Court of Criminal Appeals
Strickland v. State
No. PD-0616-23 10/23/24
Issue:
When cumulation of sentences is ordered but there is some deficiency of proof in the record, should the remedy be remand for a new cumulation hearing?
Holding:
Yes. Rejecting the defense’s argument and reversing the lower court, the Court held that where a cumulation order is allowed under Art. 42.08(a) of the Code of Criminal Procedure but the order is lacking specificity of a prior conviction, the remedy is to remand to the trial court to perfect the order, not reform the sentence as if the cumulation order had not existed. Read opinion.
Commentary:
In this case, the court drew an analogy to insufficient restitution orders, in which the courts have remanded the cases back to the trial court for a restitution hearing. The trial court in this case issued an authorized cumulation order, but it was not sufficiently specific. It will be an easy matter for the court to make such an order specific, even easier than holding a new restitution hearing. In order for this holding to apply to future cases, a trial judge in a future case must have had the authority to issue the cumulation order, and he must have in fact issued such a cumulation order.
Zapata v. State
No. PD-0800-23 10/23/24
Issue:
In a plea bargain case, can a trial court make an affirmative finding of family violence when there is no admissible evidence in the record to support such a finding?
Holding:
No. The Court first looked at the information to which the defendant pled “no contest.” The information had no family violence language included. The Court also noted that the only place where relevant evidence could be found was in the officer’s probable cause affidavit where the victim called the defendant her “boyfriend.” The Court found this statement to be inadmissible hearsay, and, even if it had been admissible, the statement would not have satisfied the statutory definition for a dating relationship. “The absence of any evidence to support the family-violence finding results in the judge’s lack of discretion to enter the finding.” Read opinion.
Dissent (Keller, P.J., joined by Keel, J.):
“[The defendant] has not, to this day, raised the sufficiency claim: not on appeal, not in his PDR, and not in his briefing before this Court. The Court addresses the claim on its own, without granting review of it and without giving the parties any opportunity to weigh in on the matter. The Court does not address the one colorable argument the State makes that could support sufficiency, and the Court rejects another potential colorable argument without input from the parties while underestimating the strength of that argument.” Read dissent.
Dissent (Yeary, J., joined by Keller, P.J.):
“It will no doubt come as an unwelcome surprise to the State that the Court should resolve the case on this unraised issue, since it had no notice that the issue was ripe for consideration in this Court, and hence no opportunity to contest it in its responsive brief on the merits of [the defendant]’s petition. To ambush the State in this way, and because I would resolve the purely legal issue that [the defendant] did raise against him, I respectfully dissent” (emphasis in original). Read dissent.
Commentary:
Typically, in a misdemeanor assault case, the State does not allege the relationship, if any, between the defendant and the victim because it is not necessary for the first-offender misdemeanor assault conviction. Technically, an affirmative finding of family violence is also not necessary at the first-offense misdemeanor stage. It is helpful, but not required. After a defendant (inevitably) commits his second family violence assault, the State can put on evidence that the first assault conviction was a family violence case. Courts have upheld such a manner of proving the prior family violence case without the necessity of an affirmative finding of family violence in the prior case. Proving that the prior assault involved family violence would satisfy the majority’s holding in this case that a family violence allegation and finding be supported by evidence. The moral to this case is, if you (or your trial judge) wants an affirmative finding of family violence, there must be evidence to support that finding. In the typical case, that is an easy task. Just don’t forget.
Texas Courts of Appeals
State v. Salmon
No. 03-22-00727-CR 10/16/24
Issue:
Was it proper for the trial court to grant a motion for new trial when the day after a guilty verdict was rendered and the punishment phase was set to begin, one juror attempted to impeach her verdict and stated, “I wish I had chosen not guilty”?
Holding:
No. Texas Rules of Evidence 606 controls when a juror may testify as a witness. According to Rule 606(b)(2), in testifying about a verdict, a juror may only testify “(A) about whether an outside influence was improperly brought to bear on any juror; or (B) to rebut a claim that was not qualified to serve.” In Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017), the U.S. Supreme Court added a constitutional exception that if a juror makes a clear statement that the juror “relied on racial stereotypes or animus” to convict, then the trial court can pierce the veil to protect a defendant’s Sixth Amendment right. After reviewing the record, the Court found that none of the above-listed exceptions applied. The Court reinstated the guilty verdict and remanded the case back for a jury trial on punishment. Read opinion.
Commentary:
When reading this decision, do not get confused. This is not a case in which there was a jury poll, as contemplated by Articles 37.04 and 37.05 of the Code of Criminal Procedure. There was no jury poll in this case. The guilty verdict was received (with no poll), and the jury was sent home for the day to return on the following day for the punishment hearing. The “poll” that occurred in this case occurred on the following after the guilty verdict had been received, and the “poll” only happened because one of the jurors suggested a change in her verdict—after it had already been received. At that point, absent any applicable exception, the trial judge was powerless to allow for the “poll” or further juror testimony because of Rule 606(b).