Court of Criminal Appeals
In re State of Texas ex rel. Kim Ogg
No. WR-95,880-01 7/30/24
Issue:
In a death penalty case, does the trial court retain jurisdiction to recall an execution order and death warrant based on an alleged violation of CCP Arts. 43.15 and 43.16, relating to execution dates?
Holding:
No. In general, once a conviction has been affirmed on appeal and mandate has issued, the trial court cannot have jurisdiction restored. Several statutes, including CCP Art. 43.141, give the trial court limited jurisdiction for certain postconviction matters, such as setting an execution date, conducting DNA testing, or determining whether an inmate is competent to be executed. Article 43.141 provides only two circumstances for resetting an execution date or modifying an order setting an execution date: (1) if the parties have not been timely provided a copy of the order setting the execution date; or (2) if the court determines that additional proceedings are necessary on an application for a writ of habeas corpus filed under Article 11.071 or a motion for forensic testing of DNA evidence submitted under Chapter 64. In this case, the defendant cited Articles 43.15 and 43.16 but did not allege facts that would trigger Article 43.141’s limited grant of district-court jurisdiction to reset, withdraw, or modify an already-set execution date. Therefore, the judge’s recall of the execution order and death warrant is improper and must be rescinded. Read opinion.
Commentary:
This relatively short per curiam opinion is largely an exercise in statutory construction, with the court comparing the remedies allowed in Art. 43.141 with the absence of any remedy set forth in Art. 43.15 or 43.16. This opinion was issued on a Tuesday—before the usual Wednesday, when the court customarily issues opinions. As such, this opinion could also be an indication that the Court of Criminal Appeals is willing to step in if the defense or the trial court attempts to delay or cancel an otherwise properly set execution date. However, since this is only a short per curiam opinion, any attempt at reading too much into the court’s opinion is probably wishful thinking.
Ex parte Sinclair
No. PD-0184-22 7/31/24
Issue:
In a habeas proceeding under Article 11.072 of the Texas Code of Criminal Procedure referred from a district judge to a magistrate judge, does the court of appeals have jurisdiction over a defendant’s attempted appeal from proceedings on that application when no written order was actually signed by the district judge?
Holding:
No. After a lengthy discussion and analysis of CCP Art. 11.072 and Government Code §§54.901-54.913, the Court concluded that the findings of the magistrate were a recommendation to the district court. Because the district court produced no written order after receiving the recommendation of the magistrate, the district court failed to enter an appealable order granting or denying appellant relief. Thus, the court of appeals lacked jurisdiction over the attempted appeal. Read opinion.
Dissent (Newell, J., joined by Hervey, Walker, and Slaughter, JJ.):
“As I understand the Court’s holding, a magistrate’s written order recommending a particular action by the trial court cannot ever become a ‘written order’ of the trial court even if the magistrate’s order becomes the decree of the trial court as a matter of law. That means there are now countless cases in Texas in which trial courts believe they have denied habeas corpus relief by relying upon a magistrate, but after today, the applications are once again pending. … [T]he Court’s holding that the trial court must enter a written order separate from the magistrate’s recommendation effectively invalidates statutory provisions regarding local magistrate judges that trial courts have been relying upon for decades.” Read dissent.
Commentary:
Judge Yeary’s opinion for the court is a plurality opinion, with only two other judges joining his opinion, and then two other judges concurring in the judgment. As such, Judge Yeary’s opinion for the court does not have any precendential value. To the extent that trial court judges and habeas court judges rely upon magistrates, this opinion should not be ignored, however. The statutory construction in which Judge Yeary engages—primarily of Art. 11.072—is straightforward. The controversy in this case may be of interest only to appellate prosecutors, but because of the extensive use of magistrates in several counties in this state, this controversy will almost certainly come up again.
Stocker v. State
No. PD-0711-22 7/31/24
Issue:
Was a search warrant affidavit for the search of the defendant’s cell phone sufficient even though the affidavit did not describe the murder or the nexus between the phone and the murder?
Holding:
Yes. The appeals court misinterpreted the holding of State v. Baldwin, 664 S.W.3d 122 (Tex. Crim. App. 2022). “To the extent that the court of appeals read our opinion in Baldwin necessarily to require, as a prerequisite of probable cause, that an affidavit must establish (1) use of the cell phone either during, or immediately before or after, commission of (2) the specific offense on trial, it was misguided. Such a showing is not always required before a magistrate may find that a search warrant affidavit ‘state[s] facts and circumstances that provide . . . probable cause to believe that . . . searching the telephone . . . is likely to produce evidence in the investigation of’ certain criminal activity” under CCP art. 18.0215(c)(5)(B). The Court remanded the case to the court of appeals to reexamine its decision. Read opinion.
Commentary:
Ever since the Court of Criminal Appeals issued its decision in Baldwin, many have construed the scope and the meaning of that decision far too broadly. This opinion (which is unanimous) puts those overbroad constructions of Baldwin to rest. However, the court in no way overruled Baldwin. With Baldwin still being the controlling case on this matter, now comes the work in this case and others to show the nexus, connection, or tie between the device to be searched (the cell phone) and the offense under investigation. This will not be the last we see of this case, and this will certainly not be the last that we see of this particular issue in other cases. Prosecutors should keep an eye out for the review by the Court of Criminal Appeals of the decision in McDonald v. State, 676 S.W.3d 204 (Tex. App.—Houston [14th Dist.] 2023, pet. granted). In the meantime, the court’s decision in Stocker should be very helpful to prosecutors.
Ex parte Stepherson
No. WR-89,781-02 7/31/24
Issue:
Was the systematic sorting by the district clerk of the general venire based upon whether the potential juror was white or non-white and whether that potential juror lived in the city limits or outside the city limits a violation of the constitutional guarantees of due process, equal protection, and trial by an impartial jury?
Holding:
No. The district clerk of Brazoria County would divide jury questionnaire cards into five equal piles: (1) white jurors living in the city of Pearland; (2) non-white jurors living in Pearland; (3) white jurors living outside of Pearland; (4) non-white jurors living outside of Pearland; and (5) cards that were not properly filled out. Those cards would then be equally distributed among the jury panels requested by the courts. Under Peters v. Kiff, 407 U.S. 493, 501 (1972) (plurality op.) the Court created a test to determine whether “due process was violated by a county’s employment of a racially discriminatory process in constructing its jury panels, an applicant must make two showings to sustain his due process-based challenge: (1) systematic exclusion of a particular group; and (2) that exclusion rendered the jury plainly illegal in its composition.” The Court concluded, that while the clerk’s process “was indeed race-based, … her process was not designed to exclude certain groups or cause those groups to be underrepresented. The process was designed to be inclusive and sought to avoid underrepresentation by creating jury panels mirroring the proportions of the general venire. It therefore seems that the constitutional guarantees of due process, equal protection, and trial by an impartial jury were not violated.” Read opinion.
Commentary:
Prosecutors (and trial judges and court clerks) should be very careful in not reading too much into this decision. The decision arises out of a very unique way of calling and sorting citizens to be called for jury duty, and then further sorting those citizens for a particular venire. The process apparently did not always work as intended. As such, this decision is very fact-bound and may be of little precedential value. The legal analysis of the decision can be easily broken into three separate parts—due process, equal protection, and the right to a fair and impartial jury. Any prosecutor who wishes to be educated on these three ways to challenge a particular form of jury selection should read this decision. All of the analyses for these three separate legal theories are different, but—at least in this case—the solution under each theory boiled down to one fundamental ground: whether the mode of jury selection led to the exclusion of any special group in the community. Since exclusion was not proved in this case, the defendant’s claim failed. Nevertheless, readers should be very careful accepting a procedure that clearly takes a citizen’s race into account in calling the citizen for jury service.
Ex parte Lowry
No. PD-0887-21 7/31/24
Issue:
Is §43.262(b) of the Penal Code facially unconstitutional?
Holding:
No. §43.262(b) of the Penal Code prohibits a person from knowingly possessing, accessing with intent to view, or promoting visual material that depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years old when the visual material was created and if the visual material appeals to the prurient interest in sex and has no serious literary, artistic, political, or scientific value. In its 57-page holding, the Court concluded that §43.262(b) does not violate the First Amendment because it regulates only an unprotected category of speech, child pornography. Read opinion.
Commentary:
Section 43.262(b) survived the defendant’s constitutional challenge because the court found that it regulated only child pornography—as argued by the State. Future prosecutions under this statute must proceed with that holding in mind. Nevertheless, the opinion should be very helpful if the appropriate fact situation (unfortunately) arises, since the Court has upheld that portion of the statute that includes not just unclothed and partially clothed pubic areas of a child, but also clothed pubic areas of the child. The Court’s legal analysis—beginning on page 29 of the opinion—is very thorough and comprehensive. Therefore, a prosecutor seeking to charge and try a case under this statute (or a similar statute) should definitely read this decision. Pay particularly close attention to how to craft the jury charge in a prosecution under this statute, as the Court construed the culpable mental state for the offense to apply to the various circumstances of the offense that the State is required to prove. The Court did not address the defendant’s overbreadth claim (a different kind of First Amendment challenge) because it was not properly raised at trial. Therefore, prosecutors will have to wait for another case to determine if an overbreadth challenge to this statute might be successful. Congratulations to the hard work done by the prosecutors in this case.
Courts of Appeals
State v. Vasquez
Nos. 13-23-00330-CR & -00331-CR 7/25/24
Issue:
Is a trial court limited in its ability to dismiss with prejudice an indictment without prosecutorial consent by only acknowledged exceptions?
Holding:
No. While the CCP has listed exceptions in Art. 32.01 for when a court can dismiss without prosecutorial consent, including speedy trial violations, defect in charging instruments, certain Sixth Amendment violations, or unlawful detainer, “courts, however, are not limited to these delineated exceptions.” Here, the Court found that the defendant claimed relief under contractual and due process claims, both of which a court can dismiss with prejudice. “Because the State is incorrect as to the trial court’s limitations and does not address the merits of the dismissals under either legal theory before the trial court, we conclude the trial court did not abuse its discretion in dismissing the indictments.” Read opinion.
Commentary:
In reaching its decision in this case, the court of appeals relied in part on the decision of the Court of Criminal Appeals in Hatter, dealing with whether something along the lines of a plea agreement existed. In this case, the State apparently promised not to indict the defendant and/or dismiss any indictment against the defendant if the defendant surrendered her teaching certificate. How the Hatter case is ultimately resolved could play a role in how much staying power this case has. In the meantime, prosecutors who make promises in the course of proceedings against a defendant (or prospective defendant) must be aware of the possibility that those promises might be binding against the State, so as to prevent the criminal prosecution. So be careful out there.
Texas Attorney General Opinion Requests
RQ-0550-KP 7/24/24
Issue:
May a commissioners court pay the legal defense costs incurred by a district attorney who successfully defended against a grievance filed against her with the Texas State Bar? Read request for opinion.
Requested by:
Hon. Matthew Poston, Liberty County Attorney
RQ-0551-KP 7/25/24
Issue:
Under the dual office-holding doctrine of incompatibility, is a county commissioner prohibited from also holding the position of chief of the local volunteer fire department? Read request for opinion.
Requested by:
Hon. Sean Galloway, Andrews County Attorney
RQ-0552-KP 7/25/24
Issue:
Does electronic notice captured by a QR code on a traffic violation card satisfy the notice requirements of Transportation Code §§543.003-543.004? Read request for opinion.
Requested by:
Senate Committee on Nominations