Texas Court of Criminal Appeals
Harbin v. State
No. PD-0059-20 3/17/21
Issue:
Did the court of appeals incorrectly apply a 1994 statute regarding sudden passion to a crime committed in 1991?
Holding:
Yes. On retrial on punishment for his original conviction for murder, the defendant asked for a jury instruction on sudden passion under an amended version of Penal Code §19.02(d), which made sudden passion a punishment-phase issue. The trial court refused the instruction, however, because in 1991, when the crime was committed, sudden passion was an issue to be considered during guilt-innocence. The court of appeals reversed, holding that the jury should have had the sudden passion instruction for guidance in considering mitigating evidence, but the Court of Criminal Appeals disagreed. “The law applicable to the case was the law in effect when the offense occurred. The court of appeals erred to apply the 1994 statute to Appellant’s 1991 murder case.” Read opinion.
Commentary:
The lower court drove outside its lane and got whacked. The lane was clearly marked by the legislature.
Ex parte Biancalana
No. WR-92,181-01 3/17/21
Issue:
What is the appropriate remedy when a defendant is convicted in two separate counties for acts arising from the same aggravated kidnapping in violation of double jeopardy?
Holding:
The Court set aside the conviction from Kerr County but let stand the conviction from Gillespie County. Read opinion.
Concurrence (Keller, P.J., Hervey and Slaughter, J.J., joining):
“Often, when multiple convictions are the subject of a package deal, an error or defect on one of the convictions requires that the entire deal be undone. But the present case illustrates that such a result is not always required. Here, a double-jeopardy violation requires that one of the convictions be set aside, but the circumstances do not require that the package deal be undone. Instead, the appropriate remedy in this particular case is to modify the package deal to remove one of the convictions.” Read opinion.
Commentary:
The concurrence may help if you have a big plea bargain under post-conviction attack.
Texas Courts of Appeals
Schneider v. State
No. 03-19-00732-CR 3/10/21
Issue:
Does Code of Criminal Procedure Article 18.07(a)(3) require a blood sample seized under a search warrant to be tested within the statute’s three-day limit for execution?
Holding:
No. The Court agrees with the 14th Court of Appeals that the three-day requirement for execution of a search warrant sets the limit for the actual search and seizure of the evidence by an officer, not the timing for any subsequent forensic testing that might be conducted on the seized evidence. Read opinion.
Commentary:
Execution of the warrant is taking the blood, not getting the test. The Martinez decision continues to make unintended ripples in the pond.
Lira v. State and Huddleston v. State
Nos. 11-20-00148-CR and 11-20-00149-CR 3/11/21
Issue:
May a trial court require a defendant’s plea hearing to be conducted via a Zoom teleconference under the Texas Supreme Court’s emergency orders regarding COVID-19?
Holding:
No. In two separate but largely identical opinions, the court concluded that although the emergency orders appear to authorize a trial court to require any party to participate in a proceeding via videoconferencing, the emergency order cannot authorize a court to modify substantive rights. The right to appear in person in open court is a substantive matter under Code of Criminal Procedure Articles 1.13, 27.18, and 27.19. The court compared this case to the requirement that the State must consent to the defendant’s waiver of a jury trial discussed in In re State ex rel. Ogg, No. WR-91,936-01 (Tex. Crim. App. March 3, 2021): “Like the consent requirement involved in Ogg, the consent requirement in Article 27.18 is not merely procedural.” Read opinion.
Commentary:
The statute that authorizes video pleas has always required the consent of the parties. As advocates dedicated to sound results in the justice system, now is the time to be wary of those who will try to use the COVID crisis to cut corners and costs that cannot and should not be cut.
State v. Ruiz
No. 13-13-00507-CR 3/11/21
Issue:
Has the State shown sufficient exigent circumstances to justify a warrantless seizure of blood in an intoxication-related crash situation when the responding officer and backup officer are dealing with: (1) a driver who has fled the scene and been found unconscious nearby; (2) a crash scene on the roadway; (3) limited officer assistance available in a rural area; and (4) no local procedure in place for obtaining search warrants for blood from drunken-driving suspects?
Holding:
Yes. Even though the officer who secured the warrantless blood draw said she did so under the mandatory blood draw statute, Transportation Code §724.012, the circumstances in this case—namely, officers dealing with both a crash scene and an unconscious driver—establish exigent circumstances justifying the warrantless seizure of blood. Read opinion.
Commentary:
This is an important case regarding blood testing in the aftermath of the McNeely and Mitchell decisions from the U.S. Supreme Court. It will be interesting to see if the Court of Criminal Appeals reviews the case again.
State v. Martinez
No. 13-19-00434-CR 3/11/21
Issue:
Is a defendant who has been convicted of aggravated sexual assault of his son entitled to a new trial based on a claim of newly discovered evidence that a previously unknown witness said the victim’s mother (who was the outcry witness) told him that she fabricated the allegations made against the defendant?
Holding:
No. Even if the court assumed the evidence was admissible hearsay, the statements would not have altered the outcome of the trial given the evidence presented by a CPS investigator, CAC forensic interviewer, a licensed professional counselor, and a SANE nurse. The court reversed the trial court’s order of a new trial. Read opinion.
Texas Attorney General Opinion Requests
RQ-0400-KP 3/16/21
Issue:
May a district attorney represent the State in litigation over an emergency protective order under Code of Criminal Procedure Article 17.292 issued by a municipal judge sitting as magistrate?
Requested by:
Mark Gonzalez, Nueces County District Attorney
Interested parties may submit briefs by April 14, 2021 by email to [email protected].
RQ-0398-KP 3/3/21
Issue:
What is the maximum allowable period of deferred adjudication for a third-degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health & Safety Code?
Requested by:
Ryan Sinclair, Hood County District Attorney
Interested parties may submit briefs by April 1, 2021 by email to [email protected].
The Elephant in the Courtroom
A Candid Conversation on Race & Allies in Prosecution
TDCAA Diversity, Recruitment, and Retention Committee invites all Texas prosecutors—our BIPOC (black, indigenous and people of color) prosecutors and white colleagues—to engage, listen, and share as we come together to discuss race and how to be allies in our profession. Join us for our free virtual event via Zoom from 6-7:30 pm on Thursday, April 1. Registration will open on Thursday, March 25 and is limited to the first 200 to sign up.