Texas Court of Criminal Appeals

Niles v. State

Nos. PD-0234-17 & PD-0235-17                 6/13/18

Issue:

Is the failure to include a jury instruction on an element of an offense included in the charging instrument subject to a harm analysis?

Holding:

Yes. Under Apprendi, any sentencing factor that increases the maximum punishment range must be submitted to the jury and proved beyond a reasonable doubt. The failure to submit a sentencing factor to the jury violates a defendant’s Sixth Amendment right to a jury trial, but it is not structural error. A jury instruction that omits an element of the offense does not “necessarily render a criminal trial fundamentally unfair” and is therefore subject to a harm analysis. Read opinion.

Dissent (Yeary, J.):

On direct appeal the defendant argued that his sentence was illegal because the jury charge failed to include an element that raised the charge from a class B misdemeanor to a class A misdemeanor. The Court, on accepting a petition for discretionary review from the State Prosecuting Attorney, reframed this appeal as a jury charge error, not an illegal sentence. The State did not preserve any objection to the jury charge and the cases relied on by the SPA are distinguishable. Additionally, the defendant was not given the opportunity to argue on remand that the error was structural as a matter of state law. Read opinion.

Commentary:

This opinion will largely be of interest to appellate prosecutors, as it deals with the type of error that is involved and whether a harm analysis should apply. There is also some important language in the opinion about the ability of the State Prosecuting Attorney to represent the State on appeal, even to the point of taking a different position on appeal than that of the local district or county attorney. It might be assumed that, on remand, the court of appeals will find the jury charge error in this case to be harmful because a crucial element was omitted from the jury charge. The bottom line is, even if that occurs, the State would then be free to prosecute the defendant again for a Class A misdemeanor, not just a Class B misdemeanor.

White v. State

No. PD-0442-17                6/13/18

Issue:

Is the State required to prove that a recording does not violate Code of Criminal Procedure Art. 38.23 before entering it into evidence?

Holding:

No. If the defendant does not show any evidence of a statutory violation, the State does not have the burden to prove that the recording was made legally. Here, the preponderance of the evidence established that the recording did not violate Penal Code §16.02, even if the State did not present evidence that the third party who gave the recording to the victim recorded it himself. Read opinion.

Concurrence (Keller, P.J.):

A defendant who claims that evidence should be excluded under Art. 38.23 for violation of a statute is in the same position as a prosecutor charging a crime under the same statute, except that the defendant’s burden of proof is by a preponderance of the evidence. The defendant must prove a statutory violation before the State is required to prove any “affirmative defenses.” Read opinion.

Commentary:

The factual dispute in this case is whether a party to a conversation recorded that conversation and, therefore, consented to the recording of that conversation. That factual dispute was answered at trial in the State’s favor and appears to be correct, even though the evidence on that subject was not crystal-clear. The legal issue in this case deals with who has the burden of proof regarding the admissibility of evidence in general, and who has the burden of proof regarding the admissibility of evidence that is alleged to have been illegally obtained in particular. Presiding Judge Keller, in her concurring opinion, offers a slightly different approach in answering that question, and it is notable that she got several other judges to join her opinion—just one short of a majority. Thinking about and trying to understand these legal issues too long can make your head hurt, so read carefully.

Lee v. State

No. PD-0736-17                6/13/18

Issue:

Is a defendant entitled to a mistrial when he fails to request a curative instruction that could have remedied the error of mentioning evidence in an opening statement that ultimately was not admissible?

Holding:

No. A defendant is not required to request lesser remedies, such as a curative instruction, to move for a mistrial. However, the trial court may choose to deny a request for mistrial when the lower remedy would have cured the error. Here, the State’s opening statement referenced BAC tests that were later ruled inadmissible. The trial court did not abuse its discretion by denying the request for a mistrial because the defendant did not ask for a jury instruction to disregard any mentions of BAC testing in the opening statement, which would have cured the error. Read opinion.

Commentary:

You may have heard that, in order to preserve error, a defendant must object, ask for an instruction to disregard, and move for a mistrial—in that order. In fact, defense counsel can go straight to moving for a mistrial if he thinks that the error was bad enough, but he better be right. In this case, defense counsel was not. An instruction to disregard would have been sufficient to cure error, so the court of appeals should not have addressed whether the defendant was entitled to a mistrial.

Announcements:

From our friends at the OAG’s Human Trafficking and Transnational/Organized Crime Section:

Backpage record certification requests should be sent to [email protected]. Please remember to attach the records you need certified and the certification document that you are requesting be completed and returned to you. Please allow 2-3 days for your request to be processed. If you have a record certification request that requires urgent attention, indicate that by including the word “URGENT” in the subject line of your email.

Additionally, the FBI and its law enforcement partners are continuing to put processes in place to make historical Backpage data available to federal, state, and local law enforcement officials for use in ongoing investigations and prosecutions. Further information and guidance will be disseminated as soon as these processes are in place.

Please share this information with your state and local law enforcement partners. This information will also be posted on backpage.com.

Recent changes to forensics accreditation requirements:

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which went into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: https://www.youtube.com/watch?v=ZiWabgbOL9o

Texas Court of Criminal Appeals

Zuniga v. State

No. PD-0174-17                6/6/18

Issue:

Does a charge of engaging in organized criminal activity for committing murder as a member of a criminal street gang require proof of the defendant’s intent to “establish, maintain, or participate as a member of a criminal street gang?”

Holding:

No. In Penal Code §71.02, the phrase “establish, maintain, or participate” applies only to the immediately following phrase “in a combination or in the profits of a combination.” It does not apply to the element of being a member of a criminal street gang. The hypothetically correct jury charge for engaging in organized crime would require proof that 1) “as a member of a criminal street gang,” the defendant, 2) committed murder. The “as a member of a criminal street gang” element requires proof that the defendant was acting in the role, capacity, or function of a gang member at the time of the offense. Read opinion.

Commentary:

This is a good decision on the statutory construction of §71.02 for prosecutors relying upon the “criminal street gang” form of engaging in organized criminal activity. This is also a good decision to read for prosecutors who need to prove that the defendant is a member of the criminal street gang, because this defendant challenged that as well. The Court also makes the important point that the State is not required to prove a gang-related dispute between the victim(s) and the criminal street gang. The State is required only to prove that the defendant was acting pursuant to his role or capacity as a gang member at the time that he committed the offense. The evidence needs to show only some nexus or relationship between the commission of the predicate or underlying offense and the defendant’s gang membership.

Bien v. State

Nos. PD-0365-16 & PD-0366-16                 6/6/18

Issue:

Could conviction of both attempted capital murder and criminal solicitation of capital murder violate double jeopardy?

Holding:

Yes. Based on the pleadings in this case, attempted capital murder and solicitation of capital murder are the “same offense” under the Blockburger test. The attempt charge alleged that the act amounting to “more than mere preparation” was employing a hitman to kill the defendant’s former brother-in-law. This is the same act alleged in the solicitation charge. The solicitation charge also requires proof that the defendant believed the conduct he was soliciting constituted capital murder. This element is the functional equivalent of the intent to commit capital murder in the attempt charge. The Blockburger test is not controlling when there is clear legislative intent to impose multiple punishments, but no such intent is clear here. Read opinion.

Dissent (Yeary, J.):

“Here, the evidence shows that [the defendant] engaged in conduct on two discrete occasions whereby he approached [an undercover officer] in an attempt to engage him to commit murder for remuneration. … It is at least arguable that the double jeopardy issue in this case is not fully governed by the Blockburger/cognate pleadings ‘elements’ approach; that there is a ‘units of prosecution’ component to the double jeopardy analysis that must be addressed as well. ‘When two distinct statutory provisions are at issue, the offenses must be considered the same under both an ‘elements’ analysis and a ‘units [of prosecution]’ analysis for a double jeopardy violation to occur.’ Benson, 459 S.W.3d at 71. … I do not think the double jeopardy issue is fully resolved until this possibility is explored.” Read opinion.

Commentary:

This is yet another double jeopardy case in which the court has used the “functional equivalence” test in deciding whether elements of two offenses are the same for double jeopardy purposes. Prosecutors should be cautious when attempting to gain more than one conviction for a defendant based upon the same scheme or course of conduct.

Ramjattansingh v. State

No. PD-0972-17                6/6/18

Issue:

Is the State required to prove an unnecessary element erroneously added to the charging instrument and jury charge?

Holding:

No. When a jury instruction adds an element to the charged crime, challenges to the sufficiency of the evidence are assessed only against the elements of the crime from a hypothetically correct jury charge. A hypothetically correct jury charge will not include the added element unless the variance is material. An unnecessary element that does not relate to the unit of prosecution is immaterial. This still applies even if the State included the element in the charging instrument and did not object to the unnecessary element in the jury charge. Here, the defendant was charged with a DWI enhanced to a Class A misdemeanor by having a BAC over 0.15 at the time of testing. The additional element alleging that the defendant had a BAC over 0.15 at the time of driving is immaterial. Read opinion.

Commentary:

In this decision, the court did not expressly decide that the evidence was sufficient to show that the appellant’s BAC was over 0.15, although that can certainly be discerned from the facts set forth within the opinion. The court expressly decided only 1) what would constitute the hypothetically correct jury charge as part of a correct analysis of the sufficiency of the evidence, and 2) that the State did not essentially invite an analysis other than that based upon the hypothetically correct jury charge. The court remanded the case back to the court of appeals to conduct the correct sufficiency analysis. As such, this decision may be of interest only to appellate lawyers. In that respect, the opinion may now be the court’s most comprehensive decision on the types of variances parties will confront when the defendant challenges the sufficiency of the evidence based upon a variance. This is set forth at the end of Part II of the court’s opinion.

Ex parte Moore

No. WR-13,375-05           6/6/18

Issue:

What are the criteria for evaluating intellectual disability under the DSM-5?

Holding:

In response to Moore v. Texas, 137 S.Ct. 1039, the Court of Criminal Appeals abandoned the Briseno evidentiary factors and adopted the DSM-5 approach to evaluating a defendant for intellectual disability. The DSM-5 has three criteria for finding someone to be intellectually disabled: “(A) deficits in general mental abilities, (B) impairment in everyday adaptive functioning, in comparison to an individual’s age-, gender-, and socioculturally matched peers, and (C) onset during the developmental period.” The DSM-5 retains a requirement that adaptive deficits be related to intellectual functioning deficits. Under this new standard, the Court concluded the defendant failed to show that he is intellectually disabled. Read opinion.

Dissent (Alcala, J.):

“The sole issue in this case is whether [the defendant] has established that he is intellectually disabled such that his execution for capital murder would be prohibited by the Eighth Amendment to the federal Constitution. I conclude that, under current medical standards described in the Diagnostic and Statistical Manual of Mental Disorders and the manual of the American Association on Intellectual and Developmental Disabilities, [the defendant] has met his burden to show that he is intellectually disabled. He is, therefore, categorically exempt from the death penalty because his execution would violate the Eighth Amendment’s prohibition on cruel and unusual punishment.” Read opinion. 

Commentary:

At long last, in the continued absence of legislative action on this issue, the Court of Criminal Appeals has issued a new test for determining intellectual disability (what used to be called mental retardation). This is now the leading decision on that issue from the court, both in terms of the expression of the new test and also in the application of that new test. Keep your eyes on this decision as the defendant may again ask for review by the United States Supreme Court.

Ex parte Kussmaul; Ex parte Long; Ex parte Pitts; Ex parte Shelton

Nos. WR-28,586-09; WR-28,772-02; WR-35,508-03; WR-84,754-01             6/6/18

Issue:

Could new DNA evidence identifying two unknown suspects in a sexual assault and capital murder case against four defendants entitle the defendants to relief under Code of Criminal Procedure Art. 11.073 and actual innocence?

Holding:

Yes, the defendants are entitled to relief under Art. 11.073. No, the defendants have not met the burden of proof for relief under an actual innocence claim. A defendant is entitled to relief under Art 11.073 when 1) new scientific evidence is available, 2) the evidence would have been admissible at the time of the original trial or plea, and 3) by a preponderance of the evidence, had the evidence been presented at trial the defendant would not have been convicted. This is an easier standard to meet than that for a claim of actual innocence. Although the new exculpatory DNA evidence is sufficient to meet the standard under Art. 11.073, it was insufficient to meet the standard for actual innocence given the other evidence presented by witnesses at trial connecting the defendants to the assault. Read opinion.

Commentary:

As is the case with most DNA exoneration and actual-innocence cases, this decision is very lengthy and very fact-bound. Prosecutors responding to a DNA exoneration claim or an actual-innocence claim should definitely read this decision. Be prepared—it is well over 70 pages long, with the first 50 taken up by the facts and procedural history. It should give the picture of the difficult task at hand in responding to these types of claims. Now the State is faced with the equally difficult task of deciding whether and how to prosecute these cases again.

Texas Courts of Appeals

Thomas v. State

Nos. 14-17-00240-CR to 14-17-00242-CR               5/31/18

Issue:

May a trial court consider a defendant’s untruthfulness during a punishment hearing when assessing punishment?

Holding:

Yes. Code of Criminal Procedure Art. 37.07 allows the State and the defendant to offer evidence of “any matter the court deems relevant to sentencing.” The court may properly consider a defendant’s conduct during trial and truthfulness while under oath. A trial court sitting as the fact-finder must weigh the credibility of the witnesses, including a defendant who chooses to testify. Defendants who plead guilty and testify truthfully tend to demonstrate true remorse and may receive leniency from the court when the sentence is assessed. A defendant who professes honesty in hopes of a more lenient sentence must accept the consequence if the court finds he has testified untruthfully. Read opinion.  

Commentary:

You may not have known that you needed a decision that says that a trial judge can consider the defendant’s credibility when assessing the defendant’s punishment. But here it is.

Announcements:

From our friends at the OAG’s Human Trafficking and Transnational/Organized Crime Section:

Backpage record certification requests should be sent to [email protected]. Please remember to attach the records you need certified and the certification document that you are requesting be completed and returned to you. Please allow 2-3 days for your request to be processed. If you have a record certification request that requires urgent attention, indicate that by including the word “URGENT” in the subject line of your email.

Additionally, the FBI and its law enforcement partners are continuing to put processes in place to make historical Backpage data available to federal, state, and local law enforcement officials for use in ongoing investigations and prosecutions. Further information and guidance will be disseminated as soon as these processes are in place.

Please share this information with your state and local law enforcement partners. This information will also be posted on backpage.com.

Recent changes to forensics accreditation requirements:

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which went into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: https://www.youtube.com/watch?v=ZiWabgbOL9o

Supreme Court of the United States

Collins v. Virginia

No. 16-1027       5/29/18

Issue:

Does the automobile exception to the warrant requirement allow entry into the curtilage of a home to search a vehicle?

Holding:

No. The curtilage of the home is given the same protection as the home itself. A warrantless search of the home or its curtilage is presumptively unreasonable, with few exceptions. The scope of the automobile exception is limited to the vehicle itself. An officer must also have a lawful right of access to the vehicle to conduct the search. Read opinion.

Concurrence (Thomas, J.):

“I join the Court’s opinion because it correctly resolves the Fourth Amendment question in this case. Notably, the only reason that [the defendant] asked us to review this question is because, if he can prove a violation of the Fourth Amendment, our precedents require the Virginia courts to apply the exclusionary rule and potentially suppress the incriminating evidence against him. I write separately because I have serious doubts about this Court’s authority to impose that rule on the States. … We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution. We should do so.” Read opinion.

Dissent (Alito, J.):

“The Fourth Amendment prohibits ‘unreasonable’ searches. What the police did in this case was entirely reasonable.” Whether a search takes place in the curtilage of a house determines only whether the search is governed by the Fourth Amendment. It is irrelevant for any further analysis into the reasonableness of a warrantless search. The reasons behind the automobile exception still apply to a vehicle parked in the driveway of a house, and no further exigency is required to justify the search. Read opinion.

Commentary:

Application of this case will require prosecutors to get educated on what constitutes the “curtilage” of a home. This case will probably change the way prosecutors think about automobile searches when the automobile is parked in a driveway. For example, Keehn v. State, 279 S.W.3d 330 (Tex. Crim. App. 2009) upheld the search of a vehicle that was parked next to a residence. It is not clear whether Keehn is still good law after Collins. But do not read this case to prevent all searches of vehicles that are parked in driveways because not all parts of a driveway are part of a home’s “curtilage.” This case also dealt only with the “automobile exception.” It did not deal with any other “exigent circumstances” argument that could be made.

Announcements:

From our friends at the OAG’s Human Trafficking and Transnational/Organized Crime Section:

Backpage record certification requests should be sent to [email protected]. Please remember to attach the records you need certified and the certification document that you are requesting be completed and returned to you. Please allow 2-3 days for your request to be processed. If you have a record certification request that requires urgent attention, indicate that by including the word “URGENT” in the subject line of your email.

Additionally, the FBI and its law enforcement partners are continuing to put processes in place to make historical Backpage data available to federal, state, and local law enforcement officials for use in ongoing investigations and prosecutions. Further information and guidance will be disseminated as soon as these processes are in place.

Please share this information with your state and local law enforcement partners. This information will also be posted on backpage.com.

Recent changes to to forensics accreditation requirements:

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which went into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: https://www.youtube.com/watch?v=ZiWabgbOL9o

Court of Criminal Appeals

Oliva v. State

No. PD-0398-17      5/23/18

Issue:

Is the existence of a prior conviction in a DWI-second case an element of the offense that must be proved during guilt-innocence or a punishment issue?

Holding:

A punishment issue. Although a prosecution for felony DWI requires two prior convictions to be proved during guilt-innocence, the existence of one prior conviction for misdemeanor DWI (elevating the second DWI offense from a Class B to a Class A misdemeanor under Penal Code §49.09(a)) is a punishment issue. Read opinion.

Concurrence (Richardson, J.):

The “DWI statute is ambiguous on this issue, and the Legislature has not clarified whether a prior conviction that changes the degree of the DWI offense constitutes an ‘element’ of the enhanced offense or serves merely as a punishment enhancement. Because I ultimately agree with the majority that there are policy considerations in preventing prejudice that would arise from informing the jury of extraneous offenses before a finding of guilt, respectfully, I concur in the result.” Read opinion.

Dissent (Keasler, J., joined by Yeary, J.):

The dissent contends that the Court’s decision conflicts with Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005). “I think that our jurisprudence would be better served, and the lower courts’ future interpretive endeavors made easier, by adopting a bright-line rule: Absent clearly expressed legislative intent to the contrary, when a penal provision states that proof of a particular fact affects the degree of offense (e.g., ‘is a Class A misdemeanor’), rather than just the applicable punishment range (‘is punishable as a Class A misdemeanor’), that fact must be proven in the guilt phase of trial. This rule, applied to the language of Penal Code Section 49.09(a), means that a defendant’s single prior DWI conviction must be proven in the guilt phase of a second-offense DWI trial.” Read opinion.

Commentary:

This opinion ends the split of authority as to when the jury hears about the prior offense in DWI-second offense prosecutions. But, given the Court’s discussion of the issue, be prepared for litigation regarding when prior convictions are presented in other offenses. It seems the Legislature and the courts are not always consistent in the language they use to enact and construe criminal statutes targeting repeat offenders. Also interesting is that the majority spent multiple pages in a detailed response to the dissenting judges—those responses are typically measured in paragraphs or footnotes.

Miller v. State

No. PD-0891-15         5/23/18

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 demonstrating that the defendant would have opted for a jury if his attorney had correctly advised him that he was ineligible for probation from the trial court. On rehearing, the Court concludes that the defendant does not have to show that the likely outcome of the jury trial he waived would have been more favorable than the trial before the court. Read opinion.

Concurrence (Newell, J.; joined by Walker, J.):

“Appellant faced a choice between the certainty that the judge could not award him probation and the almost certainty that a jury would not award him probation. As in Lee [v. United States, 137 S.Ct. 1958 (2017)], that ‘almost’ is enough to establish prejudice. As Professors Dix and Schmolesky have observed of our original opinion in this case, ‘In light of Lee, the plurality in Miller is apparently wrong.’ I agree. And it is better to fix the error now on rehearing.” Read opinion.

Dissent (Keller, P.J.):

“[E]ven if the deprivation of a jury trial that was alleged to have occurred here were structural, the usual prejudice analysis under Strickland might still be appropriate. And even if a deviation from the usual prejudice analysis were warranted, it might be warranted only for punishment—what the defendant says he wanted the jury for.” Read opinion.

Dissent (Alcala, J.; joined by Keller, P.J. and Keasler, J.):

“Should this Court greatly expand upon Supreme Court precedent describing the law for claims of ineffective assistance of counsel so as to permit a defendant to obtain a new trial when an exhaustive review of the evidence introduced in the guilt and punishment phases of his trial shows that the outcome of his case was not prejudiced by his attorney’s complained-of bad advice? I respectfully disagree with this Court’s majority opinion that appears to answer this question ‘yes.’ Rather than expanding a defendant’s federal constitutional right to effective counsel in a manner that goes beyond the parameters set forth by the Supreme Court, I would apply that Court’s precedent in Strickland v. Washington, 466 U.S. 668 (1984). Read opinion.

Commentary:

The opinion follows Lee and opens up new avenues of attack in post-conviction litigation in Texas. This child molester will likely receive a new trial on remand, and the lawyer who gave the bad advice may never be sanctioned. No one disputes that the defendant is very unlikely to do better in a jury trial.

Flores v. State

No. PD-1189-15       5/23/18

Issue:

Does the absence of 30 minutes of recording, along with evidence that multiple statements between the defendant and officers were either lost or not recorded, make recordings of the rest of the interview inadmissible under CCP Art. 38.22, §3(a)(3)?

Holding:

Yes. In an unpublished opinion, the plurality concluded that the defendant’s statement, recorded during custodial interrogation, should not have been admitted because at least one of the requirements of Art. 38.22, §3(a) was not met due to the absence of approximately 30 minutes of recordings, which, based on the facts of this case, made admission of the rest of the recorded statement inaccurate. Read opinion.

Dissent (Yeary, J.; Keller, P.J. and Keasler, J. joining):

“Suppose an officer begins to interview a suspect, but shortly into the interview he realizes that the batteries in his recording device have died. He immediately ceases the interview, replaces the batteries, cautions the suspect again in compliance with both Miranda and Article 38.22 of the Code of Criminal Procedure, and re-starts the interview from scratch. Suppose the suspect then repeats whatever he had said before, with no material variation, and then adds to it. Is the entire interview—including everything that came after the officer replaced the batteries and re-warned the suspect—inadmissible because the first part was not fully recorded, however inadvertently, as required by Article 38.22? That seems to be what the plurality holds today. After all, the recorded interview that the State ultimately offers into evidence in my hypothetical is not—indeed, cannot possibly be—complete, and therefore ‘accurate,’ in the sense that the plurality adopts today.” Read opinion.

Commentary:

The best that can be said for this unpublished reversal of an unpublished lower court opinion is that unpublished CCA opinions are not citable authorities. See Tex. R. App. P. 77.3. The plurality holding on preservation is quite problematic because it conflates the reason for objecting—there were unrecorded parts of the interrogation—with the basis for objection—optional completeness, spoliation, etc. Furthermore, on the merits, the plurality conflates completeness of a recording with accuracy. But what was recorded appears to be accurate. The defendant testified at trial, which means that, even if the recordings were inadmissible in the State’s case-in-chief, they were usable for impeachment. See Tex. Code Crim. Proc. Art. 38.22, §5. But the plurality treats the State’s use of the recording to impeach the defendant as if it were wrong. Recent changes to the Code would not change the outcome here—partial recordings of the interrogation may be permissible under Article 2.32, but that doesn’t change what is required for admissibility of the statement itself.

Office of the Attorney General

Opinion KP-0207          5/17/18

Issue:

Is an employee of a district attorney’s office eligible to execute and serve a subpoena under CCP Art. 24.01(b)(2) if the employee is not, at the time of issuance, involved in the proceeding for which the appearance is sought?

Opinion:

Yes. Art. 24.01(b)(2) allows service of a subpoena in a criminal matter by an attorney or other employee of a district attorney’s office who, at the time of issuance, is not involved in the prosecution of the case in any capacity. Read opinion.

Commentary:

Finally, something useful for the summer interns to do.

Opinion KP-0200      5/17/18

Issue:

May a prosecutor’s office use civil asset forfeiture funds to buy property insurance pending appeal?

Opinion:

Yes. A court would likely conclude that an attorney representing the State may use civil asset forfeiture funds accrued under Code of Criminal Procedure Art. 59.06(c)(1) to purchase property insurance protecting real property that is the subject of an appeal from a forfeiture judgment under Art. 59.05(e). The AG also noted, “So long as the activity of the attorney ‘relates to the preservation, enforcement, or administration’ of a state law, the fact that a particular expenditure is omitted from the examples listed in article 59.06(d-4) is not dispositive.” Read opinion.

Commentary:

Even the political opponents of asset forfeiture would surely agree this is a good use of forfeiture funds.

Opinion KP-0203       5/17/18

Issue:

What are the limits of a commissioners court’s power to collect or delegate collection of money owed to the county under Code of Criminal Procedure Chapter 103?

Opinion:

Code of Criminal Procedure Art. 103.003(b-1) authorizes a county commissioners court to collect amounts payable under Title 2 of the CCP independently of the officials listed in Art. 103.003(a) (which includes elected prosecutors, clerks, sheriffs, constables, and JPs). A court would likely conclude that Art. 103.003(b-1) authorizes a commissioners court to create a county department to assist the commissioners court to collect these amounts owed. A court also would likely conclude that a commissioners court may contract with a collections firm, permitting the firm to collect payables into its own account, retain the additional collections fee, and deposit county money with the county treasurer, provided that the firm does so within the time permitted by statute. Read opinion.

Commentary:

The collections blood-feud between commissioners and other county officials continues unabated.

Opinion KP-0206        5/17/18

Issue:

Can a magistrate designate a specific peace officer or law enforcement agency to execute an emergency detention warrant under Health & Safety Code §573.012(d)?

Opinion:

A magistrate may direct an emergency detention warrant issued under §573.012(d) to any on-duty peace officer listed in Code of Criminal Procedure Art. 2.12, regardless of the location within the county of the person who is the subject of the warrant. An officer executing an emergency detention warrant has a duty to ensure the transport of a person subject to the warrant to an appropriate facility pursuant to §573.012(e). Health & Safety Code §573.012(d) contains no jurisdictional element that would determine whether municipal or county law enforcement has the responsibility for transporting a person to an appropriate facility under §573.012(e). A peace officer refusing to transport a person to an appropriate facility under that statute is liable for contempt. The contempt action could likely be brought by a court having specific jurisdiction over mental health proceedings. Read opinion.

Commentary:

More small-government not-my-job finger-pointing. Peace officers won’t like how this turned out.

Announcements:

From our friends at the OAG’s Human Trafficking and Transnational/Organized Crime Section:

Backpage record certification requests should be sent to [email protected]. Please remember to attach the records you need certified and the certification document that you are requesting be completed and returned to you. Please allow 2-3 days for your request to be processed. If you have a record certification request that requires urgent attention, indicate that by including the word “URGENT” in the subject line of your email.

Additionally, the FBI and its law enforcement partners are continuing to put processes in place to make historical Backpage data available to federal, state, and local law enforcement officials for use in ongoing investigations and prosecutions. Further information and guidance will be disseminated as soon as these processes are in place.

Please share this information with your state and local law enforcement partners. This information will also be posted on backpage.com.

Recent changes to to forensics accreditation requirements:

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which went into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: https://www.youtube.com/watch?v=ZiWabgbOL9o

Supreme Court of the United States

Dahda v. US

No. 17-43            5/14/18

Issue:

Is a wiretap order that includes a sentence authorizing interceptions outside the territorial jurisdiction of the court “insufficient on its face” requiring suppression of all intercepted communications?

Holding:

No. An order that is “insufficient on its face” must not merely contain an error but must be deficient in some manner. Here, the wiretap order authorized interception both within the court’s territorial jurisdiction and outside of it. The order contained a defect by authorizing interception beyond the court’s jurisdiction, but it was not lacking any required element. The authorization outside the court’s jurisdiction was without legal effect, and interceptions within the court’s jurisdiction were properly authorized. Read opinion.

Commentary:

Most Texas prosecutors won’t be defending the legality of federal wiretaps. That said, this case could be useful where a warrant or court order contains something additional that it should not, but where no evidence obtained due to the “extra” language was admitted. In the words of the Court, “Not every defect results in an insufficiency.”

McCoy v. Louisiana

No. 16-8255       5/14/18

Issue:

May a defense attorney admit his client’s guilt over the client’s objection to put on the best possible defense?

Holding:

No. The Sixth Amendment guarantees a defendant’s right to the assistance of counsel, but it remains the defendant’s prerogative to choose the objective of his defense. Whether to maintain innocence or admit guilt in the hope of obtaining a lighter sentence is not a part of trial strategy but a fundamental choice about the defendant’s objectives. Here, defense counsel reasonably assessed that conceding guilt was the best strategy to avoid the death penalty, but it was error to override the defendant’s choice to maintain innocence despite overwhelming evidence and almost certain conviction. Read opinion.

Dissent (Alito, J.):

“The Court overturns petitioner’s convictions for three counts of first-degree murder by attributing to his trial attorney, Larry English, something that English never did. The Court holds that English violated petitioner’s constitutional rights by “admit[ting] h[is] client’s guilt of a charged crime over the client’s intransigent objection.” But English did not admit that petitioner was guilty of first-degree murder. Instead, faced with overwhelming evidence that petitioner shot and killed the three victims, English admitted that petitioner committed one element of that offense, i.e., that he killed the victims. But English strenuously argued that petitioner was not guilty of first degree murder because he lacked the intent (the mens rea) required for the offense. So the Court’s newly discovered fundamental right simply does not apply to the real facts of this case. … I would base our decision on what really took place, and under the highly unusual facts of this case, I would affirm the judgment below.” (internal citations omitted) Read opinion.

Commentary:

Traditionally, the client chooses the ends of a representation while the attorney chooses the means to those ends. This meant that a defendant determined whether: to plead guilty, to waive a jury, to testify, and to appeal. Now the Court has created a new thing that a defendant controls—the objectives of the representation. Here, the “objective” was acquittal against impossible odds. This new category will be more difficult for defense counsel and courts to assess and implement. Prosecutors had best prepare to be surprised. Moreover, conceding guilt is not an uncommon defense tactic, so be prepared for writs raising similar claims. 

Byrd v. US

No. 16-1371       5/14/18

Issue:

Does a driver of a rental car whose name is not on the rental agreement have a reasonable expectation of privacy in the vehicle?

Holding:

Yes. “As a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.” The driver and sole occupant of a vehicle who lawfully possesses or controls a car has a legitimate expectation of privacy by virtue of the right to exclude others. This does not depend on the whether the car is owned or rented, nor does a violation of the lease agreement have any bearing on the expectation of privacy. The Court remanded the case for consideration of: 1) whether the facts in this case were more analogous to one in which the driver was a car thief, who would have no expectation of privacy; and 2) whether probable cause justified the search. Read opinion.

Concurrence (Thomas, J.):

“The issue [of whether the defendant had a property interest in the rented vehicle] seems to turn on at least three threshold questions. First, what kind of property interest do individuals need before something can be considered “their . . . effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law, and, if so, does that illegality or wrongfulness affect the Fourth Amendment analysis? The parties largely gloss over these questions, but the answers seem vitally important to assessing whether Byrd can claim that the rental car is his effect. In an appropriate case, I would welcome briefing and argument on these questions.” Read opinion.

Concurrence (Alito, J.):

“The Court holds that an unauthorized driver of a rental car is not always barred from contesting a search of the vehicle. Relevant questions bearing on the driver’s ability to raise a Fourth Amendment claim may include: the terms of the particular rental agreement; the circumstances surrounding the rental; the reason why the driver took the wheel; any property right that the driver might have; and the legality of his conduct under the law of the State where the conduct occurred. On remand, the Court of Appeals is free to reexamine the question whether petitioner may assert a Fourth Amendment claim or to decide the appeal on another appropriate ground. On this understanding, I join the opinion of the Court.” (internal citations omitted) Read opinion.

Commentary:

The Court of Criminal Appeals reached the same result in Parker v. State, 182 S.W.3d 923 (Tex. Crim. App. 2006). It is about time the feds caught up.

Murphy v. National Collegiate Athletic Association

No. 16-476          5/14/18

Issue:

Does the Professional and Amateur Sport Protection Act (PASPA) violate the Constitution’s anticommandeering doctrine?

Holding:

Yes. PASPA makes it unlawful for a state to “authorize” sports gambling schemes. For a state to repeal its current gambling laws to allow sports gambling would be considered “authorizing” gambling under PASPA. The anticommandeering doctrine prohibits the federal government from either forcing state legislatures to enact laws or prohibiting state legislatures from repealing or amending laws. PASPA violates this doctrine by attempting to regulate state laws on gambling and is therefore unconstitutional. States may choose to legalize sports gambling. Read opinion.

Commentary:

Have you ever heard of the “anticommandeering doctrine?” Many of us have not, but as set forth in this opinion you may hear more about it. In an age where the states and federal government are in opposition on issues such as immigration, legalization of marijuana, and methods of law enforcement, this doctrine limits the tools the federal government may use to bring the states into line. Sports gambling remains illegal in Texas because it is prohibited by Texas law. Reasonable minds can differ whether that changes next year.

Supreme Court of Texas

State v. T.S.N.

No. 17-0323       5/11/18

Issue:

May a defendant who was arrested on two unrelated charges, convicted of one but acquitted of the second, seek an expunction of the charge for which she was acquitted?

Holding:

Yes. Under Code of Criminal Procedure Art. 55.01(a)(1), the unit of expunction is an individual charge, not the entire arrest. Subsection (c) denies an expunction after an acquittal when there is a conviction or pending charge from the same criminal episode. However, when a defendant is arrested on unrelated charges, the arrest may be partially expunged to remove all records of the acquitted charge even if another charge stemming from the arrest is not eligible for expunction. Read opinion.

Commentary:

The courts of appeals, with the exception of the 5^th Court, had held that a petitioner could not receive an expunction of an arrest unless all offenses related to that arrest—whether on view or based on a warrant—were also eligible for expunction. The petitioner argues that each offense should be examined individually. The Texas Supreme Court did not overrule existing cases and picked a middle ground of sorts. The effect seems to be that cases involving acquittals and pardons are eligible for expunction even if other offenses from the same arrest are not. Compliance in this situation will be more labor intensive—and more expensive—because compliance will mean redacting files rather than merely dropping them in the shredder. Be ready for additional expunction requests as well.

Announcements:

From our friends at the OAG’s Human Trafficking and Transnational/Organized Crime Section:

Backpage record certification requests should be sent to [email protected]. Please remember to attach the records you need certified and the certification document that you are requesting be completed and returned to you. Please allow 2-3 days for your request to be processed. If you have a record certification request that requires urgent attention, indicate that by including the word “URGENT” in the subject line of your email.

Additionally, the FBI and its law enforcement partners are continuing to put processes in place to make historical Backpage data available to federal, state, and local law enforcement officials for use in ongoing investigations and prosecutions. Further information and guidance will be disseminated as soon as these processes are in place.

Please share this information with your state and local law enforcement partners. This information will also be posted on backpage.com.

Recent changes to forensics accreditation requirements: 

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which go into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: https://www.youtube.com/watch?v=ZiWabgbOL9o 

Texas Court of Criminal Appeals

Estes v. State

No. PD-0429-16                5/9/18

Issue:

Does Penal Code §22.011(f), the “bigamy” enhancement, violate the Due Process and Equal Protection clauses of the U.S. and Texas Constitutions by punishing married defendants more harshly than unmarried ones?

Holding:

No. The State has a legitimate interest in deterring, preventing, and punishing the sexual exploitation of children. The bigamy enhancement provision to a charge of sexual assault is rationally related to that State interest in protecting children. There may rationally be a public perception that married people are more trustworthy, especially in regard to children. The Constitution does not preclude the Legislature from instituting a higher degree of punishment for defendants who abuse that trust to sexually assault a child. Read opinion.

Concurrence and Dissent (Newell, J.):

“Appellant argues that this statute differentiates between married and unmarried sex offenders in violation of the Equal Protection Clause. Appellant is incorrect. The classification at issue in this statute is rationally related to enforcing the prohibition against bigamy and sexual assault committed pursuant to a bigamous relationship. As such, it does not violate the Equal Protection Clause. Consequently, I concur in the Court’s conclusion, though I disagree with its reasoning. However, because the Court chooses to remand the case to the court of appeals rather than address the appropriate standard of review for Appellant’s equal protection claim, I respectfully dissent.” Read opinion.

Commentary:

The dispute between the majority and dissent is whether the claim should be addressed as an equal protection claim or an as-applied challenge. Eight judges agree that the “bigamy” provision in §22.011 is not unconstitutional because a married defendant who commits the offense is eligible for a higher degree of punishment. Both opinions may prove useful when addressing other constitutional challenges.

Ex parte Garcia

No. PD-0804-17                5/9/18

Issue:

Is a claim that a defense attorney gave affirmative misadvice regarding possible deportation barred as a non-retroactive Padilla claim?

Holding:

No. Although in this case the topic of the misadvice was on immigration consequences, the defendant’s claim differs from a Padilla claim because the defense attorney did not have an affirmative duty to advise the defendant on deportation. By offering immigration advice, the defense attorney undertook the obligation to state the law correctly. This is similar to claims of misadvice on probation or parole eligibility and should be treated as such. Read opinion.

Commentary:

This case allows defendants whose lawyers gave them bad advice about immigration prior to Padilla to challenge their convictions even though Padilla does not apply retroactively. The opinion gives a clear and concise explanation for the rule. It will still be the petitioner’s burden to prove he received bad immigration advice.

Texas Courts of Appeals

Garcia v. State

No. 11-16-00314-CR        4/30/18

Issue:

May a defendant collaterally attack an original conviction in an appeal from the revocation of community supervision with a claim that the sentence is illegal?

Holding:

Yes. Generally, collateral attacks on the original conviction are not allowed in an appeal from revocation proceedings. However, the “void judgment” exception allows claims that would render the original judgment of conviction void. Here, the defendant pled guilty to a charge that was improperly enhanced from a state jail felony to a third-degree felony and was given a 10-year probated sentence. The defendant could attack the underlying conviction in his appeal from revocation because the 10-year sentence was outside the range of punishment for a state jail felony. The improper enhancement is an illegal sentence that renders the judgment void because there is no other conviction that could support the punishment range in which the defendant was sentenced. Read opinion.

Commentary:

The opinion does a good job explaining why this defendant gets to complain about his sentence years down the road and get a new trial while other defendants might not.

Diaz v. State

No. 07-17-00376-CR        5/4/18

Issue:

Must the jury unanimously agree on which two or more protective order violations the defendant committed to convict him of repeated violations of a protective order under Penal Code §25.072?

Holding:

No. Penal Code §25.072 criminalizes the repeated violation of protective orders or conditions of bond in certain cases. The charge must allege that the defendant committed two or more of the violations enumerated in Penal Code §25.07 within a 12-month period. The individual violations alleged are different manner and means of committing the same crime, which does not require jury unanimity. The jury must unanimously agree only that the defendant committed two or more acts violating a protective order within the specified time period. Read opinion.

Commentary:

The court decides this case by referencing cases conducting a similar analysis under the continuous sexual abuse statute.

Announcements:

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which go into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: https://www.youtube.com/watch?v=ZiWabgbOL9o

The OAG’s Human Trafficking and Transnational/Organized Crime Section has some information on obtaining records from backpage.com available 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].

Texas Court of Criminal Appeals

O’Brien v. State

No. PD-0061-16                5/2/18

Issue:

Must the jury unanimously agree on the specific predicate crime to convict a defendant of engaging in organized criminal activity under Penal Code §71.02?

Holding:

No. Engaging in organized criminal activity is a “circumstances of conduct” offense; therefore, the commission of a predicate crime constitutes a manner and means of committing the single offense of engaging in organized criminal activity. Additionally, the court may properly instruct the jury in the disjunctive regarding the predicate offenses. Read opinion.

Concurrence (Alcala, J.):

“Examining the plain statutory language as a whole, I conclude that the State may obtain a conviction for engaging in organized criminal activity by alleging alternative predicate offenses as long as those predicate offenses are, as in this case, the same grade felony or misdemeanor offense. Because the plain language of the statute adequately resolves the instant appeal without consideration of extra-textual matters, I respectfully concur with but do not join this Court’s majority opinion.” Read opinion.

Dissent (Walker, J.):

Penal Code §71.02 is not a “circumstances of conduct” offense but a “nature of conduct” offense. It consists of committing another offense while harboring the intent to “establish, maintain, or participate in a combination, the combination’s profits, or as a member of a criminal street gang.” Jury unanimity on the predicate offense is required because the offense of engaging in organized criminal activity acts as an enhancement that raises the degree of the offense based on the defendant’s intent. The types of crimes that may serve as predicate offenses are too varied, and permitting a non-unanimous verdict may be a violation of due process. Read opinion.

Dissent (Yeary, J.):

“I join Judge Walker’s dissenting opinion. For the reasons he expresses, I believe the Court is mistaken to conclude that the predicate offenses that go to establishing guilt for the offense of engaging in organized criminal activity constitute mere manner and means of committing the offense, such that the jury need not agree on which offense (or offenses) the defendant committed.” Read opinion.

Commentary:

This opinion will be very useful to prosecutors handling EOCA cases. A clear majority holds that it is the combination that is the gravamen of the offense, not the underlying offenses the combination committed. The majority reading seems the most natural reading, but be careful alleging the underlying offenses so that you only allege one degree of underlying offense—the defendant might be entitled to unanimity on the underlying offense when different degrees of offense are alleged because the degree of the EOCA offense is determined by the highest grade of underlying offense committed.

Supreme Court of Texas

In re State of Texas

No. 16-0829       4/27/18

Issue:

Is a person civilly committed as a sexually violent predator prior to 2015 entitled to a lawyer for a hearing for placement in the post-2015, tiered-treatment program?

Holding:

No. Generally, civil litigants are not entitled to appointed counsel unless mandated by the Legislature. The Civil Commitment of Sexually Violent Predators Act requires appointment of counsel for indigent persons during some hearings, but not for hearings modifying an existing commitment order to require participation in the tiered treatment program. Additionally, there is no due process right to appointed counsel during the modification hearing. Read opinion.

Commentary:

This is a very narrow holding. The trial court’s modification of the commitment order to comply with legislative changes does not appear to have put the sexual predator into a more restrictive regime.

Announcements:

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7 that go into effect on May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: https://www.youtube.com/watch?v=ZiWabgbOL9o