Cynthia Orr

Cynthia Orr earned a BBA from the University of Texas and a JD from St. Mary’s University. Past President of TCDLA and NACDL, she is currently Vice-Chair-At-Large, American Bar Association (2010–present); Representative, ­American Bar Association House of Delegates (2011–present); Member, American Bar Association Criminal Justice Committee Section (2001–present); Member, American Bar Association Prosecution and Defense Standards Task Force for Rewriting the Standards [New version being approved] (2006–present); and Member, American Bar Association Standards Committee (2006–present). Among her many honors, Cynthia was named in the Top 100 Trial Lawyers in America, American Association of Trial Lawyers (2007–present), Best Lawyers in America (2005–present), and a Texas Monthly Texas Super Lawyer (2003–present).

Way Opened for Mid-Trial Review of Trial Court Rulings

In a surprising opinion the Court of Criminal Appeals recently both re-examined whether an appeal will provided an adequate remedy at law and opened the way for increased high court review of trial court rulings.

Michelle Esparza, Kyle Hawthorne, and Lane Thibodeaux had just completed a grueling months-long capital murder trial in Bryan, Texas, and were engaged with the Court in a charge conference. The State, displeased with the trial Court’s rulings on the jury instructions, announced that it was seeking a writ of mandamus to force the trial Court to give a direct law of parties charge.1 The Court had found that no evidence supported a charge under section 7.02(a) of the Texas Penal Code.

The Waco Court of Appeals held that the trial Court’s rulings were discretionary and, therefore, denied the relief.2

Thereafter, the Court of Criminal Appeals, in an extraordinary opinion, conducted a “‘de novo application of the two prong test’ for mandamus relief.” Weeks, at slip op p.5 footnote 12 (Tex. Crim. App. 2013). It granted the State relief and provisionally3 ordered the Waco Court of Appeals to order the Trial Court to instruct the jury on direct parties liability. The opinion was extraordinary because it said that an appeal did not provide an adequate remedy at law because it was too speculative.

“Falk4 also contends that the State has an adequate remedy because it can raise a cross-point if Falk is convicted and appeals. Whether Falk will be convicted, and if so, whether he will appeal, is speculative. This remedy is too uncertain to constitute and adequate remedy.”

Weeks, slip op 8 (Tex. Crim. App. 2013)

The Court of Criminal Appeals also held that it could review, via writ of mandamus, the trial Court’s non-ministerial act of deciding what jury charges should be given in light of the evidence. This is also extraordinary.

“By focusing on the credibility and weight of the State’s evidence, [the Trial Court] converted a matter-of-law determination based on the existence of some evidence to support a liability theory into a factual finding on the reasonableness of the State’s theory. This ruling by the trial judge is contrary to established law that required the trial court to instruct the jury on the law applicable to the case, including all theories of liability requested by the State for which there is some evidence in the record.”

Weeks, slip op p.11 (Tex. Crim. App. 2013).

What Is Good for the Goose Is Sauce for the Gander

What is good for the State will apply at least equally for the de­fense, if not more so. If an appeal is too speculative for the State, then it is also true for the defendant who has an interest in the particular jury he strategically selected and in its proper charge. These interests are heightened to their zenith in a capital murder case. The defense also has an interest in the jury charge regarding defense theories, which it requests and for which there is some evidence in the record.

In fact, there are numerous pretrial and trial legal rulings in which the bench focuses upon credibility and the weight of the evidence. Under the Weeks case those issues are now arguably reviewable through a writ of mandamus.

“Mandamus is an extraordinary remedy. To intercede in an ongoing capital murder trial and order the trial court to give a particular jury instruction that we believe is raised by the evidence, and modify another jury instruction because we think the trial judge has misconstrued the law, is extraordinary indeed. Shall we interrupt the next capital trial because we think the trial judge has made a legal mistake in admitting certain evidence, or in failing to admit it? Or in granting a continuance, or failing to grant it? In allowing a capital murder defendant to represent himself, or failing to allow it? Or a hundred other scenarios that routinely present themselves in the course of a capital ligation (or any other criminal trial)? Where will it end?”

Weeks dissent slip op. at 1–2 (Tex. Crim. App. 2013)

The dissent in Weeks also agreed that the trial Court’s decision on the charge was not a ministerial act but, as the Waco Court of Appeals held, was a judicial determination. Weeks dissent at slip op 4 (Tex. Crim. App. 2013). And it roundly criticized the majority for interfering in an ongoing capital murder trial, particularly regarding an unsettled question of law that was also raised by the case: whether the jury should be charged that Falk must anticipate the manner and means that the State indicted for conspiracy law of parties liability under section 7.02(b).

“I certainly would not slam on the brakes in the middle of a capital murder trial—especially at the point at which the jury has heard all of the evidence and awaits only instruction from the trial court and argument of the parties before retiring to deliberate—in order to address the question.”

Weeks dissent slip op. p.7 (Tex. Crim. App. 2013)

It concluded that this was especially egregious because the law is unsettled on the legal questions that were raised. Weeks dissent slip op at p.8 (Tex. Crim. App. 2013).

In light of Weeks, Counsel can now utilize writs of mandamus to seek review of legal decisions, whether they constitute an abuse of discretion or concern an unsettled area of law. They can seek this review regardless of the possibility that their client might be convicted and pursue an appeal. And counsel should cite Weeks to obtain review of any and all adverse legal rulings based upon the court’s assessment facts, even if they are disputed.

Surprise Ending!

The Weeks opinion was intended to give the advantage to the State in a hotly contested capital murder case, which was well fought by Esparza, Hawthorne, and Thibodeaux. Perhaps this is why the majority opinion deviated so far from the ordinary course upon which we see decisions concerning writs of mandamus traverse.

Upon receiving the case back from the high Court, the trial Court, sua sponte, granted a mistrial. The question is, will the defense take up the majority’s invitation to review trial Court rulings during the re-trial? We will anxiously wait and see.


1. “Intent to promote or assist.” § 7.02 (a)(2) Texas Penal Code.
2. Stating that the trial Court’s “assessment of the evidence to determine whether it supports the inclusion of an instruction under section 7.02(a) in the court’s charge is not a ministerial act, but rather is an exercise of judgment and judicial determinatio . . . ,” the Waco Court of Appeals also declined to resolve a “dispute about the state of the evidence in an original mandamus proceeding.” See In re State of Texas ex rel. David P. Weeks, No. 10-12-00443-CR (Tex. App.—Waco, Dec. 2012) (emphasis in original).
3. “We conditionally grant relief” In re State of Texas ex rel. David P. Weeks, Nos. AP-76,953 and AP-76,954 (Tex. Crim. App. Jan. 16, 2013).
4. The defendant, John Ray Falk.