Texas Courts of Appeals
Elsik v. State
No. 04-22-00333-CR 7/26/23
Issue:
Should a police officer have been allowed to testify in a human smuggling case that two of 13 passengers in a truck identified themselves as juveniles (17 years old)?
Holding:
Yes, on the 3rd-degree smuggling counts; no on the 2nd-degree smuggling counts. The court held that the admission of the officer’s hearsay testimony about the names, nationalities, and birthdates of the passengers under the hearsay exception for “Statement of Personal or Family History” did not influence the jury on the 3rd-degree smuggling counts, but the testimony may have influenced the jury on the 2nd-degree smuggling counts, because the age of the transported individuals is an element of the offense of the 2nd-degree offense, and the only evidence of the age of the juveniles was the police officer’s testimony. The court remanded the 2nd-degree charges to the trial court for a new trial. Read opinion.
Commentary:
The ultimate decision of the court of appeals in this case turns on the application of the harm analysis, but prosecutors may want to read the decision regarding the merits as well. The defendant raised a Confrontation claim in this case, but the court of appeals resolved a split of authority in federal courts and held that the statements about biographical information of the victims were not “testimonial.” Therefore, the only issue was whether the hearsay exception applied. The only basis for the court’s holding that the hearsay exception did not apply was that the State failed to prove that the victims (hearsay declarants) were not available. All of the victims had been returned to Mexico, but that was not good enough for the court of appeals. The court relied upon previous authority and held that the State was still required to present evidence that it had not been able, by process or other reasonable means, to procure the hearsay declarants’ attendance.
Nixon v. State
No. 04-21-00295-CR 7/31/23
Issue:
Did the court err by conducting a capital murder defendant’s trial in an annex courtroom within the County Jail building?
Holding:
Yes. The court held that a jury trial setting in a building with markings that indicate to the public that the primary purpose of the building is to operate as a jail “created an unacceptable risk that the presumption of innocence afforded to [the defendant] was eroded.” Noting that there is no Texas authority on what essential State interests may justify a jailhouse setting for a jury trial, the appellate court concluded that a trial court must make specific findings that the jailhouse setting is justified by an essential State interest specific to the trial and the judge considered reasonable alternatives. An argument that the jail setting would be more convenient for a number of reasons was insufficient to qualify as an “essential State interest.” “Accordingly, we hold this trial setting was an inherently prejudicial practice,” and the court reversed and remanded for new trial. Read opinion.
Commentary:
The decision of the court of appeals in this case is very, very thorough. In addition to considering the relevant authority from the United States Supreme Court, the court looked to decisions from other states both on the general issue of holding court in a prison or jail courtroom and on the specific issue of the sufficiency of the State’s (and the trial court’s) reasons for holding the trial in a jail or prison courtroom. Apparently, the local courthouse in this small county was insufficient to handle a capital murder trial (Medina County, due west of San Antonio with a population of a little over 50,000). Voir dire took place at the county fairgrounds. Any attempt to hold a trial in a jail or prison courtroom (and probably any non-courthouse courtroom) is going to require very specific case-specific findings that make it clear that the trial court has no legitimate alternative.
Mijangos v. State
No. 04-22-00302-CR 7/26/23
Issue:
Did the trial court lack subject-matter jurisdiction when it revoked the defendant’s community supervision by re-issuing a new capias the day after his probation expired?
Holding:
No. A trial court retains jurisdiction to hold a hearing on a motion to revoke, continue, or modify community supervision regardless of whether the period of community supervision has expired, if, before the expiration of the supervision period: 1) the attorney representing the State files a motion to revoke, continue, or modify community supervision; and 2) a capias is issued for the arrest of the defendant. Here, the record showed that at the time the defendant’s community supervision expired, there was a pending motion to revoke his community supervision on file and a capias had issued for his arrest. Thus, under Code of Criminal Procedure Art. 42A.751(l), the trial court retained jurisdiction when the defendant’s community supervision expired. “We decline to hold that the issuance of a new capias, which was not required, caused the trial court to lose jurisdiction.” Read opinion.
Commentary:
Surprisingly enough, the specific issue in this case does not appear to have been addressed previously. But the clear wording of the controlling statute ensured that the trial court still had jurisdiction in this case. This is a good decision to keep on hand if a defendant’s community supervision is close to expiring.
Lewis v. State
No. 14-21-00691-CR 8/1/23
Issue:
Does a jury charge for continuous sexual abuse of a child using the phrase “during a period that is 30 or more days in duration” impermissibly allow a jury to convict a defendant of conduct that occurred during a period that was less than 30 days in duration?
Holding:
No. The court held that the charge here did not imply that because the dates alleged in the indictment were separated by more than 30 days, that alone was sufficient to satisfy Penal Code §21.02. Instead, the language “during a period of time of thirty or more days in duration” refers to the element that the defendant “commit at least two acts of sexual abuse” and tracked the language of §21.02. “We do not believe this particular statutory text to be confusing, and we do not fault the trial judge for having followed it in instructing the jury,” citing Price v. State, 434 S.W.3d 601 (Tex. Crim. App. 2014). Read opinion.
Concurrence (Spain, J.):
“The majority decides to follow a previous precedential opinion from this court, Pelcastre v. State, 654 S.W.3d 579 (Tex. App. — Houston [14th Dist.] 2022, pet. ref’d).… Seemingly based on nothing more than the existence of (1) a concurring opinion and (2) the refusal of a petition for discretionary review, the majority decides to follow the previous nonprecedential approach in Moreno v. State, No. 14-18-00113-CR, 2019 WL 2000905 (Tex. App. — Houston [14th Dist.] May 7, 2019, pet. ref’d) (mem. op., not designated for publication). … I assume the majority understands that the refusal of a petition for discretionary review means nothing more than four judges on the court of criminal appeals did not vote to grant the petition. … If there is a reason to overrule Pelcastre, then we should do that as the en banc court.” Read concurrence.
Commentary:
It was the defendant’s position in this case that, because the indictment and the resulting jury charge alleged a range of dates, the jurors could conceivably pick two acts of sexual abuse that occurred within less than 30 days of one another. The majority opinion relied upon the stronger weight of authority (most of it in unpublished opinions) and held that following the statutory language could not be jury charge error. Stay tuned to see if the Court of Criminal Appeals wishes to review this decision.