Texas Court of Criminal Appeals
Massey v. State
No. PD-0170-22 04/26/2023
Issue:
Did the defendant’s commission of a new offense constitute an intervening circumstance that attenuates the taint of police misconduct regarding evidence of another offense discovered after the alleged police misconduct?
Holding:
Perhaps. A plurality of the Court found any “new offense” may constitute an intervening circumstance, even when it leads to evidence of a different offense. Unless the U.S. Supreme Court says otherwise, evidence of a different offense should be considered under the three factors for attenuation of the taint derived from Brown v. Illinois, 422 U.S. 590 (1975). “The way we see it, when evidence pertaining to a different offense is discovered subsequent to some police misconduct, but after the commission of a new offense by the accused, the new offense is still an intervening circumstance—regardless of its seriousness or predictability.” Read opinion.
Concurrence: (Newell, J., joined by Hervey, Richardson, and Slaughter, JJ.):
“I would answer [the plain view] question and hold that the plain view doctrine provided an independent justification for the warrantless seizure of the drugs in this case regardless of whether Defendant’s attempt to evade the police attenuated the taint from the officer’s illegal pat-down.” Read concurrence.
Commentary:
Judge Yeary’s opinion for the court is a plurality opinion that will not have precendential value because it was not supported by a majority of the judges on the court. Nevertheless, the opinion is an excellent presentation of the attenuation-of-the-taint doctrine when a new intervening offense is involved. The court granted review on both the attenuation-of-the-taint theory and the plain-view theory, and the State wrote a very good brief in support of both theories.
Texas Courts of Appeals
Chase v. State
No. 12-22-00167-CR 04/20/2023
Issue:
Did the trial court err in refusing to submit a necessity defensive instruction in the jury charge even though the jury received a self-defense instruction?
Holding:
No. The defendant was not entitled to a jury instruction on necessity. A plain reading of §9.32 of the Penal Code shows the Legislature intended to impose a higher standard for justification of deadly force. A necessity defense involves a substantially lower standard, requiring only that the conduct be necessary to “avoid imminent harm.” Therefore, allowing an instruction on necessity when the defendant used deadly force and obtained a jury instruction on self-defense undermines the legislative purpose of limiting the justifiable use of deadly force to preventing an immediate threat to one’s life or preventing the commission of specific violent crimes. Read opinion.
Commentary:
This decision is in line with prior decisions that have confronted the issue in deadly-force cases. It is a well-researched decision even though it relies upon several unpublished decisions in support of its holding. Prosecutors should keep watch over this case, however, to see if the Court of Criminal Appeals will want to review it. The court of appeals did not discuss the holding of the Court of Criminal Appeals in Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005), except to note in a footnote that Bowen was not a deadly-force case. In Bowen, the Court of Criminal Appeals held that a resisting-arrest defendant was entitled to instructions on both necessity and self-defense.
Alkalyyali v. State
No. 02-21-00197-CR 04/20/2023
Issue:
Was the defendant egregiously harmed by the omission of the “causes the death of” element in the jury charge’s application paragraph?
Holding:
Yes. Omission of the “causes the death of” element deprived the defendant of his right to due process and affected his main defensive theory, causing egregious harm. The court reversed the murder conviction and remanded to the trial court for further proceedings. Read opinion.
Commentary:
The State charged the defendant with committing murder under both §19.02(b)(1) and §19.02(b)(2). The error that occurred in the jury charge began with the wording in the indictment. With regard to the first paragraph, the jury was required to find that the defendant caused the death of the victim. With regard to the latter paragraph, however, the jury was not required to find that the defendant caused the death of the victim. The court held that the defendant was harmed by the jury charge error because the defendant’s main defense was that he did not cause the victim’s death. This decision is a good reminder to check the indictment against the controlling statutes and then make sure that any error in the indictment is not repeated in the jury charge.