. However, this fact-specific exception is “exceedingly rare” and will almost never be found outside the context of capital punishment. Read opinion.

Commentary:

It is a rare case in which an appellate court will address such an issue on appeal because the defense will invariably raise no objection to the sentence at trial—as was the case with this defendant. The court of appeals nevertheless addressed the issue on the merits, and its analysis is brief, but it will certainly hold up on further review. It is also a very rare case in which a defendant’s sentence is found to be cruel and unusual.

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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].

Texas Courts of Appeals

Gamero v. State

No. 08-15-00280-CR        7/19/17

Issue:

May an officer search a car under the automobile exception to the warrant requirement if other officers had probable cause to believe the car contained drugs but the car was moved to the police impound lot prior to the search?

Holding:

Yes. Under the automobile exception, law enforcement officers may conduct a warrantless search of a car if there is probable cause to believe that the car contains contraband. The officer conducting the actual search of the car could rely on the collective knowledge of the other officers who discovered the probable cause to search the car. The fact that a car is impounded at the time that probable cause develops does not inhibit an officer’s right to conduct the warrantless search. In this case, officers had probable cause that drugs were inside the car based on a drug-detection dog’s alert. A canine sniff by a drug-dog is not a 4^th Amendment search as long as the officer and the dog have a right to be where they are at the time of the sniff. Read opinion.

Commentary:

This is a straightforward application of the “collective knowledge” rule and the automobile exception.

Garcia v. State

No. 14-16-00242-CR        7/20/17

Issue:

Is the State’s failure to elect which alleged incident of sexual assault to submit to the jury reversible error?

Holding:

Yes. The election rule ensures a unanimous verdict as to one specific incident that constitutes the charged offense. It also prevents the risk that the jury might convict based on the cumulative crimes alleged rather than because one crime was proved beyond a reasonable doubt. When the State presents some evidence of at least two separate incidents of sexual assault, it must elect at the end of its case-in-chief which incident it will submit to the jury. Failure to do so is harmful error requiring reversal. Read opinion.

Commentary:

Here, the Court determined that there was evidence of two distinct sexual assaults on distinct dates by penetration, one in the bathroom and another in the bedroom. The State’s evidence of one of the instances was contradictory, and the trial court denied the defendant’s request for election. The lesson here is that weakness of the State’s evidence regarding a prosecutable act does not release it from the obligation to elect a prosecutable act on the defendant’s request when there are multiple prosecutable acts that fit within the offense alleged in the indictment. This 30-year-old offense must be tried again. The court also conducted a speedy trial analysis that will be useful in situations where the defendant was a fugitive from justice during the period of delay.

Announcements:

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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].

Texas Courts of Appeals

Almanza v. State

No. 10-16-00224-CR        7/12/17

Issue:

Does a trial court have jurisdiction over a juror who appears for jury duty although not actually summoned for jury service?

Holding:

Yes. The juror’s appearance and presentation for jury duty places her within and under the jurisdiction of the trial court for the purpose of serving as a member of the jury. Although she may not be the person actually summoned for jury service, this alone does not disqualify her from being a member of the jury. Read opinion.

Commentary:

An interesting decision. It was ultimately decided with little supporting authority, but the result seems correct.

State v. Martinez

No. 13-15-00592-CR        7/13/17

Issue:

May the State, without a search warrant, independently test a blood sample drawn from a defendant by a medical professional in the course of treatment?

Holding:

No. There are three separate stages in which a defendant’s 4th Amendment protections may be implicated with regard to blood alcohol tests: 1) drawing the blood sample, 2) testing the blood sample, and 3) obtaining the test results. Although the State may use a grand jury subpoena to receive medical records, including test results, or to seize a blood sample that has already been drawn, a search warrant is required before the State itself may conduct any tests. Read opinion.

Commentary:

This is an interesting decision where the court maneuvers through a gap in Hardy and Huse. If law enforcement ever has a question whether they can lawfully obtain evidence with a grand jury subpoena, they should resolve that question in favor of obtaining a warrant. But the State should be able to obtain a warrant to re-test the blood in this case because it is the test of the blood, not its seizure, that violated the 4th Amendment.

Ex Parte Eribarne

No. 09-17-00036-CR        7/19/17

Issue:

Is the retaliation statute (Penal Code §36.06) overbroad on its face in violation of the 1st Amendment?

Holding:

No. Penal Code §36.06(a)(1)(A) provides that “a person commits an offense if the person intentionally or knowingly harms or threatens to harm another by an unlawful act … in retaliation for or on account of the service or status of another as a … public servant.” This statute does not implicate 1st Amendment protections because it punishes conduct—making threats—not the content of speech alone. The strict scrutiny standard for assessing constitutionality therefore does not apply, and the relationship to the State’s legitimate interest in protecting public servants from harm meets the rational basis test. Read Opinion.

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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].

Texas Courts of Appeals

In re Clendennen

No. 10-16-00427-CR        7/5/17

Issue:

May a defendant seek a writ of mandamus from a denial of a motion for recusal? When may a trial court disqualify a district attorney on the basis of a conflict of interest?

Holding:

“Relator’s petition for writ of mandamus is denied.” Read opinion.

Concurrence (Gray, J.):

Mandamus is an extraordinary legal remedy that should be utilized only when no other adequate legal remedy exists. An appeal is usually an adequate legal remedy for trial court errors, including denial of a motion for recusal. Furthermore, a petition for mandamus is premature when there is an insufficient record to determine whether a claimed dispute is material to the case and whether only the district attorney’s testimony can resolve that dispute. Read opinion.

Concurrence (Davis, J.):

The resolution of this petition rests on the discretion exercised by the district attorney and by the trial court. A prosecutor abuses his discretion and may be disqualified for a conflict of interest only when the conflict rises to the level of a due process violation. The standard of review for disqualification of a prosecutor by a trial court is whether the trial court abused its discretion. Neither the district attorney’s actions nor the trial court’s ruling constitutes an abuse of discretion. Read opinion.

Commentary:

It is extraordinarily difficult to remove an elected prosecutor from a case, and there are sound policy reasons for that. When to recuse an office is an issue largely reserved to the discretion of the prosecutor. The disparate opinions from the court of appeals in this case offer little guidance on when an elected district attorney should recuse.

Price v. State

No. 14-15-00987-CR        7/11/17

Issue:

Does a juror who falsely denies having seen news coverage about the case during trial become “disabled” within the meaning of Code of Criminal Procedure Art. 36.29?

Holding:

No. There is a distinction between a venireperson being disqualified and a juror being disabled from sitting. Although lying to the court would have made a venireperson subject to a challenge for cause, it does not render a juror disabled from sitting. Neither does the definition of disability include juror misconduct. The fact that the juror denied having watched the news coverage, but stated he could still be fair and impartial, does not qualify as a “mental condition” or “emotional state” that would render him disabled. Read opinion.

Concurrence (Christopher, J.):

The judge could have concluded that the juror was disabled because lying and withholding evidence from the court is a condition that “potentially inhibits a juror from fully and fairly performing the functions of a juror.” However, the appellate court may reverse the trial court’s ruling only if it is an abuse of discretion, which this was not. Read opinion.

Commentary:

Trial courts can seat up to four alternate jurors in felony cases and up to two alternate jurors in misdemeanor cases. (Tex. Code Crim. Proc. Art. 33.011). More and more we see jurors doing things they should not do during trial, and they still get sick, have deaths in the family, and learn during trial that they actually know parties and witnesses. Retrials are hard; seating alternate jurors is easy. Prudence dictates that we request courts to seat alternate jurors. Keep an eye on this case—the issue may catch the interest of the Court of Criminal Appeals.

Cameron v. State

No. 04-12-00294-CR        7/12/17

Issue:

Is the public wrongfully excluded from voir dire when everyone present was asked to leave the courtroom to accommodate the large venire panel and was not able to return due to space concerns?

Holding:

Yes. The 6^th Amendment right to a public trial extends to voir dire. Violation of the right to a public trial is a structural error that does not require a showing of harm. The defendant must show that the trial was closed to the public, and if this burden is met, then the reviewing court must determine if the closure was justified. In this case, when all spectators present before the start of voir dire were asked to leave to seat the panel and not allowed back in on request because there was no available seating, the trial was closed to the public. The closure is not justified when the court fails to consider all reasonable alternatives, such as dividing a large venire panel to reduce courtroom congestion. Read opinion.

Dissent (Angelini, J.):

The defense failed to meet its burden to prove that the voir dire was not open to the public. The trial court’s findings show that the courtroom was cleared to seat the venire panel, but the bailiffs did not tell spectators that they would be excluded from watching proceedings. Read opinion.

Commentary:

It is possible this case will make another trip to the Court of Criminal Appeals because of the dissent and because the Court of Appeals ruled that the trial court’s findings were unsupported. What prosecutors should take from this case is the need for situational awareness in the courtroom. Prosecutors need to know what the bailiffs and judge are doing, and if they are closing the court to spectators in voir dire, we need to speak up. If there is a big trial coming up where you know there is large community and media interest, you may need to get with the judge ahead of time and plan how to accommodate observers during voir dire.

Alberty v. State

No. 06-16-00204-CR        7/11/17

Issue:

Are certified copies of judgments of conviction, mug shots, and witness testimony sufficient evidence to link a defendant to prior offenses when non-corresponding fingerprint cards were inadvertently included in the penitentiary packets?

Holding:

Yes. The State must prove two elements beyond a reasonable doubt to establish that a defendant has been convicted of a prior offense: 1) a prior conviction exists, and 2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove these elements, but “evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means” to prove a prior conviction. Read opinion.

Commentary:

A messed-up pen packet is better than no pen packet at all. This case shows the need for a better system to prove up prior criminal convictions. It seems silly that we have electronic submission of cases by law enforcement, electronic filing of documents by attorneys, and digital video in court rooms, but only messy stacks of paper to prove that defendants are habitual offenders.

Announcements

Online registration for TDCAA’s popular Legislative Update series is now open! For more information or to register online, visit https://www.tdcaa.com/content/2017-tdcaa-legislative-updates

TDCAA is now taking pre-orders for its 2017 code books, which will begin shipping in August. For more information or to place an order, visit http://www.tdcaa.com/publications

Applications are being accepted for the National Computer Forensics Institute courses for prosecutors! For more information, visit http://www.tdcaa.com/announcements/national-computer-forensics-institute-courses-prosecutors

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].

U.S. Supreme Court

Jae Lee v. US

No. 16-327                           6/23/17

Issue:

Can a defendant be prejudiced by erroneous advice from his attorney during plea negotiations even when the chance of acquittal at trial is very small?

Holding:

Yes. The test for ineffective assistance during plea negotiations focuses on the defendant’s decision-making, which may not turn solely on the likelihood of conviction at trial. Here, the defendant and his trial counsel both testified that deportation was the determinative issue. The erroneous advice that the defendant would not face deportation if he took the plea deal prejudiced the defendant because he has shown a reasonable probability that, if not for the erroneous advice, he would have insisted on going to trial. The very small probability of success at trial does not make it irrational for a defendant to risk a longer prison sentence for some chance to avoid deportation. Read opinion.

Dissent (Thomas, J.):

“I remain of the view that the Sixth Amendment to the Constitution does not ‘requir[e] counsel to provide accurate advice concerning the potential removal consequences of a guilty plea.’ Padilla v. Kentucky, 559 U. S. 356, 388 (2010) (Scalia, J., joined by THOMAS, J., dissenting). I would therefore affirm the Court of Appeals on the ground that the Sixth Amendment does not apply to the allegedly ineffective assistance in this case.”

Commentary:

This decision appears to have gutted an important argument against setting aside old pleas. The net result will seem to be more trials—after all, we cannot give non-citizens a better deal on a case than citizens.

Texas Court of Criminal Appeals

Ex parte Bowman

No. PD-0208-16                 6/28/17

Issue:

Does the defense counsel’s inability to remember whether he obtained payroll records of the arresting officer (who received time-and-a-half pay while testifying) bar the defendant’s claim that failure to obtain the records for impeachment was ineffective assistance of counsel?

Holding:

Yes. Because the defense attorney testified at the writ hearing that he could not recall whether or not he obtained the payroll records, the defendant cannot meet his burden of proving that his defense counsel failed to sufficiently investigate the arresting officer. Strickland has a presumption of adequate investigative assistance that the defendant fails to overcome. Read opinion.

Dissent (Alcala, J.):

It does not matter that the defense attorney cannot recall whether he obtained the records, because failure either to obtain or use the payroll records in trial constitutes ineffective assistance of counsel. The trial court’s findings stated that the arresting officer was the only witness to give an opinion that the defendant was intoxicated and that the State “substantially” relied on his testimony. Using the payroll records to impeach the arresting officer would have substantially undermined his credibility, and no reasonably competent attorney would have failed to obtain and use the records at trial. The defense attorney was ineffective either by failing to obtain the records or by failing to use them at trial to impeach the arresting officer. Read opinion.

Commentary:

This is a good decision for habeas prosecutors because it stands for the proposition that the defense does not meet its burden to prove a fact if the only evidence presented is that a witness “cannot remember” the fact. This happens often in old writs.

Ash v. State

No. PD-0244-16                 6/28/17

Issue:

Can a witness be an accomplice as a matter of law even when not charged with the same or a lesser-included offense as the defendant?

Holding:

Yes. A witness can also be an accomplice as a matter of law when: 1) the witness was charged with the same or a lesser-included offense, but the charges were dismissed in exchange for testimony against the defendant; (2) If the State charges a witness with the same offense as the defendant or a lesser-included of that offense, but dismisses the charges in exchange for the witness’s testimony against the defendant; or 3) the evidence is so uncontradicted or one-sided that no reasonable juror could conclude that the witness was not an accomplice. Read opinion.

Commentary:

Here, the Court attempts to resolve years of opinions using slightly different language. Whether the opinion succeeds in resolving this issue remains to be seen. A prudent prosecutor might choose not to object to the inclusion of accomplice witness instructions in cases like this one.

Ex parte Ingram

No. PD-0578-16                 6/28/17

Issue:

Are constitutional attacks on free-standing anti-defensive issues cognizable on pretrial habeas?

Holding:

No. Although a facial challenge to a statute defining the offense may ordinarily be brought on pretrial habeas, anti-defensive issues pose special complications which render them not cognizable even in a facial challenge. The defendant challenged the constitutionality of the pre-2015 online solicitation of a minor statute, including the application of subsection (d) which stated that certain facts are “not a defense to prosecution.” An anti-defensive issue becomes law applicable to the case only when some evidence at trial raises it. At the pretrial habeas stage, an anti-defensive issue is not law applicable to the case and cannot be challenged. Furthermore, pretrial habeas is an extraordinary remedy that is generally available only when resolution in the defendant’s favor would result in immediate release. Even if a freestanding anti-defensive issue was found to be unconstitutional on its face, this would not result in the defendant’s immediate release. Read opinion.

Concurrence (Alcala, J.):

“First, I do not agree with the portion of the majority opinion’s analysis as to the non-cognizability of some of the claims in the pretrial habeas application filed. … Unlike this Court’s majority opinion that determines that a portion of [the defendant’s] claims are noncognizable “anti-defensive issues,” I would decide all of his claims on the merits. Second, as to the merits of those claims, I would sustain [the defendant’s] complaint that the online solicitation of a minor statute, as a whole, is unconstitutionally vague, but I would delete the portions of the offending subsection that render the statute unconstitutional, and, as narrowly constructed, I would uphold the constitutionality of the statute.” Read opinion.

Commentary:

This decision is fairly esoteric and unlikely to affect your daily business as a prosecutor, nor does it answer that age-old question: how is the word cognizable pronounced?

Prichard v. State

No. PD-0712-16                 6/28/17

Issue:

May a deadly weapon finding be made for weapons used or exhibited against nonhumans?

Holding:

No. A deadly weapon finding may be made for human victims only. Although the statutory language is ambiguous with respect to whether it applies to nonhuman victims, extra-textual considerations indicate that the legislature did not intend to permit a deadly weapon finding for injury or death to a dog. Read opinion.

Concurrence (Keller, J.):

A holding that deadly weapon findings apply only to human victims is the only construction that avoids absurd results. Otherwise, for example, a fly swatter would be a deadly weapon because it is designed to kill flies. Read opinion.

Dissent (Yeary, J.):

The statute is not ambiguous, but it is very broadly defined. A deadly weapon may be found to be a deadly weapon regardless of the species of the victim. This definition would not result in absurdities as suggested by the concurrence because the obvious limiting principle would be to construe the statute so that the deadly weapon must be “manifestly designed” or “capable of causing” death to humans, regardless of the species of the victim it is used against. (Note: The dissent is not currently accessible on the Court website.)

Commentary:

Here is an opinion that will unite dog and cat owners throughout the State. Whether the howling will gain the attention of the Governor for the special session remains to be seen. Expect pet advocates to bite back during the next regular session, if not sooner.

Long v. State

No. PD-0984-15                 6/28/17

Issue:

Does the definition of “oral communication” in the state wiretap statute incorporate the expectation-of-privacy test?

Holding:

Yes. Although the statute is ambiguous, consideration of extra-textual sources indicate that the legislature intended the definition of “oral communication” to incorporate the Fourth Amendment expectation-of-privacy standard. To determine whether a person exhibited “an expectation that the communication is not subject to interception” under Code of Criminal Procedure Art. 18.20, the issue is whether the person speaking displayed a subjective expectation of privacy in the conversation. To determine whether there were “circumstances justifying that expectation,” the issue is whether society is prepared to recognize the subjective expectation of privacy as objectively reasonable. Speeches given by a high school coach to a basketball team in a private locker room meet this standard. Read opinion.

Dissent (Richardson, J.):

The definition of “oral communication” incorporates the expectation-of-privacy test as articulated by the majority, but the coach’s locker-room speeches to his team do not meet the definition. The locker room should be characterized as a “classroom setting” where the coach, as an educator, has no reasonable expectation of privacy in his teaching. Read opinion.

Commentary:

Expect more cases like this because of the proliferation of smart phones with audio and visual recording capabilities as well as other devices designed to make surreptitious recordings easier to produce and stream to the Internet. The Court engages in a detailed analysis to support its holding that a coach had a reasonable expectation of privacy while speaking to players in a locker room during and after a game. After all, it seems counter-intuitive that a speech to a roomful of people might be private. This case will help you evaluate the increasing number of cases you will see that involve claims of illegal audio and visual recording.

Texas Courts of Appeals

Henderson v. State

No. 01-16-00729-CR        6/29/17

Issue:

Is the presentment of a grand jury indictment to a district court other than the court that impaneled the grand jury a jurisdictional defect?

Holding:

No. Indictment by a grand jury impaneled by one court and trial in another court without a motion to transfer the case to the trial court is, at most, a procedural irregularity. A jurisdictional defect may be challenged for the first time on appeal, but procedural deficiencies must be objected to prior to trial to preserve the claim for review. Read opinion. 

Meane v. State

No. 01-16-00291-CR        6/29/17

Issue:

Are the smell of marijuana and the defendant’s knowledge of police presence sufficient evidence of exigent circumstances to show that imminent destruction of evidence is forthcoming?

Holding:

No. Additional evidence of attempted or actual destruction based on the defendant’s conduct is required to show exigent circumstances. Mere knowledge of police presence and an odor of illegal narcotics are not sufficient evidence that the destruction of evidence is imminent. Read opinion.

Reynolds v. State

No. 08-14-00307-CR        6/30/17

Issue:

Must a trial court always accept a defendant’s offer to stipulate to any element of the offense?

Holding:

No. The prosecution is entitled to prove its case by evidence of its own choice. A defendant may not derail evidence in the State’s case by stipulating to any element. However, this does not apply to a defendant’s legal status as a convict, to which the defendant may choose to stipulate. Read opinion.

Commentary:

This will be helpful. The defense always wants to stipulate away the things that really matter.

In re Gandara

No. 08-17-00053-CR        6/30/17

Issue:

What changes may a trial judge make to a community supervision order when the defendant has not violated any terms or conditions of the supervision and is up to date on all fines and fees owed?

Holding:

The trial judge may not increase the fine but may extend the term of community supervision for “good cause.” The definition for good cause, as adopted from the 7^th Court of Appeals, “connotes something akin to a legitimate or substantial reason, as opposed to mere arbitrariness.” A judge’s unfounded and unsupported belief that the defendant was unemployed does not constitute good cause. Read opinion. 

Announcements

Online registration for TDCAA’s popular Legislative Update series is now open! For more information or to register online, visit https://www.tdcaa.com/content/2017-tdcaa-legislative-updates

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

Applications are being accepted for the National Computer Forensics Institute courses for prosecutors! For more information, visit http://www.tdcaa.com/announcements/national-computer-forensics-institute-courses-prosecutors

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].

U.S. Supreme Court

McWilliams v. Dunn

No. 16-5294                        6/19/17

Issue:

Does conducting a psychiatric evaluation of the defendant and providing the defense with a report satisfy the Ake standard for appointed expert witnesses?

Holding:

No. Ake requires that the defense have access to a competent psychiatrist not only to conduct an examination, but also to evaluate the report and help with preparation and presentation of the evidence at trial. This can be met by retaining an expert to work specifically for the defense team, but the Court did not decide whether doing so is required to meet the Ake standard. Read opinion.

Dissent (Alito, J.):

Review in this case was granted to answer whether Ake requires the appointment of a psychiatric expert as a member of the defense team rather than a neutral expert available to both parties. The Court should answer in the negative and affirm the judgment below.

Commentary:

This decision may not change the practice with regard to defense requests for expert assistance, but the Court does appear to move a little closer to holding that Ake requires a defense expert (not just an independent expert) for significant mental health claims. Prosecutors do not often get involved in these questions, but especially in a death penalty case or an insanity case, make your trial judge aware of this decision.

5^th Circuit Court of Appeals

Alvarez v. City of Brownsville

No. 16-40772                      6/26/17

Issue:

May a defendant who pled guilty, but was subsequently found actually innocent, make a §1983 civil rights claim against a city for withholding Brady material?

Holding:

No. To prevail in a §1983 claim, a plaintiff must prove a constitutional violation. A defendant does not have a constitutional right to impeachment or exculpatory evidence prior to entering a guilty plea. Brady material is important in relation to the fairness of a trial but does not affect whether a plea is voluntary. Read opinion.

Commentary:

This decision represents an application of prior decisions from the Fifth Circuit, which applied and/or extended the 2002 decision of the U.S. Supreme Court in United States v. Ruiz. Be cautious about applying this decision in state court, however. The Michael Morton Act provides greater protection than the U.S. Constitution. Furthermore, this case dealt with whether officials should have been held liable for failing to comply with Brady, not whether the defendant’s conviction should have been overturned (this defendant’s conviction had already been overturned).

Texas Court of Criminal Appeals

Because the Texas Courts website (which includes all the state’s appellate courts) was down at press time, Court of Criminal Appeals opinions from June 28 will be summarized in next week’s weekly case summaries email.

Texas Courts of Appeals

London v. State

No. 01-13-00441-CR        6/27/17

Issue:

Does the assessment of statutory court costs for witness subpoenas in criminal cases violate the Sixth Amendment when applied to an indigent defendant who pled guilty?

Holding:

No. The defendant’s as-applied challenge failed because he did not present any evidence that material, favorable witnesses were available to be called. Furthermore, the defendant pled guilty the day before trial started and was therefore required to pay the subpoena fees for State witnesses whether he chose to continue with the jury trial or not. The statutory fees could not have denied the defendant his right to confront witnesses when he would have been in no worse position to insist on his right to a trial if the witnesses had been available for cross examination. Read Opinion.

Dissent (Jennings, J.):

“What makes [Code of Criminal Procedure] article 102.011(a)(3) unconstitutional as applied to [the defendant] is that it required him, an indigent criminal defendant, to pay for the witnesses that the State subpoenaed to testify against him. In other words, although [the defendant] had a fundamental constitutional right to physically confront the witnesses who were to testify against him, the only way he was able to secure that right was by bearing the State’s costs for it. In effect, he is being penalized for initially setting his case for trial. Given [the defendant’s] inability to pay such costs, article 102.011(a)(2) is unconstitutional as applied to him.” Read opinion.

Commentary:

Issues regarding court costs appear to have a great deal of life left in them. The dispute among the justices in this case might mean that this case will again be reviewed by the Court of Criminal Appeals.

Texas Attorney General Request for Opinion

Request sent 6/23/17

Question:

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

Announcements

Online registration for TDCAA’s popular Legislative Update series is now open! For more information or to register online, visit https://www.tdcaa.com/content/2017-tdcaa-legislative-updates

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

Applications are being accepted for the National Computer Forensics Institute courses for prosecutors! For more information, visit http://www.tdcaa.com/announcements/national-computer-forensics-institute-courses-prosecutors

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].