August 10, 2012

5th Circuit Court of Appeals

U.S. v. Davis

No. 11-040256    8/1/12

Issue

In a federal criminal case, if a defendant fails to renew his motion for acquittal after he presents his case, is he entitled to the usual review of the sufficiency of the evidence?

Holding

No. Where a defendant moves for a judgment of acquittal at the end of the government’s case and, after presenting evidence, fails to renew that motion, he forfeits his insufficiency challenge and review is for a manifest miscarriage of justice. “A manifest miscarriage of justice exists only if the record is devoid of evidence pointing to guilt, or because the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” Presenting evidence includes cross-examination that elicits favorable testimony. Read opinion

Commentary

Do not get too excited. This holding would not transfer over to state cases. The Court of Criminal Appeals has repeatedly held that a defendant does not need to preserve error to raise a challenge to the sufficiency of the evidence in criminal cases. Texas state criminal courts also do not recognize “manifest miscarriage of justice” or “plain error” that you might see in decisions from other jurisdictions. This case can be important to Texas prosecutors because it involves violation of three statutes in Chapter 47 of the Penal Code—gambling. The whole sufficiency challenge centered around the existence of consideration at an “Internet café,” that was not really an Internet café, but was in fact a front for the lottery or gambling operation. A very useful opinion if have one of these types of cases.

Texas Court of Criminal Appeals

Wilson v. State

No. AP-76,835     8/7/12

Issue

Was the defendant entitled to CCP Chapter 64 post-conviction DNA testing for a hair found on the victim’s body that did not belong to the victim, defendant or co-defendant?

Holding

No. The court reaffirms its holding in Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002) that the presence of another person’s DNA at a crime scene, by itself, does not constitute affirmative evidence of a defendant’s innocence. Read opinion

Commentary

As noted, this holding is line with the court’s prior DNA testing decisions. On its face, the defendant’s claim might have appeared to have merit. But the court did not take kindly to the fact that the defendant decided to raise the claim a mere week before his scheduled execution. If it walks like a duck, and quacks like a duck, it is probably a delaying tactic.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, 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 information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected]. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.