Texas Court of Criminal Appeals

Baltimore v. State

No. PD-0436-22                      5/22/24

Issue:

Does sworn, unchallenged testimony on a material issue have probative value?

Holding:

Yes. However, in this case, opinion testimony from three officers that a parking lot was on the premises of a place licensed to sell alcohol was insufficient to prove the “premises” enhancement element in former Penal Code §46.02(c) beyond a reasonable doubt. In attempting to prove the enhancement, three officers testified that the parking lot was part of the bar’s premises, but the officers did not provide a factual basis for these opinions. “This is not to say that a parking lot can never be part of the ‘premises’ of a business. Nor are we holding that the parking lot in this case was not part of the ‘premises’ of the [bar]. And we are certainly not suggesting that a law enforcement officer or a lay witness cannot give a determinative opinion on a legal issue. We simply hold that in this case, the State did not provide legally sufficient evidence to support an enhancement element beyond a reasonable doubt.” Read opinion.

Dissent (Yeary, J.):

The dissent argued that the majority opinion should have begun its legal sufficiency analysis by evaluating the jury charge for the case and the meaning of the Penal Code phrase “premises licensed or issued a permit by this state for the sale of alcoholic beverages.” The dissent noted that the jury charge had used the definition of “premises” from Alc. Bev. Code §11.49(a) to construe the Penal Code definition in §46.02, and the majority presumed without deciding this was correct. “But that is not how we measure legal sufficiency of the evidence. When conducting a legal sufficiency analysis, we do not do so based upon potentially incorrect assumptions about the meaning of the law. This Court’s precedents explain that courts are supposed to measure the sufficiency of evidence presented against the ‘hypothetically correct jury charge for the case.’” Read dissent.

Dissent (Keel, J. joined by Keller, P.J.):

“Was it rational for the jury to conclude that a bar’s “premises” included an adjacent parking lot? Yes. The jury was presented with photos of the scene and testimony from witnesses from which it could reasonably infer that the bar had direct or indirect control over the lot. The majority instead holds that the evidence was insufficient because the witnesses did not explain the bases for their opinions. In reaching its decision, the majority makes an unwarranted assumption, misapplies our precedent, and encroaches on the role of the jury.” Read dissent.

Commentary:

Here, the Court of Criminal Appeals re-affirms its previous ruling in Curlee v. State and holds that factually unsupported lay opinion testimony was insufficient to substantiate a legal conclusion that directly related to an element of the charged offense. What this means is that it will not suffice for a State’s witness to give a conclusory opinion about a legal issue; instead, the witness will need to “show his or her work”—i.e., explain the basis for his or her opinion—through more thorough direct examination. For example, in this case, to shore up the witnesses’ testimony that the bar’s parking lot was included within the bar’s “premises”—a legal conclusion—sufficient further direct examination might have included development of supporting facts such as that: the witnesses had been to the bar and parking lot; the witnesses’ were familiar with the bar and parking lot’s proximity to each other; the witnesses’ knew that the bar owned or had exclusive control over or use of the parking lot; etc.

Hughes v. State

No. PD-0164-22                      5/22/24

Issue:

Was a defendant whose deferred-adjudication revocation hearing was conducted by Zoom required to object to preserve a complaint that by muting him from speaking at times during the hearing, the judge had violated his right to be present under the Confrontation Clause?

Holding:

No. “[T]he defendant was converted into a passive observer unable to communicate with counsel and therefore unable to participate in his own defense.” The Court did not decide the issue on which it had granted the State’s PDR—whether the Confrontation Clause applies to probation revocation proceedings—but instead noted that the right to be present under the Due Process Clause applies in revocation proceedings. Read opinion.

Dissent (Keller, P.J., joined by Keel and Slaughter, JJ.):

“The Court concludes that Appellant did not forfeit his due-process claim by failing to object. In doing so, the Court treats this case the same as one in which the defendant is completely absent from the proceedings. But Appellant was not completely absent—he was present via electronic video-conferencing and in fact participated in his trial. I would hold that this was at most a partial infringement on his right to be present and that he was required to object to preserve his claim.” Read dissent.

Dissent (Yeary, J.):

“As the Court today acknowledges, Appellant’s only legal basis for contending on direct appeal that he was deprived of his right to be present in the courtroom during the hearing on the motion to adjudicate was the Fourteenth Amendment’s Due Process Clause. Appellant did not rely on the Confrontation Clause of the Sixth Amendment. The court of appeals seems to have resolved the issue in Appellant’s favor, however, under the Confrontation Clause rather than the Due Process Clause. For that reason, the Court today dismisses the only ground for review raised in the State’s petition for discretionary review (PDR). The Court nevertheless proceeds to resolve the due process issue on its own. It is unclear to me how the Court deems itself authorized to do so, having essentially dismissed the State’s entire PDR and having failed at any point to grant discretionary review on its own motion” (citations omitted). Read dissent.

Commentary:

This case illustrates that there are two distinct rights to be present—(1) the right to be present under the Confrontation Clause, and (2) the right to be present under the Due Process Clause—as well as two distinct types of revocation proceedings that the right to be present may or may not apply to—(1) adjudication and revocation of pre-conviction deferred-adjudication community supervision, and (2) revocation of “formal” or “regular” probation/post-conviction community supervision. Here, the majority of the CCA definitively holds that a defendant has the right to be present for an adjudication hearing under the Due Process Clause. Notably, though, the CCA deliberately skirts resolving the question of whether a defendant also has the right to be present at an adjudication hearing under the Confrontation Clause. The CCA may answer that question “no” at a later date, given the bounty of case law that holds that there is no Confrontation-Clause right to be present for a formal-probation-revocation proceeding because it is not part of a “criminal prosecution.” Alternatively, though, the CCA could answer that question “yes” if the CCA sides with the argument advanced by the defendant in this case—that deferred-adjudication proceedings are part of a “criminal prosecution” because they occur before formal judgment and sentence are pronounced, instead of afterward, as with formal probation. We won’t know for certain until that issue is squarely before the CCA, so stay tuned.

Wood v. State

No. AP-77,107                         5/22/24

Issue:

Is a trial court required by statute (and without a defendant’s request) to make findings of fact when denying a defendant’s request for forensic DNA testing under Code of Criminal Procedure Art. 64.03(a)?

Holding:

No. Art. 64.03(a)(1) sets out circumstances that must exist for a court to order DNA testing, and the court cannot order testing unless it makes a finding that those circumstances exist. “There is no requirement that a court make findings if it determines that a person has failed to establish those matters.” The Court compared Art. 64.02 with Art. 64.04, “which requires that, after DNA testing, the trial court make a finding regardless of which way the issue is decided.” Examining the 2003 version of Chapter 64 “leads to the conclusion that not everything that is appealable in Chapter 64 is a finding and that the statute does not require a ‘finding’ regarding denial of testing.” Read opinion.

Commentary:

The CCA reminds us here that Chapter 64 does not require the trial court to make findings of fact in every Chapter-64 scenario; rather, whether findings of fact are required depends on the statutory scheme set out by the particular, relevant provision of that chapter. Regarding Art. 64.03, the CCA explains that a trial court need only provide findings if the court affirmatively determines that circumstances call for court-ordered DNA testing, but need not do so if the court determines that such testing is not warranted.

Texas Courts of Appeals

Edwards v. State

No. 14-22-00699-CR               5/21/24

Issue:

Did the trial court incorrectly decide to delay an informal competency inquiry until after the verdict but before sentence was imposed after defense counsel requested a court-ordered independent exam on the fourth day of the defendant’s trial?

Holding:

No. “Because the plain language of article 46B.005(d) of the Code of Criminal Procedure permits a trial court, once trial on the merits has begun, to determine the issue of a defendant’s competency ‘at any time before the sentence is pronounced,’ we cannot say that the trial court abused its discretion when it exercised that option.” Read opinion.

Concurrence (Poissant, J.):

“Because important constitutional rights are at issue, including the right to a fair trial, the trial court should have considered [the defendant’s] competency when requested by the defense. The issue of competency is crucial to the [defendant’s] ability to consult with his counsel at trial.” (citations omitted) Read concurrence.

Commentary:

The question here really is whether the trial judge must halt trial proceedings and conduct an informal competency inquiry immediately when a competency question is raised mid-trial (either by a party or by the court sua sponte). Although Art. 46B.005(d) would permit the judge to do so, if he or she chooses to, the statute does not mandate it. Given the appellate court’s reliance on the plain language of the statute, and the absence of any controverting cases, it is unlikely that the Court of Criminal Appeals will grant discretionary review of this issue.

Texas Attorney General Opinion

No. KP-0465                5/17/24

Issue:

Does the Texas Ethics Commission have authority to release sworn complaint information, confidential under the Public Information Act, Tex. Gov’t Code Ch. 571, to a member of the Texas Legislature for a legislative purpose?

Conclusion:

As part of the Public Information Act, Government Code §552.008 gives legislators a special right of access to governmental information sought for legislative purposes. But Government Code Chapter 571, governing the Texas Ethics Commission, expressly provides that documents and evidence relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint are not subject to the Public Information Act. Therefore, a court would likely conclude that the Texas Ethics Commission may not release confidential sworn complaint information to a legislator pursuant to a request under §552.008. Read opinion.