Texas Court of Criminal Appeals

McDonald v. State

No. PD-0147-25             9/17/26

Issue:

Did a State’s expert witness violate the defendant’s Fifth Amendment rights during a competency evaluation by asking about her mens rea during commission of the offense?

Holding:

Even if the trial court erred in allowing the State’s expert to testify, the error did not affect the defendant’s substantive rights. Before the defendant’s capital murder trial for killing her two children, a forensic psychologist hired by the State performed a competency exam and later performed an insanity evaluation. The psychologist found that the defendant was not legally insane at the time of the offense. The defendant argued that because the State had hired the expert, the expert was acting as an agent of the State and had violated the defendant’s Fifth Amendment rights during the competency exam by asking about her mental state at the time of the offense without proper Miranda admonishments. The Court noted, however, that the psychologist never testified on direct or re-direct about the statements the defendant made during the competency exam regarding her mens rea at the time of the offense. The Court concluded that the expert’s testimony did not substantially harm the defendant, in part because there was ample evidence presented at trial that the defendant knew her actions were wrong, including her statements in a 911 call and interactions with police. “Thus, while there may have been a Miranda violation, those concerns were futile because the State never actually offered the ‘illegally obtained’ statements against [the defendant] at trial. The State’s non-use cannot be said to be an infringement of the principles of the Fifth Amendment, and so there was no error.” Read opinion.

Concurrence (Parker, J., joined by Yeary, J.):

“The Court holds that [the defendant’s] Fifth-Amendment claim lacks merit because no statements from [the defendant] were introduced. While I do not necessarily disagree with that conclusion, we need not reach out to decide that issue when the court of appeals correctly held that [the defendant] had waived her Fifth-Amendment claim. As a result of that holding, there is no Fifth-Amendment error analysis left for the court of appeals to conduct and the constitutional harm standard does not apply to this case. It doesn’t matter how diligent [the defendant] was in raising her Fifth-Amendment claim; she waived it when she introduced her own expert testimony.” Read concurrence.

Concurrence and Dissent (Finley, J.):

“Having properly concluded that [the defendant] preserved a Fifth Amendment objection, we should simply remand this cause to the court of appeals for it to decide the merits of [the defendant’s] Fifth Amendment claim in the first instance.” Read concurrence and dissent.

Commentary:

Here, the trial court overruled the defense’s mid-trial objection and permitted the State’s expert to testify.  However, the majority opinion’s holding that the defendant’s mid-trial objection was sufficiently timely to preserve error exposes a potential danger for the State.  That is, if the trial court had sustained the defendant’s mid-trial objection and refused to allow the State’s expert to testify, the State would not have been able to present a mental-health expert to rebut the defendant’s insanity defense.  Thus, on a broader level, the majority opinion dilutes the previously longstanding principle that “timeliness” for purposes of preserving error means that the objecting party is required to object at the earliest moment that the error became apparent.  Apparently, not anymore.  Instead, so long as the complaining party objects while the trial court is still in a position to rule on the complained-of error, even if not at the earliest opportunity, the timeliness requirement will have been met, per this opinion.  Appellate practitioners especially, take heed.

Pittman v. State

No. PD-0894-23                               9/17/26

Issue:

Did the trial court violate the requirement in Code of Criminal Procedure Art. 42.03, §1(a) for a defendant’s presence by pronouncing sentence via videoconference?

Holding:

Yes, but any error was harmless. The Court noted that Art. 42.03 does not define “presence” but concluded that “[b]ecause Article 42.03, §1(a) is unclear, we assume without deciding that it requires a defendant’s personal presence, but we find no harm from the assumed error because the purposes of sentence pronouncement were satisfied in the videoconference.” The Court also concluded that the court of appeals had jurisdiction of the appeal even though the defendant’s sentence was not pronounced in his physical presence. Read opinion.

Concurrence (Newell, J., joined by Walker, J.):

“I am not entirely sold on the ambiguity of the word ‘presence’ in Article 42.03 of the Code of Criminal Procedure. Definitions of ‘presence’ dating back to the 1800s are well and good, but the elephant in the room is that videoconferencing didn’t exactly exist in the 1800s so there was no reason to use the phrase ‘in person’ when defining ‘presence.’ And though the technology existed in 1981, if the movie at Disney’s Sci-Fi Dine-In hasn’t lied to me, it seems more likely that the idea of ‘telepresence’ as part of the criminal justice system didn’t become a thing until around 1997 when the Legislature enacted a statute to take advantage of the technology. In my mind, the legislature’s use of ‘presence’ in the statute more likely suggested an exclusion of pronouncing sentence by séance than anticipating sentencing via videoconference.” Read concurrence.

Concurrence (Parker,  J.):

The dissent complains that an outcome-determinative test for harm is inappropriate in this case. I agree, but the Court’s opinion does not engage in an outcome-determinative analysis.” Read concurrence.

Dissent (Schenck, P.J., joined by Yeary, J.):

“The entire point and sole purpose of the statute is grounded in maintaining the perceived structural legitimacy of the process. When the legislature enacts a statute forbidding courts from literally ‘phoning in’ the result, it means what it says no different than it would by forbidding a trial to take place in a parking lot. Whether departures from any of these requirements can ever be proven to change the result is inherently unknowable. The right to have one’s fate adjudicated in a forum and by a process that reflects the solemnity of the event is substantial on its own and without regard to its effect on the result.” Read dissent.

Commentary:

Even though the CCA does not explicitly and definitively hold that the “presence” aspect of Art. 42.03, §1(a) requires a trial court to sentence the defendant in person, that is the practical effect of the CCA’s act of “assum[ing] without deciding” that is the case.  So even if a defendant does not object to being sentenced via videoconference, don’t fall into the trap.  Although it likely will be harmless error, as here, so long as “the purposes of sentence pronouncement were satisfied in the videoconference[,]” it would be imprudent to bake-in error in such a way, now that we know better.

Tracy v. State

No. PD-1052-24                               9/17/26

Issue:

Does “inducing a child to engage in sexual conduct” for purposes of sexual performance by a child (Penal Code §43.25) require the child’s consent or some measurable degree of participation?

Holding:

Yes, but if the evidence is insufficient to prove the child’s participation and a completed offense, a court may reform the sentence to attempted sexual performance by a child. In this case, the evidence showed only that the child resisted the defendant’s advances, so the evidence was insufficient to support a conviction for sexual performance of a child but sufficient to prove attempted sexual performance of a child. Read opinion.

Concurrence (Newell, J.):

“This is a sexual assault case, not a sexual performance case. The State charged [the defendant] with both offenses but abandoned the sexual assault case when it received an unfavorable ruling from the trial court. This left only the sexual performance case. The desire to see [the defendant] held accountable for his morally repugnant behavior is understandable. I certainly share it. But I join the Court’s opinion because it correctly construes the statute rather than succumbing to the temptation to work backwards from a desired result.” Read concurrence.

Concurrence (Parker, J.):

“Even though this evidence was insufficient to show that Appellant succeeded in inducing the victim to ‘engage’ in sexual conduct, I agree with the Court that it was sufficient to show that [the defendant] attempted to induce the victim to engage in sexual conduct. I write separately to explain how I think a reformation to attempt works in this case under the language of the sexual-performance statute.” Read concurrence.

Dissent (Yeary, J.):

“Believing that the evidence is legally sufficient to convict [the defendant] of the greater offense, not just the attempted offense, I disagree with the Court’s disposition of remanding the cause for a new punishment hearing.” Read dissent.

Commentary:

This opinion helpfully reminds us of the rule that, if the evidence is legally insufficient to sustain a conviction for the greater, charged offense, but is sufficient to support a conviction for a lesser-included offense, an appellate court is required to reform the trial court’s judgment to reflect conviction for that lesser-included offense—not just acquit the defendant outright.  Although a reviewing court is charged with this responsibility on its own, appellate prosecutors should remember this premise and help appellate courts by not only identifying applicable lesser-included offenses, but also the evidence that supports those lesser crimes, if they have cases where the evidence supporting the greater, charged offenses might be dubious.

Rodriguez v. State

No. PD-0181-25                               9/17/26

Issue:

Did the trial judge incorrectly exclude defense evidence that the victim had previously  made a false allegation of sexual abuse against another man?

Holding:

No. “To the extend [the defendant’s] desired evidence would have shown that the complainant had a motive to falsely allege abuse, his motive evidence would have been probative of the falsity of an accusation made against somebody the complainant was living with at the time of the accusation. The trial court reasonably concluded that the evidence was not probative of whether the accusation against [the defendant] was false, because [the defendant] was not living with the complainant at the time she accused him of abuse. Instead, the outcry came several years after they had lived together. [The defendant’s] motive theory fails.” Read opinion.

Commentary:

Here, the CCA delves into the factual circumstances of the complainant’s prior allegations and affirms that, because the circumstances for a false allegation were not present relative to the defendant, the prior allegation was not relevant to the defendant’s motive-for-fabrication theory. This opinion will be useful to prosecutors who try cases involving sexual abuse, particularly sexual abuse of children, because defendants in such cases often attempt to assert a defense to the effect of:  “the child has fabricated ‘false’ allegations in the past, so the child must be fabricating false allegations here.”  The next time this issue arises in one of your cases, recall this opinion and encourage the trial court to take a careful look at the facts of the complainant’s prior “false” allegations to ensure that they actually track the defendant’s motive theory before the court simply allows the defense to probe that area.

Attorney General Opinions

No. KP-0530                     9/19/26

Issue:

Does Code of Criminal Procedure Art. 49.25, §11(d) make next-of-kin information confidential and not subject to disclosure under the Public Information Act?

Conclusion:

No. When it amended Art. 49.25, and added §11(d), the Legislature elected to except next-of-kin information from required disclosure under the Public Information Act but chose not to make the information confidential. Therefore, Art. 49.25, §11(d) permits a medical examiner’s office to withhold next-of-kin information from mandatory disclosure under the PIA but does not bar disclosure. Read opinion.

No. KP-0528                     9/16/26

Issue:

Are school district police departments qualified to serve as the “appropriate law enforcement agency” for child abuse and neglect investigations occurring within their territorial jurisdiction under Family Code §§261.105 and 261.301?

Conclusion:

No. “The definition of ‘law enforcement agency’ in Family Code §261.001(3-a) applies throughout Chapter 261. Accordingly, a school district police department is not an ‘appropriate law enforcement agency’ under either §261.105 or §261.301.” Read opinion.