Texas Courts of Appeals

Alvarez v. State

No. 01-16-00407-CR                         8/30/18

Issues:

Is resisting arrest a lesser-included offense of assault on a public servant?

Holding:

No. Instructing the jury to consider resisting arrest as a lesser-included offense of assault on a public servant is fundamental error. With some exceptions, this fundamental error requires reversal, even if the defendant did not object to the instruction at trial. A defendant may not challenge on appeal a jury instruction that he affirmatively requested. Here, the defendant did not waive his right to appeal the issue by failing to object to the jury charge or saying he was “OK with it” when the State asked about the lesser-included offense instruction. Read opinion.

Commentary:

The Court of Criminal Appeals substantially changed the law of lesser-included offenses in Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007). Before prosecutors allow a lesser-included offense in the jury charge, we need to be secure in the knowledge that it fits within the Hall analysis. This case makes defending jury charges even more difficult by restricting the invited error doctrine—arguably this defense counsel did have a role in this situation. Let’s hope the Court of Criminal Appeals will review this case.

Allen v. State

No. 01-16-00768-CR                         8/30/18

Issues:

Is the “summoning witness/mileage” fee under Code of Criminal Procedure Art. 102.011 facially unconstitutional?

Holding:

No. Fees that are collected by courts acting as tax gatherers violate the separation-of-powers clause of the Texas constitution. However, fees that are directed by statute for criminal justice purposes are a proper judicial function of the court. Under Peraza, two types of court costs are constitutionally permissible: “(1) court costs to reimburse criminal justice expenses incurred in connection with that criminal prosecution and (2) court costs to be expended in the future to off-set future criminal justice costs.” Although Art. 102.011 does not direct the fees to be deposited in a separate account for criminal justice purposes, the fees do cover a direct expense incurred by the State in the prosecution of that particular case and are for a legitimate criminal justice purpose. This is distinct from Salinas, which did not address reimbursement-based court costs and is not applicable here. Read opinion.

Dissent (Jennings, J.):

“I would hold that Art. 102.011(a)(3) and (b) are facially unconstitutional as they ‘allocate[] [the] funds’ received for the ‘Summoning Witness/Mileage’ fee to the general revenue fund of either the county or the State and allow such money to be spent for purposes other than legitimate criminal justice purposes in violation of the Separation of Powers clause of the Texas Constitution. … Further, I continue to urge the legislature to reevaluate the fee system currently in place in light of the enormous, and potentially unjustified, burden it too often imposes on the poorest members of society ensnared in Texas’ criminal justice system.” Read opinion.

Commentary:

Another fight in the battle over how much of the cost of government should be borne by those who violate its criminal laws. The majority has an exhaustive analysis of how the law of fees applies to the particular fee in question. Because there are so many of these in play in criminal cases, it may be years before every cost and fee has been through this gauntlet.

Foreman v. State

Nos. 14-15-01005-CR to 14-15-01006-CR                                8/31/18

Issues:

May a magistrate reasonably infer the existence of surveillance equipment at a commercial property to find probable cause for the search and seizure of computers and hard drives located there?

Holding:

No. Magistrates may rely on common knowledge when finding probable cause in an affidavit for a search warrant. Common knowledge “consists of matters so well known to the community as to be beyond dispute.” This is not the case for surveillance video or equipment. When there is no evidence that a computer or other electronic equipment was directly involved in a crime, additional information must establish probable cause that the equipment exists and is located at the place to be searched. Here, the affidavit was insufficient to establish probable cause because it did not include any facts to support the belief that the auto body shop had surveillance equipment, such as cameras located outside the shop. Read opinion.

Dissent (Donovan, J.):

“Because [the defendant] did not meet his burden to show that he had standing to complain of the seizure under either privacy theory, I would conclude the trial court did not err by denying the motion to suppress. Furthermore, I would conclude the alleged error is not reversible. The error, if any, in admitting the videotape does not automatically merit reversal. … Because [the complainants] gave eyewitness accounts at trial as to [the defendant’s] involvement, I would conclude beyond a reasonable doubt that the error, if any, in admitting the video tape did not contribute to [the defendant’s] conviction.”  Read opinion.

Dissent (Jamison, J.):

“Ubiquitous. Surveillance cameras inside commercial properties have become ubiquitous. Convenience stores. Doggy daycare facilities. Casinos. Retail checkout lines. Interior commercial video surveillance systems, designed to prevent internal theft, vandalism, and other forms of criminal activity from occurring on an owner’s property or to catch those responsible for the activity, are everywhere. Yet, the majority holds that it was unreasonable for a magistrate to conclude that surveillance video or equipment had been installed inside the Dreams Auto Customs building. Because I find that this inference, supported by the facts and circumstances articulated in the search warrant affidavit, is reasonable, I respectfully dissent. I would hold that the trial court did not err in denying [the defendant’s] motion to suppress and affirm the trial court’s judgment.” Read opinion.

Commentary:

This is a rare en banc opinion. The 4th Amendment requires that a warrant affidavit establish that a particular thing is located in a particular place. Here, the court holds that a magistrate could not infer that a video surveillance system and stored videos were in the location searched based on an affidavit describing a robbery and items more normally associated with a robbery. What the officers could have done, once they were in the location and noticed the surveillance system, was obtain a new warrant authorizing a search and seizure of the system. This is a long opinion with multiple dissents but will be valuable to officers (and the prosecutors assisting them) as an object lesson of what to do if they find something different at a scene from what the warrant authorizes them to seize.

Announcements

Who’s coming to Galveston?

If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!

New TV documentary looking for Texas cases

The producers of a new TV documentary called “Murder for Hire” are seeking cases to potentially be featured on the show. It’s being co-produced by Dick Wolf (creator of the Law and Order series) and Shed Media, and the same folks produce “Criminal Confessions.” More information is available here.

Texas Courts of Appeals

State v. Hill

Nos. 05-13-00421-CR to 05-13-00425-CR                                8/15/18

Issues:

Are facts including undue influence by a civil litigant upon the district attorney and presentation of the indictment to the grand jury with impure motives sufficient to warrant dismissal with prejudice for prosecutorial misconduct?

Holding:

“The trial court had discretion to determine that [the defendant] not only overcame the presumption of regularity, but [also] presented clear evidence he was indicted in retaliation for the civil litigation involving his father and/or his former attorney. In addition, for these same reasons, the court could have determined that [the defendant] was denied his right to a disinterested prosecutor because [the district attorney] was under the influence of [the defendant]’s father and/or [the defendant]’s former attorney and that this influence conflicted with [the district attorney]’s duty to seek justice. … The facts of this case are egregious and amount to the kind of extraordinary circumstances that warrant the drastic measure of dismissal with prejudice. …To ensure that the State’s decision to prosecute [the defendant] would not be tainted by [the district attorney]’s involvement, the trial judge acted within her discretion in dismissing the indictments with prejudice. Given the prosecutorial misconduct in this case, such a drastic measure was appropriate.” Read opinion.

Commentary:

This decision is on remand from the Court of Criminal Appeals after the state’s high court held that a defendant can be entitled to an evidentiary hearing on a motion to quash or dismiss an indictment, at least if that motion was based upon prosecutorial vindictiveness or selective prosecution. The facts of this case are complex and messy, so it seems clear that this decision is bound by its unique facts and should not pose problems in defending against more typical claims of prosecutorial vindictiveness or selective prosecution that are based on little or no evidence. The “with prejudice” element of the court’s decision presents more problems, however. The necessity of a dismissal “with prejudice” does not seem required by these facts, and it is supposed to be an uncommonly rare occurrence in criminal cases in Texas. Yet the court deals with the “with prejudice” part of the trial court’s ruling in only one paragraph at the end of the opinion. We shall see if the Court of Criminal Appeals wishes to review these cases one more time.

Crawford v. State

No. 13-17-00383-CR                         8/23/18

Issues:

Does the charge of attempted sexual assault of a child require evidence that the minor actually exists?

Holding:

No. Attempted sexual assault of a child does not require evidence that the defendant actually communicated with the minor. The existence of the minor is not an element of the charge and a fictitious minor, such as an identity used during a sting operation conducted by police, does not render the evidence insufficient. Read opinion.

Commentary:

The court of appeals suggests that the offense of online solicitation of a minor (compared with the charged offense of attempted sexual assault) requires the existence of a minor. It does not. It requires only the existence of a person that the defendant believes to be under age 17. Nevertheless, prosecutors wanting to charge a case with this particular fact situation as attempted sexual assault of a child should read this decision, as well as the unpublished decision from the Beaumont Court of Appeals cited in this opinion. Cases with facts similar to these should be able to proceed under either attempted sexual assault of a child or online solicitation of a minor.

Office of the Attorney General

Opinion KP-0212               8/28/18

Issue:

Do Penal Code §§46.02–46.03 apply to presiding election judges licensed to carry a handgun under Government Code Chapter 411?

Opinion:

Penal Code §46.03, which creates an offense for carrying firearms at multiple locations, including a polling place, does not apply to presiding election judges licensed under Chapter 411 of the Government Code when performing their duties under Election Code §32.075(a).

Penal Code §46.035(a-l), (a-2), and (a-3) prohibit a presiding election judge from openly carrying a handgun on any institution of higher education campus and from carrying a concealed handgun in a location on campus where the institution prohibits carrying a handgun by rule.

Penal Code §§30.06 and 30.07 could prohibit a presiding election judge from carrying a handgun to a polling location on private property if proper notice was given under those sections. Read opinion.

Commentary:

This opinion gives a good analysis of the various provisions that might apply to an election judge who wants to carry a handgun on election day (or an early voting day).

Announcements

Who’s coming to Galveston?

If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!

New TV documentary looking for Texas cases

The producers of a new TV documentary called “Murder for Hire” are seeking cases to potentially be featured on the show. It’s being co-produced by Dick Wolf (creator of the Law and Order series) and Shed Media, and the same folks produce “Criminal Confessions.” More information is available here.

Texas Courts of Appeals

Young v. State

No. 01-17-00039-CR                         8/16/18

Issues:

Is an officer permitted to remove and search a pill bottle from a defendant’s pocket while conducting a Terry frisk?

Holding:

No. Under the plain-feel doctrine, an officer conducting a lawful pat-down may seize a non-weapon object “whose contour or mass makes its identity immediately apparent as contraband.” An officer must have probable cause to believe the item is contraband before seizing it, without the necessity of any further search. The plain-feel doctrine does not justify an officer’s removal and search of a pill bottle. An officer could not have probable cause based on feel alone that a pill bottle, a common object with plenty of legitimate uses, contained contraband. Read opinion.

Commentary:

This decision represents a good expression of the plain-feel doctrine. The opinion cites to all of the relevant cases and presents the theory behind the doctrine. Prosecutors with a plainfeel case should definitely read this decision, especially if the item that the officer felt was a pill bottle or some other container that would not necessarily contain contraband.

Marson v. State

No. 11-16-00209-CR                         8/16/18

Issues:

Does Double Jeopardy bar prosecution for aggravated assault of a public servant when the defendant has already been convicted of the same offense in an adjacent county?

Holding:

Yes. Whether a charge is barred by Double Jeopardy depends on the allowable unit of prosecution. The allowable unit of prosecution for an assaultive offense is one unit per victim. Here, the defendant shot at two officers during a pursuit spanning both counties. The defendant may be convicted of only two counts of aggravated assault of a public servant, one for each officer at whom he fired. Because he was convicted for aggravated assault on both officers, further prosecution by the adjacent county is barred by Double Jeopardy. Read opinion.

Commentary:

This decision is a correct expression of current law regarding assault. But an argument certainly could be made that if you point a gun at a victim and thereby threaten the victim, you have committed one offense, and that if you point that gun at that same victim a short time later, you have committed another offense. That is not the current state of the law. Prosecutors with an assault case thinking about pursuing more than one conviction should carefully read this decision and the decisions upon which it relies. The law is not in their favor.

Announcements

Who’s coming to Galveston?

If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!

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

McMinn v. State

No. 14-17-00407-CR                         8/14/18

Issues:

Is a photograph of a Play-Doh figurine made spontaneously by the victim during an interview at a child assessment center hearsay?

Holding:

No. Hearsay requires a “statement” defined as “a person’s oral or written expression, or nonverbal conduct that a person intended as a substitute for verbal expression.” A photograph is not a statement unless it depicts nonverbal conduct as a substitute for verbal expression, such as a drawing made in response to a direct question. Here, the victim made the figurine spontaneously, not in response to a question; thus, the nonverbal conduct was a not a substitute for verbal expression and hearsay does not apply. Read opinion.

Commentary:

This particular issue may never come up in most prosecutions, but it provides a good breakdown of the law in this area. The case is unusual because—for some reason—the defendant did not complain about the admission of the child victim’s statement, “Look what I made,” or the victim’s description of what the figurine allegedly depicted—the defendant’s sexual organ.

Announcements

Who’s coming to Galveston?

If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!

Because no notable cases were issued by Texas courts in the last week, TDCAA will not have case summaries for August 10, 2018. We will return with summaries on August 17.

Who’s coming to Galveston?

            If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!

Texas Courts of Appeals

Ex parte Martinez

No. 04-17-00280-CR                         7/31/18

Issues:

Does Double Jeopardy bar retrial after the defendant requests a mistrial?

Holding:

Maybe. Double Jeopardy does not bar retrial after a mistrial on the defendant’s own motion unless the State goads the defendant into requesting a mistrial or the State “intentionally fails to disclose exculpatory evidence with the specific intent to avoid an acquittal.” Here, the first chair prosecutor did not disclose to the defense until the day of trial that a prosecutor in his court, who was screened from the case, had a one-time encounter with a witness several years before the crime occurred. Retrial is not barred because the prosecutor did not act with the intent to goad the defense into a mistrial or withhold Brady information in an attempt to avoid an acquittal. Read opinion.

Dissent (Martinez, J.):

Retrial should be barred by Double Jeopardy because the State waited until after the jury had been sworn in to inform the defense about possible impeachment evidence on a key State witness. The prosecutor’s desire to “protect his fellow prosecutor’s reputation” was not a good faith explanation for the conduct and the omission was clearly erroneous under the Wheeler factors. Additionally, the District Attorney’s threat to “shut down the defense lawyer’s practice” if he alleged prosecutorial misconduct showed an intent to force the defense to accept a mistrial. Read opinion.

Commentary:

This is a very complicated case, both factually and legally. The facts take up the first 20 pages of the 39-page opinion. The court of appeals applies the test of Oregon v. Kennedy as modified slightly by the Court of Criminal Appeals in Ex parte Masonheimer, but it also extensively applies the factors of Ex parte Wheeler, which was decided by the Court of Criminal Appeals before the Court of Criminal Appeals had adopted Kennedy as the controlling test for this type of Double Jeopardy violation. The opinion gives deference to the factual conclusions of the trial court in denying the defendant’s Double Jeopardy claim. Because this is a Double Jeopardy claim and because there is a dissenting opinion, you might expect the Court of Criminal Appeals to review this decision, but it should hold up because—despite the dissenting opinion—its extensive analysis is very strong.

Bordelon v. State

No. 04-17-00093-CR                         7/31/18

Issues:

Does manifest necessity for a mistrial bar application of Double Jeopardy when defense counsel is required to withdraw due to becoming an outcry witness for a child witness?

Holding:

Yes. As a general rule, Double Jeopardy bars retrial after a mistrial against the defendant’s wishes. Double Jeopardy does not bar retrial after a mistrial if the defendant consents to the retrial or if there was a “manifest necessity to grant a mistrial.” There is manifest necessity for a mistrial when it is impossible to arrive at a fair verdict, it is impossible to continue the trial, or the verdict would be automatically reversed on appeal because of trial error. Here, the entire defensive strategy relied on the testimony of a child witness refuting the claims of abuse by the victim. After the State rested, defense counsel interviewed the witness and was required to recuse herself after the witness made an outcry statement. There was manifest necessity for a mistrial because the defendant would have been prejudiced before the jury by the need for a new attorney and the failure to present the witness key to the defense strategy. Read opinion.

Commentary:

As with Martinez above, this is a unique fact situation. A trial judge should be very cautious about ordering a mistrial when the defense has not moved for one. But in this case, it appears that the trial judge had no choice but to allow defense counsel to withdraw and order a mistrial. If you want to learn about these two different types of double jeopardy claims, be sure to read these two decisions.

Hinojosa v. State

No. 10-15-00356-CR                         7/25/18

Issues:

Does Code of Criminal Procedure Art. 39.14 require the State to provide discovery of evidence substantiating extraneous offenses?

Holding:

No. Art. 39.14 requires the State to disclose exculpatory information or items timely requested by the defendant. Notice requirements of extraneous offenses are governed by Rule of Evidence 404(b). Absent a request for production, Art. 39.14 does not apply to evidence of extraneous offenses. Read opinion.

Commentary:

This is a short—but very helpful—decision. If an item of evidence is not exculpatory (such as an extraneous offense), the State is not required to disclose it, even under Art. 39.14, if the defense has not made a request. But in most cases, defendants will make such requests—under either Art. 39.14, Rule 404, or both—so prosecutors should generally be prepared to disclose the information.

Carrera v. State

No. 10-16-00372-CR                         7/25/18

Issues:

Are exhibits such as a county policies manual and demonstrative photos of the county jail discoverable under Code of Criminal Procedure Art. 39.14?

Holding:

Maybe. The definition of “material” in Art. 39.14 is the same now as before the 2014 amendment. Under this definition, evidence is material and subject to mandatory disclosure if it is “indispensable to the State’s case” or there is “a reasonable probability that its production would result in a different outcome.” Here, the defendant made no showing that the exhibits were material and subject to disclosure under Art. 39.14. Read opinion.

Commentary:

Be careful with this decision. It relies on some recent court of appeals authority for its key holding, but precious little recent Court of Criminal Appeals authority. The court even notes that its decision might have been different if not for the prior older cases that had already been decided on the issue of what is “material.” The court has identified a key concern in the development of Art. 39.14 and its transformation into the Michael Morton Act that has not been squarely addressed by the Court of Criminal Appeals. The word “material” has always been in the statute and, over many decades, has been repeatedly interpreted to mean one thing by the Court of Criminal Appeals. You may have read briefs and heard speeches regarding the proposition that “material” means something new and different after the passage of the Michael Morton Act, and that is almost certainly true. But the court of appeals relies upon rules of statutory construction that would preclude the newer meaning of the word “material.” Until the Court of Criminal Appeals gives more guidance, prosecutors should be very, very hesitant—at the very, very least—in deciding not to disclose something to the defense, especially if it is important to the case.

Watkins v. State

No. 10-16-00377-CR                         7/25/18

Issues:

Does Code of Criminal Procedure Art. 39.14 require the State to turn over extraneous offense records such as book-in records, pen packets, and judgment/sentence records from prior convictions used during the punishment phase of trial?

Holding:

Maybe. Punishment evidence and evidence of extraneous offenses may be subject to disclosure under Art. 39.14 if it is material. Here, the documentary evidence of extraneous offenses was not material because there was not a reasonable probability that the outcome of the trial would have been different or that the defendant would have received a lesser sentence if the documents had been produced. Read opinion.

Commentary:

As with Carrera above, be very cautious with this decision until  the Court of Criminal Appeals or the Legislature gives more guidance on this matter. The court of appeals stated that it would have decided the controversy in this case differently if it were not for the long-standing interpretation of the word “material.” The court even noted an amicus brief filed by the State Prosecuting Attorney on this matter and called the brief “well-reasoned and sound,” which it is. We should stay tuned for further guidance from the Court of Criminal Appeals.

Majors v. State

No. 10-17-00041-CR                         7/25/18

Issues:

Does a motion for discovery that is not ruled on suffice as a request for discovery triggering the State’s duty under Code of Criminal Procedure Art. 39.14?

Holding:

No. A motion for discovery is addressed to the court and requests an order from the court to direct the State to produce evidence. A discovery request is directed at the State and asks the State to produce evidence without intervention by the court. When a document seeks an action from the trial court, it cannot also serve as a request to the State until it is ruled on by the court. Here, the State had no duty to produce the items in the motion for discovery because the defendant did not seek a ruling from the trial court or otherwise request production of the evidence. Read opinion.

Commentary:

This decision is on stronger footing. The analysis is brief, but caselaw has uniformly required a “request,” as is set forth within the express wording of the statute. Caselaw has also uniformly held in this and other contexts that a “motion” does not constitute a “request.” But as always, a prosecutor should be mindful of office policies as well as the ethical rules in deciding whether to turn something over to the defense.

Texas Courts of Appeals

In re State of Texas

No. 08-18-00070-CR                         7/18/18

Issues:

May a trial court order the State to make photographic copies of digital child pornography images to admit them into evidence?

Holding:

No. Evidence may not be excluded as irrelevant simply because it is not offered in the format required by the trial court. While a trial court has broad discretion in managing the course of a trial, the court may not dictate the form a party’s evidence must take unless it is required to “ascertain[] the truth, promot[e] judicial economy, and protect[] witnesses.” Here, the court further abused its discretion by excluding the evidence as a punitive measure against the State for refusing to make paper copies of the images. Read opinion.

Commentary:

This case arises from an unusual mid-trial mandamus. The State had to prove that the trial court lacked any discretion as to the format of the evidence the State offered. While this case might be relevant to trial disputes about redaction, video format, and enlargements, prosecutors should read the opinion carefully before going to war over a trial exhibit.

State v. Smith

No. 06-18-00043-CR                         7/24/18

Issues:

Is a report that a man named “Smith” was banging on the complainant’s door and drove off in a “silver Mercedes pickup” sufficient to support reasonable suspicion for a traffic stop?

Holding:

No. Information provided to officers need not point toward an identifiable Penal Code offense but must have sufficient details and reliability to “support the reasonable suspicion that criminal activity is about to occur.” Here, the police report lacked details such as the duration of the banging, how loud it was, the nature of the relationship between the complainant and defendant, whether the defendant had threatened the complainant, or whether the defendant would return. The sparse report gave “no indication of crime being afoot.” Read opinion.

Commentary:

What seems to be missing here are the contents of the 911 call itself. Typically, a caller will either describe an offense or the 911 operator will ask sufficient questions that an offense is identifiable. The absence of information other than “pounding the door” may distinguish this case from Navarette v. California, 134 S.Ct. 1683 (2014) (911 call stating that a pickup truck nearly ran her off the road provided reasonable suspicion for traffic stop) and similar cases.

Texas Courts of Appeals

Timmins v. State

No. 04-17-00187-CR                         7/18/18

Issues:

Is evidence that a defendant failed to report to jail as ordered after his bail was revoked sufficient to support a conviction under Penal Code §38.10 (Bail Jumping and Failure to Appear)?

Holding:

Yes. Penal Code §38.10 requires that a defendant be “released” from custody and later fail to “appear” as ordered. Here, the defendant’s presence was required during the hearing, and he was not permitted to leave the courtroom. After his bail was revoked, the defendant was free to leave only when the judge permitted him to accompany his elderly mother back home on the condition that he report to the county jail afterward. The defendant was “released” under the plain meaning of the word. The term “appear” is construed according to the specific terms of the defendant’s release from custody. This could include an “appearance” at a judicial proceeding, but also any other place the defendant may be required to report as a condition of his release. Here, the defendant failed to appear when he did not report to the county jail as ordered. Read opinion.

Commentary:

The Court engaged in a lengthy statutory analysis to arrive at its conclusion. But what the defendant did really fits within the plain language, and the equities were all on the side of backing up a merciful trial judge.

Ex parte Espada

No. 04-17-00509-CR                         7/18/18

Issues:

Does Double Jeopardy prevent the State from seeking the death penalty again after a defendant’s first death sentence was overturned based on perjured testimony in the punishment phase?

Holding:

No. A defendant is entitled to a new punishment hearing when the verdict during the punishment phase of trial relied on perjured testimony presented by the State. Double Jeopardy does not bar a new punishment hearing because the sentence was set aside based on procedural error, not for lack of evidence. This is distinct from a case where a prosecutor’s Brady violation goads a mistrial, barring retrial, because this case was tried to conclusion and the perjured testimony was not discovered until after conviction. Read opinion.

Commentary:

This is a very interesting case. The defendant will likely raise this claim again post-conviction if he is sentenced to death again, which seems likely based on the horrific facts of his murders. Prudent prosecutors trying an important case and using a former officer as a witness should review the officer’s history with his agency if there is anything that doesn’t seem right about him.