Texas Court of Criminal Appeals
Huddleston v. State and Lira v. State
Nos. PD-0212-21 & -0213-21 1/11/23
Issue:
Does the Texas Supreme Court’s “Seventeenth Emergency Order Regarding the COVID-19 State of Disaster” authorize a trial court to conduct a plea proceeding via videoconference without a defendant’s written consent?
Holding:
No. Citing its previous holding in In re Ogg, 618 S.W.3d 361 (Tex. Crim. App. 2021), the Court concluded that the statutory requirement that a defendant consent in writing to a plea proceeding by videoconference is both a substantive statutory right and procedure necessary for the trial court to have the authority to proceed. Read opinion.
Dissent (Keller, P.J., Keel and Slaughter, JJ. joining):
“Given the explicit language of the ‘remote participation’ provision of the Emergency Order and the fact that constitutional limitations were not implicated, the Emergency Order’s express terms authorized the trial court’s actions in the cases before us.” Read dissent.
Commentary:
The majority’s opinion makes clear that an Emergency Order cannot affect certain court requirements, and the requirement in question need not be jurisdictional. In determining whether an Emergency Order allows a trial judge to do something, the parties should consider: (1) whether a suspended procedure is designed to protect a substantive right, or (2) whether the trial court’s order creates authority for a trial court to preside over a proceeding over which a court previously had no authority. In the case of substantive rights, the affected party must waive the right before the trial court can proceed. In the case of a trial court’s authority, the parties might not be able to waive the requirement.
Garcia v. State
No. PD-0679-21 1/11/23
Issue:
Did the court of appeals improperly conclude that the evidence was insufficient to find that two gunshot wounds caused the victim serious bodily injury when neither bullet hit a vital organ?
Holding:
Yes. The defendant shot the victim at close range and hit her in the chest and right thigh. The definition for serious bodily injury considers the nature of the injury as inflicted, not after medical treatment. The Court concluded that considering the evidence and expert testimony about the wounds, “the jury was free to apply its own common sense and knowledge of this type of injury to conclude that, absent timely medical treatment to control bleeding and clean and repair the wounds, [the victim] would have faced a substantial risk of death.” Read opinion.
Commentary:
This is yet another decision in which the Court of Criminal Appeals has been forced to correct a court of appeals for not reviewing the sufficiency of the evidence appropriately. The court of appeals focused on how the State’s evidence could have been stronger, rather than on whether the evidence that was presented was sufficient to allow a rational trier of fact to find that the victim suffered serious bodily injury. On that question, the evidence was actually quite strong. The victim’s two gunshot wounds caused deep lacerations and significant bleeding, and she lost consciousness. A doctor also testified that she suffered serious bodily injury. This opinion will be very helpful if the defendant is claiming that medical intervention prevented an injury from being serious, or if the defendant is claiming that he must have struck a vital organ for his act to be considered inflicting serious bodily injury.
Dunham v. State
No. PD-0831-18 1/11/23
Issue:
Does Penal Code §32.42(b) (“Deceptive Business Practices”) require a jury to be unanimous on the same specific act of deception to convict?
Holding:
No. “Jury unanimity is not required on the specific manner and means of the offense because the manner and means is not an ‘essential element’ of the offense.” The State can prove any of the deceptive business practices listed in subsection (b)(1)–(12) as alleged in its indictment. Because the State offered sufficient evidence under its first of three allegations under §32.42(b)(7) (“representing that a commodity or service is of a particular style, grade, or model if it is of another”), the Court did not need to examine whether it also proved two other manner and means allegations in the indictment. Read opinion.
Commentary:
The court’s analysis on the unanimity issue is remarkably short. This opinion is unlikely to have much value outside deceptive business practice cases because of the way in which the statute is written (making it an offense to engage in “one or more” of a list of several business practices). Based upon this decision, when a defendant challenges the sufficiency of the evidence under §32.42, an appellate court will uphold the conviction if the State proved one of the alleged ways, with no need to address whether the State proved any of the other ways that were alleged.
State v. Hatter
No. PD-0823-21 1/11/23
Issue:
Is a prosecutor’s promise to dismiss a case or to never file or re-file a case considered an “immunity agreement”?
Holding:
No. An agreement to dismiss or not re-file a case should be considered a plea bargain agreement if it does not include a grant of immunity in exchange for the defendant providing information or testimony as a witness. Read opinion.
Commentary:
The defendant basically claimed that there was an implied (or conceptual) immunity agreement because of the prosecutor’s initial promise to dismiss one of multiple charges against the defendant. This opinion dispenses with that argument that was based upon language from one of the Court’s prior decisions. That does not mean, however, that the State has ultimately won the argument that the trial judge should not have granted the defendant’s motion to dismiss. The Court remanded the case to the court of appeals to determine if the defendant was entitled to specific performance of the plea agreement to dismiss the case—whether there was a plea agreement, what the terms of the plea agreement were, whether the State breached the plea agreement, and whether the defendant is entitled to specific performance of that agreement.
Cook v. State
Nos. PD-0850-21, 0853-21, & 0854-21 1/11/23
Issue:
Was the defendant harmed by an officer’s testimony that a child sexual assault victim’s allegations were credible, following defense testimony that the victim’s allegations were lies and the results of manipulation and coaching?
Holding:
No. Any error in admitting the officer’s testimony had “slight—if any—influence on the jury’s verdict.” The Court noted that the officer gave a one-word answer of “No” to the question of whether he thought the child was lying, and the trial judge informed the jurors that the credibility of witnesses was their determination to make. Read opinion.
Dissent (Walker, J.):
“While Sergeant Hicks observed the child provide a statement, he had no personal knowledge on which to base his determination of the child’s credibility; he did not have any personal knowledge of the family dynamic and the reputations of the parties involved, and he lacked a personal relationship with the parties. Therefore, whether Sergeant Hicks is considered an expert or lay witness, his opinion that the child’s statements were truthful was inadmissible, and the trial court abused its discretion by allowing the testimony.” Read dissent.
Commentary:
The majority opinion is not a decision on whether the officer gave his opinion regarding the child/victim’s credibility, or even whether it was error for the officer to so testify. The sole issue in this decision is whether the defendant was harmed. The majority did not address the first two of the three grounds for review sought by the State listed on page 8 of the court’s opinion. As such, child sex abuse prosecutors cannot rely upon this decision to support similar testimony from an officer or other State’s witness.
Texas Courts of Appeals
Yepez v. State
No. 01-22-00049-CR 1/10/23
Issue:
If a defendant objects to including an extraneous-offense limiting instruction in the jury charge as a matter of trial strategy, is a trial judge prohibited from including the limiting instruction?
Holding:
No. A trial judge is not required to give a limiting instruction for extraneous offense evidence, even if the defendant requests it, if the defendant failed to request a limiting instruction at the time the evidence is first introduced. But the defendant “has not directed us to, nor have we found, any cases holding that a trial court errs by including an extraneous-offense limiting instruction in the jury charge over a defendant’s objection in such circumstances.” Read opinion.
Commentary:
It is certainly a rare situation in which a defendant does not want a limiting instruction. The court followed those few prior decisions in which other courts had held that a trial judge does not commit reversible error if he or she gives the jury a limiting instruction—even over the defendant’s objection.