Texas Courts of Appeals

Ex parte Maddison

No. 10-16-00081-CR     4/26/17

Issue:

Is a portion of the online harassment statute (Penal Code §33.07(a)(1)) that prohibits using another person’s name or persona to create an account on a social-network site with the intent to harm the victim unconstitutionally overbroad or vague?

Holding:

No. Section 33.07(a)(1) is not ambiguous, and speech restricted by §33.07 is not protected by the 1^st Amendment. The Court also concluded the trial court did not have the authority to declare the entire statute unconstitutional because the defendant was indicted only under subsection (a)(1). Read opinion.

Dissent (Gray, C.J.):

The dissent disagreed that §33.07(a)(1) is content-neutral. “The statute sweeps clearly protected political and expressive speech within its prohibition. But you have to look at what is said and how it is said to determine if it is prohibited by the statute. That makes it a content based impairment of speech. Content based impairment of speech is presumed invalid and thus must withstand strict scrutiny.” Read opinion.

Commentary:

The Waco court of appeals joins the Dallas and Houston (14th) courts of appeals in upholding the online impersonation statute. See Ex parte Bradshaw, 501 S.W.3d 665 (Tex. App.—Dallas 2015, pet. ref’d); State v. Stubbs, 502 S.W.3d 218 (Tex. App.—Houston [14th Dist.] 2016 pet. ref’d). The existence of a dissent in this case makes it slightly more likely to be granted review at the CCA, but the fact that they have refused two prior petitions indicates the issue is probably dead.

Marks v. State

Nos. 14-15-00064-CR, 14-15-00065-CR, and 14-15-00066-CR

Issue:

Is a trial court’s violation of Code of Criminal Procedure Art. 28.10(c) (Amendment of Indictment or Information) subject to a harm analysis under Cain v. State?

Holding:

Yes. The Court rejected the State’s argument that because Occupations Code Chapter 1702 provided a general criminal penalty in a single statute (§1702.388) for violations of a variety of statutes in the chapter, amending the indictment to allege violation of a different section of Chapter 1702 than originally charged did not amount to a “different offense.” Using a non-constitutional harm analysis, the Court found harm and reversed the trial court’s decision allowing the State to amend the indictment over the defendant’s objection because the amended indictment charged the defendant with new and different offenses. Read opinion.

Commentary:

There are two important holdings here. First, when the offense is based upon a combination of statutory provision, a change in the makeup of those statutory provisions is a “different offense” even though the penalty for the offense comes from the same section. So, if Subsection (a) provides a penalty for violating (b) or (c), indictments charging (a) + (b) or (a) + (c) are different offenses, even if they provide the same penalty. Because they are different offenses, you cannot amend an indictment or information from charging (a) + (b) to charging (a) + (c) over the defendant’s objection. Second, even though allowing this amendment over objection was error, it can be harmless. Here, the court finds the error harmful because, by the time the indictments were amended to allege the different offenses, the statute of limitations had run as to those offenses and they were not tolled by the offenses originally charged in the indictments.

In re: State of Texas

No. 08-16-00106-CR     4/26/17

Issue:

May a trial judge order a prosecutor’s office to provide the defense with a copy of a recorded forensic interview of a child victim of sexual abuse if it finds the defense did not have “ample opportunity” to view the recordings?

Holding:

No. A trial judge is prohibited from allowing copies of recordings of forensic interviews of child victims in sexual abuse cases by Code of Criminal Procedure Art. 39.15. In addition, in this case, the defense had ample opportunity to view the recordings at entities controlled by the prosecutor’s office or the trial court. The defense’s argument that viewing the recordings in the presence of a prosecutor office employee would chill the effectiveness of defense counsel’s representation is insufficient to overcome the clear directives of Art. 39.15. Read opinion.

Commentary:

Disputes about copying forensic videos happen every day. Keep this opinion in your discovery notebook in the event your court goes off the rails regarding these sensitive and intrusive recordings of child victims.

TDCAA Cybercrime Seminar

Registration is now open for TDCAA’s Cybercrime Seminar.  The course will run from June 7^th to the 9^th in lovely San Antonio.  Topics will cover the collection and use of electronically stored evidence as well as those offenses commonly committed with the assistance of computers.  Don’t forget to book your hotel room now: The TDCAA rate expires 5/16/17! For more information, see the “training” tab on the TDCAA website at tdcaa.com/training/

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

Manrique v. U.S.

No. 15-7250     4/19/17

Issue:

Is a single notice of appeal, filed between the initial judgment and amended judgment, sufficient to allow appellate review of a later-determined restitution amount?

Holding (Thomas, J.):

No, if the government objects to the defendant’s failure to file a notice of appeal after the amended judgment. A defendant who wishes to challenge an order imposing restitution in a deferred restitution case must file a notice of appeal from that order. Read opinion.

Dissent (Ginsburg, J., joined by Sotomayor, J.):

The dissent noted that the Court has previously ruled that time limits and other procedural limitations are “claims-processing rules, not jurisdictional requirements.” The dissent would treat the district clerk’s transmission of the amended judgment to the 11^th Circuit “as an adequate substitute for a second notice of appeal.”

Commentary:

This presentation of federal law is somewhat similar to Texas law in that a separation restitution order is considered an order from which the defendant can appeal and from which the defendant can and should file a separate notice of appeal. See Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App.2004). However, Texas courts always treat notices of appeal as jurisdictional, so it does not matter whether the State or the Government objects. Apparently, under the federal rules, a “claims processing rule” need not be held against the defendant if the Government does not object.

Nelson v. Colorado

No. 15-1256      4/19/17

Issue (Ginsburg, J.):

When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution charged to the defendant?

Holding:

Yes. The Court held that Colorado’s Exoneration Act, which sets out procedures for defendants seeking a refund of these costs, violates the 14^th Amendment’s due process clause. “Colorado’s scheme fails due process measurement because defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Read opinion.

Commentary:

It will be interesting to see how the effect of this decision will play out across the United States, including Texas. Texas has a law—Chapter 103 of the Texas Civil Practice and Remedies Code—that is designed to compensate persons who have been wrongfully imprisoned. But that law (unlike Colorado’s) does not speak to reimbursing a defendant for fees, court costs, and restitution that he has been paid after having been convicted if that conviction is later reversed and the State cannot or does not seek a retrial. Texas appellate courts have seen a significant amount of court cost litigation of late; you should expect to see more based on this decision.

Texas Court of Criminal Appeals

Ex parte Pete

No. PD-0771-16      4/26/17

Issue:

When error that cannot be remedied or misconduct happens in the punishment phase of a jury trial, does a trial judge have authority to grant mistrial as to the punishment phase only?

Holding:

Yes. Nothing in the Code of Criminal Procedure prohibits a trial court from granting a mistrial limited to a new punishment phase of trial under appropriate circumstances. “If some error or misconduct occurring during the punishment phase of trial could have had no conceivable effect on the legitimacy of the jury’s verdict with respect to a defendant’s guilt, there is no compelling reason to repeat the guilt phase of trial. It would only serve to grant the defendant a gratuitous second chance at an acquittal.” The Court noted that the only exception would be if a defendant has elected to have a jury assess his punishment under Code of Criminal Procedure Art. 37.07, §2(b), in which case the defendant is entitled to have “the same” jury assess punishment as assessed guilt. Read opinion.

Commentary:

In reaching its conclusion in this case, the court essentially overruled a very old decision from the court. The real impediment to this new decision, however, is not this old decision from the court. The real impediment is the language of Article 37.07 of the Code of Criminal Procedure. That statute only contemplates a mistrial at the punishment stage if the jury “hangs” on the punishment verdict. Otherwise, a defendant is entitled to have the same jury assess punishment that also decided his guilt. The court got around that statutory right in this particular case because the defendant in this case essentially invited the trial judge to have a new jury assess his punishment. (It was not until later that the defendant apparently thought better of that and filed a writ of habeas corpus, claiming that he should be put back at the beginning of the entire proceedings). Based upon this decision, a defendant may still be entitled to an entirely new trial if a mistrial is declared at the punishment stage (for a reason other than the “hanging” of the jury) and he objects to the trial judge’s attempt to call a new jury only for the punishment stage. Stay tuned.

Miller v. State

No. PD-0891-15     4/26/17

Issue:

What is the standard for evaluating ineffective assistance of counsel in cases where the defendant waived a jury trial in favor of a bench trial?

Holding:

By considering the totality of the record so the deficient performance is gauged by viewing the outcome of the bench trial with the probable outcome of a jury trial. The Court rejected evaluating ineffectiveness by considering solely how the deficient performance affected the defendant’s decision to waive a jury. In this case, the defense attorney incorrectly advised the defendant that he would receive probation if found guilty by the trial court in an aggravated sexual assault and indecency with a child case. A plurality of the Court concluded, however, that the defendant could not show that there was a reasonable probability for a different outcome than he received by going to the judge for punishment. Read opinion.

Dissent (Keel, J., joined by Richardson and Walker, JJ.):

“The plurality’s analysis of this claim errs in three ways. First, instead of recognizing that the jury waiver itself is prejudice, the plurality speculatively compares the result of the bench trial Appellant had with the reasonably likely result of the jury trial that he did not have. Second, the plurality misapplies the Miller dissent–Page 2 different-outcome test that it purports to embrace by requiring not merely a reasonable likelihood of a better outcome, but a specifically better outcome from the hypothetical jury, i.e., probation. Third, the plurality indulges implicit fact findings to support the trial court’s denial of the motion for new trial even though the trial court made explicit fact findings.” Read opinion.

Commentary:

This is a decision that may be of interest only to post-conviction attorneys. The bottom line even in that light is that this decision has no precedential value because it is a plurality decision. We do not know the correct standard of review for this type of ineffective assistance of counsel claim because, as all judges noted, there are two decisions from the court that are directly contrary to one another on the appropriate standard of review. The odds of the United States Supreme Court granting a writ of certiorari in any case are exceedingly rare. But there is at least the possibility that the Court might be interested in reviewing this legal issue.

Texas Courts of Appeals

Howard v. State

No. 01-16-00120-CR     4/25/17

Issue:

May a defendant be convicted of felony murder for conspiracy to commit state jail felony theft?

Holding:

Yes. Even though a conspiracy to commit theft might be considered a misdemeanor offense under Penal Code §15.02, the State alleged a conspiracy under Penal Code §7.02(b), which establishes a conspiracy theory of party liability. “Conviction under Section 7.02(b) only requires a conspiracy to commit a felony; it does not also require that the conspiracy itself constitute a felony…. Thus, [the defendant] may be guilty of felony murder even though the conspiracy itself, had she been charged with that offense, would have been a misdemeanor.” Read opinion.

Commentary:

This is a good decision, but some of the language about the defendant only being guilty of committing a misdemeanor is unfortunate. The defendant was in fact guilty of a state jail felony (theft) as the predicate felony for felony murder. He was guilty as a party under §7.02(b), which is often referred to as the conspiracy theory of party liability, but it has nothing to do with the offense of conspiracy under §15.02 of the Penal Code. The defendant may also have been guilty of conspiracy to commit state jail felony theft (which is a misdemeanor), but that does not change the fact that he was also guilty of state jail felony theft under the law of parties in §7.02(b). That state jail felony theft is the predicate felony for the felony murder offense.

Atnipp v. State

No. 11-14-00287-CR      4/10/17

Issue:

Does the depredation exception in Penal Code §42.092(f)(1)(B) (Cruelty to Nonlivestock Animals) apply once a defendant has secured the personal property he feels the animals will damage?

Holding:

No. Assuming without deciding that §42.092 applies to protecting a domestic dog, the Court held that once the defendant had placed his Chihuahua safely inside his home, the depredation exception did not allow him to shoot a dog in his yard. Read opinion.

Commentary:

The court of appeals has given the defendant far more credit than he deserves. Depredation constitutes a generally accepted and otherwise lawful “form of conduct occurring solely for the purpose of or in support of . . . wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law.” This defendant was certainly not engaged in anything like that. Three dogs were near his property while a woman was trying to move them back towards their home, and the defendant threatened to shoot the woman and the three dogs. After putting his own dog inside his own home, he went back outside and shot one of the dogs. He was not engaged in “wildlife management.”

Ex parte Arango

No. 01-16-00607-CR     4/18/17

Issue:

Must an appellate court consider a record of a transfer hearing along with the wording of a juvenile transfer order in evaluating whether a juvenile case should have been transferred to district court?

Holding:

No. Under Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014), an appeals court may only look at “the facts that the juvenile court expressly relied upon, as required to be explicitly set out in the juvenile transfer order.” Read opinion.

Commentary:

One of the cardinal rules of habeas corpus law is that a court is not to permit a writ of habeas corpus to be used to test the sufficiency of the evidence (unless the defendant is raising an actual innocence claim). The court of appeals seems to avoid that rule in the name of judicial economy. The court has essentially held that any juvenile transfer order issued prior to the change that occurred with Moon v. State is void. The Court of Criminal Appeals will certainly want to review this decision.

Texas Attorney General Opinions

No. KP-0145     4/25/17

Issue:

When is a search warrant affidavit “executed” and therefore publicly available under Code of Criminal Procedure Art. 18.01(b)?

Conclusion:

A search warrant affidavit is “executed” and considered public information when it is sworn to and filed with the court under the plain language of Art. 18.01(b). However, Art. 18.011 allows sealing of affidavits in limited circumstances. The AG Opinion also noted that if the legislature did not intend for affidavits to become public until after the officer executes the warrant, it could amend Art. 18.01(b). Read opinion.

Commentary:

Rep. Joe Moody (D-El Paso) has filed a bill (HB 3237) that would amend Art. 18.01(b) to provide that the affidavit only becomes public information when the search warrant is executed. As of the date of this email, the bill has been reported out of the House Criminal Jurisprudence Committee and is pending in the Calendars Committee. Other jurisdictions have better provisions for the sealing of search warrant affidavits. Hopefully, this bill (or something like it) will get passed.

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

Hawkins v. State

No. 02-16-00104-CR     4/13/17

Issue:

Is the portion of the consolidated court cost in Local Government Code §133.102 directing part of the fund to “law enforcement officer standards and education” unconstitutional?

Holding:

No. The allocation to this fund under §133.102(e)(5) is a legitimate criminal justice purpose pertaining to administration of Texas’ criminal justice system. The court also noted that although the Court of Criminal Appeals recently found two other portions of the consolidated court cost unconstitutional in Salinas v. State, No. PD-0170-16 (Tex. Crim. App. March 8, 2017), its holding does not apply retroactively to allow modification of the trial court’s judgment in this case to delete the court cost dedicated to the “comprehensive rehabilitation account” and “abused children’s counseling account.” Read opinion.

Commentary:

This decision is interesting largely because of its retroactivity holding, which is entirely in line with what the Court of Criminal Appeals said about retroactivity in Salinas. One would presume that this defendant will now file a petition for discretionary review, and we will have to wait and see if the court will grant or simply rely upon its holding in Salinas.

Williams v. State

No. 14-16-00292-CR     4/13/17

Issue:

Is an officer required to ask a DWI suspect whether he had any recent head injuries or wears glasses before administering the HGN test?

Holding:

No. Although the officer is required to screen for potential causes of nystagmus other than alcohol ingestion, the officer can do this while conducting the HGN test. Read opinion.

Commentary:

This is a good decision, and it should be helpful for DWI prosecutors, but expect to see this issue more often. This particular defendant did not do a great deal to support his claim concerning the HGN test, essentially presenting only his own testimony, which the trial court was permitted to disbelieve. But keep watch over a case in which the defense attempts to present competing expert testimony before a trial judge who might be more willing to listen to the argument.

Ex parte Perez

No. 14-16-00332-CR     4/13/17

Issue:

Does manifest necessity allow a mistrial after a trial judge has sworn in a jury and placed it “on hold,” then recessed it to conduct a competency hearing or trial, called the jurors back four months later with only one day’s notice, and only five jurors actually showed up?

Holding:

No. The trial court had options other than placing the jurors on hold for that length of time, risking that not all would return. The judge could have proceeded with the underlying criminal case, then—under Code of Criminal Procedure Art. 46B.005(d)—gone forward with any competency proceedings after a guilty verdict. Consequently, double jeopardy bars retrial of the underlying theft case. Read opinion.

Commentary:

This is a very unusual fact situation, so it is doubtful that it will come up again, but this decision does emphasize the importance of not swearing in a jury until you are absolutely ready to go to trial.  After the jury is sworn, jeopardy has attached, and the absence of manifest necessity may prevent a re-trial if the trial judge subsequently feels compelled to grant a mistrial. So if a trial judge is given to, say, picking a jury on a Friday, swearing it in, and starting with the first witness on Monday, show the judge this decision. Life happens, and things can go wrong. This is a very thorough decision, and it cites to a great number of the decisions dealing with issues that have arisen with jurors during trial.

Pate v. State

No. 01-16-00569-CR     4/11/17

Issue:

Is using the 911 emergency system required to demonstrate the reliability of an anonymous tip?

Holding:

No. The reliability of a citizen-informant’s tip can be verified in a variety of ways, and calling 911 with that information is not required. A caller who provides a detailed description of a vehicle (including license plate number and location) tends to be more reliable, and as in this case, the officer verified the caller’s information when he found the defendant’s vehicle as described by the caller in the location indicated by the caller. Read opinion.

Commentary:

This is a good decision and a good application of the United States Supreme Court’s 2014 decision in Navarette v. California. If an informant has provided first-hand information while viewing it at the scene, do not give up merely because the informant is unknown (“anonymous”) to you. This decision (and Navarette) may help.

Texas Attorney General Opinions

Opinion No. KP-0138

4/17/17

Issue:

What effect does a conviction in another state (and a subsequent restoration of rights by the other state) have on an individual’s ability to run for or hold public office in Texas?

Conclusion:

Under the Full Faith and Credit Clause of the U.S. Constitution, the State of Texas must recognize an Arkansas court’s valid order dismissing a felony charge and releasing an individual from the penalties and disabilities of that charge in Arkansas. An individual for whom the penalties and disabilities have been removed by an Arkansas court is not prohibited by Election Code §141.001(a)(4) from holding public office in Texas. Read opinion.

Commentary:

Texas has a similar provision to the Arkansas provision in Article 42A.701(f) of the Texas Code of Criminal Procedure. This seems to be a faithful application of the controlling law.

Opinion No. KP-0139

4/17/17

Issue:

What type of bond is required for a county attorney who performs the functions of both a county and district attorney?

Conclusion:

Because a county attorney bond covers both the duties of a county attorney and a district attorney, a court would likely conclude that a separate district attorney bond is unnecessary. Thus, the Lee County Attorney must execute only a county attorney bond. Read opinion.

Commentary:

You will learn more than you wanted to know about bonds in this opinion. It even discusses how and whether assistant county attorneys and assistant district attorneys can be required to post a bond.

Opinion No. KP-0141

4/17/17

Issue:

Do statutory or constitutional county court judges with jurisdiction over mental illness matters have authority to appoint an associate judge under Health & Safety Code §574.0085?

Conclusion:

Yes. A court would likely conclude that the statutory or constitutional county court judge with jurisdiction over mental illness matters has authority to appoint an associate judge under §574.0085(a). Read opinion.

Commentary:

This opinion is a very thorough explanation of the different uses of the term “county judge” in Texas, referring to both a statutory county court judge and the constitutional county court judge who presides over a county’s commissioners court.

Opinion No. KP-0140

4/17/17

Issue:

Are Texas election judges required to take the oath of office in Tex. Const. Art. XVI, §1?

Conclusion:

A court is likely to conclude that election judges, alternate election judges, and early-voting clerks are public officers and must take the constitutional oath of office under Art. XVI, §1 of the Texas Constitution in addition to the statutory election officer’s oath. The fact that an election judge, alternate election judge, or early-voting clerk may not have taken the constitutional oath is unlikely to affect the validity of a prior election. Read opinion.

Commentary:

This opinion speaks to the difference between a statutory oath and the constitutional oath and why the former is not sufficient to satisfy the latter. But the decision is also very thorough in showing that the absence of a constitutional oath should not affect the validity of the election.

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 Court of Criminal Appeals

Hankston v. State

No. PD-0887-15     4/12/17

Issue:

Does the Texas Constitution provide more protection than the Fourth Amendment in obtaining a defendant’s call logs and cell site location information held by a third party?

Holding:

No. Acquisition of cell phone records by a court order does not violate Tex. Const. Art. I, §9. The court order in this case was obtained under a pre-2013 version of Code of Criminal Procedure Art. 18.21, §5(a), which required reasonable suspicion (rather than probable cause) to obtain a court order for electronic customer phone data. The Court concluded the defendant did not have a legitimate expectation of privacy in the numbers he dialed on his cell phone or the location information relayed by cell towers transmitting the calls. Read opinion.

Commentary:

This decision is entirely consistent with how the court has treated the “third party doctrine” in the past. And this decision gives a good history of the court’s decisions dealing with whether the Texas Constitution would be construed to provide greater protection than that provided by the Fourth Amendment. The “third party doctrine” is now fully adopted as the law in Texas. The only way that will change is if the United States Supreme Court backs away from decisions like Smith v. Maryland and United States v. Miller.

Ex parte Broussard

No. WR-83,014-01     4/12/17

Issue:

Is a guilty plea involuntary when laboratory tests determine the defendant was carrying a different illicit substance than the one for which he was charged?

Holding:

No. The defendant pleaded guilty to delivery of cocaine in exchange for an eight-month, state jail sentence, while laboratory testing two months later showed the substance was actually methamphetamine (also a Penalty Group 1 substance). Over the recommendations to grant habeas relief from both the trial judge and the district attorney’s office, the Court concluded that the plea was not involuntary just because the defendant did not know the results of the lab testing at the time of his plea. “When a defendant pleads guilty knowing that a particular fact is unknown or at least uncertain, he cannot later invalidate his plea if he misapprehended that fact or the State’s ability to prove it.” Read opinion.

Dissent (Alcala, J.):

“Although I agree with the majority opinion that there are some good reasons to deny applicant relief under these circumstances, I am ultimately more persuaded that, in this close case, the more prudent course is to follow the habeas court’s recommendation to grant relief to applicant on the basis that, under the circumstances of this case, his plea was unknowingly and involuntarily made.” Read opinion.

Commentary:

It is certainly unusual to see the court disagree with the recommendation to grant relief from both the trial (habeas) court and the prosecutor. But this decision is in line with the court’s prior decision in Ex parte Palmberg. Now that two new judges have joined the court at the beginning of this year, this will become the lead decision on this issue. This decision will control if a defendant has pleaded guilty to possessing an illegal substance, but the parties later learn that it was a different illegal substance. A defendant will still be granted relief under Ex parte Mable if the substance that he possessed was actually not illegal.

Reed v. State

No. AP-77,054     4/12/17

Issue:

Is a defendant entitled to DNA testing under Code of Criminal Procedure Chapter 64 because, before 2011, defendants were not entitled to request testing for “touch DNA”?

Holding:

No. Even before amendments in 2011 to the definition of “biological material” in Art. 64.01(a), the Court of Criminal Appeals was considering Chapter 64 requests to perform touch DNA analyses. While testing for touch DNA generally could be allowable, in this case, the Court concluded the defendant had not shown a reasonable probability that exculpatory DNA test results would change the outcome of his trial. Read opinion.

Commentary:

This was clearly a factually complex and heavily litigated post-conviction DNA hearing, as the court’s 38-page opinion will reveal. In that respect, the court’s decision is ultimately bound by the particular facts of this case. Nevertheless, if you have a complex post-conviction DNA case, read this decision to see the mistakes that can be made along the way (including by the trial judge in his ultimate findings) and the application of the various requirements of the law. Keep in mind, however, that this decision construes a previous version of the law that was a little more onerous on defendants.

Texas Courts of Appeals

Phelps v. State

No. 06-16-00116-CR     4/10/16

Issue:

If a charged instance of incest happened when a defendant’s biological daughter was 19, must the daughter be considered an accomplice rather than a victim?

Holding:

No. Under Penal Code §25.02, a defendant must point to sufficient evidence in the record showing that the complaining witness was an accomplice to invoke the accomplice witness rule. Evidence establishing that the complainant was an adult and failed to complain or resist is not sufficient to prove that an incest victim was an accomplice. “This is particularly so when the incestuous act is between a parent and child, beginning in childhood and continuing into adulthood.” Read opinion.

Commentary:

It is not clear from the decision why the State chose to prosecute this case as incest. Having said that, after a recitation of the very troubling facts, the legal part of the decision reads like a law review article. The court goes to great lengths to show why, under the current law, the typical child victim of a sex-related offense is not an accomplice. The work that was done on this case is admirable. And it may have been necessary because the court of appeals sought to distinguish (if not outright disagree with) some older decisions of the Court of Criminal Appeals. For that reason, you may see this decision reviewed by the Court of Criminal Appeals. The Court of Criminal Appeals could do a great deal worse than just adopting this decision if it grants the defendant’s petition for discretionary review.

Carreon v. State

No. 01-15-00559-CR     4/6/17

Issue:

Is Penal Code §21.12 (improper relationship between educator and student) unconstitutional for criminalizing consensual sexual relationships with students who are 17?

Holding:

No. Providing a safe environment free from coercive sexual conduct in compulsory educational settings is a rational state interest, and the State is not required to demonstrate further a compelling interest for criminalizing conduct between an educator and a 17-year-old student. While the U.S. Supreme Court’s decision in Lawrence v. Texas held that the 14^th Amendment gives consenting adults the right to engage in private sexual relationships free from government intrusion, that is not a fundamental right, nor did the Supreme Court hold that the right is available in all circumstances. Read opinion.

Commentary:

This is a great decision. It should be helpful if there are any further challenges to §21.12.

In re Navarro

No. 14-16-00606-CR     4/6/17

Issue:

When an appellate court renders a judgment of acquittal because there is no evidence of an aggravating element, may the defendant be retried for a lesser-included offense that does not require proof of the aggravating element?

Holding:

Yes. Double jeopardy does not bar retrial for the lesser-included offense, and the defendant may be retried for Class B DWI after his conviction for Class A DWI was reversed for failure to prove the defendant had an alcohol concentration level of 0.15 or greater at the time of his blood draw. Read opinion.

Commentary:

This is another very good decision. The court clearly disagrees with an older decision from the Court of Criminal Appeals, Stephens v. State, which certainly appears to have been wrongly decided. An acquittal for a greater offense does not necessarily mean that the defendant cannot be retried for a lesser offense. Hopefully, the Court of Criminal Appeals will agree and overrule Stephens if given the opportunity to review it.

Kolb v. State

No. 14-15-00658-CR     4/6/17

Issue:

Does the Texas Constitution give greater protection than the U.S. Constitution in regard to preservation and availability of evidence to defendants?

Holding:

No. Texas Constitution Art. I, §9 does not require more than the U.S. Constitution in terms of the State’s burden to preserve evidence and make it available to the defense for inspection. The Court rejected the defendant’s argument that the State has a constitutional duty to disclose not only exculpatory evidence but also evidence that is “potentially useful to the defense.” Read opinion.

Commentary:

This decision is very thorough and a good application of prevailing law. The facts are somewhat unusual, but the legal issue is not compelling. The defendant relied upon a Waco Court of Appeals decision to support the proposition that the State is required to turn over “potentially useful” evidence to the defense under the Texas Constitution. The court of appeals refused to follow that decision (and it had refused to do so in the past). This case was decided solely under the United States and Texas Constitutions, and the Michael Morton Act (Article 39.14 of the Code of Criminal Procedure) was not mentioned.

Davis v. State

No. 01-16-00079-CR      4/6/17

Issue:

May district courts within the same county exchange benches for preliminary proceedings?

Holding:

Yes. The Court rejected the defendant’s contention that the Government Code statutes allowing transfer of authority between district courts in the same county require that the grand jury first must return an indictment to the originating court before a transfer can happen. “[T]he discretionary power they confer permits the local judiciary intra-county flexibility in exchanging benches throughout the proceedings in a case—including its preliminary proceedings.” Read opinion.

Commentary:

This decision reviews a claim that some defendants have been raising of late. This decision should be helpful for prosecutors dealing with similar cases.

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 Court of Criminal Appeals

In re Powell v. Hocker

No. WR-85,177-01     4/5/17

Issue:

Under Code of Criminal Procedure Art. 39.14(f), does a defendant have a right to personally retain a duplicate or copy of any discovery material other than his own witness statement?

Holding:

No. Art. 39.14(f) only requires the prosecutor to turn over discovery material to the defense attorney, who may allow the client/defendant to “view” them. Even a defendant who has chosen to represent herself is not entitled to obtain copies, although she is entitled to inspect and review discovery materials on request under Art. 39.14(d). The Court also concluded that intermediate courts of appeals do not have jurisdiction to issue writs of mandamus against statutory county court (county court-at-law) judges, so the State appropriately filed its mandamus petition with the Court of Criminal Appeals rather than with the intermediate court of appeals. Read opinion.

Commentary:

This is a very significant decision, and it is unanimous. This decision squarely answers the question of whether a defendant—even a pro se defendant—is entitled to his own copies of discovery material—whether from the trial judge or the defendant’s own attorney. The answer is no. This decision should encourage courts to read the Michael Morton Act according to its plain language and not attempt to read provisions into it that the Legislature has not enacted. This decision also answered the important question of whether a court of appeals has mandamus jurisdiction over a county court. It does not. Such a mandamus application must be filed with the Court of Criminal Appeals. 

Thomas v. State

No. PD-0295-16     4/5/17

Issue:

In a negotiated plea-bargain agreement for an illegal range of punishment, should the case be remanded for a new sentencing hearing or for a new trial?

Holding:

Remanded for a new trial. In this situation, the parties should be returned to their original positions prior to the plea bargain. “If we were to uphold [the] appellant’s guilty plea and permit resentencing under these circumstances, on remand the State would be deprived of the opportunity to pursue the same range of punishment as originally contemplated when it agreed to the plea bargain. Such an outcome would unfairly bind the State to its obligation to reduce the charge to a state-jail felony while releasing [the] appellant from his agreement to be sentenced within the range of a second-degree felony. This would give [the] appellant the windfall of an unenhanced state-jail felony punishment that was neither contemplated by nor agreed upon by the parties.” Read opinion.

Commentary:

This is also a very helpful decision, and it is unanimous (is that a trend?). Keep this decision handy if you have mistakenly accepted a plea of guilty involving what turns out to be an illegal sentence. This decision also discusses the difference between, and the ramifications of, a sentence bargain and a charge bargain. A background moral to this story is to be very careful when attempting to enhance state jail felonies. The law in that particular arena can be quite complicated and/or counter-intuitive. That is precisely what tripped up all the parties in this case.

Texas Courts of Appeals

Garrett v. State

No. 01-16-00162-CR     3/30/17

Issue:

Does the confrontation clause require that every analyst who worked on a DNA analysis testify at trial?

Holding:

No. Testimony from the analysts who performed the preliminary automated steps, such as extraction and amplification, is not necessary as long as there is testimony from the analyst who performed the final analysis of the DNA sample and comparison with the known DNA profile. These preliminary steps are only used to generate raw DNA data, which does not stand for anything on its own until interpreted by an analyst. Read opinion.

Commentary:

After the decision of the Court of Criminal Appeals in Paredes v. State, there is now a growing line of authority teaching us how to present DNA testimony and still satisfy the defendant’s confrontation rights. If you have such a case, read Paredes and the decisions that follow it, including this one.

Paroline v. State

No. 06-16-00101-CR     3/30/17

Issue:

Is testimony that a victim is unable to live independently without some supervision and is easily misled due to mental defects sufficient evidence that the victim is disabled under the pre-2015 version of Penal Code §22.04(c)(3)(B)?

Holding:

Yes. Although the victim’s mother and social worker testified that the victim is able to cook and clean and takes his own medication, lives in a separate unit on his parents’ property, and displays other signs of independence, there is still sufficient evidence for a jury to conclude that the victim meets the definition of disabled. Medical records showed that the victim has developmental disorders and subnormal intelligence, and the State presented evidence that his mother monitors his finances, buys his groceries, and refills his medications. The jury could also personally evaluate the victim’s testimony and demeanor during the trial. Read opinion.

Commentary:

This is a good decision, but it should probably no longer be necessary. Section 22.04 was amended in 2015 to provide a much more expansive and comprehensive definition of “disabled individual.” (Section 22.04’s definition applies to more than just that offense). The Legislature’s clear intent is to make sure that all possible disabled persons will be protected by the various statutes to a greater degree than the more typical victim.

Hernandez v. State

No. 13-14-00245-CR     3/30/17

Issue:

May a trial judge order the jury to further deliberate or correct the verdict form after the jury informs the court it made a mistake in filling out the verdict form?

Holding:

Yes. Under Code of Criminal Procedure Art. 37.04, if the jury foreman tells the judge that she signed the wrong verdict form, the judge may order the jury to return to correct the verdict form. In this case, once a revised verdict of guilty was entered, the court also polled each juror, as allowed under CCP Art. 37.05, to confirm that the revised verdict was correct. Read opinion.

Commentary:

This is a common-sense decision and completely in line with the few prior cases that have dealt with similar issues. This happens rarely, but if it happens in your case, this decision should help the trial judge get the error corrected easily.

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

Moore v. Texas

No. 15-797     3/28/17

Issue:

Do the seven evidentiary factors set out in Ex parte Briseno, 135 S.W.3d 1 (2004), for evaluating potential intellectual disability in a capital murder defendant comply with the Eighth Amendment?

Holding (Ginsburg, J.):

No. The 5-3 Court ruled that the Briseno factors do not adequately consider the current medical community’s diagnostic standards, and the test does not comport with the Court’s decision in Hall v. Florida, 134 S.Ct. 1986 (2014). By failing to rely on changing views from medical experts about how to evaluate intellectual disabilities, the Texas Court of Criminal Appeals created “an unacceptable risk that persons with intellectual disability will be executed.” Read opinion.

Dissent (Roberts, J., joined by Thomas and Alito, JJ.):

Justice Roberts agreed that the Briseno factors do not comply with the Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002) but would find that the Court of Criminal Appeals reached the correct result in evaluating the defendant’s intellectual functioning. The dissent also expressed concern about the majority’s analysis on the Eighth Amendment issue. “The Court … crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment.”

Commentary:

The majority and dissent are both divorced from the reality of “intellectual disability” claims in capital cases. The retrospective determination of intellectual disability is not a nice, neat, objective, clinical process. Instead, habeas courts face competing experts, incompatible IQ tests improperly administered years after the fact, activist groups constantly moving the target, and incomplete social histories altered by time and bias. The Briseno factors were a way for the CCA to review the competing evidence to identify those defendants who were intellectually disabled in the context of a death penalty case. Indeed, were the tables turned and the prosecution had to prove intellectual disability using the same tools, they would likely be accused of using unreliable junk science. This case will mean that many intellectual disability claims must be reviewed again, but whether any outcomes will change is unclear. One interesting fact is that the “adaptive behavior” analysis—unlike many tests applied by the Supreme Court—looks only at those factors that favor a finding of intellectual disability, as compared to a “totality of the circumstances” analysis. Thus, a defendant with a low IQ and a fine-motor-skills difficulty that keeps him from being able to tie his shoes might be found intellectually disabled even though he can fly an airplane and run a drug crew.

Texas Courts of Appeals

Pegues v. State

No. 01-16-00317-CR     3/28/17

Issue:

Can three different admissions of guilt, victim testimony, and other evidence substantially linking a defendant to an offense negate identity as an issue in a case in which the defendant seeks post-conviction DNA testing?

Holding:

No. The focus in an inquiry about identity under CCP Art. 64.03 is on the circumstances of the offense and the significance of the evidence being subjected to DNA testing, not whether there are other indications of guilt, such as a confession or other physical evidence. Read opinion.

Commentary:

The “identity” requirement in Chapter 64 is a dead letter at this point.

Collins v. State

No. 09-15-00089-CR     3/29/17

Issue:

Does the 1999 amendment to Family Code §54.02(j) lowering the minimum age from 14 to 13 for a transfer from juvenile court to district court apply to a juvenile who committed a murder in 1998 when he was 13?

Holding:

Yes, application of the 1999 amendment to the defendant’s case does not violate ex post facto provisions. The Court noted that the effective date language of the 1999 amendment stated that the changes in law applied to any proceeding in which a discretionary transfer petition or motion was filed on or after the effective date of the legislative change. The Court concluded there was no ex post facto violation because the defendant challenged the constitutionality of the discretionary transfer statute as it was applied to him. Because the defendant received a punishment of substantially the same length as the punishment he was eligible to receive in 1998 had his case been tried in the juvenile system, application of the 1999 amendment to his case did not violate ex post facto provisions. The fact that the defendant could have faced a life sentence is irrelevant to the as-applied constitutionality analysis. Read opinion.

Commentary:

The specific facts of the case are such that you are not likely to need this case in your career as a prosecutor. The opinion is well worth reading, however, for the story of a murder prosecution in a case where the victim died some 13 years after the defendant lit him on fire.

Oliva v. State

No. 14-15-01078-CR     3/28/17

Issue:

Is a prior DWI conviction an element of the offense for a Class A repeat DWI offense?

Holding:

Yes. Because the prior DWI conviction is an element of the offense rather than a punishment enhancement, the State must present proof of the prior DWI conviction at guilt–innocence for DWI–2^nd offense. The Court reversed and remanded to the trial court to reform the judgment to reflect a conviction for the lesser-included offense of Class B misdemeanor DWI and conduct a new punishment hearing. Read opinion.

Commentary:

As noted in the opinion, different courts are doing this differently. But it is a matter of sufficiency of the evidence—this case should be taken up so that the Court of Criminal Appeals can resolve this conflict regarding one of the most commonly-tried criminal offenses in Texas.

Ex parte Rogers

No. 01-16-00583-CR     3/28/17

Issue:

If a jury convicts a defendant but sentences him to no fine and no jail time, does a motion by the State for a new punishment hearing subject the defendant to double jeopardy?

Holding:

No. A verdict of no punishment constitutes a void sentence, and therefore a new punishment hearing does not subject the defendant to double jeopardy. Although Penal Code §12.22 states only a maximum fine and period of confinement for a Class B misdemeanor and does not set a minimum, the statute contemplates some form of punishment by stating that an offense is punishable by a fine or confinement or both. Read opinion.

Commentary:

No double-zeros—the jury must assess either a fine or time on a Class B misdemeanor. Texas just got a little bit safer.

Freeman v. State

No. 03-16-00130-CR     3/22/17

Issue:

Is a trial judge’s announcement of guilt “by the clearer greater weight and degree of credible testimony” sufficient to meet the burden of finding guilt beyond a reasonable doubt?

Holding:

No. Further, this is structural error that is not subject to a harm analysis. The judge’s later statement finding an enhancement paragraph as true “beyond a reasonable doubt” cannot be construed to apply to the finding of guilt. Read opinion.

Commentary:

A judge can seldom go wrong by limiting remarks on the record to: “denied, granted, overruled, sustained, the jury will remember the evidence, move along, guilty, or not guilty.” This judge probably had some laudable goal in using words beyond “guilty” but will pay the price of conducting a new trial.

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

Manuel v. Joliet

No. 14-9496     3/21/17

Issue:

May a plaintiff bring a §1983 claim based on the Fourth Amendment to contest the legality of his pretrial confinement?

Holding (Kagan, J.):

Yes. Pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows the start of legal process. In this case, a judge made a probable cause finding, but because that finding was based solely on fabricated evidence, the plaintiff’s Fourth Amendment basis for his §1983 claim was not extinguished. The Court remanded the case to the Seventh Circuit to determine when the Fourth Amendment claim accrues and whether suit is barred by the statute of limitations. Read opinion.

Dissent (Alito, J., joined by Thomas, J.):

Although the dissent agreed that 4th Amendment protection continues to apply after “the start of legal process,” Justice Alito would find that legal process should mean only issuance of an arrest warrant or a first appearance in court.  “But if the Court means more—specifically, that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts—the Court stretches the concept of a seizure much too far.” Justice Alito would also conclude that a claim of malicious prosecution may not be brought under the Fourth Amendment.

Dissent (Thomas, J.):

“I would leave for another case (one where the question is dispositive) whether an unreasonable-seizure claim would accrue on the date of the first appearance if that appearance occurred on some day after the arrest. I think the answer to that question might turn on the meaning of ‘seizure,’ rather than on the presence or absence of any form of legal process.”

Commentary:

This defendant was jailed for drug possession even though the pills were subjected to two negative field tests. Then someone wrote in a report that a field test was positive (even though it wasn’t). Texas prosecutors and police have dealt with enough fake dope by now that they should be more cautious (and certainly more honest) than this. Otherwise, the opinion seems to expand this citizen’s right to recover for his wrongful incarceration to include time he spent in jail after a magistrate found probable cause based on false information.

Texas Court of Criminal Appeals

McClintock v. State

No. PD-1641-15     3/22/17

Issue:

Does the good-faith exception in Code of Criminal Procedure Art. 38.23(b) apply when a warrant affidavit supplies probable cause, but that probable cause appears to be tainted by a prior illegality?

Holding:

Yes, if the officer reasonably believes the information he submitted in a probable cause affidavit was legally obtained. The Court concluded that the good-faith exception includes information submitted in an affidavit and not just the warrant itself. “An officer who has included information in a search warrant affidavit that he knows—or should know—to be illegally obtained cannot be said, we think, to have acted in good-faith reliance upon any warrant that may issue that depends for its probable cause upon that tainted information. Thus, the language of the statutory exception is broad enough to embrace the fruit-of-the-poisonous-tree doctrine. It is also broad enough, we conclude, to accommodate a corollary: An officer who reasonably believes that the information he submitted in a probable cause affidavit was legally obtained has no reason to believe the resulting warrant was tainted.” In this case, because a dog sniff at the defendant’s door was done before the U.S. Supreme Court ruled in Florida v. Jardines, the officer’s search of the residence was executed in objective, good-faith reliance on the affidavit and warrant that referred to the dog sniff. Read opinion.

Dissent (Alcala, J.):

The dissent would conclude the evidence found in the defendant’s apartment should be suppressed and the good-faith exception in Art. 38.23(b) does not apply. Read opinion.

Commentary:

This is an interesting and well-written decision but it may have little practice effect on your docket unless you are sitting on cases with warrants called into doubt by Jardines. Basically, if the warrant affidavit relies on information that is determined to be illegally obtained due to an intervening court decision, it isn’t per se invalid, unless the officer can see into the future.

Ex parte Owens

No. WR-83,551-01     3/22/17

Issue:

Is a lab technician’s prior misconduct in cases involving testing alprazolam and cocaine the type of misconduct that would warrant a presumption of falsity of testing done by the same technician in a case involving possession of marijuana?

Holding:

No. In Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014), the Court set out a five-factor test for evaluating whether there should be a presumptive due-process violation in cases in which a discredited lab technician performed drug testing. Under the Coty test, the Court agreed with the trial judge that the defendant had failed to present sufficient evidence to warrant a presumption of falsity in the lab technician’s testing in this case. Specifically, the Court found that: (1) the lab technician’s handling of (“dry-labbing”) alprazolam and cocaine is not the same type of testing relevant to marijuana in the defendant’s case, because marijuana is subject to different tests, and (2) the timeframe for the lab technician’s mishandling of drug testing is not the same timeframe as in the defendant’s case. The Court concluded there was other evidence to establish the identity of the drug as marijuana, and the defendant’s guilty plea was minimally, if at all, impacted by the results of the lab technician’s analysis. Read opinion.

Commentary:

So, bad testing practices for regular drugs doesn’t necessarily mean your lab tech can’t identify marijuana. Especially when it is lots of marijuana.

Ex parte Ulloa

No. PD-0658-16     3/22/17

Issue:

Does an information toll the running of limitations in a felony case when the defendant did not waive his right to an indictment?

Holding:

Yes. As long as an information is pending in a court of competent jurisdiction, a later-filed indictment is considered to be pending for purposes of Code of Criminal Procedure Art. 12.05. Filing an information suffices to toll the statute of limitations if an indictment is later filed based on the same conduct. Read opinion.

Commentary:

These are interesting facts. The opinion does not address whether the State was filing informations in the case for the sole purpose of tolling limitations.

Villa v. State

No. PD-0541-16     3/22/17

Issue:

Is the evidence sufficient to establish the defendant was participating in an offense as a member of a criminal street gang if the victim: (1) testifies that at least six “other gang members start[ed] coming toward me,” and (2) when asked if he recognized anybody in the group, he said yes and named six people, including the appellant?

Holding:

Yes. This testimony is sufficient for a rational jury to have concluded that the people the victim named were gang members. The Court reversed the court of appeals’ holding that the evidence was insufficient, finding the appeals court failed to evaluate the evidence appropriately in light of the jury verdict. Read opinion.

Commentary:

The lower court seemed concerned that the victim did not directly state that the defendant was a member of the gang. But this was certainly a situation where the jury could infer that fact from the testimony of the victim and the State’s gang expert.

Texas Courts of Appeals

Lombardo v. State

No. 14-15-00406-CR     3/16/17

Issue:

If a judge modifies part of an order of probation conditions (in this case, lowering the monthly restitution payment), does the probation law in effect at the time of sentencing or at the time the order was modified apply?

Holding:

The law at the time of sentencing. A trial court’s decision to lower monthly restitution payments is not a separate restitution order or condition of community supervision. Therefore, the probation law in effect at the time of sentencing applies. Read opinion.

Commentary:

A straightforward application of the savings clause in the relevant bill. Almost all criminal legislation is prospective, but TDCAA always prints the savings clause language in their books to make it easy to fight off claims like this one.

Sabedra v. State

No. 10-16-00033-CR     3/15/17

Issue:

May a judge impose court costs of $133 for “copies/search” or a $5 “criminal county drug court fee”?

Holding:

No. Only court costs specifically imposed by statute may be assessed in a criminal case under Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014). Although there is statutory authorization for a $133 felony conviction fee and for a $60 drug court conviction fee, there is no statutory authorization for a copies/search fee or a criminal county drug court fee. Read opinion.

Commentary:

The court gives little insight into what these costs really were. Only statutorily authorized costs may be assessed, no matter how important the program is to local officials. A homegrown cost scheme once cost a major Texas county over a million dollars in lawsuit costs.

Texas Attorney General Opinion

KP-0137     3/20/17

Issue:

Does a grand jury have legal authority to deliver a report other than the return of indictments?

Conclusion:

No. The Legislature has authorized grand juries to inquire only into offenses that may be indicted and report their findings by return or rejection of an indictment. Code of Criminal Procedure Art. 2.03 does not grant the grand jury additional authority to issue reports other than indictments, and therefore, a district clerk has no legal obligation to accept a grand jury report prepared under Art. 2.03(a) as part of an investigation into official misconduct. Read opinion.

Commentary:

This is an interesting opinion. Many Texas counties report “no bills,” but that term is not mentioned in Article 2.03, and such a report seems inconsistent with this opinion.

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

Pena-Rodriguez v. Colorado

No. 15-606      3/6/17

Issue:

Does the no-impeachment-of-jury-verdict rule, which prohibits most post-verdict testimony about jury deliberations, preclude testimony that one juror relied on racial bias to convict a defendant?

Holding:

No. If a juror makes a clear statement during deliberations that he relied on racial bias to convict a defendant, under the 6^th Amendment, the no-impeachment rule (in Texas, T.R.Evid. 606(b)) must yield to permit the trial court to consider evidence of the juror’s statement. The Court noted that not every offhand comment indicating racial bias or hostility will justify setting aside the rule prohibiting testimony about jury deliberations. The defense must show that the statement casts serious doubt on the fairness of the jury’s deliberations and verdict, and racial animus was a significant motivating factor in the juror’s vote to convict. Read opinion.

Dissent (Thomas, J.):

Justice Thomas would hold that the Sixth Amendment does not give a defendant the right to impeach a jury trial. “In its attempt to stimulate a ‘thoughtful, rational dialogue’ on race relations … the Court today ends the political process and imposes a uniform, national rule. The Constitution does not require such a rule. Neither should we.”

Dissent (Alito, J., joined by Roberts, C.J. and Thomas, J.):

“Juries occupy a unique place in our justice system. … The jury trial right protects parties in court cases from being judged by a special class of trained professionals who do not speak the language of ordinary people and may not understand or appreciate the way ordinary people live their lives. To protect that right, the door to the jury room has been locked, and the confidentiality of jury deliberations has been closely guarded. Today, with the admirable intention of providing justice for one criminal defendant, the Court not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the Constitution. This is a startling development, and although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

Commentary:

No one disputes that a jury trial should be free from the blight of racism. But the majority opinion is heavy on polling other jurisdictions in support of its holding and light on a workable framework for litigants in the criminal justice system. Just what is a “clear statement” of “racial stereotypes or animus”? Well, we know it isn’t an “offhand comment indicating racial bias or hostility,” right? How much racial animus does it take to be a “significant motivating factor” in a verdict? Will we see more aggressive investigation of jurors post-verdict? And what can prosecutors do to ensure that the juries we pick do not harbor members who are infected with a mindset that might undermine our search for justice?

Texas Courts of Appeals

Smith v. State

No. 14-15-00502-CR     3/9/17

Issue:

Does a trial court’s erroneous inclusion of a jury charge at the punishment phase that “voluntary intoxication is not a defense to commission of a crime” require reversal?

Holding (Frost, C.J.):

No. While the charge was a correct statement of the law, it did not belong in the punishment-phase jury charge. In this plurality opinion, the majority opinion held that this unnecessary instruction might have made the charge imperfect, but it did not amount to error. Read opinion.

Concurrence (Jewell, J.):

The concurrence would find that including the voluntary intoxication language in the punishment charge was harmless error that did not require reversal. Read opinion.

Dissent (Christopher, J.):

The dissent would “apply a bright-line rule that guilt-innocence instructions should never appear in punishment-phase charges.” Read opinion.

Commentary:

An unusual split decision. Given the facts of the case and the underlying issue it is an excellent candidate for further review by the Court of Criminal Appeals. One thing missing in the three opinions is a discussion of the voir dire regarding punishment and mitigation. In a case like this the parties must have addressed the type of evidence that would be adduced in punishment and the jury’s role in responding to that evidence. Prosecutors briefing a case with a jury charge error should review voir dire if they must make a harm argument.

Whitfield v. State

No. 14-15-00820-CR     3/9/17

Issues:

(1) Does the Confrontation Clause required the State to call as a witness every individual who has been involved in DNA testing?

(2) Did postings on social media about this pending case by the prosecutor’s office violate the defendant’s due process rights and require a new trial?

Holding:

(1) No. Testimony from the lab supervisor who performed the analysis that determined the DNA match and testified to her own conclusions was sufficient to allow admission of the DNA evidence under Bullcoming v. New Mexico. The technician who prepared the underlying screening report was not a necessary witness.

(2) No. While the prosecutor office posting on Facebook and Twitter about pending cases “might present serious ethical and procedural concerns and might even compromise a defendant’s due process rights,” in this case, the trial court did not abuse its discretion in refusing to grant a new trial. During the hearing on the motion for new trial, none of the jurors said they saw or discussed any social media posts about the trial. Read opinion.

Commentary:

The DNA holding is built on a thorough rendition of the facts and should help prosecutors, along with Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), if you face similar objections to DNA testing. The social media holding should be viewed as a “how to protect your conviction” rather than a license to post comments on the internet during trial—save your tweets for after sentencing.

TDCAA Training: Prosecuting Violent Crimes

TDCAA will present a Prosecuting Violent Crimes seminar for prosecutors and investigators April 11–14 at the Omni Houston Hotel at Westside. The course will cover handling victims and witnesses, prosecuting multiple defendants, self-defense claims, eyewitness identification, DNA issues, weapons, and punishment. One day of the course will be dedicated to specialized tracks on sexual assault, child victims, and domestic violence, so attendees can choose which subject(s) they need to know most.  

     In addition, TDCAA will offer an extra 1.75 hours of MCLE for a separate, free presentation on domestic violence through a CJD grant from the Governor’s Office. Those who attend this additional training will receive a complimentary copy of TDCAA’s Protective Orders manual and a two-sided laminated sheet on POs. For more information or to register, click here.

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].