Texas Court of Criminal Appeals
State v. Torres
Nos. PD-0018-22 and -0019-22 4/19/23
Issue:
If a magistrate in a juvenile case requests under Family Code §51.095(f) that officers return the juvenile and any recording of the juvenile’s statement to the magistrate after questioning and officers fail to do so, is the statement admissible?
Holding:
No. Because the magistrate “used” the procedure described by §51.095(f), the magistrate was required to determine whether the juvenile’s statements were voluntary for the statement to be admissible. The Court rejected the State’s argument that the magistrate did not “use” the procedure in §51.095(f), which would trigger the statute’s exclusionary rule, unless the magistrate had completed a signed, written determination of whether the recorded statements were voluntary. “When the magistrate makes the initial request but does not ultimately make any determination of voluntariness, we conclude that he still ‘uses’ the procedure, at least when the reason no determination was made is that law enforcement failed to fulfill the magistrate’s request.” Read opinion.
Concurrence (Keller, P.J., joined by Hervey, J.):
“The State makes some good statutory construction arguments, but its position is ultimately untenable because it would encourage law enforcement to disregard a magistrate’s request for the return of a child. That result is opposite to what the legislature clearly intended in enacting the statute.” Read concurrence.
Concurrence (Newell, J.):
The concurrence agreed that the statement should have been suppressed. “The Court fails to adequately address the State’s textual argument, and ultimately avoids a much simpler resolution of this case. Rather than interpret the ambiguous phrase ‘uses the procedure’ in the statute to essentially mean ‘starts the procedure,’ I would focus instead on where the ‘procedure’ at issue broke down. The problem in this case is that the officers failed to bring the juvenile and the recording of the juvenile’s statement back to the magistrate judge despite the judge’s recorded request. This violation of the Family Code requires suppression under Article 38.23 of the Code of Criminal Procedure under the facts of this case without regard to whether the magistrate merely started or completely used the ‘procedure.’” Read concurrence.
Commentary:
All prosecutors who handle juvenile cases on a regular basis should read the majority’s decision—as should any law enforcement officers who regularly handle juvenile respondents. A review of the majority’s decision should include all of the footnotes. This is a State’s appeal, but it does not appear that the decision turned on the trial court’s findings. This decision is first and foremost a decision of statutory construction. A similar result could be expected if the trial judge denied the juvenile respondent’s motion to suppress, and the issue was brought in the juvenile’s appeal. Some questions are left unanswered—such as if the magistrate’s “use” of the subsection (f) procedure was more ambiguous, or if the magistrate affirmatively withdrew reliance upon the subsection (f) procedure.
Allison v. State
No. PD-0905-21 4/19/23
Issue:
Did an expert witness’s testimony about the meaning of a slang phrase he learned from other people violate the Confrontation Clause?
Holding:
No. Testimony from a narcotics detective that the defendant’s use of the term “pull a Carlos” meant shooting someone was admissible under Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998) as a “soft science,” specifically specialized knowledge of law enforcement. The narcotics detective testified that he had learned the meaning of the term by talking to a confidential informant and two other officers familiar with the term. The detective “may not have performed scientific testing on the meaning of the phrase ‘pull a Carlos’ (since no such scientific testing was possible), but he did follow a widely-accepted course of action to determine what the phrase meant by consulting other law enforcement personnel and informants. …” The Court further concluded that testifying to the definition of the slang term was not testimonial. Read opinion.
Concurrence (Yeary, J.):
“Does a police officer become an ‘expert’ in the meaning of a slang phrase when he asks a couple of people he knows what that slang phrase means, forms a conclusion about the meaning of that phrase from those conversations and then testifies to his opinion at trial? I do not think so.” Read concurrence.
Commentary:
The trial court “found” that the officer was an expert, and it appears that all parties proceeded upon the assumption that the officer was presenting expert testimony. As noted by Judge Yeary’s concurring opinion, that may not be altogether clear. Prosecutors should be cautious about permitting an “expert” witness to merely repeat what others have told him, rather than testify from his own training and experience. But because the majority has treated the officer’s testimony as “expert opinion,” prosecutors now have a very valuable decision dealing with the admissibility of “soft science” expert testimony and whether that testimony violates the Confrontation Clause. This is now the leading decision on the admissibility of an officer’s testimony regarding the meaning of a slang term.
Chavez v. State
No. PD-0759-21 4/19/23
Issue:
Was a defendant tried for capital murder under the law of parties entitled to jury instructions on the lesser-included offenses of kidnapping and felony murder?
Holding:
No. The Court rejected the defendant’s argument that evidence showed that another member of the group involved in the kidnapping and murders—but not the defendant—had the intent to kill the victims and concluded that no affirmative evidence negated the greater offense of capital murder. “[T]he mere disbelief of evidence establishing commission of the greater offense is insufficient by itself to justify submission of a [lesser-included offense] instruction. … This is because the disbelief of evidence is not evidence.” Read opinion.
Concurrence (Newell, J.):
“Disbelieving a witness whose testimony establishes an element of a greater offense is not the same thing as believing some testimony that affirmatively negates an element of a greater offense. In this case, as the Court holds, there was no affirmative evidence capable of even an inference that would negate the greater offense, so the trial court did not err in refusing instructions on the requested lesser offenses.” Read concurrence.
Concurrence (Keel, J., joined by Keller, P.J. and Slaughter, J.):
The concurrence wrote that in evaluating whether a defendant is entitled to an instruction on a lesser-included offense or whether the jury should only consider the charged offense, the Court has used two different measures to evaluate: possible disbelief or factual dispute. “If the possible-disbelief approach is correct, then we must affirm the court of appeals’ judgment; otherwise, we must reverse. But our majority both embraces the possible-disbelief approach and reverses the court of appeals—logically incompatible actions. I would instead overrule the possible-disbelief line of cases and require a factual dispute about a distinguishing element of the greater offense. Read concurrence.
Dissent (Yeary, J.):
The dissent would hold that “the right answer is a simple matter of statutory construction” of Code of Criminal Procedure Arts. 36.14 and 37.08. When a lesser-included offense instruction is requested “and the evidence is such that the jury would act rationally to reject the greater offense and find guilt instead for the lesser, an instruction on the lesser is required because it has, by the party’s request and the state of the evidence, become ‘the law applicable to the case.’” Read dissent.
Commentary:
Be very careful not to read too much into this decision. Note the evidence upon which the defendant relied on page 8 of the majority opinion. All that evidence was focused upon what the co-defendant thought, not what the defendant thought. As such, there was no evidence to support the second prong of the lesser-included test: that, if the defendant was guilty, he was guilty only of one of the lesser-included offenses. The undisputed evidence showed that the victims were killed, cinder blocks were tied to their bodies, and their bodies were dumped into a bayou.
Texas Court of Appeals
Dryer v. State
No. 01-22-00201-CR 04/13/23
Issue:
Did the attorney for a defendant charged with continuous sexual abuse of his daughter provide ineffective assistance by failing to object to the admission of testimony from a then-17-year-old about an extraneous act that is not included on the list of admissible offenses in CCP Art. 38.37?
Holding:
Yes. The court held that the trial lawyer was ineffective in failing to object to the admissibility of an extraneous sexual act that was not admissible under Art. 38.37. “We hold that no competent lawyer would have failed to make this objection because the inadmissibility of [the witness’s] testimony is plain on the face of the record and no reasonable counsel could have decided that the defense would be better served by its admission than its exclusion. That is, we cannot imagine any reasonable trial strategy that would excuse or explain trial counsel’s failure to object to Medlin’s testimony, which was categorically inadmissible and unfavorable to the defense.” The court reversed the trial court’s judgment and remanded for a new trial. Read opinion.
Commentary:
This is a tough decision. A mistake about the extraneous-offense victim’s age prevented the applicability of Art. 38.37, and the timing of the extraneous-offense victim’s testimony (as the State’s second witness) prevented the admissibility of the testimony as rebuttal evidence. But this is not a decision about admissibility. Rather, this is a decision about ineffective assistance of counsel. Is it really true that no reasonable defense attorney would pursue a strategy that was employed by defense counsel in this case? Stay tuned to see if the Court of Criminal Appeals will review this decision.