Texas Courts of Appeals
Odeku v. State
No. 01-23-00263-CR 4/17/25
Issue:
Did a judge correctly allow extraneous-offense evidence from a sexual assault nurse examiner’s (SANE’s) records about another alleged sexual assault?
Holding:
Yes. The extraneous-offense evidence was sufficiently similar to the charged sexual assault and was admissible to address the defendant’s defensive theory regarding intent. The Court noted that if the defendant’s intent is the material issue, as in the charged offense, “the degree of similarity between the charged offense and the extraneous offense need not be as great as when identity is the material issue.” Read opinion.
Commentary:
This is an extremely helpful decision for adult-sexual-assault prosecutors. The defense made some strong arguments, and the court of appeals addressed each of the arguments very thoroughly. This opinion should be required reading for any prosecutor who wishes to introduce an extraneous offense into evidence in an adult-sexual-assault case. This decision is also significant for another reason: The court of appeals held that the defendant’s right of confrontation was not violated by introduction of the extraneous offense through a sexual assault nurse examiner (SANE) report because the report is not “testimonial” for purposes of the Confrontation Clause. The court held that a person undergoing a SANE exam provides a verbal history to a medical professional for the primary purpose of obtaining medical treatment, whether or not the person intends to report the sexual assault to the police and even though the exam results in evidence that might be used in a prosecution. As noted by the court’s decision, several appellate courts have held that such evidence is not “testimonial,” but those decisions are all unpublished. This one is published. Great work by the State and by the court in this case.
Miller v. State
No. 11-23-00022-CR 4/17/25
Issue:
Did inconsistent verdicts for co-defendants require a reversal for the defendant found guilty?
Holding:
No. “[A] claim of inconsistent verdicts has no effect on our review of the sufficiency of the evidence.” A father and son got into an altercation with their neighbor over a mattress and were charged with murder. The father, who first shot the victim, argued self-defense, and his co-defendant son, who shot the victim second, raised defense of a third person. The jury found the father guilty and the son not guilty. The Court rejected the father’s claim that the jury’s rejection of his self-defense claim and its guilty verdict were unreasonable because “the circumstances supporting his son’s reasonable belief that he needed to use deadly force to protect [his father] were the same circumstances supporting [the father’s] reasonable belief that he needed to defend himself.” While no cases in Texas address a claim of inconsistent verdicts involving co-defendants, the Court noted that the Fifth Circuit has held that a jury rendering “inconsistent verdicts has always been an exclusive privilege and prerogative of the jury.” Odom v. United States, 377 F.2d 853 (5th Cir. 1967). Read opinion.
Commentary:
The defendant did not sufficiently establish that the jury’s rejection of the defendant’s self-defense claim and the jury’s (apparent) acceptance of the co-defendant/son’s defense-of-a-third-person claim were inconsistent. Even so, this decision supports the proposition that jurors are entitled to reach arguably inconsistent verdicts. As noted by the court’s very thorough analysis, the evidence in this case was more than sufficient for the jury to reject the defendant’s self-defense claim. Prosecutors should keep watch over this decision for another reason. The court of appeals also held that the defendant was not entitled to an instruction on the defense of necessity in light of the fact that the jury had already been instructed on the use of deadly force in self-defense. The Court of Criminal Appeals has not squarely addressed this particular issue, and the high court might very well want to address this issue as well as the inconsistent-verdict issue. The court of appeals also conducted a helpful analysis in support of the exclusion of the defensive evidence regarding the victim’s prior specific acts of violence. Prosecutors should definitely read this very well-reasoned decision.
Johnson v. State
No. 14-23-00638-CR 4/22/25
Issue:
Did the trial judge incorrectly replace a juror who fell outside the court and injured her knee with an alternate before sentencing?
Holding:
No. The judge’s decision to replace the juror as “disabled” under CCP Arts. 33.011(b) and 36.29 was reasonable. A doctor who examined the juror wrote a note indicating that the juror would not be able to return to court after falling and hitting her head and knee and instructed her to rest for two to three days. The Court also concluded that if a defendant elects to have the jury assess punishment, his right to have the “same jury” assess punishment is not violated if an alternative juror replaces a disabled juror after the verdict but before punishment is assessed. Read opinion.
Commentary:
This decision is a good resource for prosecutors researching a disabled-juror issue. The court of appeals points out the great discretion that trial judges have in making a disabled-juror determination, and the court of appeals noted that the trial judge is not required to directly question the disabled juror to confirm that the juror is in fact disabled. The “same jury” argument raised by the defense might have been novel, but the result reached by the court of appeals only makes sense—if an alternate juror begins to deliberate in a case, the “same jury” is still deliberating on the defendant’s case. After all, the alternate juror was selected along with the original 12 jurors. As noted by the court of appeals, the “alternate juror” provision would be rendered meaningless if an alternate juror could not take over under these circumstances.
Rhodes v. State
No. 11-24-00018-CR 4/17/25
Issue:
Is the State required to prove through direct testimony that a defendant in a continuous sexual abuse of a child case was 17 or older at the time of the offense?
Holding:
No. Although no direct testimony regarding the defendant’s age was presented to the jury during the guilt–innocence phase, “ample evidence was admitted from which the jury could have logically inferred that [the defendant] was at least 17 when the requisite time alleged by the State began.” Read opinion.
Commentary:
Decisions like these show why so many people hate lawyers. The evidence was clear throughout this trial that the defendant was much, much older than 17 when he committed numerous child sexual abuse offenses. The evidence showed things such as the age of the defendant’s biological daughter, the extended period of time in which the defendant committed the charged conduct, and the length of time that other witnesses claimed to have known the defendant. Still, the age of the defendant is technically an element of the offense, so child-sex-abuse prosecutors should keep this decision in mind when prosecuting the offense of continuous sexual abuse of a young child.
New training on a possible alternative to competency restoration
Here is a training opportunity for judges, prosecutors and defense attorneys interested in learning more about a possible alternative to competency restoration for certain misdemeanant defendants.
Transfer Upon Civil Commitment with Assisted Outpatient Treatment is a relatively new concept that is permissible under Texas law. It entails dismissing criminal charges while simultaneously petitioning for civil commitment with discharge to an assisted outpatient treatment program. While in the program, participants are monitored by the civil court and community mental health system working together collaboratively until such time as the participant voluntarily engages in treatment.
Moving defendants who are unlikely to be restored to competency out of jail and back into the community where they will be monitored for adherence to treatment can help reduce overcrowding in jail, reduce arrests, and save money. To highlight this innovative pathway and share other integral information about Assisted Outpatient Treatment Courts, the Treatment Advocacy Center is hosting this FREE training on June 5-6, 2025 in San Antonio.
Speakers will include Hon. Oscar Kazen, Prof. Brian Shannon, as well as other state and national experts. See attached flyer and agenda for more information or go here to register. CLEs are being requested.