Texas Court of Criminal Appeals
Ex Parte Sheffield
No. PD-1102-20 06/21/2023
Issue:
Are speedy trial claims cognizable in pretrial habeas corpus when an applicant wants a trial instead of a dismissal?
Holding:
No. The court held that the rule from Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016) “does not apply to speedy trial claims because pretrial habeas corpus litigation would not vindicate the speedy trial right and would effectively undermine that right instead. Vindication of the speedy trial right must be had through a motion to dismiss, followed by appeal after trial if the motion is wrongly denied. If trial and appeal are indefinitely postponed, mandamus, not pretrial habeas, is available.” Read opinion.
Commentary:
Prosecutors who see a lot of pretrial writs of habeas corpus should get very comfortable with the concept of cognizability. With regard to a pretrial writ of habeas corpus, this concept applies just as much at the trial level as it does on appeal. If a claim is not cognizable by way of a pretrial writ of habeas corpus, that means that the defendant cannot raise it. Period. It is a concept with which the Court of Criminal Appeals is very interested, so expect to see more decisions regarding cognizability in the near future. Pages 9 to 12 of the court’s opinion gives a very brief summary of the court’s holdings with regard to cognizability. It can get quite complicated, but those pages should help prosecutors learn more about the concept if they are confronting the issue for the first time. The primary holding of this case is that a defendant cannot raise a speedy-trial claim by way of a pretrial writ of habeas corpus. There is no distinguishing this case. He cannot do it. There is another important holding of this case, beginning on the bottom of page 18 of the court’s opinion. The court makes clear—if it was not clear before—that the prosecution of a defendant and an application for a pretrial writ of habeas corpus are not the same case. That means that, in many cases, when a defendant is taking an appeal from a trial court’s denial of relief on a pretrial writ of habeas corpus, the prosecution of the defendant—his trial—can still continue. It does not matter if the local clerk’s office assigns the same cause number to the prosecution and the pretrial writ of habeas corpus. If a defendant wants to prevent his trial from continuing while he takes his appeal, he should seek a stay of the trial proceedings, which the trial court (presumably) is not required to grant. There are situations in which a defendant might be entitled to an automatic stay, the most common example being a non-frivolous double jeopardy claim. The court expressly did not decide when a defendant might be entitled to stay of his trial, so there should be future litigation regarding that issue. Because of the nature of the right, however, a defendant will always be entitled to a stay if he is raising a non-frivolous double jeopardy claim.
Texas Courts of Appeals
In re State of Texas ex rel. McCain
No. 06-23-00003-CR 06/20/2023
Issue:
Did a trial judge err in ordering the State to provide a copy of a recorded forensic interview of an alleged child victim to the defendant?
Holding:
Yes. Texas discovery statutes (specifically Code of Criminal Procedure Arts. 39.14 and 39.15, as well as Family Code §264.408) make clear that recorded interviews given by alleged child victims of sexual assault may not be duplicated. The court rejected the trial court’s argument that giving the defense a copy of the tape would “save the county money” to allow an expert witness to review the interview. “While no constitutional argument is before us, we note … that convenience is not a sufficient reason to side-step a clear statutory prohibition. Read opinion.
Dissent: (Rambin, J.)
“The top-level question here is whether the trial court could have made more than one rational decision. In conjunction with that top-level question are the embedded subsidiary questions within the ministerial act standard, such as whether the law in this area is equivocal or unsettled. … The question is whether—when those statutes are viewed through the lens of the mandamus standard—and through the additional lens of the duty of inferior courts to follow the decisions of the Court of Criminal Appeals—the trial court had discretion to avoid the expense of a taxpayer-provided defense expert traveling for an on-site review of the recording by ordering that the prosecutor copy the video recording and send it to the defense expert.” Noting that the discovery statutes have changed many times since 2011, the dissent would conclude “that more than one rational choice was open to the trial court.”
Commentary:
In reaching its holding, the majority opinion disagreed with a 2011 decision of the Court of Criminal Appeals, which was decided before the relevant amendment to Article 39.15 of the Code of Criminal Procedure. Article 39.15 and §264.408 of the Family Code both provide, “A court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce” any such forensic interview. The statutes are clear. The defendant may seek mandamus relief from the Court of Criminal Appeals, but this decision should hold up.
Chavez v. State
No. 02-23-00046-CR 06/15/2023
Issue:
Is a defendant entitled to challenge his $1 million bail for a pending murder charge via a petition for writ of habeas corpus when the federal authorities have also issued a warrant for his arrest?
Holding:
Yes. A defendant is entitled to bail even when he is subject to confinement or restraint by another jurisdiction. The State contended that the excessive-bail challenge is not cognizable on pretrial habeas because federal authorities have issued a warrant for his arrest, so even if the defendant posts bail for his murder charge, he will be transferred to federal custody rather than immediately released. The court rejected this argument and instead concluded that the federal warrant does not undermine the cognizability of the defendant’s excessive-bail challenge because, whether or not another jurisdiction seeks to detain him, habeas relief could result in his immediate release from the county’s unlawful confinement or restraint. The court further concluded that although the statutory bail considerations support a reasonably high bail in this case (criminal history, prior failures to appear, out-of-town ties, and threat the defendant poses to the community), there was not sufficient evidence to demonstrate that a bail of $1 million is necessary to satisfy the State’s interests. Read opinion.
Commentary:
This is a very thorough 29-page opinion from the court dealing with two issues: (1) whether the defendant could raise this claim, even though he would not be set free because of the federal arrest warrant (cognizability), and (2) whether the bail was excessive. The court’s opinion is well worth reading if only to get exposed to an excellent review of both of these issues. These issues have been well-litigated on appeal and apparently at trial as well. It is rare for a $1 million bail to be upheld on appeal, so this decision may hold up.
State v. Villanueva
No. 02-23-00001-CR 06/15/2023
Issue:
Does Penal Code §46.02(a-1) criminalize intentionally operating a vehicle while intoxicated with a handgun present?
Holding:
Yes. The court rejected the defendant’s argument that a 2021 amendment adding §46.02(a-6) impliedly amended §46.02(a-1) to remove intoxicated-related offenses from the scope of “criminal activity” subject to prosecution under §46.02(a-1)(A). The court concluded that subsections (a-1) and (a-6) deal with overlapping subject matter (criminalizing some conduct that involves intoxication and handgun possession), but the two sections are not identical and can be harmonized. “Under Section 46.02(a-6), it may not be an offense if an intoxicated person is simply inside his vehicle in possession of a handgun. It may become a violation of section 46.02(a-1) if that intoxicated person, with the requisite mens rea for unlawful possession of the firearm, operates that vehicle while in possession of a handgun.” Read opinion.
Commentary:
The court does a good job in distinguishing the two subsections. Nevertheless, the apparent conflict between §§46.02(a-1) and 46.02(a-6) may encourage the Court of Criminal Appeals to review this decision. In the meantime, prosecutors should be aware of these two statutes and tread carefully in deciding whether or how to charge a defendant.