U.S. Fifth Circuit Court of Appeals

Hughes v. Garcia; Few

No. 22-20621                    5/3/24

Issue:

Under a §1983 claim, can two police officers claim qualified immunity after arresting a Good Samaritan who effectuated a legitimate citizen’s arrest and was subsequently charged with Impersonating a Police Officer after the officers filed a patently false arrest affidavit?

Holding:

No. “For those who worry that qualified immunity can be invoked under absurd circumstances: Buckle up.” The Court rejected the officers’ claim that they were protected by the independent intermediary doctrine and applied the factors found in Franks v. Delaware, 438 U.S. 154 (1978). The Court found that the officers could not meet any of the Franks factors. “It is unclear which part of this case is more amazing: (1) That officers refused to charge a severely intoxicated driver and instead brought felony charges against the Good Samaritan who intervened to protect Houstonians; or (2) that the City of Houston continues to defend its officers’ conduct. Either way, the officers’ qualified immunity is denied, and the district court’s decision is affirmed.” Read opinion.

Commentary:

Though this case will likely be relevant only to those whose practice involves civil, §1983 qualified-immunity claims, if you’re looking for an interesting read, egregious facts, and a snarky opinion by a clearly offended judicial panel—this is it.  In the criminal-law context, a Franks issue arises when a defendant claims that false or material misstatements or omissions by a police officer in a warrant affidavit, made with at least reckless disregard for the truth, vitiate probable cause and invalidate the warrant and subsequent arrest or search.  In this civil context, though, Franks operates as an exception to the independent intermediary doctrine and can pierce the usual shield of qualified immunity.

Texas Court of Criminal Appeals

Hart v. State

No. PD-0677-22                5/8/24

Issue:

Did the trial court abuse its discretion by admitting two rap videos during the guilt phase of trial to show the defendant’s character and sophistication?

Holding:

Yes. The Court conducted a Rule 403 balancing test and found that the admission of the rap videos (one of which was made by the defendant and the other on which the defendant appeared) was more prejudicial than probative, and the defendant was harmed by their admission. “As in many of those cases, there is no question here that the introduction of Appellant’s rap videos encouraged the jury to convict him on the improper basis that he is a criminal generally or associates with criminals generally. This is because any song that glorifies criminality, regardless of genre, is inherently prejudicial.” The Court reversed and remanded for a new trial. Read opinion.

Concurrence (Richardson, J):

“There is no confidence that the jury came to a decision of guilty free from emotional effects of the rap videos. The use of the rap video by the State was unfairly prejudicial against Appellant and should not have been admitted. With these thoughts, I concur and join the majority.” Read concurrence.

Dissent (Keller, P.J.):

“The record does support admission of the videos for one purpose but not another. It was admissible to rebut Appellant’s claim of a lack of sophistication and comprehension, but it was not admissible as evidence of a propensity to commit criminal behavior. Under Rule 105, Appellant’s failure to request a limiting instruction forfeited his claim about the admission of the rap videos.” Read dissent.

Dissent (Yeary, J.):

“The Court’s opinion abandons our usual posture of deference to a trial court’s broad discretion in admitting or excluding evidence. Clearly the Court disagrees with the trial court’s decision. But the Court’s opinion fails to demonstrate that the trial court’s decision was outside ‘the zone of reasonable disagreement.’ That is because it can’t—because the trial court’s decision wasn’t outside that zone.” Read dissent.

Dissent (Keel, J.):

“Here, the disputed evidence rebutted Appellant’s aw-shucks self-portrayal; in his telling, he was too naïve to know and believe that his compatriot meant it when he said he wanted to break into someone’s home. But such naivete would have been under assault by his avid pursuit of the cynical, ‘gangsta’ rap worldview. It doesn’t matter that the lyrics were fiction because fiction instructs on real-world human nature and motivations—that is its superpower. The evidence was probative of a disputed point related to criminal intent—the most consequential fact in this trial, and the majority errs to dismiss it.” Read dissent.  

Commentary:

With this hotly contested opinion, the majority of the Court of Criminal Appeals sides with other, non-Texas courts that have held that rap music, rap videos, or “any song that glorifies criminality[,]” are inherently highly prejudicial when their content, subject matter, or lyrics “distract from the charged offense.”  That being said, the Court declined the defendant’s request to draw a bright-line rule that all artistic-expression evidence should always be excluded from a criminal proceeding unless it constitutes a truthful narrative of the offense.  Instead, the Court’s opinion should be read as a guide for if and when artistic-expression evidence (including rap videos or rap songs, but also other genres of music and art in other mediums, like poetry, other writings, visual art, etc.) might be admissible.  That is, if the State can demonstrate that the defendant is personally connected to the artistic-expression evidence (e.g., he wrote or co-wrote it, he created or drew it, etc.) and that the evidence relates to a fact of consequence at trial (e.g., it demonstrates the defendant’s mens rea or the actus reas because it describes, portrays, or brags about the offense; it rebuts the defendant’s evidence that the defendant has a peaceful character, per TRE 404(a)(2)(A); it rebuts a defensive theory or assertion; it is admissible for a non-character-conformity purpose, per TRE 404(b), etc.), then the probative value of the evidence is more likely to outweigh the danger that the evidence will cause unfair prejudice in a TRE 403 balancing test.  Note that “more likely” does not mean definitely because there are other factors to consider in a TRE 403 balancing test besides the probative value of the evidence and its prejudicial dangers, namely, the State’s need for the evidence and the time required to develop the evidence.

Ex Parte Lewis

No. WR-94,237-01           5/8/24

Issue:

Was the defendant entitled to habeas relief when it was discovered that one of the prosecutors representing the State in the defendant’s capital murder case was also employed as a paid “judicial clerk” for the trial judge presiding over the defendant’s capital murder case?

Holding:

Yes. The defendant was denied his due process rights to a fair trial and impartial judge. “Regardless of any actual bias, a judge may be disqualified due to an appearance of impropriety. … The undisputed facts establish that the trial court allowed his paid judicial law clerk to represent one of the parties appearing before him in a contested legal matter. This undisclosed employment relationship between the trial judge and the prosecutor appearing before him tainted [the defendant’s] trial.” Read opinion.

Concurrence (Richardson, J.):

“I join the Court’s opinion and write separately to further describe how ‘utterly bonkers’ this case is. In this case and a number of other cases, the prosecutor was simultaneously dual-employed as a prosecutor for the district attorney and law clerk for the judge presiding over the case. Adding to the impropriety, this relationship remained undisclosed to [the defendant] and his trial counsel. Our adversarial system of law before an impartial judge malfunctioned. The barrier to prevent ex parte communications between the prosecutor and the neutral judge vanished (unknown to the defense). This situation leaves ‘lasting stains on a system of justice’ that will take years to restore.” Read concurrence.

Dissent (Keller, P.J.):

“The Court commits an unforced error in this case, and in doing so unnecessarily jeopardizes thousands of convictions out of Midland County that were obtained over a period of around nineteen years. Regrettably, the Court hazes over crucial facts, cites to cases that are factually and legally distinct from this case, and fails to cite a single pertinent due process case to support its decision. The concurring opinion, though justified in its disapproval of what happened here, cites as fact allegations in a motion upon which this Court has not acted and cites to an unpublished opinion of this Court. To be sure, the situation in this case is unfortunate. And admittedly, there are no on-point cases for the Court to cite. But under the law and cases that I can find, [the defendant] has not established a denial of due process.” Read dissent.

Commentary:

Though circumstances like this probably do not occur frequently, all practitioners must be cognizant of—and must disclose—their affiliations and relationships to all parties and the tribunal in a case to avoid conflicts of interest and any appearance of impropriety, however slight. 

Texas Courts of Appeals

Burton v. State

No. 14-22-00794-CR                       5/7/24

Issue:

Did the trial court abuse its discretion by refusing to exclude evidence—here surveillance videos showing the scene and circumstances of a capital murder—that was not turned over to defense “as soon as practicable”?

Holding:

No. While the Court refused to define the meaning in the Michael Morton Act (Code of Criminal Procedure Art. 39.14) of the phrase “as soon as practicable,” as well as the issue of what standard the prosecutor’s actions are to be judged under (willfulness, recklessness, extreme negligence, or strict liability), the Court concluded that that defendant “has not pointed to any evidence showing that the untimely disclosure resulted in prejudice. … Because [the defendant] failed to establish that he was prejudiced by the untimely disclosure of the surveillance videos, we conclude the trial court did not err in denying [the defendant’s] motion to suppress.” Read opinion.  

Commentary:

Notably, the Fourteenth Court of Appeals refused to follow the Tenth Court of Appeals’ reasoning and holding in Heath v. State, 642 S.W.3d 591 (Tex. App.—Waco 2022, pet. granted), that a defendant is no longer required to show that the State acted in bad faith or made a willful violation of Brady/Article 39.14 discovery obligations to justify the trial court’s extreme remedy of exclusion of evidence that was not disclosed to the defense “as soon as practicable.”  The Court of Criminal Appeals has granted the State’s petition for discretionary review in Heath and the case remains pending in the high court.  But, given that the posture of this case is the opposite of Heath (in Heath, the trial court excluded untimely disclosed evidence despite that the State did not act in bad faith or make a willful violation of discovery obligations, and despite no showing of prejudice; conversely, here, the trial court did not exclude untimely disclosed evidence, made a finding that the State did not act in bad faith or willfully fail to timely disclose, and found no prejudice), this case should remain good, very helpful law for the State even if the CCA ultimately affirms Heath.