Texas Courts of Appeals
Gonzalez v. State
No. 11-22-00340-CR 12/19/24
Issue:
Did the trial judge properly exclude testimony of a former DPS trooper as a “police practice” expert in an intoxication manslaughter trial?
Holding:
Yes. The judge properly excluded the former trooper’s testimony that the intoxication manslaughter investigation was not sufficiently thorough, because it would not have assisted the jury in determining a fact at issue. The defendant admitted many times to several witnesses that he was driving the car that crashed, and the absence of fingerprint evidence on the steering wheel and DNA evidence is not required to establish guilt. “[C]omplaints about a flawed law enforcement investigation are not properly presented by expert testimony, but rather they are more appropriate for closing argument or perhaps cross-examination of the officers involved in the investigation.” Read opinion.
Commentary:
As this opinion reminds us, a trial judge must make three inquiries prior to admitting expert testimony, commonly referred to as: (1) qualification, (2) reliability, and (3) relevance. This case involves the third (relevance inquiry) and will be useful for prosecutors because defense attorneys frequently try to offer “expert” testimony like this to contradict or demean the State’s layperson or expert witnesses, rather than relying on their cross-examination of the State’s witnesses to establish any discrepancies, mistakes, or deficiencies in the State’s witnesses’ investigation, analysis, or conclusions. Though such defense-expert testimony may occasionally be admissible—as it may sometimes assist the factfinder in determining a material issue—this opinion provides a good example of when a trial court justifiably excluded the defendant’s proffered expert opinion as irrelevant, based on the other evidence presented.
Love v. State
No. 03-23-00281-CR 12/23/24
Issue:
Do Code of Criminal Procedure Article 38.37, §§1(b) and 2(b), which allow admission of certain extraneous offenses in child sexual offense prosecutions, conflict so that only extraneous offenses committed against a child other than the victim may be admitted under Article 38.37, §2(b)?
Holding:
No. Section 1(b) of Article 38.37 allows admission of extraneous crimes, wrongs, or acts by the defendant against the child victim for purposes of the defendant’s and victim’s state of mind and to illustrate the previous and subsequent relationship between the defendant and the child. Section 2(b) allows admission of extraneous offenses “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity” with the defendant’s character. The Court rejected the defendant’s arguments that the two provisions conflict under the in pari materia clause, and a jury can only consider character conformity evidence under §2(b) for offenses against children other than the child victim. Subsections 1(b) and 2(b) “are not general and specific provisions with the same purpose and subject matter.… Although, broadly speaking, both statutes pertain to the admissibility of extraneous-offense evidence in child sexual offense cases, the subsections apply in prosecutions for different offenses, involve different extraneous acts, and authorize the admission of evidence for different purposes.” Read opinion.
Commentary:
As this opinion acknowledges, there is a split among Texas intermediate appellate courts as to the scope of §2(b)—i.e., whether it applies more narrowly, to only extraneous acts committed against child-victims other than the individual named in the charged offense, or whether it more broadly covers extraneous acts committed against both the child-victim of the charged offense, as well as different child-victims. Helpfully to prosecutors who work with child sexual abuse cases, the Third Court of Appeals (in Austin) joins several other appellate courts (Eastland, Houston [14th], Fort Worth) that have interpreted §2(b) more expansively and liberally, applying to any person. Perhaps the Court of Criminal Appeals will someday weigh in on this issue and finally resolve it. Until then, though, be mindful of this division of authority—and be sure to affirmatively acknowledge it in full candor to the tribunal—when you use or reference this case.
New Code of Criminal Procedure changes
The Texas Legislative Council’s ongoing code revision project made significant changes to five chapters of the Code of Criminal Procedure that become effective January 1, 2025. Chapters 2 (General Duties of Officers), 13 (Venue), 31 (Change of Venue), 45 (Justice and Municipal Courts), and 55 (Expunction of Criminal Records) have been updated with the goal of making them more logical and coherent without intending any substantive changes. Please click here for the only book that summarizes all the changes.