Texas Court of Criminal Appeals
State v. Hradek
No. PD-0083-23 12/11/24
Issue:
In an ineffective assistance of counsel claim, did the appellate court apply the correct standard of review when the appellate court used a de novo standard of review instead of viewing the facts in the light most favorable to the trial court’s ruling?
Holding:
No. An ineffective assistance of counsel (IAC) claim has two elements: deficient performance and prejudice. The prejudice portion of an IAC claim is a mixed question of law and fact, a determination that the trial court is in the best position to make, because the trial court is the one judging credibility and demeanor of the witnesses and should be afforded “almost total deference.” Only mixed questions of law and fact that “do not depend on an evaluation of credibility and demeanor may be reviewed de novo.” Here, the appellate court should not have inserted its own judgment when “the trial court was better positioned to make that call, and its ruling was within the zone of reasonable disagreement.” Read opinion.
Concurrence (Newell, J., joined by Walker, J.):
“The proper standard for an appellate court to review a trial court’s grant of a motion for new trial is an abuse of discretion standard. The bare fact that a trial court may decide a matter differently from an appellate court does not demonstrate an abuse of discretion. Appellate courts must view the evidence in the light most favorable to the ruling, defer to the court’s credibility choices, and assume that all reasonable fact findings in support of the ruling have been made.” Read concurrence.
Dissent (Keller, P.J.):
“The trial court granted a motion for new trial on the basis of ineffective assistance of counsel. It found that numerous errors prejudiced [the defendant]. The court of appeals reversed, rejecting all of the ineffective assistance allegations. This Court now says that the court of appeals erred in failing to view the record in the light most favorable to the trial court’s ruling. Specifically, this Court concludes that the issue of prejudice depended on an evaluation of the credibility and demeanor of the new-trial witnesses and that the trial court was better positioned than an appellate court to evaluate the issue. The Court then says that, under a proper review, prejudice was shown. But the trial court made a crucial error of law that makes deferring to it problematic—it concluded that, except for the small portion the State sought to admit, the entire phone call was inadmissible. But in fact, much of the remainder of the phone call was admissible. … Once the admissible evidence is taken into account, it becomes clear that [the defendant] has not shown prejudice.” Read dissent.
Commentary:
The claim of ineffective assistance of counsel in this case was based upon the State’s introduction of a portion of the defendant’s jail call with her mother in which the defendant admitted to cocaine use, and then the defendant’s trial attorney’s decision to admit the entire telephone call into evidence. The trial court found this latter decision to be inexcusable, and the majority of the Court of Criminal Appeals agreed. This decision is based entirely on the proper standard of review, and it centers entirely around the second prong of the Strickland test for ineffective assistance of counsel—prejudice. As such, this decision may largely be of interest to post-conviction prosecutors or perhaps prosecutors who have to litigate hotly contested motions for new trial. As a practical matter, this decision is very much bound to its unique facts, so it will have lessened value as direct precedent. Appellate prosecutors will still want to review this decision, however, for the manner in which the court has treated a claim of ineffective assistance of counsel after that claim has been addressed in a motion for new trial. In this case, the State lost at the motion-for-new-trial stage, and the deference to trial judge would, therefore, be against the State’s position. However, in most cases, the State wins at the motion-for-new-trial stage, and this decision could very well be used as strong support for upholding the trial court’s ruling in the State’s favor.
Ex parte Bodden
No. WR-90,536-02 12/11/24
Issue:
What is the appropriate method for counting the number of “items” of identifying information possessed by a defendant under Penal Code §32.51 (Fraudulent Use or Possession of Identifying Information)?
Holding:
“[T]o determine whether a particular single piece or combination of information fits within the general definition of identifying information under the statute (‘information that alone or in conjunction with other information identifies a person’), we should take into consideration the ability of that information to identify the person (or their personal accounts) in a manner that would allow another person to engage in fraudulent conduct. Stated differently, if the information at issue would not be adequate to identify a person or their accounts in a manner that would allow the actor to engage in fraudulent conduct, then we should carefully consider whether the Legislature would have intended to encompass that type of information within the definition of ‘identifying information’ under Section 32.51(a)(1). Based on the foregoing, the correct method for calculating the number of items of identifying information under Section 32.51 is as follows: We must identify each piece of information the defendant obtained, possessed, transferred, or used that ‘identifies’ another person. Under the statutory definition for what constitutes ‘identifying information,’ each item might consist of a single piece of information that ‘alone’ identifies a person (e.g., a Social Security number or fingerprint), or it might consist of multiple pieces of information that ‘in conjunction’ identify a person (e.g., ‘name and date of birth’; a financial account user ID plus password; or a bank account number plus branch location or routing code). For purposes of counting the items of identifying information, it is immaterial whether they are possessed in a single tangible document or in multiple separate documents.” Read opinion.
Commentary:
In this case, the State conceded error before the habeas court, and the habeas court did not make any recommendation—leaving that to the Court of Criminal Appeals. What has resulted is frankly a very helpful decision from the court regarding how to count various items in a prosecution under Sec. 32.51. Start at page 11 of the majority decision up to the conclusion and application to the facts of this case on the bottom of page 19. Any prosecutor should read this decision if he or she has a prosecution under Sec. 32.51 with a large number of items. The bottom line for this particular case is that the defendant’s conviction is reformed from a first-degree felony to a second-degree felony, and the defendant will get a new punishment hearing.
Texas Courts of Appeals
In re: The State of Texas
No. 08-24-00378-CR 12/9/24
Issue:
When the State discovered that there appeared to be multiple sealed non-Ake ex parte motions and orders in the trial court’s file, was the State entitled to mandamus relief to have those motions unsealed when the trial court refused?
Holding:
Yes. To be entitled to mandamus relief, the moving party must have no adequate remedy at law and what the moving party seeks to compel is a ministerial act. Here, the Court emphasized the rarity of appropriate ex parte communications with the courts by either party outside the appointment of defense experts. Because none of the ex parte orders that the State expressly alleged were concerned with the appointment of defense experts and upon finding that the State had satisfied both prongs of the test for mandamus relief, the Court ordered the release of the three ex parte motions and orders. But the Court refused to order the trial court to release the other unalleged ex parte orders (of which the State says there are 230 more). Read opinion.
Commentary:
This decision is a straightforward application and extension of the 2023 decision of the Court of Criminal Appeals in In re City of Lubbock, in which the court upheld the granting of mandamus relief against a trial judge who issued ex parte discovery orders without the knowledge or involvement of the prosecution. If a prosecutor is faced with a judge who is issuing ex parte orders (that should not be ex parte), the prosecutor should definitely read this decision, as well as In re City of Lubbock. It might mean that a mandamus application will be necessary if the trial judge is still not willing to withdraw his orders. These decisions will help to provide a strong basis for the mandamus application.
State v. McDonald
No. 13-23-00509-CR 12/5/24
Issue:
Was the defendant’s Sixth Amendment right to counsel still attached and asserted when officers began questioning her in 2018 about charges stemming from 2007?
Holding:
Yes. The Court rejected the argument that the Sixth Amendment right to counsel ends when charges are terminated. The Court further reasoned that time alone is insufficient to terminate a defendant’s Sixth Amendment right to counsel, and the officers investigating the defendant’s case in 2018 knew that the defendant was represented by counsel in 2007. Because the officers were investigating the same charges in 2018 as had been investigated in 2007 and the defendant’s right to counsel was still intact, the Court found that when the officers re-questioned the defendant in 2018, they violated her Sixth Amendment right to counsel. Read opinion.
Commentary:
In this case, the court of appeals felt bound by the 1995 decision of the Court of Criminal Appeals in State v. Frye. There are several distinguishing factors between Frye and this case, all of which were addressed by the court of appeals. It is possible that these distinctions will cause the Court of Criminal Appeals to review this unusual decision and perhaps even revisit Frye.
McCumber v. State
No. 09-22-00157-CR 12/11/24
Issue:
Did the trial court commit reversible error when it denied the defendant’s motion for mistrial when two seated jurors were mistakenly released by the bailiff and replaced by alternate jurors in jury deliberations?
Holding:
No. Although the Court concedes that error was committed, the error was harmless. At all times the jury was composed of 12 jurors as required constitutionally and by statute. While the proper protocols were not followed to substitute an alternate juror for a seated juror, “the record indicates the alternates were functionally indistinguishable from the original jurors they replaced.” Read opinion.
Dissent (Golemon, C.J.):
“The record before us shows that there were disagreements among the jurors about the victim’s testimony and whether a specific type of sexual assault occurred. This disagreement required that certain testimony be read back to the jury. The jury was not polled. The record does not reveal what role the alternate jurors might have played in the deliberations, although they retired with the 10 sitting jurors when deliberations began. Based on our examination of this record as a whole, it is impossible for us to have fair assurance that the error did not influence the sitting members of the regular jury or only had but slight effect. Without this assurance, I would hold that the error affected [the defendant]’s substantial rights.” Read dissent.
Commentary:
As noted above, this decision is centered almost entirely around the harm analysis, the courts having found error because the required findings were not made when alternate jurors began serving as jurors in the case. The court of appeals followed the 2024 decision of the Court of Criminal Appeals in Becerra v. State, in holding that the error in this case was statutory in nature only, not constitutional. It is significantly more difficult to find in support of reversal when an error is non-constitutional in nature. Appellate prosecutors dealing with this kind of error will want to read this decision, as well as Becerra.
Attorney General Opinions
No. KP-0476 12/4/24
Issue:
May a district clerk refuse to electronically file a document in a criminal case based on the district clerk’s opinion that the document fails to comply with the Judicial Committee on Information Technology Standards (JCIT)?
Conclusion:
“A district clerk may not refuse an electronically filed document in a criminal case based on the district clerk’s opinion that the document fails to comply with technology standards set by the JCIT. However, a clerk’s return of documents for correction pursuant to JCIT technology standard Section 4.8.4 and Rule 2.6 of the Statewide Rules Governing Electronic Filing in Criminal Cases does not constitute a refusal of such documents.” Read opinion.