Texas Court of Appeals
Ex parte Rodriguez – 7th COA
No. 07-11-0384-CR : 4/3/12
Issue:
Did the trial court properly deny a pretrial writ of habeas corpus alleging a violation of double jeopardy where, previously, a mistrial had been granted due to the State’s delayed disclosure of photographic evidence obtained by a sexual assault nurse examiner (SANE)?
Holding:
Yes, the decision to declare a mistrial, even if “improvidently quick” was manifestly necessary. Where a trial judge faces the options of either 1) excluding the photographs and thereby creating a potential ineffective assistance of counsel claim or 2) continuing the proceedings for an indeterminate but lengthy period of time, the decision is within the zone of reasonable disagreement.
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Commentary:
This is a very thorough and well-researched decision that discusses the facts in good detail. But I would be careful in relying upon it until the Court of Criminal Appeals has had a chance to review it. Granting of a mistrial because of the delayed disclosure of only potentially exculpatory evidence seems, on its face, to be an extreme remedy. And the photographs may have in fact been largely inculpatory. This case was obviously litigated well on appeal, and this decision is definitely one you should read if you are faced with a double jeopardy claim after the trial court’s granting of a mistrial.
Crippen v. State – 11th COA
No. 11-11-00138-CR : 4/5/12
Issue:
Did the trial court wrongly deny a defendant charged with aggravated assault of a child by digital penetration an instruction of injury to a child?
Holding:
No. Although the child here did suffer bodily injury, injury to a child requires an additional element of bodily or mental injury, and evidence of penetration does not constitute proof of bodily injury. Additionally, the State was not required to prove an injury, and the offense of injury to a child cannot be proven by the same facts necessary to prove aggravated sexual assault of a child younger than 14 years. Also, injury to a child is not the lesser-included offense of aggravated sexual assault of a child on any other grounds under CCP art. 37.09.
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Commentary:
This is a short decision, but it is very helpful if you are confronted with an argument in a prosecution for aggravated sexual assault of a child that the defendant is entitled to an instruction on injury to a child. The court holds that the first prong of the test for an instruction is not satisfied: Injury to a child is not a lesser-included offense of aggravated sexual assault of a child. But frankly I do not believe that the second prong of the test could be satisfied either. There does not appear to be any evidence that, if the defendant was guilty, he was guilty only of injury to a child.
Rolle v. State – 14th COA
No. 14-10-01168-CR : 4/5/12
Issue:
At the guilt/innocence stage of a capital murder trial, did the trial court improperly admit one of two autopsy photographs of the deceased’s unborn baby?
Holding:
Yes, three out of the four factors considered (probity, impression, and need) favored exclusion of the photograph, but the error was harmless.
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Dissent:
The admission harmed the defendant.
Commentary:
In a murder prosecution, in which your victim is a pregnant woman, you should think long and hard about introducing a photograph of the victim’s unborn child. Such evidence has caused problems in several murder cases in the past. It did not cause a reversal here only because the defendant’s punishment was automatic, and evidence of the defendant’s guilt was strong.