Weekly Case Summaries: March 31, 2017

U.S. Supreme Court

Moore v. Texas

No. 15-797     3/28/17

Issue:

Do the seven evidentiary factors set out in Ex parte Briseno, 135 S.W.3d 1 (2004), for evaluating potential intellectual disability in a capital murder defendant comply with the Eighth Amendment?

Holding (Ginsburg, J.):

No. The 5-3 Court ruled that the Briseno factors do not adequately consider the current medical community’s diagnostic standards, and the test does not comport with the Court’s decision in Hall v. Florida, 134 S.Ct. 1986 (2014). By failing to rely on changing views from medical experts about how to evaluate intellectual disabilities, the Texas Court of Criminal Appeals created “an unacceptable risk that persons with intellectual disability will be executed.” Read opinion.

Dissent (Roberts, J., joined by Thomas and Alito, JJ.):

Justice Roberts agreed that the Briseno factors do not comply with the Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002) but would find that the Court of Criminal Appeals reached the correct result in evaluating the defendant’s intellectual functioning. The dissent also expressed concern about the majority’s analysis on the Eighth Amendment issue. “The Court … crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment.”

Commentary:

The majority and dissent are both divorced from the reality of “intellectual disability” claims in capital cases. The retrospective determination of intellectual disability is not a nice, neat, objective, clinical process. Instead, habeas courts face competing experts, incompatible IQ tests improperly administered years after the fact, activist groups constantly moving the target, and incomplete social histories altered by time and bias. The Briseno factors were a way for the CCA to review the competing evidence to identify those defendants who were intellectually disabled in the context of a death penalty case. Indeed, were the tables turned and the prosecution had to prove intellectual disability using the same tools, they would likely be accused of using unreliable junk science. This case will mean that many intellectual disability claims must be reviewed again, but whether any outcomes will change is unclear. One interesting fact is that the “adaptive behavior” analysis—unlike many tests applied by the Supreme Court—looks only at those factors that favor a finding of intellectual disability, as compared to a “totality of the circumstances” analysis. Thus, a defendant with a low IQ and a fine-motor-skills difficulty that keeps him from being able to tie his shoes might be found intellectually disabled even though he can fly an airplane and run a drug crew.

Texas Courts of Appeals

Pegues v. State

No. 01-16-00317-CR     3/28/17

Issue:

Can three different admissions of guilt, victim testimony, and other evidence substantially linking a defendant to an offense negate identity as an issue in a case in which the defendant seeks post-conviction DNA testing?

Holding:

No. The focus in an inquiry about identity under CCP Art. 64.03 is on the circumstances of the offense and the significance of the evidence being subjected to DNA testing, not whether there are other indications of guilt, such as a confession or other physical evidence. Read opinion.

Commentary:

The “identity” requirement in Chapter 64 is a dead letter at this point.

Collins v. State

No. 09-15-00089-CR     3/29/17

Issue:

Does the 1999 amendment to Family Code §54.02(j) lowering the minimum age from 14 to 13 for a transfer from juvenile court to district court apply to a juvenile who committed a murder in 1998 when he was 13?

Holding:

Yes, application of the 1999 amendment to the defendant’s case does not violate ex post facto provisions. The Court noted that the effective date language of the 1999 amendment stated that the changes in law applied to any proceeding in which a discretionary transfer petition or motion was filed on or after the effective date of the legislative change. The Court concluded there was no ex post facto violation because the defendant challenged the constitutionality of the discretionary transfer statute as it was applied to him. Because the defendant received a punishment of substantially the same length as the punishment he was eligible to receive in 1998 had his case been tried in the juvenile system, application of the 1999 amendment to his case did not violate ex post facto provisions. The fact that the defendant could have faced a life sentence is irrelevant to the as-applied constitutionality analysis. Read opinion.

Commentary:

The specific facts of the case are such that you are not likely to need this case in your career as a prosecutor. The opinion is well worth reading, however, for the story of a murder prosecution in a case where the victim died some 13 years after the defendant lit him on fire.

Oliva v. State

No. 14-15-01078-CR     3/28/17

Issue:

Is a prior DWI conviction an element of the offense for a Class A repeat DWI offense?

Holding:

Yes. Because the prior DWI conviction is an element of the offense rather than a punishment enhancement, the State must present proof of the prior DWI conviction at guilt–innocence for DWI–2nd offense. The Court reversed and remanded to the trial court to reform the judgment to reflect a conviction for the lesser-included offense of Class B misdemeanor DWI and conduct a new punishment hearing. Read opinion.

Commentary:

As noted in the opinion, different courts are doing this differently. But it is a matter of sufficiency of the evidence—this case should be taken up so that the Court of Criminal Appeals can resolve this conflict regarding one of the most commonly-tried criminal offenses in Texas.

Ex parte Rogers

No. 01-16-00583-CR     3/28/17

Issue:

If a jury convicts a defendant but sentences him to no fine and no jail time, does a motion by the State for a new punishment hearing subject the defendant to double jeopardy?

Holding:

No. A verdict of no punishment constitutes a void sentence, and therefore a new punishment hearing does not subject the defendant to double jeopardy. Although Penal Code §12.22 states only a maximum fine and period of confinement for a Class B misdemeanor and does not set a minimum, the statute contemplates some form of punishment by stating that an offense is punishable by a fine or confinement or both. Read opinion.

Commentary:

No double-zeros—the jury must assess either a fine or time on a Class B misdemeanor. Texas just got a little bit safer.

Freeman v. State

No. 03-16-00130-CR     3/22/17

Issue:

Is a trial judge’s announcement of guilt “by the clearer greater weight and degree of credible testimony” sufficient to meet the burden of finding guilt beyond a reasonable doubt?

Holding:

No. Further, this is structural error that is not subject to a harm analysis. The judge’s later statement finding an enhancement paragraph as true “beyond a reasonable doubt” cannot be construed to apply to the finding of guilt. Read opinion.

Commentary:

A judge can seldom go wrong by limiting remarks on the record to: “denied, granted, overruled, sustained, the jury will remember the evidence, move along, guilty, or not guilty.” This judge probably had some laudable goal in using words beyond “guilty” but will pay the price of conducting a new trial.

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