Texas Court of Criminal Appeals
Ex Parte McMillan
No. WR-88,970-01 5/1/24
Issue:
Was there ever a time prior to the Court’s decision in Ex Parte Pue, S.W.3d 226, 235 (Tex. Crim. App. 2018), when other states were allowed to unilaterally dictate the laws and public policy of the state of Texas?
Holding:
No. The defendant was convicted in 2015 of theft. The State used a prior 2001 federal conviction out of Alaska to enhance the theft to a first-degree felony resulting in a 40-year sentence. The defendant argued that the 2001 federal conviction was not final at the time of the 2015 offense; therefore, the enhancement was unlawful and resulted in an illegal sentence. Here, the Court ruled that Texas law determines whether a federal or out-of-state conviction is final and that this rule applies to all cases prior to Pue. Under Texas law, the defendant’s conviction and appeal were final, and the federal conviction could properly be used as an enhancement for the State’s 2015 theft case. Read opinion.
Commentary:
Here, the Court of Criminal Appeals conducted a straightforward retroactivity analysis to reach its holding that Pue did not announce a new rule and, thus, automatically applies retroactively.
If you are faced with a retroactivity question, recall that if the issue is whether the holding of a case applies retroactively, your analysis will center on the Unites States Supreme Court precedent Teague v. Lane, 489 U.S. 288 (1989). If, on the other hand, your retroactivity question involves the retroactive application of a statute, like in this case, you will use the SCOTUS case Stovall v. Denno, 388 U.S. 293 (1967), for your analysis. The retroactivity frameworks in Teague and Stovall both begin with the threshold question of whether the rule announced by the case or statute at issue is “new,” but they then utilize distinct tests, so you’ll want to make sure that you apply the correct standard.
Texas Courts of Appeals
Mohsin v. State
No. 03-22-00175-CR 4/30/24
Issue:
Did the trial court abuse its discretion by allowing the State to enter both testimonial statements and hearsay under the rule of forfeiture by wrongdoing (Code of Criminal Procedure Art. 38.49)?
Holding:
No. Using the factors found in Brown v. State, 618 S.W.3d 352 (Tex. Crim. App. 2021), the Court concluded that the State made a good-faith effort to secure the victim for trial; that the defendant used threats, coercion, and influence to discourage the victim from testifying; and that the defendant’s actions caused the defendant’s desired result: the victim’s unavailability for trial. Because the State met the factors in Brown, the Court concluded that the trial court did not abuse its discretion in allowing evidence under the rule of forfeiture by wrongdoing. Read opinion.
Commentary:
This case provides an excellent example of the State, the trial court, and appointed counsel for the victim developing a comprehensive record that demonstrates that the rule of forfeiture by wrongdoing should apply as an “equitable exception” to the defendant’s Sixth Amendment right of confrontation. Although prosecutors may employ the forfeiture-by-wrongdoing doctrine in any case where it applies, it arises most frequently in cases involving domestic violence—where the defendant has ready access to the witness that he or she is threatening or coercing, and the witness often has an increased incentive to avoid the parties’ attempts to secure his or her presence at trial. Regardless of the type of charge that you’re prosecuting, though, if you believe that the rule of forfeiture by wrongdoing might apply, read the Court of Criminal Appeals’ opinion in Brown and remember this case for a more recent application of the factors discussed in Brown.
Texas Attorney General Opinion Requests
RQ-0537-KP 4/25/24
Issue:
Does the Texas Open Meetings Act, Government Code §551.071, authorize discussion about hiring a law firm, and is boilerplate language contained on a meeting notice or agenda sufficient notice of an executive session? Read request for opinion.
Requested by:
Matthew Mills, Hood County Attorney
RQ-0536-KP 4/25/24
Issue:
Does the mayor of a Type C municipality who resigns hold over in office under article XVI, §17 of the Texas Constitution? Read request for opinion.
Requested by:
Rene Montalvo, Starr County Attorney