Fifth Circuit
Gongora v. Thaler
No. 07-7003 2/27/13
Issue:
In a death penalty case, did the prosecutor’s comments on the defendant’s failure to testify require reversal of the conviction?
Holding:
Yes, “the extraordinarily extensive comments” on the defendant’s failure to testify “resulted in actual prejudice.”
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Commentary:
Gongora and a van full of gang members murdered a man during a robbery. Different persons from the van claimed that others were the shooter at various times. During arguments, the prosecutor appeared to try and explain why some of the men were called as witnesses but not others (including the defendant and some others that asserted the Fifth Amendment privilege), but the words chosen drew an objection that the trial court sustained. The trial prosecutor then made attempts to correct the statements but seemed to dig the hole deeper. In an unpublished opinion on appeal, the Court of Criminal Appeals stated that the comments were “inartful and often confusing” but held that the prosecutor was referring to the defendant’s failure to call witnesses, and thus conducted no harm analysis. The federal district court found that the arguments did comment on the defendant’s failure to testify but found that they were harmless. The Fifth Circuit agreed that the arguments were improper and that Gongora was harmed by the “at least five” references to his failure to testify. If you like to talk, in closing argument, about the defendant’s failure to call witnesses, review this opinion.
Court of Criminal Appeals
Ex parte Sereal
No. AP 76,972 3/6/13 (per curiam; substitute opinion)
Issue:
Was the defendant entitled to habeas relief because the lab technician solely responsible for testing the evidence in his case was found to have committed misconduct?
Holding:
Yes. Although there is evidence remaining that is available to be retested in this case, that evidence was in the custody of the unreliable lab technician. Because the technician committed misconduct and his actions are unreliable, custody was compromised and resulted in a due process violation.
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Commentary:
A chain is only as strong as its weakest link. This one analyst handled thousands of cases in the Houston area, and due to the breadth of the opinion, they may all be jeopardized. Situations like this, and caselaw such as Melendez-Diaz and Bullcoming demonstrate that the Legislature perhaps needs to increase crime lab funding so that two analysts can work each case rather than one.
Texas Courts of Appeal
Ex parte Cross
No. 02-12-00417-CR 2/28/13 (not desig. for pub.)
Issue:
Does a trial court have the authority to rescind an order granting a motion for new trial more than 75 days after the date sentence is imposed or suspended?
Holding:
No, not unless the original signing of the order was a clerical error. Here the trial court intentionally, albeit wrongly, granted the new trial. Reversed for a new trial.
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Commentary:
The judge’s explanation that he misunderstood the positions of the parties and was in a rush is not a clerical error.
Boutang v. State
No. 04-11-00764-CR 2/27/13
Issue:
Did the trial court violate a defendant’s confrontation rights by admitting 1) the testimony of an alleged surrogate analyst who was not employed during the time defendant’s breath sample was provided and analyzed, and 2) the breath-test results and Intoxilyzer maintenance reports?
Holding:
No, under Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), cross-examination of the person mixing the reference solution is not required before the admission of breath-test results. And, following Settlemire v. State, 323 S.W.3d 520 (Tex. App.—Fort Worth 2010, pet. ref’d), the admission of the Intoxilyzer maintenance records and breath test results does not violate confrontation rights.
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Commentary:
Another court of appeals holds that admission of maintenance information about the Intoxilyzer through a records custodian does not violate the Confrontation Clause. It will be interesting to see if the Supreme Court of the United States visits crime labs and Confrontation again given all the nitty-gritty details involved in using scientific evidence in criminal cases—the strange plurality opinion in Williams v. Illinois, 132 S.Ct. 2221 (2012) does not seem to answer all the questions we are asking.
State v. Cardenas
No. 04-12-00353-CR 03/06/13
Issue:
Did the trial court properly exclude photographs that the State offered in violation of a discovery order, even though the trial court had also found that the State did not act willfully?
Holding:
No. Only evidence willfully withheld from disclosure under a discovery order should be excluded from evidence.
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Commentary:
An interesting State’s appeal from a discovery dispute. Although the record showed the State knew the defense wanted some photographs, there was no showing the State actually knew the photos existed until somewhat later, and the State actually produced the items reasonably quickly after receiving them. Thus, the record did not show the State willfully withheld the photos from disclosure. It often seems that courts wish to exclude evidence simply because the State misses a deadline—more is required before a court suppresses otherwise relevant evidence in a criminal trial.
Texas Attorney General
Opinion for Harris County District Attorney
Opinion No. GA-0992 03/12/13
Issue 1:
May a district attorney petition a district court or inferior court for the destruction of blood seized during the investigation of an intoxication-related offense?
Issue 2:
Do district court judges and inferior court judges have authority to order destruction of blood seized during the investigation of an intoxication-related offense?
Opinion:
After a case has been finally resolved or taken on appeal to a higher court, the trial court no longer has jurisdiction over the case and no authority to issue an order for destruction of evidence in that case. Because the district and inferior courts lack jurisdiction, petitioning the courts would be ineffective. Other procedures may be used to destroy evidence, but the opinion does not reach those possible procedures.
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Commentary:
Evidence management guidance can be found in Articles 2.21, 18.17, 18.18, 18.181, 18.19, and 38.43, but those articles don’t have answers to every question. Petitioning a court for leave, if nothing else, has an appearance of regularity and provides a check on unilateral destruction. Thorough documentation of what is destroyed, when, and why will help you avoid bad faith claims under Arizona v. Youngblood.