Texas Court of Criminal Appeals
Green v. State
No. PD-0008-22 6/28/23
Issue:
Does calling the name of the defendant at the door of the courtroom at the summary judgment phase of a bond forfeiture case satisfy Code of Criminal Procedure Art. 22.02?
Holding:
Yes. The defendant’s name called at the courtroom door constitutes substantial compliance with the requirements of Art. 22.02 (which specifies calling the defendant’s name at the “courthouse door”) for purposes of a bond-forfeiture proceeding, regardless of whether the case is resolved at the summary-judgment stage or proceeds to a trial. Read opinion.
Dissent: (Yeary, J.):
“The Court’s premise is flawed. The cases upon which it relies do not stand for the proposition that evidence that the name was called at the courtroom door will categorically prove that it was called at the courthouse door for purposes of trial, much less for purposes of a summary judgment proceeding.” Read dissent.
Commentary:
Courts have routinely and uniformly held that calling a defendant’s name at the courtroom door is sufficient to comply with the statutory requirement that the defendant’s name be called at the courthouse door. In so holding, courts have held that “substantial compliance” with the statute is good enough. This decision makes it clear that this substantial compliance is also good enough for the State to prevail in a motion for summary judgment (where there are supposed to be no genuine issues as to a material fact). There are criminal statutes in which substantial compliance can be good enough (such as an officer’s reading of warnings under Article 38.22), but this case only dealt with civil jurisprudence and the construction of civil statutes. Bond forfeiture proceedings—even though occurring in criminal court—are civil proceedings in nature.
Ransier v. State
No. PD-0289-20 6/28/23
Issue:
Did the evidence raise a lesser-included offense of attempted tampering with evidence when a trooper noticed something in the defendant’s hand that turned out to be a syringe?
Holding:
No. The Court held that the court of appeals erred in concluding that the trooper “knew where the syringe was the whole time,” and this raised the lesser-included attempt offense. “We conclude that the court of appeals did not look back far enough in time because Trooper Kral testified that, before he saw the syringe, [the defendant] was concealing it from him, and there was no evidence from any source suggesting otherwise.” Read opinion.
Concurrence (Keel, J., joined by Slaughter, J.):
I agree with the majority; Appellant was not entitled to an instruction on attempted tampering by concealment because, while there was testimony both that he concealed the syringe and tried to conceal it, there was no evidence that he only tried to conceal it. And I appreciate and endorse the majority’s narrowing of Bullock v. State, 509 S.W.3d 921 (Tex. Crim. App. 2016). But our caselaw on requiring lesser-included-offense instructions on defense request is still muddled, and I would like to clear it up more definitively. See Chavez v. State, 666 S.W.3d 772, 782 (Tex. Crim. App. 2022) (Keel, J., concurring). Maybe someday we will. In the meantime, I join the majority’s step in that direction.” Read concurrence.
Dissent (Yeary, J.):
“I dissent for the reasons stated in my dissenting opinion Chavez v. State, 666 S.W.3d 772, 792 (Tex. Crim. App. 2023) (Yeary, J., dissenting) (“So long as the potential for doubt with respect to the elevating element is not an irrational one based upon all the evidence that bears on the question, the jury’s potential response may well provide a basis for the trial court to conclude that the defendant could rationally be found ‘guilty only’ of the lesser-included offense.” Read dissent.
Dissent (Newell, J.):
“[T]his is another case that highlights the difficulty with applying the valid-rational-alternative/guilty-only test. As I have argued before, this is a court-made rule that we do not apply to the State [citing Chavez, 666 S.W.3d at 781-82 (Newell, J. concurring)]. We should get rid of it altogether.” Read dissent.
Commentary:
This can get confusing if you think about it too long. As noted above, the officer testified that, before he saw the syringe, the defendant was concealing it from him, and there was no evidence suggesting otherwise. Therefore, there was no evidence that, before the officer saw the evidence, the defendant was only partially concealing the evidence from the officer. This is a majority opinion, but—based on the concurring and dissenting opinions—there is obvious disagreement among the judges as to how to construe when a defendant is entitled to an instruction on a lesser-included offense. Prosecutors should keep careful watch over the court’s decisions in this area. In the meantime, be extraordinarily careful in opposing a defense request for an instruction on a lesser-included offense. If there is any evidence that shows that, if the defendant is guilty, he is guilty only of the lesser-included offense, then the defendant is entitled to the instruction.
Ex parte Reed
No. WR-50,961-10 6/28/23
Issue:
Did the defendant raise sufficient new evidence to justify habeas corpus relief for capital murder based on his argument that he and the victim had a secret romantic relationship, which explained his DNA found on the victim’s body?
Holding:
No. “[E]ven if all of Reed’s post-trial evidence is taken into account, Reed still has not demonstrated that he is more-likely-than-not innocent of [the victim’s] murder.” The Court noted that it has previously expressed “grave doubts” about the witnesses who supported the secret relationship argument. Some have never testified in court subject to cross-examination; others admitted their knowledge about the case was “informed, at least in part, by news reports, television shows, or internet research. … Others came forward after so many years, and gave such implausible explanations for the delay, that it is difficult as a factfinder to discern how many of their claims are based in truth and how many have been distorted by the passage of time and other influences. … The situation might be different if Reed’s witnesses could credibly and consistently corroborate one specific, dateable event. But there is nothing of the sort in this ‘wall’ of evidence.” Read opinion.
Commentary:
This 129-page decision is incredibly fact-bound, making it difficult to apply this holding to other cases. Nevertheless, the decision is very important, in that it shows what a defendant must demonstrate to support an actual-innocence claim. The actual-innocence claim is addressed in pages 83-116 of the court’s opinion (the first 81 pages of the court’s opinion deal with the facts and procedural history). There is probably no substitute for reading at least those pages in analyzing the court’s holding. The length and complexity of the facts reveal the extraordinary work that has been done to deal with the defendant’s 10 (!) applications for a post-conviction writ of habeas corpus.
Ex parte Lane
No. WR-90,084-01 6/28/23
Issue:
Was the law regarding “judicial clemency” (former CCP Art. 42.12, §7) clear at the time of the defendant’s petition for habeas corpus that his appellate attorney should have raised the argument that judicial clemency wiped away his conviction for all purposes and he therefore had no reportable conviction that required sex offender registration?
Conclusion:
No. “[W]e conclude that the law was unsettled as to whether Applicant had a duty to register as a sex offender following the trial court’s grant of judicial clemency. Thus, trial counsel did not perform deficiently by failing to further investigate that issue when further investigation would not have yielded any clear answer under the law. Although Applicant has supported his claims by citing the subsequent decision of the court of appeals in Hall [v. State, 440 S.W.3d 690 (Tex. App.—Texarkana 2013, pet. ref’d)], we decline to hold trial counsel deficient based on legal developments that occurred after counsel’s representation.” Read opinion.
Concurrence (Richardson, J., joined by Slaughter, J.):
“I agree, in Applicant’s sole claim of ineffective assistance of counsel, that Applicant’s trial counsel was not ineffective for failure to predict the future.” Read concurrence.
Dissent (Yeary, J.):
“I agree that Applicant has failed to establish ineffective assistance of counsel, for the reasons the Court gives in Part IV of its opinion today. I will say no more about that claim. I write separately only to explain why I nevertheless believe that Applicant is entitled to relief in this case on the theory that he has ‘absolutely’ established his innocence of the offense for which he was convicted—which I regard as either a sort of variant of his ‘no evidence’ claim or as embraced by his generalized due process claim.” Read dissent.
Commentary:
At issue in this case is the wording of a sex offender registration statute—Article 62.002—which is quoted on page 16 of the court’s opinion (and also in footnote 15 of the court’s opinion). Based upon that language, it is clear that a sex offender would still be required to register, even if he has been afforded the so-called judicial clemency of then-Article 42.12, §7 (what is now Article 42A.701(f)). This is a decision that deals with a claim of ineffective assistance of counsel, which usually means that it will have limited value in determining the merits of the underlying claim that the defendant has raised. However, in this case, the court expressly disagreed with the holding of the court of appeals in Hall v. State, as noted on pages 20-21 of the court’s opinion and the analysis that follows.
King v. State
No. PD-0330-22 6/28/23
Issue:
Did an employee retain standing to contest a search or seizure in his work vehicle several days after he was arrested and after the vehicle was returned to his employer?
Holding:
Possibly. In this case, the court held that the defendant had not met his burden to establish a reasonable expectation of privacy as would confer standing. The lower court analyzed whether the defendant retained an expectation of privacy in the trailer at the time of his arrest but did not analyze whether the defendant had an expectation of privacy in the trailer when officers later executed a search warrant and seized his cell phone. Read opinion.
Dissent: (Walker, J.):
“I believe the defendant met his burden because there was no evidence that his reasonable expectation of privacy in the truck, his secondary home, was diminished to the level of losing standing by the time the second search was executed.” Read dissent.
Commentary:
This case underscores the rule that a defendant is required to satisfy his burden to establish that he has standing (a reasonable expectation of privacy) to challenge a search. The defendant did not satisfy that burden in this case. The case also makes clear that a defendant’s burden in that regard is measured at the time of the actual search, and not at another time—such as the time that the defendant was arrested. This decision does not discuss the boundaries of an employee’s general expectation of privacy in a work vehicle, so do not expect to see such a holding in the court’s analysis.
Texas Courts of Appeals
Ex parte Aparicio
No. 04-22-00623-CR 6/21/23
Issue:
Did the trial court correctly find the defendant failed to meet the burden for a prima facie showing of selective prosecution on the basis of gender discrimination?
Holding:
No. The defendant, a non-citizen, was charged as part of Operation Lone Star with criminal trespass in a border county. In his group of six, however, the women of his group were not charged with the same crime. The defense presented evidence that it was a widespread practice that only men were being charged with this crime at the border—that of the 4,076 people that had been arrested under Operation Lone Star for misdemeanor offenses in five counties, none were female. An email from a DPS captain also reflected that the arrest policy was to arrest males but not females for criminal trespass. Women were instead released to border patrol. The en banc Court concluded that the defendant had met his burden of showing that his gender was a motivating factor in his arrest. “[T]he trial court’s reasoning in this case would eviscerate equal protection rights. When impermissibly discriminating against one group in violation of the Constitution, the State could always justify itself by claiming that it might hypothetically, in the future, treat the rest of the population the same way. This slippery slope could lead to, for example, the State choosing to prosecute only non-Caucasian people for certain crimes while at the same time justifying its actions by arguing it could possibly, in the future, also prosecute Caucasian people.” Read Opinion
Commentary:
This decision does not hold that a male cannot be prosecuted for criminal trespass under Operation Lone Star. Rather, this decision holds that the defendant in this particular case satisfied his burden to show a prima facie case of selective prosecution. That is summarized well on page 23 of the court’s opinion. Nevertheless, because of the momentous nature of the court’s decision, it is quite likely that the Court of Criminal Appeals will want to review this decision. The high court may also want to review whether (or under what circumstances) a claim of selective prosecution is cognizable (can be heard) by way of an application for a pretrial writ of habeas corpus. Apart from that, this case is still not over. In a selective prosecution claim—like all equal protection claims—the State is permitted (required) to attempt to rebut a defendant’s prima facie case. That did not occur in this case because the trial judge found that the defendant did not establish a prima facie case. Therefore, apart from any review by the Court of Criminal Appeals, this case has been remanded to the trial court for the State to rebut the defendant’s prima facie case.
Crumley v. State
No. 05-22-00716-CR 6/22/23
Issue:
Did the trial court abuse its discretion by excluding defensive evidence that the defendant was a person with autism, which could have negated the mens rea element of the charged offense of online solicitation of a minor?
Holding:
Yes. The exclusion of the testimony of the defendant’s brothers and doctor that the defendant was a person with autism was a constitutional error because the exclusion of that evidence effectively prevented the defendant from presenting his defense. Read opinion.
Commentary:
Texas does not have a diminished-capacity defense (other than insanity). Nevertheless, in some cases, a defendant can present evidence that he has a mental issue that reduces his ability to have the culpable mental state necessary for the offense. In this case, the culpable mental states allegedly affected were the defendant’s knowledge that the “victim” was a minor and the defendant’s intent that the “victim” engage in sexual activities. The decision encompasses an unusual fact situation. Nevertheless, prosecutors who are prosecuting a defendant with the same or similar mental issues should read this decision (and Ruffin and others like it) and tread carefully in urging the trial court to exclude such defensive evidence.
Cunningham v. State
No. 06-22-00170-CR 6/22/23
Issue:
Did the trial court err in admitting testimony from a probation supervisor about the contents of defendant’s community supervision file—which was written by another probation employee—thereby violating his right to confrontation?
Holding:
Yes. The court held that the defendant was harmed by having the supervisor, rather than the probation officer who had written the notes, testify about the information from the defendant’s file. Noting the split of authority among the courts of appeals on whether the Confrontation Clause applies to adjudication and revocation hearings, the Texarkana court joined the courts of appeals that have concluded that the Confrontation Clause applies to adjudication proceedings. “To avoid violating Cunningham’s right to confrontation, there must have been some evidence showing that [his probation officer] and the laboratory analyst were unavailable to testify and that Cunningham had a prior opportunity for cross-examination. Here, the State showed neither.” Read opinion.
Commentary:
The Court of Criminal Appeals has yet to finally decide whether (or to what extent) a right of confrontation applies at a hearing on a motion to revoke a defendant’s community supervision or a motion to adjudicate a defendant’s guilt. The court did not decide the issue in Inman and has not yet issued its decision in Hughes. If the issue is not reached in Hughes, perhaps the high court will finally review the issue in this case.