Texas Courts of Appeals

Morris v. State

No. 08-1-00153-CR          2/28/18

Issue:

May a judge order a defendant to be electrocuted with a stun belt for reasons other than security purposes?

Holding:

No. Electrocuting a defendant for refusing to cooperate with the judge’s questions and subsequently removing him from the court during the trial violates the defendant’s right to a fair trial under the Fifth Amendment and the right to be present at trial under the Sixth amendment. “This case represents an extreme, idiosyncratic fact pattern. While the trial court’s frustration with an obstreperous defendant is understandable, the judge’s disproportionate response is not. We do not believe that trial judges can use stun belts to enforce decorum. A stun belt is a device meant to ensure physical safety; it is not an operant conditioning collar meant to punish a defendant until he obeys a judge’s whim. This Court cannot sit idly by and say nothing when a judge turns a court of law into a Skinner Box, electrocuting a defendant until he provides the judge with behavior he likes.” Read opinion.

Announcements

The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.

Texas Court of Criminal Appeals

Ex parte Pue

No. WR-85,447-01               2/28/18

Issue:

Is the finality of a prior out-of-state conviction for enhancement purposes determined under Texas law?

Holding:

Yes. There is no authority allowing out-of-state law to control punishment enhancement in Texas. It would be impractical for Texas courts to use another state’s law to dictate whether a conviction is final for use under Texas law. “We will not require a Texas trial court to sort through the nuances of forty-nine other states’ enhancement laws, some of which may have no similarities with Texas enhancement requirements.” Here, the prior conviction in California resulted in a probated sentence, which the defendant was still serving at the time of sentencing in the Texas case. A probated sentence is not considered a final conviction under Texas law; it is irrelevant whether it is considered final under California law. Read opinion.

Concurrence (Keller, P.J.):

While Texas law should control when determining the finality of an out-of-state conviction, the court should not grant relief on an “illegal sentence” claim without first addressing the propriety of doing so, as advocated by the dissent. However, the defendant also raised an ineffective assistance of counsel claim that would have been successful because the prior conviction was not final under either Texas or California law. The Court should hold “that counsel was deficient for failing to challenge the use of this conviction for enhancement purposes, and Applicant was prejudiced because his thirty-year sentence exceeds the maximum punishment allowed for his offense.” Read opinion.

Concurrence (Keel, J.):

The dissent misapplies the cases relied upon in its opinion. Limiting habeas relief to cases in which the sentencing error was not apparent from the direct appeal record would unjustly prevent even “direct claims” of illegality, distinguished by the dissent, as proper for first-time challenge on a habeas writ. Any sentence outside the range of punishment is illegal and must remain open to challenge even for the first time on a habeas writ. Read opinion.

Dissent (Yeary, J.):

The Court should address the propriety of reaching the merits of the claim when first raised in a post-conviction habeas proceeding. The defendant’s claim is not a direct claim that the sentence is illegal, but rather that a preliminary error prior to the imposition of the sentence rendered the sentence illegal. The Court has never specifically addressed whether the error of using a non-final prior conviction for enhancement requires a contemporaneous objection to preserve error or must be addressed on direct appeal. “The Court should not grant relief in a post-conviction proceeding on a claim of improper enhancement without first also addressing, if necessary, whether that claim is forfeited because it was not raised on direct appeal.” Read opinion.

Commentary:

This is a significant change in sentencing law. The Court reconciled a number of its prior opinions and overruled several courts of appeals opinions in reaching this result. Given the differences in nomenclature and records among the several states, this decision may benefit offenders who would be considered habitual had they been sentenced to Huntsville rather than Sing Sing or Folsom. Also interesting was the Court made this change in the law in a rare, substantive habeas opinion.

Texas Courts of Appeals

Webb v. State

No. 06-17-00066-CR        2/22/18

Issue:

May a lay witness testify that, in her opinion, the victim was genuinely afraid and hysterical after the reported assault?

Holding:

Yes. Although a lay witness may not testify as the to the victim’s truthfulness, she may testify about the victim’s mental state or emotional condition. Asking the witness whether the victim was “putting on a show” is eliciting testimony about the victim’s mental state, not about the victim’s credibility or truthfulness. Read opinion.

Commentary:

“Q: Was that child putting on a show that night? A: No, ma’am, she was not.” A different panel on a different court might rule another way on this question and answer, especially in light of many cases finding error where prosecutors asked questions seeking opinions on credibility of witnesses or variations on credibility, such as believability, reliability, etc. The Court went further and determined that, even if erroneously admitted, the defendant suffered no harm.

Estrella v. State

Nos. 01-16-00938-CR & 01-17-00162-CR                2/27/18

Issue:

Does the offense of injury to a child require a specific manner and means?

Holding:

No. Injury to a child is a result-of-conduct offense and the focus is on the resulting injury, not how it was caused. It is sufficient to prove that the defendant did “something,” or failed to do “something,” which resulted in serious bodily injury. The manner and means are not elements that the jury must find unanimously. Inclusion of the word “timely” (“failing to seek and provide timely and necessary medical attention to the complainant”) is not error because the court is not restricted to the terms found in Penal Code §22.04 when describing the manner and means of the offense in the jury charge. Read opinion.

Commentary:

The manner and means of the offense alleged in the indictment was that the defendant caused the injury by a failure to “timely” seek medical treatment for the victim. The Court’s opinion does not make clear that the word “timely” was included in the indictment, but the briefs available on the Court’s website do make that clear. In many offenses, the State will allege manners and means using language that is not found in the Penal Code—the defense argument is this case ran counter to decades of practice under the Penal Code and Code of Criminal Procedure.

Texas Attorney General Opinions

Opinion KP-0180              2/15/18

Issue:

May a county commissioners court deny a county judge longevity pay due to receipt of a state salary supplement pursuant to Gov’t Code §26.006?

Response:

Gov’t Code §26.006(c) does not preclude a county policy that excludes a county judge who receives a state salary supplement from receiving longevity pay paid to other officers and employees, provided the policy does not effectively reduce the county judge’s salary to offset the county judge’s state salary supplement. Read opinion.

Commentary:

One wonders why else a county would reduce a county judge’s salary under such circumstances. In any event, the opinion also cites to §41.255 of the Government Code, which prevents a county from reducing an assistant prosecutor’s salary to offset the longevity pay supplement. It would seem that this opinion regarding the county judge would also apply by analogy to assistant prosecutors.

Announcements

TV show “Criminal Confessions” is looking for Texas cases to be featured in their second season. For more information and how to get in touch with the producers, visit our site.

Texas Court of Criminal Appeals

Shortt v. State

No. PD-0597-15               2/14/18

Issue:

May a defendant appeal an order granting “shock” community supervision?

Holding:

Yes. Community supervision is statutorily the same whether granted as part of the original judgment or after execution of the sentence has begun. Ordinary community supervision granted under former Code of Criminal Procedure Art. 42.12, §3 or §4 suspends the imposition of the sentence and must be reflected in the written judgment. “Shock” community supervision under Art. 42.12, §6 suspends the execution of the sentence and will be reflected in an order, not the original or an amended judgment. Art. 42.12, §23(b) authorizes a defendant to appeal his conviction and sentence at the time he is placed on probation. The defendant’s right to appeal is triggered by placement in community supervision, regardless of when the community supervision is granted. Read opinion.

Dissent (Keller, P.J.):

Art. 42.12, §23(b) authorizes a defendant to appeal the “conviction and punishment” at the time he is placed on community supervision. The phrase “conviction and punishment” denotes a single event that must occur at the time the defendant is placed on community supervision. In “shock” community supervision cases a defendant’s “conviction and punishment” still occur at the time of sentencing, not when the order suspending execution of the sentence is granted. A later appeal after the order for shock community supervision is not authorized by §23(b), rather the defendant has the right of appeal when convicted and sentenced. Read opinion.

Commentary:

Giving a defendant the right to appeal an order granting “shock” probation may not appear to be that big of a deal. But the court has always required a legislative basis for an appeal in a criminal case. As such, this decision is fraught with confusion at best, and peril at worst. One need look no further than the majority opinion itself—the two full paragraphs on pages 9 and 10 in which the majority acknowledges unanswered questions created by this decision. There are other unanswered questions. For example, as noted in footnote 10 of the dissenting opinion, the court has long held that a defendant cannot appeal from an order modifying his probation. Does the court intend on overruling that long-standing holding by way of an expansive (and retroactive) reading Art. 42.12, §23(b)—what is now Article 42A.755(e)? This may be of interest only to appellate practitioners, but the court appears to have opened up a whole new level of post-conviction litigation.

Wagner v. State

No. PD-0659-15               2/14/18

Issue:

Is Penal Code §25.07(a)(2)(A), criminalizing threatening or harassing communication in violation of a judicial order, unconstitutionally overbroad or vague?

Holding:

No. The statute does not infringe upon a substantial amount of constitutionally protected free speech. It applies only to “family violence or other abusers whose communications with a particular person have ben judicially restricted through a protective order or bond condition.” The scope of the statute is also limited by the length of the protective order or bond condition. It does not implicate any constitutionally protected speech. Nor is the term “harassing manner” impermissibly vague because it is not defined. The plain meaning of “harass” is sufficiently clear to provide notice of the prohibited conduct. Read opinion.

Dissent (Keller, P.J.):

“The Court construes communication to be harassing under the statute if it is (1) annoying, disturbing, bothering, or troubling, and (2) continual, persistent, or frequent. The first part of this construction raises the question of just how irritating conduct must be, while the second part of this construction raises the question of how many times a person’s communication must be annoying before it is deemed to be a violation of the statute. … I would employ a definition that sets the intensity of the conduct as that which would produce substantial emotional distress. Under that definition, a defendant violates the statute if he intends or knows that his communication, or series of communications, is unwelcome and would cause substantial emotional distress to the protected individual.” Read opinion.

Commentary:

The majority opinion is an excellent source for the controlling authority on the constitutional claims that the defendant raised in this case. In that respect, the result was guided—if not controlled—by the court’s prior decision in Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010). As a practical matter, this decision will be of great help to domestic violence prosecutors. Such harassment by these defendants is often a precursor to physical assault or worse. A reading of this opinion reveals that this defendant may well have been on his way to attacking the victim again. 

Febus v. State

No. PD-1369-15               2/14/18

Issue:

Must the State prove a culpable mental state to the failure-to-comply element of the offense of failure to comply with the requirements of registering as a sex offender?

Holding:

No. In Robinson v. State, 466 S.W.3d 166, the Court held that the culpable mental state of “knowledge and recklessness” applies only to the duty-to-register element. It declined to apply the same culpable mental state to the failure-to-comply element. The State must only prove that the defendant knew or should have known about the duty to register; no additional culpable mental state is applicable regarding the failure to register. The Court declines to overturn Robinson. Read opinion.

Dissent (Richardson, J.):

“The majority in Robinson incorrectly limited its assessment of the culpable mental state required by the offense of failure to register to only the duty-to register element. Instead, I would hold that the offense of failing to register under the statute is violated when one (1) knows or should know that he has a duty to register and (2) intentionally, knowingly, or recklessly fails to comply with that duty to register. Therefore, I would ascribe a culpable mental state to both the duty to register and the failure to register, and not just to the duty to register.” Read opinion.

Commentary:

Prosecutors who work on sex offender registration violation cases need to read this case, as well as Robinson. It will be very helpful in showing how these cases can be proved under the current construction of the statutes.

Texas Courts of Appeals

Hughitt v. State

No. 11-15-00277-CR        2/8/18

Issue:

Is possession with intent to deliver a controlled substance a proper predicate offense for a charge of engaging in organized crime?

Holding:

No. The offense of engaging in organized crime requires a predicate offense from an enumerated list. Although delivery of a controlled substance is one of the numerated offenses, possession with intent to deliver is not. “Deliver” in the Controlled Substances Act means “to transfer, actually or constructively, to another a controlled substance.” Incorporating possession with intent to deliver into the meaning of delivery would be inconsistent with the definition under the Controlled Substances Act. Possession with intent to deliver cannot be a predicate offense for engaging in organized crime because it does not fall into any category in the enumerated list of possible offenses. Read opinion.

Commentary:

This decision is undoubtedly correct, but the Legislature should note that the offense of possession of a controlled substance with the intent to deliver is found in the same statute as the offense of delivery of a controlled substance.

Announcements

A note about online Brady training

It’s been four years since mandatory Brady training was implemented, and many prosecutors will require recertification in 2018. TDCAA is working on an updated online training that will be available later this year. In the meantime, the 2014 training will remain on the website for any new prosecutors to take, but prosecutors requiring recertification cannot receive credit again for the same course. Stay tuned for more information on the new and improved training!

TV show “Criminal Confessions” is looking for Texas cases to be featured in their second season. For more information and how to get in touch with the producers, visit our site.

The National District Attorneys Association is holding a Digital Prosecutor training course in San Antonio February 19–22. The course is designed to assist the prosecution team in understanding and utilizing technology in investigation and trial, as well as learning how suspects are using technology. Visit our site for more information.

Texas Court of Criminal Appeals

State v. Velasquez

No. PD-0228-16                2/7/18

Issue:

Does Code of Criminal Procedure Art. 28.01 require the trial court to provide additional notice to the State of a hearing on a motion to suppress taking place on the day of trial before voir dire?

Holding:

No. Art. 28.01 requires notice to both parties only when a pre-trial hearing is set for a date separate from the scheduled trial date. A trial-date suppression hearing is outside the requirements of the statute because there is no separate pre-trial setting and the State is already given notice to appear ready on the trial date. A judge’s decision to conduct a suppression hearing immediately before voir dire rather than after is a scheduling preference solely within the judge’s purview. Read opinion.

Concurrence (Hervey, J.):

“Despite any alleged lack of notice, the State conceded that it had in its possession at the hearing the offense report, but it expressly declined to offer any evidence because it would not participate in ‘this sort of motion to suppress.’ The lack-of-notice issue appears to be more of a ‘straw man’ argument than a legitimate concern. I also find it troubling that the State appeared more interested in ‘taking its ball and going home’ than participating in the proceeding in good faith. If the State had proffered the offense report (and any other information it had), it may have won the suppression hearing. And if not, it could have appealed that decision. TEX. CODE CRIM. PROC. Art. 44.01(a)(5) (the State has the right to appeal an order granting a motion to suppress). It is hard to sympathize with the State under these circumstances. This case seems to be less about a lack of notice than it is about a battle of wills between the prosecutor and the trial judge.” Read opinion.

Dissent (Richardson, J.):

“The plain language reading of the term ‘pre-trial’ means before the trial is set to begin, not before the day the trial is set to begin. Article 28.01 requires notice to both the defendant and the State of the ‘time and place’ of the pre-trial hearing, not the date and place. In this case, the State was not given notice of the time that the trial court was going to conduct the pre-trial hearing on the motion to suppress. The State was only given notice that the trial was to begin on a certain date, presumably at the regular time in the morning that the judge appears on the bench and court is thereafter in session. A jury trial begins with jury selection. A trial court judge certainly has discretion to conduct a pre-trial hearing on the day of trial to resolve preliminary matters. However, I would interpret Article 28.01 as requiring the court to notify both sides of such pre-trial hearing.” Read opinion.

Commentary:

The majority clearly wanted the State to move for a continuance, instead of refusing to participate. It is not clear from this opinion whether the trial judge would have granted such a continuance or whether the majority would have held that the trial court had erred in refusing to grant a continuance. This is a classic case of “bad facts make bad law,” but this decision is in line with how the Court of Criminal Appeals has treated motions to suppress in the past—giving trial courts a great deal of discretion as to how those motions are handled. The bottom line for this decision is that a pre-trial hearing is not a pre-trial hearing for the purposes of Article 28.01 if the hearing is held on the day of trial, even if it is held before jury selection has begun. There is good language in the opinion requiring notice for a pre-trial hearing that actually occurs on a date prior to trial, but it is certainly small consolation to the State in this case.

Texas Courts of Appeals

McFadden v. State

No. 06-17-00040-CR        2/1/18

Issue:

Is the defendant entitled to a defense of property jury instruction in a murder case when the victim was attempting to set boxes in the defendant’s car on fire?

Holding:

Yes. Under Penal Code §9.42, a person may use deadly force to prevent an actor from committing arson when he has a reasonable belief that deadly force is immediately necessary to prevent the arson and that the property could not have been protected by any other available means. A defendant is entitled to an affirmative defense instruction when an issue is raised by the evidence, even if the evidence is weak or contradicted. Here, the defendant could have reasonably believed that deadly force was necessary to prevent arson when the victim poured gasoline over boxes in her car trunk and attempted to light them on fire. Read opinion.

Commentary:

This is a very thorough decision, and it is one that prosecutors should read and consider if a defendant raises a defense-of-property claim in an assaultive case, such as a murder prosecution. The jury in this case rejected the defendant’s self-defense claim, and the court of appeals upheld the jury in that regard. But that was not enough to save this case from reversal because of the absence of the requested defense-of-property instruction.

State v. Doyal

No. 09-17-00123-CR        2/7/18

Issue:

Is Gov’t Code §551.143, prohibiting members of a government body from engaging in secret deliberations to circumvent the Open Meetings Act, unconstitutionally overbroad?

Holding:

No. The Open Meetings Act requires meetings of governmental bodies, including county commissioners courts, to be open to the public. Section 551.143 is subject to intermediate scrutiny because it is directed toward conduct: the act of conspiring to circumvent the Open Meetings Act by meeting in less than a quorum for the purpose of secret deliberations in violation of the Open Meetings Act. Section 551.143 is reasonably related to the State’s legitimate interest in assuring transparency in public proceedings and encouraging public discussion. Read opinion.

Commentary:

This decision does not address the sufficiency of the evidence to support the prosecution, nor does it address any as-applied constitutionality of the statute. The decision addresses only the facial constitutionality of the statute. In that regard, the decision is well-written and thorough. The court relied in part upon a decision of the Fifth Circuit Court of Appeals in Asgeirsson v Abbott, 696 F.3d 454 (5th Cir. 2012), in which that court upheld the constitutionality of §551.144, a similar statute. Prosecutors should definitely read these decisions if prosecuting a violation of the Open Meetings Act.

Announcements

A note about online Brady training

It’s been four years since mandatory Brady training was implemented, and many prosecutors will require recertification in 2018. TDCAA is working on an updated online training that will be available later this year. In the meantime, the 2014 training will remain on the website for any new prosecutors to take, but prosecutors requiring recertification cannot receive credit again for the same course. Stay tuned for more information on the new and improved training!

TV show “Criminal Confessions” is looking for Texas cases to be featured in their second season. For more information and how to get in touch with the producers, visit our site.

The National District Attorneys Association is holding a Digital Prosecutor training course in San Antonio February 19–22. The course is designed to assist the prosecution team in understanding and utilizing technology in investigation and trial, as well as learning how suspects are using technology. Visit our site for more information.

Texas Court of Criminal Appeals

Ex parte Clay

No. WR-87,763-01           1/31/18

Issue:

May the same prior felony conviction be used both to establish the defendant’s status as a felon (an element of the offense) and to enhance the range of punishment for the offense?

Holding:

No. “The trial court has determined, among other things, that Applicant is serving an illegal sentence. The trial court’s findings relevant to the illegal sentence claim are supported by the record. Relief is granted.” Read opinion.

Dissent (Yeary, J.):

“[T]he Court grants relief prematurely. I would not grant relief solely on the basis of the improper enhancement itself—at least not without first addressing the question of whether it is appropriate to grant substantive habeas corpus relief on the basis of such a claim when it could have been raised before. Applicant also alleges that his trial counsel provided constitutionally ineffective assistance of counsel for failing to object to the impermissible enhancement. I would certainly be amenable to remanding the cause for further fact development with respect to this alternative allegation of ineffective assistance of trial counsel. But because the Court grants relief on the substantive claim and refuses to remand the cause for exploration of the ineffective counsel claim, I dissent.” Read opinion.

Commentary:

You will find nothing of import in the majority per curiam opinion, which is only a few sentences long. The importance of this case is found in the analysis of Judge Yeary’s dissenting opinion, which urges the court to squarely address its precedents on this matter in the context of habeas corpus litigation. As such, this decision is only of importance to this particular defendant and perhaps post-conviction habeas corpus prosecutors. If you wish to follow through on behalf of the State with an argument regarding a failure to object, Judge Yeary has shown you the way. But even as noted by Judge Yeary, it is hard to imagine such a defendant not being able to prevail by way of a claim of ineffective assistance of counsel for failing to object.

Texas Attorney General Opinions

Request RQ-0209-KP      1/26/17

Question:

Does a gambling establishment that charges a membership or entrance fee but does not take a percentage of the value gambled violate the gambling provisions of the Penal Code? Read request.

Commentary:

This is an interesting request aimed at discovering the legality of poker gambling enterprises. It is hard to tell how broad any response by the Attorney General might be, but it should be noted that the United States Supreme Court is currently in the process of deciding the constitutionality of federal bans on sports gambling in Christie v. National Collegiate Athletic Ass’n.

Request RQ-0207-KP      1/23/17

Question:

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

Commentary:

It will also be interesting to see how broadly the Attorney General makes its response to this question. It could potentially apply to law firms and not just district and county attorney’s offices.

Announcements

TV show “Criminal Confessions” is looking for Texas cases to be featured in their second season. For more information and how to get in touch with the producers, visit our site.

The National District Attorneys Association is holding a Digital Prosecutor training course in San Antonio February 19–22. The course is designed to assist the prosecution team in understanding and utilizing technology in investigation and trial, as well as learning how suspects are using technology. Visit our site for more information.