Texas Court of Criminal Appeals

Ex Parte Charette

Nos. PD-0522-21 through -0525-21                     1/15/25

Issue:

Does the Texas Ethics Commission (TEC) have exclusive jurisdiction to make an initial determination for alleged violations of election and campaign laws in Chapter 571 of the Texas Government Code?

Holding:

The Court of Criminal Appeals has granted the State’s motion for rehearing in a case in which it previously held (on Sept. 11, 2024) that the Legislature intended for the TEC to have exclusive jurisdiction over the election and campaign offenses listed in Chapter 571. Read original opinion here and TDCAA’s original summary and commentary here. 

In its motion for rehearing, the State Prosecuting Attorney’s Office argued that: 1) when exhaustion is functionally inapplicable to criminal prosecutions and its utility undermines interference-free elections, it follows that there is no exclusive jurisdiction that prevents a prosecution from proceeding concurrently with TEC complaints; and 2) criminal prosecution is outside TEC’s exhaustion scope; therefore, TEC and Texas courts have concurrent but distinct jurisdiction. The SPA also noted that 33 elected district attorneys submitted an amicus brief in support of the SPA’s motion for rehearing. Read motion for rehearing.

Commentary:

Rehearing in this case is great news for prosecutors. While rehearing doesn’t automatically mean that the result will change (though it often does), the odds of a different outcome are increased here because the majority opinion was a close call originally (5-3, with 1 concurrence) and there has been turnover on the appellate court (2 of the judges who voted with the majority are no longer on the CCA). And the SPA’s motion for rehearing brings up several issues for the Court to consider. Only time will tell if the new CCA judges will side with the remaining CCA judges who voted with the original majority opinion, with the dissenters’ viewpoints, or take a different approach altogether, but if you’re heading to Las Vegas, your best bet is that the new majority opinion will have an alternate ending.  

Texas Courts of Appeals

State v. Cielencki

No. 03-22-00742-CR               1/9/25

Issue:

Did the trial court correctly suppress evidence in written and oral statements made to investigators during a recorded interrogation following a polygraph exam?

Holding:

Yes, the defendant’s statements were not voluntarily made because of coercive or improper police conduct during the polygraph exam and subsequent recorded interrogation. The Court rejected the State’s argument that any misrepresentations about whether the defendant actually failed the polygraph exam and about the accuracy of polygraph results were not the type of misrepresentations that would make a confession involuntary. The Court instead concluded that “even misrepresentations that do not rise to the level of implicating Due Process are relevant in determining the defendant’s subjective mental state under general voluntariness” in Code of Criminal Procedure Art. 38.22, §6. Read opinion.

Concurrence (Kelly, J.):

“I join the majority and write separately to acknowledge an elephant in the room—the difficulty of discerning, and applying, the correct standard of review to a trial court’s voluntariness decision when that decision is made from virtually uncontested facts apparent on a videotape of an interrogation. … [T]he trial court’s finding of involuntariness was mainly based on … tactics [by the polygraph examiner and the detective who interviewed the defendant after the polygraph]. And other courts consider such tactics garden variety deception—not the type to render a suspect’s statements involuntary. … Given our obligation to defer to the inferences the trial court must have made about Cielencki’s state of mind if they reflect a permissible view of the evidence (regardless of whether we agree with it), and the fact that involuntariness under state law is not dependent on due process level overreaching, I join the majority opinion. I am still unsure of how, in this context, to distinguish between questions of fact to which we owe the trial court deference, and questions of law. But I am fairly sure, after reviewing the video, that if Cielencki’s will was overborne, he did not know it.” Read concurrence.

Commentary:

Hopefully the State will seek discretionary review of this opinion because interrogation tactics like those at issue in this case are commonly employed by law enforcement officers and are generally upheld by other appellate courts. Further, the concurring opinion raises an interesting question about what level of deference to the trial court’s fact-findings is warranted when the entirety of the defendant’s polygraph examination and interview with the police was recorded on video and when, as apparently was the case here, the video demonstrates that “if [the defendant’s will was overborne” by the investigators’ supposedly coercive and improper conduct, “[the defendant] did not know it.” The majority opinion distinguishes these facts and defers to the trial court’s defense-oriented findings on the bases that: (1) the video featured only the defendant, while the officers were off screen, and (2) the trial court was still required to make credibility and demeanor determinations as to the defendant’s state of mind. Whether the CCA might agree, though, when the video apparently does not show that the defendant acted in a manner that indicated that his will was actually overborne remains to be seen. Stay tuned.