March 2022 SDR – Voice for the Defense Vol. 51, No. 2

Voice for the Defense Volume 51, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Facebook is reading your messages, so I cut and pasted this entire SDR and sent it to a friend. We’ll hit that algorithm and bust loose eventually, Sig Heads! We learn that the Confrontation Clause is strong enough to keep sister Suzie, brother John, Martin Luther, Phil, and Don from coming in (because they get in when you open the door. Get it? Whatever.). In other news, I’ve been considering lobbying TCDLA to make some Significant Decision T-Shirts, so send me your ideas, you know they’ll sell!

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369-0577.

Kyle Therrian

United States Supreme Court

Hemphill v. New York, 595 U.S.—, No. 20-637 (2022)

Issue. Is the State permitted to use testimonial hearsay excluded under the Confrontation Clause when a defendant “opens the door” in a manner that requires correcting a misleading impression?

Facts. During a street fight in the Bronx someone fired a stray 9mm bullet and killed a 2-year-old child. Police identified an initial suspect (Suspect 1) and a witness (Witness). When police first interviewed Witness, Witness implicated Suspect 1 as the shooter. Witness later recanted his accusation and instead identified Defendant (Defendant / Hemphill) as the shooter.  Police did not credit Witness’s recantation. They searched Suspect 1’s apartment and discovered a 9mm cartridge and three .357 rounds. Three other witnesses later identified Suspect 1 as the shooter. Abruptly during their murder prosecution of Suspect 1, the State agreed to dismiss their murder charge and allowed Suspect 1 to enter a time-served plea on refiled charges for possessing a .357 revolver. Five years after this dismissal, the State arrested and charged Defendant Hemphill for the same murder. Defendant Hemphill’s DNA had recently proven a match with a sample taken from a blue sweater found inside of Suspect 1’s apartment. Other witnesses had described the shooter as wearing a similar blue shirt during the initial investigation. Defendant Hemphill defended himself at trial by blaming Suspect 1. In opening, counsel explained to the jury that officers discovered 9mm ammunition in Suspect 1’s apartment hours after the shooting. The State convinced the trial court that counsel’s statement was misleading because it omitted the fact that .357 rounds were also discovered and because Suspect 1 ultimately pleaded guilty to possessing a .357 revolver.  Based on New York case law, the trial court found that counsel had “opened the door” to the State’s use of evidence otherwise inadmissible under the Confrontation Clause. The trial court permitted the State to publish to the jury portions of the transcript from Suspect 1’s plea hearing.

Holding. No. Crawford v. Washington, 541 U.S. 36 (2004), rejected the notion that the State may overcome a confrontation challenge with sufficiently reliable hearsay evidence meeting a known hearsay exception. The founders intended to prohibit the “civil-law mode of criminal procedure” and the use of “ex parte examinations against the accused.” Exceptions to the requirement of confrontation are only those known and established at the time of its founding. New York State’s “opening the door rule” was not an exception to the right of confrontation at common law.  The State contends that the “opening the door rule” is a mere procedural rule akin to the requirement of an objection. However, in its implementation, “it is a substantive principle of evidence that dictates what material is relevant and admissible in a case.” The purported exception requires the trial court to evaluate the entirety of evidence and arguments and determine whether admission is justified in order to correct a “misleading impression.” This practice is contrary to Crawford’s strong rejection of procedures allowing trial judges to make determinations whether hearsay evidence is sufficiently reliable in the face of a Confrontation Clause objection. “The Clause commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” The right to Confrontation is a guarantee the same as Fifth Amendment’s prohibition against compelled testimony. A court would be no more justified in admitting a coerced confession to rebut a defendant’s testimony than it would be in admitting testimonial hearsay. The State’s recourse when it believes a defendant is misleading a jury in a manner that can only be cured through evidence made inadmissible by the Confrontation Clause is to raise a Rule 403 objection.

Concurring (Alito, J.). A defendant’s conduct in a criminal prosecution may result in an implied waiver of confrontation. Some examples of this include a failure to object or certain disorderly conduct which results in the defendant’s removal from the courtroom. The rule of optional completeness should be another exception. When a defendant introduces part of a declarant’s testimonial hearsay, the State should be permitted to introduce the rest for context.

Dissenting (Thomas, J.). The Defendant did not raise a Sixth Amendment claim in the New York appellate courts and has not preserved error.

Comment. “Counsel opened the door” is about as popular as saying “not offered for the truth” when prosecutors identify a piece of inadmissible evidence falling into well-known category of evidentiary admissibility: I-get-to-use-this-because-defense-counsel-is-too-effective. I think this case has significant implications, but not necessarily in curtailing rampant use of testimonial hearsay by the State. Instead, I think the impact here is that criminal defense attorneys will be a little less shy about raising certain defenses for fear of the evidentiary consequences.

Fifth Circuit

United States v. Meals, 21 F. 4th 903 (5th Cir. 2021)

Issue. Facebook is reading your messages. When they discover evidence of child exploitation and are compelled by statute to forward that evidence to the government, have they become a state actor for purposes of the Fourth Amendment?

Facts. Defendant was sexting with a fifteen-year-old on Facebook Messenger. Facebook was monitoring these communications and forwarded a tip to the National Center for Missing and Exploited Children (NCMEC). NCMEC forwarded the tip to local law enforcement. Local law enforcement obtained warrants for defendant’s electronic devices and found naked pictures of the fifteen-year-old. Defendant moved to suppress under a theory that Facebook and NCMEC acted as government agents when they searched and obtained messages in which the defendant had a legitimate expectation of privacy. The district court denied defendant’s motion to suppress and sentenced the defendant to 50 years imprisonment.

Holding. No. Under the private search doctrine the government may obtain and use evidence acquired by a non-governmental entity, notwithstanding a person’s expectation of privacy. There are two exceptions to the private search doctrine: (1) the “private actor” is acting as an agent for the government, and (2) if the government, without a warrant, exceeds the scope of the private actor’s original search. The defendant relies on 18 USC § 2258A(a) which requires internet companies to report all instances of child exploitation to NCMEC. Defendant’s argument is that congress has co-opted internet companies for law enforcement purposes. But “[s]ection § 2258A(a) mandates reporting child exploitation on internet platforms to NCMEC, but it neither compels nor coercively encourages internet companies to search actively for such evidence.” The defendant cites the split in authorities on the appropriate factor-test for determining when a private actor becomes a governmental actor and argues that he should prevail under the First Circuit’s test. This court declines to use any factor-test.

Comment. Facebook, if you’re listening, please send me more videos of talking dogs. I’ll tell you all if this worked in Vol. XXXVII No. 3.

Texas Court of Criminal Appeals

Witcher v. State, No. PD-0034-21 (Tex. Crim. App. 2022)

Issue. The offense of continuous sexual abuse of a young child requires two or more instances of sexual abuse occurring over a period of 30 or more days. When the State questions witnesses about the first instance of sexual abuse using words such as “give or take” or “about,” has the State required the jury to speculate such that the verdict is not supported by sufficient evidence?

Facts. Defendant sexually assaulted a young child more than once. The last instance of sexual assault occurred on July 26, 2018. The first instance occurred around the time the victim’s brother went to jail, which was on June 10, 2018, “give or take.” The court of appeals reversed, finding the date the victim’s brother went to jail was too uncertain and speculative. This conclusion was based in part on the fact that the prosecutor phrased all questions about the relevant date of the first instance of sexual assault using the words “at some point,” “around,” “about,” “maybe,” and “give or take.” It was also based on the fact that the testimony did not establish how quickly after the victim’s brother went to jail that the abuse began. “When” someone went to jail could refer to the moment that person went to jail or the time period of that person’s incarceration.

Holding. No. “A jury is permitted to draw reasonable inferences from the evidence but may not come to conclusions based on mere speculation.” The court of appeals’ interpretation of the phrase “when he went to jail” as potentially meaning something other than the exact moment that person went to jail was in error. If someone meant to refer to a general period someone was in jail, they would have said “when he was in jail.” The court of appeals’ finding that words like “around” or “give or take” created too much wiggle room on the relevant date of the first instance of abuse was also in error. “Around” or “give or take” means only a few days. Given the date of incarceration and the date of the last incident, the date of the last incident of sexual assault, the State created a 46-day window for continuous sexual assault when the statute requires two or more incidents occurring more than 30 days apart. Nothing in the testimony lends itself to the conclusion that the generalities used in questioning meant that the first incident of abuse could have actually occurred 16 days after June 10, 2020.

Dissent (Keel, J.) The testimony about the beginning date was equivocal and the jury had to speculate about the meaning of testimony.

Comment. “I invoked my right to counsel when officers tried to question me, give or take.” “I maybe revoked my consent to search around the time officers discovered the contraband.” Same interpretation in these scenarios? Probably not a fair analogy.

State v. Garcia, No. PD-0183-21 (Tex. Crim. App. 2022)

Issue. Can the State appeal from an order granting relief in a misdemeanor post-conviction writ of habeas corpus?

Facts. Defendant pled guilty to two misdemeanor offenses. After immigration authorities notified defendant that his convictions subjected him to deportation, he filed writs of habeas corpus in the misdemeanor court. The trial court found his pleas were involuntary due to ineffective assistance of counsel who failed to advise defendant of his immigration consequences. The State appealed the trial court’s orders granting relief. The court of appeals dismissed the appeal for lack of jurisdiction, holding that the State had no ability to appeal relief granted in a misdemeanor post-conviction writ of habeas corpus. More specifically, the court of appeals explained that the State could not appeal an order “discharging” a defendant from custody on his writ of habeas corpus.

Holding. Yes. “We have previously held that the State can appeal an order granting habeas corpus relief when the order functionally creates one of the appealable scenarios that Article 44.01 specifically enumerates.” Granting of habeas relief is the functional equivalent of granting a new trial—a ground recognized in Article 44.01. Previous cases holding that the State cannot appeal from a judgment “discharging” a defendant are cases that “pre-dated the legislative creation of the State’s right to appeal in criminal cases.”

Rubio v. State, No. PD-0234-20 (Tex. Crim. App. 2022)

Issue. If all of the following happen within the 30-day period for the granting of a new trial, does the trial court continue to have jurisdiction to grant a motion for new trial: motion for new trial filed, motion for new trial denied, leave of court granted to amend motion for new trial, amended motion for new trial filed?

Facts. A jury convicted the defendant of capital murder and the trial court automatically sentenced him to life without parole. Defendant’s attorney filed a motion for new trial for the purpose of giving the court reporter more time to prepare the record. It recited boilerplate language: “the verdict was contrary to the law and evidence.” The trial court promptly overruled this motion. New counsel was retained and filed a substantive motion for new trial with exhibits. The trial court heard and denied the motion on the merits. “In order to determine what arguments and evidence could be considered as part of the record on appeal to resolve this claim, the court of appeals examined whether Appellant’s amended motion for new trial was timely.” The court of appeals found that the second motion—filed after denial of the first—was untimely. The court of appeals therefore declined to consider the evidence of ineffective assistance of counsel produced by defendant during the hearing at which the trial court denied defendant’s second motion.

Holding. Yes. Texas Rule of Appellate Procedure 21.4 provides that a motion for new trial must be filed within 30 days of judgment and sentence and that “[w]ithin 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.” From this rule and prior opinions four distinct rules flow: (1) a motion for new trial must be filed within 30 days, (2) a trial court may rescind an order granting or denying a motion for new trial at any time, (3) A defendant may not amend his motion for new trial outside of the 30-day period, even with leave of court, (4) but if the state does not object to #3, the court can consider a motion so-amended. Now a fifth rule: if the trial court overrules a motion for new trial and a defendant amends and obtains leave of court within the initial 30 days for filing a motion for new trial, the trial court retains jurisdiction to consider the amended motion. 

Dissent (Keller, P.J.).

Comment. It irks me to see prosecutors argue jurisdictional bars and technicalities in substantive motions for new trial which attempt to raise grounds for new trial which are commonly brought in habeas corpus proceedings. Courts don’t appoint counsel in habeas proceedings often and even when they do, most take years to resolve (years after direct appeals are exhausted). When I see a you-didn’t-dot-the-i-and-cross-the-t argument against a motion for new trial, what I really see is a prosecutor saying “let’s use the system against the defendant—we can probably prevent him from having the merits of an argument ever heard because he might not be able to afford a habeas lawyer.” Maybe that’s not what they mean to do, but they should know the implications of what they are doing.

Pugh v. State, No. PD-1053-19 (Tex. Crim. App. 2022)

Issue. “Must a trial court suppress a demonstrative computer animation illustrating otherwise reliable expert testimony purely because it potentially involves some depiction of human behavior?

Facts. A jury convicted defendant of murder. Defendant intentionally ran the victim over with his car. Investigators took detailed measurements from the scene and collected what proved to be the victim’s DNA located on the outside of defendant’s truck. Using measurements from the scene, physical evidence such as tire tracks and the body’s location, and the medical examiner report, the State used an expert to create an animation which depicted the consensus of what the State’s experts believed happened. Defendant objected to the demonstrative exhibit claiming that it portrays subjective belief of what occurred, that nobody knows what the victim was doing before he was struck, and that the unfair prejudice substantially outweighs the probative value.

Holding. An animation is just thousands of individual diagrams. Computer animations are “not fundamentally different from any other form of demonstrative evidence.” They must be authenticated, relevant and have probative value that is not substantially outweighed by unfair prejudice. A demonstrative is authenticated when it fairly and accurately depicts an expert’s opinion. A demonstrative exhibit is relevant if it is helpful to understanding the expert’s opinion. The prejudice versus probative value test should take into account “inaccuracies, variations of scale, and distortions of perspective against the degree to which the judge thinks that the item will assist the trier of fact in understanding a witness’s testimony.” The inflammatory nature of the animation plays a role, too. A demonstrative can be too gruesome or evoke an improper emotional response from the jury. Speculative depictions and factual inaccuracies are also considered under the Rule 403 lens. Here, the expert testified that the animation was a fair and accurate depiction of his opinion (and the jury was instructed the same). Here, the animation was relevant because it helped the jury understand what happened according to the expert. Finally, the probative value was not substantially outweighed by unfair prejudices. The animation was underwhelming in how it depicted the human body as “only marginally more detailed than a stick figure.” The animation did not attempt to recreate injures, it did not contain gore, it did not attempt to evoke an emotional response by doing things such as setting it to the music of Celine Dion or Enya. See Salazar v. State, 90 S.W.3d 330, 338-39 (Tex. Crim. App. 2002)(yes there was a case about the prejudicial nature of Celine Dion and Enya music). The fact that the defendant disputed where the victim was and what the victim was doing is not pertinent to the consideration. There is no per se prohibition against the depiction of human behavior in demonstrative exhibits, but if there were, the instant animation would not be in violation. The instant animation depicted the victim as a rigid motionless almost mannequin-esque figure.

Concurrence (Walker, J.). Computer animations are quite persuasive. When defense learns that the State is going to sponsor a computer animation the defense should do the same thing. If the county does not want to fund a defense animation, that should weigh heavily in favor of the defendant in the Rule 403 balancing analysis.

Comment. Here’s a fun trick: contact the person who created the animation and ask him to show the human figure charging at the defendant menacingly (if that’s the theory). You’ll either get your version of the animation in front of the jury or you’ll get to rail on the bias of the animator who refused to do it.

Ex parte Mathews, No. WR-91, 731-01 (Tex. Crim. App. 2022)

Issue. Does the inference of falsity applicable in cases of a governmental agent engaging in a pattern of misconduct relating to evidence apply to “cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases.”

Facts. Defendant was arrested by a police officer with a pattern of misconduct in drug-related cases which included lying in government records, lying in sworn testimony, and lying in a search warrant affidavit. Defendant pled guilty.

Holding. Yes. In Coty the Court of Criminal Appeals addressed a forensic lab analyst who routinely falsified lab results. It held that it would overturn a conviction without proof that the lab analyst actually falsified the records in a particular case, so long as a defendant can establish a pattern of misconduct. This rule was based, in part, on the egregiousness of conduct and the onerous burden it would place on criminal defendants to have to prove particularized misconduct. A defendant’s burden under Coty is to demonstrate: (1) the technician was a state actor, (2) multiple instances of intentional misconduct, (3) the technician worked on the defendant’s case, (4) the misconduct in other cases is the type that would affect evidence, and (5) the technician handled and processed evidence in defendant’s case around the same period as the misconduct. “We now conclude that the same considerations that drove the Court’s decision in Coty apply with as much force to cases involving police officers who display a pattern of mendacity in obtaining drug arrests and convictions as it does for cases involving laboratory technicians who routinely falsify forensic test results and documentation.”

Comment. I read this sentence—”We filed and set this cause to address whether the requirements for the inference of falsity this court adopted in Coty should apply in cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases”—and thought “oh no, what are they about to do?” The right thing, that’s what!

1st District Houston

The First District Court of Appeals in Houston did not hand down any significant or published opinions since the last Significant Decisions Report.

2nd District Fort Worth

Turner v. State, No. 02-21-00058-CR (Tex. App.—Fort Worth, 2021)

Issue. The Code of Criminal Procedure used to allow a trial court to assess “reparations” in a judgment revoking probation. This provision had been interpreted to grant authority to a trial court to assess unpaid probation fees. When the legislature deletes the word “reparations” from the operative statute, can a trial court continue to require the payment of unpaid probation fees as reparations?

Facts. Defendant was on deferred adjudication probation. The trial court revoked that probation and sentenced the defendant to four years imprisonment. The trial court imposed $910 in “reparations” for unpaid probation fees, to be paid from defendant’s inmate commissary while imprisoned. Defendant appealed the trial court’s reparations order arguing that the Court of Criminal Appeals has never defined probation fees as reparations and the legislature removed the term “reparations” from operative statute permitting the assessment of fees upon revocation.

Holding. Yes. We just won’t call them reparations anymore. Article 42.03 § 2(b) used to say: “in all revocations of a suspension of the imposition of a sentence the judge shall enter the restitution or reparation due and owing on the date of the revocation.” Now it doesn’t say that. The legislature removed the word “reparations” in 2017. The legislature expressly indicated that this amendment was a “nonsubstantive” change to the law. According to the Second Court of Appeals, their precedent only sort-of relied on the term “reparation” to uphold the assessment of unpaid probation fees. But the Second Court also sort-of didn’t rely on the term “reparation.” One of the cases cited by one of the other cases relied upon by Second Court once called probation fees “administrative” or “other fees.” The legislature allows the assessment of probation fees under 42A of the Code of Criminal Procedure. “[W]e believe that Article 42A.652(a) provides [other authority to assess probation fees],” and “[w]e see no reason to abandon our long-standing precedential holdings.”

Comment. One way around precedent is to pretend it isn’t precedent.

none of our prior cases have directly addressed the significance, if any, of the 2017 deletion of the word “reparation” from Article 42.03, § 2(b) of the Code of Criminal Procedure, upon which some of our opinions have purported to rely, at least partially. See, e.g., Taylor v. State, No. 02-15-00425-CR, 2016 WL 3159156, at *4 (Tex. App.––Fort Worth June 2, 2016, pet. ref’d) (mem. op., not designated for publication); Tucker v. State, Nos. 02-15-00265-CR, 02-15-00266-CR, 2016 WL 742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not designated for publication); Brown v. State, No. 2-08-063-CR, 2009 WL 1905231, at *2 (Tex. App.––Fort Worth July 2, 2009, no pet.) (per curiam) (mem. op., not designated for publication); see also Kitchen v. State, 594 S.W.3d 429, 431–32 (Tex. App.––Fort Worth 2019, pet. ref’d) (op. on reh’g en banc) (citing Tucker without citing Article 42.03, § 2(b)); Hongpathoum v. State, 578 S.W.3d 213, 216 (Tex. App.––Fort Worth2019, no pet.) (same); Zamarripa v. State, 506 S.W.3d 715, 716 & n.2 (Tex. App.––Fort Worth 2016, pet. ref’d) (same).

I read the cases. They don’t “purport” anything. See PURPORT, Black’s Law Dictionary (11th ed. 2019)(“to profess or claim, esp. falsely; to seem to be”). The above-string-cited cases actually say that probation fees can be assessed upon revocation for the sole reason that probation fees are reparations. But prest-o change-o, now they’re not. Not that I agree, but I think I prefer Judge Yeary’s method to overcoming stare decisis, call it “dead weight” and don’t hesitate to overrule “on account of the court-made doctrine of stare decisis . . .” Ex parte Thomas, 623 S.W.3d 370, 384 (Yeary, J. concurring).

3rd District Austin

State v. Guilbault, No. 03-20-00110-CR (Tex. App.—Austin, 2021).

Issue. (1) Can a trial court grant a new trial because of its own opinion regarding a key witness’s credibility? (2) Can a trial court grant a new trial in a DWI case when an officer leaves a false impression by his evasiveness to questions exposing limitations on NHTSA’s field sobriety testing procedures?

Facts. A jury convicted the defendant of driving while intoxicated. During his cross-examination of the arresting officer, counsel asked questions to test the officer’s proficiency in NHTSA’s standardized field sobriety tests and the Transportation Code. Specifically, counsel asked about: (1) limitations of the HGN test exposed by a 2007 study cited in the NHTSA manual, and (2) the officer’s own traffic infractions he committed while operating his squad vehicle in a non-emergency situation. The officer’s testimony demonstrated that he was not familiar with the 2007 study, nor his obligation to follow traffic laws when operating his vehicle for a non-emergency reason. Defendant moved for a new trial citing: “disingenuous testimony” of the arresting officer and the State’s failure “to correct false and/or misleading testimony.” The trial court found that the officer’s testimony was unduly evasive and presented serious credibility concerns when he was unaware he had to follow traffic laws in non-emergency situations. The trial court granted defendant’s motion for new trial.

Holding. (1) No. A trial court may not grant a new trial because it found a witness not credible. “Whether a witness is credible is a fact question that goes to the weight of the witness’s testimony . . . [and] the jury is the exclusive judge of the facts, credibility of the witness, and weight to be given to the testimony.” (2) Maybe, but harmless here. Even if the officer’s evasive testimony about the limitations of HGN testing was “false and/or misleading testimony [that] the State failed to correct,” the defendant failed to show how this trial error was anything more than harmless error. The arresting officer provided numerous bases for his belief that the defendant was intoxicated, and the State produced evidence of a 0.087 BAC.

4th District San Antonio

Ex parte Ramirez-Hernandez, No. 04-21-00340 (Tex. App.—San Antonio, Jan. 26, 2022)

Issue. A defendant showed he could not afford his $1 million bond; some of the evidence he presented weighed in favor of reduction; some of the evidence he presented weighed in favor of maintaining a high bond. Under these circumstances does a trial court abuse its discretion to deny a request to reduce bond?

Facts. Defendant was arrested on three counts of aggravated sexual assault of his step-daughter. His bonds were set at a cumulative amount of $1 million. Defendant filed a writ of habeas corpus challenging the bond amount and seeking reduction. At the hearing defendant presented a probable cause affidavit, three witnesses, and a letter of support from his employer. All of the witnesses spoke to the defendant’s good character. Two of the witnesses offered testimony controverting the allegations and explaining the complainant’s incentive to lie. Defendant’s siter testified that the most the family has been able to accumulate for bail is $5,000-$7,000. The State offered no evidence. The trial court denied defendant’s request to reduce bail.

Holding. Yes. “[C]ase law is of relatively little value in addressing the ultimate question of the appropriate amount of bail in a particular case because appellate decisions on bail matters are often brief and avoid extended discussions, and because the cases are so individualized that generalization from results reached in others is difficult.” Citing Ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.—Austin, 2002).

The court must consider how actual evidence admitted into evidence affects the weighing of bail factors. Statutory factors include: (1) securing attendance at trial, (2) not an instrument of oppression, (3) nature and circumstance of offense, (4) ability to make bail, (5) safety of victim and community. Case law factors include: (1) nature of offense and possible sentence, (2) ties to community, (3) length of residency, (4) employment history, (5) criminal history, (6) other bond amounts and past compliance, and (7) aggravating factors in the case. Here some factors weighed in favor of a high bond amount and others weighed in favor of a lower bond amount.

The Fourth Court of Appeals considered five other pretrial bail appeals involving sexual assault of a minor. Several of them involved a nuanced consideration of the above-listed factors. In those where bond was set at unattainable levels, they were upheld only when there was a showing of serious risk of flight, continued violations of the law, or inappropriate post-release contact with victims.

Comment. A pretrial writ of habeas corpus reviewed and disposed of by an appellate court within 5 months of filing notice of appeal! San Antonio is doing something right. Other COAs should take notice. Here is a snippet you don’t see often: “Bail is oppressive when the record indicates the trial court set the bail amount for the express purpose of forcing a defendant to remain incarcerated pending trial or appeal.”

5th District Dallas

Shuler v. State, No. 05-20-00386-CR (Tex. App.—Dallas, Jan. 11, 2022)

Issue. Does anyone pay attention to what trial courts assess as fines, fees, and costs?

Facts. The facts are not particularly important here. See below for how the court (frankly how Kathleen Walsh of the Dallas PD’s office) picks apart all of these costs and fees.

Holding. Yes. The trial court assessed a $1,500 fine which it did not pronounce during the defendant’s plea colloquy. “A fine is punitive in nature and intended to be part of a defendant’s sentence; therefore, it must be orally pronounced.” The fine is deleted.

The legislature amended Texas Local Government Code 134.101(b) to require the payment of new types of court costs: a clerk’s fee, a county records management fee, a courthouse security fee, a technology fee, and a specialty court fee. The Statute became effective in 2020—after defendant’s offense date. The assessment of these fees were in error and are therefore deleted.

Former statutes provide for the collection of child abuse prevention and DNA testing fees from defendants convicted or placed on deferred adjudication for child pornography. A new statute reclassified the child abuse prevention fee as a fine and deleted the DNA testing costs. The text of the new law provides that the law in effect at the time of a defendant’s offense shall determine the assessment of appropriate fees. Texas Government Code § 51.608 provides a catchall provision which would seem to supersede the express language of the newly adopted legislation: “a court cost imposed on the defendant in a criminal proceeding must be the amount established under the law in effect on the date the defendant is convicted of the offense.” But, because of the savings provision of the new law indicating the defendant shall pay the costs in effect on the date of his offense, the “law in effect on the date the defendant is convicted” is a law that requires the payment of fees under the old statute.

A former statute authorizes a time payment fee of $25 for a defendant who does not pay the balance of fines and fees within 31 days of sentencing. When a case is on appeal, the assessment of this fee is premature. The 31 days begins counting from the date a mandate is issued.

The court doubled all of the defendant’s costs on account of his being placed on deferred adjudication in two cases. Texas Code of Criminal Procedure article 102.073(a) prohibits a court from assessing a cost or fee against a defendant more than once in cases that are tried in a single criminal action.

The trial court assessed a $185 consolidated felony conviction fee. The Legislature increased the consolidated felony conviction fee from $133 to $185 with an effective date of 2020. This post-dated defendant’s offense date. The consolidated fee is therefore reduced to $133.

Comment. This case is kind of like being stuck behind someone in line at the grocery store with mad coupons. You kind of feel like you’re taking a beating standing in line. But also . . . super interested in how much they’re going to save.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

The Seventh District Court of Appeals in Amarillo did not hand down any significant or published opinions since the last Significant Decisions Report.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

The Tenth District Court of Appeals in Waco did not hand down any significant or published opinions since the last Significant Decisions Report.

11th District Eastland

The Eleventh District Court of Appeals in Eastland did not hand down any significant or published opinions since the last Significant Decisions Report.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Hall v. State, No. 14-19-00902-CR (Tex. App.—Houston [14th Dist.], Jan 20, 2022)

Issue. Is a sitting trial judge who is friends with a criminal-defense-lawyer-victim an appropriate rebuttal witness if he has familiarity with the low crime rate in the area where the victim was murdered, and the defendant has raised a self-defense which incorporates evidence the high crime rate in the area?

Facts. Defendant was a person with a handicap parking placard and a concealed carry permit. The victim was a person with neither. When the defendant saw that the victim had parked in a handicap parking spot, defendant decided to right this wrong by instigating an altercation. According to the defendant, the two exchanged punches. When the victim got “really mad” and clenched his fists in an “aggressive stance” the defendant pulled out his concealed handgun and shot him in the chest. He then calmly called and flagged down police officers and paramedics. Officers did not see any indicators that the defendant had been in the type of physical altercation the defendant described. At trial, officers testified to the lack of any physical indicia of a serious altercation at the scene; a medical expert testified that the defendant’s handicap was not serious enough to be fatally exacerbated by a fist fight; and the victim’s son testified that the victim was a peaceful criminal defense lawyer who had avoided serious physical altercations with violent people for the duration of his career. Defendant put on evidence of the victim’s young age and physical fitness and compared them to his own old age and ailments. Defendant also elicited through cross-examination of an arresting officer that the area of the offense was prone to gang violence. The trial court permitted the State to call in rebuttal County Criminal Court at Law Judge Raul Rodriguez who was a friend of the victim and familiar with the area in which defendant murdered the victim. Judge Rodriguez testified that he had both maintained a practice and lived in the area of the murder and in his opinion “it is no more dangerous than any other area of Houston” and personally never felt the need to carry a gun to protect himself. 

Holding. Maybe not. Harmless here. Defendant’s argument that the State had no legitimate need for Judge Rodriguez’s rebuttal testimony is unpersuasive. Defendant essentially argues that the State cannot rebut their own witness’s testimony—here the testimony of their officer who admitted the murder occurred in a high crime area. But cross-examination testimony offers shaky support for this argument. Moreover, Judge Rodriguez appeared to be more familiar with the relevant area and community. The combination of Judge Rodriguez’s status as a sitting judge and as a friend of the victim did not convert his testimony from that of a fact witness to that of a witness whose testimony was presented for the mere purpose of improperly influencing the jury. Judge Rodriguez’s relationship with the victim was not a focal point of testimony or the State’s closing. “Even assuming the admission of this portion of the judge’s testimony was erroneous, we conclude any error is harmless.”

Concurrence (Hassan, J.). It was an abuse of discretion to allow a trial judge to testify as a quasi-expert, but the defendant did not specifically object to the witness identifying himself as a judge.

Comment. The Fourteenth Court cites a very good case on the appropriateness of judicial testimony and the potential for improperly influencing a jury by the prestige of office. Joachim v. Chambers, 815 S.W.2d 234 (Tex. 1991).

Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

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