Texas Courts of Appeals

Islas v. State

No. 14-17-00660-CR                         10/23/18

Issue:

Does an affidavit supporting a warrant for a blood draw after a warrantless blood draw was taken require a reference to the prior blood draw?

Holding:

No. The affidavit is not required to show why an additional blood sample would provide additional material evidence or why the previous blood draw was inadequate or ineffective. That the defendant previously had his blood drawn does not disprove probable cause and is not material to the magistrate’s decision. Read opinion.

Commentary:

This case is primarily a decision under Franks v. Delaware, the United States Supreme Court decision that held that an affirmative and material misrepresentation in a search warrant affidavit would render the warrant invalid. There has been some discussion in various appellate courts over whether Franks applies to omissions, not just affirmative misrepresentations. There has yet to be a definitive answer to that question, but this court of appeals has previously decided that Franks applies to omissions, as well as false statements. In any event, this is a very thorough and well-reasoned decision. It is not unusual for officers to seek a second blood draw from a suspect, especially after Missouri v. McNeely. This decision should be very helpful for prosecutors trying cases with multiple blood draws. However, because the opinion addresses an issue not yet decided by the Court of Criminal Appeals, make sure to watch and see if the Court decides to review the case.

Announcements

NCFI Prosecutor Courses

Applications are now being accepted for the National Computer Forensics Institute prosecutor courses. All costs, including travel, are covered through the Federal government. The deadline to apply is November 26, 2018. Program dates and application information available here.

New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

Jury selection training

Registration for Jury Selection in Impaired Driving Prosecutions is now open. This free 4-hour program will be held in three cities (Richmond, Rockwall, and San Antonio) on Friday, December 7. More information and registration links are available here.

Texas Courts of Appeals

Lee v. State

No. 11-16-00298-CR                         10/11/18

Issue:

Is a defendant entitled to an evidentiary hearing on a violation of the terms of a pretrial intervention agreement before the agreement may be terminated?

Holding:

No. Prosecutors have broad discretion in the organization and administration of pretrial intervention programs. Defendants do not have a right to be placed into a pretrial intervention program, nor may a trial court require the State to place a defendant on the program. A defendant placed on a pretrial intervention program has no liberty interest requiring a hearing for due process purposes before being terminated for a violation of the terms of the agreement. Read opinion.

Commentary:

As noted by the court’s decision, there is precious little caselaw and statutory authority regarding pretrial diversion or pretrial intervention. Nevertheless, this is a thorough and very well-researched opinion—the court even looks at how other states have dealt with similar claims. Prosecutors with pretrial diversion programs should keep this opinion available.

Announcements

New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

TDCJ fingerprint/pen packet policy change

Beginning Oct. 1, 2018, TDCJ will no longer be including offender fingerprints with pen packet requests. Fingerprints taken before 2010 may still be available, however. Further information is available here.

Jury selection training

Registration for Jury Selection in Impaired Driving Prosecutions is now open. This free 4-hour program will be held in three cities (Richmond, Rockwall, and San Antonio) on Friday, December 7. More information and registration links are available here.

Texas Courts of Appeals

Lee v. State

No. 11-16-00298-CR                         10/11/18

Issue:

Is a defendant entitled to an evidentiary hearing on a violation of the terms of a pretrial intervention agreement before the agreement may be terminated?

Holding:

No. Prosecutors have broad discretion in the organization and administration of pretrial intervention programs. Defendants do not have a right to be placed into a pretrial intervention program, nor may a trial court require the State to place a defendant on the program. A defendant placed on a pretrial intervention program has no liberty interest requiring a hearing for due process purposes before being terminated for a violation of the terms of the agreement. Read opinion.

Commentary:

As noted by the court’s decision, there is precious little caselaw and statutory authority regarding pretrial diversion or pretrial intervention. Nevertheless, this is a thorough and very well-researched opinion—the court even looks at how other states have dealt with similar claims. Prosecutors with pretrial diversion programs should keep this opinion available.

Announcements

New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

TDCJ fingerprint/pen packet policy change

Beginning Oct. 1, 2018, TDCJ will no longer be including offender fingerprints with pen packet requests. Fingerprints taken before 2010 may still be available, however. Further information is available here.

Jury selection training

Registration for Jury Selection in Impaired Driving Prosecutions is now open. This free 4-hour program will be held in three cities (Richmond, Rockwall, and San Antonio) on Friday, December 7. More information and registration links are available here.

Texas Court of Criminal Appeals

Jacobs v. State

Nos. PD-1411-16                               10/10/18

Issue:

Did the trial court abuse its discretion by preventing the defense from asking voir dire panelists if they could remain impartial given the defendant’s prior convictions for a “sexual offense?”

Holding:

No. A trial court has broad discretion to impose reasonable limitations on voir dire. Here, the defendant’s trial was not fundamentally unfair because he was able to question the venire panel and commit potential jurors to the general proposition that “unrelated offenses do not change the State’s burden of proof.”  Read opinion.

Concurrence (Yeary, J.):

The defense should have been able to ask the venire panel specific questions about bias involving past “sexual offense” convictions because the prior conviction would be entered as character-conformity evidence at trial. However, because this error was not constitutional error, the Court correctly reversed the court of appeals and remanded for further proceedings. Read opinion.

Concurrence (Newell, J.):

“I agree with the Court’s legal conclusion that in most cases, though not all, errors regarding a limitation of voir dire are non-constitutional. But I disagree with the Court that we have to decide whether this is one of those rare cases in which the voir dire error is constitutional. Instead, I disagree with the court of appeals’ conclusion that [the defendant’s] proposed voir dire questions in this case were valid commitment questions. Because I do not believe the trial court abused its discretion in keeping [the defendant] from asking his proposed questions, I would save for another case and another day the debate about which harm-analysis standard is appropriate.” Read opinion.

Dissent (Richardson, J.):

“I agree with the holding of the court of appeals, and I would affirm its decision. Because the majority does not, respectfully, I dissent. … The trial court’s erroneous restriction on voir dire prevented [the defendant’s] counsel from asking what he needed to ask in order to be able to select an impartial jury. The reason this erroneous restriction hindered [the defendant’s] ability to select an impartial jury is because of Texas Code of Criminal Procedure article 38.37, which allowed the State to introduce [the defendant’s] prior extraneous sexual offense during guilt/innocence.” Read opinion.

Commentary:

The majority opinion does not necessarily deal with whether the trial court erred in preventing the defense from asking certain questions during voir dire. Rather, it holds only that, whatever error might have existed in this case, it was not constitutional in nature. In that respect, this opinion is likely to provide little help to prosecutors in deciding what questions the State can or cannot object to during a defense voir dire. The majority opinion states only that most of these types of claims are not constitutional in nature, reaffirming Easley v. State.

Announcements

New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

TDCJ fingerprint/pen packet policy change

Beginning Oct. 1, 2018, TDCJ will no longer be including offender fingerprints with pen packet requests. Fingerprints taken before 2010 may still be available, however. Further information is available here.

Jury selection training

Registration for Jury Selection in Impaired Driving Prosecutions is now open. This free 4-hour program will be held in three cities (Richmond, Rockwall, and San Antonio) on Friday, December 7. More information and registration links are available here.

Texas Court of Criminal Appeals

Marks v. State

Nos. PD-0549-17 to PD-0551-17                 10/3/18

Issues:

Do indictments for acting as a guard company without a license toll the statute of limitation for amended indictments for accepting employment as a security officer to carry a firearm without a security officer commission?

Holding:

No. A prior indictment tolls the statute of limitation for an amended indictment “when both indictments allege the same conduct, same act, or same transaction.” Here, the original indictments alleged the operation of an unlicensed business. They do not require that the defendant carried a firearm or entered into an agreement to do so as alleged in the amended indictments, and the amended indictments do not require that the defendant actually provide security services as the original indictments do. These indictments do not allege the same conduct, act, or transaction, and the statute of limitations is not tolled. Read opinion.

Dissent (Keasler, J.):

“I disagree that the two sets of indictments alleged impermissibly divergent conduct. Both sets of indictments targeted the same three incidents, on the same three dates, arising from the same set of facts, made criminal within the same Private Security Act. … Because they often have ‘nothing to do with the guilt or innocence of the persons charged,’ Hernandez [v. State, 127 S.W.3d 768] sought to limit the impact that ‘procedural errors and defects in form’ would have on the State’s ability to re-indict an offender. To that end, Hernandez instructs us to construe Article 12.05(b) ‘broadly.’ Today’s opinion takes a decidedly narrow view of what that statute permits.” Read opinion.

Dissent (Yeary, J.):

The plain language of Code of Criminal Procedure Art. 12.05(b) allows the pendency of any indictment to toll the statute of limitation without qualification. The Court should not have attempted to fill a perceived “gap” in the statute by imposing a notion of relatedness between the original and later indictments. “The competing opinions today can agree on no particular definition of ‘same transaction’—a phrase we have found elusive in other contexts. … Rather than take a side in this debate, I would revisit Hernandez, acknowledging that it was wrong at its inception, it is not proving particularly workable, and it should be overruled.” Read opinion.

Commentary:

This decision definitely retreats from the broad reading of Article 12.05(b) that the Court of Criminal Appeals had adopted in Hernandez. There is not much analysis in the majority’s opinion, but the majority does not purport to overrule Hernandez. Nevertheless, based upon this decision, prosecutors should be very cautious in the future about alleging a new offense out of the same transaction and expecting the first or un-amended indictment to toll the statute of limitations. 

Briggs v. State

No. PD-1359-17                                 10/3/18

Issues:

Is a defendant’s plea involuntary when subsequent changes in law would have made her decide to exercise her right to a jury trial?

Holding:

No. A defendant who accepts a plea agreement and waives the right to a jury trial does so under the law existing at the time of the plea. A subsequent change in the law does not amount to a misrepresentation of the law on defense counsel’s part. Here, the defendant pled no-contest to intoxication manslaughter of a peace officer in 2012. At the time, her blood was drawn under “mandatory blood draw” statute. This statute, Transportation Code §724.012, was found unconstitutional in 2014. While State v. Villareal, 475 S.W.3d 784, applies retroactively, it does not have any bearing on the voluntariness of a plea prior to 2014. Read opinion.

Commentary:

This decision is not about whether the defendant’s blood test results were properly admitted. Rather, the sole issue is whether the defendant’s plea of no-contest back in 2012 was voluntary when it was made. At that time of the defendant’s plea, Missouri v. McNeely and State v. Villareal had not been decided, and mandatory warrantless blood draws and implied consent were the law of the land. The facts of this case are particularly brutal, and it seems clear that the State would have easily been able to prove intoxication manslaughter, even without the blood test results.

Texas Courts of Appeals

State v. Drury

No. 02-17-00273-CR                         9/27/18

Issues:

May an officer search an item held by the defendant as a search incident to arrest?

Holding:

Yes. During an arrest an officer may search objects “immediately associated’ with the arrestee, such as wallets, purses, and backpacks. A small container held by the defendant at the time of arrest, here a tin can, is immediately associated with the arrestee and may be searched incident to the arrest. An indication that the arrestee possesses weapons or evidence is not required to search his person and immediately associated objects. Read opinion.

Commentary:

This is a very well-researched decision. Prosecutors should definitely read it and the decisions that it cites to learn more about the search-incident-to-arrest exception when the item searched was in the defendant’s possession.

Announcements

New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

Texas Court of Criminal Appeals

Carson v. State

Nos. PD-0205-17 to PD-0208-17                 9/19/18

Issues:

Is a pre-sentence waiver of appeal valid in exchange for the State’s waiver of a jury trial?

Holding:

Yes. A defendant may knowingly and intelligently waive the right to appeal as part of a plea when consideration is given by the State, even if a sentencing recommendation is not a part of the agreement. Here, exchanges between the defendant and the prosecutor made it clear that the defendant did not wish to go to trial and the State would waive jury trial only if there were no possibility of appeal. The State’s agreement to sentencing by the trial court was valid consideration for the waiver of appeal. Read opinion.

Concurrence and Dissent (Keller, P.J.):

“The Court holds that [the defendant] validly waived his right to appeal, but then it remands the case for the court of appeals to decide whether [the defendant] meets an exception to the waiver rules. … All that is required of an explicit waiver of appeal is that the waiver be made voluntarily, knowingly, and intelligently. Because [the defendant] executed an explicit waiver of appeal, the [claimed exception] cannot provide [the defendant] the relief that he seeks. I concur in the Court’s decision to reverse the court of appeals’s judgment on the basis that [the defendant] validly waived his right to appeal, but I dissent from the decision to remand for further proceedings.”  Read opinion.

Concurrence and Dissent (Yeary, J.):

“I agree that the judgment of the court of appeals in this case must be reversed, and I concur in the Court’s judgment today to that extent. But I agree with Presiding Judge Keller that a remand is unnecessary, for the reasons she explains. Moreover, the Court should not remand the cause to the lower appellate court without also addressing the State Prosecuting Attorney’s (SPA) fourth ground for review, because a resolution of that claim in the SPA’s favor would moot any necessity for a remand in any event.” Read opinion.

Commentary:

Waivers of appeal in criminal cases are increasingly important to the criminal justice system as the Texas population continues to increase. Texas had roughly 14 million residents when the Legislature increased the number of appellate justices to 80 and transferred direct criminal appeals from the Court of Criminal Appeals to the courts of appeals. Since then, the state’s population has about doubled, and the appeals docket has increased about 30 percent, but the number of appellate justices remains the same. Criminal cases, which in 1982 accounted for about 60 percent of the appeals docket, now account for about 45 percent of the appeals docket. Waivers of appeal in criminal cases, which became more common in Texas after the CCA’s decision in Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000), obviously play a role in the shrinking number of criminal appeals in the appellate system since 2000. The Court’s endorsement of the waiver in this case is not surprising.

Ette v. State

No. PD-0538-17                 9/19/18

Issues:

Is a trial court’s imposition of a fine assessed by a jury proper despite the court’s failure to orally pronounce it?

Holding:

Yes. A trial court must orally pronounce all sentences, including fines, in the defendant’s presence. If the sentence orally pronounced differs from the sentence written in the judgment, the oral pronouncement controls. However, a trial court has no authority to alter a jury’s lawful verdict on punishment. The oral pronouncement does not control when a jury assesses the conflicting aspect of the punishment and the jury verdict has been correctly read aloud in the defendant’s presence. Read opinion.

Commentary:

This battle in the war between sentences and judgments goes to the judgments.

Ex parte Garrels

No. PD-0710-17                 9/19/18

Issues:

Can consent to a mistrial be implied from the totality of the circumstances when a defendant does not object to the trial court’s declaration of a mistrial?

Holding:

Yes. As a general rule, retrial is barred after a mistrial unless the defendant consented to the mistrial or the mistrial was based on some “manifest necessity.” The trial judge is not required to admonish the defendant about his double jeopardy rights, but a defendant’s consent must appear in the record as a “deliberate relinquishment.” An appellate court may still find that a defendant consented to mistrial even if the trial court characterizes the mistrial as a sua sponte act. Here, however, the State did not show that the defendant consented to the mistrial because it offered no evidence other than that the defendant did not object. Read opinion.

Commentary:

The advent of the Michael Morton Act is going to create more disputes like this. Remember that trial courts are supposed to exclude evidence for discovery violations only when they find that a prosecutor willfully violated a discovery order. Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). What facts we see in this opinion do not seem to indicate willful misconduct by the State, so there was little need for the trial court to declare a mistrial or grant a continuance.

Hernandez v. State

No. PD-1049-16                 9/19/18

Issues:

Is a variance between the indictment and the evidence presented describing the manner and means by which a defendant caused bodily injury material?

Holding:

No. The manner and means are immaterial when they do not “define or help define the allowable unit of prosecution.” An allowable unit of prosecution is either defined by the legislature or described by the gravamen of the offense. The offense of aggravated assault with a deadly weapon is result-oriented and the relevant elements are the victim and the bodily injury that was inflicted, not the manner and means by which the assault is committed. A variance regarding the use of hands to cause bodily injury (e.g., striking vs. strangling) is an immaterial, non-statutory allegation that describes the offense. Read opinion.

Commentary:

This opinion affirms a prior opinion by the Court in the same case. On rehearing, the Court reaffirms that there was no fatal variance between the allegations and proof at trial. The Court rejects the idea that the allegations of conduct in the indictment are part of the “unit of prosecution” for assault. Rather, the injury is the unit of prosecution. The Court also rejected a notice claim and a claim that inconsistent verdicts between the multiple counts rendered the evidence insufficient.

Wood v. State

No. PD-1100-17                 9/19/18

Issues:

Is a sentence of life imprisonment on a conviction of attempted capital murder illegal when the indictment failed to allege an aggravating factor?

Holding:

No. If an indictment charges a complete offense, the State is held to the offense charged in the indictment. An indictment for criminal attempt, however, is not fundamentally defective for failure to allege the constituent elements of the offense attempted. Here, the indictment properly charged attempted capital murder even though it failed to state an aggravating factor, and the sentence of life imprisonment falls within the punishment range. Read opinion.

Commentary:

The law was well-settled that an attempt indictment need not allege all of the elements of the attempted offense. This case firmly reiterates that.

Ingerson v. State

No. PD-1445-16                 9/19/18

Issues:

Is evidence that the defendant was the last person seen with the victims, had a motive for the shooting, fled the scene, owned the same caliber gun as the murder weapon, and had gun residue on his clothing and car sufficient to support a conviction for capital murder?

Holding:

Yes. When identity is at issue in a case, it may be proven by direct evidence, by circumstantial evidence, or by reasonable inferences from the evidence. Here, the individual circumstances of guilt viewed in isolation might be insufficient to support a conviction, but when considered cumulatively, a jury may reasonably conclude that the defendant committed the capital murder. Read opinion.

Commentary:

Ingerson is a must-read for prosecutors with a circumstantial or “no body” murder trial on the horizon. Together with Nisbett v. State, 552 S.W.3d 244 (Tex. Crim. App. 2018), this case seems to represent something of a crackdown on courts of appeals reversing murder cases on sufficiency of the evidence grounds. This leaves Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth 2014, pet. ref’d) as an outlier in the spectrum of circumstantial or “no body” murders.

Smith v. State

No. PD-0514-17                                 9/26/18

Issues:

Does a general notice of appeal from adjudication serve as notice of appeal from a subsequent order granting shock probation?

Holding:

No. An appeal of an order granting shock probation is independent of an appeal from adjudication and formal sentencing. A general notice of appeal does not act as a place holder for any appealable order that might be entered later. Read opinion.

Commentary:

This decision will mainly be of interest to appellate practitioners.

Texas Courts of Appeals

Drayton v. State

No. 14-17-00452-CR                         9/20/18

Issues:

May a search warrant for a vehicle authorize a brief search to determine ownership of a phone found in the car?

Holding:

Yes. A search conducted pursuant to a warrant may be “as extensive as is reasonably required to locate items described in the warrant.” Officers conducting a search may sometimes open items or containers not specifically authorized by the search warrant. Here, the search warrant specifically authorized the seizure of cell phones that would “establish the identity of additional suspects” and “property belonging to the [robbery victims] such as cell phones.” Officers were reasonably within the scope of the search warrant by opening the phone to view the “owner profile” because establishing ownership of the phone was directly related to the objectives of the search warrant. Read opinion.

Commentary:

This will be a very useful opinion for investigating officers and prosecutors. That said, in light of the comparative newness of Riley v. California, 134 S.Ct. 2473 (2014), Carpenter v. United States, 138 S.Ct. 2206 (2018), and Code of Criminal Procedure Art. 18.0215, it is likely that the Court of Criminal Appeals will review this case.

Texas Attorney General Opinions

Opinion No. KP-0213                       9/24/18

Issue:

What are the obligations of a criminal district attorney under Code of Criminal Procedure Art. 39.14 to disclose to a defendant information obtained by the criminal district attorney during the performance of certain civil duties?

Response:

A court would likely conclude, as one appellate court already has, that the knowledge of an assistant criminal district attorney is imputed to the elected—or criminal—prosecutor as “the State” for purposes of Code of Criminal Procedure Art. 39.14 regardless of internal division affiliation.

To the extent information provided to an assistant criminal district attorney acting in a civil capacity constitutes an item described by Art. 39.14(a) but is protected by the attorney-client privilege, the plain language of subsection (a) would exempt its disclosure to the defendant. However, a court would likely conclude that any exculpatory information meeting the requirements of Art. 39.14(h) obtained by such an attorney must be disclosed to the defendant, notwithstanding any attorney-client or other evidentiary privilege.

To the extent that information obtained by an assistant criminal district attorney acting in a civil capacity is confidential under Family Code §261.201, any duty of disclosure in Art. 39.14(a) would not be triggered except pursuant to court order obtained under §261.201(b) or (c). A court would likely conclude that any exculpatory information obtained by an assistant criminal district attorney that meets the requirements of Art. 39.14(h) but that is made confidential by §261.201 shall be disclosed only pursuant to court order obtained under §261.201(b) or (c). Read opinion.

Commentary:

The Attorney General found that internal divisions in the prosecutor’s office will not change the prosecutor’s paramount duty to see that justice is done and to ensure the accused receives a fair trial by timely and complete disclosure of favorable evidence. If prosecutors must get a court order to meet these duties, then they must do so.

Announcements

New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

Become a member of the National Black Prosecutors Association

The NBPA is in the middle of a membership drive, and dues are discounted through the end of September at this link. Although the NBPA targets the recruitment and retention of black prosecutors, membership is open to everyone who supports that mission.

Texas Court of Criminal Appeals

Beham v. State

No. PD-0638-17                 9/12/18

Issues:

Are photos of the defendant “holding himself out as a gang member” and testimony by an expert on gang activity relevant to sentencing, even if the State does not show the defendant is a member of a particular gang?

Holding:

Yes. General testimony about indicators of gang affiliation (e.g., dress, color schemes, and gang signs) and the types of activity gangs are associated with is relevant because a jury may reasonably find that a defendant who willfully displays these indicators is more likely to be a gang member. Evidence that a defendant portrays himself as a gang member can be relevant character evidence, particularly during sentencing for a violent crime. The evidence is still relevant even if the State cannot show the defendant is actually a member of any particular gang. Read opinion.

Commentary:

This case will be helpful because prosecutors deal with many defendants who are in criminal groups but may not be “documented.” If a defendant shows all the traits of a Bandido, Blood, or Tango Blast, that can be admissible even if you don’t know the particular gang or if he is truly a member. The Court’s discussion of relevancy in punishment is also interesting. It may assist prosecutors aiming to prove a particular character trait in punishment.

Arroyo v. State

No. PD-0797-17                 9/12/18

Issues:

Is testimony that the defendant touched the victim’s “chest” sufficient to support a conviction for indecency with a child by touching the breast?

Holding:

Yes. The term “sexual contact” under Penal Code §21.11(c) contains no references to age or gender. The offense does not require a “breast” to belong to a female or to be developed. This case is distinguishable from Nelson v. State, 505 S.W.2d 551 (Tex. Crim. App. 1974), because the testimony provided more detailed evidence about the defendant’s actions than the victim’s statement in Nelson. Read opinion.

Commentary:

Child abuse prosecutors may find this very useful because their victims—even after reaching maturity—often have difficulty describing what happened with medical precision. When combined with cases like Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990), this case will help prosecutors fight offenses committed against these most vulnerable victims.

Texas Courts of Appeals

Diamond v. State

No. 14-17-00005-CR                         9/11/18

Issues:

Does Brady require disclosure that the crime lab analyst who testified at trial was “off of casework” at the time due to mishandling evidence in another case?

Holding:

Yes. Information about the analyst’s work status and earlier errors is favorable evidence that the defendant could have used to attempt to exclude the analyst’s testimony or impeach her during cross-examination. Here, the evidence is material because the lab report showed a BAC level of 0.193, which enhanced the defendant’s conviction to a Class A misdemeanor. While the State provided other evidence of intoxication, the jury could have relied only on the lab report to find that the defendant had a BAC of 0.15 or higher. There is a reasonable probability that the jury would have reached a different result had the analyst’s testimony been excluded or impeached with the undisclosed information. Read opinion.

Dissent (Donovan, J.):

“Impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence. Given the unchallenged findings of fact by the trial court that the blood samples were labeled as [the defendant’s] and there was no evidence of any errors in [the analyst’s] analysis of [the defendant’s] blood, the undisclosed evidence in this case would not impeach the evidence that [the defendant’s] blood was analyzed and had a BAC level of .193. Thus, the likelihood of a different result is not great enough to undermine confidence in the outcome of the trial. I would therefore conclude the alleged Brady evidence is not material and affirm the trial court’s ruling.” (Internal citations omitted). Read opinion.

Commentary:

Prosecutors throughout the state continue to struggle with how to achieve Brady and Michael Morton Act compliance with regard to personnel issues of agencies and crime labs. This case represents an excellent opportunity for the Court of Criminal Appeals to lend guidance to criminal law practitioners, crime labs, and police. Should a one-time mistake by a lab technician forever dog him on the witness stand? Should vaguely articulated training concerns be required disclosures in a criminal case? Will requiring disclosures of these matters result in a chilling effect and actually hamper the efforts of crime labs to improve the quality of their work? Stay tuned.

Announcements

Who’s coming to Galveston?

Our Annual Criminal and Civil Law Update in Galveston is almost here! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Online registration has closed, but you can still register onsite starting Tuesday September 18. 

New TV documentary looking for Texas cases

The producers of a new TV documentary called “Murder for Hire” are seeking cases to potentially be featured on the show. It’s being co-produced by Dick Wolf (creator of the Law and Order series) and Shed Media, and the same folks produce “Criminal Confessions.” More information is available here.