Weekly Case Summaries: April 14, 2017

Texas Court of Criminal Appeals

Hankston v. State

No. PD-0887-15     4/12/17

Issue:

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

Holding:

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

Commentary:

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

Ex parte Broussard

No. WR-83,014-01     4/12/17

Issue:

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

Holding:

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

Dissent (Alcala, J.):

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

Commentary:

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

Reed v. State

No. AP-77,054     4/12/17

Issue:

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

Holding:

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

Commentary:

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

Texas Courts of Appeals

Phelps v. State

No. 06-16-00116-CR     4/10/16

Issue:

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

Holding:

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

Commentary:

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

Carreon v. State

No. 01-15-00559-CR     4/6/17

Issue:

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

Holding:

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

Commentary:

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

In re Navarro

No. 14-16-00606-CR     4/6/17

Issue:

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

Holding:

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

Commentary:

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

Kolb v. State

No. 14-15-00658-CR     4/6/17

Issue:

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

Holding:

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

Commentary:

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

Davis v. State

No. 01-16-00079-CR      4/6/17

Issue:

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

Holding:

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

Commentary:

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

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]