Texas Court of Criminal Appeals

Lall v. State

No. PD-0700-22                3/27/24

Issue:

Can a defendant’s lawful refusal to consent to a search be used as an indication of criminal activity?

Holding:

No. “Lawful refusal to consent may not be considered in making a determination of probable cause or reasonable suspicion.” Read opinion.

Commentary:

In a straightforward and concise opinion, the Court of Criminal Appeals explains that a person’s mere assertion of his or her Fourth Amendment rights to refuse to consent to a search or seizure, or to cooperate with the police during a consensual encounter, must play no part in determining whether reasonable suspicion or probable cause exists for the Fourth Amendment search or seizure. This decision is consistent with how courts have treated a defendant’s assertion of other constitutional or statutory rights, such as by holding that a suspect’s invocation of his Fifth Amendment and Article 38.22 rights to remain silent, terminate an interview, or have counsel present are inadmissible as evidence of guilt. 

Ex Parte Mays

No. WR-75,105-02                          3/27/24

Issue:

Is the defendant intellectually disabled and ineligible for the death penalty under the Atkins standard?

Holding:

Yes. After remanding the case to the trial court for a hearing on the issue, both the defendant’s experts and the State’s expert agreed that under the definition found in the most recent version of the DSM, the DSM-5-TR, the defendant met the full diagnostic criteria for intellectual disability. After reviewing the record, the CCA agreed with the trial court’s findings recommending relief be granted to the defendant and reformed his sentence from death to life imprisonment without parole. Read opinion.

Dissent (Keller, P.J.):

“The Court imposes the wrong remedy when it grants relief on Applicant’s intellectual-disability claim without having allowed that claim to be tested in an adversarial trial before a jury. This remedy conflicts with the legislative decision to require a jury trial in death-penalty cases.” Read dissent.

Dissent (Yeary, J.):

“It remains unclear to me whether, even if Applicant has met whatever burden he should have to shoulder to prove intellectual disability, the proper disposition is for this Court to just unilaterally reform his death penalty to life without parole. The Court has still not expressly addressed the question of whether the more appropriate disposition, at least for capital cases that were tried post-Atkins, might be to remand the case to the convicting court to empanel a new jury to determine the issue of intellectual disability there.” Read dissent.

Commentary:

Recall that in Moore v. Texas, 581 U.S. 1 (2017), the United States Supreme Court held that the Court of Criminal Appeals may not rely upon older, non-clinical considerations, such as the now-defunct Briseno factors, when evaluating a defendant’s Atkins claim—i.e., that he is intellectually disabled and, thus, the Eighth Amendment of the Constitution prohibits him from being executed. Instead, the CCA must adhere to only current, prevailing clinical standards and diagnostic criteria for assessing the defendant’s claim of intellectual disability. Here, the judges of the CCA seem to disagree not on the merits of the defendant’s claim of intellectual disability and the application of Moore, but rather on what remedy is appropriate if a defendant’s Atkins claim is sustained. Unless the dissenters’ point of view gains traction in the future, though, it appears that the remedy in this scenario will be reformation of the defendant’s death sentence to a sentence of life imprisonment without parole, not remand for a new trial regarding the defendant’s claim of intellectual disability.

Texas Court of Appeals

Luna v. State

Nos. 11-22-00039-CR & -00040-CR           3/21/24

Issue:

Should the trial court have included a self-defense instruction in the jury charge regarding the defendant’s aggravated assault of his wife, which resulted in the death of her unborn child?

Holding:

Yes. “Credibility of the evidence is for the jury to decide; the court’s only role is to determine if there is some evidence—even if it is weak, inconsistent, or contradictory—that a rational jury could find that supports the defense” (emphasis in original). Here, while it is clear that the Court found the defendant’s version of events to be dubious, the defendant did present some evidence that warranted a self-defense instruction. The Court remanded the case to the trial court for a new trial regarding the aggravated assault charge. Read opinion.

Commentary:

Be very careful when opposing the defendant’s requested defensive instructions, including a self-defense instruction, as here, but also for other issues, like defense of a third person, duress, necessity, entrapment, lesser-included offenses, etc. When you are in trial, it can be very difficult to recall every word of testimony and every evidentiary detail as you evaluate whether some evidence was presented from any source that would justify inclusion of defensive instructions in the jury charge; however, an appellate court will have the full record and time to comb through it when assessing whether the requested charge was actually warranted. Best practice, then, is to err on the side of caution and not oppose defensive instructions unless you are absolutely certain that they are not supported by any evidence at all. Otherwise, trust in your case and your ability to explain to the jury during closing arguments why those defenses, or lesser-included offenses, are inapplicable and unsupported by the credible evidence and testimony that you’ve presented.

TDCAA executive director search is underway

Rob Kepple will be retiring at the end of the year, and the TDCAA Board of Directors has formed a search committee to help select the new executive director. Interested in applying for the position? See the job posting here. The application deadline is May 1, 2024.

Domestic Violence Resource Prosecutor

The Texas District and County Attorneys Association is pleased to announce the creation of a new position: Domestic Violence Resource Prosecutor (DVRP). Patterned after the successful Traffic Safety Resource Prosecutor position (which provides training and support for prosecutors handling intoxicated driving cases), the DVRP will be responsible for training and technical assistance to Texas prosecutors and law enforcement personnel around the state. For more information, see the job posting here.

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